EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, May 21, 2011

Nothing's Shocking: Court Of Appeals Of Minnesota Finds Expected But Emotional Event Not Startling For Excited Utterance Purposes

I remember serving as an extern at the Supreme Court of Virginia back in 2002. One of the justice's clerks told me that the justices were deciding whether to hear an appeal in Esser v. Commonwealth, 566 S.E.2d 876 (Va.App. 2002), and asked me to write a memo on the case. The clerk knew that I was interested in evidentiary issues, and Esser presented a juicy one: Can an excited utterance follow a subsequent startling event or condition? Specifically, in Esser, a mother was about to leave her daughter at home with the mother's live-in boyfriend when the daughter emotionally told her mother than the boyfriend had raped her a few days ago. The Court of Appeals of Virginia found that this statement was an excited utterance, concluding that the startling event was not the rape but the daughter being told that she would be left home alone with the boyfriend. In my memo, I noted that courts, and especially Texas courts, were split on the issue, but that I thought that the Court of Appeals' analysis was correct. The Supreme Court of Virginia denied the appeal.

Later, I used the memo to write, A Shock to the System: Analyzing the Conflict Among Courts over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 Wm. & Mary J. Women & L. 49 (2005). Thereafter, I was happy to report that the Court of Criminal Appeals of Texas eventually agreed with my analysis and found that excited utterances can follow subsequent events and conditions in McCarty v. State, 2008 WL 2512818 (Tex.Crim.App. 2008). In its recent opinion in State v. Goodwin, 2011 WL 1833012 (Minn.App. 2011), the Court of Appeals of Minnesota also agreed with me in theory although it seemingly placed on odd limitation on it as well as the excited utterance exception in general.

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May 21, 2011 | Permalink | Comments (1) | TrackBack (0)

Friday, May 20, 2011

Article of Interest: “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation, by Jane Campbell Moriarty & Marisa Main

Similar to most state counterparts, Federal Rule of Evidence 410(4) states 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:...

(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.

So, when a defendant enters into plea discussions, any incriminatory statements that he makes during the plea bargaining process will be inadmissible against him at trial should a plea agreement not be reached, right? Wrong. Since the Supreme Court's 1995 opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), courts consistently have held that prosecutors can force defendants to waive the protections of Rule 410 (as well as other evidentiary and constitutional protections) to get to the plea bargaining table. Moreover, as noted in the excellent forthcoming article, “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation, "the law of waiver has expanded exponentially in the last few decades, necessitating a change in the current" ABA Standards for Prosecution and Defense Function. The article was co-authored by Jane Campbell Moriarty, a professor at The University of Akron School of Law (and soon to be the Carol Los Mansmann Chair at the Duquesne University School of Law), and Marisa Main, a Professor Moriarty's RA, who will soon by a federal judicial clerk.

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May 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 19, 2011

Resource of Interest: The National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law

Today, I wanted to shine a light on a truly terrific resource that I use in preparing for classes, researching and writing scholarship, and updating this blog: The National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law. The vision statement of the Clearinghouse is "[t]o foster communication between the scientific, technological and legal communities, resulting in awareness and understanding of the policies, interests and concerns affecting those communities." Meanwhile, its mission statement is "[t]o provide comprehensive scientific, technological and legal information, which will promote justice based on sound science and technology."

So, how does it accomplish these goals? Well, it

assembles the available scientific, technological, and relevant legal resources into a comprehensive "one-stop" searchable database with equal access for all. There are no subscription fees which makes the NCSTL database the only free compilation of forensic resources in the world.    

NCSTL seeks to promote justice by developing resources for the legal and scientific communities to provide timely, accurate and useful information. Current projects include distance education programs and training modules and primers with an emphasis on distance delivery, in-person trainings, and extended partnerships with law schools, professional agencies, and federal and state agencies.

NCSTL provides a searchable database of legal, forensic, and technology resources; a reference collection of law, science, and technology material; content-specific bibliographies; national conferences on science, technology, and the law; community acceptance panels; and training for defense counsel who are handling cases involving biological evidence on the applications and limitations of DNA evidence as stated in the President’s DNA Initiative.

In the rest of this post, I will highlight the NCSTL resources that I regularly use and some of the fine folks responsible for the NCSTL's accomplishments.

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May 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 18, 2011

Article of Interest: E. Lea Johnston's Representational Competence: Defining the Limits of the Right to Self-Representation at Trial

When should a defendant be allowed to represent himself at trial? This is a pretty fundamental criminal justice question because the denial of the right of self-representation is a structural error necessitating a new trial without a showing of actual prejudice. As the Supreme Court noted in McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984), "The right is either respected or denied; its deprivation cannot be harmless."

And yet, how are trial courts to decide whether a defendant is sufficiently competent to represent himself at trial? In Dusky v. United States, 362 U.S. 402 (1960), the Supreme Court held that the Constitution does not permit the trial of a person who lacks mental comepetence and then defined the competency standard as including both (1) "whether" the defendant has "a rational as well as factual understanding of the proceedings against him;" and (2) whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding."  28 years later, in Indiana v. Edwards, 554 U.S. 164, 177 (2008), the Court held that  "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."

But under what circumstances should a court find that a defendant is competent to stand trial but not competent to represent himself? The Court in Edwards did not do much to answer this fundamental question, merely finding that the defendant's condition in the case before it fell "in a gray area between Dusky's minimal constitutional requirement that measures a defendant's ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose." But don't take my word for it. Instead, consider the recent opinion in United States v. Saba, 2011 WL 202086 (W.D.Mich. 2011), in which the United States District Court for the Western District of Michigan concluded that "[t]he skeletal guidance of Edwards suggests that a case-by-case analysis is to be employed requiring, a review of the specifics of this case." This language suggests that the gray area between competence to stand trial and competence to self-represent is actually gray matter and that courts must probe the brain of each individual defendant to ascertain whether he can take the lead role in his trial instead of playing the understudy.

In her excellent forthcoming article, Representational Competence: Defining the Limits of the Right to Self-Representation at Trial (forthcoming, Notre Dame Law Review), E. Lea Johnston, a professor at the University of Florida Levin College of Law, argues that Edwards' skeletal frame is insufficient to support the enormity and complexity of the self-representation question. Instead, she argues that courts need to flesh out a test of representational competence, and she puts forward a test based upon social problem-solving theory.

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May 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 17, 2011

Eyewitness Account: Court Of Appeals Of Washington Practically Begs Supreme Court Of Washington To Approve Jury Instruction On Cross-Racial Identifications

Should defendants be able to present expert testimony and/or jury instructions about the inaccuracy of cross-racial identifications? I find this to be a fascinating question (see my posts here, here, here, here, here, and here), and it is one that has divided the courts. As the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Allen, 2011 WL 1745014 (Wash.App. Div. 1 2011), makes clear, Washington courts do not allow instructions about the inaccuracy of cross-racial identification but they can in their discretion allow expert testimony on the subject if certain factors are present. But here's the interesting thing about the court's opinion in Allen: The Court of Appeals seemed to say that such instructions should be given, and it seemingly laid out a strong case for the giving of such instructions. And, in effect, the Court of Appeals seemed to be begging the Supreme Court of Washington to agree with it.

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May 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, May 16, 2011

One Track Bind: Brady, Melendez-Diaz, and Remedial Rationing

Last week, I posted an entry about Cynthia JonesA Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010). Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. But what's the sanction for a Brady violation? Well, typically, it is merely the prosecution disclosing the exculpatory evidence. And, as Professor Jones noted, "Simply ordering the prosecutor to disclose the Brady evidence is, of course, more of a directive than a sanction, because the prosecutor is not required to do anything above and beyond that which was already constitutionally mandated."

This is why I thought that Professor Jones' proposal for additional sanctions for Brady violations (giving a Brady instruction similar to the adverse inference instruction and/or instructing jurors that that a Brady violation supports the inference of consciousness of a weak case) could cause a sea change in Brady because it would deter prosecutors from failing to disclose material exculpatory evidence. And the reason that such sanctions would be so important is that it is virtually impossible for defendants to turn around and bring successful civil actions based upon Brady violations, especially given the Supreme Court's recent opinions in Van de Kamp v. Goldstein, 555 U.S. 335 (2009) and Connick v. Thompson, 131 S.Ct. 1350 (2011).

In this regard, the right created by Brady is similar to many criminal procedure rights in that it is  subject to what Jennifer E. Laurin, a professor at The University of Texas School of Law refers to as "remedial rationing" in her essay Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing, 109 Colum. L. Rev. Sidebar 82 (2009). According to Professor Laurin, remedial rationing is the process by "which enforcement of a given criminal procedure right is committed either to the criminal or the civil realm." And, the argument in her article is "that remedial rationing is misguided both in underestimating the structural limitations of criminal and civil litigation to achieve regulatory goals, and in disregarding potential synergies that may be generated by recursive criminal procedure remedies." So, let's see how this plays out with the example of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

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May 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 15, 2011

Dead Again: Supreme Court Of Wisconsin Opinion Prompts Questions About Nature Of Dying Declaration Exception Under Common Law

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. As I have noted previously on this blog, however (see, e.g., here), the Court strongly implied that even testimonial dying declarations can be admitted without the defendant being previously able to cross-examine the declarant. At footnote 6 of its opinion in Crawford, the Court noted that 

Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are....We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.

Later, in its opinion in Giles v. California, 554 U.S. 353 (2008), the Supreme Court noted that

We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted....The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying.

Since Crawford, no state court has found that the admission of a testimonial dying declaration violated the Confrontation Clause, and the Supreme Court of Wisconsin recently joined these ranks with its opinion in State v. Beauchamp, 2011 WL 1681413 (Wis. 2011), holding:

We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. As the State notes, no published decision of any state court in the country has eliminated the dying declaration hearsay exception based on the reading of selected language of Crawford. We concur with the courts that have addressed this question after Crawford: a hearsay exception as long-standing, well-established and still necessary as this one, as indeed this case illustrates, cannot be lightly dismissed. Regardless of the religious justifications that have been articulated for dying declarations over the centuries, this hearsay exception is a crucial one, and it retains its vitality. We disagree with Beauchamp that scientific advances have changed criminal law such that there is always sufficient evidence without admitting the inculpatory words of a dying victim to fairly try a defendant accused of murder.

So, testimonial dying declarations can be admitted consistent with the Confrontation Clause because they were admitted under the common law. But what types of dying declarations were admitted under the common law? And which common law are we talking about? Moreover, what is the origin story of the dying declaration?

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May 15, 2011 | Permalink | Comments (0) | TrackBack (0)