An interesting decision from the Colorado Court of Appeal, Doumbouya v. County Court (Dec. 24, 2009):
Defendant … was charged with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace.Defendant’s theory of defense was that his estranged wife had fabricated the claims to gain leverage in a contentious custody battle involving the couple’s infant son. At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would “do anything,” including making false claims against defendant, to keep custody.
The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings….Two questions followed:
Q. You know that [defendant] is from Africa?A. Yes.
Q. You know that if he is found guilty of this he’ll be deported?
The prosecution objected before the second question was answered, stating it was “completely improper to bring that up in this proceeding.” The court promptly ordered a recess.
Outside the jury’s presence, the prosecutor moved for a mistrial. He argued the jury had been “irrevocably tainted” by questioning that was “a ploy to invoke sympathy for the defendant” and amounted to “probably the worst violation [he had] ever seen.” Defense counsel responded that the question went to the “heart of our defense” and defendant was constitutionally entitled to ask it. Counsel proffered that she had spoken with defendant’s immigration attorney, that this assault conviction would lead to deportation, and that the wife “knows all of that.”
The county court “vehemently disagree[d]” with defense counsel’s arguments. It observed that immigration, whether legal or illegal, is a “hot button topic” in today’s society. While noting that the question could elicit sympathy from a jury concerned that defendant might be deported and never see his son again, it also observed that defendant could have been prejudiced (and properly could have objected) had the prosecution injected immigration and deportation issues into the case.
When the court stated its intent to declare a mistrial, defense counsel objected and suggested any prejudice could be cured by a limiting instruction. The court disagreed, stating the “genie is out of the bottle.” It accordingly discharged the jury.
The question is whether there was “manifest necessity” for the mistrial, such that the defendant could be retried; if there was no manifest necessity, a retrial would violate the Double Jeopardy Clause. The court concludes that the questioning was proper, given the potential relevance of the questioning to the wife’s bias:
It would be constitutionally problematic to preclude relevant impeachment simply because immigration is a “hot button topic.” … Defendant has shown that the cross-examination question was potentially relevant to impeaching the key prosecution witness. The theory of defense required a motive for defendant’s estranged wife to accuse him falsely. That motive, according to the defense, was a conviction that would lead to the wife’s being awarded custody of the couple’s son. If that is a proper theory to offer the jury -– as the trial court recognized by allowing cross-examination on the child custody dispute -– so too is the questioning regarding the wife’s belief that a conviction could lead to defendant’s deportation, which would effectively give wife full-time custody and thus inure even further to her benefit.
The mistrial was therefore not necessary (or even, I take it, proper), and reprosecution is thus forbidden: “It thus appears that defendant had a right, possibly of constitutional magnitude, to inquire into the wife’s understanding of the immigration consequences of a conviction. Nonetheless, we need not hold definitively that there were no possible grounds on which the trial court properly could have precluded the cross-examination. The fact that we have grave doubts as to the propriety of precluding the cross-examination means the prosecution has not carried its heavy burden … of demonstrating the necessity for a mistrial.”
SW says:
The prosecution asked for a mistrial? I had to do a double-take there.
January 6, 2010, 5:59 pmDilan Esper says:
Sounds like some pretty bad trial judging there. Just give a limiting instruction (i.e., that the evidence should be considered solely on the issue of witness credibility) and move on.
January 6, 2010, 6:36 pmGMUSOL05 says:
As a purely evidentiary matter, leaving aside the constitutional question, that’s a rather massive error by the trial court. If it’s a question of probative value versus prejudice, it’s not enough that there is some prejudice to the Plaintiff from the question, but that there is unfair prejudice that substantially outweighs the probative value. I cannot see where this remotely outweighs the probative value of the potential bias and motive, particularly in light of the parallel domestic proceedings.
January 6, 2010, 7:02 pmDave N. says:
I agree with Dilan and SW. What in the world were the prosecutor and judge thinking? Thank goodness that it was only a misdemeanor trial that was screwed up.
January 6, 2010, 7:31 pmDavid Schwartz says:
I think it’s absolutely critical to the defense that a key prosecution witness had a huge motive to fabricate her claims. What was the prosecutor thinking?!
January 6, 2010, 7:50 pmChris Travers says:
That and the judge.
The thing is that fabricated claims, particularly of domestic violence, are not uncommon during divorce proceedings anyway.
I think the judge should be appropriately found guilty of bad judgement and sentenced to sit five years on the bench of family court ;-)
January 6, 2010, 8:08 pmhattio says:
Chris Travers says;
Please. The judge has already shown that he’s not willing to consider a rational explanation for why there would be a false claim of DV, or even to allow in evidence of it. And you want them in a situation where they will be controlling the lives of children and hearing hundreds if not thousands of claims of DV, some number of them false?
January 6, 2010, 8:50 pmLaura(southernxyl) says:
OTOH, if he did actually assault his wife and her friend, and threaten and what not, now she has to wait and let him do some more stuff and try again.
Looks to me like immigration was the judge’s hot button. His thought probably was that the defense attorney was trying to shame the woman into not making these allegations, even though truthful, because she was going to get the perp into trouble. And you know, that could actually be the case. The alleged event happened at a nightclub, not behind closed doors, so it doesn’t seem likely to me that she would have made it up out of whole cloth – wouldn’t there be witnesses? And disturbing the peace – wouldn’t there be a police report? But the trial didn’t get that far, it was derailed by the immigration question.
January 6, 2010, 9:00 pmChris Travers says:
So the judge shouldn’t have declared a mistrial. We are in agreement.
January 6, 2010, 9:08 pmEric says:
Asking the alleged victim about things that might motivate her to lie? What will those crazy defense lawyers think of next?
Seriously, what was the judge thinking? The defense is that it never happened, the questioning is relevant to motive to fabricate. Give the limiting instruction and move on.
January 6, 2010, 9:14 pmLaura(southernxyl) says:
Sure, Chris. I wish the judge had been more knowledgeable about the law than he evidently was. If he viewed the defense attorney’s ploy the way I suspect he did, he’s fairly chagrinned at how this came out.
January 6, 2010, 9:15 pmLaura(southernxyl) says:
…So if you were the prosecutor, and you were convinced that the woman is telling the truth, and you suspected that the defense might accuse her of lying to get him deported out of spite, would you tell the woman to expect this question? And would you suggest how she could answer it truthfully but in such a way that she didn’t play into the defense’s strategy? Or would you have to leave that alone and only object to the question?
January 6, 2010, 9:23 pmChris Travers says:
Laura:
I don’t know what the limits of prosecutorial conduct are in that sort of case. I do think that the question is a fair one and that divorcing couples should EXPECT the basic issue of whether the allegation is merely being made to win a custody battle to be raised where there are allegations of assault. Assuming there is no rule against it, I think it is fair to let the woman know the theory will probably be raised. I don’t think suggesting an answer is good form though.
In the end, a case like this SHOULD turn on independent evidence. The prosecutor really should have faith in that evidence before bringing a charge.
January 6, 2010, 9:38 pmGov98 says:
I’ve got to say and maybe its just my bias, I totally see that question as improper. As a misdemeanor dv case, for the jury to effectively be told that conviction results in a practical “life” sentence (as probably many Coloradans would view deportation to Africa) seems completely inappropriate. I see no reason why the defense is not sufficiently able to address the issue of fabrication for custody without bringing out the fact that it would result in deportation. Especially since the complaining witness seemed willing to participate in the custody proceedings.
Because seriously …at that level all the “Do Not Consider Punishment” really doesn’t matter. At least in the real world.
January 6, 2010, 9:40 pmLaura(southernxyl) says:
So if the prosecutor tells her they might ask that, who can advise her? Her divorce attorney, maybe?
I ask myself, if I were in that situation, what I would say. Because simply answering “yes” does appear to bolster the idea that I’m trying to get him deported. I might say “I’m not an immigration attorney, I really wouldn’t have any way of knowing all possible outcomes,” which would be true but it would come across kind of snippy. Or I might say, “So he told me, when he threatened me that I better not bring this up in court.” The actual truth would be something like, “That’s not my concern. If he doesn’t want to be deported, he needs to not be assaulting people,” but that doesn’t answer the question.
This was my thought too.
January 6, 2010, 9:48 pmhattio says:
Gov98,
January 6, 2010, 9:50 pmWhat about the fact that it would be nearly impossible for him to litigate, much less win, a custody case from Africa? Doesn’t that increase her motive to lie over what another person with an American citizen spouse would have?
Eugene Volokh says:
Gov98 & Laura: I thought the Court of Appeals explained the relevance of deportation quite well: “The theory of defense required a motive for defendant’s estranged wife to accuse him falsely. That motive, according to the defense, was a conviction that would lead to the wife’s being awarded custody of the couple’s son. If that is a proper theory to offer the jury -– as the trial court recognized by allowing cross-examination on the child custody dispute -– so too is the questioning regarding the wife’s belief that a conviction could lead to defendant’s deportation, which would effectively give wife full-time custody and thus inure even further to her benefit.”
January 6, 2010, 9:56 pmGov98 says:
Well this is why there is a balancing act that Judges do…
But really in most family law cases if you’re convicted of DV you’re losing custody and limited visitation anyway. I can certainly see the fair question, “You are aware that a conviction in this case would have significant/severe consequences in the pending child custody case?” “Even to the point of making it a practical certainty for you to be granted full custody with little or no visitation obligation?”
That seems to establish the same point without bringing out the “punishment” aspect. And the defense attorney (I certainly believe beyond a reasonable doubt) knew that, and so did the judge and prosecutor. The big mistake seems to be that the judge talked about hot button issue instead of focusing on the prejudice introduced by introducing punishment.
By the way…someone please explain how in the same context (take vengeful ex theory) the question “you’re aware that your ex could go to jail for 1 year if convicted” be not wrong? Even though most likely that question would held to be inappropriate.
Eugene – Don’t get me wrong I understand the CoA’s reasoning, I think the trial judge should have been more careful and said something about prejudicially introduced an issue of punishment in the trial, or couched it in those terms. A way to point out that the prejudice of the punishment is what is driving it, that motive to lie is still (Completely) proper cross-exam but just to the aspect of affect on child custody. Which can be done without the leap (and then logical inference required) that she wants him deported for child custody.
January 6, 2010, 9:59 pmLaura(southernxyl) says:
But if he were an American citizen not subject to deportation, an assault conviction still could lead to her being awarded custody.
It would be really nice to know more about the case. Were the police called to the nightclub? Were there other witnesses? I can’t find any more about it.
January 6, 2010, 10:06 pmGMUSOL05 says:
In my experience as family law attorney, that’s not true at all, unless the domestic violence was aimed at the children.
January 6, 2010, 10:26 pmSW says:
Gov: There is probably an objection to the question that could be sustained if the defense did not tie up the foundation for her knowledge and its relevance(assuming she had any), but the prosecutor blew it by asking for a mistrial and the judge blew it by refusing the offer of proof and granting a mistrial – at this stage. Double jeopardy had attached and a mistrial was far from necessary.
January 6, 2010, 10:45 pmjosh bornstein says:
Laura,
January 6, 2010, 10:48 pmIt seems that in a ‘normal’ case, an assault conviction MIGHT result in an unfavorable later custody decision (it certainly could be a factor a family/juvenile court judge would consider, but it would be far from dispositive. On the other hand, here; an assault conviction is tantamount to an award of full custody, plus an almost 100% certainty that the father would have no visitation rights at all. (Well, no visitation rights that could be acted upon.) I’m not sure how to let the jury know about this without explaining the deportation issue. (“Mom, you know that, if the father is convicted here–very soon afterwards–he will never be able to see his child again, right?”) If I were a jury member who heard this, my head would be filled with all sorts of explanations as to why there’d be this strange result, and most of them would be far worse (to the father) than the real explanation. Much better (IMO) to simply be told the truth, with an admonition from the judge if necessary.
Roger the Shrubber says:
I’m very glad Gov98 & Laura aren’t judges. At least I hope they’re not.
The Court of Appeal was, in my view, being kind to the trial judge when it noted that the defendant’s right to ask this question was “possibly of constitutional magnitude.” I’d take out the “possibly.”
January 6, 2010, 11:06 pmfishbane says:
Random digression…
Not being a trial attorney (or any sort of attorney at all), I don’t have a feel for this. How damaging is it to a judges career to be overruled on something like this?
I know how, for instance, the 9th becomes a point of humor for some of its judgements, but that has apparently not damaged the career prospects of those judges all that much. And I know in some states they’re elected, and it is probably unlikely that voters pay a great deal of attention.
So than other than, perhaps, a bit of embarrassment, are there much in the way of repercussions for this sort of thing?
January 6, 2010, 11:11 pmGov98 says:
In my experience as family law attorney, that’s not true at all, unless the domestic violence was aimed at the children.
I don’t doubt your experience, but this site claims that a DV conviction does make it so that in Colorado you cannot obtain primary custody of the children.
Gov: There is probably an objection to the question that could be sustained if the defense did not tie up the foundation for her knowledge and its relevance(assuming she had any), but the prosecutor blew it by asking for a mistrial and the judge blew it by refusing the offer of proof and granting a mistrial — at this stage. Double jeopardy had attached and a mistrial was far from necessary.
That’s what I was initially thinking too, but under the theory it’s actually not necessary to lay foundation, because under the defense theory, it’s not relevant that he will be deported, it is relevant that she believes that he will be deported, therefore foundation isn’t necessary (I also thought hearsay since her knowledge is presumably based on the hearsay of the immigration attorney, but again, it’s not offered for the truth but the affect on the hearer.)
I additionally, see the issues in asking for the mistrial at that stage, at that same time, my assumption is that the trial is probably being done by some young prosecutor who’s more appalled by the inappropriate question he’s just heard then thinking through how he should go through to make sure that the mistrial is upheld. Again, doesn’t justify it, but that’s my guess.
I’m very glad Gov98 & Laura aren’t judges. At least I hope they’re not.
The Court of Appeal was, in my view, being kind to the trial judge when it noted that the defendant’s right to ask this question was “possibly of constitutional magnitude.” I’d take out the “possibly.”
I don’t know you, you don’t know me, and I see no reason why you need to be so rude. Apparently this would seem to be an issue on which judges differ, so this is not so crazy that you should be so rude.
There are ways of addressing the bias issue without addressing the punishment issue which is what I think the proper course would have been. Adding difficulty however is once that cat is out of the bag how do you undo it…it’s too big.
Finally…QUERY:
If I am a defense attorney and my client is a three-striker and he’s charged with a Petty Theft w/A Prior and two strikes and my defense is the cop is setting up my client because he hates him, can I ask the cop…
“You know that if he is found guilty of this he’ll get life in Prison?”
If so…how does that match up cases saying you cannot introduce punishment in the guilt phase?
If not…how does that differ to the current case?
January 6, 2010, 11:24 pmGov98 says:
Let me also say…I think one part of an unexplored issue, is the “manifestness” of the need for mistrial. The fact of the matter is, the question was never answered, so a clear limiting instruction that the questions the attorneys ask are NOT evidence, could go a long way in removing the taint. Then if you back off and solely ask about the affect regarding child custody you should be able to sufficiently explore the bias without giving to much credence to question, you may even have the judge voir dire the witness as to expert qualifications re: immigration consequences, and then say the defense can withdraw the question or she may answer No as the answer is outside the scope of her personal knowledge (as it would require her to know the future.)
January 6, 2010, 11:37 pmNathanM says:
I disagree that the question was proper. The relevant issue for the defence’s theory is whether the wife thought the defendant would be deported, not whether that would actually happen. I think the proper question is “You think that if he is found guilty of this he’ll be deported?”
I do agree that a mistrial was not called for.
A single incident like this is not damaging. Everyone makes mistakes. If a judge develops a reputation for making errors like this it will damage his reputation and may hurt his chances of being appointed to a higher court.
[Although I recently heard a (joking) story from a judge who was appointed to a court of appeal from a trial court. He said one of his new colleagues came up to him to congratulate him on his appointment and said that it was fantastic news and very well deserved. He had proven in his learned decisions as a trial judge that he should never make decisions on his own.]
January 7, 2010, 1:01 amhattio says:
Gov98 says
Can you explain why you think it’s inappropriate? I get that you think it’s prejudicial to her, but why do you think it’s more prejudicial than probative. As to whether this is part of the potential punishment, I don’t think it is, and there’s not an outright ban anyway. For example, if I were to introduce evidence that my client, when contacted by the police, denied committing the crime, the prosecutor can talk about whether my client knew he would be facing punishment. The level of the crime is usually not discussed, but whether there’s going to be punishment, and the seriousness of the punishment can be.
January 7, 2010, 1:08 amChris Travers says:
Once again, the job of the prosecuting attorney in this sort of case where there are presumed to be witnesses, etc. is to marshall the evidence and ensure that no weak link exists.
Here is the problem and one that a jury should be aware of:
One one hand assaults are not that uncommon during divorce proceedings (either with the male or female perpetrating). In a case like this the stakes may be higher, and more tension may create more risk. This is one side the prosecutor can and should push.
On the other hand (the defence attorney’s side), false accusations of assault are ALSO very common. Deportation would make custody determinations difficult to challenge and likely permanently in the mother’s favor. They may also push things FURTHER than would ordinarily be allowed under domestic family law. This does create additional incentive to lie and the jury should be informed of this. (i.e. if the man was not going to be deported, he might at least have supervised visitation, but if he is deported, that isn’t likely)
However, I think the woman’s testimony in this case, if the prosecutor is doing his job, will not be so important that impeaching the testimony causes the case to fall apart. As you say, there are presumably witnesses, maybe a police report, etc. Assuming the prosecutor has these witnesses lined up, I would expect the jury to pay a lot of attention to the witnesses and use those as the filter to judge the woman’s testimony. If the defence attorney can impeach the testimony of the bartender and every other witness, then maybe there is reasonable doubt. But if it is only her testimony that seems shakey and everyone else said it happened, I don’t see why a jury wouldn’t convict.
January 7, 2010, 1:28 amGov98 says:
Can you explain why you think it’s inappropriate? I get that you think it’s prejudicial to her, but why do you think it’s more prejudicial than probative. As to whether this is part of the potential punishment, I don’t think it is, and there’s not an outright ban anyway. For example, if I were to introduce evidence that my client, when contacted by the police, denied committing the crime, the prosecutor can talk about whether my client knew he would be facing punishment.
It’s not that it’s prejudicial to her, that’s not what I think. It’s prejudicial to the state. As a general rule (a fairly well established one) you are not allowed defense or prosecution, to as a witness You know that conviction would result in deportation OR you know that a conviction in this case would most likely result in only treatment classes? Both questions are bad, because they try to get in front of the jury tehe potential punishment that the defendant faces. That’s wrong because jurors are supposed to trying the truth of the allegation, not does the punishment fit the crime.
Once however you bring in the my client is getting an effective life sentence for a slap with a busted lip, any juror is going to have an extremely difficult time following the law, regardless of the fact that you tell them 10 times.
As to your client denying, yes I suppose the prosecutor could probably argue of course he denied it he didn’t want to get punished for it, but that’s not introducing the degree or level of punishment as done here. On the other hand the prosecutor saying of course he denied it, because of the egregiousness of his conduct he faced 25 years or some such. That would be wrong.
However, I think the woman’s testimony in this case, if the prosecutor is doing his job, will not be so important that impeaching the testimony causes the case to fall apart. As you say, there are presumably witnesses, maybe a police report, etc. Assuming the prosecutor has these witnesses lined up, I would expect the jury to pay a lot of attention to the witnesses and use those as the filter to judge the woman’s testimony. If the defence attorney can impeach the testimony of the bartender and every other witness, then maybe there is reasonable doubt. But if it is only her testimony that seems shakey and everyone else said it happened, I don’t see why a jury wouldn’t convict.
Yeah but until you clearly see the case (which I have seen but not participated in) where the jury question was what’s the difference between spousal battery and battery, and they are clearly told that the only difference is “were they married” and they come back with the Battery conviction after asking what the punishment difference was (and not given the answer appropriately so) you know that punishment is a huge factor in their mind.
January 7, 2010, 8:52 amDavid Schwartz says:
Not just whether the wife thought that the defendant would be deported but also how confident she was in that belief. Asking whether she thought he would be deported was relevant too, but asking whether she knew is asking a different question, also relevant. If she said, “no”, then he could certainly follow up to ask if she suspected it or believed it.
People are much more likely to act on things they know than things they merely believe. If I believe my wife is cheating on me, I probably won’t ask for a divorce. But if I know she is, I’m much more likely to act on it.
In this case, the precise level of motivation this key prosecution witness had to fabricate the charges was the most vital defense issue. Any prejudicial effect is outweighed by the massive probative value. And, inexcusably, in this case the Court didn’t even pretend to weigh these factors.
January 7, 2010, 10:14 amChris Travers says:
Deportation does change the result though.
If he were an American citizen, it would be a major advantage for her, but he would still have at least supervised visitation in most cases. If he is deported, it is difficult or impossible to keep in contact with the kids in any way, and supervised visitation is out.
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January 7, 2010, 11:23 amChris Travers says:
Ok, so let’s explore this for a moment. Custody consequences….
“So, suppose the defendant is deported over this. That would make any custody judgement in your favor also resulting from this more or less impossible to challenge, would it not?”
“Next question…. That would also ensure he couldn’t even have supervised visitation rights, correct?”
“Next question…. Are you taking advantage of the fact that he is a non-citizen in order to ensure you have an unusual advantage in this custody battle?”
Would you say this is different?
January 7, 2010, 11:28 ammischief says:
If you think you can establish a reason why the cop would want him to go to jail for life, sure.
January 7, 2010, 12:31 pmDennis N says:
Cruel and unusual? ;-)
January 7, 2010, 1:52 pmhattio says:
Gov 98 says
But, why are you not allowed to put punishment before the jury? At least in my state there is no specific rule stating that you can’t. Rather, it’s a specific application of two general rules, one that all evidence introduced must be relevent (punishment generally isn’t) and that the probative value must outweigh the prejudice (which it almost never will). However, in this case the question is very relevent and the probative value outweighs the prejudice.
January 7, 2010, 2:13 pmAlso, as an aside, I’m not sure that even if there was a specific rule against allowing in punishment, it would fit. He’s being tried by the State, not the Feds, but it is the Feds who will deport him. It’s not a punishment, it’s a consequence. If the husband were a truck driver, and the wife who was divorcing him was accusing him of driving drunk, do you think you couldn’t bring in what it would do to his license? What about if the husband was a cop and a DV assault conviction would cause him not to be able to own a gun, and therefore lose his job? Do you thnk those are out of bounds?
Chris Travers says:
darn the 8th amendment….
January 7, 2010, 2:46 pmDennis N says:
I think those questions would be much less probative. The deportation question at hand, speaks toward a possible finality of outcome for the wife, which directly bears on the motive question.
January 7, 2010, 2:47 pmGov98 says:
I’m on lunch typing on my iPhone so pleases forgive the poor punctuation in advance.
Chris the question to me is how mch does the additional fact of deportation prejudice the state vs the probativeness over nearly assured custody vs deportation. I think the prejudice in that does outweigh the probativeness in the “leap”.
Mischief- then I believe your desire is in conflict with the general law in California in people v. Nichols 54 cal.app.4th 21 the trial court expressly disallowed defense from mentioning the punishment of 25 to life counsel abided and the verdict was clearly affirmed. (not exactsame scenario but close).
Hattio- then our law differs. In California the rule is as old as 1956 people v Shannon 147 cal.app.2d 300 “the giving of instruction 9 is called error, on the contrary it directs the jury not to involve punishment. That is the law. Without that advice a jury may permit their dread of seeing accused suffer.”. (paraphrased). But look it up.
January 7, 2010, 3:00 pmhattio says:
Gov98,
I’ve looked up that case. The court, when commenting on the instruction says;
I don’t think this establishes the point you’re trying to make. It says that the jury should not conflate penalty and guilt. That is clearly the law in most states. But, that doesn’t translate to an absolute ban on mentioning punishment, only that you can’t do it if the only purpose is to elicit sympathy and conflate the guilt question with the punishment question. I would note that the instruction itself doesn’t establish the point you’re trying to make either. That reads, in it’s entirety;
These two quotes are the entirety of the court’s discussion of punishment, and they don’t mention an absolute ban.
January 7, 2010, 3:39 pmhattio says:
I would further note that when the quotes are read, they seem to be suggesting that the jury shouldn’t consider punishment because it’s not relevent to the question of whether the person is guilty. But the case mentioned by Professor Volokh is one of those rare cases where punishment IS relevent to guilt (or rather the wife’s knowledge of consequences is, again, I don’t think this is properly characterized as punishment).
January 7, 2010, 3:42 pmGov98 says:
First you took something I stated was a general rule and then supported with the case law and implied I said absolute ban. I did not. Now did you also look in Nichols where thecourt did preclude the defense from mentioning the three strike consequence at all.
The problem is your exception swallows the rule. Is the rule so weak that I as defense only need to say my defense is that the cop/victim/ex is out for vengeance that I can get around the rule? I think not.
January 7, 2010, 3:54 pmhattio says:
Gov98,
January 7, 2010, 4:18 pmI’m not trying to pick a fight. Merely trying to parse this out. If, as you say, this is a general rule, are there exceptions to it? If so, what are those exceptions? In order to figure that out, I think you have to know where the general rule comes from. I think it comes from the interplay of the rule on only presenting relevent evidence and the rule that evidence that is more prejudicial than probative can be excluded. I’m honestly not sure where you think the rule comes from if you are not proposing an outright ban. What gave the Cal. courts the authority to make this rule, and the accompanying instructions?
As to whether you can get around the rule just by merely mentioning a desire for vengeance, I don’t think so. That would explain the desire to accuse someone of a crime, not the desire to have someone face a particular punishment or consequence. Here’s a question for you. If I am a professional racecar driver accusing my biggest rival of driving drunk (and assume my testimony is critical, such as there’s a question to whether the rival was driving or not), do you think that couldn’t be mentioned by the defense? Especially if the license suspension is for 1 month and the big finale to the season is 20 days away?
agmartin says:
The wife appears to have forgotten that if he is deported it will be much more difficult for her to collect child support.
January 7, 2010, 4:24 pmLaura(southernxyl) says:
agmartin, that, or she considers not getting child support a very acceptable tradeoff to not being assaulted and threatened.
January 7, 2010, 4:42 pmChris Travers says:
Maybe, but now we will never have an official court version of the facts and all we will be able to do is speculate.
Do you think it would be probative to see how the accuser thinks the question of deportation would affect the custody decision? IMO this would result in VERY SIGNIFICANT changes which, if she is fabricating the charges, could be exploited to showing such including:
1) An inability to collect child support on one hand, but also
2) Many/most states require some form of notice and opportunity for custody changes if one parent wants to move out of state. Presumably if he is deported such processes would no longer apply even though they might if he was convicted but not deported.
3) Questions of visitation rights. I would expect if he was a US citizen he would at least have some supervised visitation rights. If he is deported, he has no visitation rights.
Going to the child support question, in the theory of the defence, it also makes sense to provide the jury with evidence that over half of never-married mothers NEVER seek child support and one of the most common reasons is a desire to have nothing to do with the father.
I recognize you are concerned that if the jury is afraid he will be deported they might acquit improperly. But it seems to me that if one fails to account for the fact that, not only are such games not uncommon in divorces, but that deportation changes this in some fundamental ways which may be highly desirable to the ex-wife, that one no longer has a fair trial. In short I think the probative value in this case is substantial enough that refusing to let the jury hear it as a part of the larger theory makes the trial fundamentally unfair.
However this raises a fundamental question: How well is the average juror able to separate concern over the fact that he might be deported from the concern that he might be framed by his ex-wife for the purpose of deporting him? I would be lying if I said one wouldn’t feed into the other. But the latter is a very valid concern for the juror, don’t you agree?
January 7, 2010, 5:35 pmGuy says:
You think that, but in this case I am far from convinced, and you don’t seem to have demonstrated case law supporting your position that it can be excluded even when it is central to a legitimate defense (witness impeachment). Could the defense have reasonably contended in Shannon or Nichols that the consequences of the allegations being made went to the guilt or innocence of the defendant, or specifically to the presence of a motive for a witness to lie?
Alternatively, do you think there could ever be a situation in which the probative value outweighs the prejudice? If so, what would that situation look like?
In an ordinary case, the existence of punishment (an obvious truth) would be sufficient to establish a “revenge” motive, but here, the possibility of deportation has consequences over child custody/visitation rights beyond ordinary punishment.
January 7, 2010, 5:41 pmLaura(southernxyl) says:
The fundamental question for me, were I a juror, would be – did he assault her, or not.
People can have motives all day long, and not act on them.
…”over half of never-married mothers NEVER seek child support…”
REALLY? Now here I was thinking that women get pregnant deliberately in order to trick innocent men into paying child support for 18 years. Or so I have repeatedly been told.
January 7, 2010, 6:12 pmLaura(southernxyl) says:
I hope that is true, because the alternative is that he will assault her again, more effectively, and we’ll be reading about it in the newspapers.
January 7, 2010, 6:13 pmhattio says:
Laura(southernxyl) says;
Well, that’s one of many alternatives. Another is that now an innocent man won’t be deported b/c his wife lied about assault, another is that a man who did assault his wife will be too scared to get anywhere near her, another is that since this false allegation from the wife didn’t work out, she’ll make up another one. In short, there’s no way to know. You can’t just assume that because an allegation is made it’s true. Nor that it’s not true.
January 7, 2010, 6:56 pmRyan Waxx says:
Depends. Is the heart of your defense that the cop is lying, and that his motive to falsely arrest the person is because he wants the guy rotting in jail for a very long time?
January 7, 2010, 7:22 pmLaura(southernxyl) says:
Hattio, but in all of your alternatives we still won’t know. We’ll still be speculating. That was my point. The only way we won’t be speculating is if we read about them in the newspaper. Most likely the only way we’ll read about them in the newspaper is if he kills her. So I’d rather continue to be in the position of having to speculate, which would be the case in any of the alternatives you present, and which would be preferable to murder. Do you disagree?
January 7, 2010, 7:51 pmhattio says:
Laura(southernxyl) says;
Speculating is definitely preferable to murder. But even reading about one killing the other won’t answer the historical question of whether he assaulted her in the incident that went to trial. BTW, there’s also the possibility that we will read about her killing him, her hiring a hitman to have him killed, etc. The reason I presented the other alternatives is that your comments implied (albeit not directly) that your assumption was that he was guilty.
January 7, 2010, 7:57 pmRyan Waxx says:
Maybe, maybe not. Perhaps he beat the rap, but he certainly didn’t beat the ride. It might be that that might cause even a guilty party to wake up and smell the deportation orders. Spending time in a courtroom focuses the attention wonderfully.
Oh, and may I add that I dearly hope you aren’t saying that this man should be denied his rights on the basis that he might murder the woman if left free. There’s plenty of extra constitutional crap going on in law involving females that seems to be implying this, and it needs to be smacked down whenever it shows.
January 7, 2010, 8:25 pmLaura(southernxyl) says:
Ryan, I don’t want the man denied his rights. Even if he did assault her, he should get his rights.
She should get her rights, too.
If she is not lying, then she is depending on the court system to protect her, and it has let her down. I don’t want to see that.
January 7, 2010, 8:42 pmRyan Waxx says:
Taking your response literally, I can’t argue. However, “She should get her rights, too.” has been perverted and twisted in a lot of ways over the years, especially in combination with the “victims’ rights” movement, and the end result too often is that what rights you have depends on what you see when you unzip your pants.
For example, did you know that (with VERY few exceptions) you can’t be thrown out of your house by the police without due process, or at least some kind of warrant? But I can. Because my genitals are different from yours. After all, we must make sure you get your rights.
You personally aren’t responsible for that, but bear that in mind whenever you have a male and a female in court and someone starts talking about the woman’s rights, usually what they are about to suggest is to violate the man’s rights.
January 7, 2010, 9:13 pmLaura(southernxyl) says:
Usually?
For real?
What are the man’s rights, then? Should they usually trump the woman’s rights? Why, for God’s sake?
January 7, 2010, 9:23 pmGov98 says:
Sorry it’s been a while, but I’m not really supposed to be commenting on blogs at work. In any event.
Hattio – I appreciate you were not trying to start I fight, I just wanted to be careful with my words because I’m not saying it’s an absolute rule, I don’t know the exceptions so I can’t speak to them.
The rule is judicially created, the courts have ruled on it, that a jury is not allowed to consider punishment, so they’re told not to. It’s not a rule that can be punished if the jury violates it, but it’s a common law rule established by the courts at least in California. I’ve quoted the case that says that juries are not allowed to consider punishment. At some point, a court that says you can’t consider punishment, but the defendant will be banished to Africa is asking the jurors to do the impossible.
As I pointed out that’s why Nichols was important, there the defense was not allowed to introduce anything about three strikes, because to do so, would be so prejudicial.
As to the professional driver case, I think the likelihood of it is sooooo slim, I just do not see a case, where one professional driver is predominantly the only witness in such a case (no blood analyst no cop, just the driver, I don’t really see that as likely, but even then…asking the witness, a conviction in this case would give you a significant advantage in Race X would seem to elicit the bias without pointing out the punishment the suspension.) I think the bias can be elicited without referring to punishment.
However this raises a fundamental question: How well is the average juror able to separate concern over the fact that he might be deported from the concern that he might be framed by his ex-wife for the purpose of deporting him? I would be lying if I said one wouldn’t feed into the other. But the latter is a very valid concern for the juror, don’t you agree?
My experience based upon personal observation is not very well at all. That’s why judges have to draw lines all the time (and are paid more than me.)
Alternatively, do you think there could ever be a situation in which the probative value outweighs the prejudice? If so, what would that situation look like?
Sure, this exact case…everyone even the prosecutor agreed that the defense would be able to talk about the collateral consequence aka penalty/punishment regarding child custody…there the probative value outweighs the prejudice (or at least the probativeness is not significantly outweighed), but again, telling the jury it’s a practical life sentence the balance shifts in my mind, easily too.
Depends. Is the heart of your defense that the cop is lying, and that his motive to falsely arrest the person is because he wants the guy rotting in jail for a very long time?
See this in my mind is the exact problem, the exception will serve to swallow the rule, in any such case the main defense will always be false arrest to send him away for 25 years. Or at least almost any intelligent defense counsel would take that route in a PTwP conviction on a three strikes case.
Speculating is definitely preferable to murder. But even reading about one killing the other won’t answer the historical question of whether he assaulted her in the incident that went to trial. BTW, there’s also the possibility that we will read about her killing him, her hiring a hitman to have him killed, etc. The reason I presented the other alternatives is that your comments implied (albeit not directly) that your assumption was that he was guilty.
And that’s the truth, none of us really know what happened there, and none of us ever really will, so it’s kind of an academic exercise, let me pose this question though, say there is a bartender witness who saw the assault and indeed and injury is recorded? Now does the probativeness vs. prejudice change in anyone’s mind?
I’m not saying that the appeals court was wrong. I do think if the court had held more of a hearing the trial court could have justified the mistrial, making a specific finding that introducing deportation as potential punishment tainted the jury, instead of referring to hot button issue. It will not be the first (nor close to the last) that a trial court, did something quickly that it could have said or done differently so its judgment would have been upheld when it didn’t. (Something again that I have personally seen although in that case to my benefit.)
January 7, 2010, 9:24 pmGov98 says:
On men’s rights vs. women’s rights…
Ugh this is a dangerous road to drive down. There are defendant’s rights and there are victim’s rights. Both are important, in this case, the defendant had more rights because he was the defendant. That happens…and I’m okay with that, because you know what, that’s the right way for our system to be set up.
At the same time…
Men beat up their significant others and lie about it
Women beat up their significant others and lie about it
Men lie about their significant others to obtain advantage in collateral proceedings
Women lie about their significant others to obtain advantage in collateral proceedings
Which is why all participants in the judicial system should have a default position of general skepticism towards those claiming to be victims and those claiming to have done nothing. Go where the evidence goes and go there, and there you can have confidence.
January 7, 2010, 9:33 pmRyan Waxx says:
Yes, usually. Because if they were simply talking about “the defendant’s rights”, then that’s what they’d say.
I’ll apologize in advance if this is unusually confusing for you, but “the man’s rights” should roughly coincide with what rights a woman would get given the same set of facts, and vice versa. Again, I’m sorry if this concept is too difficult given how seldom it actually happens.
January 7, 2010, 9:40 pmLaura(southernxyl) says:
Do I deserve this?
January 7, 2010, 9:49 pmRyan Waxx says:
Probably not. But it’s best to make sure, right? After all, you might snap and kill someone and then we’d read about it in the newspapers.
Prejudice doesn’t feel nice on the receiving end, does it?
January 7, 2010, 9:57 pmLaura(southernxyl) says:
Ryan, have I accused you of anything?
January 7, 2010, 10:02 pmGov98 says:
Dude Ryan…You’re the one who took Laura’s statement and expanded on it to speak as to how men get shafted after she said that both parties should have their rights respected and then you claimed she was prejudiced. I don’t think that was cool.
January 7, 2010, 10:05 pmThe objection’s on the other foot | a public defender says:
[...] visiting!An interesting and ironic-chuckle-inducing opinion from the Colorado Court of Appeals (via Volokh), where the trial court granted a mistrial in a criminal case. The defendant had been charged with [...]
January 7, 2010, 11:42 pmChris Travers says:
This is really what it amounts to. And I appreciate the symmetry here (many studies have concluded that there is not a large gender disparity in victimization regarding domestic violence, interestingly). Also men are far less likely to go to the police when beat up due to gender roles and pride issues. What man wants to admit to being beat up by his girlfriend?
There can also be other issues. When I was the victim of domestic violence from my live-in girlfriend during college, I knew there wasn’t enough evidence to go to the police even though I was frequently assaulted by her, sometimes with deadly weapons (some of the weapons were my weapons, and admittedly I probably should have moved those to friends’ houses). There were a couple points where I was beaten with blunt objects moderately but those posed other problems (frequently after hitting me a few times, she would start hitting herself).
I do think we need to stop talking about domestic violence in terms of men’s rights vs. women’s rights. Men are just as likely to be the victim of domestic violence as women, and women are just as likely to perpetrate it. Until we do that, there will be no equal protection under the laws because police and prosecutors may have misguided notions of who is usually responsible.
January 8, 2010, 12:36 pmRyan Waxx says:
Nice omission of details. What you no doubt meant to include is although other commenters are busy inventing phantom bartender witnesses that exist only in their minds as far as we know, she went quite a bit further and started postulating that the guy’s a potential murderer. Based on what evidence?
Only two pieces of evidence: first, he’s been accused of assault, and second, what genitalia he has. Unless you prefer I surmise that the fact that he’s African was what caused her to transform an “innocent until proven guilty” to “potential murderer?”
The point I’m trying to make… the one that I’m not surprised went right over your head… is that discrimination is discrimination. It is no more right to be obsessed with an estranged-male-as-murderer than it was right back when America was obsessing with black-males-as-rapists. The assumptions are just as vile, even if one is currently fashionable (and even enshrined as law) while the other is not.
January 9, 2010, 4:41 pmChris Travers says:
Individuals who engage in DV are potential murderers?
Having been a (male) victim of DV (a little over 10 years ago), I would say the one time I struck back hard out of self-defence, it was based on the fear that the way things were escallating it could lead to my murder and that I couldn’t tell at that time whether or not that was the current immediate concern. Long story short, I spun around and slapped hard enough to incapacitate her in one blow.
I believe it was self defence for the same reason Laura is concerned he might be a murderer. What’s sauce for the goose is sauce for the gander.
January 9, 2010, 5:10 pmRyan Waxx says:
If you have some sort of coherent rationale for how your example is relevant to anything, now’s the time to let us know.
January 9, 2010, 5:15 pmGov98 says:
Look she said that one of the possibilities while other people were talking about an innocent man being freed false charges is that a genuine victim is exposed to be revictimised because the system failed her. That was what I read her to say. She did not say that this was because he was male or because he was African but instead because he was an accused perpetrator of domestic violence. You chose to assume that it was based on prejudice, you took your beliefs about the systems (or experiences but I’m not so suggesting or assuming) and projected them on her, and then used that as a basis to be rude. And I pointed it out. The point you were trying to make, did not go over my head, but you were the one who chose to make it unnecessarily personal. That was my point, you can either, accept that or lash out at me or point out why I’m wrong. What you do…is your choices.
January 9, 2010, 6:56 pmRyan Waxx says:
Of course she didn’t explicitly say that… that’s why it’s called an assumption.
You haven’t yet bothered to provide a better explanation of how we got from “innocent until proven guilty” to “potential murderer”.
Let me put it this way: If the genders had been reversed, do you for one moment believe she’d have said “because the alternative is that she will assault him again, more effectively, and we’ll be reading about it in the newspapers”?
Do you?
So there you have it, bona fide proof (again) that we are talking about prejudice based on gender.
Not that you’re capable of recognizing it as such. Exactly what will it take to get past your social programming that prejudice is OK depending on what group is being targeted?
January 9, 2010, 7:39 pmRyan Waxx says:
You are failing… extremely badly… at applying current standards of “what is discrimination”? to contexts you aren’t trained to apply it to. That’s not especially surprising, since the current scope of “what is discrimination?” is so alogical as to look appropriately ridiculous when applied to any other context.
For example… your objection that “She did not say that this was because he was male or because he was African”. That is manifestly never, ever, EVER a requirement when accusing someone of racism. Do you think that if you jumped into a comment section about a Rush Limbaugh race controversy saying “well he never outright said blacks were inferior!”, that anyone would take that seriously? A comment like that would just be wackily out of the mainstream: an outright statement like that is never required.
January 9, 2010, 8:32 pmGov98 says:
This is absolutely hilarious to me, so apparently, because other people make bogus charges of racism we are allowed to make charges of racism or sexism whenever there is a basis that we could possible point to for it. As though being able to accuse one as racist or sexist ends the need to actually prove your point. Yeah and I’m the one who doesn’t get innocent until proven guilty. LOL
By the way I do think there was one quote attributed to Rush Limbaugh to “prove” he was a racist that has been roundly retracted as not being proven to be from him.
You haven’t yet bothered to provide a better explanation of how we got from “innocent until proven guilty” to “potential murderer”.
Let me put it this way: If the genders had been reversed, do you for one moment believe she’d have said “because the alternative is that she will assault him again, more effectively, and we’ll be reading about it in the newspapers”?
Do you?
So there you have it, bona fide proof (again) that we are talking about prejudice based on gender.
But then again your definition of bona fide proof is something that I don’t many people would actually call evidence. Instead it sounds like an projected assumption, which maybe bona fide proof, but I wouldn’t call it that.
January 9, 2010, 8:53 pmChris Travers says:
I just think based on my experience, it is reasonable to fear that IF he was guilty and IF he got off because the Prosecutor was wrong, then he might be a potential murderer.
This being said, this has no bearing on the fundamental question which is whether his lawyers had a right to have the full impacts of the charges on custody proceedings put before the jury. I think it should be uncontroversial that he did have this right and that the prosecutor screwed up. This means though we will never know if he was guilty or not because the trial didn’t go very far.
January 9, 2010, 9:20 pmRyan Waxx says:
I notice that despite your quoting the question you managed to forget to answer it. Why is that?
Excuse me, but if someone assumes a person is or is not a potential murderer given the exact same situation but different genders, then pray tell, what on earth could possibly count as proof to your mind?
A prejudice is a prejudgment based on a person’s characteristics, in this case gender. I literally satisfied that definition. Which word are you finding confusing?
January 9, 2010, 9:51 pmGov98 says:
Why is that? Because I don’t answer every question that gets presented especially, when what I think is pretty darn irrelevant, since you seem to want an answer though, I’ll give it…
Yeah would I for a second believe that she might of said that if the gender’s were reversed. Yes. Why not? If she comes and tells us she wouldn’t then there ya go that’s proof, but you haven’t proven a thing you asked a question, I couldn’t possibly know the answer to as I don’t know her from Eve, nor you from Adam. Why should I assume anything about either one of your thought processes? Other than the fact that innocent until proven guilty seems very strict when talking about male defendants and the fact that innocent until proven guilty does not seem the same when talking about something a woman has said or done. Not saying that means anything, but I notice a disparity. Ironic.
A prejudice is a prejudgment based on a person’s characteristics, in this case gender. I literally satisfied that definition. Which word are you finding confusing?
The word “satisfied.” Because I think that means that you proved it based on like actual evidence, which um, I don’t think you’ve remotely done.
January 9, 2010, 10:18 pmRyan Waxx says:
Well, if you are going to be flagrantly dishonest, I guess that ends the discussion.
January 9, 2010, 10:35 pmLaura(southernxyl) says:
Ryan, you’re funny, buddy.
Yes, I would have said the same if the genders had been reversed. Can you point to a single piece of evidence that I would not have? Oh, except that I’m a woman, of course – that tells you everything you need to know.
Trying not to choke on the irony.
January 9, 2010, 11:06 pm