Posts Tagged ‘legal definitions and issues’

Even though he said he would veto it, President Obama has announced that he will sign the National Defense Authorization Bill that gives him and the military the authority to indefinitely detain U.S. citizens suspected of supporting terrorist activity. I am not surprised because Obama lies all the time about everything and he already claims to have the power to order any person in the world assassinated, no matter where situated and whether or not a U.S. citizen, if he decides that person is a terrorist or has provided material support for terrorism.

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Emphasis supplied.

Nothing explicit or implicit in the Fifth Amendment creates or justifies an exception to the Due Process Clause that I italicized, and if you carefully listen with your heart, you can almost hear our Founding Fathers shouting, “NO.”

Using post-conviction DNA testing, the Innocence Project, which was formed by Barry Scheck and Peter Neufeld at the Benjamin Cardozo School of Law in New York City approximately 20 years ago, has exonerated 282 innocent people who were wrongfully convicted of crimes. 17 people were on death row awaiting execution when they were exonerated.

“The Disturbing Case of Eddie Lowery” will be shown tomorrow night (Friday, December 16th) on MSNBC at 10 PM. He is one of those 282 innocent people. Mr. Lowery falsely confessed to a rape he did not commit and spent 10 years in prison before he was exonerated. You can visit the website for the Innocence Project and watch a preview of tomorrow night’s show here.

The Death Penalty Information Center issued a report today entitled, “The Death Penalty in 2011: Year End Report, which you can read here.

The Center reports that, while 1277 people sentenced to death since 1976 in the U.S. have been executed, 139 people sentenced to death have been exonerated (this number includes the 17 people exonerated by post-conviction DNA testing). That is more than 10% of the number of people executed.

The high number of post-conviction exonerations does not inspire confidence in the ability of the criminal-justice system to only convict the guilty and always acquit the innocent, despite due process of law.

Researchers have identified seven causes of wrongful convictions. They are:

1. Mistaken eyewitness testimony;

2. Police misconduct;

3. Prosecutorial misconduct;

4. Forensic fraud;

5. Ineffective assistance of counsel;

6. False confessions; and

7. Jailhouse informants.

To the extent we have information about the people detained at Guantanamo, approximately 80 to 90% are innocent. Most of the people detained by the U.S. military there and other places were identified by paid informants as terrorists and many of them confessed while being tortured.

There is no evidence-based reason to believe that the military is any better at only convicting the guilty and always acquitting the innocent than the civilian criminal-justice system. In fact, given the kangaroo-court-style military tribunal process, there is good reason to believe that there is a much higher probability of wrongful convictions by military tribunals.

Despite all of the well-documented examples of the wrongful conviction of innocent people accorded due process of law in civilian courts and the identification of the causes of those wrongful convictions, President Obama apparently would have us believe that he and his review panel would never make a mistake and order the assassination of an innocent person.

And now the U.S. Congress has granted him the authority to order U.S. citizens, whom he suspects of providing material support to terrorists, detained indefinitely by the U.S. military without access to lawyers and the civilian courts.

This is an egregious and unpardonable sin against the U.S. Constitution, Bill of Rights, Rule of Law, and we the people of the United States.

Given the secretive manner in which senators Carl Levin (D) and John McCain (R) cooked-up this law behind closed doors without conducting any hearings or calling any witnesses, I cannot help but believe that this law was enacted with the OWS protests in mind.

Everyone who participated in drafting, supporting, and enacting this horrific law is unfit to serve in government. They should be immediately removed from office and forever barred from serving in public office in the future in any capacity.

Let December 15, 2011 forever be known as America’s National Day of Shame.

Cross posted from my law blog.

Hello everyone. This post is written by Masoninblue and cross-posted here full text with permission. His web site is frederickleatherman.wordpress.com. I encourage you to visit his site if you are interested in legal topics. His site does not include the incarceration aspect of Frog Gravy, but it does address legal aspects of the case. This site, Frog Gravy, has a mixture of both.

Thank you for visiting our sites, and we wish you a peaceful and blessed holiday season!

Empathy is the basis for true morality.
Empathy is the basis for true morality
by aerie under flickr Creative Commons

Randian neoliberals, as in Ayn Rand, believe in competition and social darwinism. They claim that human life is like a vast jungle and they have adopted “survival of the fittest,” formerly known as the law of the jungle, as the guiding principle of their lives.

They adopted Grover Nordquist’s advice to privatize government as much as possible and drown what little remains of it “in a bathtub” abolishing all laws, regulations, and regulatory oversight.

They claim they want to create the free marketplace that Adam Smith wrote about in the Wealth of Nations; a mystical place controlled by the “invisible hand” of self-interest that they declare to be maximizing short-term profits.

They have elevated greed to the status of not just any god, but the god of gods. That their interpretation ignores Adam Smith’s warning that the marketplace must be regulated to protect competition from the monopolies that inevitably will develop in a truly free marketplace is no trivial matter.

They have committed an egregious sin by creating a philosophy to justify stealing from others that they put together with disparate elements of philosophy, science, economics, and religion as though selecting from different columns on a Chinese menu to feed their ravenous greed.

Survival of the fittest is not a law; it is a description of what happens when a hungry apex predator hunts, kills, and consumes its prey. If there were no other laws at work after approximately 4 billion years of evolution, only apex predators would exist, and possibly none of them either as they would have extinguished themselves by cannibalism.

Natural selection is an evolutionary process that weeds out unsuccessful genetic adaptations. Natural selection is not survival of the fittest.

In a recent study published in the peer-reviewed journal Science, research scientists at the University of Chicago reported that lab rats can show empathy. Their experiment demonstrated that free rats will work tirelessly to free caged rats. Even when presented with chocolate chips, a free rat will continue to labor on freeing the caged rat until successful. Then they share and consume the chocolate.

While survival of the fittest may dictate the outcome in most battles between a hungry predator and its prey, unless its prey outsmarts it or it is fortunate to escape, empathy occupies a far more important role in determining whether a species survives. Empathy leads to survival of the wisest and validates the age old maxim that the meek shall inherit the Earth.

Empathy is the basis of the Golden Rule.

Randian neoliberalism is junk science at its worst and should be universally discredited and the legacy of its practitioners condemned to a mere footnote in the sorry history of human greed.

Happy holidays.

Namaste

Written full-test here by Nasoninblue with premission.

Author’s note: In case y’all missed it or want to refresh your recollection, <a hrPart 1 is here.

Deputy McGuire testified at the suppression hearing that he was dispatched by 911 to investigate a call by a citizen who reported that, “There’s this lady walking around in my neighbor’s yard talking to my neighbor and writing stuff down in a notebook and she mentioned something about tar heroin and all that stuff.”

The caller identified himself and described the woman and her vehicle. He also reported that the vehicle had a WA license and provided the number. He did not indicate if he had spoken with the woman; if he was present when the conversation took place; who told him about it if he was not present; or what she was writing down.

When he arrived in the area, the deputy searched for but he did not find the woman or the vehicle and he cleared the call without talking to the 911 caller. As he was approaching the traffic-controlled Cairo Road intersection in the passing lane on Highway 60, he noticed that he was passing a vehicle with its left turn signal blinking. The vehicle had WA plates and both the driver and the vehicle matched the description provided by the caller. He decided to pull her over and investigate.

He slowed down, allowing her to move ahead, and then he fell in directly behind her. She reacted by activating her right turn signal and moved over into the emergency lane along the right shoulder of the highway. As she did, he activated his emergency lights, moved over with her, and stopped behind her.

Upon request, she produced her license, registration, and proof of insurance without difficulty.

When he ordered her to get out of her vehicle, she did so without stumbling, and she followed his instructions without exhibiting any confusion or mental impairment. Other than “glassy” eyes and nervousness, he saw no signs of possible impairment. He administered a portable breath test (PBT) that she passed, effectively ruling out alcohol intoxication. Although she “failed all six clues” on the horizontal gaze nystagmus test (HGN), he administered the test improperly, according to the National Highway Transportation and Safety Administration (NHTSA) because he positioned her facing the headlights of oncoming traffic and his patrol cruiser’s emergency lights. NHTSA, which developed the test, warns police not to do that because the lights produce a false nystagmus.

The deputy conceded that he did not witness any bad driving and her blinking left-turn signal could have been due to her intending to move into the left lane, but his approaching vehicle in that lane prevented her from doing so.

After he placed her under arrest for DUI, he transported her to a hospital for a blood draw and discovered an apparent rock of crack next to her watch in the seatbelt crack of his back seat next to where she was sitting.

Author’s note: In another post we discussed his prior testimony under oath at the preliminary hearing and the grand jury in which he said he found her watch and the rock of crack under his back seat. In other words, he did not find it in plain view on the seat beside her. He said he pulled the back seat forward to look for her watch after she told him that it had fallen off and slipped behind the seat. She asked him to retrieve it because she was handcuffed and could not do it herself.

The trial judge entered three suppression orders.

1. The First Order.

On January 11, 2007, Judge Clymer issued his first order denying the motion to suppress evidence. Although all of the material findings of fact and conclusions of law were clearly erroneous, one finding of fact and its corresponding conclusion of law merit special consideration. In Finding of Fact 5, Judge Clymer wrote,

When Defendant first exited the [her] vehicle the Deputy observed a wristwatch in close proximity to a baggie with apparent controlled substance inside the car. Defendant denied the apparent controlled substance was hers but acknowledged the wristwatch was hers.

This did not inspire confidence as one can only wonder how the judge forgot or became confused and thought that the rock of crack was discovered in her vehicle rather than the police cruiser.

Not to worry, we thought. We pointed out that and other errors and asked him to reconsider his order, which he agreed to do.

2. The Second Order

On January 18, 2008, Judge Clymer entered his second order concerning the defense suppression motion. He found that while driving “in a right hand traffic lane with her left turn signal activated, [the appellant] did not turn but pulled to the right side of the roadway and stopped.” (Finding of Fact 3) “The deputy pulled in behind the stopped vehicle and activated his emergency lights.” (Finding of Fact 4) He concluded that the arresting officer “did not conduct a stop of the appellant’s vehicle” because she “pulled off the roadway and stopped” before “he pulled in behind her and turned on his emergency lights so as to investigate.” (Conclusion of Law 1)

Author’s note: We have already discussed whether this was an investigatory stop initiated by a police officer or a voluntary citizen initiated contact with a police officer. This was an investigatory stop.

Judge Clymer also concluded that “[t]he combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway to the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.” (Conclusion of Law 2)

Author’s note: A person who calls 911 to report a possible crime is presumed to have provided reliable information if he identifies himself and provides a current address. Since the caller in this case provided the requisite information, he would be presumed to have provided reliable information. However, even if one assumes that his information was accurate and reliable, he did not describe criminal activity. In addition, the judge’s findings of fact conflict with the information provided by the caller and the deputy’s testimony, which described an alert driver operating her motor vehicle in compliance with the traffic laws. He could not have cited her for “improper signal” because no such statute exists. Since the information provided by the presumptively reliable caller and the deputy described lawful activity, the judge erroneously concluded that the deputy had a reasonable suspicion “to investigate and possibly cite for improper signal.”

Regarding the appellant’s arrest, he found as fact that the appellant admitted that she had taken several prescription medications, including Clonazepam. (Finding of Fact 6) He also found that “[t]he maker of Clonazepam warns that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” (Finding of Fact 7) He concluded, “[d]efendants inquiring about heroin, failing an HGN test, signaling a left turn and pulling off the road to the right, and stating she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” (Conclusion of Law 4).

Author’s note: We have already discussed the HGN and Clonazepam issues noting that the product insert does not warn “that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” It advises physicians to warn their patients for whom they first prescribe Clonazepam to be careful because the drug might cause drowsiness and impair their ability to operate a motor vehicle or other machinery. If that happens, the dosage can be lowered to avoid impairment. This is actually a common warning given for many drugs that are prescribed to improve functioning. Clonazepam is such a drug and it is prescribed to enhance function by reducing anxiety and to control seizures. Dosage is critical. Assuming the judge was honest, the rest of the finding establishes that he was thinking of a different case when he crafted this effort.

To be continued.

This article is written by Masoninblue and published full text here with permission.

Author’s note: This diary is part of the Frog Gravy legal case and will be posted in three parts beginning today and ending on Thursday, which is Thanksgiving. In this part I explain basic pretrial legal procedure that is common in criminal cases. Specifically, I explain suppression hearings, which most of you probably have heard about, but might not know some of the finer details. This information will be helpful to understanding the incredibly bizarre events that followed; events that will be the subject of the next two parts. Now, get comfortable, buckle your sealtbelt, and get ready for your ride down the rabbit hole.

If you have not already done so, I recommend you watch the embedded video, in which a 16-year-old white girl is ordered to stand trial for murder as a 300-pound black man, to get yourself in the proper frame of mind. And, now here is The Curious Case of the Three Suppression Orders

The Fourth Amendment prohibits unreasonable searches and seizures. The exclusionary rule prohibits the prosecution from using evidence against a defendant, if that evidence was seized by police in violation of the Fourth Amendment.

A suppression hearing is a pretrial hearing in which a defendant asks the court to suppress evidence that the prosecution intends to introduce at trial against the defendant. If the court grants the request and orders the evidence suppressed, the prosecution is prohibited from introducing it or referring to it during the trial.

Suppression hearings are held before trial to resolve legal issues relating to the admissibility of evidence allegedly seized in violation of the Fourth Amendment, because in many cases, especially drug cases, the prosecution would be unable to try the case, if the court were to order the evidence suppressed. If that were to happen, the prosecution would be forced to dismiss the case and there would be no need for a trial.

Normally, a court issues a written order granting or denying the motion to suppress and sets forth findings of fact and conclusions of law that support the order. Findings of fact, as the term implies, are findings regarding what happened. They are the facts of the case upon which the conclusions of law must be based.

For example, let us suppose that Archie testified that a traffic light was green and Gillian testified that it was red. Whether the light was green or red would be a disputed fact and the judge would have to find as fact one or the other. If both witnesses agreed that the light was red, that would be an undisputed fact and the judge would have to find as fact that the light was red.

Normally, there is only one suppression order and it is entered before the scheduled trial date. Usually, the prevailing party drafts the order and provides opposing counsel with a copy. If opposing counsel agrees to the proposed order, the trial court will enter it as an agreed order without a hearing, unless the judge wants to change something. When that happens, the judge will schedule a hearing to finalize the order. The prosecutor, defense counsel, and the defendant appear for the hearing, hash out their differences, and the judge makes a final ruling. In other words, the process is transparent and ex parte contact with the judge (by one lawyer without the other present) is prohibited.

When suppression orders are appealed, the appellate courts review challenged findings of fact to determine if they are “clearly erroneous.” That is, unsupported by any evidence. Appellate courts uniformly refuse to second-guess a trial court’s challenged finding of fact, as long as there is some evidence to support it, even if the appellate judges might personally disagree with the trial court. Their reluctance to second-guess the trial court is based on the well-founded notion that they are not in as good a position to judge witness credibility since they were not present when the witness testified.

Conclusions of law are reviewed de novo. That is, they are reviewed anew without any deference to the trial court.

Crane-Station’s lawyer filed a motion, which is a formal request, to suppress all of the evidence seized by police after she was pulled over while driving down the highway and arrested for driving under the influence of drugs. Her lawyer argued for suppression on the grounds that:

1. The stop violated the Fourth Amendment because police pulled her over without a reasonable suspicion to believe that she had committed, was committing, or was about to commit a crime; and even if they did have a reasonable suspicion;

2. The subsequent arrest violated the Fourth Amendment because police lacked probable cause to believe that she had committed a crime.
The suppression hearing took place on November 27, 2006. Only one witness testified, Deputy Eddie McGuire of the McCracken County Sheriff’s Department.

We have already recounted his testimony in some detail and will not repeat it here, except to briefly summarize and note that there were no disputed facts, since he was the only witness who testified. Therefore, it should have been relatively easy for a sentient being, especially an educated judge who took an oath to uphold the Constitution and impartially follow the law, to come up with a set of findings of fact that were supported by the evidence.

Alas, it was not to be.

To be continued

Written by Masoninblue, my husband, and published here, full-text, with permission.

An interesting Fourth Amendment issue arises from time to time regarding whether a police officer initiates a contact with a person operating a motor vehicle by pulling it over, or the driver voluntarily initiates the contact by stopping the vehicle and signals for assistance by turning on the vehicle’s blinking hazard lights, as might be the case for example, with a health emergency, a flat tire, or running out of gas.

With few exceptions, the first situation is prohibited by the Fourth Amendment, unless the officer has a “reasonable suspicion” that the motorist has committed, is committing, or is about to commit a crime. A reasonable suspicion is more than a mere hunch because it must be supported by an articulable set of objective facts and circumstances that would cause a reasonable person to suspect that the individual being observed had committed, was committing, or was about to commit a crime. In the standard drunk driving case, for example, an officer would have a reasonable suspicion to believe the operator of a motor vehicle was impaired by alcohol if the vehicle was weaving, crossing the center line, exceeding the speed limit, and speeding up and slowing down erratically. The courts apply a flexible totality of the circumstances test in determining whether the officer’s suspicion was reasonable in any given case. The courts will not consider information acquired after a stop because the officer did not know it prior to the stop and could not have relied on information he did not know.

The second situation is not subject to the Fourth Amendment because there is no seizure when a police-citizen contact is initiated voluntarily by the citizen, or the citizen appears to require assistance. This means that an officer does not have to have a reasonable suspicion to contact a citizen who initiates the contact, or otherwise appears to require assistance. This distinction certainly makes sense when one considers, for example, the plight of a motorist who may have suffered a heart attack, turned on the hazard lights, pulled over, and stopped the vehicle before lapsing into unconsciousness. It would not make any sense to require a police officer to have a reasonable suspicion to believe that the apparently unconscious person was committing a crime to justify stopping to check on the person.

Unfortunately, however, the distinction between an investigatory stop that requires a reasonable suspicion under the Fourth Amendment and the voluntary citizen initated contact with a police officer that is not subject to the Fourth Amendment is not always easy to determine. As with the reasonable suspicion test, the courts consider the totality of the circumstances and ask whether a reasonable person in the same set of circumstances faced by the person in the case under review would have believed that he was free to terminate the contact at any time and drive away rather than remain and submit to the authority of the law enforcement officer until released.

This issue was raised by the prosecution in Crane-Station’s case. The trial judge agreed with the prosecution and ruled that the arresting officer, McCracken County Sheriff Deputy Eddie McGuire, did not require a reasonable suspicion to pull her over because she had voluntarily initiated a citizen-police contact to which the Fourth Amendment did not apply.

Consider the following evidence, apply the legal rules that I have set forth and explained for you, and see if you agree with the trial judge’s conclusion.

At the suppression hearing on November 27, 2006, Deputy McGuire testified that he was dispatched to investigate a 911 call. After he arrived, he checked the neighborhood for a few minutes looking for a dark blue Buick LeSabre with Washington plates that was described by the caller. When he did not find it, he cleared the call and headed back toward town on U.S. Highway 60.

(Note: The content of this call has been discussed in a previous article (link). Briefly, the caller told the 911 dispatcher that the driver of the vehicle had mentioned “something about tar heroin and all that stuff” while talking to his neighbor in the neighbor’s yard and writing in her notebook. Since this information, even if true, describes what someone said to another person that may or may not have been witnessed by the caller and it does not describe a crime or an attempt to commit a crime, the call was insufficient to cause a reasonable person to suspect that the person described by the caller had committed, was committing, or was about to commit a crime. To conclude otherwise would be to hold that police officer may lawfully seize and investigate any person who mentions the name of a controlled substance to another person. Such a rule not only would dispense with the requirement that the suspected behavior be criminal in nature, it would violate a person’s right to freedom of speech under the First Amendment.)

As McGuire approached the traffic-light controlled intersection at U.S. Highway 60 and Cairo Road, he suddenly realized that he was passing a vehicle that matched the description provided by the 911 caller. After admitting that he did not know how fast he was driving as he approached and drew alongside her vehicle (Suppression Transcript p. 13), he said,

As I was passing the vehicle she had her left blinker on as if she was going to turn out in the passing lane, but she never did.

And then as I was going to go ahead and go past her, I noticed that the license plate – it was a Washington license plate was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me, and then when I pulled in behind her, she pulled over.

(Suppression Transcript p. 6)

The prosecutor asked him when he turned on his emergency lights and he said,

I just pulled in behind her, and she started to pull over. That’s when I lit her up.

(Suppression Transcript p. 6)

On cross-examination, defense counsel asked McGuire if she “was driving appropriately.” He said,

I was going – yes. She didn’t bring my attention as far as weaving or nothing like that. Speed wasn’t a factor.

(Suppression Transcript p. 13)

Defense counsel focused on the blinking left-turn signal with a few questions.

Q: Okay. And apparently, your testimony is that she had on her turn signal?

A: She had her left-turn signal on as if she was going to come into the left lane. That’s what brought my attention to that vehicle to begin with. And then as I was passing her, I noticed it had Washington tags.

Q: So I guess there’s at least a possibility she was going to move into the left lane and –

A: Right.

Q: — saw your vehicle and elected not to?

A: Correct. That’s possible.

(Suppression Transcript pp. 12-13)

Defense counsel asked him to describe when she activated her right-turn signal. He said,

A: She turned her other turn signal on when she was going into the emergency lane just to stop.

Q: When she was getting ready to pull over?

A: Yes.

(Suppression. Transcript p. 15)

When defense counsel asked him if he activated his lights “even before she came to a complete stop,” McGuire answered, “Correct.” (Suppression Transcript p. 14)

Q: So, technically, you did stop the vehicle?

A: I was going to, anyway, yes. When she started to pull over, I just went ahead and turned my lights on.

Q: When you fell in behind her, she pretty much –

A: She – yeah. I suppose she assumed I was going to stop her, so she went ahead and pulled over anyway.

Q: Safe assumption under those circumstances?

A: Right.

(Suppression Transcript 14-15)

Consider also that Deputy McGuire wrote in his Uniform Citation and Offense Report that he stopped her, which he confirmed in testimony under oath at the Preliminary Hearing and before the Grand Jury.

In addition, on October 17, 2006, Assistant Commonwealth’s Attorney (now a McCracken County District Court judge) Christopher B. Hollowell prepared and filed the Commonwealth’s Bill of Particulars declaring in pertinent part under penalty of perjury that Deputy McGuire “stopped” her vehicle.

(Note: this is also admissible non-hearsay as a declaration by a party opponent that arguably should be dispositive of the legal issue. See Part 1 of my four-part series on the hearsay rule.)

The critical question then is whether a reasonable person in Crane-Station’s position would have pulled over into the emergency lane and subsequently stopped her vehicle after a police officer, who had pulled alongside her, slowed down, fell in immediately behind her, and activated his emergency lights as she moved over into the emergency lane?

We do not believe the answer to this question is reasonably debatable, especially since the officer who pulled her over wrote in his report and consistently testified under oath at three different pretrial hearings that he “stopped” her. Finally, in the suppression hearing, he testified that he intended to stop her and he conceded that her reaction to his behavior by pulling over and stopping was reasonable under the circumstances.

He was the only witness who testified at the suppression hearing.

We believe that only outcome driven judicial mendacity by the trial judge and the Court of Appeals, aided and abetted by a strong dose of prosecutorial legerdemain in formulating an argument unsupported by the police officer, who was the only witness, could conclude on this set of undisputed facts that Crane-Station voluntarily initiated a citizen-police contact.

Author’s disclosure: Crane-Station is my wife. We were married and I was a law professor when this incident intruded into our lives.

Cross posted at my new law blog and at the Smirking Chimp.

Lighter Side of the Frog Blog:

Written by Masoninblue and published full text here with permission

The term “criminal banksters” has become an established part of our language to refer to the people who operate the too big to fail (TBTF) multinational Wall Street banks that practice an especially virulent and destructive form of worldwide predatory capitalism in which their profits are privatized to pay multimillion dollar bonuses to their CEOs disbursing the rest to investment managers and bank shareholders while their losses are socialized. That is, covered by the United States taxpayers without their consent.

This relationship basically functions like a super efficient vacuum cleaner sucking all the wealth out of the economy and redistributing it among the wealthiest 1% of the population, and especially the top 0.1%. As such, it imperils the economy and constitutes a clear and present danger to the Rule of Law, particularly the notion of equal justice under law, the Constitution, the Bill of Rights, and democracy itself. (more…)

Reprinted by permission of my husband Masoninblue, who is the author. His website is http://masonbennu.wordpress.com/

Welcome back, class.

First, here’s a clip showing the best opening statement that I have ever seen.

Before we review the remaining exceptions to the hearsay rule, I want to emphasize the difference between the present-sense-impression exception, which is a statement by the declarant reacting to an event as it happens or shortly thereafter, and the excited utterance exception, which is a statement reacting to an event while under the influence of the emotional response caused by the event. For example, let’s return to our cozy couple, Amy and Beauregard, lost as they are in each other’s eyes to the eternal frustration of the waiter and owner of the restaurant, who want to lock-up and go home. Let’s also move the dinner to a month after the accident.

Beauregard nudges the bill aside and reaches for Amy’s hands saying, “I’m so sorry, honey. Tears and mascara are strolling hand in hand down her lustrous apple cheeks and falling on the white linen tablecloth, staining it. “You liked Peter, didn’t you?”

“Yes. Even though he was my boss and kind of nerdy. I’ll never forget his screams. I never heard someone scream like that. It was awful, Beau.”

“How did it happen?”

“Igor Ivarson ran the red light and hit him in the crosswalk and he bled to death right in front of me.” She sobbed and squeezed more tears from her baby blues.

Okay, is her statement admissible under the present-sense-impression exception?

No, because her statement describes an event that occurred a month earlier.

Is her statement admissible as an excited utterance?

Yes, because she was under the emotional influence of the event.

Note that this exception has been used to introduce the statements of sexual assault crime victims, particularly children under the age of 5, even though they were being questioned by adults, social workers, or police using leading questions, and even though the child never testified at the defendant’s trial. This is an especially difficult situation for prosecutors, defense attorneys, and judges, not to mention the children and the defendants. Young children are particularly susceptible to forming false memories regarding incidents that never happened when authority figures question them with leading questions, e.g., “Is that when your daddy touched you in your private place?”

Now, beginning with the third exception, since we already have discussed the first two, let’s move on to the other hearsay exceptions in which the availability of the declarant is immaterial:

3. Statement about a then existing mental, emotional, or physical condition;

4. Statements to medical personnel for purposes of medical diagnosis (Yes, what you tell your doctor about a preexisting medical condition is admissible under this exception to the hearsay rule in a legal proceeding between you and your insurance company to determine whether coverage was properly denied);

5. Statements that were recorded to preserve recollection at a time when the declarant had knowledge of the event described, but has now forgotten (this exception happens more and more now, given how many years can pass between an incident and when a legal proceeding regarding that incident finally happens);

6. Records of regularly conducted business activity that were prepared as part of the business, as opposed to generated for purposes of litigation;

7. Absence of an entry in records kept in (6);

8. Public records and reports;

9. Records of vital statistics;

10. Absence of public record or entry;

11. Records of religious organizations;

12. Marriage, baptismal, and similar certificates;

13. Family records;

14. Records of documents affecting an interest in property;

15. Statements in documents affecting an interest in property;

16. Statements in ancient documents;

17. Market reports and commercial publications;

18. Learned treatises;

19. Reputation concerning personal or family history;

20. Reputation concerning boundaries or general history;

21. Reputation as to character;

22. Judgment as to previous conviction; and

23. Judgment as to personal, family, or general history or boundaries.

There are an additional 6 exceptions to the hearsay rule when the declarant is unavailable to testify and be questioned about the statement:

1. Former testimony, if the party, or predecessor in legal interest, against whom the statement is being offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination;

2. Statement under belief of impending death concerning the cause of circumstances of what the declarant believed to be impending death (e.g., the so-called dying declaration);

3. Statement against interest (i.e., a statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. By the way, regarding the Troy Davis legal case: a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement);

4. Statement of personal or family history; and

5. Forfeiture by wrongdoing (i.e., a statement offered against a party that has engaged in or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness).

Y’all can look up these rules on line for further information. Once again, the rules are FRE 801 defining hearsay, FRE 802 which says hearsay is not admissible except under these rules, FRE 803 which list 23 exceptions where hearsay is admissible regardless if the declarant is available to testify, and FRE 804, which lists 5 exceptions where hearsay is admissible, if the declarant is not available to testify.

Again, the states apply substantially the same rules in state courts and they follow the same numbering system, which makes it easy to find the corresponding state rule and compare the two.

Finally, never forget that a statement by a declarant that is NOT offered to prove the truth of the matter asserted in the statement is NOT hearsay!

Cross posted at my website and at the Smirking Chimp.

Written by Masoninblue and reprinted, full-text, here, with permission. Please also refer to the other two Hearsay articles written by Masoninblue, and also, he will be writing a followup on exceptions to the Hearsay Rule. Masoninblue’s website is http://frederickleatherman.wordpress.com/

Philosophical thought for the day: A rule is not a rule without exceptions, and there are no exceptions, damnit!

Good afternoon class.

Welcome to Hearsay 103.

There are so many exceptions to the hearsay rule that one might almost say the exceptions have swallowed the rule. I will discuss several of them in some detail and merely list the others because they do not come up all that often and they are not difficult to understand. For future reference, you can find them listed in rules 803 and 804 of the Federal Rules of Evidence, which are cited as FRE 803 and FRE 804. By the way, most of the states have adopted the Federal Rules of Evidence with minor changes and they use the same numbering system. Most of the minor changes are due to a state modifying the federal rule in order to retain the rule or a favored part of the rule that the state used to follow. For your information, the rules of evidence were promulgated by the various supreme courts pursuant to their rule making authority under the state constitutions. For the most part, judges and lawyers in all state and federal courts play with the same set of evidentiary rules and that is a good thing.

As I pointed out in our first class regarding the hearsay rule, the rule is designed to exclude unreliable evidence. Why bother? you might ask. The answer is that all of the rules are designed to filter the evidence that jurors get to hear so that they will not place undue emphasis or reliance on evidence that has little weight or importance. Put another way, judges and lawyers do not trust jurors, so they want to censor what they get to consider. The hearsay rule is a good example.

Recall our example in the first class involving the hapless Peter Piper who will never get to pick his fabled peck of pickled peppers due to Igor Ivarson’s storming rampage through the red light slamming Mr. Piper’s immortal soul through the uprights of heaven leaving his fractured mortal coil bereft and alone in a puddle of blood in the crosswalk of life. Ah, yes. T’was a pity, indeed.

So, we had B, let’s give him a name and call him Beauregard, shall we? Okay, and let’s also give A a name and call her Amanda. So, Beauregard is on the witness stand and the prosecutor asks him,

“What if anything did Amanda say to you at dinner about something that happened at the intersection?”

But for the hearsay objection by defense counsel that any reasonably conscious and sentient judge would have sustained because the answer is offered to prove the truth of the matter asserted in the statement, Amanda would have answered,

“Igor Ivarson ran right through the red light and hit Peter Piper in the crosswalk.”

You see, judges and lawyers fear that, if jurors heard the answer, they might place undue emphasis on the un-cross-examined statement of a witness who never actually testified. How can they reasonably and reliably assess Amanda’s credibility by listening to Beauregard drone on about dinner with Amanda?

Enough said.

Now, let’s tweak our fact pattern so that we remove Amanda and Beauregard from their cozy repast at their intimate restaurant and place them together at the intersection with Beauregard talking to his wife on his cell phone while staring at the sky when Igor Ivarson hits the unfortunate Peter Piper. He does not see the accident, but Amanda does. She utters a scream and says, “Oh my God. Igor Ivarson ran the red light and hit Peter Piper in the crosswalk.”

Flash forward to trial again with Beauregard on the stand and the prosecutor now asks,

“When you were standing on the corner of the intersection talking on your cell phone, what, if anything, did you hear Amanda say?”

Assume you are defense counsel and you stand up and say, “Objection, your Honor. The question calls for hearsay.”

What happens?

Well, I’ll tell you what happens.

The judge says: “Objection overruled. You may close your mouth and sit down, counsel.”

Saying, “But Judge. Professor Masoninblue says that’s hearsay because its offered to prove the truth of the matter and besides, we all know that we don’t trust juries, right Judge?” will not help you.

Welcome to the first two and likely most often used exceptions to the hearsay rule: Present Sense Impression and Excited Utterance.

FRE 803(1) defines a Present Sense Impression as follows:

A statement describing or explaining an event or condition made while the declarant was perceiving the event, or condition, or immediately thereafter.

FRE 803(2) defines an Excited Utterance as follows:

A statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition.

Amanda’s statement is admissible hearsay under both the present sense impression and excited utterance exceptions to the hearsay rule.

Why make an exception for these two types of statements and not the statement during the conversation at dinner?

Because the declarant, Amanda, was “describing or explaining an event or condition while [she] was perceiving the event”, and she was “under the stress of excitement caused by the event.” Her statement was an immediate reaction to the accident. She did not have an opportunity to reflect, reconsider, and possibly change or even forget her statement. For that reason, her statement is regarded as sufficiently accurate and reliable to be admitted into evidence, even if she does not testify and is not subject to cross examination.

In fact the availability of the declarant to testify at a hearing or trial is immaterial to all of the 23 exceptions to the hearsay rule that are listed in FRE 803.

I see that we are at 1000 words, so we have reached the end of today’s class and we’ll have to continue our study of the exceptions to the hearsay rule tomorrow.

Time flies when you’re having fun.

Written by my husband Masoninblue, and reprinted, full-text, here with permission.

Good afternoon, class.

Now that you are experts regarding what constitutes hearsay, let’s take a look at an interesting issue in Crane-Station’s case.

The arresting officer, McCracken County Sheriff’s Deputy Eddie McGuire testified at her Preliminary Hearing that, after she was thoroughly searched at the roadside by a female officer who did not find any contraband or paraphernalia, he arrested her for DUI, handcuffed her with her hands behind her back, placed her in the backseat of his patrol vehicle, and transported her to Lourdes Hospital in Paducah for a blood draw. As he was assisting her to get out of the backseat at the hospital, she told him that her watch had fallen off her wrist during the ride and it slipped beyond her reach behind the seat. She asked him to please retrieve it, which he agreed to do.

When the returned to his vehicle after the blood draw, he unlocked the back door, pulled the seat forward, and reached beneath it to grab the watch. When he handed her the watch, he also showed her a small crumb-like object and said, “Sure looks like heroin to me.”

He also testified that he field tested the substance after he took her to jail and it tested negative for the presence of heroin. He said he did not field test it for cocaine because “We knew all along it would be crack.”

In the trial judge’s chambers before jury selection on the first day of the trial, the prosecutor asked the trial judge to prohibit the defense from mentioning during jury selection and opening statement her statement about her watch and her request to retrieve it on the ground that the statements were inadmissible hearsay unless he offered them into evidence as an admission by a party opponent, which he did not intend to do. He also asked the judge to prohibit the defense from attempting to introduce her statements into evidence during the trial or to mention them in closing argument.

The trial judge agreed despite defense counsel’s objection.

To make matters more bizarre, Deputy McGuire changed his testimony regarding how he retrieved the watch. Without mentioning her statements, of course, he said he saw her watch and the rock together in the seatbelt crack in plain view on the seat beside her before he helped her to get out of the backseat after they arrived at the hospital.

When her attorney attempted to confront him on cross examination with the deputy’s prior inconsistent testimony under oath at the Preliminary Hearing, the prosecutor objected and the trial judge sustained the objection.

In closing argument, the prosecutor argued that she had not explained why her watch was in plain view next to the rock of crack in the seatbelt crack right beside her. Not surprisingly, the jury convicted her of possessing the rock of crack and tampering with evidence (i.e., attempting to conceal it in the seatbelt crack).

Now, let’s analyze her statements. To determine if they were hearsay, we begin by asking if the defense would have offered them to prove the truth of the matters asserted in her statements.

Answer: No, because they would have been offered to show that in response to something she said, he pulled the seat forward to look for her watch and that is when he found it, handed it to her, and produced the crumb-like substance that by his own admission he “knew all along was going to be crack.”

Notice that phrased this way, it is clear that what she actually said was not important. The point is she said something and whatever it was, it prompted him to pull the seat forward and look under it where he found her watch and the crumb-like object. That is, they were not in plain view and we know that because he testified at the Preliminary Hearing under oath that that is how he found the watch and the rock.

Whenever the actual words in a statement do not matter, as is the case here, the statement necessarily is not being offered to prove the truth of the matter asserted in the statement. Make a note of this and remember it because it is very important.

Not only were her statements admissible, the deputy’s previous testimony under oath at the Preliminary Hearing was admissible to impeach his testimony about finding her watch and the rock together in plain view beside her.

The prosecutor’s incredibly sleazy closing argument commenting on her failure to explain why her watch and the rock were together in plain view, when he persuaded the trial judge to prohibit her from providing that explanation, was an atrocious improper comment on her court ordered silence.

Finally, the trial judge’s evidentiary rulings prevented her from putting on a defense in violation of her Fifth, Sixth, and 14th Amendment rights.

Namaste

Cross posted at my blog and the Smirking Chimp.

Author’s Note: Due to the length of this essay, I have decided to discuss the rest of the hearsay rule in Part 3 tomorrow.