Saturday, January 15, 2011
Going Into Withdrawal: Western District Of Kentucky Finds Evidence Related To Plea Withdrawal Indamissible Under Rule 410
Federal Rule of Evidence 410 states in relevant part that
Except as otherwise provided in this rule, 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:
(1) a plea of guilty which was later withdrawn...
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas....
Meanwhile, Federal Rule of Criminal Procedure 11(f) states that
The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.
So, let's say that a defendant pleads guilty pursuant to a plea agreement. Then, under the advisement of new counsel, the defendant moves to withdraw her guilty plea, supplying an affidavit supporting the withdrawal of her guilty plea. Thereafter, a hearing is held to examine the withdrawal of her plea, with the defendant testifying as to her innocence and offering a recently discovered letter. If the court allows the defendant to withdraw her guilty plea, should the prosecution be able to admit the defendant's affidavit, testimony, and/or letter at the ensuing trial? According to the recent opinion of the United States District Court for the Western District of Kentucky in United States v. Young, 2011 WL 96627 (W.D.Ky. 2011), the answer is "no."
Friday, January 14, 2011
AALS Poster Project: Kathy Cerminara's Improving Access to Hospice Care for Hispanic and African-American Patients
Thursday, January 13, 2011
Wednesday, January 12, 2011
Tuesday, January 11, 2011
Monday, January 10, 2011
AALS Poster Project: Nicole Chong's How the 1L Legal Analysis and Writing Course Can Bring the "Real World" of Law Practice to the Classroom
For the second year, I am doing a series of posts about the posters presented at the AALS conference and the professors presenting them. Here is the introductory post from last year explaining the project:
In its call for proposals last year, the Legal Writing Institute noted that "[p]oster presentations are an increasingly popular way to present scholarly and pedagogical ideas" but that "poster presentations are a relatively new format for the legal writing community." The same applies to the legal academy as a whole. "At the 2005 [AALS] Annual meeting in San Francisco, the AALS Section on Professional Responsibility sponsored posters on empirical research." Thereafter, "[t]he AALS Committee on Sections and the Annual Meeting was delighted by this innovation and decided that all AALS Sections should have the opportunity to sponsor posters at the 2006 AALS Annual Meeting."
The way I see things, though, not enough professors have availed themselves of this innovation. There are probably a variety of reasons for this insouciance, probably not the least of which is that the poster presentations are scheduled for the same time as AALS panels, meaning that attendees either have to leave panels early or attend panels late to be able to interact with poster presenters during their designated hours. The AALS later posts PDFs of these posters to its Annual Meeting sites (see here, here, and here), but I'm guessing that not many people visit these sites after these conferences are over, making them sort of like the Ark of the Covenant at the end of "Raiders of the Lost Ark." Besides, if you download one of these posters, all you have is the poster, not the presenter's reason for creating it or explanation of it.
Thus, this year, I decided to start the AALS Poster project. Pursuant to this project, I studied each of the posters at the conference and interacted with each of the presenters during their designated hours. I asked the presenters about why they created their posters, the thesis of their posters, how the posters fit into their scholarship, etc. Over the next few weeks, I will spotlight each of these posters and their presenters on this blog, and I hope that these posts draw some of the attention that these posters and presenters deserve. Of course, nothing substitutes perfectly for the real thing, and I would recommend that attendees at successive AALS conferences stop by during the designated hours and discuss the posters with their presenters. I found such discussions to be very rewarding.
Sunday, January 9, 2011
Open In Case Of My Death, Take 4: Court Of Appeals Of Wisconsin Grapples With Forfeiture By Wrongdoing In Jensen Appeal
I have written three posts on this blog (here, here, and here) about the case of Mark Jensen. You might recall that this was the case where Mark Jensen was accused of poisoning his wife Julie with two doses of ethylene glycol, commonly known as antifreeze, so that he could be with his new girlfriend. The key evidentiary issue in the case concerned the admissibility of a note that the wife gave to a neighbor which indicated that Mark should be the first suspect if she died. This evidentiary issue eventually reached the Supreme Court of Wisconsin, and the majority opinion in State v. Jensen, 727 N.W.2d 518, 521 (Wis. 2007), held that the note was admissible under the forfeiture by wrongdoing doctrine, which allows for hearsay statements by prospective witnesses to be admissible when the defendant rendered the prospective witness unavailable to testify at trial.
Jensen was thereafter convicted, but the United States Supreme Court subsequently issued Giles v. California, which held that the forfeiture by wrongdoing doctrine does not apply when the defendant merely renders a prospective witness unavailable to testify against him at trial; instead, the doctrine applies "only if the defendant has in mind the particular purpose of making the witness unavailable." Therefore, Jensen appealed, with the Court of Appeals of Wisconsin recently resolving that appeal in State v. Jensen, 2010 WL 5371177 (Wis.App. 2010).