Monday, January 31, 2005

Refusal to answer experts' questions -- what effect?

Charged with four counts of aggravated murder, the defendant filed notice of intent to plead not guilty by reason of insanity. He discussed details relating to the crimes with defense experts. Later, when he was interviewed by the state's experts, he refused to answer questions relating to the crimes, relying on RCW 10.77.020(3). Now what?

The state argued that he shouldn't be allowed to introduce any evidence of his insanity. The defense argued that he should, and that the state should not be allowed to comment on his refusal to answer.

The Supreme Court (Bridge, J.) held that he could still present the insanity defense, but that the state's experts could testify about why they were unable to form an opinion as to his sanity at the time of the crime.

"The State will not refer to his silence for the purposes of leading the jury to infer sanity. Instead, the State seeks only to explain the WSH experts' failure to form an opinion as to an issue raised by Carneh himself, namely his sanity at the time of the crimes. Any natural tendency for the jury to infer sanity from Carneh's silence can be cured by a limiting instruction, should such an instruction be sought by the defense."

Justice Sanders dissented in part: "I would hold that the State cannot comment on Carneh's assertion of that right because such a comment necessarily infers that Carneh is withholding information-information that RCW 10.77.020(3) specifically privileges him not to produce."

State v. Carneh, 103 P.3d 743 (Wash. Dec. 23, 2004). Links on majority opinion; Sanders opinion.

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Friday, January 28, 2005

National Jury Center -- basics, research, resources!

The National Jury Center of the American Judicature Society has an amazingly content-rich website. Under "Juries in Depth," it covers:

The site also has a thorough bibliography of law review articles and other works since 2000.

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Electronic filing

Electronic filing is becoming standard in federal courts. The Western District of Washington has kept only electronic case files (with a few exceptions) since June 23, 2003. (Filing procedures are here.) Electronic filing will become mandatory in the Eastern District of Washington on April 5, 2005. The Eastern District's website has a video for attorneys, including testimonials about how easy and efficient electronic files are, with a demonstration of how to file.


Thursday, January 27, 2005

ER 404, 405 and victim's past conviction

Two men were convicted of kidnapping and raping a woman. On appeal they argued that the trial court should have admitted evidence of the woman's previous conviction for domestic violence, when she was sentenced to attend anger management classes. That evidence, they argued, would "impeach her testimony that she was not the type of person to yell or become physically confrontational." Division 2 disagreed, saying that excluding the evidence was within the trial court's discretion. State v. Smith, 2005 WL 15388 (Wash. App. Jan. 4, 2005) (unpublished).

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Wednesday, January 26, 2005

What do you tell witnesses about what to expect in court?

You might know exactly what's going to happen in the courtroom or deposition room -- but what about the witnesses? See:

King County Prosecutor's Office witness information from Victim Assistance Unit.

U.S. Attorney for the Western District of Washington witness information.

What to Expect in Discovery, from the author of The Lawsuit Survival Guide (KF8863 .M28 2001 at Reference Area).

By the way, even as you learn to use the most technical works aimed at lawyers, it's good to be aware of books for nonlawyers, notably those by Nolo. Why? (1) You can refer your clients to them. (2) They are good models of clear communication of legal issues -- and you need to be able to explain law to clients and jurors. (3) Sometimes you can use a quick, clear overview yourself.

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Tuesday, January 25, 2005

"Mexican Mafia" -- prosecutorial misconduct?

In closing argument the prosecutor emphasized that defendants Ramirez-Garcia and Gonzalez "could be" members of the Mexican mafia. The only evidence was a speculative remark by one witness. Division 2 found this to be prosecutorial misconduct and ordered a new trial. State v. Ramirez-Garcia, 2005 WL 45541 (Wash. App. Jan. 11, 2005) (unpublished).

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Monday, January 24, 2005

Not a drug sniffing dog

Dot is not trained to locate narcotics, so she's not a good illustration for Illinois v. Caballes. But if you need a dog that will alert you to the presence of pigeons, call on Dot. Posted by Hello

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Supreme Court on sniffing dogs

In The Volokh Conspiracy -
Prof. Orin Kerr (George Washington) comments on today's Supreme Court decision (Illinois v. Caballes) holding that a dog sniff for narcotics is not a 4th amendment "search."

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New Rules in W.D. Wash.

The Western District of Washington has adopted the proposed amendments to:

The changes became effective Jan. 1, 2005.

Note that the changes have not yet been integrated into the local rules as posted on the court's website, but each rule there does link to the changes as proposed.


    Friday, January 21, 2005

    Jury Research Inst on voir dire

    The Jury Research Institute is a firm of psychologists and communications specialists providing consulting services to litigators. Its website includes some articles, including these on voir dire (your class topic last week):

    Voir Dire
    Six More Tips on Handling Voir Dire under "Traditional" Ground Rules
    Selecting Better Juries: The Prospective Juror Questionnaire
    Voir Dire in the Age of Juror Questionnaires and Computer Profiles.

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    Can court admit testimony about child victim's complaints to others?

    A fifteen-year-old confided in her cousin that she had been sexually abused by an uncle. Later the teenager also told an aunt and her mother. Can the three relatives testify?

    State v. Heidari, 2005 WL 91696 (Wash. App. Div. 1, Jan. 18, 2005) (unpublished), has an interesting discussion of the "fact of the complaint" doctrine.

    under the fact of complaint doctrine, the prosecution in a forcible rape case may present evidence of the fact of the victim's complaint in its case in chief. The details and particulars of the complaint are not admissible. The evidence is not hearsay because it is introduced for the purpose of bolstering the victim's credibility and is not substantive evidence of the crime.
    Moreover, the testimony may include information about the victim's emotional state:

    [The three relatives testified that the alleged victim] was 'really upset,' 'crying,' and 'shaking' at the time she disclosed to them that she had been abused. This is nonsubstantive testimony. Rather, it describes emotional state of the victim which goes to her credibility while making the report. Even if these details . . . were inadmissible under the fact of complaint doctrine, they were admissible under ER 801(d)(1). Under ER 801(d)(1), a statement is not hearsay if '{t}he declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (ii) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.'

    The court also discusses the prosecutor's closing argument, finding that some remarks based on her own experience rather than the evidence at trial were improper but the defendant was not prejudiced by them.

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    New trial practice book from ABA

    The Tort and Insurance Practice Section of the ABA has a new book:

    Creating Winning Trial Strategies and Graphics, by G. Christopher Ritter

    Gallagher Law Library: KF8915.Z9 R58 2004 at Classified Stacks. A detailed table of contents is linked from the catalog record.

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    Thursday, January 20, 2005

    You can't wait for the appeal

    When there's an error during the trial, you can't always wait for the appeal to fix it. For instance, Division One recently upheld a conviction because of the defendant’s failure to object and request a curative instruction at the time of prosecutor’s improper argument. State v. McKenzie 2005 WL 12020 (Jan. 3, 2005) (unpublished opinion). The case also illustrates some things that a prosecutor can do wrong (expressing opinion as to defendant's guilt and witnesses' credibility and appealing to passion).

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    Is refusal to take a breath test admissible?

    The results of a breath test are not always admissible. The machine has to be properly serviced and in good working order.

    In State v. Cohen, the parties agreed that the results would not have been admissible, because the machine hadn't had a recent quality check. The defendant argued (and the district judge agreed) that her refusal to take the test likewise should be excluded. But Division One held that the refusal could be admitted, as evidence of a guilty mind. State v. Cohen, available on courts website, 2005 WL 39768 (Wash. App. Jan. 10, 2005).

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    Jur-E Bulletin

    The National Center for State Courts' Center for Jury Studies puts out a free weekly newsletter via email. The Jur-E Bulletin has short pieces about juries. For instance, the Nov. 5, 2004, issue began with a report of a Supreme Court oral argument , reported on a move in Florida to require judges to give jury instructions in writing as well as orally, and, for comic relief, told an anecdote about someone trying to avoid jury service in Washington State.

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    Breath test admissible; violation of ad limine order harmless

    Division Two reinstated a DUI conviction, holding that the district court properly admitted breath test results and that a violation of an in limine order was harmless. State v. Koch, available on courts website, 2005 WL 44395 (Jan. 11, 2005).

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    "Firearms Enhancement" jury instructions

    The Supreme Court decided two cases concerning the jury instructions for “firearms enhancements”:

    · State v. Barnes, available on courts website (dissent), 2005 WL 66458 (Wash. Jan. 13, 2005) (enhancement to drug conviction)

    · State v. Willis, available on courts website (dissent), 2005 WL 20516 (Wash. Jan. 6, 2005) (enhancement to burglary and theft convictions)

    In each case, Justice Madsen wrote for the majority and Justice Sanders dissented.

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    Proposed Changes to Washington Rules of Court

    Changes to the Washington Rules of Court proposed in December include these of particular interest to trial attorneys:

    CR 1 - Scope of Rules
    CR 5 - Service and Filing of Pleadings and Other Papers
    CR 11 - Signing and Drafting of Pleadings, Motions, and Legal Memoranda; Sanctions
    CR 15 - Amended and Supplemental Pleadings
    CR 27 - Perpetuation of Testimony
    CR 28 - Persons Before Whom Depositions May Be Taken
    CR 30 - Depositions Upon Oral Examination
    CR 50 - Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings
    CR 52 - Decisions, Findings and Conclusions
    CR 59 - New Trial, Reconsideration, and Amendment of Judgments
    CR 62 - Stay of Proceedings to Enforce a Judgment
    Superior Court Criminal Rules (CrR)

    CrR 4.6 - Depositions
    CrR 4.7 - Discovery
    CrR 4.11 - Interviews of Witnesses (Proposed New Rule)

    Changes are also proposed for the CRLJ and CrRLJ.

    The comment period for the new rules expires April 29, 2005.