Prior False Accusation Evidence and the Confrontation Clause

See Jules Epstein, "True Lies: The Constitutional and Evidentiary Bases for Admitting Prior False Accusation Evidence in Sexual Assault Prosecutions," 24 Quinnipiac Law Review 609, 612-613 (2006)(footnote omitted)("[This] article ... returns attention to the cross-examination aspect of the Confrontation Clause guarantee, one that has been overlooked as recent decisional law and scholarship have focused on the Clause's limitations on the use of hearsay evidence following the Court's 2004 decision in Crawford v. Washington [541 U.S. 36 (2004)]. 17 [This] article suggests that the historic roots of the Confrontation Clause guarantee the right to impeach a testifying witness with proof of 'corruption,' a category that includes the making of false accusations.")

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coming soon: the law of evidence on Spindle Law

So, which is it, finally -- a character trait or a motive?

Is "prejudice toward a group" or, alternatively, for example, racial prejudice, a character trait or is it a motive -- for purposes of the prohibition against the use of character to show conduct on a particular occasion? The following is a case that views alleged prejudice by a plaintiff toward White police officers as a group as a character trait (and a case that thus proclaims, in part for this reason, that acts -- prior lawsuits -- allegedly showing such "prejudice toward a group" are inadmissible): Outley v. City of New York, 837 F.2d 587, 591-594 (2d Cir. 1988)("The City, contending that its questions about prior lawsuits were designed to impeach Outley's credibility and to show his bias toward white police officers, reminds us that evidence admissible for one purpose is not rendered inadmissible by a separate rule which would preclude it. United States v. Abel, 469 U.S. 45, 56, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984)."; "The Court's reasoning in Abel is not applicable here. In effect, the City argues that it introduced the evidence to show that Outley bears a grudge against white police officers and that he acted consistently with that grudge in filing the claims in issue. This strikes us as precisely the sort of use prohibited by Rule 404(b), as going to character rather than bias. This is different, of course, from a case where a party has filed a series of fraudulent lawsuits and there is substantial evidence that the prior lawsuits amounted to a fraudulent pattern, evidence lacking here. [paragraph break] So saying, we recognize that there are a few cases permitting cross-examination concerning "prejudice toward a group," even without reference to the witness's specific prejudice against a particular witness or party. See United States v. Kartman, 417 F.2d 893, 897 (9th Cir. 1969) (reversing conviction of anti-draft demonstrator for, inter alia, denial of opportunity to cross-examine arresting officer, an ex-Marine, as to bias to anti-draft demonstrators as a group) (citing Jacek v. Bacote, 135 Conn. 702, 68 A.2d 144, 146 (1949) (plaintiff's witness cross-examined as to prejudice against Negroes, defendant being a Negro); Magness v. State, 67 Ark. 594, 50 S.W. 554, 59 S.W. 529 (1899) (prosecution witness cross-examined as to expression of hatred against Africans); see also People v. Christie, 2 Abb. Pr. 256, 259, 2 Park. Cr. R. 579, 583 (N.Y.S. Ct. 1st D. 1855) (witness cross-examined on membership in secret society); United States v. Lee Huen, 118 F. 442, 463 (N.D.N.Y. 1902) (no presumption of witness bias in favor of defendant of same nationality) (dictum)). These cases fall within the general rubric that "a partiality of mind is . . . always relevant as discrediting the witness and affecting the weight of his testimony." See 3A Wigmore on Evidence § 940, at 775 (Chadbourn rev. 1970). [paragraph] But, while it may have some relevance, there are still limitations on this type of cross-examination.")

Other cases, however, seem to take the opposite view. See, e.g., Barnes v. City of New York, 296 A.D.2d 330, 745 N.Y.S.2d 20 (2002) (civil rights action against city and police officer for shooting of plaintiff by city's police officer; "During the trial of this action, defendants sought to introduce evidence that plaintiff was a member of a group known as the "Five Percenters," which espouses a vicious ideological hatred of the police and propounds to its members a protocol to shoot and kill police officers rather than submit to arrest. n1 The trial court excluded this evidence on the ground that it was collateral and unfairly prejudicial, and the jury resolved factual issues in favor of plaintiff, rendering a verdict for him. We now hold that, contrary to the trial court's view, exclusion of such evidence constituted reversible error requiring that there be a new trial."; "Evidence of plaintiff's membership in the Five Percenters, under the circumstances presented here, was relevant to show that he had a specific motive to resist any police officer's attempt to arrest him, giving rise to the fair inference that plaintiff was likely to act in accordance with such motive in his encounter with Officer Jerome.")

So which is it? Is prejudice against a group a character trait that arguably inclines the hater toward a particular action or is it a motive for an action? The distinction implied by the question may seem ethereal but the answer to the question affects the admissibility of evidence of prejudice toward a group.

My thanks to Joannes Untalan Vinarao-Pilapil for unearthing Outley.

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coming soon: the law of evidence on Spindle Law

News Flash: Witnesses Sometimes Lie and Make Mistakes!

The same NYTimes article (see today's previous post) states:

Criminal justice experts say exonerations have shed light on two circumstances once thought to be extremely rare or even inconceivable: Witnesses are sometimes wrong, and people sometimes confess to crimes they did not commit.

I am not at all sure that genuine "experts" ever thought that false confessions are rare, much less "inconceivable." (Isn't Miranda -- you know: "You have the right to remain silent etc." -- isn't that Supreme Court decision pretty good evidence that some folks have worried about false confessions for quite some time? And what about the notorious show trials in Stalin's era? Did everyone here think those confessions were true? Or did some folks here conceive of the possibility that the confessions showcased in those trials were generally false? And what about confessions extracted by torture during the Spanish Inquisition?)

But let's be charitable: Let's let the NYTimes' thesis of the generally-perceived rarity of false confessions pass.

Even so, I am quite sure that no passably-educated law professor, lawyer, or judge ever thought that witnesses are "rarely" wrong. It has been known for some time that many trials present the spectacle of one witness saying one thing and another witness saying the opposite. I dare say this sort of spectacle has been around for thousands of years. (What about King Solomon and the custody case he adjudicated in his own inimitable fashion? I guess he must have conceived of the possibility that one of the two women before him was "wrong." And the same thought must have occurred to the people who told and heard the King Solomon story.)

The briefest dip into the waters of the law of evidence would have revealed to the NYTimes that the law takes the view (and has taken the view for a very long time) that witnesses can be "wrong" for a variety of reasons -- because of defects in memory, limited understanding, defects in sensory organs, bias and interest, and, yes, finally, untruthfulness -- and just a bit of research (or TV watching) would have revealed to the NYTimes that the law of evidence sanctions the use of a variety of courtroom techniques (and pretrial strategies as well) for ferreting out such sources of testimonial error.

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coming soon: the law of evidence on Spindle Law

DNA Has No Voice: DNA Does Not Cry Out "Innocence" (or "Guilt")

An article in today's NYTimes states:

Cases that lack what many call the “magic bullet” of DNA often require cumbersome investigations, including finding and re-interviewing witnesses or poring over thick files to find anything vital that a trial lawyer might have missed. Even when crucial evidence is uncovered — witness recantations or exculpatory statements that were ignored by prosecutors — judges, juries and prosecutors often treat it with skepticism.

The above statement reflects a fundamental misunderstanding of the logic of DNA evidence. Like fingerprint evidence, footprint evidence, or any other such evidence, DNA evidence does not speak on its own: it does not, by itself, proclaim "innocent" (or "guilty"). Like fingerprint evidence etc., DNA evidence speaks to innocence or guilt only within a factual context. And that context is sometimes or often contested. For example, a fingerprint or a residue with DNA may have been deposited at the scene of the crime at the time of the crime or the fingerprint or the DNA may have been deposited there at some other time. Alternatively, the person who deposited a fingerprint or DNA at the scene of the crime at the time of the crime may or may not have intended to kill, for example. Alternatively, investigators may have found a fingerprint or DNA of one culprit but not another. Alternatively, one culprit may have stood by while a co-culprit engaged in sexual intercourse with the rape victim. And so on ad infinitum. DNA is not a "magic bullet" that groks guilt or innocence. Only Star Trek machines do that.

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Pattern-Scheme-Plan Rationale for Other Crime Evidence & Use of This Rationale in Sex Crimes Cases

The Supreme Court of Connecticut recently revisited the use of "pattern," "scheme," "plan," and the like, as a rationale for the admissibility of other crime evidence. See State of Connecticut v. Carlos DeJesus, 288 Conn. 418; 953 A.2d 45 (2008). The Connecticut Supreme Court creates a special "plan" or "scheme" rule for sex crime prosecutions.

But Katz, J., dissenting, chides the court: "...I find it troubling that the majority essentially has rationalized maintaining a rule permitting admission of prior sex crimes evidence on the basis of facts particular to pedophiles. It is little comfort that this court finally has abandoned the legal fiction that this evidence is not being used for propensity purposes. See State v. Merriam, supra, 682-83 (Katz, J., dissenting) (criticizing liberal admission of prior sex crimes evidence under guise of common scheme when evidence was in actuality being used as propensity evidence); State v. Kulmac, supra, 83 (Katz, J., dissenting) (same)."

The court's discussion, when considered with Judge Katz's brief but penetrating critique, makes for interesting reading and provides a nice example of the conceptual issues and legal trends in the use of other sex crimes evidence in sex crimes prosecution.

Defense counsel's unsuccessful attempt to invoke the terrible prosecution condemned by New Jersey's appellate courts in State v. Michaels, 264 N.J. Super. 579, 616-35, 625 A.2d 489 (App. Div. 1993), aff'd, 136 N.J. 299, 642 A.2d 1372 (1994), is also intriguing. Although Michaels involved quite different facts, Michaels WAS a horribly-botched sex crime prosecution bred in some sort of stew of community paranoia about sex abuse, and defense counsel's suggestion in DeJesus that "mass hysteria" about sex crimes is upon us again cannot be lightly dismissed.

Disclosure: I am proud to say that a former student of mine -- Robert Rosenthal -- played a prominent part in getting the convictions in Michaels overturned.

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coming soon: the law of evidence on Spindle Law

A Nice Law School Exam Problem: Doping Calendars in the Forthcoming Barry Bonds Trial

The New York Times today reports:

Specifically, the prosecutors want to use the testimony of the Giambis to establish that Greg Anderson, Bonds’s former trainer, created doping calendars for the two brothers and that similar calendars with Bonds’s initials on them were thus designed for the same purpose, said a person briefed on the government’s evidence.

Are the testimony of the Giambis and the calenders marked "BB" and "BLB" admissible in Bonds' forthcoming trial for perjury?

Is that evidence relevant?

Is it "other crimes" or "other wrongs" evidence? If so, is it admissible?

Are the calendars marked "BB" and "BLB" hearsay?

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coming soon: the law of evidence on Spindle Law

Res gestae, context, stories, and narrative in trials

Judge David Armstrong, dissenting from the "unreported" opinion of the court in State v. Scarpa, 2009 WL 132195 (Jan. 21, 2009), made some interesting comments about the use of the notion of "res gestae" as a ground for the admission of evidence that apart from providing "context" is not relevant or otherwise admissible. His comments indirectly raise an old question about the reach and rationale of the the opinion of the Supreme Court in United States v. Old Chief, 519 U.S. 172 (1997).

In Old Chief the Court stressed, inter alia, the importance of story telling and "rich" and "colorful" "narrative" at least in criminal trials and at least by the prosecution.

But what are the limits of the storytelling rationale?

Judge Armstrong has a view about this. He wrote:

I believe that the trial court abused its discretion when it applied the "res gestae" exception to the marijuana evidence presented in this case. The evidence was not relevant for any purpose other than to show propensity to possess drugs generally, and it was therefore inadmissible under [Evidence Rule] 404(b). ...

[snip, snip]

Here, the State argued that the marijuana evidence showed Scarpa's propensity to possess drugs. The prosecutor's use of Scarpa's marijuana possession suggested that she was a drug user generally, and that because she was a drug user, her possession of a different drug, methamphetamine, in her purse was also for her use. This is a propensity inference, which is prohibited by ER 404(b).

II. Res Gestae Exception

Professor John Henry Wigmore outlined an exception to ER 404(b) for "other criminal acts that are an inseparable part of the whole deed":

Suppose that A is charged with stealing the tools of X; the evidence shows that a box of carpenter's tools was taken and that in it were the tools of Y and Z, as well as those of X. Here we are incidentally proving the commission of two additional crimes because they are necessarily interwoven with the stealing charged and together form one deed.

IA Wigmore on Evidence § 218, at 1883 (Tillers rev.1983). Professor Wigmore explained that the uncharged crimes against Y and Z "are not offered as affecting A's character, nor do they affect his character, because all were done, if at all, as parts of a whole and if we believe or disbelieve his doing of one part, we believe or disbelieve his doing of all." IA Wigmore on Evidence § 218, at 1883. It is therefore logically impossible for the defendant to suffer the harm that ER 404(b) seeks to prevent: that the jury "condemn him now, though innocent of the act charged, because [it is] prejudiced by his former crimes." IA Wigmore on Evidence § 218, at 1883.

Washington courts have since expanded Professor Wigmore's concept, calling it the "res gestae" exception, to include evidence of any other acts that tend to "complete the story of the crime." See, e.g., State v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615 (1995) (quotations omitted). I agree with critics who have commented that this formulation is obscure, indefinite, and subject to abuse. See, e.g., State v. Fetelee, 117 Haw. 53, 175 P.3d 709, 725-28 (Haw.2008); Jerome A. Hoffman, Res Gestae's Children, 47 Ala. L.Rev. 73, 74- 75 (1995) (describing the words "res gestae" as "more impressive for their obscurity with every passing generation" and "perhaps the most famous--and certainly the hardiest--judicial nonreason of all time"). As the District of Columbia Circuit has noted, all relevant evidence offered by the prosecution completes the story, whether admissible or not; thus, the fact that omitting some evidence would render a story slightly less complete cannot justify circumventing ER 404(b) altogether. United States v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000). Professor Wigmore himself stated that "[i]t is not too much to say that [the term "res gestae"] is nowadays most frequently used merely as a cover for loose ideas and ignorance of principles." IA Wigmore on Evidence § 218, at 1888; see also Bowie, 232 F.3d at 928 & n. 2 (referring to "res gestae" as a "Latinism" that "tends merely to obscure the analysis underlying the admissibility of the evidence") (quoting United States v. Krezdorn, 639 F.2d 1327, 1332 (5th Cir.1981)).

Moreover, because notions of "res gestae" or "context" have no real conceptual limits, the exception threatens to swallow [Evidence Rule] 404(b)'s general rule. Fetelee, 175 P.3d at 728 (quoting People v. Agado, 964 P.2d 565, 570 (Colo.Ct.App.1998) (Briggs, J ., concurring)); see Bowie, 232 F.3d at 928-29. The fact that evidence may provide "context" to a story has never been an exception to the requirement that all evidence be relevant. ER 402. And here, the evidence of Scarpa's marijuana possession was relevant only to show her propensity to commit the crime of methamphetamine possession. To use such evidence under the guise of "completing the story" is inconsistent with Wigmore's original formulation of the res gestae exception and prohibited by ER 404(b). I would therefore hold that the trial court abused its discretion in admitting it.

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coming soon: the law of evidence on Spindle Law

MarshalPlan: A Set of Methods for Marshaling Evidence for Investigation and Litigation (and for Yet Other Purposes)

Years ago David Schum and I developed the notion of an evidence marshaling system. We developed a kind of computer embodiment, or expression, of that evidence marshaling system, which we eventually called "MarshalPlan."

Ten months ago I released MarshalPlan 2.2.

This moniker -- MarshalPlan 2.2 -- amounts to a bit of self-mockery: MarshalPlan 2.2 is not a software "prototype." Far from it.

However, MarshalPlan 2.2 is more than just some scratchings on a page that state in words (text) how a MarshalPlan application might work.

MarshalPlan 2.2 is a genuine standalone application based on the user-friendly programming language Revolution Enterprise(tm). This standalone illustrates -- with images, fields, buttons (links), and so on -- how a computer program to support the marshaling and assessment of evidence in preparation for trials and also for the conduct of trials might work.

There are numerous things wrong with the standalone that you will retrieve by clicking on the link or links below, and the standalone application that you will retrieve has numerous gaps, including the following:

1. There is very, very, very little textual explanation of the theory behind the strategies that are embedded in MarshalPlan 2.2. To find that theory and those explanations you will have to wander about my personal web site. If you want a really comprehensive explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).

2. Some buttons and links don't work. When that happens, try other buttons and links.

3. Some important stacks are entirely missing. E.g., the "Narratives" stack. The most important missing stacks are those having to do with the development of evidential argument from evidence to factual propositions and with the assessment of the probative value of the evidence. For a discussion of the methods that might be used for this purpose, see Special Issue on Graphic and Visual Representations of Evidence and Inference in Legal Settings, 6 Law, Probability and Risk Nos. 1-4 (Oxford University Press, 2007).

4. MarshalPlan 2.2 is not equipped to be hooked up to a database. This is a most serious deficiency. But -- in my defense -- MarshalPlan 2.2 is NOT a prototype. It is, rather, only a kind of elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take.

I am brash enough to believe that many of the ideas reflected in MarshalPlan 2.2 are both novel and worthwhile. But I am mortal and thoroughly fallible -- particularly when it comes to programming -- and I would very much like to hear your thoughts, suggestions, and criticisms.

&&&

To retrieve MarshalPlan 2.2 click on this link. Download all of the Revolution stacks into a single folder. These stacks all have the suffix "rev". To make these stacks run properly you need a "Revolution Player." To get this free player go here and download the version of the player (either Windows or Mac OSX) that you need. Then drag-drop the "Network.rev" icon onto the "Revolution Player" icon or open the Revolution Player icon and then open the Network.rev stack, or file. You should be in business now; the buttons, or links, in the various stacks should allow you to navigate between the stacks as well as within the stacks. (However, it is possible you will have to drag-drop all of the stacks onto the Revolution Player icon if you wish to navigate between the stacks. Please let me know if this turns out to be the case.)

If you wish, you can also download the following stacks as separate standalones:

Analysts
Witnesses
Case Theory
Evidence of Material Facts
Evidence for and against Material Facts
Legal Argument
Legal Rules
Legal Source Material
Loose Thoughts
Network Manager
Possibilities
Elimination of Possibilities
Questions & Issues
Raw Evidence
Records
Actor Scenario
Case Scenario
Tangible Evidence
Actor Time Line
Case Time Line
Time Line for Tangible Evidence
Time Line for Witness
Types of Evidence Sources

&&&

Another (simpler) option: retrieve an older version of MarshalPlan -- MarshalPlan 2.0 -- here!

&&&

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coming soon: the law of evidence on Spindle Law

Evidence with Presidential Stature

In an interview on National Public Radio, David Brooks, reporting on a private dinner he had just had with President-Elect Obama, stressed Obama's pragmatism. Specifically, Brooks said that Obama will be an "evidence-based President."

Now I know that the New Evidence Scholarship has come into its own. The New Evidence Scholarship (I hereby proclaim) takes full credit for all of Obama's forthcoming achievements (and none of his failures).

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coming soon: the law of evidence on Spindle Law

The Kahneman-Tversky-Slovic Thesis, Heuristics for Inference, Behavioral Economics, (Allegedly) Irrational Human Inference & All That

A persistent thesis of some cognitive scientists and cognoscenti is that ordinary people are rather lousy at factual inference and are prone to all sorts of fallacies in making judgments about factual questions, particularly factual questions that depend on statistical data. A couple of people (Kahneman & Tversky) even won a Nobel prize for questioning the inferential sagacity of plain Janes and Joes. See A. Tversky & D. Kahneman, "Judgment under uncertainty: Heuristics and biases," 185 Science 1124-1131 (1974) See also D. Kahneman, P. Slovic & A. Tversky, Judgment under uncertainty: Heuristics and biases (1982). From the very start, however, some observers were skeptical of the views of the skeptics, wondering, for example (but not only), whether the skeptics' experiments for testing inferential performance were properly designed. Now an interesting new study raises further questions about the Kahneman-Tversky-Slovic Thesis, about the hypothesis of the irrationality of human inference, and about one of the central tenets of "behavioral economics." See Thomas L. Griffiths & Joshua B. Tenenbaum, Predictions in Everyday Cognition," 17 Psychological Science No. 9 200[6?]). The abstract for the article reads this way:

Human perception and memory are often explained as optimal statistical inferences that are informed by accurate prior probabilities. In contrast, cognitive judgments are usually viewed as following error-prone heuristics that are insensitive to priors.We examined the optimality of human cognition in a more realistic context than typical laboratory studies, asking people to make predictions about the duration or extent of everyday phenomena such as human life spans and the box-office take of movies. Our results suggest that everyday cognitive judgments follow the same optimal statistical principles as perception and memory, and reveal a close correspondence between people's implicit probabilistic models and the statistics of the world.

What is perhaps so remarkable is not how badly ordinary people draw inferences about the world they inhabit but how astonishingly well just plain folks figure out what's what in the world.

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coming soon: the law of evidence on Spindle Law

Update on Symposium on Reasonable Doubt

All are welcome at this symposium on the reasonable doubt standard.

Date: Friday, January 23, 2009
Place: Cardozo School of Law, New York City

General topic: Looking Beyond Reasonable Doubt: Evidentiary Standards from Christian Theology to Guantanamo

Panelists & moderators: Barbara Shapiro, UC Berkeley, Department of Rhetoric; Milbert Shin, Deputy Ambassador at Large for War Crimes Issues, U.S. Department of State; James Whitman, Yale Law School; Suzanne Last Stone, Cardozo School of Law; Ronald Allen, Northwestern University School of Law; Mark Denbeaux, Seton Hall Law School; James Franklin, Department of Mathematics, University of New South Wales; David Hamer, University of Queensland; Peter Tillers, Cardozo School of Law

Sponsor: Cardozo Journal of International and Comparative Law

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coming soon: the law of evidence on Spindle Law

How Much and How Well Can a Two-and-One-Half-Year-Old Child Understand and Remember about What She Has Seen and Heard?

In Bush v. State, 193 P.3d 203 (Wyo., Sept. 17, 2008) defendant's wife disappeared in 1990. Her body was never found.

The daughter of defendant and his missing wife was two-and-one-half years old at the time of her mother's disappearance.

Some time after the wife's disappearance defendant lost custody of the child. Thereafter -- when the child was three, four, and five years old -- the child was treated and interviewed by a counselor and by a psychiatrist. According to the counselor and the psychiatrist, the child eventually made statements implicating defendant in his wife's disappearance; the statements made by defendant suggested that defendant murdered his wife.

Nothing happened for more than 15 years. However, in 2006 defendant was indicted for the murder of his wife. In 2007 he was tried for that crime.

Although defendant's daughter, by then a teenager, testified at the 2007 trial, she testified she could remember nothing about her mother's disappearance.

The counselor and the psychiatrist were allowed to testify to the incriminating statements the daughter made to them when she was three (3), four (4) & five (5) years old -- about what she supposedly said she had supposedly seen and heard when she was two-and-one-half years old.

Defendant was convicted of second degree murder. His conviction was affirmed by the Wyoming Supreme Court in September 2008. In December 2008 defendant filed a petition for certiorari in the U.S. Supreme Court.

The opinion of the Wyoming Supreme Court dealt with a variety of interesting evidentiary and constitutional issues, including (1) whether the daughter's lack of memory rendered her "unavailable" for purposes of the Confrontation Right as spelled out by Crawford v. Washington, 541 U.S. 36 (2004) (see also the pre-Crawford Confrontation Clause decision United States v. Owens, 484 U.S. 554 (1988)), (2) whether video-conferenced testimony by a witness with a medical disability satisfied defendant's constitutional right of confrontation, (3) whether the trial court's exclusion of third party perpetrator evidence violated defendant's due process right to present a defense, and (4) whether the statements of a three, four, or five year old declarant fall within Wyoming's hearsay exception for statements made for purposes of medical diagnosis or treatment.

However, the Wyoming Supreme Court did not consider the question (perhaps because it was not asked to do so) whether the statements of a three, four, or five year old child about matters that the child may have seen and heard when the child was two-and-one-half years old had so little probative value that their admission violated defendant's due process right to a fair trial.

The child supposedly made statements not only about what she had seen when she was two-and-one-half years old, but also about what she had then supposedly heard defendant say about what she had supposedly seen.

Memories of the travesties involving charges in the 1980s and 1990s of mass sex abuse in child day care centers should raise some questions about this case. For example, apart from the question of how much and how well a two-and-half-year old child can understand and remember various kinds of matters, one wonders whether the counselor and the psychiatrist who counseled and interviewed the daughter believed or suspected at the time that defendant had killed the daughter's mother. Did the counselor and the psychiatrist unwittingly plant recollections in the mind of the daughter? The following extracts from the opinion deal, albeit only tangentially, with this important question:

a. Admissibility of Hearsay Statements Under W.R.E. 803(4)

The record discloses that defense counsel objected to the testimony on the ground that the child's statements were not admissible for the truth of the matter asserted, i.e., that Mr. Bush killed Mrs. Bush, but only for the purpose of showing what information Ms. Gordon [the counselor] and Dr. Eicher [the psychiatrist] relied upon in arriving at a diagnosis. Initially, therefore, the defense did not object to admission of the statements but only to the purpose for which they were admitted. The district court withheld ruling until the State established foundation for the statements during direct examination of Ms. Gordon. At that point, counsel approached the bench and the State argued that the foundation had been laid for admitting the statements under W.R.E. 803(4). Defense counsel asserted the testimony was not admissible because the purpose of Ms. Gordon's counseling was to assist the police with the criminal investigation; therefore, it did not fall within the medical treatment exception to the hearsay rule. Defense counsel asked to voir dire Ms. Gordon and the district court granted the request.

During the voir dire, Ms. Gordon testified that she was in contact with the police department and the district attorney's office while she was treating the child. She testified that her purpose for those contacts was to find out what had happened to the child before she went to live with her grandparents. Ms. Gordon denied that she was assisting the police department or the district attorney's office with their investigation into Mrs. Bush's disappearance and testified that her only reason for seeing the child was to help her.

After the voir dire, counsel again approached the bench and defense counsel argued that Ms. Gordon had served a dual purpose--she treated the child and assisted the police with the criminal investigation. Defense counsel asked for a limiting instruction telling the jury that the statements were admitted for the purpose of showing what information Ms. Gordon relied upon in treating the child but not for the truth of the child's statements that Mr. Bush killed Mrs. Bush. The district court ruled as follows:

I think the statements can come in as an exception to the hearsay rule under 803, sub (4). I can envision circumstances where a witness is sent to medical treatment to get around the rule; and in that case, I think that kind of subterfuge would not allow the statements to be used substantively. There is no indication here. Ms. Gordon has indicated her primary purpose was diagnosis and treatment of [the child]. If those statements were used secondarily for law enforcement purposes, that does not render them not available under the exception. So I'm not going to give the limiting instruction. I'm ruling they may come in and be considered by the jury for substantive purposes.

[snip,snip]

Pursuant to [Wyoming Rule of Evidence 803(4)], we have held that a child's statements to a medical professional or professional counselor may be admitted into evidence provided the proper foundation is laid--that the child's statements were consistent with the purposes for which the witness became involved with the child, and the witness relied on the statements in connection with diagnosis and treatment of the child. Simmers v. State, 943 P.2d 1189, 1197-1198 (Wyo. 1997).

Ms. Gordon testified that she began seeing the child at the request of her maternal grandparents, who were concerned about her behavior after her mother's disappearance. Her grandmother testified that the child was having nightmares, was angry and scared and was losing weight. She said she sought treatment for the child because she believed the child needed help.

Ms. Gordon testified that her sole purpose for seeing the child was treatment. She testified that she relied on the child's statements to arrive at a diagnosis of post-traumatic stress disorder. Ms. Gordon testified that it is particularly important in her field to collect a history of the patient from family members and the patient herself. She testified it is also important when dealing with post-traumatic stress disorder to identify the source of the disorder.

Dr. Eicher testified that DFS referred the child to her for evaluation during the custody matter. She testified that she did not conduct a forensic interview for purposes of criminal or custodial proceedings. She saw the child three times and diagnosed her as having severe post-traumatic stress disorder as a result of having seen her mother hurt by her father. In arriving at her diagnosis, Dr. Eicher relied primarily on the child's statements and play during the sessions.

The witnesses' testimony showed that the child's statements were consistent with their purpose for seeing the child--treatment and diagnosis. Their testimony also showed that they relied on the child's statements in connection with diagnosing and treating her. Therefore, the district court properly admitted the statements under W.R.E. 803(4) and did not abuse its discretion in doing so.

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coming soon: the law of evidence on Spindle Law

Inference, Intuition & Reasoning

Is factual inference just a matter of intuition? Always? If you think so, dear Reader, what inference does your untutored intuition lead you to draw from the following image:

By the way: what is the image? See this web page.

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coming soon: the law of evidence on Spindle Law

TV as Lie Detector

The battle against junk forensic science is never-ending. It is perhaps also a losing battle: the seductions of junk science are apparently overwhelming to a substantial segment of the popular mind. This discouraging thought was deposited into my mind by the news that we will now have the privilege of watching a TV show -- "Lie to Me" -- inspired by Paul Ekman's "science" of detecting lies by facial expressions and other bodily cues.

I will try to keep an open mind. But all of my warning bells suggest we are about to witness another spasm of pseudoscience. I only hope that jurors and juries will have enough common sense to resist using such pseudoscience in their deliberations. (I am less optimistic that police departments will have an equal degree of common sense.)

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coming soon: the law of evidence on Spindle Law

James H. Chadbourn, LYNCHING AND THE LAW (1933)

I just discovered, rather serendipitously, that James H. Chadbourn's Lynching and the Law (University of North Carolina Press, 1933) is being reprinted at the end of this month - on December 30, 2008 - by the Lawbook Exchange, Ltd. (There is a new introduction by Paul Finkelman.)

Chadbourn was an assistant professor at the University of North Carolina when he published this book. It is easy to be tolerant and liberal when you have lots of company. It took great courage for Chadbourn to write and publish this book when and where he did.

Chadbourn went on to have a distinguished career. He taught at various universities, including the University of Pennsylvania, University of California at Los Angeles, and Harvard University. He died of cancer on October 1, 1982. To the very end, Chadbourn had no patience with cant or abuse of power. He also never lost his inimitable sense of humor. I still miss him.

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Sexual Predators -- Do They Always, Almost Always, Often, Ordinarily, or Rarely Do It Again?

Charles H. Rose III, "Caging the Beast: Formulating Effective Evidentiary Rules to Deal with Sexual Offenders," 34 American Journal of Criminal Law 1, 2-3 (2006) (footnotes omitted):

Media coverage of heinous acts of barbarism by sexual predators creates a sense within the public eye that uncontrollable predators lurk around every corner, waiting to prey upon our children through tools of technology that we do not quite understand and therefore fear. Our society believes that once an individual commits an act constituting a sexual offense crime under our statutory provisions, [he or she is] lost.

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Most Americans believe that it is not a question of if, but when, a sexual predator will commit another sexual crime. That belief is warranted for a small minority of sexual offenders, but the vast majority do not fall under that umbrella.

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A Strange Kind of Genius

If Bernard Madoff ran a Ponzi scheme, he ran the scheme on a scale and for an amount of time (and for an amount of money) that far outstripped anything that had been done before. See Diana Henriques, "Madoff Scheme Kept Rippling Outward, Across Borders," NYTImes (Dec. 20, 2008) :

But whatever else Mr. Madoff’s game was, it was certainly this: The first worldwide Ponzi scheme — a fraud that lasted longer, reached wider and cut deeper than any similar scheme in history, entirely eclipsing the puny regional ambitions of Charles Ponzi, the Boston swindler who gave his name to the scheme nearly a century ago.

It takes a strange kind of genius -- but genius nonetheless -- to do that.

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coming soon: the law of evidence on Spindle Law

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Universities and Law Schools Are Not Exempt from Financial Catastrophes -- or Scandals

Bernard Madoff, who allegedly lost $50 billion of his clients' money, was the treasurer of the board of trustees of Yeshiva University, the parent of Cardozo School of Law. Before this scandal erupted Yeshiva University had already lost about 1/3 of its endowment because of the turmoil in the financial markets. An estimate in one newspaper is that Yeshiva University lost an additional $100-110 million as a result of Mr Madoff's alleged misdeeds. See Stephanie Strom, "Giant Wall St. Fraud Leaves Charities Reeling," NYTimes (Dec. 15, 2008). There are rumors of greater losses. The Jerusalem Post paints an almost apocalyptic picture of the implications for Jewish charities and non-profits, including Yeshiva University. See Haviv Rettig Gur & Allison Hoffman, "Jewish community braces for calamity in wake of Madoff fraud," international.jpost.com (The Jerusalem Post) (Dec. 15, 2008). And I thought that the academic life would be peaceful -- and stable. Boy was I wrong.

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coming: the law of evidence on Spindle Law

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Bunk Forensic Science and Due Process

It takes a long time for courts to recognize bunk forensic science as bunk. The experience with the now-discredited paraffin test is just one of many examples. Will the day soon arrive when courts will generally acknowledge that the "theory" of wholesale repressed memory has so little probative value -- probative value akin to that of astrology -- that courts will decide (i) "expert" evidence about repressed memory evidence cannot support a claim of an excusable failure to discover a cause of action for purposes of calculating limitations periods on civil actions for sexual wrongs and (ii) the use of repressed memory evidence against a defendant in a criminal trial is a violation of due process?

Sympathy for victims of child molestation or for victims of sexual assault does not excuse or justify the use of nearly-worthless evidence.

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coming: the law of evidence on Spindle Law

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Witness with Repressed Memory Has Photographic Memory

In a trial in which an alleged victim of child molestation claimed to have repressed and then recovered memory of sexual molestation, this happened:

During the initial trial, trial counsel asked B. how he could remember the television program he was watching at the cabin in Lake Arrowhead. B. replied that the program was “Fox Family because, like I said I'm very intelligent. I have a photographic memory.” When trial counsel said, “You do?” B. replied, “Somewhat photographic.”

People v. Bradley, Cal.App. 2 Dist., November 06, 2008 (NO. B198577)

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coming soon: the law of evidence on Spindle Law

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