Monday, December 16, 2013
Affluenza Season: Considering the Role That Socioeconomic Status Should Play in Sentencing Decisions
The has been a nationwide reaction to the prosecution of 16 year-old Ethan Couch in Texas. The teen was convicted of vehicular manslaughter due to drink driving, meaning that he could have been given a sentence of up to 20 years incaraceration and a fine of up to $10,000. Instead, Couch was given 10 years probation. Why? Couch's lawyer presented evidence during the sentencing phase of trial that Couch suffers from "affluenza."
The term "affluenza" was popularized in the late 1990s by Jessie O'Neill, the granddaughter of a past president of General Motors, when she wrote the book "The Golden Ghetto: The Psychology of Affluence." It's since been used to describe a condition in which children - generally from richer families - have a sense of entitlement, are irresponsible, make excuses for poor behavior, and sometimes dabble in drugs and alcohol, explained Dr. Gary Buffone, a Jacksonville, Fla., psychologist who does family wealth advising.
The question in the wake of the Couch case is thus whether it is proper to use a defendant's socioeconomic status to decrease his criminal penalty. Today, I'm going to try to answer that question by looking at whether courts can use a defendant's socioeconomic status to increase his criminal penalty.
Friday, December 13, 2013
A plaintiff sues her OBGYN and her practice group, alleging that she suffered serious injuries as a result of Dr. Montano's negligent performance of an intrauterine surgical procedure. Can the defendants present evidence that the plaintiff had previously undergone several abortion procedures? According to the recent opinion of the Court of Appeals of Georgia in Cartledge v. Montano, 2013 WL 6085238 (Ga.App. 2013), the answer is "yes."
Thursday, December 12, 2013
As noted earlier on this blog, Andrew Ferguson and I have been exploring the judicial notice possibilities raised by the exponential increase in access to information through the Internet.
Our forthcoming piece points out the strong urge for judges, jurors and parties to clarify ambiguities and omissions in the record through resort to Internet sources (like Google Maps). We suggest that the curiosity be funneled through the judicial notice rule (FRE 201), and propose a series of factors that judges should consider in applying that rule to facts found via Internet sources.
Justice Breyer helpfully illustrated the phenomenon in oral argument earlier this month in United States v. Appel – a case that hinges on the location of a protestor vis a vis a military base when arrested.
Justice Breyer took a look at the (apparently) deficient record in the case on the point and went to “the Google maps” to find out what was really going on:
“JUSTICE BREYER: [T]he reason I'm asking this question is the record is not developed. I looked at the Google maps. It looked to me like this area is sort of a suburban house with a lawn in front of it, and you drive along the street, and you suspect that the street may belong to the city a little way up the lawn; but beyond that, it probably belongs to the homeowner.”
Now if only there was a mechanism for bringing information like that into the record . . . . .
Blindfolding the Jury?: Will a Failure to Follow Protocol Render DNA Evidence Inadmissible in Jordan Graham Trial?
A couple of days ago, I posted an entry about the Jordan Graham prosecution. As noted, Graham is
the Montana woman charged with murder after shoving her new husband off a cliff at the Glacier National Park last summer. Prosecutors allege that the act was malicious; Graham counters that she instinctively pushed him away when he grabbed her arm during an argument.
According to an article yesterday,
During Wednesday's court session, investigators admitted they probably didn't follow established procedures when recovering a piece of cloth which could be a key piece of evidence in trial.
The strip of black cloth was found just downstream from where Cody Johnson's body was located, lying in a pool of water below the parking area to The Loop trail in July.
Prosecutors are attempting to say the cloth is proof that Graham planned her husband's death. The jury has not been told that the cloth is an alleged blindfold.
But defense attorneys attacked the evidence even before the trial, saying there's no way the cloth can show Graham's intent. Plus, they say the DNA evidence - hairs on the cloth - wasn't properly preserved.
Kalispell Police Sgt. Myron Wilson told the jury that the cloth had been handled after it was recovered from the bottom of the ravine, and that it was kept in a plastic bag and then transferred to a paper bag.
Under cross-examination, Wilson admitted putting the cloth in plastic first was "not appropriate" under standard procedures because it doesn't allow DNA evidence to dry properly.
Because the alleged murder took place in Glacier National Park, Graham's trial is being held in federal court. So, what does that mean in terms of the admissibility of the DNA evidence?
Wednesday, December 11, 2013
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.
There are many questions about how readily courts should apply Rule of Evidence 1003(1) to exclude duplicates. In fact, I raised many of them in this article. But seemingly everyone agrees that the proponent of a duplicate must first authenticate the original. And this requirement was a problem for the prosecution in State v. Yoeun, 2013 WL 6152162 (Minn.App. 2013), even in the absence of an objection by the defendant.
Tuesday, December 10, 2013
Why Jordan Graham's Prior Threats Will be Inadmissible at Her Trial For Pushing Her Husband Off a Cliff
Many of you have probably heard about the case of Jordan Graham. She's the Montana woman charged with murder after shoving her new husband off a cliff at the Glacier National Park last summer. Prosecutors allege that the act was malicious; Graham counters that she instinctively pushed him away when he grabbed her arm during an argument. Recently, Donald Molloy, the federal judge presiding over the case, ruled that the prosecution would not be able to introduce evidence that Graham allegedly threatened to kill her mother and stepfather a month before her husband's fatal fall. Why? The answer can be found in the intersection between two rules of evidence.
Monday, December 9, 2013
Text(ual) Analysis: Court of Appeals of Minnesota Addresses Admissibility of Forwarded Text Messages
Minnesota Rule of Evidence 901(a) provides that
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
Meanwhile, Minnesota Rule of Evidence 1004(1) provides that
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
So, assume that an alleged victim finds text messages on the defendant's phone, forwards them to her phone and e-mail account, and the forwards them to the police. Should the court deem these text messages admissible? That was the question faced by the Court of Appeals of Minnesota in State v. Anderson, 2013 WL 6223399 (Minn.App. 2013).
Friday, December 6, 2013
Yesterday, Florida State quarterback Jameis Winston was not charged with sexual assault. As per Florida law, 86 pages of investigative material was made public. Inside those pages, we can find probably the biggest reason for charges not being brought:
[I]nvestigators found a second DNA profile on the shorts the woman provided. (Winston's DNA profile was found on her underwear.) A defense attorney could use an unknown DNA profile as the foundation of his defense. If prosecutors couldn't positively identify the source of the unknown DNA profile, a defense attorney could suggest that the person who provided the other sample committed the rape. That would likely provide reasonable doubt in jurors' minds. So if Meggs was going to prosecute, he would have to identify that sample. "She acknowledged having sex with her boyfriend," Meggs said. "But she wouldn't tell me who her boyfriend was. Being a shrewd investigator, we found out, and we got his DNA." The investigation could have wrapped up more quickly if not for the delay, which required Meggs to enlist the help of a prosecutor in Ohio to request the boyfriend's DNA.
Let's take a look at the law that governs such evidence.
Thursday, December 5, 2013
Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. In Richardson v. Marsh, the Supreme Court found that there's no Bruton doctrine if the prosecution can redact such a statement to remove any reference to the other defendant, and some lower courts have found no problem with replacing the other defendant's name with a neutral pronoun. Sometimes, however, neither solution is viable. The recent opinion of the Northern District of Illinois in United States v. Montoya-Hernandez, 2013 WL 6080483 (N.D.Ill. 2013), gives us some good insight into how this process works.
Wednesday, December 4, 2013
Craig D. Sallie was charged with aggravated assault and possession of a firearm by a convicted felon after a fight with Gregory Johnson. According to the Court of Appeals of Mississippi in Sallie v. State, 2013 WL 6233904 (Miss.App. 2013),
Johnson admitted that he drank whiskey and smoked marijuana on the day of the incident before the shooting occurred. He denied using cocaine that day, but admitted that he had used cocaine in the past. When defense counsel asked Johnson if the blood test performed at the hospital on the day of the shooting indicated that cocaine was in his system, Johnson replied, “I don't know nothing about that, sir.” The State objected to the line of questioning regarding Johnson's alleged cocaine use on the day of the incident, arguing that it was irrelevant to Sallie's guilt or innocence; and even if it were relevant, its probative value was substantially outweighed by the danger of unfair prejudice. The circuit court sustained the objection because defense counsel had no evidence that Johnson had used cocaine on the day of the incident.
Tuesday, December 3, 2013
Federal Rule of Evidence 615 provides that
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute to be present.
Therefore, Rule 615 allows a party to move for the sequestration of witnesses at trial. And, as the recent opinion of the United States District Court for the Eastern District of Michigan in Ely v. Uptown Grille, LLC, 2013 WL 6183108 (E.D.Mich. 2013), makes clear, the Rule also applies to depositions.
Monday, December 2, 2013
Federal Rule of Evidence 902(7) allows for the self-authentication of
An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.
Last week, I did a couple of posts (here and here) about the intersection between Rule 902(7) and the rule against hearsay. Today, the recent opinion of the United States District Court for the Northern District of Indiana in Estate of Carman v. Tinkes, 2013 WL 6184456 (N.D.Ind. 2013), gives me a third opportunity to explore this intersection and a first chance to see what the internet might mean for the Rule.
Friday, November 29, 2013
Reputable Source?: Court of Appeals of Tennessee Precludes Testimony of Rehabilitation Witness Under Rule 608(a)
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) the evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.
In Pyle v. Mullins, 2013 WL 6181956 (Tenn.Ct.App. 2013), the plaintiff sought to bolster his credibility after it had been attacked by the defense, but the court precluded this rehabilitation. Why?
Thursday, November 28, 2013
Slapsgiving: Eleventh Circuit Curtly Concludes Juror Can't be Subpoeanaed Regarding Thanksgiving & Racial Comments
I thought for sure you would be found innocent because I talked with one of the jurors about the case—the elderly black man. We were in the bathroom at the same time and he [the juror] said, 'Those white folks know that lady is innocent, but just want to find a black person guilty. We are kinda bored and tired and don't feel like arguing with them. We are trying to get home to prepare for Thanksgiving.' -Statement by defense witness DeAngelus Gibson to Shynita Townsend after he was convicted of knowingly and corruptly accepting a thing of value, as an agent of a local government and related crimes.
Was Townsend entitled to subpoena the juror to see if he would render similar testimony in support of a motion for a new trial? According to the opinion of the Eleventh Circuit in United States v. Townsend, 502 Fed.Appx. 870 (11th Cir. 2012), the answer is "no."
Wednesday, November 27, 2013
Pursuant to the Bruton doctrine, the Confrontation Clause is violated when the prosecution at a joint jury trial introduces a co-defendant's statement that facially incriminates another defendant unless the defendant testifies at trial. But is something more required to trigger application of the doctrine? That certainly seems to be the case according to the Third Circuit in United States v. Green, 2013 WL 6017425 (3rd Cir. 2013).
Tuesday, November 26, 2013
Federal Rule of Evidence 901(b)(5) allows for authentication via
An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
Monday, November 25, 2013
Google It: Court of Appeals Finds Juror Google Search for "Intentional Act" Inadmissible to Impeach Verdict
There's a one car accident involving a vehicle insured by Safeco Insurance Company of Illinois. The insurance company claims that the accident was covered by the intentional-acts exclusion in the insurance policy. During deliberations, the jurors ask for the judge to define an "intentional act." The judge provides no definition, so a juror does a Google search for "intentional act" and tells the other jurors about his results. Soon, thereafter, a straw poll is taken, and nine jurors find in favor of the insurance company. If the jury ultimately find for the insurance company, does there need to be a reversal? According to the recent opinion of the Court of Appeals of Arkansas in Safeco Ins. Co. of Illinois v. Southern Farm Bureau Cas. Ins. Co., 2013 WL 6095473 (Ark.App. 2013), the answer is "no."
Saturday, November 23, 2013
According to a news release:
Professor Myrna Raeder, an esteemed member of the Southwestern faculty for nearly 35 years, passed away on November 16. A prominent national figure in legal education and the advancement of criminal justice, Professor Raeder was one of the most highly regarded experts in evidence and a leading advocate for gender equity in the legal profession and the criminal justice system.
As longtime readers of this blog might remember, Myrna Raeder was an original contributing editor on this blog. When I got the idea to start the blog, Myrna was one of the first people that I contacted. I had recently read her article, The Double-Edged Sword: The Admissibility of Battered Woman Syndrome Evidence by and Against Batterers in Domestic Violence Cases, and wanted her voice on the blog. All of my personal experiences with her confirmed what I was told about her by others: She was a delightful person. Now, she will be missed.
Friday, November 22, 2013
Yesterday, I posted an entry about the intersection between Federal Rule of Evidence 902(7), which allows for self-authentication of inscription, sign, tag, or labels, and the rule against hearsay. In the entry, I discussed two cases in which courts found that self-authenticated inscriptions did not implicate the rule against hearsay when they were merely admitted as trace evidence, to prove the origin of an item (a gun manufactured in Spain and a hard drive made in Malaysia). But what if the evidence is offered for some other purpose? Let's take a look at the opinion of the Superior Court of Pennsylvania in Commonwealth v. Harvey, 666 A.2d 1108 (Pa.Super. 1995).
Thursday, November 21, 2013
We Come From France: What's the Intersection Between Self-Authentication & The Rule Against Hearsay?
Federal Rule of Evidence 902(7) provides that "[a]n inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control" is self-authenticating and requires no extrinsic evidence of authenticity in order to be admitted. That said, couldn't a sign, tag, or label be hearsay -- a person’s oral assertion, written assertion, or nonverbal conduct offered to prove the matter asserted -- making it inadmissble under Federal Rule of Evidence 802 in the absence of an exception or exclusion? This was the question that I was discussing with my colleague Derek Black yesterday. The answer, or at least the one provided by a handful of courts, can be found in United States v. Alvarez, 960 F.2d 830 (9th Cir. 1992).