Monday, June 25, 2012
As I prepared to start teaching Evidence in 2007, I was surprised to see that there was no blog on the topic of evidence law. I thus decided to start this blog to note recent developments in evidence law, precedent, and scholarship. The same type of thinking led Tamar Birckhead, a professor at the University of North Carolina School of Law, to launch the terrific new blog, the Juvenile Justice Blog (which you can also follow on Twitter and Facebook).
According to Professor Birckhead,
While I have been a faithful reader of law professors' criminal law blogs, I've been acutely aware of the fact that there hasn't been one with a specific focus on juvenile justice. My goal is to feature the latest legal scholarship, conference news, and discussion of case law in this area. I hope the site will be of use and relevance to other legal scholars as well as practitioners, advocates, and anyone else interested in the ways in which our society approaches young people in conflict with the law.
I find that the best blogs combine two features: (1) a true expert in the field; and (2) critical analysis rather than just posting links. With the Juvenile Justice Blog, it is safe to say that we are in good hands. Before coming to UNC, Professor Birckhead was a public defender for a decade, and she is currently a member of (1) the executive council of the Juvenile Justice and Children's Rights Section of the North Carolina Bar Association; (2) the advisory board for the North Carolina Juvenile Defender; and (3) the Juvenile Defender Section of the North Carolina Academy of Trial Lawyers.
•CHILDREN, PARENTS AND THE LAW: PUBLIC AND PRIVATE AUTHORITY IN THE HOME, SCHOOLS, AND JUVENILE COURTS (with L. Harris & L. Teitelbaum) (Aspen 3d ed. 2012);
•The Challenges of Defending Juveniles in Delinquency Court, in AN UNFULFILLED PROMISE: JUVENILE JUSTICE IN AMERICA 88–104 (Cathryn Crawford ed., 2012);
•Delinquent by Reason of Poverty, 38 WASH. U. J.L. & POL’Y 53–107 (2012);
•Juvenile Justice Reform 2.0, 20 J.L. & POL’Y 15 (2011)
•Culture Clash: The Challenge of Lawyering across Difference in Juvenile Court, 62 RUTGERS L. REV. 959–991 (2010);
•North Carolina, Juvenile Court Jurisdiction, and the Resistance to Reform, 86 N.C. L. REV. 1443–1500 (2008);
•The Age of the Child: Interrogating Juveniles after Roper v. Simmons, 65 WASH. & LEE L. REV. 385–450 (2008); and
•White Paper, Action for Children N.C., New Research Analyzes N.C.’s Century-Long Refusal to Include 16- and 17-Year-Olds in Juvenile Court (Nov. 12, 2008).
In just her first week of posting, Professor Birckhead has made clear that there will be a good deal of depth and breadth to her blog. In one post, she uses an e-mail from former students as an avenue through which to explore whether juvenile justice practitioners and advocates are making a difference in the lives of their clients. In another post, the recent fact sheet Drug Courts affords Professor Birckhead an opportunity to discuss "juvenile specialty courts." And, in a third post, Professor Birckhead delves into questions regarding the raising of the age for juvenile court jurisdiction in North Carolina.
On the blog, you will also find posts about juvenile justice studies, juvenile justice job openings, juvenile justice articles, juvenile justice books, juvenile justice conferences, and juvenile justice commentary. In each of these posts, you can feel Professor Birckhead's passion for juvenile justice, and it is that passion combined with her insight that makes her blog bookmark-worthy for anyone with an interest in juvenile justice.
Professor Birckhead describes the blog as follows:
The purpose of this blog is to provide a central source for the latest news, information, scholarship, and commentary on issues related to juvenile justice in the United States.
It is intended for lawyers, academics, advocates, students, and all others interested in juvenile court practice, the fair sentencing of youth, and the criminalization of poverty, among other related topics.
And, over e-mail, she explained to me that
I've been in the legal academy for over eight years now, I've written quite a bit in this area (traditional legal scholarship, a casebook, and many op-eds), and I think I have a good sense of what other folks might find engaging and thought-provoking. Also, having recently earned tenure, it seemed like a good opportunity to put myself out there in a more visible way and to take some risks. And, maybe most importantly, it has been a lot of fun -- both the creation and editing of the site as well as having a forum for a looser, more creative style of writing.
Sunday, June 24, 2012
Come Be My Conspiracy: Ben Trachtenberg's Amicus Brief On Co-Conspirator Admissions & Lawful Ventures
I'm still in the process of moving and should be back to regular blogging next weekend, but I wanted to quickly post an entry about an amicus brief (Download Amicus Brief) written by Professor Ben Trachtenberg (who has guest blogged on this site). The brief addresses a subject that Professor Trachtenberg first wrote about in his terrific article, Coconspirators, "Coventurers," and the Exception Swallowing the Hearsay Rule, 61 HASTINGS L.J. 581 (2010): whether Federal Rule of Evidence 801(d)(2)(E), which deems co-conspirator admissions nonhearsay, should apply to statements made during the course of and in furtherance of lawful ventures.
I first became aware of this issue when I posted an entry about the
opinion of the Supreme Court of Iowa in State v. Tonelli, 2008 WL 2152529 (Iowa 2008)....In Tonelli, several men living near Iowa State University planned a house party by putting an invitation on the internet site Facebook, purchasing two kegs of beer and other alcohol, making "Jell-O" shots, and making arrangements to collect money at the door and split the proceeds. According to the State, the men knew there were numerous people at the party who were under the legal age to drink alcohol and had reasonable cause to believe they were serving alcohol to minors. (One of the underaged guests was twenty-year-old Shanda Munn, who killed Kelly Laughery by striking Laughery with her vehicle after the party).
Three of the men were thereafter charged with the "serious misdemeanor" of providing alcohol to a person under the legal age. During a pretrial hearing, the State indicated that it intended to offer the incriminatory testimony of some of the men, pursuant to the co-conspirator admission rule (Iowa Rule of Evidence 5.801(d)(2)(E)), which indicates that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is admissible non-hearsay.
Defense counsel argued that
for the co-conspirator admission rule to apply, the underlying goal of the joint venture and the means used to accomplish it must be illegal. According to defense counsel, because the mere planning of a party and sending of invitations are lawful acts and means, and statements made during that process could not qualify as co-conspirator admissions, even if the defendants had reasonable cause to believe they were serving alcohol to minors.
In addressing this argument, the Supreme Court of Iowa
first noted that at least one court -- the D.C. Circuit in United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006), had found that "the term conspiracy as used in the rule of evidence does not depend upon a goal to promote a crime or civil wrong." The Court, however, rejected this conclusion, finding that "[a] review of Iowa case law reveals that the term 'conspiracy' has generally been used in the context of unlawful conduct, whether civil or criminal." It thus determined that Iowa Rule of Evidence 5.801(d)(2)(E) "may be applied where there is evidence of a conspiracy to accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner, but not to combinations or agreements in furtherance of entirely lawful goals advanced by lawful means."
Professor Trachtenberg read my post and sent me a draft of what became his "Coventurers" article, which digs deep into the history of the co-conspirator admission rule to reach the same conclusion as the Supreme Court of Iowa. I strongly agreed with the points made in the article and was thus happy to sign onto his amicus brief, which makes many of the same arguments. Professor Ann Murphy (also an EvidenceProf guest blogger) has already done a nice write-up of the case that is the subject of the amicus brief on the Evidence in the News website. Professor Murphy has also signed onto the brief as have Edward Cheng, Janet Hoeffel, James Kainen, Deborah Jones Merritt, Richard Moberly, and Stephen Saltzburg. Here's hoping that the Supreme Court grants cert in the case.