January 12

From Cyberlaw

Contents 1 Introduction 2 Today's Material 3 People v. Zackowitz 4 Return to the scene of the crime 5 Money or death 6 Commonwealth v. Jewett 7 Huddleston 8 General Points 9 Proof of D's Good Character 10 The Mayor 11 United States v. Beechum 12 Character of the Victim 13 Stockhammer 14 Open forum on Stockhammer

Introduction

• Division over pedagogy in the feedback memos
• While in the rules, the objective is for us to get to understand this machine that we all play parts in
  • There’s a narrative that these rules follow
• Over time, we learn the taxonomy of the law, learning arguments about both sides of everything. Learning what is descriptive, normative, etc.
• We are at the midpoint of studying a form of resolution that’s under huge challenge
  • Right now, the fundamental rules seem up for grabe – 4th amendment, juries
  • Isn’t there something wrong when the jury has only a fraction of information that the public has?

Today's Material

The subject we’re dealing with today looks incoherent, but there is in fact a deep coherence

• We should think in mathematical terms about this subject.
• You start with a crime. We’re going to have a trial. It’s an offense, which is defined as having elements, for which there must be sufficient proof
• Two modes of proof
  • point proof. W has perceived the event tells us in a believable way that they saw it. evidence depends on the testimonial capacities of that witness.
  • Set proof: circumstantial. A set of evidentiary items, from which we may draw an inference as to the existence of the element.
    • Problem: no one thinks a jury is unique at judging inferences
• How do you prove the testimonial capacities of a witness? How can you attack them when you are cross examining.
  • For each one of the testimonial capacities, thee are two modes in which to go at it; direct testimony, or a set of things, from which we draw an inference.
  • We start to have a concern about how direct the thing we’re trying to prove is in connection with the element we’re trying to prove.
    • The collateralness of isssues
    • Is it relevant that a W told the truth in the past? Yes. But how pertinent is it?
• Today we’re going to look at how this pattern unfolds, and seeing how it’s expressed in a huge number of doctrines. Whwne we grasp the basic structure, we get the bouquet.

People v. Zackowitz

• the element in dispute is intent
• P finds weapons at Z’s house. Wants to introduce those guns.
• Cardozo reverses conviction. Not because the weapons aren’t relevant. Rather, the weapons show that Z is a tough guy. But our trial system is based on trying you for what you’re done, and not for who you are. This is ultimately a 5th Am. notion.
  • This is known as the propensity rule
    • something not directly related to the element, but rather a set from which you draw an inference
    • requires us to think about what the logic step is from the evidence from the conclusion. seeks to protect against trying people for having "bad character"
    • you may not offer evidence to show that D has a propensity to commit the crime.
    • May not carry your line of logic through character
    • Note how thin this zone of protection is; if P had been clever in this case, and not just blatantly used the evidence for this improper purpose, P would have succeeded.
• If P wanted to get in the guns without going through character, what narrative?
  • Get D looking at the weapons in his radio and choosing the murder weapon
  • Learning something about character isn’t barred; rather, the inference going through character is barred.
  • Find something that gets you directly to the element of the offense

Return to the scene of the crime

• if the offer of proof is that he’s a safe cracker, and it’s more likely that a safe cracker had done this crime than a non safe cracker
  • that would be relevant, but still falling afoul of the propensity rule. Barred.
  • But if P offered it to show that D knew how to get into this office and this safe, then we’re in

Money or death

• if it’s offered to show that D is a bank robber, not admissible
• but if it’s offered to show who the bank robber was (identity), then it’s admissible
  • this note is like a signature

Commonwealth v. Jewett

• D was suspected of a very similar offense in which he was demonstrably misidentified
• D wants to put in evidence of a similar offense, in which he was misidentified
• Is there more clout behind D’s claim to use circumstantial evidence?

Huddleston

• sometimes the past event is a crime
• Tucker v State is an example of the way people used to think about this
  • Guy gets drunk, passes out, and when he wakes up, the other guy is dead in his house
  • Argument that P is proving a past crime that wasn’t tried. You shouldn’t be able to put on evidence unless it’s sufficient to prove the past crime BRD.
• Here, D is prosecuted for receiving stolen goods. Can P show other cases where D has been selling lots of stuff for low prices?
• Court says, this is a Rule 104 relevance problem. Treat it like the rim; is there evidence sufficient to put into play the idea that the earlier event happened?
• The succeeding cases show that even where D has been acquitted of previous crimes, those can be admitted.

General Points

• it’s up to opposing counsel to articulate an appropriate line of admissibility
  • it’s then up for grabs how much P can say in the closing. Judge’s discretion
• there is no double jeopardy problem with introducing evidence from a past crime of which D has been acquitted
• there is no collateral estoppel problem either, since the standard of proof for the acquittal was beyond a reasonable doubt, and the standard for admitting evidence is “evidence sufficient to support a finding”
• back to the situation of having W on the stand and wanting to support W’s testimonial capacities. From the POV of the court, to have W be called, and spending a lot of time establishing credibility is very inefficient. Much better if we wait for cross-examination to attack credibility.
• Three methods for showing credibility:
  • (1) proving specific instances where W was a truth teller, and drawing inference
  • (2) reputation
  • (3) call another witness who has an opinion about W telling the truth here
• Rule 403: discretion of the judge, balancing test: probative value vs. time/trouble/prejudice
• Rule 404(a). exceptions::
  • Character of the accused can be admitted if offered by the accused, after which P can attack.
    • But what is the method by which character can be proved or attacked?
      • D cannot put on a history of good deeds, since it takes too long. So D is left with reputation and opinion witnesses, which goes much faster
      • P goes out and finds all the dirt he can and says, “have you heard that… etc etc.” the questions go by pretty fast. But if P calls more witnesses in case D’s witness denies it can also slow things down
    • P is limited by the trait and the rules of ethics to having a good faith basis for asking a question
• Rule 404(b) adds nothing to 404(a). just a complementary statement, giving a four example laundry list.
• Worrying about how efficiently something can come in is a function of (1) how much time it takes; (2) the thing that’s being proved with it. if the thing that’s being proved isn’t that huge, then we constrain it.
• Worrying about how efficiently something can come in is a function of (1) how much time it takes; (2) the thing that’s being proved with it. if the thing that’s being proved isn’t that huge, then we constrain it.
• The rules are not saying that character evidence is irrelevant, rather that it’s prejudicial – having the capacity to mislead the factfinder.
  • Prejudice is not something that turns your stomach, or something ugly.
  • Here we’re worried that the fact finder will lower the standard of proof by which they judge D
  • P may not refer to D as an animal, for example

Proof of D's Good Character

• reputation evidence doesn’t come in unless D brings it up first (no propensity evidence)
• D is proving good character with an efficient form of proof.
• Once D puts character into evidence, the reputation witness can be cross-examined about specific acts. But if the witness says no, P wouldn’t be able to call a witness to prove the charge brought up on cross, since that specific act affirmative proof is way down the chain.
  • Also, P is limited by the trait and the rules of ethics to having a good faith basis for asking a question

The Mayor

• P is offering proof of character, but here, character is a component element of the offense, since this is libel.

United States v. Beechum

• letter carrier suspected to stealing from the mail. So the postal service sets him up by putting a silver dollar in an envelope.
• When they arrest him, they find two credit cards on him, stolen from that same route.
• They prosecute him for the silver dollar. What do we do with the credit cards.
• Hypos:
  • Hypo: Suppose they charge him for the theft of the silver dollar and also with the theft of the credit cards. Beechum might then ask for two trials, since one would predjudice the other.
    • Is D entitled to a motion to sever, or is P entitled to try them together.
  • Hypo: he’s charged only with the silver dollar. Can P put on the credit cards as evidence?
  • Hypo: P doesn’t put on credit card evidence. D takes the stand and comes up with a story about the dollar. Can he be asked about the credit cards on cross? D claims that he can’t be asked about the credit cards, since it’s beyond the scope of direct.
  • Hypo: D is asked about the credit cards, but refuses to answer
• In fact, these are all the same question. If you consider the credit cards to be relevant in some way other than propensity, then they are admissible as part of P’s direct case.
  • Hence the severance question turns on whether the one would be admissible in proof of the other.
  • P could bring in the evidence on direct if it was relevant, but not as propensity
  • likewise on scope of direct, which is determined by the issue to which you testify. Here, D put his intent into question. (when he said that he forgot)
  • when you testify, you waive the 5th with regards to the issue that you testify to.

Character of the Victim

• starts with Rule 404(a)(2): evidence of a pertinent trait offered by the accused, or by P to rebut the same. So D is allowed to put the character of the accuser into contest
• Rule 405: tells you how to prove character. It seems that you could do it by reputation.
• Rape. D offers defense of consent. Can D atty ask questions about V’s sexual history? What is the trait of character that relates? Promiscuity. Points to 404(a)(2).
  • Under this schema, it’s permissible to ask about previous partners
• In the olden days, rape cases were easy to win. The jury system, court system, culture and rule interpretation was dominantly male, with previous partners often allowed to be called, promiscuity being seen as a smear on W’s truthfulness, as well as consent.
• Federal rules adopted in 1975, with the women’s movement coming up. An amendment adopted: the Rape Shield Law (where passage at the federal level makes passage in the states much easier)
  • Rape Shield law: 412(a): The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
  • (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
  • (2) Evidence offered to prove any alleged victim's sexual predisposition.
• Exceptions
  • Evidence offered to prove that someone else was responsible
  • Evidence offered to prove past/future sexual conduct with the accused (to show consent)
  • Evidence, the exclusion of which would violate the constitutional rights of D
    • Seems odd, since we don’t need a rule to say this. This is the constitutional saving clause (trying to save it from getting struck down)

Stockhammer

Stockhammer

• Wendy was involved in the case. First as P, dedicated to preserve the conviction against Nancy Gertner
  • This was a judge trial, not a jury trial. The reason for the conviction is that D testified and lied about some important things. V didn’t lie.
  • There was a lot of political power on both sides.
• Two important issues raised on appeal:
  • (1) wrong for the court to exclude the question about what V had said to her father;
  • (2) incorrect to deny D access to her counseling records. That didn’t have anything to do with the ruling, since by then everyone had already seen the records, which contained nothing, so there could be no harmful error.
    • This became the rule; everyone claimed that Stockhammer entitled them to get records directly, so that there was no more in camera review of records.
• The judicial process is an algorithmic machine operating on an infinite information base, selecting some parts and processing it through the machine to get to the point where have a conclusion. This is a discovery process that says, with respect to V, you get a sense of how representing D have access to all information relating to her life have an immense power.
  • The V has been violated once, and now in seeking recourse, has her entire history laid bare.
  • And yet, where do we stop with D’s right to put on a defense?
  • choice between the victim’s life laid bare, and putting the judge in a false advocacy position
    • Can you trust a judge to look sharply at things in in camera review?
• Surveillance law evolved so that the defense lawyer had to be able to look at the taps
• Huge disproportion: judges would never allow D atty subpoenas against mentally disturbed witnesses in robbery cases, and yet a sane rape victim had to submit.
• There is no such thing as a constitutional right to discovery for the accused as against private persons. Subpoenas and court orders are govt power being launched against victims.
• Would rip rape shield laws out of the books.
  • Shouldn’t the legislature be the one to make these rules, where women can advocate for their wording?
  • Where are the women when these things are being enforced? D’s constitutional objections are trumping the rules, and there is no way for the woman to appeal.
  • Rule 404 forgets relevancy, allowing the accused to do irrelevant things.
    • It’s challenging to think of 404 in terms of relevance; even though it’s in the relevance section, and while it’s an expression of prejudice, this is a witness protection rule, and as such it has much of the structure of privilege.
    • It’s challenging to think of 404 in terms of relevance; even though it’s in the relevance section, and while it’s an expression of prejudice, this is a witness protection rule, and as such it has much of the structure of privilege.
    • None of the 404 rules are doubting the relevance of what they are treating; they are declaring that some forms of relevant evidence are prejudicial.
    • The special exception for prior sex with the accused is a strange construction of consent. This was acting as a buffer against the abolishment of marital rape exceptions
    • The rule presumes relevancy in a way that’s very hard to unpack
• Given D’s story in Stockhammer, the prior sexual behavior of the victim might actually be relevant
• Rights to engage in constitutionally behavior are dented by rules of evidence that presume the relevancy of certain behavior.
• Two separate questions: (1) what weight do my rights get; (2)
• Lawrence isn’t about privilege; it’s about fundamental freedom.

Open forum on Stockhammer

• the remedy against the potential prejudice of the accused when the jury is assuming that S&M means that he’s guilty is very careful jury selection
  • how do you do that?
  • In a stranger rape case, women feel scared, and so are inclined to vote guilty
  • In consent defense cases, women jurors feel unsafe thinking that that could be her boyfriend/husband, so what she does to “feel safe” is to distance herself
• consent is a two sided thing
  • no, it’s a strict liability crime, with general intent only. Rape is about protecting autonomy
    • (nesson here: i feel remiss in not having interjected my understanding that rape requires among its elements criminal intent to overwhelm another against her will. A man who has intercourse with a woman reasonably believing her to be consenting is not, i believe, guilty of rape. Am i wrong on this? What did you learn about this in Criminal Law?)
• Does this affect the rights of males to engage in sex? (ack, but i think it’s still important)
• this is a subject where there are two mountains of fear: fear of being raped, and fear of being falsely accused. To approach the problem with genuine empathy for each of the positions seems essential for a reasonable discussion.
• How would you advise a male who’s a defendant to make a defense of consent?
  • The question should be, what someone can oppose without permission. Buyer beware.
  • Could cross examine on how the lack of consent was conveyed
  • And the defendant probably has to take the stand. This the way of affirmative defenses. (doesn’t that mean that the sex is presumptively bad?)
• Is it possible for a woman to give consent in the night and change their mind in the morning?
  • The CA supreme court said that if the goal is to preserve autonomy, then if she changes her mind in the middle of an act, and he continues, it’s rape. (train and station analogy)
• “I like forcing victims to go through it, even if it’s harmful.” (because otherwise a bad system is allowed to continue). Child cases: “Put him on the stand, or put a targe on his back.” (studies show that this can be more therapeudic in the end.
  • N: “I’m not interested in getting totally trashed here.” W: “but it’s good for you”
  • “she has no choice because it’s a citizenship responsibility on her part, just as if she were a witness to murder…. We don’t give people a pass because the victim is uncomfortable”
• If I have a constitutional right to bear arms, then is that excluded from evidence?
  • Well, this isn’t about excluding, but about engendering a heartier analysis. This would pit constitutional rights against other rights.
• This analysis of the rape shield law should be applied to propensity.
  • If you’re charged with larceny, P can’t introduce evidence that you’ve been convicted of it 10 times before
  • When you look at sex abuse rules, (412,413,415), the question of whether similar acts done by the accused can be introduced is treated differently. Equity?
  • Michael Jackson example: let’s assume the past cases were convictions, and the argument to the judge is that it’s prejudicial, and they’ll assume that he did it. Wendy would agree that that should be excluded. But then, what is this about the victims’ mother having lied in the past? That was allowed to come in on the question of whether she’s a liar type. Outrageous.
  • Imagine you have a case where D is charged with 3 prior convictions for rape, and V has prior instances of consensual sexual activity. Why might the law want to be more willing to let in D’s prior convictions, and not allow in her consensual activity?
    • Because having consensual sex isn’t a crime, whereas prior convictions of rape show that he’s been willing to do this crime in the past.
    • Do you ever want a woman to be deterred from having sex?
    • Isn’t this saying that if you are accused again, we are going to lower our standard of proof
  • Wendy would rather there be a serious hearing on the weight of the claim, because battered women are raped all the time and then recant; those become false allegations on a very low standard.
• Rape cases are a zero-sum game: defense of the accused is prosecution of the accuser, and visa versa.
• Is this structure capable of resolving this kind of controversy?
  • When you’ve got so little to go on, the incentive to allow more digging on the little that you’ve got in quest of a firm foundation.
  • This is a branch of law very much in a state of movement