EvidenceProf Blog

Cruz Control?: Could The Bruton Doctrine Provide A Solution To The Problem Facing The Court In Williams v. Illinois?

In Bruton v. United States, 391 U.S. 123 (1968) and its progeny, the Supreme Court has held that the Confrontation Clause of the Sixth Amendment is violated by the admission at a joint jury trial of a co-defendant's confession that facially incriminates another defendant if the co-defendant does not testify at trial. So, for example, If Carl confesses to Police Officer Peters, "Dan and I robbed the bank," the prosecution could not call Peters to testify to this statement at the joint jury trial for Carl and Dan if Carl chose not to testify. The thinking of the Court in Bruton was two-fold: (1) Carl's confession is not admissible against Dan, and even if the judge instructed the jury only to use Carl's confession as evidence of Carl's guilt, there would be too strong of a likelihood that the jury would use the confession as evidence of Dan's guilt; and (2) the jury's likely use of Carl's confession as evidence of Dan's guilt would have a "devastating effect" on Dan's defense.

But what if Dan himself confessed to the crime? Wouldn't that mean that Dan devastated his own case and could not complain about the admission of Carl's confession? The Supreme Court answered this question in the negative in Cruz v. New York, 481 U.S. 186 (1987). According to the Court in Cruz, the admission of Carl's "interlocking" confession in this latter situation would be more devastating because

it seems to us that "interlocking" bears a positively inverse relationship to devastation. A codefendant's confession will be relatively harmless if the incriminating story it tells is different from that which the defendant himself is alleged to have told, but enormously damaging if it confirms, in all essential respects, the defendant's alleged confession. It might be otherwise if the defendant were standing by his confession, in which case it could be said that the codefendant's confession does no more than support the defendant's very own case. But in the real world of criminal litigation, the defendant is seeking to avoid his confession—on the ground that it was not accurately reported, or that it was not really true when made.

Of course, Bruton and Cruz are still good law today, and some, myself included, have argued that the Bruton line of cases involves a separate strain of Confrontation Clause analysis than do the Crawford line of cases. So far, the vast majority of courts have disagreed with me, and if they're right, could Bruton/Cruz provide a solution to the Supreme Court's pending decision in Williams v. Illinois and similar cases?

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Make Me Whole, Take 7: Court Of Appeals Of MN Finds No Problem W/Impeachment Through 2 Assault Convictions In Assault Case

Following up on yesterday's post about the admissibility of prior conivctions for sex crimes for impeachment purposes, I give you another in a long line of ridiculous impeachment cases from the great state of Minnesota: State v. Gardner, 2012 WL 1149325 (Minn.App. 2012)

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Julia Rickert's Denying Defendants the Benefit of the Doubt & an Argument for Empiricism in Rule 609 Impeachment

Late one cold night in Chicago, a homeless man came upon an unlocked car parked on the street. He decided he would sleep in it. Early the following morning, he awoke just as a police cruiser pulled parallel to the car. He was arrested and later charged with burglary. Because of his criminal history, the man faced six to thirty years if convicted. The prosecutor offered him eight years in exchange for a guilty plea.

The crime of burglary, a Class 2 felony in Illinois, is committed when one "knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft." The requisite intent to commit a felony or theft can be inferred from the bare circumstance of having entered without authority. This inference can of course be rebutted.

In this case, the defendant had not disturbed any of the valuables in the car. The police had been called by the car’s owner, who reported the presence of someone in his vehicle, but did not specify whether the person was awake or asleep. The police report did not comment on whether the homeless man appeared to have just awoken, but it did indicate that sunglasses were found in the homeless man’s pocket. The vehicle owner told the police that the sunglasses looked familiar and may have been left in his car by a friend. The trespasser, however, claimed the sunglasses were his own. What no one disputed was that the car contained items of value that had not been disturbed, such as a cellular phone, a stereo, and compact discs.

If this defendant is charged with burglary and wants to argue that he is only guilty of trespass, how is he going to rebut the inference of intent? The obvious answer is "by testifying." But what if the defendant has two prior convictions for criminal sexual assault. Would evidence of these convictions be admissible in the event that the defendant testifies, in effect putting him between a rock (not testifying) and a hard place (testifying and having the jury hear about his prior convictions)? This is the question addressed by Julia Rickert, currently a clerk for the United States Court of Appeals for the Seventh Circuit, in her article, Denying Defendants the Benefit of the Doubt: Federal Rule of Evidence 609 and Past Sex Crime Convictions, 100 J. Crim. L. & Criminology 213 (2010).

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Withdrawal Symptoms: Court Of Appeals Of Missouri Finds Statements Related To Withdrawn Guilty Plea Inadmissible

Missouri Supreme Court Rule 24.02(d)(5) states that

Except as otherwise provided in this Rule 24.02(d)5, evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or of any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, or an offer to plead guilty to the crime charged or any other crime is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

Rule 24.02(d)(5) thus makes explicit what Federal Rule of Evidence 410(1) does not: that statements made in connection with a withdrawn guilty plea are inadmissible. As an example, let's look at the recent opinion of the Missouri Court of Appeals, Southern District, Division Two, in State v. Thieman, 353 S.W.3d 384 (Mo.App. S.D. 2011).

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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?

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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)

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We The Jury, Take 5: Illinois Approves Procedure For Jury Questioning During Civil Trials

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.

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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."

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That's One Interpretation: WDVa Finds Presumption Of Regularity Applies To Interpreters

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."

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I Lost On Jeopardy: Is Exculpatory Blood/DNA Evidence Considered "Exclusionary Evidence"?

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?

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What's Your Emergency?: 9th Circuit Finds Mother's 911 Call About Son's Abuse Of GF Admissible

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."

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