EvidenceProf Blog

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

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Saturday, April 21, 2012

The Good Wife, The Alford Plea, The Jewish Ban On Confessions, & The Times Of Emergency Necessity Exception

I finally caught up with last week's episode of "The Good Wife," "Pants on Fire." In it,

Alicia and Diane represent one of a trio of girls who was convicted of murder at a summer camp five years ago. Recently, however, it was discovered that the crime lab mishandled the DNA evidence and a judge has overturned their sentence pending a new trial. Not wanting to face a wrongful conviction lawsuit, the state has offered the girls an Alford plea – they can go free, but only if they all sign a statement admitting that they were guilty of committing murder

The episode itself didn't do a great job of explaining the Alford plea, but CBS has a nice feature on its website, Cary's Corner, which often does a good job of breaking down the legal jargon of the show. That was certainly the case this week, with Cary's Corner explaining that "[a]n Alford plea is an unusual plea in which a defendant does not admit guilt while at the same time admitting that the prosecution could likely secure a conviction based upon the evidence they’ve compiled." The site then goes on to explain that

The Alford plea is named after Henry Alford, who, in 1963, was tried for first-degree murder in North Carolina, where at the time a guilty verdict for first-degree murder meant Alford would face capital punishment. The prosecutors had witness evidence that Alford had argued with the victim on the night of the murder. He left the victim’s house to return to his own residence to grab his gun. Later there was a knock at the victim’s door, and when he answered it, he was fatally shot by an assailant using Alford’s gun. Personally, I believe that Alford’s gun was sitting right next to Occam’s razor on the shelf, but Alford insisted he was innocent. However, fearing an automatic death sentence, he pled guilty to a lesser charge of second-degree murder. Alford later appealed, arguing that he was forced into the guilty plea because he was afraid of the possibility of receiving a death sentence. His appeal eventually went before the Fourth Circuit Court of Appeals, which ruled that Alford’s plea was not voluntary since it was made under fear of the death penalty. 

The case made its way to the Supreme Court in 1970, where the highest court in the land decided that even if Alford could show that he only entered the guilty plea in order to receive a lesser sentence, the plea would not be invalid, since evidence existed that could support his conviction. Therefore, Alford’s guilty plea was allowable while Alford still maintained his innocence.

Alford pleas are not popular with federal prosecutors. In fact, the U.S. Attorneys’ Manual states that in federal cases, Alford pleas should be avoided “except in the most unusual circumstances.” Alford pleas are more common in local and state courts, however, because of the volume and nature of crimes prosecuted. 

An Alford plea, by its nature, acknowledges the plea bargain system and a defendant’s interest in minimizing potential loss. Over 95% of criminal and civil cases never reach trial; instead, they are settled through attorney negotiation. The Alford plea recognizes this reality and allows a defendant to maintain innocence while, without lying, still making the most advantageous plea bargain possible. For this reason, the Alford plea is also sometimes known as a “best interests” plea.

All of this leads me to an interesting article that I recently read, Compelled to Render Oneself Evil: American Plea-Bargaining from a Jewish Law Perspective, by Melissa Softness, a student at the Emory University School of Law.

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April 21, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, April 20, 2012

Friend Request: New Articles By Aviva Orenstein & Caren Morrison Address Issues Related To Authenticating Social Networking Evidence

Hundreds of millions of people world-wide use social media. Wikipedia, which is itself a form of social media, describes social media as follows: “Social media includes web-based and mobile technologies used to turn communication into interactive dialogue.” Of particular interest in evidence law are social networking sites that provide online platforms for people to interact. Users adopt a screen name and establish an on-line identity, forming links with friends they know in the real world or strangers who share similar interests. Users can create and edit written content, post photographs, join affiliational groups, post on the page of friends, and engage in one-on-one electronic conversations, all in real time with a timestamp. The content can be original or can be replicated from other sources. Aviva Orenstein, Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords (fortcoming).

Professor Orenstein's article, which I discussed a bit yesterday, is one of two recent pieces I have read on the authentication of evidence from social networking sites, with the other being Professor Caren Morrison's Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment (forthcoming). Like their prior works (here and here), both of these works are trenchant and timely, and, as this post will demonstrate, interact in interesting ways.

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April 20, 2012 | Permalink | Comments (1) | TrackBack (0)

Thursday, April 19, 2012

Interpreting The Text: Supreme Court Of Nevada Finds Only 2 Of 12 Text Messages Authenticated In Kidnapping Appeal

A woman is attacked in her apartment by two men. Later that night, the woman's boyfriend receives 12 text messages from the girlfriend's cell phone: 

• “Willy boy, you better [].” (1:29 a.m.).

• “Willy, do you love me.” (1:30 a.m.).

• “You better go check on your b––––.” (1:38 a.m.).

• “Not playing, not going to answer the phone. You better go check on that ... b––––, she is, you know.” (1:42 a.m.).

• “You dumb ass idiot, you're not talking to her. You better go to her house now. I have to keep my promise and I'm not going back over there. I think you should.” (1:47 a.m.).

• “You're an a––––––. Come over ... there or your girl is going to suffocate, idiot.” (1:50 a.m.).

• “Yeah, you better go over there now. She is in the closet tied up.” (1:53 a.m.).

• “I hope you is going over there.” (2:00 a.m.).

• “We just f–––– your b––––.” (2:02 a.m.).

• “I'm not going to tell me or you no more. She even told me she got herps.” (2:05 a.m.).

• “How is your girl? Is she okay?” (3:08 a.m.).

• “You're lucky I didn't kill that b–––– and I told you.” (4:21 a.m.). 

The State is able to establish that:

• the girlfriend's cell phone was stolen during the attack; and that

• when the cell phone was recovered, there were photos of the defendant on the phone.

That said, a bus surveillance video shows that the defendant was sitting next to his co-defendant while the co-defendant was authoring the first two text messages, and the cell phone was eventually recovered from the co-defendant. In the defendant's trial for crimes against the victim, are the text messages admissible? Let's take a look at the recent opinion of the Supreme Court of Nevada in Rodriguez v. State, 2012 WL 1136437 (Nev. 2012).

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April 19, 2012 | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 18, 2012

Doctor, Doctor, Give Me The News: Court Of Appeals Of NY Finds Statements By Police/Family In Hospital Record Admissible

In People v. Ortega, 15 N.Y.3d 210 (2010), the Court of Appeals of New York held that "hearsay statements by crime victims contained in a hospital record that pertain to medical diagnosis and treatment of the victim" are admissible under the exception to the rule against hearsay for business records and/or statements made for purposes of diagnosis or treatment. In Dolan v. Joan W., 2012 WL 108362 (2012), the Court of Appeals of New York had to answer the follow-up question of whether statements by relatives or law enforcement personnel should also be admissible under the exception in hearings pursuant to Article 9 of the Mental Hygiene Law.

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April 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 17, 2012

The Pit & The Pendulum: Supreme Court Of Indiana Reverses Prior Precedent Regarding Child Molestation Expert Testimony

Indiana Rule of Evidence 704(b) provides that

Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

In Lawrence v. State, 464 N.E.2d 923 (Ind. 1984), the Supreme Court of Indiana found that 

Whenever an alleged child victim takes the witness stand in [child molestation] cases, the child's capacity to accurately describe a meeting with an adult which may involve touching, sexual stimulation, displays of affection and the like, is automatically in issue, whether or not there is an effort by the opponent of such witness to impeach on the basis of a lack of such capacity. The presence of that issue justifies the court in permitting some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters. Such opinions will facilitate an original credibility assessment of the child by the trier of fact, so long as they do not take the direct form of "I believe the child's story", or "In my opinion the child is telling the truth".

But can such testimony be given consistent with Rule 704(b)? According to the recent opinion of the Supreme Court of Indiana in Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012), the answer is "no."

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April 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, April 16, 2012

True Confessions?: Court Of Appeals Of New York Finds No Problem With No Frye Hearing On False Confession Testimony

In People v. LeGrand, 8 N.Y.3d 449 (2007), the Court of Appeals of New York held

that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.

In People v. Bedessie, 2012 WL 1032738 (2012), the Court of Appeals of New York was presented with the appeal of a man convicted in a case that turned on the accuracy of his confession and in which there was possibly little or no corroborating evidence connecting the defendant to the crime. That man claimed that the trial court abused its discretion by excluding expert testimony on the phenomenon of false confessions So, what did the court do?

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April 16, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 15, 2012

Feeling Like A Criminal: 2nd Circuit Joins Other Circuits In Finding Rule 404(b) Covers Non-Criminal Acts

Federal Rule of Evidence 404(b) states:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Every circuit that has addressed the issue has found that Rule 404(b) extends to non-criminal acts or wrongs, and, after the recent opinion in United States v. Scott, 2012 WL 1143579 (2nd Cir. 2012), you can now add the Second Circuit to their ranks.

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April 15, 2012 | Permalink | Comments (0) | TrackBack (0)