Saturday, May 15, 2010
A hawala is
an alternative or parallel remittance system. It exists and operates outside of, or parallel to 'traditional' banking or financial channels. It was developed in India, before the introduction of western banking practices, and is currently a major remittance system used around the world. It is but one of several such systems; another well known example is the 'chop', 'chit' or 'flying money' system indigenous to China, and also, used around the world. These systems are often referred to as 'underground banking'; this term is not always correct, as they often operate in the open with complete legitimacy, and these services are often heavily and effectively advertised.
The components of hawala that distinguish it from other remittance systems are trust and the extensive use of connections such as family relationships or regional affiliations. Unlike traditional banking or even the 'chop' system, hawala makes minimal (often no) use of any sort of negotiable instrument. Transfers of money take place based on communications between members of a network of hawaladars, or hawala dealers.
If a defendant were charged with various crimes, with the allegation being that the defendant used a hawala to commit these crimes, expert testimony that the defendant did not use a hawala could run afoul of Federal Rule of Evidence 704. That was not, however, what happened in United States v. Banki, 2010 WL 1875690.
Friday, May 14, 2010
Judge, Jury & Investigator: Court Of Appeals Of Arkansas Finds Trial Judge Improperly Took Field Trip To Appellant's House
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
Normally, this Rule applies when a judge makes comments at trial that are the equivalent of testimony, but as the recent opinion of the Court of Appeals of Arkansas in Kinard v. Arkansas Dept. of Human Services, 2010 WL 1904515 (Ark.App. 2010), makes clear, the Rule also applies when a judge engages in off-the-record fact gathering.
Thursday, May 13, 2010
Sign Here: Court Of Appeals Of Iowa Finds Rule 410 Doesn't Cover Defendant's Falsely Signed Statement of Understanding
Except as otherwise provided in this rule or R.Cr.P. 9(5), evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Most courts require a defendant claiming that he made statements during plea discussions to prove two elements: (1) that he exhibited an actual subjective expectation to negotiate a plea at the time of the discussion; and (2) that this expectation was reasonable given the totality of the circumstances. And as the recent opinion of the Court of Appeals of Iowa in State v. Daniels, 2010 WL 1875707 (Iowa App. 2010), makes clear, if a defendant claims that a document commenced plea negotiations and yet he signed a false name on that document, he did not have an actual subjective expectation to negotiate a plea.
Wednesday, May 12, 2010
No Foundation: Seventh Circuit Opinion Reveals Lack Of Need To "Lay A Foundation" In American Evidence Law
When I reach the authentication portion of my Evidence classes, students usually ask whether authenticating a piece of evidence is the same thing as laying a proper foundation for its admission. My response is that there is no such thing as laying a foundation in American evidence law (despite what we are told by legal movies and TV shows). This point was recently recognized by the Seventh Circuit in its recent opinion in United States v. Collins, 2010 WL 1838361 (7th Cir. 2010).
Tuesday, May 11, 2010
Empty Threats?: Court Of Appeals of Minnesota Finds No Error In Admission Of Threats By Defendant Against Informant
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
So, if a defendant threatens a prospective witness against him but does not actually attack the witness, are his threats against the prospective witness sufficiently probative to pass this Rule 403 balancing test? According to the recent opinion of the Court of Appeals of Minnesota in State v. Anderson, 2010 WL 1850206 (Minn.App. 2010), the answer is "yes" because it is evidence of consciousness of guilt.
Monday, May 10, 2010
Broken Record: Supreme Court Of Tennessee Finds Statement Improperly Admitted As Exhibit Under Recorded Recollection Rule
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
In its recent opinion in State v. Hatcher, 2010 WL 1780049 (Tenn. 2010), the Supreme Court of Tennessee found that the trial court erred in allowing the prosecution to admit an alleged recorded recollection as an exhibit under Tennessee Rule of Evidence 803(5). It should have simply found that the statement did not qualify as a recorded recollection.
Sunday, May 9, 2010
Forfeited Opportunity: Supreme Court Of Minnesota Fails To Rule On Sole Intent Theory Of Forfeiture By Wrongdoing
Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing doctrine, provides an exception to the rule against hearsay for
A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
This Rule, however, is merely a recent evidentiary creation, and there was a separate founding-era forfeiture by wrongdoing doctrine. In Giles v. California, the Supreme Court of California had held that this founding-era version of the doctrine applied when a party procured the unavailability of a witness, regardless of whether the party intended such a result, but the Supreme Court of United States reversed, finding that such a specific intent is required. Thus, both the federal rule (and states counterparts) and the founding-era exception now require specific intent to render a witness unavailable at trial.
But must that be the sole intent? For instance, assume that Defendant robs a bank, and Prospective Witness goes to the cops and turns Defendant in, resulting in Defendant being charged with robbery. Defendant then kills Prospective Witness. Obviously, it can be inferred that Defendant killed Prospective Witness in part to prevent him from testifying at trial, but it can also be inferred that Defendant killed Prospective Witness in part as revenge for his betrayal. It seems obvious to me that sole intent is not required for application of the forfeiture by wrongdoing doctrine, but the Supreme Court of Minnesota was not yet ready to take that leap in its recent opinion in State v. Her, 2010 WL 1791154 (Minn. 2010).