Letter to wife (and others) not covered by marital privilege

[CASE] The defendant clearly addressed the letter to his wife: “Kimberly, honey, I hope to God you never get to read this letter.” So why could it be admitted at his trial for the bank robbery that took place the day he left it for her?

The letter was several letters in one. Over the course of seven pages, the defendant wrote to his wife and then, on the same sheet of paper, “To Debbie, Larry, & Naomi,” and then “To Marc, Christy & Nicole, & Krystal,” and so on. Since the letter was addressed to twenty-four people and was not intended for his wife alone, the 9th Circuit affirmed the district court’s ruling that the marital privilege did not apply. United States v. Strobehn, 421 F.3d 1017 (9th Cir. Aug. 31, 2005).

The 9th Circuit also affirmed the district court’s ruling that an FBI agent could testify as an expert about the model of the shotgun in the bank robbery security photos. The defense argued that the jury could compare the photos with the gun themselves (citing a case where an expert had not been allowed to testify about the identity of a person in a photo). But the court reasoned that the FBI agent’s expertise would make him better at the comparison, since he would know what features to focus on. (The model looks like this.)

(In addition to addressing these two evidentiary issues, the panel affirmed a sentence enhancement for “forced accompaniment,” over a dissent by Judge Betty Fletcher.)

Categories: evidence, privilege, experts, firearms, sentencing, cases,

Making a Better Record: Tips from a Court Reporter to His Lawyer Child

[TIP] I just came across this piece in the August 1998 issue of the Washington State Bar News. Sure, it's an old article, but the tips are great and you probably haven't seen it (if you're a student or new to the profession) or you've forgotten it (if you dutifully read this issue of the Bar News when it hit your mailbox seven years ago).

William Macauley, a retired court reporter (whose work included depositions of H.R. Haldeman and Richard Nixon and work in the Ford Pinto and WPPSS cases) wrote Making a Better Record: Tips from a Court Reporter to His Lawyer Child. He began:

My dear child:

Congratulations on passing the Bar. You ask if I can pass along tips from my career as a court reporter that would help you in your chosen career as a trial lawyer. Boy, can I! Here's a buffet of tips you can choose from which I guarantee will help you make a better record in your practice and make you more record-conscious.

Lawyers spend years learning their craft and draft pleadings meticulously, yet when one speaks really well, we view him with wonder, gratitude and, yes, admiration. I feel safe in saying, with all due respect, that 90 percent of all trial lawyers leave room for improvement. Here are some omissions and commissions that apparently aren't dwelt upon in law school or CLE seminars, and that will help you produce a true, complete and impartial record.

Categories: transcript, record, court-reporters, tips

law.com - 9th Circuit ADR Case Tests Court's Role as Referee

[CASE] law.com - 9th Circuit ADR Case Tests Court's Role as Referee

An en banc panel of 9th Circuit judges seemed to signal Tuesday that when it comes to deciding if a mandatory arbitration agreement is fair, judges -- not arbitrators -- should have the last word.

But some judges who spoke during hour-long arguments in the closely watched case sounded wary of opening the courtroom door to litigants unhappy with arbitration. Some also wondered who should determine whether it's unconscionable to make a Californian fly to Boston for an arbitration.

* * *

From The Recorder. The case is Nagrampa v. MailCoups, 03-15955. Earlier proceedings: 401 F.3d 1024 (9th Cir. March 21, 2005) (holding that question whether arbitration clause was a contract of adhesion was for arbitrator to decide); 413 F.3d 1024 (June 28, 2005) (granting rehearing en banc).

Categories: mandatory-arbitration, cases,

Are Your Jurors Tuning Out Expert Witnesses?

[TIP] Are Your Jurors Tuning Out Expert Witnesses? offers six tips for making experts' testimony accessible to jurors. The tips are illustrated by examples from a variety of cases -- a metaphor to explain "reverse stock split," a simple picture to show the difference between "equivalent" and "identical," and so on. The article is from The Recorder (a Bay Area legal newspaper).

Categories: experts, juries, tips,

law.com - Federal Courts May Face Flood of Price-Fixing Actions

[NEWS] The National Law Journal reports:

An unlikely marriage between the Department of Justice's amnesty program in price-fixing cases and the recent reform of federal class action law has had an unexpected but profound effect on civil antitrust actions.

law.com - Federal Courts May Face Flood of Price-Fixing Actions

Categories: antitrust, class-actions, legislation, news,

District judge in Tacoma

[NEWS] Judge Franklin Burgess, Western District of Washington, has retired to senior status. A bipartisan merit-based screening committee, formed by the White House and Washington's two senators, will assist in the search for his successor. The new judge will join Judge Ronald Leighton as one of two active federal district court judges sitting in Tacoma. Information about the screening committee and the application process is on WSBA's website.

The big national news focuses on the new Chief Justice and the next new Associate Justice, but a lot of the important work of the judicial system is done in the district courts. (That's where trial advocacy takes place!)

Categories: judicial-selection, judges, Burgess, WSBA, news,

Other suspect evidence, reviewability of preliminary ruling, DNA on a "silver platter"

[CASE] When can a defendant present evidence that someone else committed the crime? Division I discussed the issue in State v. Mezquia, 118 P.3d 378 (Wash. App. Aug. 22, 2005) Find Result - 118 P.3d 378

The defendant was convicted of first degree felony murder in connection with a rape. The defense wanted to present evidence that the victim's boyfriend killed her: the night before her death, the victim had been angry at the boyfriend (who was not present) and his relationship with someone else; the victim had said she was looking for the boyfriend; the boyfriend had assaulted the victim in the past. The trial court excluded the evidence because it did not sufficiently link the boyfriend to the killing.

Division I affirmed:

A criminal defendant has a constitutional right to present a defense consisting of relevant, admissible evidence. * * * In order to be relevant, and therefore admissible, the evidence connecting another person with the crime charged must create a trail of facts or circumstances that clearly point to someone other than the defendant as the guilty party. * * *. The evidence must establish a nexus between the other suspect and the crime. * * * The defendant has the burden of showing that the other suspect evidence is admissible.

(citations omitted)

The defendant also sought review of the trial court's preliminary ruling with respect to 404(b) evidence, but the Court of Appeals found the record inadequate for review. Here's the deal: The defense had another "other suspect" for the crime, a cabdriver. The court ruled that there was enough evidence tying this man to the crime to make it admissible. The state had a witness who would have testified on rebuttal that she had been assaulted by the defendant if he raised the issue of identity. The defense asked the judge for an "advisory ruling" about whether that 404(b) evidence could come in. The court said yes. The defense decided not to introduce the evidence about the cabdriver and the prosecution did not use the 404(b) evidence. (Confused yet?) Anyway, the ruling could not be reviewed because it was only preliminary and any harm was only speculative.

The murder-rape took place in 1993. The case was open for many years. A DNA sample of saliva found on the victim was entered into a national database. In 2002, the sample was matched to a sample from the defendant, at that time in Florida. The defendant argued that it was error to admit the DNA evidence because of constitutional errors in the way Florida collected the DNA.

[T]he admissibility of the DNA sample obtained in another jurisdiction is governed by the silver platter doctrine under which evidence that is apparently lawfully and independently obtained in another jurisdiction is admissible in Washington, even if such evidence if obtained in Washington would violate Washington law.

The appellate court found that the imposition of an exceptional sentence violated the defendant's rights under Blakely v. Washington, because the jury did not find the presence of aggravating factors beyond a reasonable doubt. The conviction was affirmed and the case remanded for resentencing.

Categories: other-suspect-defense, 404(b), DNA, silver-platter, exceptional-sentence, Blakely-v-Washington, cases,

Westlaw Pleadings and Motions

I saw an ad for Pleadings and Motions databases on Westlaw. I took a few minutes to play around. It looks interesting. The documents are from a variety of state and federal courts, and include a wide range. Here's a sample:

• Petitioner's Objections and Responses to Respondent's First Set of Interrogatories
• Post-Trial Brief of Joint Defendants
• Memorandum of Law in Support of the Deutsche Bank Defendants' Motion to Exclude the Expert Testimony
• Defendant's Motion to Compel Independent Psychiatric Examination in Accordance With Federal Rule of Civil Procedure 35(a)
• Plaintiffs' Brief in Support of Cross Motion for Partial Summary Judgment and a Reply to the Motion for Partial Summary Judgment of the Defendant
• Brief in Opposition to Petition to Open Non Pros Judgment

The ad suggests that you can use these databases "[t]o see how well-thought-out legal arguments are structured" or "[a]s a starting point for framing your own documents." Sure, but note that there is no quality control -- the motion you find might have been written by an attorney who's not very good or was having a bad day. Cutting and pasting is easy, but it isn't always wise. But, with that caveat, these databases do seem useful.

It appears that Washington federal court documents are included, but not state court filings -- yet.

Categories: motions, Westlaw,

Div. 1 addresses evidentiary issues

[CASE] Division 1 addressed a variety of interesting evidentiary issues in a recent appeal from a murder conviction. State v. Moses, --- P.3d ---, ( no. 53580-3-I (Sept. 19, 2005) (published in part).

The defendant was convicted of murdering his wife. The defense offered the alternate explanation that she had committed suicide.

• Was it a violation of the defendant's confrontation rights under Crawford to admit police testimony about the wife's statements made during an interview after a domestic violence incident? Yes.
• How about admitting testimony from a doctor and a medical social worker? No, the wife's statements were made for purposes of medical diagonosis and treatment. There was not an expectation that they were "testimonial."
• [From here on is the unpublished part, with no precedential value -- but still some interest as examples of evidence in action.]
• Was it error to admit evidence about the defendant's past assault of and arguments with his wife? No. It was admissible to prove motive and res gestae.
• Was it error to exclude testimony of a defense expert who would have testified about the wife's depression and risk of suicide? No. The jury did hear testimony from four medical providers. No abuse of discretion in finding this doctor's testimony would not be helpful to the trier of fact under ER 702.
• What about the trial court's limiting the defense use of the wife's two journals? No abuse of discretion.
• What about testimony by the medical examiner and ballistics expert that the death was a "homicide"? OK: not impermissible opinion testimony.

Affirmed, but remanded for resentencing.

Categories: evidence, hearsay, Crawford-v-Wash, 404(b), experts, 702, cases,

law.com - Judicial Conference Supports Citing Unpublished Opinions

[RULES] law.com - Judicial Conference Supports Citing Unpublished Opinions.

The policy-making body of the federal judiciary on Tuesday endorsed a sweeping rule change that will allow lawyers to cite unpublished opinions in federal appeals courts nationwide beginning in 2007.

Categories: rules, unpublished-opinions, appeals, Judicial-Conference,

Program on using court records in research & teaching

[EVENT] [RESEARCH] UMKC School of Law is hosting an interesting conference Oct. 7-8 on using court records in research and teaching. I couldn't find the program announcement on the web to link to, so I'm sharing excerpts from an email message posted to several listservs by one of the organizers, Paul D. Callister. Registration form here.

Federal Civil Court Records of the National Archives: Opportunities for Empirical, Historical and Legal Research and Curriculum Design

Court Data and Selection Bias
Ahmed E. Taha, Assoc. Prof., Wake Forest Univ. School of Law
-- Prof. Taha will describe how empirical studies of litigation are subject to selection bias due to the lack of detailed data about court cases. * * *

Keynote Address:The Importance of Preserving Historic Information About the Legal System
Theodore Eisenberg, Henry Allen Mark Professor of Law, Cornell Law School
-- Prof. Eisenberg will discuss of the importance of historical knowledge about the legal system's performance in assessing contemporary debate about civil justice, such as the need for historical data about award amounts, class actions, pretrial dispositions and motions to exclude evidence.

The Long Road to Dred Scott: Suing for Freedom in the Shadow of Slavery
David T. Konig, Prof. of History and Law, Washington Univ.
-- Prof. Konig will describe the St. Louis Circuit Court Historical Records Project, * * * He will examine the way in which archival court records of "freedom suits," including that of Dred Scott, have served as the basis for interdisciplinary undergraduate research courses * * *.

Serendipity in the Stacks, Fortuity in the Archives: Preservation, Browsing, and Legal History
Michael Hoeflich, Kane Professor of Law, Univ. of Kansas
-- Prof. Hoeflich will discuss serendipitous discoveries in legal history, and history in general, deriving from unintended discoveries in collections of sources. He will also address the potential detriment to the historians of tomorrow if their historical records-to-be are destroyed today.

Researching Federal Civil Court Records
Lawrence H. Larsen, Prof. Emeritus of History, UMKC
-- * * * Prof. Larsen will speak about his use of archival records in connection with his teaching and scholarship, including the writing and publication of Federal Justice in Western Missouri: The Judges, the Cases, the Times.

The Washington University Civil Rights Litigation Clearinghouse: Using Court Records for Research, Teaching, and Policymaking
Margo Schlanger, Prof. of Law, Washington Univ. in St. Louis
-- Prof. Schlanger will describe the soon-to-be-launched Civil Rights Litigation Clearinghouse, * * *.

Using Missouri State Court Records in Socio-legal Research
Gary Kowaluk, J.D., M.A. in Sociology, Ph.D. ABD, UMKC Department of Sociology
-- Mr. Kowaluk will discuss * * * the death penalty and wrongful convictions in Missouri using data obtained from Missouri Trial Judge Reports. * * *

Categories: empirical-studies, UMKC, event,

Deposition of alleged confidential source in libel case

[CASE] Sports Illustrated reported in 2003 that Alabama football coach Mike Price had two women in his hotel room and had sex. Price (who lost his job) is suing for libel.

Price's attrorneys are trying to find the reporter's confidential source. The 11th Circuit conditioned a disclosure order on their first deposing four women, one of whom is likely to be the source. Price v. Time, Inc., 416 F.3d 1327, 1347 (11th Cir. 2005). If one of the women falsely denied that she was the source, counsel for defendant was to notify the court of her perjury.

Last week, the court addressed the issue on rehearing. In addition to the discovery challenges of a libel case with a confidential source, this case illustrates how an attorney can be bound by a concession made in oral argument:

Through their counsel defendants have steadfastly refused to divulge their confidential source for the article in question; they have attempted to shield her identity by every legal means; they have insisted that the plaintiff depose the four most likely suspects; and they have argued that deposing those women is a way to get at the truth that is less painful to their interests than requiring that they themselves disclose it. Now they say that if the confidential source lies under oath and obstructs the pathway to the truth that their counsel has urged us to take, he has no duty to remove the obstruction by reporting the lie. We have some problems with that position.

We need not resolve those problems in this case. We asked counsel during oral argument if he would inform the district court should the confidential source falsely deny under oath that she is the source. He assured us he would. We took that assurance into account in reaching our decision. That is enough to hold counsel to his word. Even if lawyers cannot be counted upon to inform the court on all occasions when a witness is perjuring herself, we think courts still have the right to hold lawyers to their word. And counsel for the defendants, to be fair, does not suggest to the contrary.

The court accepted a compromise the attorney presented. If the clients revealed the source -- which they would be required to if it wasn't revealed by the depositions -- then it would be unnecessary for the attorney to disclose the perjury because it would be evident.

We amend our prior opinion in only this respect: Insofar as our decision is concerned, if the confidential source falsely denies under oath that she is the confidential source, counsel for the defendants has no obligation to report her perjury to the court if his clients’ disclosure pursuant to our decision reveals her identity as the source. If for any reason his clients’ disclosure does not reveal that the witness lied when she denied being the confidential source, counsel will be obligated to report her perjury to the court. This solution will remove counsel from the difficult situation he is in, unless his clients attempt to defy a court order, and we are confident they will not do that.

Price v. Time, Inc., No. 04-13027 (11th Cir. Sept. 16, 2005).
The Fulton County Daily Report's article about the case is here.

The 11th Circuit is not one of the jurisdictions this blog usually watches. For a local angle, recall that Mike Price had just left his coaching position at Washington State University when this story broke.

(I'm not obsessed with sports -- it just happens that interesting discovery cases involve college sports two days in a row.)

Categories: depositions, confidential-source, libel, sports, press, cases

Newspaper access to litigation documents

[CASE] The San Diego Union-Tribune used California's Public Records Act to seek documents from litigation between former athletic department employees and San Diego State University. The trial court granted the request; on review, the Court of Appeals last week set aside part of the order but left in place the part compelling disclosure of deposition transcripts. Board of Trustees of California State University v. Superior Court, --- Cal. Rptr. 3d ---, 2005 WL 2219693 (Sept. 14, 2005), Find Result - 2005 WL 2219693.

• Does the Public Records Act's exemption of documents from pending litigation apply to correspondence between opposing counsel? Yes. The lower court's order compelling disclosure of some correspondence is set aside.
• Does it apply to depositions? No. The depositions are available to the public anyway under another statute (absent a protective order), so the parties have no expectation that they would remain private during litigation.
• Must trial judge conduct an in camera inspection before ordering disclosure of the document? No.

The most recent article I found in the newspaper (in an admittedly quick search) was from July 3: Trainer says Aztecs dump urine samples taken for drug screens.

Categories: depositions, sealed-records, public-records, sports, press, cases

NWIRP awards

[NEWS] At its annual gala Saturday evening, the Northwest Immigrant Rights Project honored:

• Gillian Dutton, Northwest Justice Project and director of the UW's Refugee and Immigrant Advocacy clinic, (Golden Door Award).
• Rep. Phyllis Gutierrez Kenney (Golden Door Award).
• Cozen O'Connor (Amicus Award). This firm's commitment is impressive. Immigration law is not one of the firm's regular practice areas, but about a third of the attorneys in the Seattle office have taken on asylum cases in cooperation with NWIRP -- 14 cases so far!

Categories: NWIRP, Cozen-O'Connor, Dutton, Kenney, UW, event

Trials vs. non-trial dispositions

[RESEARCH] Beyond the Vanishing Trial: A Look at the Composition of State Court Dispositions presents statistics on trends in state court trials, both civil and criminal.

As documented in “Examining Trial Trends in State Courts: 1976-2002,” the use of trials by the nation’s general jurisdiction courts has been declining over the past two decades.[1] From 1976 to 2002, jury trials decreased by 15 percent for criminal cases and 32 percent for civil cases, while bench trials declined 10 percent and 7 percent, respectively. This decline in trials took place at the same time as dispositions increased by over 100 percent for both case categories.

The phenomenon of the “vanishing trial” has prompted interest in the manner in which court cases are disposed and has led to varying theories as to why the use of trials is declining.[2] In anticipation of these discussions, the NCSC included in its State Court Disposition Trends database information on non-trial dispositions, and this article presents the first findings related to non-trial disposition trends in the state courts.

This is one article from the forthcoming "Trends Report" from the National Center for State Courts.

Categories: NCSC, statistics, empirical-studies

Outstanding lawyer awards to two Trial Ad lecturers

The June issue of the KCBA Bar Bulletin profiled recipients of KCBA's annual awards. Note our own Trial Ad lecturers, Felix Gavi Luna (Outstanding Young Lawyer) and Thomas W. Hillier II (Outstanding Lawyer).

Categories: KCBA, UW, Luna, Hillier

Advice for dealing with the press during litigation

[TIP] This month's issue of the KCBA's Bar Bulletin offers: Steve Boyer, The Proper PR Approach -- When Reporters Call on Litigation, the Riskiest Response is 'No Comment.'

(Note: next month, this September article will have a new link.)

Categories: press, tips

Ethics scholars: recusal on moral grounds inappropriate

As noted yesterday, twelve legal ethics scholars have written a letter to the Tennessee Supreme Court expressing their concerns about the practice of some judges to recuse themselves from all cases of juveniles seeking a judicial bypass of the parental consent requirement for abortions.

One the one hand, judicial recusal is ethically appropriate and perhaps required when a judge is convinced that his or her moral views render the judge unable to decide facts and law impartially in a particular case. Such instances occur rarely. However, the blanket use of recusal to avoid a particular category of unpopular cases is inappropriate, especially when coupled with a public statement or signaling of the reason for recusal by a judge acting individually or in apparent collective action with other judges. Such action is inconsistent with the judicial duty to decide cases assigned to the judge, undermines confidence in the judiciary’s commitment to uphold state law, stamps other judges unfairly with the charge that they approve of all laws that they implement, and puts pressure on other judges to follow suit in order to win reelection to the bench or to gain elevation to a higher court.

Thanks to Prof. Susan P. Koniak, one of the twelve scholars, for providing me with a copy of the letter.

Categories: recusal, judges, ethics, abortion, Koniak, news

On Moral Grounds, Some Judges Are Opting Out of Abortion Cases - New York Times

[NEWS] Because they are morally opposed to abortion, some judges in Tennessee are refusing to hear petitions from pregnant teenagers who seek, following statutory provisions, to bypass the parental consent requirement. On Moral Grounds, Some Judges Are Opting Out of Abortion Cases - New York Times

A group of twelve legal ethics scholars sent a letter to the Tennessee Supreme Court last month.

The experts called his action lawless and said they feared that his approach could spread around the nation and to subjects like the death penalty, medical marijuana, flag burning and even divorce.

"Unwillingness to follow the law," the letter said, "is not a legitimate ground for recusal."

A spokesperson for the court system said that the Tennessee Supreme Court would not act on the letter, but invited the professors to file a formal complaint with the Tennessee Court of the Judiciary.

According to the article, only four of the nine circuit judges in Shelby County (Memphis's county) will hear such petitions.

If the voters in one county disagree with the statewide legislature, then they could pressure elected judges not to enforce legislation, creating a situation where citizens in one county have access to safeguards unavailable in another.

Categories: judges, recusal, ethics, abortion, news

New DUI law tossed out by judges across state

Washington's 2004 statute on DUI evidence has met with varied reactions in the lower courts, generally negative. Now the Washington Supreme Court has agreed to hear a challenge. New DUI law tossed out by judges across state, Seattle PI, Aug. 5, 2005.

Defense attorneys say judges have kept hundreds, if not thousands, of breath tests out of court because of the flaws.

One potential problem with the new law is that it tells judges to "assume the truth" of the prosecutor's evidence -- often police officers' testimony -- and look at it "in a light most favorable to the prosecution or the department" in deciding whether breath-test results can be used in trial.

"What the Legislature is doing is essentially telling the judge who to believe in the courtroom," said attorney Ken Fornabai, who has challenged the laws in many suburban courts and will do so this month in King County District Court in Seattle. "It's sort of like having a crooked referee."
* * *
But Pamela Loginsky of the Washington Association of Prosecuting Attorneys, who will defend the law at the Supreme Court, said Washington has more stringent procedures than most states to make sure breath-test results are accurate, including a requirement to have the driver blow into the machine twice.

She said the new law simply makes it so that breath tests are treated the same way as other scientific evidence, such as DNA or fingerprints, in court.

The law is Laws of 2004, ch. 68. The part about making inferences in favor of the prosecution is in section 4(4)(b), codified at RCW 46.61.606:

(b) For purposes of this section, "prima facie evidence" is evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved. In assessing whether there is sufficient evidence of the foundational facts, the court or administrative tribunal is to assume the truth of the prosecution's or department's evidence and all reasonable inferences from it in a light most favorable to the prosecution or department.

The case, City of Fircrest v. Jensen, has not yet been set for argument.

Admissibility of out-of-state medical marijuana card

[CASE] At her trial for possession and manufacture of marijuana, the defendant was not allowed to introduce evidence of her California medical marijuana card. Division 2 affirmed.

First the court noted that the defendant had not included the California authorization in the appellate record and thus upheld the trial court's determination.

The appellate court nonetheless addressed whether a California doctor certification could meet the requirements of the Washington medical marijuana statute (RCW 69.51A.010). Answer? No -- so a Washington defendant could not be a "qualifying patient" under Washington law even if the California card had been admitted.

State v. Tracy, 115 P.3d 381 (Wash. App. July 12, 2005), Find Result - 2005 WL 1620315.

Is absence of criminal record admissible character evidence?

[CASE] A passenger's dispute with a bus driver led to police involvement, during which the passenger cursed and struck an officer. She was convicted of third-degree assault, obstructing a police officer, and resisting arrest. On appeal, she argued that the trial judge erred in excluding evidence that she had no criminal history. Division 2 affirmed. State v. Mercer-Drummer, --- P.3d ---, 2005 WL 1743891 (Wash. App. July 26, 2005) (published in part), Find Result - 2005 WL 1743891.

Rather than offering testimony from another witness that she was a "law abiding citizen," Mercer-Drummer attempted to testify herself to the absence of an arrest record. ER 405(a) requires the proof be by evidence of reputation. The trial court correctly excluded Mercer-Drummer's testimony based on this clear requirement.

In the unpublished part of the decision, the court addressed an argument that the officer who testified impermissibly expressed an opinion as to Mercer-Drummer's guilt. In describing the incident, the officer testified "That's when I was assaulted" and, later, "we're just trying to get her in cuffs, in custody, basically - for one, I was just assaulted." The court concluded that the officer's use of the word "assault" was merely descriptive and did not constitute an opinion as to the defendant's guilt with respect to the charge of "assault."

Judge Bridgewater dissented:

I respectfully dissent. The majority follows the opinion in State v. O'Neill, 58 Wash.App. 367, 793 P.2d 977 (1990), in upholding the trial court's decision to exclude the testimony by the defendant as to her good character. I would follow the well-reasoned dissent in O'Neill because I agree that "the character of being law abiding is pertinent to rebut any criminal charge." * * * I agree that a "criminal defendant has a constitutional right to testify in his own defense as to his character for law abidingness as incident to his Sixth Amendment rights under the United States Constitution and article 1, section 22 of our constitution." * * * I would reverse and remand for a new trial.

Ressam judge decries U.S. tactics

[NEWS] Last week, Judge John Coughenour sentenced Ahmed Ressam, the man convicted of attempting to bomb LAX, to 22 years in prison. Judge Coughenour commented that the trial showed the the U.S. legal system can try terrorist -- contrary to those who argue for secret tribunals, prolonged detention, and so on. The Seattle Times: Ressam judge decries U.S. tactics

Judge Coughenour said:

I would like to convey the message that our system works. We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.

I would suggest that the message to the world from today's sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart. We can deal with the threats to our national security without denying the accused
fundamental constitutional protections.

Despite the fact that Mr. Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury of 12 ordinary citizens.

Most importantly, all of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel.

The tragedy of September 11th shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism. Unfortunately, some believe that this threat renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won.

It is my sworn duty, and as long as there is breath in my body I'll perform it, to support and defend the Constitution of the United States.

Transcript (on Seattle Times website). For a profile of Judge Coughenour, see Seattle Times: Maverick who speaks his mind.

Swearing to tell the truth -- on what book?

[NEWS] The North Carolina statute provides that witnesses should place their hand on "Holy Scriptures," but what counts? A court ruled that only the Bible counts and a Muslim could not swear on the Quran. The ACLU is challenging that decision. ACLU Sues Over Court Oaths - Raleigh Durham News & Observer, July 27, 2005.

Non-believers may affirm that they are telling the truth instead of using Holy Scriptures. The problem is when people of non-Christian faiths want to use the scriptures that are holy to them. Interestingly, the law was changed to "Holy Scriptures" in 1985 -- in its earliest version (1777) the oath was to be administered upon "the Gospels."

(By the way, I got the lead to this story from How Appealing, a blog well worth watching for comments on appellate litigation and general legal news.)

Filed in: witnesses, Bible, Quran, ACLU, How-Appealing

New evidence casebook

[BOOK] Prof. Peter Nicolas has written a new casebook on evidence: Evidence: Problems, Cases and Materials. According to the publisher's description,

This new casebook provides a comprehensive, problem-based approach to the rules of evidence. Organized around the federal rules of evidence, this casebook is more comprehensive than most in that it provides coverage of every single rule of evidence, down to the most obscure exceptions to the hearsay rule. Yet, through careful case choice and editing, Nicolas has produced a book that can easily be taught from cover-to-cover in as few as three semester hours.

Key features of the casebook include 89 in-depth problems that are designed to teach all the nuances of the rules, an enriched section on scientific evidence, application of the rules to electronic evidence, and appellate review of evidentiary rulings. In addition, the casebook incorporates the Supreme Court’s recent Confrontation Clause decision in Crawford v. Washington, as well as pending proposed changes to Rules 404, 408, 606, and 609.

The book is currently on Course Reserve (for the summer school Evidence Course), at KF8934 .N53 2005. When it's not on Course Reserve, it will be available in the Classified Stacks.

Filed in: evidence, books, Nicolas, UW

Admissibility of criminal defendants' taste in entertainment

[RESEARCH] Should the prosecution be able to use evidence that a defendant listens to gangsta rap or death metal, plays violent video games, or reads gruesome books? In a recent law review article, Prof. Helen A. Anderson examines the different treatment of producers of these works (when sued civilly or censored in some way) and the consumers of the works (when tried for violent crimes). The producers are protected by the First Amendment -- but First Amendment arguments are not always even raised on behalf of the consumers.

Helen A. Anderson, The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899 (2004).

Prof. Anderson recommends:

The First Amendment does not erect a barrier to the admission of relevant evidence, but neither should it be completely trodden underfoot whenever the state seeks to introduce evidence of a defendant’s taste in books, movies, or music. Where such evidence is likely to be extremely prejudicial, as it will always be when the state seeks to tie violent entertainment to the crime, courts should require more than a mere similarity between the crimes depicted and the crime charged. In addition, reviewing courts should not give trial courts broad discretion to determine whether the defendant’s constitutional rights are affected; constitutional issues should be reviewed de novo as questions of law. Finally, courts should engage in harmless-error analysis cautiously.

Id. at 936.

Prof. Anderson observes that producers and consumers may have been treated differently with respect to these First Amendment issues because of resource disparities. An entertainment corporation defending a suit may hire teams of expensive lawyers while most criminal defendants are represented by public defenders with overwhelming caseloads. It shouldn't be surprising then that the criminal cases don't have the constitutional issue briefed fully.

Prof. Anderson states that "better lawyering, beginning with timely and accurate objections, could go far toward changing the outcome with respect to consumption evidence in criminal trials." She hopes that the article "will help to alert defense counsel to the First Amendment issues at stake." Id. at 942.

Filed in: evidence, first-amendment, entertainment, criminal-law, Anderson, UW

Advice for clients: dress conservatively in court

[TIP] "Dressing for court appearances not a casual affair" says the Benton County (Arkansas) Daily Record. The article includes some amusing and illustrative anecdotes, including the story of a witness in a battery case who was held in contempt for wearing a T-shirt that said "Wanna raise some hell?" on the front with "Hell Yeah!" on the back.

Filed in: clothing, tips, witnesses

Day on Torts: Flow Sheet for Handling a Personal Injury Case

[TIP] Tennessee lawyer John Day offers a Flow Sheet for Handling a Personal Injury Case.

Filed in: personal-injury, tips, Day

How to Screen Cases

[TIP] Here's a simple three-part test from the South Carolina Trial Law Blog: How to Screen Cases.

And, speaking of evaluating cases, here's a tip from the Illinois Trial Practice Weblog on evaluating class actions: Evaluation of Potential Class Actions: Is There a Way to Settle the Case?

Filed in: tips, practice-of-law, South-Carolina-Trial-Law-Blog, Illinois-Trial-Practice-Weblog

Duffy Graham: The Consciousness of the Litigator

[BOOK] In The Consciousness of the Litigator (KF306 .G724 2005 at Reference Area), Duffy Graham

examines the moral consciousness of the litigator * * * and explores the role of the lawyer in American political and social life and in the judicial process and plumbs his understanding of himself, his work, and especially his sense of right and wrong.

The publisher suggests that this book should be "a must-read for the many law students, scholars, and practicing litigators who struggle to reconcile ethical questions with the dictates of their highly commercialized professions."

University of Michigan Press description.

Filed in: books, ethics, practice-of-law, Graham

Law students undertake Titanic trial

Last week ten students at Baylor presented a mock trial in which families of victims sue the Titanic's owner, its builder, and the manufactuer of its radio equipment. The mock trial culminated a required trial practice class. Law students undertake Titanic trial, Waco Tribune-Herald. A press release from the law school has more information about the class.

The Waco newspaper stated: "The U.S. and British governments conducted inquiries into the sinking, but no lawsuits went to court." That's not exactly right. In fact, there was a bench trial in the U.S. (settled after closing arguments) and a jury trial in England. (Before the U.S. trial, there was litigation, up to the U.S. Supreme Court, over whether the U.S. Limitation of Shipowners' Liability Act applied to a foreign-flagged vessel. The Supreme Court held that it did.) See Robert D. Peltz, The Titanic's Legacy: The History and Legal Developments Following the World's Most Famous Maritime Disaster, 12 U.S.F. Mar. L.J. 45, 51-58 (1999-2000).

Even if it's not true that there were NO trials related to the Titanic, it's certainly safe to say that there was nowhere near the litigation there would have been today -- and the lawyers certainly didn't use the computer simulations the Baylor students used.

Much of the litigation over losses arising from the TITANIC disaster was filed in the United States. It has been estimated that the total claims actually filed for loss of life and property damage amounted to only $16 million, which would be the equivalent of over $275 million today. Had the disaster occurred today, potential claims would certainly total much more than $275 million. The relatively low figure can be explained by differences in attitudes toward litigation for personal injuries and wrongful death in 1912 and today. Most socially prominent families of the time thought it demeaning to "put a price tag on a gentleman's life." For example, the Astor, Widener, Guggenheim, and Strauss families filed no claims for the deaths of these extremely wealthy and prominent men. While the Thayer family filed a claim for their lost luggage, they did not file a claim for the death of John Thayer. The widow of Broadway producer Henry B. Harris filed the largest claim, in the amount of $1 million.

Id. at 51-52 (footnotes omitted).

Filed in: event, mock-trials, famous-trials, Titanic, Baylor, Peltz

The Supreme Court Nomination Blog

[NEWS] Justice Sandra Day O'Connor has announced her retirement. For commentary and useful links (e.g., to interest groups' reactions), see
The Supreme Court Nomination Blog, hosted by Goldstein & Howe, a DC law firm specializing in Supreme Court litigation.

For a more irreverent look at Justice O'Connor (and federal courts generally), see Underneath Their Robes.

Filed in: SupremeCourt, judicial-selection, O'Connor, Supreme-Court-Nominations-Blog, Underneath-Their-Robes,

Homeless Veteran's Court proposed

[NEWS] The homeless may be overwhelmed by comparatively insignificant charges. An article by Amy Roe in the current issue of the homeless paper Real Change explains:

It doesn’t snow much in Seattle, but even in the heat of summer many of this city’s homeless are all too familiar with the snowball effect: A homeless person is fined for a misdemeanor offense, like urinating in public, but fails to pay it because he doesn’t have the money. Eventually the double-digit ticket becomes an outstanding warrant.

In 1989 San Diego set up a homeless court, bringing together legal services and social services. When people are in the program, they may be able to enter into plea agreements that give them credit for actions such as participating in substance abuse or anger management programs. Other cities have also tried these special courts, and now some advocates want to set one up in Seattle.

Yesterday a Seattle Veteran's Court forum was hosted by the Seattle Municipal Court, Columbia Legal Services, the Seattle City Attorney, and the Associated Counsel for the Accused. City of Seattle news release. The Seattle PI reports on the forum, and explains that focusing on veterans is "mainly just a way to start the program on a small scale." Tracy Johnson, Veterans Court May Be Created. Presiding Judge Fred Bonner of Seattle Municipal Court said: We're trying to marshal all the resources that exist to help them overcome the reasons that they live on the street."

Another advocate of the proposal (interviewed in the Real Change) is Columbia Legal Services attorney Ishbel Dickens. (By the way, she was president of the Student Bar Association when she was at the UW).

Filed in: courts, homeless, veterans, Seattle-Municipal-Court, Columbia-Legal-Services, Seattle-City-Attorney, Associated-Counsel-for-the-Accused, indigent-defense, Bonner, Dickens, UW

41 Years Later, Ex-Klansman Gets 60 Years in Civil Rights Deaths - New York Times

[NEWS] Earlier this week a jury in Philadelphia, Mississippi, convicted a former Klansman of manslaughter for the deaths of three civil rights workers in 1964. Yesterday the judge sentenced him to three consecutive 20-year sentences. 41 Years Later, Ex-Klansman Gets 60 Years in Civil Rights Deaths - New York Times

A copy of the indictment is available on Findlaw.

Interested in the historical context of this current case? See

• "The Mississippi Burning Trial" by Douglas O. Linder (from Famous Trials).
  
• Biographies of the three young who were killed -- James Earl Chaney, Andrew Goodman, and Michael Schwerner.


• A 1999 speech by Ben Chaney, the brother of one of the victims.


• A Poli Sci professor's historical overview. Among other things, he notes that the murders were just three days after the Senate passed the Civil Rights Act of 1964 and before it was enacted.
  
  Filed in: news, Chaney, Goodman, Schwerner, famous-trials, sentencing

Citing unpublished opinions in fed. cts.

[RULES] The U.S. Judicial Conference is considering a move to allow litigants to cite unpublished decisions. Most circuits now allow it, but the 9th Circuit
does not. law.com - Judicial Conference to Mull Unpublished Opinions, The Recorder, 6/21/05.

Filed in: rules, unpublished-opinions

Supreme Court on ineffective assistance of counsel

[CASE] The Supreme Court yesterday decided Rompilla v. Beard, finding that defense counsel had not made sufficient efforts to find mitigating evidence in the files of the client's past convictions. law.com - Justices Expand Ineffective Assistance of Counsel Doctrine, Legal Times.

Filed in: cases, SupremeCourt, Rampilla-v-Beard, ineffective-assistance

Government conduct not "outrageous," prior acts admissible

[CASE] The 9th Circuit affirms a conviction for conspiracy to possess cocaine with intent to distribute, discussing jurisdiction, government conduct, and more. U.S. v. Holler, --- F.3d ---, 2005 WL 1384349 (9th Cir. June 13, 2005), Find Result - 2005 WL 1384349.

The investigation of the defendant involved a sting and a confidential informant (CI).

Holler argues that the district court erred by not dismissing his indictment for outrageous government conduct because (1) the CI had a history of misconduct as an informant and the DEA was aware of the prior misconduct, (2) the CI engaged in misconduct in this case, including the theft of drug money, and (3) the government ratified the CI's behavior.

On appeal, the claim is reviewed de novo, using a clearly erroneous standard for the district court's findings of fact.

"Outrageous government conduct is not a defense, but rather a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed ." * * *To meet this high standard, the "governmental conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice." * * * Here, the CI's conduct was neither attributable to the government, nor was it "so excessive, flagrant, scandalous, intolerable, and offensive as to violate due process." * * * Moreover, * * * "[i]t is unrealistic to expect law enforcement officers to ferret out criminals without the help of unsavory characters."

Accordingly, we find that the misconduct complained of in this case, even if proved, does not rise to the level required to establish outrageous government conduct.

(citations omitted).
The court discusses Rule 404(b) and prior act evidence:

According to the four-part test applied in this circuit, prior act evidence is admissible if (1) it proves a material element of the charged offense; (2) the prior act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the act; and (4) in cases where knowledge and intent are at issue, the act is similar to the offense charged. * * * Additionally, Federal Rule of Evidence 403 requires the district court to balance the probative value of the evidence against its prejudicial effect. * * *
To knowingly and intentionally possess contraband with the intent to distribute is a specific intent offense. * * * defendant's prior conviction for possession of contraband with the intent to distribute is relevant to a material element of conspiracy to possess contraband with the intent to distribute and attempted possession of contraband with the intent to distribute, "because it tends to show knowledge." * * *
Additionally, any error with respect to the admission of prior act evidence was harmless for two reasons. First, the judge gave a limiting instruction. * * * Second, there was an abundance of substantial and direct evidence against Holler, * * *.

(citations and more omitted).

Filed in: cases, 404(b), prosecutorial-misconduct

404(b) in wire fraud case

[CASE] In an unpublished opinion, the 9th Circuit discusses the use of evidence of other "bad acts" in a wire fraud case. U.S. v. Staggs, 2005 WL 1400266 (9th Cir. June 15, 2005), Find Result - 2005 WL 1400266.

Evidence of prior bad acts cannot be admitted to show that the defendant has a propensity to do bad stuff, but Rule 404(b) allows it in for certain other purposes. Here:

The elements of wire fraud are: "a scheme to defraud, use of the wires in furtherance of the scheme, and the specific intent to defraud." * * * Here, evidence relating to Staggs' involvement with prior investment programs demonstrated Staggs' knowledge that his clients had lost their principal investments and received no profits from the prior schemes. The evidence also showed that these programs had been shut down because they were fraudulent. This evidence was admitted to prove a material element of the offense: Staggs' knowledge of the fraudulent nature of the charged scheme and his intent in promoting it.

(citations omitted). The court discusses several other evidentiary issues in this short opinion.

Filed in: cases, 404(b), wire-fraud

Other suspect evidence, plus a couple of other issues

[CASE] Division 1 affirms a conviction, saying the trial court did not abuse its discretion in excluding the defense's evidence that someone else was the perpetrator of the crime. State v. Howard, --- P.3d ---, 2005 WL 1367356 (Wash. App. June 6, 2005) (published in part), Find Result - 2005 WL 1367356

Four men invaded and robbed the victim's apartment. The victim knew and identified one of the men, but did not know the other three. The one she knew identified his three accomplices, including Edward Howard. The victim identified Howard in a photo montage. At trial, a jury convicted him of first degree robbery and first degree burglary but acquitted him of an assault charge.

On appeal Howard argued that the trial court erred in excluding evidence that another man, known as "Smoke Lock," was the fourth participant in the robbery. Division 1 disagreed:

11 A criminal defendant has a constitutional right to present a defense consisting of relevant, admissible evidence. In order to be relevant, and therefore admissible, the evidence connecting another person with the crime charged must create a train of facts or circumstances that clearly point to someone other than the defendant as the guilty party. The evidence must establish a nexus between the other suspect and the crime. The defendant has the burden of showing that the "other suspect" evidence is admissible. The admission or refusal of evidence lies largely within the sound discretion of the trial court and is reviewed only for an abuse of discretion. Howard mischaracterizes the trial court's ultimate refusal to permit Lyne's testimony as an improper credibility determination.

13 Although the court noted that it found Lyne not credible as a matter of law, the permissible basis for the court's ruling was that the nexus between "Smoke Lock" and the crime was insufficient to support admission of "other suspect" evidence.
* * *
16 Based on the initial testimony, the court ruled that there was sufficient evidence to allow the admission of "other suspect" evidence. * * *

17 The court considered the more fully developed record--both the testimony of Howard and the revised testimony of Lyne--and found there was an insufficient nexus between "Smoke Lock" and the crime. This was a proper exercise of discretion by the court. Howard simply failed to establish sufficient evidence to support his claim that "other suspect" evidence should be admitted. This record does not support that claim.

Other issues addressed include:

• hearsay (someone would have testified that he met a man who might have been introduced as "Smoke Lock").


• impeachment with prior testimony (the court did not allow the defense to call the known robber in order to impeach his testimony with inconsistent statements).


• unanimous jury verdict (possible confusion in jury instructions).


• firearm enhancement jury instruction.


• ineffective assistance of counsel. (This is the part of the opinion that's unpublished.)

Filed in: cases, other-suspect-defense, hearsay, impeachment, unanimity, firearms-enhancement, ineffective-assistance

The Seattle Times: Local News: Man fatally shot at federal courthouse in Seattle

[NEWS] After a standoff, police fatally shot a man who appeared to be carrying a hand grenade into the new federal courthouse in downtown Seattle today. The Seattle Times: Local News: Man fatally shot at federal courthouse in Seattle.

Filed in: news, courthouses, security

Blog glitches

If you notice odd things like duplicate posts, just chalk it up to glitches. Blogger (the service that hosts this blog and thousands of others) is sometimes unstable. That means that some posts disappear after posting. When I catch it I go back and reconstruct them. And in the confusion, sometimes more than one survives.

I've learned to back up posts to a Word document (most of the time). I wish it were smoother, but Blogger is a free service and does a lot well.

Filed in: notes-about-the-blog

Abuse of discretion not to consider Drug Offender Sentencing Alternative

[CASE] A narrowly divided Washington Supreme Court held that a trial court abused its discretion in refusing to hear evidence and consider a Drug Offender Sentencing Alternative (DOSA). State v. Grayson, --- Wn.2d ---, --- P.3d ---, 2005 WL 1244592 (May 26, 2005), Find Result - 2005 WL 1244592.

After the defendant pleaded guilty to one count of delivering cocaine and one count of possession of marijuana with intent to deliver, he requested a DOSA. The prosecutor argued against it because of the defendant's criminal history and pending charges. The trial judge denied the motion for a DOSA.

The judge did not dwell on the facts of Grayson's case in his oral ruling. Instead, he stated simply:

The motion for a DOSA ... is going to be denied. And my main reason for denying [the DOSA] is because of the fact that the State no longer has money available to treat people who go through a DOSA program.
*2 So I think in this case if I granted him a DOSA it would be merely to the effect of it cutting his sentence in half. I'm unwilling to do that for this purpose alone. There's no money available. He's not going to get any treatment; it's denied.

After discussing the facts a judge may consider at sentencing, the Supreme Court concluded:

20 We reverse on the limited grounds that the trial judge did not appear to meaningfully consider whether a sentencing alternative was appropriate. But we do not fault the judge at all for having background knowledge about DOSA. If judges are to consider meaningful alternatives to prison sentences, they should be knowledgeable about the programs, their effectiveness, and whether the offender is a good candidate for the program. Again, the purpose of DOSA is to provide meaningful treatment and rehabilitation incentives for those convicted of drug crimes, when the trial judge concludes it would be in the best interests of the individual and the community. See RCW 9.94A.660. But trial judges do not rule in a vacuum, and we do not require trial courts to ignore funding realities.

Four justices joined Justice Chambers's majority opinion. Justice Bridge wrote a dissent, joined by the remaining three justices, arguing that the trial judge was within his discretion in finding that a DOSA would not benefit the defendant and the community.

Filed in: cases, sentencing, Drug-Offender-Sentencing-Alternative, Chambers, Bridge

Wash. DUI arrest in Idaho OK, blood alcohol test admissible

[CASE] An officer found Monte Richie, severely injured, on the ground near his truck, in Asotin County (in the SE corner of the state). Mr. Richie was taken to a regional hospital across the border in Idaho. In the hospital, a Washington trooper investigating the accident arrested him for DUI and had a phlebotomist draw his blood to be tested in the toxicology lab.

Mr. Richie appealed the administrative suspension of his driver's license.

After discussing the Idaho hot pursuit statute and Washington caselaw, Division 3 concluded:

¶ 16 Considering the law and our unique facts, we clarify Clarkston and hold that pursuing Washington officers may effectuate a lawful arrest in Idaho for DUI if reasonable suspicion exists to believe the suspect may have been driving under the influence in Washington before the officer pursues the suspect into Idaho. Accordingly, we decline the State's invitation to overturn Clarkston, because its holding is based upon distinguishable facts, even if its legal reasoning may be capable of misinterpretation as suggested by the State.
*4 ¶ 17 [The trooper's] accident investigation revealed Mr. Richie was involved in an accident with facts indicative of drinking and driving. * * * The Idaho statute merely requires a belief that an individual has committed a felony, not probable cause. * * * [The trooper] had reason to believe Mr. Richie was a DUI suspect prior to "pursuing" him into Idaho. * * * Trooper Bancroft properly established probable cause for arrest.

The court found that the state had prima facie shown the Idaho phlebotomist to be qualified and Richie had refuted the prima facie case.

In re Richie, --- P.3d ---, 2005 WL 1330657 (Wash. App. June 7, 2005), Find Result - 2005 WL 1330657.

Filed in: cases, DUI, hot-pursuit, blood-alcohol

Dogs lend comfort to kids in court

[NEWS] The King County Prosecutor's Office is helping witnesses -- especially child victims -- with a dog from Canine Companions for Independence. I'm a sucker for a good dog story -- and what a great story this is, when kids can get comfort during the scary and disturbing experiences they face during the investigation and trial of their abusers. The Seattle Times: Dogs lend comfort to kids in court.

Filed in: news, dogs, King-County, child-witnesses

The Psychology of Confessions

[RESEARCH] When people who confessed to crimes are exonerated by DNA evidence it raises questions about the reliability of confessions. The American Psychological Society's journal, Psychological Science in the Public Interest explores the issues:
The Psychology of Confessions: A Review of the Literature and Issues.

The summary states:

* * * In recent years, psychologists from the clinical, personality, developmental, cognitive, and social areas have brought their theories and research methods to bear on an analysis of confession evidence, how it is obtained, and what impact it has on judges, juries, and other people.

Drawing on individual case studies, archival reports, correlational studies, and laboratory and field experiments, this monograph scrutinizes a sequence of events during which confessions may be obtained from criminal suspects and used as evidence. First, we examine the preinterrogation interview, * * *

Second, we examine the Miranda warning and waiver, * * *

Third, we examine the modern police interrogation, * * * Fourth, we examine the confession itself, discussing theoretical perspectives and research on why people confess during interrogation. * * *

Fifth, we examine the consequences of confession evidence as evaluated by police and prosecutors, followed by judges and juries in court. Research shows that confession evidence is inherently prejudicial, that juries are influenced by confessions despite evidence of coercion and despite a lack of corroboration, and that the assumption that "I’d know a false confession if I saw one" is an unsubstantiated myth. Finally, we address the role of psychologists as expert witnesses and suggest a number of possible safeguards. In particular, we argue that there is a need to reform interrogation practices that increase the risk of false confessions and recommend a policy of mandatory videotaping of all interviews and interrogations.

An editorial in the issue, "The Devil in Confessions," is by Elizabeth F. Loftus, a professor of psychology at UC Irvine who is an affiliate professor at the UW Law School.

Filed in: empirical-studies, confessions, psychology, Loftus, Miranda-v-Arizona

NPR : Children and Understanding Lies

[RESEARCH] When do children develop the ability to judge when someone might be telling an untruth? Here is an NPR story reporting on some research that found second graders were sensitive to the possibility of lying -- in certain circumstances they were "selectively cynical" and saw how self-interest influences behavior. Sixth graders were not only aware that another person might lie about an event, but they also understood unconcious bias -- that is, the peope might tell untruths because self-interest causes them to see or remember situations in a particular way. NPR : Children and Understanding Lies

The principle researcher is Candice Mills, whose web page summarizes this research, which is published in:

Mills, Candice M; Keil, Frank C. The Development of Cynicism. Psychological Science. Vol 16(5) May 2005, 385-390.

Filed in: empirical-studies, children, lying, Mills

Election trial dispatches

[NEWS] Judge John Bridges this morning ruled that the Nov. 2004 Governor's election results will stand. The Seattle Times: Local News: Election trial dispatches

Filed in: news, elections, Bridges

Former police chief critiques policing

[BOOK] Former Seattle police chief Norm Stamper has written a book about his career and police practices in the U.S.: Breaking Rank: A Top Cop's Exposé of the Dark Side of American Policing. The publisher's description says:

Opening with a powerful letter to former Tacoma police chief David Brame, who shot his estranged wife before turning the gun on himself, Stamper introduces us to the violent, secret world of domestic abuse that cops must not only navigate, but which some also perpetrate. Stamper goes on to expose a troubling culture of racism, sexism, and homophobia that is still pervasive within the twenty-first-century force, exploring how such prejudices can be addressed. He reveals the dangers and temptations that cops on the street face, describing in gripping detail their split second life-and-death decisions. Breaking Rank reveals Norm Stamper as a brave man, a pioneering public servant whose extraordinary life has been dedicated to the service of his community.

[EVENT] Mr. Stamper will speak at Seattle's Town Hall next week (Thur. June 9, admission $5). He will be on TVW's Author's Hour Sunday, June 12, at 9:00.

Filed in: books, Stamper, police, Seattle

UW Innocence Project in today's Daily

[NEWS] An article in today's Daily describes the UW's Innocence Project Northwest and profiles one client, Virgil Easter. The UW Daily Online: Law Students Defend Convicted Felon.

The 9th Circuit affirmed the district court's denial of habeas corpus relief, rejecting a claim of ineffective assistance of counsel for, among other things, failing to exclude a photospread identification. Easter v. Fleming, 2005 WL 1189611 (9th Cir. May 20, 2005), Find Result - 2005 WL 1189611. (Westlaw is now loading 9th Circuit briefs, so we can click from the opinion to the brief filed by the Innocence Project.)

Filed in: cases, ineffective-assistance, Innocence-Project, UW

Prosecutor's closing argument (alluding to victim's inadmissible statements) and cross-exam reversible error

[CASE] Division 2 reverses a conviction for child molestation because of two types of prosecutorial misconduct: comments during closing argument and cross-examination. State v. Boehning, --- P.3d ---, 205 WL 1154834 (Wash. App. May 17, 2005), Find Result - 2005 WL 1154834.

The court summarizes (I love it when the judge lays it out so clearly!):

1 Randy Allen Boehning appeals his conviction of three counts of first degree child molestation. We hold that prosecutorial misconduct occurred when the prosecutor referred to three counts of rape that had been dismissed while suggesting that the victim's statements supported those counts but she was not "comfortable" enough to testify about those rapes at trial. * * * This argument appealed to the passion and prejudice of the jury, was flagrant, and called on the jury to determine guilt on improper grounds.

2 The prosecutor also impermissibly bolstered the victim's credibility by arguing that her prior statements, which were (1) plainly hearsay, (2) not admissible (the victim was 10 years old at the time of the hearsay so chapter 9A.44 RCW was not implicated), and (3) not admitted, were consistent with her trial testimony. The prosecutor based this argument on the fact that the defense counsel did not impeach the victim with any prior inconsistent statements to witnesses. The State's claim that this is a reasonable inference is wrong; this argument also constituted prosecutorial misconduct.

3 During trial, the prosecutor also asked Boehning whether the victim had "made [it all] up." * * * This placed Boehning in a position where he had to challenge the truthfulness of the child's testimony. This is flagrant prosecutorial misconduct and highly prejudicial in a case where there were no witnesses or physical evidence to corroborate the victim's testimony.

(citations to record omitted)

Filed in: cases, prosecutorial-misconduct, cross-examination, closing-arguments, hearsay

Should the public know whether lawyers have malpractice insurance?

[RULES] Next month the WSBA Board of Governors will consider recommending to the Supreme Court a rule that would let people know whether a lawyer in private practice has malpractice insurance.

For more information, see the WSBA press release, WSBA information and request for comments (5/16/05), and the ABA model rule (adopted Aug. 2004).

Filed in: rules, WSBA, practice-of-law, malpractice, insurance

WSBA Board of Governors to discuss tort & med mal initiatives

[EVENT] Should the Washington State Bar Association take a position on Initiative 330? That's a question the Board of Governors will address this week when it meets on Thursday and Friday. According to a press release, the Board will meet at the Bellevue DoubleTree Inn Thursday, June 2, 2-5, and Friday, June 3, 9-12 and 1:30-4:30.

Thursday's session will be devoted to the tort initiatives and medical malpractice issues that will be on the November ballot. The Board will discuss whether to take a position on Initiative 330, which proposes amendments "relating to health care liability reform." Seattle attorney Mark Johnson, WSBA governor from the 7th-West District, will give the Board a summary of I-330. Others addressing the Board will be John Connelly, president-elect of the Washington State Trial Lawyers Association; Thomas J. Curry, CEO of the Washington Medical Association; Barbara Flye, former executive director of Washington Citizen Action; Jeff Frank, president of the Washington Defense Trial Lawyers; and Mike Kreidler, Washington state insurance commissioner.

A highlight of Friday's meeting will be the election of the new WSBA president-elect. This individual will serve as president-elect beginning in September, and will assume the presidency of the WSBA in September 2006.

The meetings are open to the public and the press.

Filed in: event, WSBA, initiatives, med-mal