Friday, November 21, 2014
Today, my colleague Claire Raj told me about the Serial Podcast. According to iTunes, "Serial is a new podcast from the creators of This American Life, hosted by Sarah Koenig. Serial unfolds one story - a true story - over the course of a whole season." The first season is dealing with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. I haven't yet listened to the podcast, but I'm looking forward to it. I imagine it will be in the same vein as "The Staircase," which aired the Sundance Channel and also dealt with a murder prosecution. At this point, before listening to the podcast, I thought that I would do a few posts about some of the evidentiary issues at Adnan's murder trial.
Thursday, November 20, 2014
A couple people sent me links to this story in the Atlantic. The story reports that a plaintiff in Canada is planning to introduce evidence from Fitbit (a wearable activity tracking device) “to show that her activity levels [after an injury] are still lower than the baseline for someone of her age and profession to show that she deserves compensation.”
The story places this in a narrative of the increasing pressure technology is placing on privacy. But as the story candidly notes, it doesn’t really fit that narrative since the plaintiff is offering the evidence of her own Fitbit data. And even if it were the defendant offering the Fitbit data to show that a plaintiff had not been injured, I am not sure it makes sense to assume that such uses of technology are ominous or even particularly unsettling.
First some legal pieces.
Wednesday, November 19, 2014
One remaining category of crime that has a long history as a credibility proxy is drug offenses. These offenses, like speeding, fall at the boundary between crimes of impulse (violent crimes) and crimes involving schemes that contravene social mores (like theft and prostitution). Drug offenses have been labeled “victimless crimes” in the sense that there is no clear victim as there is in a violent attack or robbery. While that label is controversial and often inaccurate, it offers an insight for thinking about the use of prior drug convictions as a credibility proxy. In many drug cases there is no element of taking from another for one’s personal advantage, which was identified by the Colorado Supreme Court in Segovia as a major reason why the crime of shoplifting was relevant to credibility.
Despite having no obvious element of misrepresentation or false statement, no clear victim whose property has been misappropriated through scheming, and decreasing social opprobrium, particularly when the crime involves possession of a small amount of a banned substance (see the NYC police dept’s recent decision not to make arrests of people found with small amounts of marijuana), drug offenses are per se admissible as credibility proxies in certain jurisdictions.
Courts in the District of Columbia, for example, have long insisted that prior convictions for “possession of narcotics” involve dishonesty and false statement within the meaning of the D.C. Code of Evidence.
Tuesday, November 18, 2014
Just came across this Symposium in the Michigan Law Review Online: “Crawford v. Washington: A Ten Year Retrospective”
Click on the link above to choose among contributions from:
Richard D. Friedman
Jeffrey L. Fisher
I haven't read it yet, but am looking forward to doing so...
Monday, November 17, 2014
In light of the taxonomy of credibility proxies outlined in the previous posts in this series, one might predict that speeding and other traffic violations would not be admissible as credibility proxies. Many, many people speed, suggesting that it does not violate social norms to the same degree that theft and prostitution do. Moreover, like violence, traffic violations don’t have a particularly clear connection to lying other than through the general idea that people who violate laws are more likely to lie.
The case law bears out this intuition. As one Ohio appellate court wrote in 2012, “A ‘rule of thumb’ thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; traffic violations, however serious, are in the same category.” State v. Hubbs, 2012 WL 5830616.
Another appellate court, this one in Michigan, allowed a rape conviction to stand even though the trial court had refused to hear impeachment evidence relating to the victim’s criminal record before even learning what type of prior conviction was involved. Invoking some of the same doctrinal vagaries in this area that I have attempted to explore in this series of posts, the trial court had explained, “it’s just a silly rule that you can impeach a person who's been hold up [sic] for shoplifting but you can't impeach them if they raped or murdered somebody.” On appeal, the court found the lower court’s error in not even considering the type of prior conviction harmless in part because the prior conviction had been for unlawful use of a motor vehicle. People v. Brooks, No. 287948, 2010 WL 3238922 (Mich. Ct. App. Aug. 17, 2010). It seems a safe assumption that the appellate court felt the conviction would have been excluded anyway.
What is interesting about this insistence that motor vehicle violations do not relate to credibility and are thus not appropriate credibility proxies is that there is evidence to the contrary.
Friday, November 14, 2014
I'm a bit late to the party on this one, but, apparently, California has become the first state to legislatively ban the "gay panic" or "trans panic" defense. A defendant is guilty of murder when he kills another person with malice aforethought, but murder can be reduced to voluntary manslaughter if there was (1) sufficient legal provocation; and (2) lack of time to cool off (heat of passion). Some defendants, such as Brandon McInerny, have been able to claim that learning about the gender or sexual orientation of their victim constitutes sufficient legal provocation.
Last month, however, the California legislature passed Assembly Bill 2501, which provides in relevant part that
that for purposes of determining sudden quarrel or heat of passion, the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship.
This reminds me a good deal of California abolishing the diminished capacity defense in the wake of the assassination of Harvey Milk. It will be interesting to see whether other states follow suit.
Thursday, November 13, 2014
If you've been following the news recently, it's been hard to avoid storied about Jesse Matthew, who allegedly (1) kidnapped and killed UVA student Hannah Graham, (2)possibly did the same to Virginia Tech student Morgan Harrington, and (3) committed abduction, sexual assault, and attempted murder in 2005. Matthew has been indicted in connection with his alleged crimes in 2005, and, according to an article on newsplex.com,
Jim Camblos—Jesse Matthew's attorney—has asked a judge for a mental evaluation of Matthew. According to longtime forensic psychologist Jeffery Fracher, the probability of an insanity plea actually holding in court is slim, since Virginia has strict guidelines for labeling a defendant as legally insane.
So, what are the exact rules regarding the insanity defense in Virginia?
Wednesday, November 12, 2014
Life Sentence: Supreme Court of South Carolina Finds Juvenile LWOP Sentences Violated Eighth Amendment
This January, I had the chance to moot John Blume's oral argument to the Supreme Court of South Carolina in Aiken v. Byars. Aiken was a class action brought be 28 juveniles sentenced to life imprisonment without the possibility of parole before the opinion of the United States Supreme Court in Miller v. Alabama. In Miller, of course, the Supreme Court held that mandatory life-without-parole sentences for juveniles violates the Eighth Amendment."
The questions in Aiken were thus (1) whether Miller applies retroactively; and (2) whether the sentencing hearings for the 28 juveniles complied with Miller. Today, the Supreme Court of South Carolina concluded that Miller does apply retroactively and that the sentencing hearings in for these 28 juveniles did not comply with Miller. Why? According to the court,
All were sentenced to life without parole according to existing sentencing procedures, which made no distinction between defendants whose crimes were committed as an adult and those whose crimes were committed as a juvenile. In most of the sentencing hearings￼ but not all—defense counsel mentioned the age of the defendant at the time of the crime, and in some cases, there was a brief discussion of the defendant's life prior to commission of the crime.
The South Carolina Supremes held that this was not good enough and thus held that "any individual affected by our holding may file a motion for resentencing within one year from the filing of this opinion in the court of general sessions where he or she was originally sentenced."
No discussion of credibility proxies would be complete without the sanitized conviction. In the context of the strained efforts courts make to explain why certain crimes are related to credibility while others aren’t, it may seem odd that some jurisdictions require that impeachment be done with de-contextualized convictions. After grappling behind closed doors with whether an underlying conviction is relevant to a witness’s truthfulness, courts in these jurisdictions may ultimately require that the jury learn only of the existence of the conviction and nothing about it’s substance.
Last month, New Jersey’s appellate division reversed a defendant’s conviction for aggravated assault and remanded for a new trial due to prosecutorial misconduct, State v. Rivera, 437 N.J.Super 434. One of the problems, according to the court, was the fact that the prosecutor elicited the defendant’s prior conviction for resisting arrest with force in order to impeach his credibility with the jury. New Jersey precedent holds that in case where a defendant’s prior conviction is similar to the offense charged, the prior conviction may be introduced but the jury should learn only degree of the crime and the date of the offense. Any evidence of the specific prior crime will be excluded.
In Rivera, the trial judge had ruled in camera that the defendant’s prior conviction for third-degree resisting arrest could be introduced to impeach his credibility, but that it must be sanitized (presumably because resisting arrest could be interpreted as a violent act and Rivera was on trial for assault – incidentally, NJ does not follow the theory that violence is not relevant to credibility). The prosecutor, thus, was only permitted to elicit the fact that Rivera had a prior third degree conviction and the date of that conviction.
Tuesday, November 11, 2014
Mediating Confidentiality: 7th Circuit Finds Mediation Privilege Applies in Priest Sexual Abuse Case
Pursuant to Wis. Stat. § 904.085(3)(a),
Except as provided under sub. (4), no oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding. Any communication that is not admissible in evidence or not subject to discovery or compulsory process under this paragraph is not a public record under subch. II of ch. 19.
That said, Wis. Stat. § 904.085(4)(e) provides that
In an action or proceeding distinct from the dispute whose settlement is attempted through mediation, the court may admit evidence otherwise barred by this section if, after an in camera hearing, it determines that admission is necessary to prevent a manifest injustice of sufficient magnitude to outweigh the importance of protecting the principle of confidentiality in mediation proceedings generally.
So, assume that a plaintiff and defendant settle a sexual abuse claim and that the defendant later files for bankruptcy. Is that bankruptcy action a distinct action, meaning that § 904.085(4)(e)'s exception to Wisconsin's mediation potentially applies? Let's take a look at the recent opinion of the Seventh Circuit in Doe v. Archdiocese of Milwaukee, 2014 WL 5671155 (7th Cir. 2014).
Monday, November 10, 2014
In the previous few posts, we’ve learned that theft and violence generally get different treatment when offered as credibility proxies. For reasons that remain somewhat foggy, theft is relevant to credibility and violence isn’t. The bottom line is that courts say they are looking at deliberate violation of social standards as an indication that acts are linked to credibility and for mysterious reasons violence does not strike courts as falling into that category. To give these courts the benefit of the doubt, it’s possible that thieving just seems like it involves dishonesty because taking things that don’t belong to you is in some ways akin to lying about ownership. Violence, on the other hand, doesn’t involve that same equation. So the natural next question is what to do with a crime that is not violent and does not involve any kind of thievery. Prostitution fits this bill nicely.
I’ve written about this issue before here (and Colin very kindly blogged about it), but it is worth discussing in the broader context of credibility proxies. To do so, I’ll turn to another recent case. In 2012, a California district court decided a habeas case involving a man who had been convicted of rape, Foy v. Lopez, 2012 WL 439620. One of the petitioner’s arguments was that the trial court erred in not admitting certain evidence about the victim’s sexual history and sexual conduct AFTER the rape allegedly occurred. One might imagine, given this argument, that the trial court had excluded all evidence about the victim’s sexual history, but this wasn’t the case. In fact, the prosecution had conceded that the victim’s two subsequent prostitution convictions could be used to impeach her. What the trial court had done was to exclude any information beyond the fact of the prostitution convictions.
A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
What's interesting about Rule 804(b)(6) is that it apparently does not allow a defendant to present evidence that an alternate suspect killed the victim to prevent her from testifying/reporting. At least, that was the outcome in the prosecution of Jason Tibbs.
Friday, November 7, 2014
Yesterday, we saw the Colorado Supreme Court grappling with whether an act of shoplifting is admissible as evidence bearing on a witness’s credibility. In that same opinion, People v. Segovia, the C.S.C. noted that acts of violence have typically been excluded when offered to impeach credibility.
This frequently-cited notion, that acts of violence are not particularly relevant to credibility, is worth interrogating further. To do so, I turn to another opinion from the past decade. This one is a frequently-cited opinion by then Judge Sotomayor of the Second Circuit, U.S. v. Estrada, 430 F.3d 606. The case was an appeal of the convictions of two men who were found to have conspired to sell cocaine and heroin. At trial, the government called cooperating witnesses. Defense counsel sought to impeach the two witnesses with evidence that between them they had burglary, larceny, felony drug and murder convictions. Acknowledging that F.R.E. 609(a)(1) suggest that felony convictions are presumptively relevant to credibility, the trial court held in camera hearings to probe into the nature of the larceny, felony drug and murder convictions. It found that they weren’t especially probative of truthfulness. The court therefore ruled that defense counsel could not name the particular felonies committed or ask about the nature of the convictions, but instead could simply elicit the fact of the convictions and the dates.
The Second Circuit disagreed with the blanket prohibition on naming the felonies.
Thursday, November 6, 2014
On Wednesday, Jeff posted an entry about voters in Missouri approving an amendment to the state's constitution which creates a state counterpart to Federal Rule of Evidence 414 (allowing for the admission of evidence of other acts of child molestation in child molestation prosecutions). In the post, he noted that "Colin probably knows if this is the only example of this type of rule enacted directly by voters, but it is interesting to see the level of popular support for the rule.").
I don't, but my guess is that this is the first popular vote on this type of law, and that's because of the uniqueness of what happened in Missouri. First, Missouri is (I think) aberrational in that
although Missouri's Constitution leaves it to this Court to develop rules of procedure, it specifically prohibits the Supreme Court from creating rules of evidence. Mo. Const. art. V, sec. 5. See State v. Williams, 729 S.W.2d 197, 201 (Mo. banc 1987) ("[T]he legislature has plenary power to prescribe or alter the rules of evidence...."). State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. 2003).
Second, the Missouri legislature already passed a similar law twice, only to have the Supreme Court of Missouri strike it down.
So, aside from Missouri's constitutional amendment, what is the most significant evidentiary amendment that voters have approved? Probably this:
On June 8, 1982, California voters amended the California Constitution by passing Proposition 8, popularly known as the Victims' Bill of Rights, thereby creating potentially the most dramatic change in the rules of evidence in the history of this state. Prior to Proposition 8, California rules of evidence protected criminal defendants by restricting the admissibility of prior misconduct impeachment evidence to felonies. The public, "perceiving an imbalance in favor of defendants in the rules regarding the admissibility of evidence," voted for relaxing the rules of evidence. Hank M. Goldberg, The Impact of Proposition 8 on Prior Misconduct Impeachment Evidence in California Criminal Cases, 24 Loy. L.A. L. Rev. 621 (1991).
In 2008 the Supreme Court of Colorado decided an interesting case called People v. Segovia, 196 P.3d 1126. Jose Segovia was being prosecuted for sexual assault on a child. At trial, defense counsel engaged in the following colloquy with the victim, a thirteen-year-old girl:
[Defense counsel]: Now, you have promised the Judge to tell the truth to this jury, haven't you?
[Defense counsel]: And in order to tell the truth to the jury, that requires you to be honest, correct?
[Defense counsel]: Okay. And—but you're not always honest, are you?
[Witness]: What do you mean?
[Defense counsel]: Well, I mean in mid-July, around July 15th of 2007, at your mother's store in Avon, you and Josh stole $100 from your mother's store, didn't you?
The prosecutor objected at this point and defense counsel argued that the question was permissible under Colorado Rule of Evidence 608(b), which is pretty much the same as F.R.E. 608(b). The trial court sustained the objection and declared a mistrial.
The Colorado Supreme Court took up the case in part to decide “whether an act of shoplifting is proper impeachment evidence under rule 608(b).”
Wednesday, November 5, 2014
Among yesterday's election results, Missouri voters passed (72% to 28%) a measure analagous to Federal Rule of Evidence 414 (Similar Crimes in Child-Molestation Cases). Information about the measure is available here
Colin probably knows if this is the only example of this type of rule enacted directly by voters, but it is interesting to see the level of popular support for the rule.
The precise language is:
"Section 18(c). Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice."
Hello All! I’m very happy to be joining you for some fall blogging, beginning with an intro to the subject of credibility proxies.
The need to judge credibility is both inevitable and central in our adversarial legal system. The fact-finder gets information largely through witness testimony elicited in court by advocates seeking either to bolster or undermine a particular narrative. Almost inevitably, that testimony conflicts, leaving the fact-finder in the position of lie detector.
It was not always so. In The Jury's Rise As Lie Detector, 107 Yale L.J. 575 (1997), George Fisher offers an account of how we arrived at a status quo in which juries and judges arbitrate credibility conflicts. Importantly, jury trials were structured around the divine oath which avoided the impression that trial outcomes were simply the result of human judgments about credibility. As mechanisms designed to promote this myth eroded (by permitting sworn testimony by defense witnesses and later defendants, for example), we entered an era in which the power and necessity for assessing credibility rested more and more squarely with the jury, and the jury was increasingly shielded from the need to offer any explanation for its verdicts. Thus, as Fisher argues, the jury became a lie detector whose decisions were protected by a black box of inscrutability. This shroud around the jury, in turn, facilitated the perception that juries perform their task well.
Tuesday, November 4, 2014
iPrivilege: Virginia Beach Judge Finds Prosecution Can Force Defendant to Supply Fingerprint to Unlock iPhone
In relevant part, the Fifth Amendment states that
No person...shall be compelled in any criminal case to be a witness against himself....
The Supreme Court has stated that the Fifth Amendment only covers "testimonial" evidence that results from compelled communicative acts, i.e., acts which disclose the content of one’s mind. Therefore, the Fifth Amendment does not cover a suspect’s act of appearing in a lineup or giving a blood sample to determine whether there are drugs in his system. The Fifth Amendment also does not cover the act of completing a handwriting exemplar. Imagine that the police find an alleged confession note written by the defendant. The prosecution can force the defendant to complete a handwriting exemplar in which the defendant writes a pre-printed paragraph in his handwriting so that a handwriting expert can compare the exemplar and the confession note. All of these and similar acts are not communicative because they are nontestimonial in that they do not force the defendant to disclose the contents of his mind.
Can the prosecution force a defendant to supply his fingerprint to use for the TouchID on his iPhone? For the last year, I've used this article to teach my students that a judge could likely order a defendant to supply his fingerprint to unlock his iPhone. Recently, this possibility has become a reality.
Monday, November 3, 2014
Please welcome Julia Simon-Kerr as a guest blogger for the next month or so. Professor Simon-Kerr is an Associate Professor of Law and the Ralph and Doris Hansmann Scholar at the University of Connecticut School of Law. After graduating from Wesleyan University, she wrote and edited children’s books for Harper Collins in New York before going to Yale Law School, where she was the Executive Editor of the Yale Journal of Law & the Humanities. After finishing law school, she was a clerk for Justice Jaynee LaVecchia of the Supreme Court of New Jersey before completing a clerkship for the Judge Kermit V. Lipez of the First Circuit. After serving as a Bigelow Fellow at the University of Chicago Law School, Professor Simon-Kerr started her current job in 2012.
Professor Simon-Kerr's publications include:
•Note, Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment, 117 YALE LAW JOURNAL 1854 (2008) (which I discussed here);
•Moral Turpitude, 2012 Utah L. Rev. 1001 (2012);
•Systemic Lying, 56 William & Mary L. Rev. (forthcoming 2015).
Her posts will be signed -JSK.
Friday, October 31, 2014
As far as I can tell, there has never been a book about a vampire lawyer. In Dracula, Jonathan Harker was a solicitor while "lawyer" was one of the many hats that Abraham Van Helsing wore. But both of these men were vampire hunters, not vampires themselves. I'm also not aware of a vampire laywer on film, unless you count this recent "Funny or Die" clip with Chris Pine. There apparently is a case of a real-world vampire lawyer, but the less said about that the better.
Returning to the realm of the fictional, Michael Wells, Jr., a partner at Wells Liipfert, PLLC (and the author of the blogs Southern Lawyer NC and Vampire Esquire), has written the vampire novel, Vampire Esquire. The book is copyrighted, and Wells plans to submit it to publishers soon. I asked Wells, who tweets at @slnc01, two questions about the book, and here are his responses:
1. What led you to write a book about a vampire lawyer?
I always enjoyed creative writing, and I wanted to write a novel. I have published articles and stories but never a novel. Stephen King and John Grisham are two of my favorite writers so I thought I would combine elements of each. One of my favorite archetypes in literature is the vampire because it is both the antithesis of human existence in that it is undead and human at the same time because it retains vestiges of humanity. I also thought I could use vampires to point out problems with our political system because my book is largely about the destructive force of big money in politics. Likewise, the book equates vampirism with destroying government programs meant to help those down on their luck. I also enjoyed creating vampire hunters based on Stoker’s Van Helsing and Roland Deschain from Stephen King’s the Dark Tower Series. My main character is 2,000 years old, a good vampire, a lawyer and a former Roman Senator. There should be something in the book for everyone.
2. What is the book's plot?
Pierre Leblanc the “vampire esquire” is a 2,000 year old vampire turned during the ‘Great Fire of Rome’ in 64 AD. He is wrest away from his loving Roman wife and great life as a successful lawyer and his career as a Roman Senator. He later escapes his maker. He lives in Europe for hundreds of years until he finally makes it to the United States and eventually to Chicago. A vampire billionaire, named Vladimir Lenin, wants to take over the United States through his Parisian company, Nero Corporation, where he attempts to buy the Presidential election and Congressional elections. He manages to buy off Congress and gets them to dismantle government programs, Medicaid in particular, thereby creating a critical mass of people off the grid to make into vampires. The President stays in power and is the check to the tyrannical Congress.
Pierre along with vampire hunters William Magnum (grisly vampire hunter), Roland Walker (disgraced Iraqi war vet in search of redemption) and the President, who is also a vampire hunter, are aided by the Society of the Silver Stake (a secret vampire hunting society). A vampire v. human war ensues. Humans win. In a last ditch effort, vampires enter the White House to kill the President, but they are thwarted by the vampire hunters, the Society and Pierre Leblanc. The plan fails. Lenin is revealed to be Leblanc’s maker, and Leblanc kills Lenin.
One key member of Lenin’s progeny escapes setting up the sequel.