Saturday, June 6, 2009
Come Be My Conspiracy: Supreme Court Of Arkansas Makes Seemingly Erroneous Co-Conspirator Admission Ruling
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
South Carolina Rule of Evidence 801(d)(1)(B) provides that
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose.
In its recent opinion in State v. Russell, 2009 WL 1373602 (S.C.App. 2009), the Court of Appeals of South Carolina found that the trial court properly allowed for the admission of the alleged victim's prior consistent statement even though there was no express ot implied charge of recent fabrication or improper influence of motive. How could it do so?
Friday, June 5, 2009
Rescue Me?: Supreme Court Of California Issues Confusing Opinion Comparing/Contrasting The Rescue Doctrine With The Public Safety Exception
In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court found that there is a "public safety" exception to the requirement that police officers give suspects Miranda warnings when there is an "exigency requiring immediate action by the officers beyond the normal need expeditiously to solve a serious crime" and the officers' questions "relate to an objectively reasonable need to protect the police or the public from any immediate danger." A decade earlier, a California appellate court construed the Supreme Court of California's opinion in People v. Modesto, 398 P.2d 753 (Cal.1965), as creating a "rescue doctrine" exception to Miranda. So, is the "rescue doctrine" exception coterminous with the "public safety" exception, or are there relevant differences between the two? That was the question that the Supreme Court of California had to answer in its recent opinion in People v. Davis, 2009 WL 151577 (Cal. 2009).
Thursday, June 4, 2009
Upon The Advice Of My Attorney: Attorney Argues Phone Call To Police Triggered Fifth Amendment Right To Counsel
A 17 year-old is shot and killed during an attempted robbery. In the hours after the shooting, the police arrest a 16 year-old suspect and begin questioning him regarding the crime(s). While the suspect is being questioned, a man is hired as the suspect's attorney (apparently by the suspect's family). The attorney calls the police and tells them that he has been hired to represent the suspect and that all questioning must cease. The police, however, continue to question the suspect, who makes incriminatory statements. The attorney later claims that all statements the suspect made after his call must be suppressed as they were taken in violation of his client's Fifth Amendment right to counsel. The attorney is most likely wrong.
Wednesday, June 3, 2009
Supreme Court Of Minnesota Throws Intoxilyzer 5000 In The Drunk Tank Based Upon Non-Production Of Source Code
I have written several previous posts about the problems associated with the Intoxilyzer brand of evidential breath alcohol-testing devices. In February, I did a post about Connecticut discontinuing its use of the Intoxilyzer 5000 in favor of the Alcotest 7110 MK III-C based upon its belief that the latter was a better technology. And last May, I did a post about
[a] ruling by a City Court judge in Tucson could [have] affected every alcohol breath test conducted in Arizona since December 1, 2006. That was the date when Arizona adopted the Intoxilyzer 8000 machine made by CMI. Apparently, defense attorneys in 49 DUI cases before Judge Thomas Berning had asked for the Intoxilyzer 8000's source code used to create the machine's software. In response, CMI agreed to make the source code available as long as defense attorneys agreed not to reveal it publicly, which defense attorneys agreed to. According to a ruling by Judge Berning late last week, however, "Despite this, neither the state nor CMI has released the source code." Instead, according to Berning, CMI came back with a counteroffer with "more onerous terms" that defense attorneys said were ethically problematic." Unsatisfied by CMI's bait and switch, Judge Berning tossed out the alcohol breath tests from the 49 DUI cases.
Now, the Arizona ruling was important, but it was not hugely important because it involved the lesser used Intoxilyzer 8000 machine. Conversely, the Intoxilyzer 5000 machine I mentioned in my February post is the sobriety test most widely used by police agencies throughout the United States. But now, according to the Supreme Court of Minnesota, the same problem that the Arizona judge found with the Intoxilyzer 8000 machine applies to the Intoxilyzer 5000 machine.
Tuesday, June 2, 2009
Can you tell the difference between ready to drink (RTD) nutritional beverages Muscle Milk and Muscle Power? CytoSport, the maker of Muscle Milk, claims that consumers cannot, and that is why it sued Vital Pharmaceuticals, Inc., the maker of Muscle Power, for, inter alia, trademark infringement. And, pursuant to the recent ruling of the United States District Court for the Eastern District of California in Cytosport, Inc. v. Vital Pharmaceuticals, Inc., 2009 WL 1444535 (E.D. Cal. 2009), CytoSport will be able to prove actual confusion by consumers based upon consumer feedback, notwithstanding the rule against hearsay.
Monday, June 1, 2009
It Wasn't Me: Third Circuit Finds That District Court Properly Precluded Reverse-404(b) Evidence In Carjacking Appeal
A little while ago, I posted an entry about a recent opinion in which the United States District Court for the District of New Mexico noted that the Tenth Circuit has suggested, but not yet specifically held, that courts should more readily find reverse-Rule 404(b) evidence admissible than regular Rule 404(b) evidence because of the absence of the fear of an innocent man being convicted. The position of the Tenth Circuit is not anomalous, and, indeed, many courts have held what the Tenth Circuit has merely suggested. But, as the recent opinion of the Third Circuit in United States v. Donzo, 2009 WL 1452043 (3rd Cir. 2009), makes clear, defendants are not automatically entitled to introduce reverse-Rule 404(b) evidence.
Sunday, May 31, 2009
Many of you may have heard of Craig Watkins, who in 2006 became the first African-American elected district attorney of any county in Texas history when he became the Dallas County District Attorney. Last year, Reason's Radly Balko mused about whether Watkins was America's best prosecutor based upon his creation of the Conviction Integrity Unit.
Established by District Attorney Craig Watkins in July of 2007, the Conviction Integrity Unit oversees the post-conviction review of more than 400 DNA cases in conjunction with the Innocence Project of Texas (IPOT) and in accordance with the Texas Code of Criminal Procedure, Chapter 64 (Motion for Forensic DNA Testing). In addition to the IPOT project, the Conviction Integrity Unit investigates and prosecutes old cases (DNA and non-DNA related) where evidence identifies different or additional perpetrators. Special Field Bureau Chief Mike Ware supervises the Conviction Integrity Unit, the Appellate Division, the Public Integrity Division, the Federal Division and the Mental Health Unit, as well as public information, evidence destruction and expunctions at the District Attorney’s Office. The Conviction Integrity Unit is staffed by one assistant district attorney, one investigator and one legal assistant. This special division is the first of its kind in the United States.