Improbable DNA

Jennifer Mnookin, "Fingerprint Evidence in an Age of DNA Profiling," 67 Brooklyn L. Rev. 13, 49-50 (2001)(footnotes omitted):

[I]n a 1999 case in England ... Raymond Easton was charged with burglary after authorities made a "cold hit" with his DNA in a DNA database. His DNA matched the crime scene DNA at six loci. Because there was only a one in thirty-seven million chance that a randomly selected person's DNA would match, Raymond Easton was charged with burgling a house 200 miles from where he lived. However, after Easton, who had advanced Parkinson's disease and was unable even to drive a car, offered an alibi for the night in question, the DNA was eventually tested at four more loci. This more sophisticated test showed there was no DNA match after all. All charges were dropped.

Investigating Multiple SIDs Deaths

Question for the day:

If the number of multiple SIDS ("sudden infant death syndrome") deaths within single families within some large population is exactly what one would expect if chance alone governs the distribution of SIDS, should government authorities investigate for possible wrongdoing if the only thing they know is that there were, apparently, three SIDS deaths within a single family?

Further questions:

(i) Are three such deaths within a single family ever sufficient for a criminal conviction of a person who alone had access to the children when they died?

(ii) If not, would four deaths suffice?

(iii) If not, would five or ... n deaths ever suffice?

Dice, Probability, and Law

There is more to probability than dice and games of chance. Nonetheless, I think it is probably(!?) useful to use dice to introduce law students to some basic points about probability theory. I like to use a set of large "fair" dice. (Later I will perhaps post a [true!] story about my unsuccessful attempt to buy magnetized dice.) This Monday I will also try to use the nifty applet at the following web site to make several points: Introduction to Probability Models.

Magnetized dice would be a nice way to illustrate dependent probabilities.

Repeated rolls of dice (with, e.g., the applet mentioned above) can be used, I think, to show, by analogy, some of the problems that can arise with the use of statistics about the relative (in)frequency of SIDS to prove criminal guilt or, even, with the use of such statistics to justify "just" coercive investigation by the state.

A Timely Closing Argument

In a baby murder trial in which the baby finally died of suffocation, the prosecutor -- Michael D'Andrea -- "asked the jury to look at the clock while one minute ticked by -- the amount of time it would have taken [the baby] to suffocate. As the time elapsed, D'Andrea stared directly into [defendant's] face from across the defense table." Michaelangelo Conte, "Jury takes just three hours to convict mother's boyfriend in baby's death," The Jersey Journal pp. A1 & A10 (September 22, 2004).

I saw some fancy lawyering when I practiced law in Texas (many years ago). But New Jersey lawyers, it seems, have their own bags of tricks.

Some Gentle Readers out there can surely relate stories about similar forensic tricks they have seen; I doubt that Mr. D'Andrea is the first trial lawyer to ask a jury to literally watch a clock for 60 seconds or so. In civil litigation the best-known parallel, now generally frowned upon, is for plaintiff's counsel in a personal injury case to ask a jury to imagine how much suffering plaintiff must endure each second of his or her life, put a dollar value on each second's suffering, and then tote up all of those dollars and return a handsome verdict for plaintiff.

How Should We Think about a Person's Possible Recklessness?

What kind of a fact is "He was reckless"?

"Recklessness" is a concept.

But "He was reckless" is not merely a reformulation of the notion "recklessness."

"He was reckless" is an assertion that there is (or was) an instance of "recklessness."

We want grounds for thinking or asserting, "He was reckless."

We do need the concept, or notion, "recklessness."

But we also need something more.

What more?

The concept "recklessness" can be decomposed. In law it usually is decomposed.

Let's do so.

One legal definition of recklessness might run this way: "A person acts recklessly if he or she consciously disregards a substantial and unjustifiable risk." Cf. New York Penal Law § 120.25."A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person." Add the gloss: A person consciously disregards a risk only if he is consciously aware of the risk. Accord, e.g., Knapik v. Ashcroft, 2004 U.S. App. LEXIS 19445 (2nd Cir., Sept. 17, 2004) (noting that a federal agency concluded that a legal definition requiring conscious disregard of risk "requires an actual awareness of the risk created by the criminal violator's action"). So: assume that one of the ingredients, or elements, of "recklessness" is "conscious awareness"; i.e., one can be called "reckless" only if it can fairly be said that one is "consciously aware" of a risk of some kind.

When does one have an instance of "conscious awareness"?

One cannot indefinitely decompose a notion such as "recklessness."

But we (e.g., a jury) still must decide when to call a state of mind "conscious awareness" and when not to do so. We want to have the jury have grounds for doing so or not doing so.

Aha, evidence surely comes into play now!

"Awareness" -- or, in any event, some state of mind or consciousness -- may be reported by some person -- or there may be a report of a state of mind that suggests awareness: e.g., "It occurred to me that there was a risk of death"; "I heard him mutter, almost under his breath, that he realized there was a serious risk of serious harm."

We might take such a report as a signal.

We might even try to take the thing reported -- the state of mind reported by the reporter -- as a signal.

But if the report is taken as evidence rather than as an exemplar of a matter such as "awareness," ... hmmm ... then what?

Let's use this terminology:

m-1 = state of mind
m-1* = report of a state of mind
A = conscious awareness

If we are to think frequentistically and along Bayesian lines, and if we are therefore to think p(m|A) over p(m|~A), i.e., h/f; we must somehow, in some way, separate m and A: we cannot think of instances of m as being, pro tanto, instances of A; instances or states of m must be distinct from A, nicht wahr? And if that's the way things go when we think frequentistically, perhaps that's also the way things (our thought) must go if we think probabilistically.

But what if we do see A in m -- what if we [already] see A in m and what if we wish to figure out how much of A we should see in m? [Is this a coherent way of thinking?]

Consider a reporter. Suppose the reporter is also the actor; i.e., we wish to know if the reporter was "consciously aware" of a risk. The reporter may be one of our sources of information about his awareness. The reporter must decide what to tell us. How does the reporter decide what to report?

It is possible -- no? -- that the reporter will reason with himself (before reporting), "How much did my state of mind partake of awareness? How much did it have that quality?"

Here our focus is on the reporter's -- i.e., the witness' -- actual belief about his own mental state or condition. We can ponder later how & whether the reporter decides to report what he [thinks he] believes about his mental state or states.

Or is this possibility impossible? Must the reporter believe, "Either I was aware or not aware of a risk. I must decide which, on balance, I more probably was".?

Or can the reporter think, "It's not a question of one or the other. It's a question of the degree to which I was aware, of the degree to which I had conscious awareness. In most instances, even with complete information, I will not be able to say, with fidelity, that either I had conscious awareness or that I didn't have it. The most accurate way for me to report the state of my awareness is for me to report my belief about how much awareness I had."

By posing this thought-experiment involving a reporter-actor ruminating about the form of his report of his own mental processes, I [Peter Tillers] am not ruling out a probans separate from the probandum: I am not saying that evidence in the [modern] classic sense is useless when the matter in issue is some mental state or process. For example, even if I am a reporter-actor I may want to have some evidence of the occurrence or non-occurrence of some thoughts or notions inside my head at some earlier time -- because, for example, my memory may be frail and I may not remember what I thought or felt at some earlier time; I might want, therefore, to look at my diary if I have one. Similarly, an outside observer -- a trier of fact, a jury, for example -- may have to decide whether to believe that a reporter, a witness, is attempting or not attempting to tell the truth as the reporter sees it. In these situations the only question is not how someone should characterize the thoughts and feelings that are thought to have occurred in someone's head, or brain.

*** Why do fuzzy predicates (sometimes) work? Why do fuzzily-measured linguistic variables work? For example, why are they sometimes great as instruments of control? Compare Judea Pearl's approach, which emphasizes that any understanding that intervenes in the world must be an understanding that sees the causal connections among events -- and, for that reason principally, evidence must consist of events that have a discernible causal connection with the matters or hypotheses in issue? There is none of that in Zadeh's version of fuzzy sets. We control the world by working with it at a kind of surface level!

*** Where do we go from here? What is the issue?

Perhaps there are three basic forms of evidence (or signs):

(i) an element is a sign or evidence because it stands in a discernible causal relationship or relationships to pertinent hypotheses;

(ii) an element functions as evidence because it is associated with pertinent hypotheses in some fashion; and

(iii) an event or state serves as a sign of a hypothesis because the event or state partakes or seems to partake of a possible defined state -- and here an event is not so much "evidence" as it is a condition that absorbs or gathers the status of some hypothetical state to some degree, and the thinking or perception here is quasi-Platonic, with the proviso that in Zadeh's world one thinks of events as having varying amounts, or partaking in varying degrees, in names and concepts rather than in being.

This third line of thinking, if it is not entirely absurd, necessarily leads to another category of questions, a category that Zadeh explores (though how successfully for my purposes -- for an understanding of law's reasonings -- I cannot yet tell): we now wish to know to what extent we can reason about our sense of how far an event or set of events -- e.g., "mental states" -- partakes in a concept such as "awareness." Is the judgment about awareness akin to a primitive and irreducible perception -- or is the judgment about a matter such as "awareness" in some (fuzzy) sense an "inference," albeit a fuzzy inference? For example, perhaps the judgments about (degrees of)awareness are and ought to be influenced by matters such as the duration of certain kinds of mental processes and the amount of feeling that accompanied some mental state or states.

But if we are to pursue this kind of inquiry -- and where it will lead I do not know -- it is crucial to play a certain mental trick. The trick is to recognize that a relationship R between events such m and possible states such as A is not always to be resolved by further analysis or elaboration of a concept or notion such as A, "conscious awareness." If we are to think in a Zadeh-like fashion about the implications of E (some item of evidence) for the degree to which m (some mental process) is A (conscious awareness), it is crucial to keep in mind that the appropriateness of seeing some m in A and the question of the extent to which m should be thought to be in A are not exhaustively specified by the definition of A; we must assume that factors outside of A, so to speak, influence the degree of m's membership in A.

But if any of this makes sense, what could a fuzzy analysis of legal reasoning and factual inference in legal settings accomplish? This is a very big question. Perhaps fuzzy analysis would have predictive value. See the work by L. Philipps. But perhaps the theory of fuzzy sets in this connection (factfinding in law) could also serve to reassure us that the way that we generally expect to resolve issues such as "D's recklessness vel non" or "D's conscious awareness vel non" is not irrational.

Consider this specimen phenomenon and problem:

Walter Witness believes and reports: "The thought that my car might skid flitted through my mind. The thought gripped me, but, as I said, it only flitted through my mind. I had other things on my mind, mainly my wife's illness and my bad day at the office. They were in the forefront of my thinking, I was preoccupied with those things."

How should we decide and how do we decide whether or not and to what extent Walter was reckless and consciously aware of a risk that his car might skid? *** Reference material:

Knapik v. Ashcroft, 2004 U.S. App. LEXIS 19445 (2nd Cir., Sept. 17, 2004) (Review of order for deportation of a lawful permanent resident; defendant pled guilty to the crime of attempted reckless endangerment; Knapnik's plea and conviction arose from "an incident in which, while intoxicated, Knapik drove at an excessive rate of speed against the flow of traffic on the Staten Island Expressway"; the question on appeal was whether defendant's conviction was a conviction of a crime of "moral turpitude"; New York statute defined reckless endangerment thus: "A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person."; the court noted that in an earlier and different proceeding involving Illinois law, the BIA found persuasive that under Illinois law a "person acting recklessly must consciously disregard a substantial and unjustifiable risk, and such disregard must constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation. This definition of recklessness requires an actual awareness of the risk created by the criminal violator's action."; the court of appeals further observed that "the BIA [Board of Immigration Appeals] limits moral turpitude to crimes in which a defendant consciously disregards a substantial risk of serious harm or death to another"; but appellant was convicted of attempted reckless endangerment, and the federal court of appeals held that the concept of attempted reckless endangerment is "nonsensical" -- because, it reasoned, a reckless act is unintentional and one cannot intend to commit an unintentional act -- and that a conviction for such a crime with such oxymoronic elements does not support the conclusion that every person convicted of such a "nonexistent" crime was convicted of a crime of "moral turpitude").

A Unified Theory of Uncertainty?

Lotfi Zadeh, Abstract of "Toward a Unified Theory of Uncertainty," a lecture presented at the International Conference on Information Processing and Management of Uncertainty, Perugia, Italy, July 4-7, 2004:

In science, and especially within [the] probability community, it is an almost universally held view that probability theory is the theory of uncertainty, and that no other theory of uncertainty is needed. ...

...

What is proposed here is what may be called a unified theory of uncertainty, or UTU, for short. In this theory, the point of departure is the concept of partiality--a concept which has a position of centrality in human cognition. Thus, in human cognition almost everything is partial, that is, is a matter of degree. For example, we have partial knowledge, partial understanding, partial truth, partial certainty, partial possibility, partial belief, partial causality, partial information, partial preference, partial independence and partial satisfaction. In the unified theory of uncertainty, there are three partialities that stand out in importance, (a) partiality of certainty (likelihood); partiality of truth (verity); and (c) partiality of possibility.

Lotfi Zadeh, "Toward a Unified Theory of Uncertainty--from PT to UTU," PowerPoint Version of lecture presented at Perugia, Italy, July 4, 2004, at p. 159:

The range of application-areas of fuzzy logic is too wide for exhaustive listing. Following is a partial list of existing application-areas in which there is a risk of substantial activity.

1. Industrial control
2. Quality control
3. Elevator control and scheduling
4. Train control
5. Traffic control
6. Loading crane control
7. Reactor control
....
20. Assessment of credit-worthiness
21. Fraud detection
...
23. Pattern classification
...
34. Internet
35. Library and Information science

Blurb by John P. Burgess on back of Susan Haack, Deviant Logic, Fuzzy Logic (U. Chicago Press, 2nd ed., 1996): "Given the amount of media hype 'fuzzy logic' has received, I am pleased by how informatively and entertainingly Dr. Haack writes in debunking it."

Susan Haack, "Do We Need Fuzzy Logic," in Susan Haack, Deviant Logic, Fuzzy Logic 233 (U. Chicago Press, 2nd ed., 1996): "I also want to raise a question: which of the many applications claimed to the credit of fuzzy logic are in fact applications of the base logics [which, she argues, are not part of fuzzy logic], and which of the more radical systems? It would require a more thorough search of the literature than I have been able to undertake to settle the issue; but I should expect, if my criticisms of fuzzy logic are correct, to find that it is the base logics that have been given practical applications."

Stephen Wolfram, A New Kind of Science 1175 (2002): "The idea of intermediate truth values has been discussed intermittently ever since antiquity. Often--as in the work of George Boole in 1847--a continuum of values between 0 and 1 are taken to represent probabilities of events, and this is the basis for the field of fuzzy logic popular since the 1980s."

Joseph Y. Halpern, Reasoning about Uncertainty Section 2.5 at pp. 40, 42-43 (2003):

Possibility measures are yet another approach to assigning numbers to sets. They are based on ideas of fuzzy logic. Suppose for simplicity that W, the set of worlds, is finite and that all sets are measurable. A possibility measure Poss associates with each subset of W a number in [0, 1] and satisfies the following three properties:

Poss1. Poss ([symbol for null set])= 0.

Poss2. Poss(W) = 1.

Poss3. Poss(U v V) = max(Poss(U), Poss(V) if U and V are disjoint.

...

...Perhaps the most common interpretation given to possibility and necessity is that they capture, not a degree of likelihood, but a (subjective) degree of uncertainty regarding the truth of a statement. This is viewed as being particularly appropriate for vague statements such as "John is tall." Two issues must be considered when deciding on the degree of uncertainty appropriate for such a statement. First, there might be uncertainty about John's actual height. But even if an agent knows that John is 1.78 meters tall ..., he might still be uncertain about the truth of the statement "John is tall."

Criminal Evidence Redux

I repeat the following recommendation to prevent it from being buried in a blizzard of blogs:

If you are interested in the UK way of proving and disproving criminal guilt, you must purchase this book:

Paul Roberts & Adrian Zuckerman, Criminal Evidence (2004), 712 pages, Oxford University Press.

This tome is not merely erudite. It is also well written.

Is a Criminal Defendant's Off-the-Stand Courtroom Demeanor Irrelevant?

Bryant v. Maryland, 129 Md. App. 150; 741 A.2d 495 (1999) (murder trial; defendant did not testify):

During closing argument prosecutor said,

There is so much evidence that corroborates what [the prosecution's witness] told you. When I spoke about her demeanor when she testified, and how she answered [defense counsel's] questions, did you notice the defendant's demeanor when she testified, the way he kept looking down and couldn't look at her? She looked in his eyes several times.

...

... You observed that, members of the jury, you were sitting here. We all saw it. He couldn't sit up and look her in the eye because he knew she was telling the truth. He knew she was telling the truth.

The Maryland Court of Special Appeals said:

Argument that asks the jury to consider the demeanor of a witness when testifying is proper and is consistent with the jury instruction given in this case to consider "the witness's behavior on the stand and way of testifying; did the witness appear to be telling the truth." Argument that comments on the courtroom demeanor of a defendant who elects not to testify is a different matter. Courts that have considered this question have reached different conclusions about when, if ever, comment on a defendant's courtroom demeanor is proper. In State v. Rivera, 602 A.2d 775, 253 N.J. Super. 598, (1992), the court held that when a defendant engages in "testimonial behavior before a jury" by injecting unsworn comments into a trial by word, gestures, display of emotion, or other demeanor intended to influence the jury, the prosecutor may, with advance approval of the court and the making of a record of the defendant's conduct, make a limited argument noting the fact of the behavior and that the comment or demeanor should not be considered by the jury. The court further stated, however, a prosecutor may not comment upon the failure of a defendant to act in a particular way during a trial. Id. at 777. See also State v. Johnson, 576 A.2d 834, 851-52, 120 N.J. 263 (1990) (improper for prosecution to argue that defendant failed to make eye contact with jurors during trial.)

...

The Supreme Court of Delaware, in Hughes v. State, 437 A.2d 559 (Del. Supr. 1981), held improper the prosecutor's comments that characterized a non-testifying defendant's courtroom demeanor as unemotional, unfeeling, and without remorse.

In our view, the courtroom demeanor of a defendant who has not testified is irrelevant. His demeanor has not been entered into evidence and, therefore, comment is beyond the scope of legitimate summary. ... Moreover the practice is pregnant with potential prejudice. A guilty verdict must be based upon the evidence and the reasonable inferences therefrom, not on an irrational response which may be triggered if the prosecution unfairly strikes an emotion in the jury.

437 A.2d at 572. See also Pope v. Wainwright, 496 So. 2d 798, 802 (Fla. 1986) (comments on a defendant's demeanor off the witness stand clearly improper); Blue v. State, 674 So. 2d 1184, 1213-15 (Miss. 1996) (error for prosecutor to comment on non-testifying defendant's demeanor and appearance during trial); People v. Garcia, 160 Cal. App. 3d 82, 206 Cal. Rptr. 468, 472-75 (Cal. App. 1984) (prosecutor's references to defendant's courtroom behavior was improper).

On the other hand, the Supreme Judicial Court of Massachusetts has held that a prosecutor's comment on the defendant's squirming, smirking, and laughing during trial was fair comment and in context did not suggest that the prosecutor had knowledge the jury did not share. Commonwealth v. Smith, 387 Mass. 900, 444 N.E.2d 374, 380 (Mass. 1983). That court has said, however, that a suggestion by the prosecutor that normal courtroom behavior betrays consciousness of guilt is improper. Commonwealth v. Valliere, 366 Mass. 479, 321 N.E.2d 625, 635 (Mass. 1974). And, see Commonwealth v. Pullum, 22 Mass. App. Ct. 485, 494 N.E.2d 1355, 1358 (Mass. App. 1986).

The Supreme Court of North Carolina found no error in a prosecutor's comments on the courtroom demeanor of the defendant, holding that such remarks were rooted in the evidence and that the demeanor of the defendant was before the jury at all times. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, 15 (N.C. 1987), cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406, 108 S. Ct. 467 (1987). See also State v. Myers, 299 N.C. 671, 263 S.E.2d 768, 773-74 (N.C. 1980); Wherry v. State, 402 So. 2d 1130, 1133 (Ala. Cr. App. 1981) (conduct of the accused or the accused's demeanor during the trial is a proper subject of comment, at least when insanity is raised as a defense).

...

Turning to the case before us, we conclude that the argument of the prosecutor concerning the alleged failure of this defendant to look at a witness and the inference of guilt that should be drawn from that conduct was improper. The trial judge therefore erred in failing to sustain the defendant's timely objection.

The defendant in this case did not testify, and the State's argument related only to this courtroom conduct. Nowhere in the record is there to be found any reference to the alleged conduct of the accused. The prosecutor was arguing a fact not in evidence, and compounding that by adding her personal assurance that the alleged conduct occurred by saying, "We all saw it." n2 [footnote omitted] The argument related to conduct of the accused that was entirely passive -- his alleged failure to "look [the witness] in the eye." The argument was not, therefore, a comment on intentional conduct of an accused calculated to influence the jury. Moreover, the prosecutor argued her conclusion that the defendant's failure to "look her in the eye" was evidence of guilt -- "He knew she was telling the truth." -- a questionable inference at best. There may be any number of reasons why a defendant will not fix his or her gaze upon a witness, including a possible earlier instruction by defense counsel to avoid any possible implication that the defendant is attempting to intimidate or "stare down" a witness. The prosecutor should have focused on evidence that was before the jury, which may include fair comment on the demeanor of witnesses while they are on the stand, but which will ordinarily not include comments on the courtroom demeanor of the defendant.

In Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974), the Court of Appeals noted that counsel may "make any comment or argument that is warranted by the evidence proved or inferences therefrom" and that the prosecutor is free "to comment legitimately and to speak fully, although harshly, on the accused's action and conduct if the evidence supports his comments . . . ." Id. at 412. We do not understand this statement ordinarily to condone comments of the prosecutor on the passive courtroom demeanor of a non-testifying defendant. ...

The Laughter of Non-Testifying Criminal Defendants

United States v. Schuler, 813 F.2d 978 (9th Cir., 1987):

The prosecutor's comment in closing argument on Schuler's laughter during testimony about the threats Schuler made presents procedural and substantive questions. The procedural difficulty derives from the fact that there is nothing in the record indicating that the laughter did occur, although Schuler nowhere objects that it did not. It is very difficult for an appellate court to review an issue that is not grounded in the record. If counsel considers such an outbreak to be significant, he or she should ask the trial court to have it included in the record.

Assuming that the laughter did occur, we are faced with the substantive issue whether the failure to exclude the prosecutor's reference to Schuler's courtroom behavior constituted reversible error. This issue involves several facets, including whether such remarks (1) introduce character evidence solely to prove guilt, (2) violate a defendant's fifth amendment right not to be convicted except on the basis of evidence adduced at trial, and (3) violate fifth amendment rights by indirectly commenting on a defendant's failure to testify at trial. ...

The Ninth Circuit has not ruled whether it is error to permit a prosecutor to comment on a defendant's courtroom behavior. Several other circuits, however, have held that such comment is reversible error and we find the rationale of those cases compelling. n1

n1 Two circuits have rejected a challenge to a prosecutor's comments on the expressionless courtroom demeanor of a defendant in a habeas corpus context. See Borodine v. Douzanis, 592 F.2d 1202, 1210-11 (1st Cir. 1979); Bishop v. Wainwright, 511 F.2d 664, 668 (5th Cir. 1975), cert. denied, 425 U.S. 980, 96 S. Ct. 2186, 48 L. Ed. 2d 806 (1976). Both cases perceived the major issue to be whether such comments necessarily reflected on the defendant's failure to take the witness stand and both concluded that the comments did not necessarily allude to the failure to testify. We do not disagree with that specific holding. We do not accept, however, any broader implication from those cases that references to a non-testifying defendant's demeanor or behavior present no constitutional issue.

Federal Rule of Evidence 404(a) prohibits the introduction of evidence of the character of the accused solely to prove guilt. The prosecutor's remarks in effect did this by suggesting to the jury that Schuler's laughter was relevant apparently for the purpose of showing that he was of bad character because he considered the charges of threatening the life of the President to be a joke. ... While the offense of threatening the life of the President requires proof of a "knowing and willful" act, 18 U.S.C. § 871, and to that extent involves proof of Schuler's mental state, his laughter at trial could not have any relevancy for that purpose. n2 His courtroom behavior off the witness stand was legally irrelevant to the question of his guilt of the crime charged.

n2 Insanity was not an issue at the trial. There are appropriate legal proceedings for restraining mentally ill individuals who are a danger to others. If Schuler was, at the time of trial, a danger to the President or others, California law provides for evaluation and involuntary commitment of individuals who constitute a danger to themselves or others. See Cal. Welf. & Inst. Code § 5150 (West 1984).

The District of Columbia Circuit, when faced with a similar situation, reversed the conviction based in part on the prosecutor's reference to the defendant's courtroom behavior and the district court's refusal to instruct the jury that such behavior must not be considered. United States v. Wright, 160 U.S. App. D.C. 57, 489 F.2d 1181 (D.C. Cir. 1973). The court stated:

Unless and until the accused puts his character at issue by giving evidence of his good character or by taking the stand and raising an issue as to his credibility, the prosecutor is forbidden to introduce evidence of the bad character of the accused simply to prove that he is a bad man likely to engage in criminal conduct. . . .

This basic principle cannot be circumvented by allowing the prosecutor to comment on the character of the accused as evidenced by his courtroom behavior. That the jury witnesses the courtroom behavior in any event does not make it proper for the prosecutor to tell them, with the court's approval, that they may consider it as evidence of guilt.

Id. at 1186 (citations omitted). We agree that such comments are improper. ...

We also conclude that, in the absence of a curative instruction from the court, a prosecutor's comment on a defendant's off-the-stand behavior constitutes a violation of the due process clause of the fifth amendment. That clause encompasses the right not to be convicted except on the basis of evidence adduced at trial. The Supreme Court has declared that "one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds . . . not adduced as proof at trial." Taylor v. Kentucky, 436 U.S. 478, 485, 56 L. Ed. 2d 468, 98 S. Ct. 1930 (1978). We have recognized that a prosecutor may not seek to obtain a conviction by going beyond the admissible evidence. See United States v. Schindler, 614 F.2d 227, 228 (9th Cir. 1980). The Eleventh Circuit in United States v. Pearson, 746 F.2d 787 (11th Cir. 1984), was confronted with a prosecutor's closing argument commenting on the defendant's behavior off the witness stand, as follows:

Does it sound to you like he was afraid? You saw him sitting there in the trial. Did you see his leg going up and down? He is nervous. (Appellant's objection overruled) You saw how nervous he was sitting there. Do you think he is afraid?

Id. at 796. The court found such comments were reversible error, adding that

in overruling [the defendant's] objection and in failing to give a curative instruction, the court, in effect, gave the jury an incorrect impression that [the defendant's] behavior off the witness stand was evidence in this instance, upon which the prosecutor was free to comment.

Id. We agree with the holding of the Eleventh Circuit that such comments in the absence of a curative instruction, constitute a deprivation of the fifth amendment right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 684-85, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Estell v. Williams, 425 U.S. 501, 503, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976). n3

n3 The dissent, to support its position that a defendant's courtroom demeanor is evidence, relies principally on cases where the defendant took the stand. ... When a defendant chooses to testify, a jury must necessarily consider the credibility of the defendant. In this circumstance, courtroom demeanor has been allowed as one factor to be taken into consideration. The dissent has also referred to a case involving a judge's observation of a defendant's demeanor during the sentencing phase of trial. ... At this stage different considerations, including general character, are relevant. The above examples obviously contrast with the present situation where the defendant in the trial phase asserted his right not to testify and where neither his credibility nor his character were relevant considerations.

In addition, prosecutorial comment on a defendant's non-testimonial behavior may impinge on that defendant's fifth amendment right not to testify. We do not accept Schuler's contention that such comments in every case violate the right to remain silent because jurors would naturally take them to be comments on the failure of the accused to testify. ... In fact, we doubt that jurors would construe the prosecutor's comment on Schuler's laughter as referring to his failure to testify. We are concerned, however, that such statements by the prosecutor during trial, or the fear of such statements in closing argument, will tend to eviscerate the right to remain silent by forcing the defendant to take the stand in reaction to or in contemplation of the prosecutor's comments. In effect the defendant would be compelled to testify to explain any actual or possible behavior that the prosecutor might bring to the jury's attention. While this pressure to testify may well be the exception, there is no reason for use of such comments that would justify even a slight opening of the door to an invasion of constitutional rights.

...

When, as here, the prosecutor describes the courtroom behavior of a defendant who has not testified, and then goes on to tell the jury that it may consider that behavior as evidence of guilt, the prosecutor violates those rights.

Hall, J., dissenting:

The majority holds today that a prosecutor's comment in closing argument on the defendant's laughter during the testimony of other witnesses is reversible error. Because I believe that the courtroom demeanor of the defendant in this case is evidence that the jury could properly consider, I respectfully dissent from Section II.A of the majority's opinion.

I

The principle that a defendant's courtroom demeanor is evidence is well-settled. In Russell v. United States, 288 F.2d 520 (9th Cir. 1961), cert. denied, 371 U.S. 926, 83 S. Ct. 296, 9 L. Ed. 2d 234 (1962), this court observed that a trial court is in a much better position than an appellate court to determine whether the evidence in a particular case warrants a new trial. We noted that

the trial judge can see in the conduct and demeanor of one who testifies (or even in the conduct and demeanor of defendants who never take the witness stand, as the defendants did not here) a thousand and one matters impossible for a reviewing court to glean from a printed page.

Id. at 522. Likewise, in Reagan v. United States, 157 U.S. 301, 39 L. Ed. 709, 15 S. Ct. 610 (1895), the Supreme Court quoted with approval instructions that specifically advised a jury to consider the defendant's "demeanor and conduct upon the witness stand and during the trial." Id. at 308 ... . n1 See also Waller v. United States, 179 F. 810, 812 (8th Cir. 1910).

n1 Unlike the defendant in Reagan, Schuler chose not to testify. However, the Russell case, like this case, involved a non-testifying defendant. This court held that the demeanor of such a non-testifying defendant was relevant evidence.

Sound policy reasons exist for allowing a jury to consider the courtroom demeanor of a defendant. As Wigmore noted: "It is as unwise to attempt the impossible as it is impolitic to conduct trials upon a fiction; and the attempt to force a jury to become mentally blind to the behavior of the accused sitting before them involves both an impossibility in practice and a fiction in theory." 2 J. Wigmore, Evidence § 274 (J. Chadbourn rev. ed. 1979). n2 Taken to its logical conclusion, the majority's opinion would require a court to instruct a jury to reach its verdict as if the accused had not been present before it.

n2 See also H. Underhill, Criminal Evidence § 125 n.9 (5th ed. 1956) ("Practically it is impossible to prevent jurors from observing the appearance and behavior of the accused very closely while he is in court during the trial. They will naturally draw inferences therefrom either favorable or unfavorable to him. The information thus obtained is evidence, and, doubtless, many a verdict has been determined thereby.").

The majority relies on United States v. Wright, 160 U.S. App. D.C. 57, 489 F.2d 1181 (D.C.Cir. 1973), United States v. Carroll, 678 F.2d 1208 (4th Cir. 1982), and United States v. Pearson, 746 F.2d 787 (11th Cir. 1984), for the proposition that it is reversible error for a prosecutor to comment on a defendant's courtroom behavior. To the extent that these cases stand for the broad principle that a defendant's courtroom demeanor is never relevant evidence, I believe they were incorrectly decided. However, a careful reading of the cases demonstrates that they are simply restating the standard contained in Fed. R. Evid. 404(a), namely, that "evidence of a person's character . . . is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion."

In Wright, the defendant was charged with bank robbery. During his closing argument, the prosecutor commented on the defendant's unruly courtroom behavior. The District of Columbia Circuit held that the defendant's behavior off the witness stand was not "legally relevant to the question of his guilt or innocence of the crime charged." 489 F.2d at 1186 ... . Similarly, in Carroll, a bank robbery case, the prosecutor commented on the fact that the defendant had examined bank surveillance photographs with his attorney during trial. The Fourth Circuit held that a defendant's courtroom demeanor could not be introduced "solely to prove guilt." 678 F.2d at 1210 ... . n3 Finally, in Pearson, the defendant was charged with possessing an unregistered silencer and possessing a silencer without a serial number. In closing argument, the prosecutor commented on the defendant's nervousness off the witness stand. The Eleventh Circuit held that "the defendant's behavior off the witness stand in this instance was not evidence subject to comment." 746 F.2d at 796 ... .

n3 The court in Carroll also relied on the fact that the prosecutor's comment violated both the defendant's right not to testify and his right to assist his counsel in his own defense. 678 F.2d at 1209. Neither of these factors is present here. The majority concedes it is doubtful that the jurors construed the prosecutor's comment on Schuler's laughter as referring to his failure to testify. Moreover, it is obvious that Schuler's laughter was not an attempt to assist his counsel in his own defense.

The majority incorrectly assumes that Schuler's laughter is evidence of his character offered solely to prove guilt. In fact, Schuler's laughter is relevant to another material issue in the case, Schuler's mental state. As such, the laughter is admissible under Fed. R. Evid. 404(b). n4 Cf. Commonwealth v. Louraine, 390 Mass. 28, 34, 453 N.E.2d 437, 442 (1983) ("It is an established and universally accepted rule that, when a defendant's sanity is at issue, the trier of fact is entitled to consider the defendant's demeanor in court.").

n4 Fed. R. Evid. 404(b) provides as follows ... :

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed. R. Evid. 404(b) provides for the admission of other acts of the defendant in order to prove that he had the requisite intent for a crime. In this case, Schuler's intent at the time of the alleged threat was at issue; the defense asserted that Schuler's remark was an expression of anger at law enforcement personnel and not a serious threat to the President. Schuler's behavior in the courtroom was relevant evidence on the issue of intent and, hence, was admissible under Fed. R. Evid. 404(b).

The Ninth Circuit has consistently upheld the admission into evidence of other acts of a defendant where, as here, that defendant's mental state is at issue. For example, in United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 56 L. Ed. 2d 90, 98 S. Ct. 1656 (1978), this court affirmed the conviction of Patricia Hearst for robbing a bank in San Francisco. At trial, the defense claimed that Hearst was acting under duress at the time she committed the robbery. The trial court admitted evidence of subsequent criminal activities of the defendant in Los Angeles which undercut the defense. This court upheld the admission of the evidence under Fed. R. Evid. 404(b), noting that

appellant's state of mind during the San Francisco robbery was the central issue in the case. State of mind is usually difficult to prove, and the evidence on the issue was sharply divided. The timing and other circumstances of the Los Angeles incidents made evidence of them highly probative on this critical issue.

563 F.2d at 1337.

Likewise, in United States v. McCollum, 732 F.2d 1419 (9th Cir.), cert. denied, 469 U.S. 920, 83 L. Ed. 2d 236, 105 S. Ct. 301 (1984), this court affirmed the conviction of the defendant for bank robbery. At trial, the defense claimed that the defendant was acting under hypnosis at the time of the robbery. This court upheld the trial court's admission into evidence of a twelve year old conviction for armed robbery under Fed. R. Evid. 404(b): "Such a prior act can be probative of intent because the fact that the defendant had an unlawful intent at the time he committed the extrinsic offense makes it less likely that he had a lawful intent when he performed the acts charged as the present offense." 732 F.2d at 1424. We then proceeded to state the general rule of law as follows: "Where the mental state to be inferred from undisputed overt acts of a defendant is the crucial issue, evidence of past criminal acts has generally been found insufficiently prejudicial to warrant exclusion." Id. at 1425.

In this case, Schuler's bizarre behavior in the courtroom lends credence to the government's claim that his threat was indeed serious. Moreover, the admission of Schuler's laughter is certainly less prejudicial than the admission of the criminal acts in Hearst and McCollum. The trial court did not abuse its discretion in allowing the jury to consider Schuler's laughter. n5 [footnote omitted]

.

Courtroom Threat

Michaelangelo Conte, "Baby murder defendant threatens 'snitch' witness in court,"The New Jersey Journal A8 (Sept. 17, 2004):

Jurors were walking from the courtroom when Alvarado [the defendant in a murder trial] turned to prosecution witness Francisco Escribaro [a former cellmate of the the defendant], raised [Escribaro's] written statement in [defendant's] hand, and said, "I am going to make sure people in jail read this because you are a (expletive) snitch."

...

[Trial judge] Nelson told the jury that sometimes attorneys or other participants involved in a trial get excited or angry.

"If it happened in this trial and you heard it, you have to disregard it," he said. "Next week if it's still in the back of your mind, it can play no part in your decision. Everyone understand that?"

But cf. United States v. Mickens et al., 926 F.2d 1323 (2nd Cir. 1991)(held, admission of defendant's courtroom threat against former attorney was not error):

Defendant-appellant Mickens challenges the district court's decision to permit Mickens' former attorney to testify that Mickens had made a hand gesture in the shape of a gun as the former attorney entered the courtroom to testify. Mickens argues that this testimony lacked probative value and that the former attorney's testimony that Mickens had pointed at the court, not at the attorney, was unduly prejudicial. This challenge lacks merit.

...

[T]he standards for admission of Rule 404(b) evidence were satisfied. The testimony about the hand gesture was not offered to prove Mickens' bad character or criminal propensity, but rather to prove his consciousness of guilt. ... The testimony was relevant since an effort to intimidate a key prosecution witness was probative of Mickens' state of mind. ...

Capturing the Friedmans

After many months of trying, I finally made myself watch Capturing the Friedmans. The film was less depressing than I thought it would be -- largely because of Jesse (sp?) Friedman's sense of humor and seeming optimism, even after serving thirteen years in prison.

Do I know if J. Friedman is guilty or innocent?

No.

But I confess I was taken aback by the male police officer's account of the proper way -- he thinks or thought -- of approaching a family that has a child that the investigating police officer thinks has been molested. (You must tell them, he said, in effect, "We know your child has been molested.") I wonder: has this police officer changed his mind? (I have the feeling he hasn't. But I think he may now be a retiree.)

In several weeks the Association of the Bar of the City of New York is running a conference or symposium about the film, and some of the principals involved both in the main story and in the making of the film will be there. I will go to the conference and listen -- and then I will report my impressions on these pages.

Australian Wisdom on Evidence

We Americans (U.S. North Americans, I mean) are too provincial. I also recommend:

Andrew Ligertwood, Australian Evidence, Butterworths.

I have the third edition -- 1998, 678 pages -- at hand. I particularly like the way the book introduces the subject. The first chapter is "The Fundamental Principles." The second chapter is called "The Trial Process." A bit of logic -- a very nice introduction & summary --, and then a bit of procedural context. Very nice!

The titles of other chapters (in this very professional book) also appeal to the foreign observer of the Australian system: Chapter 5, "The Adversary Context"; Chapter 6, "Party Presentation and Prosecution"; and, Chapter 7, "The Testimonial Emphasis."

Criminal Evidence in the United Kingdom

If you are interested in the UK way of proving and disproving criminal guilt, you must purchase this book:

Paul Roberts & Adrian Zuckerman, Criminal Evidence (2004), 712 pages, Oxford University Press.

This tome is not merely erudite. It is also well written.

Postscript: How can evidence be criminal?

Spirited Jury Deliberations

NYTimes, story by Michael Wilson, Section B1 (Sept. 16, 2004):

...Juror No. 4 took the stand and admitted he had filled his 16-ounce Poland Spring bottle, half with vodka, half with water, nipping at it during the four hours of deliberation .... He had drained two-thirds of the bottle during deliberations, and after the verdict was read he took a last "big swig" ....

...

Yesterday, Justice Ellen M. Coin of State Supreme Court in Manhattan issued her ruling: the verdict [against a firefighter accused of stealing at Gound Zero] should stand.

Justice Coin apparently adhered to the traditional rule that evidence of outside influences is admissible to "impeach" a jury verdict but, following considerable precedent, she also concluded that this exception did not apply. She was clearly on the button: spirits are a classic example of internal influence.

[... twitter, twitter ...{hint, hint: joke, joke}]

BTW: a Delaware court's reasoning [quoted by the NYTimes reporter] has a has a kind of probabilistic twinge: "Juror ... intoxication does not necessarily equal bias against the accused." Theory: alcoholic spirits are a bit like a coins or dice: drunken jurors are not prejudiced against or for criminal defendants. This is because, we must assume, the besotted brained of a besotted juror is not influenced, one way or another, by the status of a person as a criminal defendant.

Do We Agree about Bush's Swagger?

Justice Potter Stewart famously once said that he knew pornography when he saw it. Stewart's claim has drawn scorn and ridicule from legal scholars for decades.

But consider this: Bush does literally swagger. And I don't like his swaggering.

But my principal objective now is not to express my personal feelings about Bush's swaggering. Instead, now I want to emphasize the following point:

Although I cannot define or describe swagger, I think I know swagger when I see it -- and I bet you do too; to wit, I bet that many of us would use "swagger" in much the same way, that many of us would agree when swaggering is occurring and when it is not.

If I am right about the workings of "swagger" in American English, it follows that at least some words that many of us cannot readily define sometimes serve as useful or meaningful references -- interpersonally consistent references -- to phenomena in the world. Q.E.D.: We don't always need definitions of words to make words useful or meaningful.

But: People who want to create computers or programs that mimic human behavior don't have the luxury of leaving referring words or concepts (such as "swagger") undefined: if it is to emulate human behavior, the computer or program must be instructed on how or when to use "swagger."

Therefore?

Crimes upon Crimes upon Crimes

White House spokesman Scott McClellan called the killing of children by Chechen fighters a "barbaric terrorist act." He added, "The responsibility for the tragic loss of life rests with the terrorists."

The killing of children by Chechnya fighters, or terrorists, is a terrible crime.

Stalin's 1944 deportation of almost the entire population of Chechnya was a great crime.

Many crimes were apparently committed in the 1999 Russian war against Chechnya. See Yuri N. Maltsev, "Russia's War on Chechnya" (October 28, 2002).

See also Jackson Diehl, "Chechnya Discounted," Washington Post (June 11, 2001) ("What officialdom in Moscow and Washington alike don't want to hear is that the campaign by the Russian military and police against Chechnya's separatists has degenerated into a full-fledged dirty war, complete with disappearances, mass graves, systematic torture and summary execution of civilians. In its scale and ferocity, it far exceeds the campaign Serbian leader Slobodan Milosevic waged against the Albanians of Kosovo before NATO intervention; in the stunning impunity of its state-sponsored brutality, it is like the Latin American dirty wars of the 1970s.")

Old crimes almost never justify new crimes. But old crimes should not be forgotten -- particularly not if the old crimes amount to or verge on genocide. See Lindsey Hilsum, "The conflict the west always ignores," New Statesman Special Report (Jan. 26, 2004)

Do massive human rights violations matter only when they are committed by Saddam Hussein?

Law School Nightmare

You are having a nightmare. You are dreaming that you are you are taking a law school exam. You are told to identify and discuss in depth just several of the many issues presented by the lengthy set of facts found below. Your have lots of time -- two hours -- to write your answer. Do so.

Exam Question
David Defendant is indicted for robbery and sexual assault (rape). This criminal case proceeds to trial in a court of the State of Blackacre.

Judge Major Wisdom is the presiding judge. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

At trial the prosecution opens and closes its case-in-chief with the testimony of Pattie Parsons. Pattie testifies that David robbed and raped her in her apartment on April 1, 2004.

After Pattie's testimony, defense counsel makes the following opening statement:

Members of the jury, the evidence you have seen and that you will see shows one of two things: either Pattie Parsons agreed to have sexual intercourse with David Defendant and she agreed to let poor David take the money that she now claims David stole; or Pattie's alleged encounter with David on April 1, 2004, is imaginary rather than real. In either case, you must free David. Thank you.

Defense counsel then offers the following testimony by Astral Astronomer:

I am an astrophysicist. I am also a volunteer counselor for the Amber City chapter of the Young Women's Religious Association, YWRA. My job at YWRA is to provide faith-based personal counseling to any member of our YWRA chapter who wishes to consult me. I am not a member of the clergy and my job is not to provide spiritual advice. But my religious beliefs are the motivation for my work as a volunteer YWRA counselor.

I have been a counselor with YWRA for 10 years. I have no university training in counseling. Counseling is a craft rather than a science. I learned counseling on the job. I attended numerous YWRA training sessions over the years. These training sessions are conducted by fellow YWRA counseling volunteers. Indeed, no one actually “runs” these training sessions; they are a collaborative and cooperative effort: YWRA counselors train each other. Counselors in our chapter meet periodically – usually once a month – to discuss their cases. This is the way training has been done in our chapter for 50 years. Our chapter has offered counseling by volunteers for 50 years. And the training sessions have been part of the counseling program for 50 years. Thus, counseling skills have been passed down from generation to generation. And they have been honed by 50 years' collective experience. I am generally regarded as the best counselor in our YWRA chapter. Many of the people who have consulted me for advice and guidance have thanked me for my efforts to help them.

Pattie Parsons first came to see me in the evening of April 2, 2004. She didn't say anything about having been robbed and raped by David Defendant. She never did say anything to me about a rape or a robbery. But in later counseling sessions she did tell me that early in 2003 she had joined a small group that called itself Exalted Exultations. She told me that she first met David at about the same time; she said that David had joined the group shortly after she had.

As the counseling proceeded, Pattie described Exalted Exultations and its beliefs and its rituals. She said the 10 members of group spent most of their time on the streets. She also said that the group spent much of its time in chanting. Occasionally Pattie illustrated some of the chants for me. When she did this, she invariably fell into a trance-like state.

I have a lot of experience with quasi-religious cults and groups like Exalted Exultations. Groups of that sort prey on young women in this area. And Pattie's experience with Exalted Exultations is very similar to the sorts of experiences that other YWRA members have had with similar fringe cults in this area. When Pattie went into her trances, she effectively became a zombie. Her mind and soul were seeded with perverse thoughts. I don't know what happened on April 1, 2004. But I do know that the encounter that she described at the trial might well be an event that her zombie-like brain wanted or just imagined.

The prosecution vigorously objects to the proposed testimony by Astral Astronomer. Judge Wisdom responds, “We need to take a recess for an hour or two so that I can consider the admissibility of Astronomer's testimony.” Judge Wisdom then turns to you and says, “Diligent, I want you to write a memo for me. I want your memo in my hands in two hours or less. Tell me if the proposed testimony by Astral Astronomer is admissible or inadmissible and tell me why. Make your memo clear. Make your memo concise. Dear Diligent, as you know, I've got a lot of cases on my calendar. I don't have either the time or the inclination to slog through either a jumbled memo or a long one. Are we on the same page?”

Please write the memorandum.

***
Postscript: Should legal education be reformed so that law students do not have to suffer the indignity of taking traditional exams? For example, instead of being required to answer exam questions in, say, two hours, should law students always be required to write research papers, briefs, or memos?

My experience is that the majority of law students prefer to take traditional exams rather than write research papers. But perhaps this attitude by the consumers of legal education is an insufficient reason for not shifting to testing methods that emphasize research and writing.

Cipel's Possible Civil Action against McGreevey for Sexual Harassment, and Rape Shield Laws

The language of New Jersey's rape shield law suggests that New Jersey's rape shield law applies only in criminal cases. (However, I have done no research to see if New Jersey courts have stretched the letter or extended the spirit of the New Jersey rape shield law.)

The federal rape shield law, however, can apply in civil actions as well in criminal actions. (More precisely stated: a watered down version of the federal rape shield law can apply in some federal civil actions. See Federal Rule of Evidence 412(b)(2).)

The existence of a rape shield law is immaterial to my Cipel-McGreevey hypo if another rule of evidence -- such as the sort of character evidence rule that is codified by Federal Rule of Evidence 404 -- bars evidence of Cipel's non-gay character. To conclude otherwise one would have to say that an applicable rape shield law could expand the range of evidence admissible about a person or party such as Cipel. (This possibility exists; but it should be carefully considered.)

N.B. The federal rape shield law does not, by its literal terms, apply only to evidence offered against an alleged victim of sexual wrongdoing. For example, in a criminal action the federal rape shield law bars (subject to exceptions) "[e]vidence offered to prove any alleged victim's sexual predisposition." Federal Rule of Evidence 412(a)(2). So the federal rape shield law perhaps sometimes bars some evidence about an alleged victim of sexual wrongdoing even if both the prosecution (in a criminal trial) and the alleged victim would like to have evidence about the victim's sexual predisposition be admitted. That a rape shield law can perhaps work this way is a bit ironic -- since it is usually assumed that rape shield laws are designed to shield [alleged] victims.

A professional colleague (who I presume wishes to remain anonymous) called my attention to Lucado v. Maryland, 40 Md. App. 25, 389 A.2d 398, 1978 Md. App. LEXIS 243 (July 13, 1978). Although this opinion deals with a rape shield law that (at the time) applied only in criminal actions, the court's reasoning is interesting -- if not altogether persuasive. The issue (in this criminal trial for a "first degree sexual offense" in the form of homosexual rape) was whether evidence of the alleged victim's non-homosexual inclinations was admissible. The Maryland rape shield law barred evidence about an alleged victim's "chastity." The Maryland court held that evidence about the absence of a homosexual disposition is not evidence relating to "chastity." The Maryland court, for example, said (footnotes omitted):

The words "chaste" and "chastity", and the concepts which they purport to describe, have had a more limited meaning and application in the legal or societal setting than the full range of definitions given by Webster would require. ... In the law, these terms have been traditionally used with particular reference to women; indeed, they have been associated with nearly every vestige of the different, and generally unequal, treatment of men and women by the law.

This sort of reasoning, even if valid today, does not easily extend to rape shield statutes that bar, not just evidence about a victim's "chastity," but also evidence about a victim's sexual "predisposition," sexual "disposition," or sexual "propensities."

N.B. It is unclear that the Maryland court had to reach the question of the effect of Maryland's rape shield law on the admissibility of evidence of the alleged rape victim's non-homosexual proclivities. In its statement of the facts the Maryland court said that defense counsel had offered evidence that suggested that the victim was a homosexual:

During cross-examination of [the victim], both defense counsel intimated, through their questioning, that [the victim] was a homosexual, that he initiated the sexual activity, and that he enjoyed what happened to him. [The victim] unequivocally denied such suggestions. That this would be the principal line of defense became clear when appellant testified on his own behalf. He admitted being on "the Block" with Linton on the evening in question, but claimed that [victim] initiated the conversation, voluntarily got into the car, and initiated the sexual contact -- first with Linton and then with appellant. All allegations of force, coercion, and brutality were denied, as were the explicit acts testified to by [the victim]. Appellant claimed that [the victim] had grabbed him -- "started messing around with me, and I pushed him away." The clear, unmistakable import of appellant's testimony was that [the victim] was homosexual and had initiated everything that occurred in the car. Linton, who also testified, gave essentially the same story; he also charged [the victim] with initiating all of the episodes of fellatio and attempted anal intercourse.

Common sense suggests that the prosecution should have been able to counter such initimations of the victim's homosexuality even if in the absence of such initimations such counterevidence would have been inadmissible (because of, e.g., Maryland's rape shield law). But the law does not always convert common sense into law. The difficulty with an opening-the-door justification of the admissibility of victim's non-homosexual proclivities in this case is that the doctrine of curative admissibility (the modern name for the doctrine of fighting-fire-with-fire or opening-the-door) -- curative admissibility applies, most courts say, only after a trial court has improperly admitted inadmissible evidence: the door opens to a party's normally-inadmissible counter-evidence only after an opponent has been erroneously allowed to introduce inadmissible evidence.

As a matter of policy, it is not clear that the curative admissibility doctrine should be so limited. I see no good reason why a trial court should not have the discretion to allow a party to introduce evidence to counter legally-forbidden inferences that admissible evidence sometimes generates; a limiting instruction by the judge is not always effective.

It is not clear from the Maryland court's statement of facts that the defendants' insinuations about the homosexual inclinations of the victim were generated by inadmissible evidence (or by improper argument or questioning by defense counsel).

Can He Try to Prove He Is Not Gay?

Flash! Governor James McGreevey of New Jersey is quitting his job (but not immediately).

At a brief news conference McGreevey explained -- or asserted -- that he had had a consensual sexual relationship or transaction with another man. McGreevey added that he (McGreevey) is a "gay American." But McGreevey also said he was not resigning because he is gay. McGreevey said that he was quitting his job because his extramarital affair violated his marital vows -- Gov. McGreevey is married to a woman -- and because his extramarital affair had put him (the governor) and the State of New Jersey in some sort of jeopardy.

The object of McGreevey's interest tells a rather different story. This man, Golan Cipel, claims that any sexual relationship that he may have had with McGreevey was not consensual; Cipel asserts that he was coerced by McGreevey. Cipel has made another interesting claim: Cipel told news reporters that that he is not gay.

Question: If Cipel brings a civil action for sexual harassment against McGreevey can Cipel submit evidence to show that he, Cipel, is not gay? Or would such evidence about the sexual inclinations and dispositions of the putative victim of McGreevey's alleged sexual harassment violate the character evidence rule, a rule that, in general terms, prohibits the use of a person's disposition to show the doing or non-doing of an act by that person?

Suppose the action is brought in a federal trial court.

Alternatively, suppose the action is brought in a trial court of the State of New Jersey.

N.B. We are agreed, are we not, that McGreevey's expected defense that Cipel consented to a sexual relationship of some kind with McGreevey does not obviate the application of the character evidence prohibition on the theory that the issue of Cipel's consent puts Cipel's character "in issue"? Character or disposition is not an element of the defense of consent. In particular, a person who does not have homosexual inclinations or dispositions can nevertheless consent to a homosexual transaction. Correct?

Intuition and Logic

Try your hand at this exam question:

Able: Judgments about the relevance and the probative value of evidence rest on intuition.

Baker: Sound judgments about relevance and probative value require sound logic.

Carter: Neither one of you is right.

Deaver: Both Able and Baker are right.

Discuss.