Tuesday, August 21, 2007

The Newark Killers & MS-13

There have been reports that some of the alleged killers of the three young people in Newark are members or admirers of the gang MS-13. See, e.g., here, here, and here. Should any such evidence about MS-13 be admissible in the trial or trials of the alleged killers for murder and for, e.g., conspiracy to commit robbery?

This problem would make a nice examination question in an Evidence course.

Note 1. Does it matter whether or not the alleged killers were or were not in fact members of MS-13?

Note 2. Does the evidence show or suggest that some but not all of the killers are members of MS-13 or admire MS-13? If so, does this matter?

Note 3. Some of the evidence of an affection for MS-13 may reside on a computer web site (MySpace) and on a computer controlled by one of the killers. Does this fact implicate the First Amendment? If not, does it matter (to the question of admissibility) whether or not, e.g., the page on MySpace was seen, e.g., by its creator -- one of the alleged killers -- as a vehicle for self-expression -- or perhaps even as a vehicle for the expression and communication of political or ideological sentiments?

Note 4. Does the use of evidence about MS-13 amount to invidious profiling? Would statements by gang members in, e.g., Guatemala be admissible? If you think not, would your answer change if you found out that the alleged killer heard such statements (about, e.g, an intent to rob, torture, etc.) by the gang member in Guatemala?

Note 5. Would evidence of membership in MS-13 amount to prohibited character a/k/a propensity evidence? Or would such gang membership just amount to evidence of motive, intent, or some such thing? Does it matter what, precisely, "evidence of membership in MS-13" amounts to?

Enough questions for now. Perhaps you folks have some thoughts. (I have not even mentioned here the possibility that evidence of membership in MS-13 might be unduly prejudicial because, e.g., the evidence suggests that the alleged killer is an illegal immigrant or, say, because the gang membership evidence "reinforces" the jury's awareness of the ethnic identity of the alleged killer or killers.)


Unknown said...

Note 6. And what about the best evidence rule? (Consider the material on the personal computer and on MySpace.)

Unknown said...

Note 7. And what about authentication and conditional relevance? Presumably there would have to be sufficient evidence that the material on the personal computer was authored by the pertinent alleged killer.

But question: Would it be necessary to show who authored the material on MySpace? In connection with this question: Does the purpose of the offer of the material on MySpace matter? Suppose, for example, that the offered material on a MySpace site shows -- this is not likely to be the nature of the actual offer, even if an offer of MySpace material is ever made --, suppose that the proffered material on MySpace show someone purporting to be a leader of MS-13 -- someone other than one of the alleged killers in the Newark case -- making statements purportedly describing the creed of MS-13. If the identity of this purported leader cannot be established or if there is little evidence that the purported leader is a leader or even a member of MS-13, are these person's statements perhaps nevertheless both relevant and admissible? Please explain.

How that wretched principle and fact of multiple relevance conspires to frustrate many attempts to exclude evidence!

Unknown said...

Note 8. Is MS-13 an "organization" for purposes of Federal Rule of Evidence 406 and its State counterparts and, if so, does MS-13 have "routine practices" within the meaning of Rule 406? (For example, does MS-13 have initiation rites that might be relevant to the killing of the three young people in Newark?) Can the routine practice of MS-13 be offered to show the behavior of MS-13 on particular occasions? Can the routine practice of MS-13 be offered to show the behavior of individual members of MS-13 on particular occasions? (Is it possible to show the behavior of MS-13 on a particular occasion without showing the behavior of a particular person or persons on a particular occasion?) Can the routine practice (if any) of MS-13 be offered in a criminal prosecution of one of its members to show the behavior of that member on a particular occasion, including behavior that might constitute the actus reus of the crime for which that member is on trial?

Might MS-13 have subsidiaries? Might it consist of a constellation of MS-13s, a collection of criminal organizations, with some of them having routine practices and some not?

Of course, it is possible that none of the chapters, satellites, branches, or affiliate organizations of MS-13 have any practices that qualify as "routine." (And, pray tell, how invariable must a practice of a criminal organization be to qualify as "routine"?)

Questions, questions -- nothing but questions!

Anonymous said...

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