I was curious about which countries use or where the defendant is entitled to a trial by jury. I knew that our system of jury trials originated from England. Predictably, many former colonies and territories of England use the jury system as well – Canada, Australia, the British Virgin Islands, and Hong Kong to name a few. I also wondered about the percentage of the world’s population that had access to jury trials. I taught in China and there is no right to trial by jury there. In fact the students were quite puzzled by our system of allowing complete strangers and those possessing no legal knowledge to decide the guilt or innocence (or liability) of defendants.
I contacted Professor Valerie Hans from Cornell as she had written about the jury system. She referred me to Duke law professor Neil Vidmar and Professor Sanja Kutnjak of Michigan State. Professor Vidmar prepared a very, very interesting publication for the State Department – issued in July 2009. I have attached it here – on page 28, it has a map of the countries that have a jury system. The publication is entitled “Anatomy of a Jury Trial,” and has an amazing amount of interesting information. See: http://www.america.gov/media/pdf/ejs/0709.pdf#popup.
Professors Vidmar and Hans updated the publication for me via email – the country of Georgia recently had its first jury trial. Also add Korea, Japan, Liberia – and Taiwan is experimenting with the system.
Interestingly, I had a law student from Brazil visit my Evidence class this past week. The law degree (as it is in many countries) is an undergraduate degree there. I talked to him after the class and asked him about jury trials in Brazil. He indicated it was only for serious crimes. For example, he said murder and rape. Then he said also (and he pushed on his stomach – he could not think of the word in English – and then he remembered) – abortion! Interesting.
Washington Supreme Court - Interesting Case on Sexual Offense Rules
Washington Supreme Court: Washington State Legislature’s Adoption of the Equivalent of Federal Evidence Rules 413 and 414 is Unconstitutional as a Violation of the Separation of Powers Doctrine.
An interesting State of Washington Supreme Court case was decided on January 5, 2012 on the “irreconcilable conflict” between “other bad acts” evidence and the child molestation special character rules. See State of Washington v. Michael Gresham; and State of Washington v. Roger Scherner (consolidated cases), available at http://www.courts.wa.gov/opinions/pdf/841489.opn.pdf. The case was decided by a vote of 7-2, with Chief Justice Madsen dissenting and Justice James Johnson concurring in part and dissenting in part. Those opinions are available at: http://www.courts.wa.gov/opinions/pdf/841489.no1.pdf (dissent); and http://www.courts.wa.gov/opinions/pdf/841489.ip1.pdf (concurrence and dissent).
The Washington “prior bad acts” Rule is ER 404(b) and is identical in language to Federal Rule 404(b) (prior to the restyling of the Rule, effective December 1, 2011). All of the Washington Rules of Evidence were modeled on the Federal Rules (the Washington rules were adopted in 1979). Washington adopted the equivalent of Federal Rule 412 (ER 412 – Sexual Offenses - Victim’s Past Behavior), but it did not adopt the equivalent of the other sexual offense rules (413 through 415). However, in 2008 the Washington State Legislature adopted RCW 10.58.090 (Sex Offenses – Admissibility). Accordingly, the trial courts in both the Gresham case and the Scherner case allowed the State to introduce evidence that each of the men had previously committed sex offenses with children. In the cases at issue, Gresham was charged with four counts of child molestation in the first degree and Scherner was charged with first degree rape of a child and first degree child molestation (later amended to three charges of first degree child molestation). In Scherner’s case, the trial court also admitted the prior sex offenses under ER 404(b) – as showing a common scheme or plan.
The Washington Supreme Court reversed the conviction of Gresham because it determined that the Legislature’s adoption of RCW 10.58.090 (the equivalent of Federal Rules 413 and 414) was unconstitutional as it violated the State’s Separation of Powers Doctrine. Scherner’s conviction was affirmed due to the fact that the trial court in that case had used ER 404(b) as a secondary reason for admitting prior sexual offenses and the Supreme Court found no abuse of discretion.
The Washington State constitution gives Washington Courts the “power of the judiciary.” The Washington Supreme Court, in 1929 and 1940, determined that the Washington Legislature had power over the “substantive” law. On the other hand, in 1975, the Court ruled that “the power to proscribe rules for practice and procedure” is “an inherent power of the judicial branch.”
Therefore, the Washington Supreme Court needed to determine first, whether Rule ER 404(b) could be harmonized with RCW 10.58.090 (it could not be) and second whether the legislation passed in 2008 was substantive or procedural (it was procedural – and within the province of the courts). The Court found the legislation violated the Separation of Powers Doctrine and was unconstitutional. Allowing in evidence these prior sexual offenses in order to prove conformity therewith was exactly what ER 404(b) prohibits.
Justice James Johnson appears to dissent to the reversal of Gresham’s conviction because of the grievous nature of the charges. According to him, the legislature must protect “the rights of unusually vulnerable victims.” Chief Justice Madsen wrote in her dissent that she found no conflict between ER 404(b) and RCW 10.58.090, and even if there was a conflict, the two provisions may be harmonized.
The Supreme Court today decided Perry v. New Hampshire, a case exploring due process constraints on eyewitness testimony. A line of cases stemming from Stovall v. Denno, 388 U.S. 293 (1967), holds that eyewitness identifications violate due process if (1) the identification occurred under unnecessarily suggestive circumstances, and (2) the suggestive circumstances created a substantial likelihood of misidentification.
Before Perry, lower courts split over whether this due process constraint applied to all identifications--or only to those orchestrated by the police. In Perry, the Supreme Court chose the latter, narrower constraint. In an opinion authored by Justice Ginsburg, the Court concluded that "the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement."
In reaching this decision, the Court stressed that the Constitution protects criminal defendants against prejudicial evidence by guaranteeing a host of procedural rights: the right to counsel, right to compel attendance of defense witnesses, right to confront prosecution witnesses, and right to proof of guilt beyond a reasonable doubt. The Constitution secures reliability through these safeguards, the Court concluded, rather than by setting an independent threshold for the reliability of evidence.
Justice Sotomayor filed a lone dissent to the Court's decision. She argued that judges already rule on pre-trial motions challenging the reliability of eyewitness testimony under the rules of evidence; that jurors seriously overestimate the value of eyewitness identifications; and that the majority's standard would be difficult for trial judges to administer. Sotomayor, notably, is the only former trial judge currently sitting on the Court.
The Doug Stewart (Venus Stewart) Trial - Interesting Evidence Issues
Doug Stewart was charged with the murder of his estranged wife Venus and was found guilty on March 11, 2011. He was sentenced to life in prison on April 18, 2011.
The key witness in the case was Richard "Ricky" Spencer, whom Doug Stewart had met online playing XBox. According to Spencer (who received a one-year sentence as part of a plea deal), he agreed to impersonate Stewart in Virginia while Stewart traveled to Michigan to murder his estranged wife who had just gained custody of the couple's two children.
Venus' body has never been found and there was very little physical evidence. There is some very interesting evidence in the form of phone records and videotape shots of Stewart.
Some of the evidence is discussed by the following websites and Dateline NBC featured a 90-minute episode about the case.
The Supreme Court heard oral argument in Williams v. Illinois, this Term's confrontation clause dispute, on December 6. Shortly before argument, Williams lodged a copy of the disputed DNA report with the Court. Professor Richard D. Friedman has posted a copy of the report on his blog; he also offers a thoughtful analysis of the report and its meaning. For those following the Supreme Court case--or planning to teach it during the coming semester--these are very useful tools.
An Oregon defense lawyer subpoenaed four unusual witnesses: All four were canines. According to news reports, the four waited patiently outside the courtroom before they were called to appear. Defense counsel then exhibited the dogs to the jury to rebut charges that the defendants had maltreated the pets. Exhibiting the dogs to the jury makes sense, but the subpoenas appear unusual.
The story describes another canine witness appearance: A robbery eyewitness could remember the robber's dog, but not the robber, so the prosecution brought the defendant's dog to court for identification.
Michael Peterson released - bloodstain evidence questioned
Michael Peterson was convicted for the murder of his wife Kathleen in North Carolina (and sentenced to death) eight years ago. There is a documentary about the crime/accident and the trial, entitled "The Staircase" because she was either pushed or fell down the staircase, depending upon whether you believe the prosecution or the defense.
Peterson was released today and will face another trial.
At trial, 65 witnesses testified and there were 800 pieces of evidence. The reason the conviction was overturned is because North Carolina Bureau of Investigation officer Duane Deaver "misled the jurors" about the bloodstain evidence. Deaver was recently fired and was found to have mishandled evidence in 34 criminal cases.
He is asserting what is now being referred to as the "owl theory." The defense theory is she was attacked in the house by an owl and fell down the stairs. An owl feather was found by the defense at the bottom of the stairs.
I spoke with an attorney who works at the law firm which represents Michael Peterson. First, there is no longer a theory about an owl (that issue was raised by another of Mike Peterson’s attorneys and that attorney is no longer associated with the case).
Second, the State of North Carolina never asked for the death penalty. Peterson was tried and convicted of first-degree murder and he received a life sentence without the possibility of parole.
Goes to show the news reports are not always accurate.
Very, very interesting reading – a case that will make for great classroom discussions – here is the earlier North Carolina Supreme Court denial of Mr. Peterson’s appeal (2007) and the North Carolina Court of Appeals opinion (2006) upholding the trial judge (any error was harmless) - one judge dissentedThis case is just chock full of evidentiary issues.
The most interesting piece of evidence is the admission of testimony/photographs, etc. about a close friend of Peterson’s (Elizabeth Ratliff) who was found dead at the bottom of stairs in Germany in 1985. Peterson found her. This was a 404(b) and a 403 issue. Even more interesting is that Peterson raised Ms. Ratliff’s 2 daughters after her death. The daughters gave permission to exhume her body in connection with the trial in an attempt to clear Peterson.
A professor from Duke predicts the next trial, if there is one will not have a lot of the evidence allowed in the original trial – for example testimony about Ms. Ratliff and testimony from a male escort. In the documentary Peterson indicates he is bisexual and that his wife Kathleen knew this fact. There was also an evidentiary issue about statements made during the Prosecution’s closing argument.
Penn State Officials Schultz and Curley Preliminary Hearing - Judge Finds Probable Cause to Go Forward
On Friday, December 16, 2011, Mike McQueary testified in the preliminary hearings of Gary Schultz, former Vice President for Penn State and Tim Curley, former Athletic Director of Penn State in connection with the trial of Jerry Sandusky for child sexual assault.
Both men are accused of lying to the Grand Jury when it convened to consider charges against Sandusky.
The Judge found probably cause to go forward in the cases against Schultz and Curley.
Phil Spector Appeals Conviction for Second Degree Murder to the U.S. Supreme Court
Phil Spector, legendary music producer known for the "Wall of Sound" technique was found guilty by a Los Angeles County jury on April 13, 2009 for the Second Degree murder of Lana Clarkson, a hostess at the House of Blues whom he had met the evening of the murder. He claimed she committed suicide in his mansion because of her failed career as an actress. His first trial resulted in a hung jury and he was convicted in the second trial. He received a 19 years to life sentence by Judge Fidler.
He has appealed his conviction to the United States Supreme Court, claiming that Judge Fidler actually testified in the trial and his right to confrontation was violated.
