Saturday, April 9, 2011
Sidney Lumet, who directed two of the best legal movies of all time, "12 Angry Men" and "The Verdict," passed away today at the age of 86. Here is the New York Times story. Lumet is probably one of my favorite directors and one of the greatest directors of all time based upon movies like the above two, "Serpico," "Dog Day Afternoon," "Network," and countless others. Probably my favorite moviegoing experience connected to Lumet actually involved a time when I ended up not seeing a Lumet film. My brother, dad, and I went to see "Night Falls on Manhattan" in May 1997 at the Surf & Sand Theater in Virginia Beach but ended up going into the wrong theater. As the lights went down and "Austin Powers: International Man of Mystery" began playing, we were all surprised, and my brother and I wondered whether my dad would actually enjoy the movie. It turned out that my dad, a big James Bond fan ("Thunderball" was my parents' first date, I believe), actually liked it.
Of course, we later caught up with "Night Falls on Manhattan," and it was one of Lumet's better post-1990 films, along with "Before the Devil Knows You're Dead" and "Find Me Guilty." Below is my DVD review of Find Me Guilty:
An article in the Worcester Telegram & Gazette notes that
Last Tuesday, the state Appeals Court threw out a man’s rape conviction because jurors were allowed to hear from a high school guidance counselor in whom the victim confided — some time after she told her mother about it.
The court ruled that such testimony violates the state’s “first complaint” doctrine, which states that only the first person to whom a victim tells his or her story can testify about the alleged abuse.
Legally speaking, we presume the Appeals Court got it right. But the underlying doctrine makes no sense to us.
The “first complaint” doctrine dates to September 2005, when the state’s Supreme Judicial Court announced “a new common law rule of evidence.”
The rule is intended to prevent additional witnesses from piling on testimony and giving greater credibility to the victim than might be warranted. It gives judges discretion in cases where that first witness is “unavailable, incompetent, or too young to testify meaningfully.”
But that’s small comfort to victims and their families. It is difficult and painful enough for a victim of sexual assault to report the crime to anyone. It is hardly surprising that the first person a victim turns to is usually a parent. The fact that he or she then summons the courage to tell a counselor, pastor or close friend shouldn’t bar such people from testifying.
Anyone with firsthand information on a case — hearing the story directly from the victim — should be heard in court. There is no reason to limit such testimony. Hearing witnesses, and weighing their words, lies at the heart of our legal system. It’s what judges, lawyers and jurors are supposed to do.
In the current case, the first complaint doctrine means that Steven Haggett, convicted in 2009 of rape of a child with force and indecent assault and battery, may soon make bail, even though he could face a second trial on the charges against him.
Legalism has triumphed over common sense in this case. The SJC’s ill-considered 2005 decision has made Massachusetts less safe than it should be, and frustrated justice.
A look at that 2005 opinion, however, reveals that the issue is a bit more complicated.
Friday, April 8, 2011
I Was Set Up Like A M&*%!$ F*%$!&: 7th Circuit Finds Entrapment Statement Not A Statement Against Interest
Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
So, is a statement by an inmate to his girlfriend that he was entrapped by ATF agents a statement against the inmate's interest as envisioned by Rule 804(b)(3)? According to the recent opinion of the Seventh Circuit in United States v. Lewis, 2011 WL 1261146 (7th Cir. 2011), a district court did not abuse its discretion by answering this question in the negative. I might disagree.
Thursday, April 7, 2011
I Saw Your Picture Today: 7th Circuit Find No Problem With Lay Witness ID From Still Photo Taken From Surveillance Tape
Federal Rule of Evidence 701 provides that
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
So, let's say that the prosecution creates a still photograph from a surveillance tape of a bank robbery and shows it to the defendant's sister and ex-girlfriend. Can these two witnesses identify the defendant as the man in the photograph consistent with Rule 701? According to the recent opinion of the Seventh Circuit in United States v. White, 2011 WL 1261143 (7th Cir. 2011), the answer is "yes."
Wednesday, April 6, 2011
Article Of Interest: Lynn McLain's 'I’m Going to Dinner with Frank': Admissibility of Nontestimonial Statements of Intent to Prove the Actions of Someone Other Than the Speaker – and the Role of the Due Process Clause as to Nontestimonial Hearsay
In the (in)famous opinion, Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892), the Supreme Court found that statements by a declarant of future intention were admissible not only to prove that the declarant followed through on his intention but also to prove the future actions of other persons. For instance, in Hillmon, the Court found no problem with the admission of a declarant's letters to his sister and fiancée stating that he intended to leave Wichita, Kansas, for Crooked Creek, Colorado, with the defendant.
When the Federal Rules of Evidence were being drafted, however, this approach had fallen into a bit of disfavor. As eventually passed, Federal Rule of Evidence 803(3) provided an exception to the rule against hearsay for
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
And, the Notes of the Committee on the Judiciary accompanying its passage indicated that
Rule 803(3) was approved in the form submitted by the Court to Congress. However, the Committee intends that the Rule be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295-300 (1892), so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.
You might think, then, that courts uniformly have found that parties cannot introduce statements under Federal Rule of Evidence 803(3) to prove the future acts of a other persons. As I have noted previously on this blog (see, e.g., here and here), however, there is actually a circuit split on the issue. Indeed, as Lynn McLain, a Professor of Law and the Dean Joseph Curtis Faculty Fellow at the University of Baltimore School of Law, notes in her recent article, 'I’m Going to Dinner with Frank': Admissibility of Nontestimonial Statements of Intent to Prove the Actions of Someone Other Than the Speaker – and the Role of the Due Process Clause as to Nontestimonial Hearsay, 32 Cardozo L. Rev. 373 (2010), there is actually a three-way circuit split.
Tuesday, April 5, 2011
Monday, April 4, 2011
Article Of Interest: Montré D. Carodine's Keeping it Real: Reforming the "Untried Conviction" Impeachment Rule
Readers of this blog know that some of the areas of evidence/criminal procedure that I find the most fascinating are plea bargaining (see, e.g., here, here, and here) and prior conviction impeachment (see, e.g., here, here, and here). My main argument with regard to plea bargaining is that a variety of factors (such as the public defender crisis, the way that courts have interpreted Federal Rule of Evidence 410, impeachment, rebuttal, and case-in-chief waivers, and the toothless judicial review of plea bargains) have rendered modern plea bargaining unfair both in procedure and outcome. Meanwhile, my main argument with regard to prior conviction impeachment is that courts have botched the analysis under Federal Rule of Evidence 609, too readily deeming admissible defendants' prior convictions, resulting in too few defendants testifying and too many defendants being wrongfully convicted. I had never, however, thought about what effect our nation's plea bargaining crisis might have on prior conviction impeachment. Professor Montré D. Carodine of The University of Alabama School of Law, however, did address the interplay between these two threads in her terrific recent article, Keeping it Real: Reforming the "Untried Conviction" Impeachment Rule, 69 Md. L. Rev. 501 (2010).
Sunday, April 3, 2011
In the wake of the Supreme Court's opinion in Michigan v. Bryant, I argued that "the majority resurrected Ohio v. Roberts," which held that held that the admission of a hearsay statement against a criminal defendant violates the Confrontation Clause unless (1) the hearsay declarant is "unavailable," and (2) the statement has adequate indicia of reliability in that it (a) falls within a firmly rooted hearsay exception or (b) bears particularized guarantees of trustworthiness. The recent opinion of the Court of Appeals of New York in People v. Duhs, 2011 WL 1118627 (N.Y. 2011), corroborates this conclusion.