Saturday, April 7, 2012
Why NZ Director's Reference to the "Oprahfication" of the Courtroom was Really a Jab at the "Pussification" of the Courtroom
I'm not a huge fan of victim impact statements. These statements typically used to consist of family members taking the witness stand during the sentencing phase of a murder trial and explaining the character of the victim and what his or her loss meant to the family and the community. Now these statements more typically involve DVDs with montages of photographs showing the victim from birth until just before death, evocative music in the background from artists as varied as Enya and the Beatles, and voiceover narration from a family member. There are of course several problems with such statements, not the least of which is that they can tend to enforce the notion that some lives are more equal than others. A rich victim from a supportive family will likely have several witnesses willing and able to take the witness stand and describe how much the victim meant to them, creating a good likelihood of a lengthier sentence (or death) for the defendant. Meanwhile, the homeless victim without much of a support system likely won't have (m)any people willing or able to take the stand and vouch for his or her character, likely resulting in a lighter sentence.
Conversely, I love the idea of restorative justice.
Restorative justice is an umbrella term for various voluntary, nonadversarial processes that try to bring together offenders, crime victims, and others to repair the material and intangible harms caused by crime. For example, victim-offender mediation induces offenders to speak with their victims face-to-faceabout their crimes. Family group conferences use trained facilitators to encourage discussions among the families of offenders and victims. Circle sentencing encourages offenders, victims, their friends and families, members of the community, and criminal justice professionals to discuss and agree upon a sentence. Community reparative boards are panels of citizens that discuss crimes with offenders and work out restitution plans. Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 917 n.12 (2006).
Therefore, in theory, I should like the argument made by Kim Workman, the Director of Rethinking Crime and Punishment in New Zealand. So, what's the problem?
Friday, April 6, 2012
Article Of Interest: Anderew Jurs' Questions from the Bench and Independent Experts: A Study of the Practices of State Court Judges
In 1993, in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the United States Supreme Court drove a stake through the heart of the old Frye test for the admissibility of expert evidence at the federal level. That old Frye test allowed for the admission of expert evidence as long as the technique or technology had general acceptance in the relevant expert community, and one of the criticisms of the test was that it allowed for the admission of "junk science." For instance, under Frye, a court would be constrained to allow for the admission of testimony by an arson expert as long as the expert followed techniques that had general acceptance in the arson investigation community, even if those techniques couldn't withstand outside scrutiny.
Daubert replaced Frye with the concept of the judicial gatekeeper, under which judges would dig beneath the "general acceptance" veneer and determine whether practices such as latent fingerprint identification, arson investigations, and the comparisons of tool marks, bite marks, handwriting, and non-DNA hair samples were truly reliable. Two of the tools in a judges arsenal are Federal Rule of Evidence 614, which allows for judicial interrogation of witnesses (including expert witnesses), and Federal Rule of Evidence 706, which allows for judicial appointment of expert witnesses. But to what extent have judges applying Daubert used these tools? And has Daubert increased judicial reliance on these rules as judges become judicial gatekeepers? These are some of the topics addressed by Drake Law School Professor Andrew Jurs in his article, Questions from the Bench and Independent Experts: A Study of the Practices of State Court Judges (Pittsburgh Law Review, forthcoming)
Thursday, April 5, 2012
Last year, I posted an entry about Illinois considering codifying a a procedure for jury questioning during civil trials. That proposal will soon become a reality. Effective July 1, 2012, Illinois Supreme Court Rule 243 will take effect:
Rule 243. Written Juror Questions Directed to Witnesses
(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions directed to witnesses.
(b) Procedure. Following the conclusion of questioning by counsel, the court shall determine whether the jury will be afforded the opportunity to question the witness. Regarding each witness for whom the court determines questions by jurors are appropriate, the jury shall be asked to submit any question they have for the witness in writing. No discussion regarding the questions shall be allowed between jurors at this time; neither shall jurors be limited to posing a single question nor shall jurors be required to submit questions. The bailiff will then collect any questions and present the questions to the judge. Questions will be marked as exhibits and made a part of the record.
(c) Objections. Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon them at that time and the question will be either admitted, modified, or excluded accordingly.
(d) Questioning of the Witness. The court shall instruct the witness to answer only the question presented, and not exceed the scope of the question. The court will ask each question; the court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.
(e) Admonishment to Jurors. At times before or during the trial that it deems appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules of evidence that govern the case.
Wednesday, April 4, 2012
Avoiding A Conflict: Supreme Court Of Louisiana Finds No Actual Conflict Of Interest Despite Co-Counsel Being Investigated
Let's say that a defendant is charged with first degree murder. And let's say that one of his appointed attorneys was initially under investigation for an unrelated crime by the same District Attorney prosecuting the defendant. If the District Attorney's office recused itself from investigating or prosecuting the defendant's co-counsel and the state Attorney General's Office took over those duties, is there an actual conflict of interest? According to the recent opinion of the Supreme Court of Louisiana in State v. Carter, 2012 WL 206430 (La. 201), the answer is "no."
Tuesday, April 3, 2012
Assume that a defendant is charged in a twenty-nine count indictment stemming from a crack cocaine conspiracy. And assume that after the defendant is convicted and sentenced, he brings a motion to vacate, set aside, or correct his sentence. Part of the basis for his motion is that he doesn't speak English and that the interpreter who translated the trial proceedings for his benefit failed to communicate to his trial counsel that he had voiced an intent to exercise his Fifth Amendment right to testify. How difficult will it be for the defendant to prove that the interpreter acted improperly? According to the recent opinion of the United States District Court for the Western District of Virginia in Michel v. United States, 2012 WL 102000 (W.D.Va. 2012), the answer is "pretty difficult."
Monday, April 2, 2012
On Friday's episode of JEOPARDY!, the $1,000 answer in the Solve for "Ex" category was, "If the murderer had blood type A, finding that a suspect has type O is this kind of evidence." One contestant gave the question of "What is exclusionary?" Alex Trebeck deemed this question to be incorrect. Another contestant then buzzed in and gave the question of "What is exculpatory?" That was deemed to be the correct question. Later in the episode, Alex told the first contestant that the staff had reviewed the response and deemed it to be correct based upon recent legal publications. So, was this correction correct, and is the term "exclusionary evidence" something that courts, litigants and scholars do use in connection with blood/DNA evidence?
Sunday, April 1, 2012
Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
So, let's say that a mother comes home and finds her son's pregnant girlfriend beaten and bloodied. If she calls 911 and describes the girlfriend's condition and the son's whereabouts, do her statements qualify as excited utterances? According to the recent opinion of the Ninth Circuit in United States v. Gomez, 2012 WL 1026066 (9th Cir. 2012), the answer is "yes."