Criminal : Week of October 9

October 9

• Review
  • Intent
    • Wish to cause the result
    • Knowledge that the result is practically certain
  • Provocation
    • A mitigating circumstance; reduces the degree (of the homicide, in these cases)
    • Heat of passion has objective and subjective components:
      • Objective: would an ordinarily constituted person have responded this way to these circumstances (adequacy/extent of the provocation)? Sufficient to overcome the judgment, rendering the ordinary person deaf to reason, etc. History of the victim can be considered here.
      • Subjective: did it actually provoke this particular person?
    • One complication: adequate provocation negated the element of intent (deliberation, premeditation, malice aforethought) in old statutes. As the law developed to the point where intent didn't have to linger for any particular length of time, it became inconsistent to say that provocation negated intent. Ms. Felton really did intend to kill her husband, for example. So this made "heat of passion" virtually impossible to find: essentially a legal fiction.
    • So a long-term abusive relationship could count as adequate provocation, even though the circumstances of the instant might not provoke others. But, as we have seen, not all annoying circumstances rise to the level of meriting instruction on provocation.
  • Burden of Proof
    • Could the jury, under any reasonable view of the evidence, find that the defendant was guilty of the lesser degree? Production burden is on the defense, although the evidence could be part of the prosecution's case. It's up to the defense, in other words, to make sure that the lesser offense is in play.
    • What does the evidence need to address? (Dickey article) The evidence needs to describe what the provocation was, and make the link between it and a possible loss of self control.
    • It is the jury's task to figure out whether or not they are persuaded
    • Mullaney and Winship: the state must prove all elements beyond reasonable doubt, and cannot shift that burden to the defendant by presuming premeditation.
    • Patterson came out differently, however, because the elements were structured differently. This seemed like a form vs. substance debate, but the court was trying to strike a balance between protecting constitutional rights, and not micromanaging state statutes.
    • In WI, most affirmative defenses, coercion, e.g., have to be disproved beyond reasonable doubt by the state.
    • The standards for inference are pretty soft, but in Sandstrom the presumption was like a direction for a verdict (i.e., you may find vs. you must find). Again, this can be a Winship issue.
  • Unhelpful clauses in statues: references to "existing" things (existing when: when the statute was written? at the time of the offense?), or "except as provided" (how much farther do we need to look?)
• Chambers v. Mississippi
  Commentary in class
  • This is a rare kind of case: not often is the identity of the killer a central issue in the case, all those Perry Mason episodes notwithstanding.
  • The trial judge prohibited the introduction of evidence in Chambers's defense, and the appeal deals with whether or not this was a due process violation (i.e., not allowing cross-examination of McDonald, or the testimony of the three corroborating witnesses).
  • A course in evidence would have been helpful, but not essential. Relevancy, however is a key concept: anything that makes more (or less) likely some fact of the case. So direct testimony, or supporting testimony that addresses the credibility of other evidence. Even within the world of relevant evidence, however, some things can be excluded: hearsay, privileged information, etc., can be highly relevant, but they get excluded because to allow them would be to violate other important matters of policy. Generally this is a state matter, and doesn't excite the Supreme Court. In this case, however, it rises to the level of a due process violation.
  • So the court begins by noting that this particular pile of evidence certainly affected the outcome. But a lot of things might come out differently if Mississippi had different rules of evidence, so why is this interesting? The right to a fair trial includes the fair opportunity to defend (6th amendment includes the "right of confrontation"). You must have a chance to cross-examine, and to call witnesses. This is the "compulsory process" clause (subpoena power) of the 8th amendment (or maybe 6th?).
  • Denying these rights calls into question the integrity of the fact-finding process.
  • When you cross examine, you are allowed to ask leading questions. In fact, very rarely would you ever want to ask a non-leading question. Often you don't even phrase things as questions: you just use intonation to get the witness to say yes or no. And if they stray from what you expect, you badger them with their statements at preliminary hearings.
  • The "voucher rule" is basically saying that if you call a witness, you don't need to act as though they're not telling the truth. This is why you can't ask leading questions on direct examination.
  • The three supplemental witnesses help to undermine McDonald's repudiation of his confession. Usually a "statement against penal interest" is an exception to the hearsay rule. That's why a defendant's confession is admissible, by the way. Those witnesses heard McDonald's statements before the alleged offering of benefits (a cut of the lawsuit, etc.), so presumably he wouldn't have been incented to confess at that point.
• Awesome Tobin quote regarding CCAP: "the media is big on the right to know."
• Fisher v. United States
  Commentary in class
  • Note that this is 30 years before Chambers. And it's District of Columbia. So that's confusing: sort of an interpretation of DC common law, not constitutional doctrine so much.
  • A less interesting and simpler case
  • Testimony about psychiatric diagnoses was sort of new, in those days.
  • The court is unwilling to jump into a legislative matter. The dissent wants the jury to be able to consider the matter: the court needs to keep up with advances in medical thinking.
• Haas v. Abrahamson
  Commentary in class
  • Fast forward again-- this is 1990. Again, it's a simpler case than Chambers. The courts have played ping-pong somewhat about these issues of psychiatric adissability.
  • A familiar situation: turbulent relationship, love triangle, killing.
  • Tecnically, a habeas corpus suit is civil (interesting trivia), by the way.
  • Anyway, five shots gets our defendant 1 count of first degree, one count of attempted first degree. And he does not plead insanity. He files a motion in limine to get the psychiatric evidence in. Usually you use these motions to keep evidence out (i.e., make sure some highly prejudicial evidence doesn't get introduced, so you don't spoil the jury in spite of your objecting). It's a little rare to get these motions directed at getting evidence in, as opposed to out.
  • The attorney's summary of what the evidence would show is an "offer of proof." Basically, you can't later say "but I had a lot of good evidence" when something gets excluded. So you make an offer of proof-- usually an affidavit, a summary, or even pre-trial testimony-- to show what the evidence will show. This guy did a fairly lame summary, for whatever reason.
  • Instead of trying to deal with whether the defendant did form intent, the defense focuses on whether the defendant was even capable of forming intent. Dumb strategy, although this would have overturned a lot of cases.
• State v. St. George
  Commentary in class
  • Lots of tests and factors, which makes it fun, even if it doesn't really deal with intent. It's fairly typical for the WI Supreme Court to set out two-tiered tests with five factors, etc. It may not be poetic, but at least it's direct.
  • Two issues:
    1. Was exclusion of evidence of prior sexual contact a denial of the right to present a defense (rape shield law)
    2. Was excluding the doctor's testimony also a deprivation of the right to present evidence?
  • So the allegation gets produced at trial, and testimony about the recanting.
  • Rape shield law test:
    1. About the evidence (A-existence, B-relevance, C-necessity)
       1. Did the prior act actually happen? A
       2. Is it closely similar to the present case? B
       3. Is it relevant to a material issue? B
       4. Is it necessary to the defense? C
       5. Does its merit outweigh its prejudicial effects? C
    2. Does the defendant's constitutional interest in this matter outweigh the state's evidentiary interest?
    So in this instance 1 and 2 work, but 3-5 aren't met.
  • Expert testimony admissibility test:
    1. About the evidence:
       1. Is this an expert?
       2. Is the expert's testimony relevant to a material issue?
       3. Is the testimony necessary to the defense?
       4. Does the merit of the evidence outweigh its prejudicial effects?
    2. Does the defendant's constitutional interest in this matter outweigh the state's evidentiary interest?
    Two recognized standards used by other jurisdictions. The "Fry" test (to be admissible, scientific evidence must be the result of a theory that has general acceptance in the scientific community) and the "Daubert" test (is this testimony going to help the fact finder, is it a peer-reviewed and generally accepted theory, and does this evidence have a reasonably low error rate). Lately there's been a push in WI to move towards the Daubert rule because the WI rule allows a lot of junk science in, because there is no standard for what constitutes worthy expert subject matter.
  • Really low-down tactics: the state claims that the defendant's lack of expert testimony is indicative of a weak case.
  • Circuit court didn't even look at the constitutional implications of excluding the expert-- they didn't weigh the gravity of the constitution vs the rule of evidence.
  • St. George got tried again, and the charge was dismissed. His grandmother got the bail money back. A heartwarming conclusion.
• Review questions:
  • People ask about Williford: the presence gun would be more of a self-defense issue than a provocation issue.
  • Note that all these cases are exceptional in some way: the normal cases don't make it to appeal, etc.
  • Lesser included offenses are most commonly found in homicide cases (because they're automatically available, by statute).