EvidenceProf Blog

The Vermont Frat Questionnaire & The Foreseeability Of Stranger Rape Based Upon Increased Acquaintance Rape At A College

If I could rape someone, who would it be?

This now infamous question, asked at the end of a fraternity questionnaire at the University of Vermont, led to the fraternity being suspended. But let's say that the university took no action in response to this question. And let's say that the university also took no or only minimal action in response to a rise in the number of (acquaintance) rapes on its campus over a period of two years. Finally, let's say that a victim was raped at college by a stranger, who turned out to be one of the members of this fraternity, and sued the school for negligence. If the university moved for summary judgment dismissing the complaint, claiming that the rape was not foreseeable, should the court grant the motion? According to the opinion of the United States District Court for the Eastern District of Wisconsin in Lees v. Carthage College, 2011 WL 3844115 (E.D.Wis. 2011), the apparent answer is, "yes, the court should grant summary judgment" even in the face of expert testimony to the contrary. In fact, according to the court, such expert testimony should be deemed inadmissible.

In Lees, the victim was raped at Carthage College in 2008. The victim lived at an all-female residence hall, Tarble Hall, and

[d]uring an orientation at Tarble Hall, the residents stood up, introduced themselves to each other, talked about their hobbies and interests, and then went down to the lake to pick out a rock to use as a "door stop" for their dorm doors. The resident assistants (RAs) encouraged the Tarble residents to use a rock to prop their doors open when they were in their rooms so they could mingle and get to know other residents.

Soon thereafter, while the victim was watching television in her room with the door open, two men entered at around 12:30 A.M.; one held the victim down while the other raped her. At Carthage, anyone with a valid student ID can enter any residence hall between the hours of 8:00 A.M. to 2:00 A.M.

Pursuant to federal law, Carthage reported the following number of forcible sexual offenses for each year: 2008–4; 2007–5; 2006–1; 2005–1; 2004–0; 2003–1. All of these incidents were acquaintance assaults (also known as date rape), meaning that the victim was in some way an acquaintance of the perpetrator. None of these incidents involved the victim being assaulted by a stranger.

Based upon the above facts, the victim sued Carthage College for negligence, meaning that she needed to establish, inter alia, that the college breached a duty of care towards her because her rape was foreseeable and the college took insufficient actions to prevent it. The college responded by filing for summary judgment, and the victim responded to the college's motion by proffering the expert testimony of Dr. Daniel Kennedy, Professor Emeritus at the University of Detroit, where he taught criminology and security administration for over thirty years.

Dr. Kennedy wr[ote] that "an assault on a female dorm resident was generally foreseeable given prior history, perimeter failures, and visitation and staffing policies at Tarble Hall. Had this foreseeability been recognized and the security deficiencies described above been rectified, it is more likely than not the sexual assault against Katherine Lees would not have taken place."...Dr. Kennedy later explained that "unreasonable access was granted through the visitor policy, the 'open door policy,' and the lack of an electronic lock/door prop alarm on the basement door. Thus, it was clearly foreseeable that with such access, stranger-on-stranger rape could and eventually would occur."

The Eastern District of Wisconsin disagreed, initially finding that

Carthage was only required to take "precautions commensurate with the danger" to its students from criminals....Indeed, the applicable standard of care is directly informed by foreseeability because the "amount of care to take is a function of the danger that care would avert."...Dr. Kennedy's opinion that the security at Tarble Hall should have been improved is based on his corresponding conclusion that the attack on Ms. Lees was foreseeable. This is an unreliable conclusion, which means that Dr. Kennedy's testimony on the standard of care is inadmissible.

So, why did the court find that Dr. Kennedy's testimony was unreliable? According to the court,

Dr. Kennedy maintain[ed] that [the victim's] assault was foreseeable in light of the increase in sexual assaults at Carthage College in 2007 and 2008. However, it is undisputed that these were instances of acquaintance rape, not stranger rape. Acquaintance rape involves two people who know each other and/or are voluntarily in each other's presence. Therefore, acquaintance rape cannot be prevented through increased physical security measures. Instead, acquaintance rape is addressed by educating male and female students about how to avoid dangerous situations....A reasonable person exercising ordinary care would not implement increased security measures in response to a problem that cannot be prevented through increased security.

Furthermore, according to the court,

Dr. Kennedy states[d] generally that rape by a stranger was foreseeable because there are a sufficient supply of sexual offenders on a college campus. Dr. Kennedy concede[d] that the prevailing problem on college campuses is acquaintance rape, not stranger rape....Dr. Kennedy attempt[ed] to link the prevalence of acquaintance rape with the foreseeability of stranger rape by citing studies which conclude that 30–35% of male subjects would commit a rape if they "thought they could get away with it."...Yet none of the studies cited by Dr. Kennedy focus on the distinction between assaulting a stranger and assaulting an acquaintance. For instance, according to one article, "[c]ultural expectations that partygoers drink heavily and trust party-mates become problematic when combined with expectations that women be nice and defer to men. Fulfilling the role of the partier produces vulnerability on the part of women, which some men exploit to extract non-consensual sex." Elizabeth A. Armstrong, Sexual Assault on Campus: A Multilevel Integrative Approach to Party Rape, Social Problems, Vol. 53, Issue 4, 2006, at 484. Dr. Kennedy does not explain how it is foreseeable that a male college student who exploits the use of alcohol to assault someone he met at a party would also exploit lax security measures to assault a complete stranger in her dorm room. It simply does not follow that stranger rape is foreseeable based upon the general prevalence of acquaintance rape. "[N]othing in either Daubert or the FederalRules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered."

My response: Really? First, let's look at the court's definition of acquaintance rape. According to the court, "[a]cquaintance rape involves two people who know each other and/or are voluntarily in each other's presence." In other words, acquaintance rape involves (1) two people who know each other and are voluntarily in each other's presence; (2) two people who don't know each other and are voluntarily in each other's presence; or (3) two people who know each other and are not voluntarily in each other's presence.

Given this third example, I don't see how the court concluded as a matter of law that acquaintance rape cannot be prevented through increased physical security measures." The victim in Lees was a victim of stranger rape, but it is easy to see how she could have been the victim of an acquaintance rape that could have been prevented through increased security measures. The victim in Lees could have known her rapists through classes. Through the school newspaper. Through intramural sports. Through student government. Etc., etc. And, of course, while she knew her rapists, she could not have wanted to engage in sexual relations with them. Indeed, she might not even have wanted to interact with her eventual rapists on the night in question. Maybe they had fought. Maybe she was tired. Maybe she was drunk.

And yet, given the fact that any student with a valid ID could access the victim's all-female residence until 2:00 A.M., and given the fact that the victim was encouraged to leave her door propped open, any student at the school who wanted to rape her had easy access to her. Now sure, increased security measures wouldn't eliminate acquaintance rape, and it wouldn't do much to prevent a certain type of acquaintance rape. But such measures certainly would be likely to decrease a certain type of acquaintance rape, namely the type of acquaintance rape when the victim is not voluntarily in the presence of the rapist. The way I say it, even if the particular way in which the victim in Lees was raped wa not foreseeable, her rape was certainly in the foreseeable "zone of risk" created by the increase in acquaintance rapes on campus, meaning that there was at least a triable issue of fact as to whether Carthage College was negligent.

Second, what about the court's conclusion that "[i]t simply does not follow that stranger rape is foreseeable based upon the general prevalence of acquaintance rape," rendering Dr. Kennedy's testimony too unreliable to be admissible under Federal Rule of Evidence 702? Well, another Federal Rule of Evidence is Federal Rule of Evidence 413. Enacted as  part of the Violent Crime Control and Law Enforcement Act of 1994, Federal Rule of Evidence 413 provides that

In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

One of the main reasons for the adoption of this Rule was social science evidence of high recidivism rates for sex offenders, and courts have gone whole hog with it (rightfully or wrongfully), finding that evidence of past sexual crimes are admissible against defendants charged with sexual crimes, even if the crimes are factually quite different. See, e.g., State v. Wright, 2011 WL 6091243 (La. 2011). The general position of the courts seems to be that evidence that a defendant committed a sex crime makes it more likely that he committed another sex crime, even if the latter crime is quite different from the prior sex crime, making the evidence admissible under Rule 413, with jurors then left with the task of how much weight to give to the evidence.

This being the case, how was Dr. Kennedy's testimony deemed inadmissible? He used the exact reasoning used by Congress in enacting Rule 413, and federal courts have bent over backwards to accommodate Congressional intent and apply Rule 413 in a wide variety of cases.

-CM

 

Making Weight: Court Of Appeals Of Indiana Doesn't Allow Jury Impeachment Regarding Jury Experiments On Weight Bench

A husband arrives home and allegedly finds his wife dead, her lifeless body lying on a weightlifting bench with the weight bar pinned across her throat. The State disagreed, believing that the wife's death was a case of foul play. It charges the husband with murder. The case proceeds to trial, where the prosecution introduces the weight machine into evidence as an exhibit. During deliberations, the jurors use the weight machine to perform experiments. Are the results of these experiments extraneous prejudicial information, allowing for juror impeachment? According to the recent opinion of the Court of Appeals of Indiana in Pattison v. State, 2011 WL 6130778 (Ind.App. 2011), the answer is "no." I disagree.

In Pattison, the facts were as stated above. At trial,

the State assembled the machine in the courtroom. The machine was entered into evidence as State's Exhibit 17 without objection. During the testimony of Laurel Jensen, who worked for the company that manufactured the machine, the jury was permitted to leave the jury box and gather around the machine. Jensen explained how it worked and pointed out its parts and features. Later, Detective Jason Page testified about experiments he had performed on the machine during his investigation. During his testimony, Page lay down on the machine and demonstrated for the jury how it functioned. Among other features, he demonstrated how a user could lock the weight bar into place on the guide bars to prevent it from falling on the user. Next, during the cross-examination of Dr. Greg Davis, the prosecutor had a detective lie on the bench, and he straddled the detective while questioning Dr. Davis. The prosecutor, while grabbing the detective's wrists, asked Dr. Davis if a person could keep another person who was using the machine from locking the weight bar into place under those circumstances. The prosecutor also asked Dr. Davis to estimate how quickly a person's breathing would be impeded if the weight bar were laying on his or her neck and another person sat on his or her abdomen.

After the defendant was convicted, he filed a motion for a mistral and asked the court to hold a hearing and require jurors to appear for questioning about their experiments with the machine. The defense learned about these experiments through a newspaper newspaper article in which one of the jurors gave an interview. According to the interview, 

the jurors returned to the courtroom during their deliberations to experiment with the machine. A female juror lay on the weight bench and tried to get out from under the weight bar. Next, the same juror tried to get out from under the weights while another juror sat on her and held her wrists.

The defendant thereafter appealed, claiming that evidence of these experiments was admissible under Indiana Rule of Evidence 606(b), which provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

According to the defendant, the results of the jurors' experiments were extraneous prejudicial information. The Court of Appeals of Indiana disagreed, first noting that

An experiment by the jury is improper where it amounts to additional evidence supplementary to that introduced during the trial....In Bradford, the defendant was charged with arson and murder. During the presentation of the evidence, a detective testified as to experiments he had conducted to establish whether the defendant could have committed the offenses in the time allowed. Next, the jury was taken to the crime scene and permitted to view it. Later, during deliberations, the jury requested and received permission to return to the crime scene, where they performed experiments as to how fast a person could pour gasoline out of a can and crawl through the house. Our Supreme Court determined that the jury's actions were in keeping with the evidence presented and were not improper. 

The court then found that

that the jury's examination of the machine during deliberation was not extraneous, additional evidence, but rather was a permissible consideration of the evidence presented at trial. Therefore, the trial court did not abuse its discretion by denying Pattison's request for an evidentiary hearing to question jurors. See Hape, 903 N.E.2d at 988 (determining that the trial court properly denied the defendant's request to question jurors about text messages the jurors found on a cell phone during deliberations because the cell phone was properly admitted into evidence, and as a result the messages were not extraneous information).

I've already voiced my displeasure with the Hape case in a prior post. In this post, I ask "what was the court thinking?" with its reference to Bradford. In Bradford, the jury returned to the crime scene to perform experiments after receiving permission from the court. In other words, the experiments were court-sponsored, and the judge could explain to jurors how the conditions at the crime scene could be very different from the conditions on the day when the crime was committed. Conversely, if the jurors returned to the crime scene without the court's permission to conduct experiments, the results of those experiments indisputably would have constituted extraneous prejudicial information.

Why should the outcome be different in Pattison? Undoubtedly, the juror who lay on the weight bench had different physical characteristics than the victim. And undoubtedly, the juror who held her wrists had different physical characteristics than the defendant. The weight bench could have been in a drastically different condition than on the day when the victim. Sure, the weight bench was admitted into evidence, but the court did not authorize the jurors' experiments, meaning that the results of those experiments were extraneous information that easily could have been prejudicial to the defense.

-CM 

The Weight Of The Evidence, Take 2: Court Of Criminal Appeals Of Texas Reverses Conviction In Rule 804(b)(1) Case

Last year, I posted an entry about Sanchez v. State, 2010 WL 4336169 (Tex.App.-San Antonio 2010). As I noted at the time,

In Sanchez, Ivan William Sanchez was convicted of three counts of indecency with a child by sexual contact and one count of aggravated sexual assault of a child. Before Sanchez's trial, there was a pretrial hearing during which Angelica Newsome testified about a statement the complainant made to her regarding alleged acts of abuse committed against her by Sanchez. The purpose of this testimony was to determine whether the complainant's statement qualified for admission under Texas Code of Criminal Procedure article 38.072 Section 2(a)(3), which provides an an exception to the rule against hearsay for "outcry testimony" if, among other conditions, the statement describing the alleged offense was "made to the first person, 18 years of age or older, other than the defendant, to whom the child...made a statement about the offense or extraneous crime, wrong, or act." The trial court deemed the statement admissible. At trial, however, Newsome was unavailable, prompting the State to read  into evidence the testimony Newsome gave at the pretrial hearing.

After he was convicted, Sanchez appealed, claiming that the admission of this testimony was improper under Texas Rule of Evidence 804(b)(1) and violated his rights under the Confrontation Clause because his motive to develop the testimony of Newsome at the pretrial hearing was not the same as his motive would have been at trial.

The Court of Appeals of Texas, San Antonio, disagreed, but yesterday the Court of Criminal Appeals of Texas reversed in Sanchez v. State, 2011 WL 6183607 (Tex.Crim.App. 2011). Why?

In rejecting Sanchez's Confrontation Clause argument, the Court of Appeals of Texas, San Antonio, had found that

In Texas, there is no bright-line rule that states pretrial hearings do not provide an adequate opportunity to cross-examine sufficient to satisfy confrontation clause requirements. Rule 804(b)(1) does not require that in order for prior testimony to be admitted as an exception to the hearsay rule the opponent of the evidence have had an identical motive to challenge the testimony at the prior proceeding as he now has at trial....Instead, the rule requires only that he have had a similar motive....Neither the form of the proceeding, the theory of the case, nor the nature of the relief sought need be the same....Only the particular issue about which the testimony was first offered must be substantially similar to the issue offered in the current action....

On appeal, appellant contends he was not given the opportunity at trial to "flesh out" any potential bias Newsome may have had, to question Newsome's ability to adequately recall events, or to expand on Newsome's admission at the pretrial hearing that she had "seizures and certain things [were] kind of foggy." The purpose of a hearing conducted pursuant to article 38.072 is to determine whether the outcry "statement is reliable based on the time, content, and circumstances of the statement."...Appellant contends the purpose of the pretrial hearing is different from cross-examination for purposes of the guilt/innocence stage of trial. Therefore, appellant concludes, he had no motive at the pretrial hearing to question Newsome about her bias, her recall, or her seizures.

One indicia of whether the child's outcry is reliable is whether evidence exists of prior prompting or manipulation by adults....Therefore, at the pretrial hearing, appellant had a basis for exploring whether Newsome held any bias against him that would have caused her to prompt or manipulate the complainant. Also, because the outcry statement must be one that in some discernible manner describes the alleged offense, appellant had a basis for exploring Newsome's ability to recall the time, content, and circumstances of the outcry. In fact, at the pretrial hearing, appellant's counsel conducted an extensive cross-examination of Newsome about the timing of the outcry and the specific words the complainant used in describing the offense, and Newsome's pretrial testimony was read at trial in its entirety, including counsel's cross-examination. We conclude appellant's motive to cross-examine Newsome at the pretrial hearing was similar to his stated motive for cross-examining her at trial. Therefore, appellant was not denied his constitutional right to confront a witness at trial.

At the time, I strongly criticized the court's conclusion, asserting that

In determining whether a statement is admissible under an exception to the rule against hearsay, a trial court merely has to determine whether the proponent of the evidence has established all of the elements of the hearsay exception by a preponderance of the evidence. This isn't a terribly difficult standard to satisfy. As long as a witness is willing to take the stand and testify that all of the elements were satisfied, the court will likely deem the statement admissible, with any questions about the witness' issues with perception, memory, credibility, contradictions, etc. going to the weight of the evidence rather than its admissibility. As an example, in Cagle v. State, 976 S.W.2d 879, 882 (Tex.App.-Tyler 1998), the Court of Appeals of Texas, Tyler, found that an inconsistency between the testimony of the victim and the testimony of her mother regarding an "outcry statement" under Texas Code of Criminal Procedure article 38.072 Section 2(a)(3) went to the weight of the evidence and not the admissibility of the statement.

In other words, it seems clear to me that Sanchez knew that Newsome's testimony would be deemed admissible at the pretrial hearing. And sure, his attorney did engage in a somewhat extensive cross-examination of Newsome, but it seems to me that the purpose of this interrogation was to set things up for an even more extensive interrogation of Newsome at trial, the purpose of which would have been to call into question her credibility before the jury and not simply to call into question whether the elements of a hearsay exception had been established by a preponderance of the evidence.

Yesterday, the Court of Criminal Appeals of Texas agreed with me. And in doing so, the court created a bright-line rule that testimony elicited at an article 38.072 hearing never satisfies the Confrontation Clause. Why? Well, the court noted that such a hearing is concerned only with the reliability of the outcry and has nothing to do with the witness' credibility. Instead, if the court at an article 38.072 hearing determines that the witness' statement is reliable, the statement is deemed admissible, and the credibility of the outcry witness is a matter for the jury at trial; It can't be impeached by the opposing party during the hearing. Accordingly, the court found that

the narrow range of discretion that Article 38.072 allows a trial court means that the credibility of the outcry witness is not a relevant issue at a hearing to determine admissibility of an outcry. A hearing in which the sought-after cross-examination would be necessarily irrelevant does not provide an adequate opportunity for cross-examination such that testimony from the hearing is admissible at a trial on the merits.

Trial courts have great discretion in how they manage their Article 38.072 hearings. However, we do not wish to encourage parties to attempt to elicit irrelevant testimony in order to get impeachment evidence for trial. Our ruling today is meant not only to vindicate defendants' Sixth Amendment rights, but also to ensure that trial courts decide the reliability of an outcry based only on the time, content, and circumstances of the statement, leaving the determination of the outcry witness's credibility to the fact finder at trial.

(Hat tip to Chris Osborn for the link)

-CM

Law & Crit, Take 6: "To Kill A Mockingbird" And Voice-Over Narration

On Monday, Bert Schneider passed away after having produced such classics as "Easy Rider," "Five Easy Pieces," and "The Last Picture Show." He was also the producer on Terrence Malick's pastoral "Days of Heaven," and his passing led Jeffrey Wells at "Hollywood Elsewhere" (where I used to write DVD reviews) to quip,

Bert Schneider, the last producer to semi-successfully micro-manage Terrence Malick and keep him from his own self-indulgent tendencies by somehow persuading him to keep Days of Heaven down to a managable 94 minutes, died Monday at age 78.

I can certainly appreciate where Jeff is coming from. I remember seeing "The New World" (the original cut) at the Regal Union Station 14 with a friend, who looked like she had just escaped from the ninth circle of hell as we exited the theater doors. Personally, I'm a fan of Malick, both his newer films as well as his 1970s twin bill of "Badlands" and "Days of Heaven" And one thing that these earlier films share is that they feature voice-over narration by young female characters (Sissy Spacek's Holly in "Badlands" and Linda Manz's Linda in "Days of Heaven").

Reading Jeff's post got me thinking about the best use of voice-over narration in movies. Certainly, Linda's narration in "Days of Heaven" would be the near the top of the list. As noted by Tim Dirks, in "Days of Heaven,"

The simple love story set on a pastoral landscape becomes a profound allegorical tale of harmony and discontinuity, love and hate, hopes and fears, and good and evil. Its emotional impact is shaped by the unique perspective of the narrator - a typical teenager telling the tale out of her own youthful concerns (having fun, her uncertain future), combining her beliefs about the dual contradictory nature of humanity ("you just got half-devil and half-angel in ya"), and imaginative and fearsome fantasies of religious judgment and divine retribution (the flaming end of the world, and the Devil's presence on Earth).

Also up there would be Morgan Freeman's narration in "The Shawshank Redemption." Of course, unlike Linda in "Days of Heaven," Freeman's Red is a man who has suffered for decades based upon the mistakes he made in his youth, and he is often relaying the wisdom he has gained as tears go by. In one particularly poignant scene, Red is before the parole board and responds to a question about whether he's sorry about what he did with the following:

There's not a day goes by I don't feel regret. Not because I'm in here, or because you think I should. I look back on the way I was then: a young, stupid kid who committed that terrible crime. I want to talk to him. I want to try and talk some sense to him, tell him the way things are. But I can't. That kid's long gone and this old man is all that's left. I got to live with that. Rehabilitated? It's just a bullshit word. So you go on and stamp your form, sonny, and stop wasting my time. Because to tell you the truth, I don't give a shit. 

This leads me to Alyssa Rosenberg's post today in her Pop Culture and Death Penalty Project.

Today's post deals with Robert Mulligan's film version of Harper Lee's timeless novel, "To Kill a Mockingbird." Both works were among my earliest introductions to the American legal system, and, along with Sidney Lumet's "12 Angry Men" (which Rosenberg will discuss next week), played a large role in my decision to become a lawyer.

We read and watched "To Kill a Mockingbird" in my eighth grade English class. My English teacher was obsessed with the role of narration in general and the specific role that choosing Scout Finch as the narrator in Mockingbird had on our perception of events. We discussed her narration a good deal in class, and the teacher even had us each pick different characters in the story so that we (in character) could act out our own narration of how we saw things in front of the class. I chose to be Judge Taylor, who Lee describes in the book as chomping on a cigar and spitting out pieces of it during trial. In an early attempt at method acting, I bought a large Tootsie roll, wrapped it in brown construction paper, and chewed on it and spit it out as I explained to other students how I saw the trial.

But it's not the judge who narrates "To Kill a Mockingbird," and it's not the protaganist Atticus Finch. Instead, it's Finch's daughter Scout, whom many consider a proxy for Lee herself. But it's not the youthful Scout narrating what she sees contemporaneously; instead, it's an adult Scout reflecting on what she saw an unspecified number of years ago. Like Red in "The Shawshank Redemption," she's reelin' in the years.

In her post, Rosenberg notes that

I’d forgotten how young Scout is in the novel and the movie — she’s just six. And the movie is both about her increasing awareness of the world around her and the way the world reaches out for her, the fact that the innocence of childhood is an imagined and impossible-to-maintain state....

In a way, the movie’s an inverse of the conventional narrative about the death penalty: this terrible thing happened, and we must send a message so strong and deterrent that it will never happen again. Scout sees the ways the legal process can go wrong, she sees the man who’s a supposed threat to her community murdered, and she’s still made a victim. The world is big, and unpredictable. To think that we can produce rationalism with a decision undergirded by emotion doesn’t make sense.

Rosenberg's post again got me thinking about the collateral consequences of the death penalty. Clearly, it directly affects the condemned. Less clearly, it directly affects the executioner, nowadays typically a doctor injecting a fatal cocktail of drugs. But it also affects the defendant's family. It affects the victim's family. It affects the lawyers. It affects the jury.

In an earlier post, I noted that jurors are "death qualified" (i.e., qualified to sit as jurors in death penalty cases) when they are willing to impose the death penalty as a punishment, but I wondered whether anyone is in fact "death qualified" in the sense that they could impose the penalty of death and then live with the consequences of their decision.

Vegetarians, vegans, and animal rights activists often say that meat eaters should have to watch animals being slaughtered if they want to continue to eat meat. My question: What about jurors? Should they have to watch executions before they are tasked with the decision of whether to impose the death penalty? Are they aware that there were 31 "botched" executions from the first lethal injection in 1982 through 2001? Are they aware that there are wide variations in he drugs and dosages used in lethal injections in different states because Fred Leuchter -- the original creator of most execution equipment in this country (who was later conscripted to prove that there were no gas chambers during the Holocaust) -- had no information on the proper dosage of potassium chloride to kill a patient and thus relied on the information that was available for pigs and estimated accordingly? Do they know that in some states such as In Arkansas, executions are left in the hands of unpaid volunteers?

"To Kill a Mockingbird" is such an effective work of literature (and film) because of the juxtaposition of the wide-eyed 6 year-old Scout with her more wisened narrator. At one point, anticipating the O.J. Simpson trial, the adult Scout reflects,

"Never, never, never, on cross-examination ask a witness a question you don't already know the answer to….Do it, and you'll often get an answer you don't want, an answer that might wreck your case."

This is not something that the younger Scout would have known. It is insight based upon years of reflection on her years as the daughter of an attorney. Most jurors are like the wide-eyed Scout. They don't know what the death penalty really is. What happens when they wake up years later and reflect upon the decision they made?

-CM

Conspiracy Theory: Court Of Appeals Of Iowa Finds Statements After Discovery Of Body Qualified As Co-Conspirator Admissions

Like its federal counterpart, Iowa Rule of Evidence 5.801(d)(2)(E) provides that a statement is not hearsay if

The statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

So, let's say that three men allegedly conspire to kill a victim and then kill the victim. And let's say that the day after the body is discovered, with a police officer in the front yard of one of the co-conspirators, one alleged co-conspirator says to another that he is only one of three people who knew about the body. Does this statement qualify as a co-conspirator admission under Rule 5.801(d)(2)(E)? According to the recent opinion of the Court of Appeals of Iowa in State v. Huser, 2011 WL 6079120 (Iowa App. 2011), the answer is "yes."

In Huser, the facts were as stated above, with Vernon Huser, Louis Woolheater, Lawrence Webb conspiring to kill Lance Morningstar. After they killed Morningstar, they wrapped his body in tarp and dumped it in the woods. Eventually, hunters discovered the body, and the noose began to tighten on the conspiracy.

With police in Woolheater's front yard, the day after discovery of Morningstar's body, Woolheater told Webb that he was one of only three people who knew about the body. Webb took this as a directive to keep quiet about the involvement of Huser and Woolheater in Morningstar's death.

Huser was eventually charged with murder in the first degree for aiding and abetting Woolheater in the killing of Morningstar. At trial, the court allowed testimony concerning Woolheater's statement to Webb after deeming it a co-conspirator admission under Rule 5.801(d)(2)(E).

After, he was convicted, Huser appealed, claiming, inter alia, that Woolheater's statement was neither made during the course of or in furtherance of the conspiracy.The Court of Appeals of Iowa disagreed, first finding that the statement was during the course of the conspiracy because

Every act in furtherance of a conspiracy "is deemed a renewal or continuance of the conspiracy...[t]hus, a conspiracy may continue into the concealment phase."...When Woolheater met with Webb at Woolheater's house, a police car sat in the front yard. Webb interpreted Woolheater's statement that only three of them knew about the body as a threat, and delayed going to the police for that reason....Because Woolheater was trying to conceal the crime, the timeframe of the conspiracy extended beyond the discovery of the body.

Of course, this block quote also partially explains why the court found that Woolheater's statement was in furtherance of the conspiracy, but the court also went on to note that

The circumstances underlying Woolheater's statement confirm it was in furtherance of the conspiracy. With police in Woolheater's front yard, the day after discovery of Morningstar's body, Woolheater told Webb that he was one of only three people who knew about the body. Webb took this as a directive to keep quiet about the involvement of Huser and Woolheater in Morningstar's death. In context, Woolheater's statement about the three friends sharing the dangerous secret was more than idle chatter or mere narration of the conspiracy. Because Woolheater's statement induced Webb not to divulge what he knew about Morningstar's murder, the district court properly allowed the testimony as a coconspirator statement.

-CM

Are You Available: Per Curiam Supreme Court Opinion Addresses Confrontation Clause Unavailability Question

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. Crawford overruled 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. 

But when exactly is a declarant unavailable for Crawford/Roberts purposes? That was the question addressed by the United States Supreme Court today in Hardy v. Cross.

In Hardy v. Cross, 

Irving Cross was tried for kidnaping and sexually assaulting A.S. at knifepoint. Cross claimed that A.S. had consented to sex in exchange for money and drugs. Despite her avowed fear of taking the stand, A.S. testified as the State's primary witness at Cross' trial in November 1999 and was cross-examined by Cross' attorney. According to the trial judge, A.S.'s testimony was halting. The jury found Cross not guilty of kidnaping but was unable to reach a verdict on the sexual assault charges, and the trial judge declared a mistrial. The State decided to retry Cross on those counts, and the retrial was scheduled for March 29, 2000.

On March 20, 2000, the prosecutor informed the trial judge that A.S. could not be located. A week later, on March 28, the State moved to have A.S. declared unavailable and to introduce her prior testimony at the second trial.

According to the State, while  A.S. said after the first trial that she was willing to testify at the retrial, he later changed his tune and then ran away from home. The State claimed that it took, inter alia, the following measures to track down A.S.:

•Constant personal visits to the home of [A.S.] and her mother, at all hours of the day and night. This is where the victim has lived since the sexual assault occurred.

•Personal visits to the home of [A.S.'s] father. This is where the victim lived when the sexual assault occurred.

•Personal conversations, in English and in Spanish, with the victim's mother, father, and other family members.

•Telephone calls, in English and in Spanish, to the victim's mother, father, and other family members.

•Checks at the Office of the Medical Examiner of Cook County.

•Checks at local hospitals.

•Checks at the Cook County Department of Corrections.

•Check at the victim's school.

•Check with the family of an old boyfriend of the victim.

•Check with the Illinois Secretary of State's Office.

•[Department of] Public [A]id check.

The trial court deemed A.S. "unavailable" and allowed for the admission of his former testimony against Cross over her Confrontation Clause objection, with Cross eventually being convicted of two counts of criminal sexual assault. After Cross unsuccessfully appealed in the Illinois state courts (with the Illinois Court of Appeals characterizing the State's efforts to track down A.S. as "superhuman"), he unsuccessfully filed a filed a petition for a writ of habeas corpus with the United States District Court for the Northern District of Illinois. On appeal, however, the Seventh Circuit reversed, finding that "the Illinois Court of Appeals was unreasonable in holding that the State had made a sufficient effort to secure A.S.'s presence at the retrial."

Today, the United States Supreme Court disagreed with the Seventh Circuit in a per curiam opinion, finding that one circumstance in which a witness is "unavailable" for Confrontation Clause purposes is when the State makes an unsuccessful good-faith effort to obtain his presence at trial. And, in Ohio v. Roberts,

"'The lengths to which the prosecution must go to produce a witness,'" the Court made clear,"'is a question of reasonableness.'"We acknowledged that there were some additional steps that the prosecutor might have taken in an effort to find the witness, but we observed that "[o]ne, in hindsight, may always think of other things."... But "the great improbability that such efforts would have resulted in locating the witness, and would have led to her production at trial, neutralizes any intimation that a concept of reasonableness required their execution."

According to the Court, "[w]hether or not the state court went too far in characterizing the prosecution's efforts as 'superhuman,' the state court identified the correct Sixth Amendment standard and applied it in a reasonable manner." The Court then turned aside the three reasons that the Seventh Circuit gave for finding that the State's efforts to procure A.S.'s attendance were unreasonable:

First

The Seventh Circuit found that the State's efforts were inadequate for three main reasons. First, the Seventh Circuit faulted the State for failing to contact "A.S.'s current boyfriend—whom she was with just moments before the alleged assault—or any of her other friends in the Chicago area."...But the record does not show that any of A.S.'s family members or any other persons interviewed by the State provided any reason to believe that any of these individuals had information about A.S.'s whereabouts.

Second

Second, the Seventh Circuit criticized the State because it did not make inquiries at the cosmetology school where A.S. had once been enrolled, ibid., but the court's own opinion observed that the information about A.S.'s enrollment at the cosmetology school after the mistrial was not "noteworthy" or "particularly helpful."...Since A.S. had not attended the school for some time, Exh. K, at E–42, there is no reason to believe that anyone at the school had better information about A.S.'s location than did the members of her family.

Third

Finally, the Seventh Circuit found that the State's efforts were insufficient because it had neglected to serve her with a subpoena after she expressed fear about testifying at the retrial. A.S., however, had expressed fear about testifying at the first trial but had nevertheless appeared in court and had taken the stand. The State represented that A.S., although fearful, had agreed to testify at the retrial as well....We have never held that the prosecution must have issued a subpoena if it wishes to prove that a witness who goes into hiding is unavailable for Confrontation Clause purposes, and the issuance of a subpoena may do little good if a sexual assault witness is so fearful of an assailant that she is willing to risk his acquittal by failing to testify at trial.

-CM

Can I Get A Copy: Court Of Appeals Of North Carolina Finds Copy Of Surveillance Video Admissible Under Rule 1004(a)

Like its federal counterpart, North Carolina Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

That said, like its federal counterpart, North Carolina Rule of Evidence 1004(a) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

all the originals are lost or destroyed, and not by the proponent acting in bad faith....

In its recent opinion in State v. Mitchell, 2011 WL 6046201 (N.C.App. 2011), the Court of Appeals of North Carolina used North Carolina Rule of Evidence 1004(a) to allow for the admission of a copy of convenience store surveillance tape. My question: Why didn't the court simply rely on North Carolina Rule of Evidence 1003?

In Mitchell, Tayari Mitchell was convicted of possession of one-half of an ounce of marijuana or less and possession of heroin. A convenience store surveillance tape captured these alleged crimes and officers used his hand-held camera to record a thirty-second segment from one of the surveillance cameras.

The officers recorded the video by aiming the video camera at the computer screen and recording the images from the surveillance tape. After recording the video on the hand-held video camera, and checking again to make sure the video matched what they had viewed on the screen, the officers finalized the video recording by making sure it could not be recorded over. Evidence at trial showed the original recording was no longer available due to the store's system automatically recording over itself, thereby deleting any previous recording, after seven days.

After he was convicted, Mitchell appealed, claiming, inter alia, that the admission of the copy violated the Best Evidence Rule

because the State put forth no reasonable effort to obtain the original video before the expiration of the seven-day time period before which the video surveillance was erased from the system.

The Court of Appeals of North Carolina disagreed, concluding that

The State showed that at the time of the investigation, the function of the surveillance computer permitting the recording to be downloaded was not working properly and prevented the officers from obtaining the original surveillance video from the hard drive. Officer Wall testified as to each step he took in procuring the secondary video and Officer Beasley explained that the computer automatically erases video every seven days. Due to this, the original video was unavailable at trial and was not recoverable. This does not show that the State acted in bad faith.

But here's my question: Why didn't the State argue and/or the court find that the copy was simply admissible under North Carolina Rule of Evidence 1003, which provides that

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

The only thing that I can think is that Mitchell (could have) argued that it was unfair to admit the copy in lieu of the original because it was only a 30 second excerpt.

-CM