Tuesday, April 23, 2013
Jessica L. West (Vermont Law School) has posted Is Injustice Relevant? Narrative and Blameworthiness in Protester Trials (Temple Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article examines application of the doctrine of relevance to exclude evidence of the motivations underlying the actions of civilly disobedient criminal defendants. While not constitutionally protected, civil disobedience plays an important role in the political, social and legal history of the United States. Though acts of civil disobedience involve violations of law, actions of protest differ from actions of non-protest crime in a number of important respects. Civilly disobedient protesters undertake their action openly, motivated by the desire to call public attention to an injustice. Their motivation is distinct from that of non-protester criminal defendants who seek to promote individual goals. Despite the importance of protester motivation in distinguishing the civilly disobedient defendant, courts routinely exclude evidence of protester motivations as not relevant in criminal proceedings. Applied broadly in many contexts, the doctrine of relevance is applied narrowly in the context of motivations of protesters. The constrained application utilized in protester trials overlooks evolving understandings of evidentiary relevance. The most important of these evolving concepts are narrative relevance and blameworthiness. Evidence of underlying motivation provides an essential piece of a cohesive narrative explaining a protester’s actions and intentions. The evidence also permits a fact finder to conduct the evaluation of blameworthiness required for a determination of criminal culpability. Ultimately, the article concludes that courts should recognize the admissibility of protester motivation within criminal trials of civilly disobedient protesters.