State and federal evidence rules generally bar the prosecution from introducing evidence of defendant’s past crimes to show a propensity on the defendant’s part to commit similar crimes. If, for instance, the defendant is charged with child molestation, the prosecution can’t introduce evidence that defendant had molested other children to show that defendant likes molesting children and therefore to support the prosecution’s claim that he molested this child.
Past bad act evidence may be introduced for other purposes, such as to show motive (e.g., the defendant killed this victim because the victim witnessed another killing by defendant and was thus a threat to the defendant). But it may not be introduced simply to show propensity to commit this crime, even if it is relevant to do that (for instance, because it shows that defendant likes to commit such crimes, and thus is more likely than the average person to commit the crimes). And this isn’t just a rule of sufficiency of the evidence (i.e., that propensity evidence isn’t enough to prove guilty beyond a reasonable doubt) — it makes the evidence inadmissible even as one part of the prosecution’s broader case.
But that’s generally just a statutory or common-law rule, and many legislatures have changed it by statute in certain ways, especially for sex crimes. Iowa Code § 701.11, in particular, provides that,
In a criminal prosecution in which a defendant has been charged with sexual abuse [defined later in the section -EV], evidence [that constitutes clear proof] of the defendant’s commission of another sexual abuse is admissible and may be considered for its bearing on any matter for which the evidence is relevant. This evidence, though relevant, may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
But in State v. Cox, decided April 30, the Iowa Supreme Court held that the admission of such propensity evidence violates the Iowa Constitution’s Due Process Clause. “The policy against admissibility of general propensity evidence stems from ‘a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.’ ‘A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.’ This concept is ‘fundamental to American jurisprudence.’” In this, the court departed from the view of federal courts and most state courts, and adhered to the minority view, which until then apparently was followed only by the Missouri Supreme Court.
An interesting decision; I’m not sure it’s right, but I wanted to pass it along. Since it interprets the Iowa Constitution, the U.S. Supreme Court can’t review it, though Iowans could amend the constitution if they disapprove of this decision.
neurodoc says:
Or to help connect the dots between a past crime committed in a somehow singular or remarkable way and the crime the defendant is on trial for now (e.g., the defendant was previously convicted of breaking into a woman’s house at night, tieing her up, and stealing all the left opened-toed shoes in her closet, and the crime he stands accused of now was an almost exact repeat of the other one of which he was found guilty).
May 5, 2010, 10:26 pmSteve says:
Does this still leave the door open for evidence of a particular pattern or method on the defendant’s part?
May 5, 2010, 10:26 pmEMB says:
I guess I just don’t see why evidence of motive should be treated differently when the motive in question is some sort of sexual gratification than when it’s the fallout of some past violence, etc.
Does Iowa ban other character evidence (e.g. from the defendant’s friends and colleagues)?
May 5, 2010, 10:33 pmAnon321 says:
It might be worth noting that the Federal Rules of Evidence (specifically, FRE 414 and 415) also exempt child molestation cases from the general rules on propensity evidence. FRE 414(a), for example, says “In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.”
I wonder if FRE 414 would be deemed unconstitutional in Iowa District Courts …
May 5, 2010, 10:39 pmSgtDad says:
The limitation on “propensity evidence” pre-dates the constitution. Like the requirement to prove mens rea, it is one of the ancient rights of Englishment that the Federalists were sure was explicitly preserved in the Constitution. The Anti-Federalists were right.
Moreover, FRE 414 & 415, as well as the Iowa statute, seem to me to be an equal protection violation.
May 5, 2010, 11:02 pmPeteP says:
“no one should be convicted of a crime based on his or her previous misdeeds”
So, someone who’s done 30 years in prison for serial child sex abuse, just got out, and was at it again the first week, ‘the law’ says his past is irrelevant and biasing.
Yet another reason why so many people hold ‘the law’ in complete disdain.
May 5, 2010, 11:34 pmhilzoy fangirl says:
Either the evidence shows that he did it, or it doesn’t. Whether it’s the sort of thing that he might have a propensity to do doesn’t say anything about whether it was him or someone else. You do want to make sure that they get the right man, don’t you?
May 5, 2010, 11:37 pmLou Gots says:
“Someone has shot Major Strasser. . ..”
They’ll try this any time the courts let them get away with it. It’s always easier to round up the usual suspects than it is to go looking for evidence of the crime they are supposed to be investigating. Language in various rules of evidence is stretched and twisted to make mere propensities into common scheme and design or mere vices, such as greed and lust, into motive and intent.
Perhaps it takes an old-timer
May 5, 2010, 11:39 pms to appreciate how far the law has fallen in this area, Disgusting–bacon-grease and donut crumbs all over the place, and judges and prosecution attorneys should have done better.
PeteP says:
Hilzoy – demonstrated propensity and history have a LOT to do with it. They MATTER.
May 6, 2010, 12:19 amDave N. says:
If you mean the United States District Courts in the Southern and Northern Districts of Iowa, the answer is clearly NO. The federal courts are not bound by the Iowa Constitution (something about the Supremacy Clause makes this the correct answer 100% of the time).
If you mean the state district courts, again the answer is clearly NO, since the Iowa state courts are governed by the Iowa Rules of Evidence.
May 6, 2010, 12:19 amMike says:
In these cases, the prosecution seeks to admit evidence of uncharged conduct. They also do not have to prove beyond a reasonable doubt that you committed the uncharged conduct. Instead, they are able to use the uncharged – and unproven – conduct to create a lot of smoke where there isn’t any fire.
The answer to the problem, of course, is to indict the defendant for the uncharged conduct. If the defendant is going around molesting people, why hasn’t he been prosecuted – and convicted – before?
Under the current rule, the defendant has to defend himself against two accusations – the charged and uncharged conduct.
Meanwhile, the rape shield law prevents the prior bad act evidence of the complaining witness from coming in. Worked on a case where the complaining witness had made a prior (almost certainly false) accusation of rape. The judge would not allow that prior accusation in to impeach the witness, under the rape shield law.
Thus, there are serious equal protection issues in sexual assault cases. The defendant’s prior conduct is relevant, but the complaining witness’s isn’t.
May 6, 2010, 12:55 amMike says:
Here’s an example of how the rule is applied: A man was accused of molesting a 7-year-old child. Two 30ish-year-old women claimed he assaulted them. This was allowed.
Child molestation and sexual assault are entirely different categories of offenses – involving an entirely different category of offender. Yet courts will admit prior bad act evidence to create smoke in the courtroom.
In the William Kennedy Smith rape case, publicity-seeking women claimed, after Smith had been indicted, that he had assaulted them, too. Smith was never indicted for these rapes. Should he, at trial, nevertheless be forced to defend himself against these accusations?
May 6, 2010, 1:03 amOrenWithAnE says:
It becomes very relevant at sentencing time.
May 6, 2010, 1:05 amPhil says:
First a unanimous decision in favor of “gay marriage”, now this? Not one dissenting judge in either of these decisions? What are they smoking at the Iowa Supreme Court? They’re certainly building a strong case to be labeled as one of the most liberal courts in the country.
Will the Iowa Constitution be amended over this? I doubt it. Barring a constitutional convention, that would require the legislature to pass the amendment two consecutive times(separated by an election) before it even comes up for a vote by the people. The legislature doesn’t even convene again until january.
These days, the legislature leaves all the big “amendments” to the Iowa Supreme Court. The last amendment that Iowans actually got to vote on was some dumb thing about eliminating the words “idiot” and “insane” from the constitution. I wish that Iowa had an initiative process to propose amendments, but it unfortunately does not. There will be a constitutional convention question on the ballot this year, but what are the chances that a convention will actually be called? This case give us one more reason for it though.
May 6, 2010, 1:19 amVisitor Again says:
But you presume his guilt–”at it again the first week”–when that is the very question to be decided at trial, one would hope fairly without the prejudice of irrelevant general propensity evidence. This Iowa decision is a safeguard against conviction of the innocent.
Eugene, I fail to see how the fact a defendant likes sex crimes is relevant to guilt of the crime in question. Sure, the defendant is more likely to commit sex crimes in general but that has no bearing on guilt of the particular sex crime that’s charged. He is only more likely to have committed the sex crime that’s charged because he is more likely to commit sex crimes in general–but that is highly speculative and allows conviction on the forbidden basis of who someone is
Commonality of a truly distinctive modus operandi (not, for example, that there was a break-in in both cases of rape, which is hardly distinctive) might make evidence of past crimes admissible.
May 6, 2010, 1:30 amRoger says:
Treating sex crimes differently from other crimes makes no sense to me. Any such propensity evidence would seem to be particularly unreliable and prejudicial in the case of sex crimes. I think it makes more sense to say that someone who spends 30 years for bank robbery or drug dealing would be suspected of committing those crimes again.
May 6, 2010, 3:12 amDuncan Durke says:
I completely agree with you. Great post.
May 6, 2010, 4:39 amchris says:
I’m not an expert, but the accepted wisdom is that sex crimes have high recidivism. If there is evidence that this is true, there might be some argument in favor of a carve out (although the concerns brough up above still apply). Ideally, you’d need a statistical analysis that showed a meaningful correlation between random sex criminal and particular sex crime.
May 6, 2010, 4:59 amPHil says:
I have always thought admitting past bad acts made sense in the modus operandi cases and have without much thinking extended that to molestation, and the like, but perhaps they really are different.
May 6, 2010, 6:42 amMartinned says:
Interesting. I’m not aware of any Civil Law courts that would exclude such evidence, but then they wouldn’t understand true freedom anyway.
May 6, 2010, 7:03 amMartinned says:
Whether it is probative or not is for the prosecutor to argue. There’s no reason to categorically exclude certain evidence, unless it is never probative.
As for “prejudicial”, that’s just lawyer code for “we don’t trust the jury to get it right”.
May 6, 2010, 7:05 amAnderson says:
I guess I have to read the op to discover how something so “fundamental to American jurisprudence” is unknown to nearly every other American jurisdiction.
At least in the cases finding a right to gay marriage, one can argue that the principle was evident but prejudice blocked us from seeing it. I’m not sure how that argument could work here.
May 6, 2010, 7:26 amPHil says:
May 6, 2010, 7:28 amPHil says:
It is not beyond reason to think there may be prejudice against anyone, even accused, of such a heinous crime.
May 6, 2010, 7:52 amNickS says:
Sadly, that is both true and incorrect. The accepted wisdom is that sex crimes have high recidivism, but the actual truth is that they have the lowest specific and general recidivism rates of any class of criminal outside murderers.
And the presumption of guilt is the biggest argument against this kind of evidence. Consider: a sex offender gets out of prison and moves into a neighborhood. Neighborhood gets notified by the police that there is a sex offender moving in and obviously doesn’t like this. Neighbor claims to police that little Timmy was fondled by offender. Offender is arrested and indictment granted based on that testimony alone. Little Timmy is prohibited from being cross examined as he is a minor, the lack of physical evidence is considered proof of the offender’s foresight (“Of course he didn’t leave any marks. He planned it that way to make our case harder.”), and the only evidence is the parent’s statement (with some weeping added in) and the prior sex conviction (“Oh, he’s up to his old tricks.”). How exactly do you think the jury will vote, assuming he doesn’t take a plea out of fear? Plus, at sentencing his protestations of innocence would enhance his sentence.
May 6, 2010, 7:56 amMartinned says:
Wouldn’t it be better to refrain from notifying the neighbourhood? (Privacy, etc.)
Also, again I note your argument doesn’t display the greatest confidence in the wisdom of the jury.
May 6, 2010, 8:26 amShelbyC says:
It may be better to refrain from notifying the neighborhood, but of course you can never prevent others from notifying the neighborhood, since the conviction is a matter of public record. Any why should we display any confidence in the wisdom of the jury? The jury is one element in the protection of the accused, but there’s no reason to believe that they’re any wiser than anybody else.
May 6, 2010, 8:39 amPierre Corneille says:
So much for conventional wisdom (and I mean that non-snarkily).
May 6, 2010, 9:01 amMartinned says:
Well, you can’t under US law, anyway.
Because presumably between the twelve of them they are “wiser than anybody else”. That’s why you have twelve instead of just the one. If, after careful study of the evidence, and after careful contemplation of the arguments, they still don’t do better than “anybody else”, then why have them involved in the judicial process at all? Surely if a judge during a bench trial did as well as “anybody else” but no better, we would doubt the wisdom of their appointment? Shouldn’t, then, the jury do at least as well as the judge would have? After all, it is no feat of higher abstract logic that is asked of them, they merely have to filter out the probative evidence from the rest and add it all together to come to a verdict. Guilty or not guilty.
It’s been said that the French assise system, whereby the verdict is decided by a jury of three judges and nine lay jurors has the advantage of allowing the judges to see the jury at work. If something goes wrong, they can fix it right there, and in any event it gives them greater confidence in the jury. Perhaps that is why rules such as this one are unfamiliar to French law (AFAIK), why French jurors are allowed to ask question directly to the lawyers, parties and witnesses, etc.
For a people so eager to worship the sanctity of the jury, even in civil cases, Americans have remarkably little confidence in the institution. Neither do I, BTW, which is why I’m perfectly happy living in a country with no juries whatsoever.
May 6, 2010, 9:05 amNickS says:
Juries are like Communism. They’re great in theory until you find out how stupid and self-serving the average person is. You’re reading an law blog written by intelligent legal scholars. Other people watch Law And Order: Perverts Are Raping Your Children. Guess who’s going to be picked for a jury? Me, I’ll take a bench trial.
May 6, 2010, 9:08 amMartinned says:
Me, too. But would you pick a bench trial for your client? After all, it is the defendant’s right to have a jury trial, not an obligation. So logically that possibility should be used strategically, but I’m not really in a position to assess whether actual American lawyers treat it as rationally as that. (Say, as rationally as they treat the process of jury selection.)
May 6, 2010, 9:18 amDakota Loomis says:
Working as a prosecutor I dream of the day defendants take bench trials over jury trials in sex cases, especially adult sex cases. Juries have a very difficult time with the concept of consent. The even larger hurdle is convincing juries that a victim’s behavior before and after the sexual assault is reasonable and understandable. That normally requires expert witnesses and resources that the normal prosecutors office does not have (as well as a prosecutor who is experienced with sexual assault cases, another rarity in many smaller jurisdictions). All juries want to see victims who aggressively attempted to fight off their abuser while screaming bloody murder and waking up the entire apartment complex. Juries also want to see visible injuries, DNA, and a victim who didn’t “bring it on herself.” And God forbid you have a victim who delayed reporting for even a seemingly insignificant amount of time.
I mean, there’s a reason why you never see a sex case go to a bench trial. If defense attorneys could gain any advantage from waiving their client’s right to a jury trial they’d do it in a second and would be ethically obligated to do so.
May 6, 2010, 9:24 amShelbyC says:
For the same reason we have other players involved in the process, instead of having juries running around charging and convicting or aquitting people willy-nilly. Juries are an important part of the process, and an important part of the protections afforded the accused, but by themselves they are insuffient.
May 6, 2010, 9:43 amRedlands says:
This is right, especially on the consent issue. And I’ll add that propensity evidence is very powerful, persuasive evidence. I didn’t know how powerful until I used it unashamedly recently in a trial of a serial rapist (four prior, separate forcible rapes with separate prison terms for each) in a case that was factually very difficult; the defendant’s ophthalmologist testified he was blind for instance. After a two week trial it took the jury two hours to convict, leaving the consent defense in tatters. If the case wasn’t won when we litigated the propensity evidence issue in pretrial motions it certainly was shoved in the right direction.
May 6, 2010, 9:46 amShelbyC says:
It’s relative confidence, not absolute confidence, that’s important to this question. And keep in mind that you’re not required to have a jury.
May 6, 2010, 9:48 amMartinned says:
Thanks for the insight. That’s the kind of strategic behaviour I was thinking of.
But why??? If they aren’t expected, between the 12 of them, to have a better chance of avoiding doing something dumb than a random person of the street, what is the value of having them there, from the perspective of the system as a whole? (As noted above, I can see why a defense attorney would want to have a jury, since they might be more likely to make certain mistakes that favour his client. But that can hardly be an argument for society in general.)
May 6, 2010, 9:53 amMartinned says:
OK, why would society have even less confidence in the judge (or judges) than the modest level of confidence displayed in this thread in the ability of the jury to get it right?
May 6, 2010, 9:55 amKen Arromdee says:
That’s like saying “I questioned them without a lawyer, and they confessed, and I got them convicted. It would have been very hard to convict them if they were allowed access to a lawyer”.
Ultimately, protections in the justice system are to protect the innocent, not the guilty. The fact that a questionable method helped you convict the guilty doesn’t make it any less questionable. (And I don’t actually know he’s guilty anyway.)
May 6, 2010, 10:08 amAnderson says:
Phil, I hear ya, but the fact is that “the court departed from the view of federal courts and most state courts, and adhered to the minority view, which until then apparently was followed only by the Missouri Supreme Court.”
If we were discussing the subject in 1791 in Congress Hall, I might well agree with you and suggest that the Bill of Rights exclude such evidence; but it does not seem correct to say that propensity evidence is fundamentally contrary to American jurisprudence.
May 6, 2010, 10:20 amDakota Loomis says:
Well, if the issue was argued before a judge in pretrial motions, it’s not really comparable to your factual. Unless Redlands was not arguing in good faith (and the fact that the judge ruled in his favor gives us some evidence that the argument was in good faith), then Redlands did exactly what is expected of a zealous prosecutor.
There’s a reason why the Iowa Supreme Court’s decision was highlighted today by EV. It’s an anomaly and most states and the federal government have varying rules on the admissibility of prior bad acts/propensity evidence.
May 6, 2010, 10:23 amSuperSkeptic says:
Charge him for molesting and raping the other two cousins too; don’t sever the trials. Problem solved.
May 6, 2010, 10:28 amPersonFromPorlock says:
Cozzens’s novel is well worth reading for its older American view of the law (and because Cozzens deserves to be read more than he is). Needless to say, this older view gives the legal Establishment hives.
May 6, 2010, 10:33 amLarvell Blanks says:
“The policy against admissibility of general propensity evidence stems from ‘a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.’ ‘A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.’”
But he is being tried for what he did, not for the prior act — the evidence of the prior act is being offered as evidence to support the fact that he committed the current act. The exact same argument could be made in situations where the past act evidence is pretty clearly admissible (“she killed her last husband by mixing antifreeze mixed with his gin and tonic, so she clearly was familiar with the technique used on her current husband”).
I can understand the argument that the evidence might not be relevant, or that its very marginal relevance might be outweighed by its likely prejudicial effect. But that is the kind of thing that judges consider all the time. Once you concede that the evidence is relevant, and that its relevance is not substantially outweighed by the danger of unfair prejudice, I see no reason for inventing a constitutional rule out of thin air saying that it’s beyond the legislature’s power to say it’s admissible. Unfortunately, state supreme courts seem to do that kind of thing all the time.
May 6, 2010, 10:37 amUrso says:
You could say this about every rule of evidence. If you truly have confidence in the jury’s infallible wisdom, you should let in hearsay, unauthenticated documents, conjecture, unqualified experts, everything. Just trust the jury to suss out what’s credible and what isn’t.
May 6, 2010, 10:55 amNickS says:
Adult-on-adult rape I’ll agree with you. Society seems to have that problem with real life v. fictional depictions. Not all rape is at gunpoint in a parking garage. Rape is also unique in that, in comparison to other sex offenses, has a much higher recidivism rate. The theory is that it is more violence motivated than sexually motivated. That’s not to say that previous convictions should be used in a trial though. Influencing the decision to investigate or even prosecute, sure; Hunches are allowed. Evidence in a trial, no. There’s a much higher standard of proof required.
I was referring more to cases where the prior criminal behavior or prosecution would potentially influence a juror more than the lack of evidence, like the theoretical case I brought up. While the use of that evidence would certainly aid in getting convictions, you need to balance that against the convictions you’d get against innocent people. Otherwise, every conviction is a life sentence.
May 6, 2010, 11:02 amDave N. says:
Not quite sure how this works.
No state has a categorical prohibition on minors testifying. In fact, quite the opposite. As long as the child understands the importance of telling the truth and that he or she promises to be truthful, then the child will ordinarily be allowed to testify.
Additionally, in recent years the Supreme Court, led by Justice Scalia, has said, repeatedly, that the Sixth Amendment right to confront accusers means exactly that. Crawford v. Washington, 541 U.S. 36 (2004), is the most important case to know about in this area.
May 6, 2010, 11:04 amTweets that mention The Volokh Conspiracy » Iowa Constitution’s Due Process Clause Bars Propensity-to-Commit-Crime Evidence -- Topsy.com says:
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May 6, 2010, 11:08 amUrso says:
But several states allow such testimony remotely, via video, so the kid doesn’t actually have to see his attacker.
http://enidnews.com/localnews/x546173103/New-court-video-system-to-help-children-testify-outside-of-courtroom
May 6, 2010, 11:11 amMartinned says:
Indeed, and that is generally the rule in Civil law countries: All probative evidence is in. (Though the expert is an exception: Civil law courts tend to appoint their own experts, instead of letting parties bring them.)
Just curious: what is your interpretation of “good faith” here? I’d think that a prosecutor’s good faith is not the same as any other lawyer’s, since a prosecutor can always decline to prosecute if he’s not convinced of the defendant’s guilt. As a result, that is the absolute minimum that I would expect from a prosecutor: that he only prosecute cases that he honestly believe to be just. (Which, in rough translation, is the oath of Dutch lawyers, BTW.)
It sounds like the trials in ancient Athens, though there they had juries of 500 citizens, compared to a normal turnout at the citizens’ meeting of about 5000. Athenian juries were definitely allowed to vote whichever way they liked, on whatever grounds they liked. It was (criminal) trial and judicial review in one.
May 6, 2010, 11:11 amUrso says:
Ah but isn’t this tautological? You’re presupposing the evidence is “probative” in the first place. I’d argue that an unauthenticated document, for instance, is so unreliable it isn’t probative of anything.
And fwiw I live in a civil law jurisdiction where we most certainly exclude all those things I listed. Don’t conflate “European” with “civil law.”
May 6, 2010, 11:16 amNickS says:
OK. He can testify.
May 6, 2010, 11:20 amMartinned says:
Indeed. But since all of this would be argued in front of the judge or judges who will also later render the verdict, or alternatively in front of a jury who are not sent out of the room ever other minute, arguments over whether something is “probative” or not aren’t very common. If an attorney is nagging on about something that is not probative, the court will simply tell him to stop wasting their time and move on.
For one thing, I said “Civil law country”. Secondly, I’m not sure if Louisiana qualifies as undiluted civil law, given how much of its law inevitably comes from the Supreme Court’s common law-influenced interpretation of the common law-influenced Bill of Rights.
May 6, 2010, 11:28 amDave N. says:
I think that even if there is a two-way system (so the child sees the person being accused), there could be a Sixth Amendment violation.
Such a proceudre was upheld in Maryland v. Craig, 497 U.S. 836 (1990). Justice Scalia, joined by Justices Brennan, Marshall, and Stevens, dissented.
Since Crawford is more recent than Craig, and since Crawford expressly overruled Ohio v. Roberts, 448 U.S. 56 (1980), and radically shifted Confrontation Clause jurisprudence in the process, I have my doubts about Craig‘s continued viability.
May 6, 2010, 11:34 amUrso says:
It’s not a contest to see what jurisdiction has the “purest” civil law heritage. I’m pretty sure there’s no country on earth where Justinian’s Code is still binding law!
But as far as I know there’s no reason why, at least in civil cases, an American state couldn’t adopt the European system (criminal law is different because of the Fifth and Sixth Amendments). But they’d have to have a good reason to – without strong evidence that the european system leads to better results, why bother changing.
May 6, 2010, 11:37 amMartinned says:
The Justinian Code is not what defines the Civil Law countries, the 19th century codes, like the Code Civil in France (and Louisiana), are. (Together with a whole bunch of other procedural-ish things that also don’t have their roots in Roman law.)
In this case, the question concerns a number of points that are characteristic of the Common Law system, a distinction that cannot be disproven by pointing to a mixed system like Louisiana. (Remember: you said that many of the things you’d listed would also be inadmissible in Louisiana in order to disprove my statement concerning the difference between civil and common law on this point.)
Actually, in the end it all goes back to the juries. As long as the US Constitution guarantees everyone a right to a jury trial, even in civil cases, procedural law will have to be designed that protects the jury from ever hearing anything that might cause them to give an incorrect ruling. (Or so the logic seems to go.)
May 6, 2010, 11:48 amDave N. says:
Don’t get me wrong. I lost a case where the child victim, age 7 or 8, who was sexually abused by a family “friend”, became hysterical when she saw him in the courtroom. She had been great in prep, could remember the details in the kind of graphic way that should be foreign to 7 year olds, and I thought I had a great case until the perp actually confronted her.
However, what I wish the law should be is quite different than what I believe the law actually is.
May 6, 2010, 11:54 amUrso says:
Which it doesn’t, as the Seventh Amendment guaranteeing jury trials in civil cases has not been incorporated to the states (not yet, I suppose I should say).
In Louisiana, for instance, you’re not entitled to a jury trial unless the amount in controversy is $50,000. Nor can you get a jury trial in probate and child support cases.
May 6, 2010, 12:02 pmShelbyC says:
For a variety of reasons, primarily in my mind because judges are subject to political influence. Keep in mind that the reason the bill of rights gaurentees a trial by jury isn’t because the founders feared that subsequent generations would adopt a less “wise” method of factfinding, it was to insulate trials from the political process. Of course, judges since then have done what they could to limit the role of the jury.
May 6, 2010, 12:04 pmDave N. says:
It is important to understand the historic nature of the English Court system, which had courts of both law and equity. The primary difference for today’s purposes is in the nature of the remedy sought.
If the remedy is legal (typically monetary damages), then there is a 7th Amendment right to a jury in federal cases. If the remedy is equitable (injunctions, writs, etc.), then there is no right to a jury trial, even in federal court.
That is why, for example, that federal petitions for writs of habeas corpus are heard solely by a judge, and there is never a jury.
May 6, 2010, 12:13 pmNickS says:
If you don’t mind me asking, why was that case lost? If I was a judge (one can dream) and that happened I would happily allow a videotaped testimony and then cross-examination in person or at least a brief recess. I wouldn’t throw out testimony because the witness was intimidated into not talking.
May 6, 2010, 12:15 pmMartinned says:
Oops. I knew that, but I forgot.
That makes sense, except for the fact that judges might be political, depending on their own ethics vis-à-vis their job, while the members of the jury are definitely political. In fact, negotiating a jury verdict is arguably more “political” than voting, in that it involves a give and take between different perspectives, ideologies, etc., instead of a simple one-directional statement, which is what voting ultimately comes down to.
May 6, 2010, 12:15 pmGopher says:
This could have interesting FRE 412-415 implications if other states find in similarly unconstitutional in relation to their due process clauses.
May 6, 2010, 12:23 pmDave N. says:
The judge did allow a recess (this was at the preliminary hearing stage). I was working in a small county at the time and I don’t think we had the facilities to even do her testimony a la Craig (I remember inquiring).
The perp did end up pleading to something that put him in jail for a year and which led to his involuntary deportation. But I couldn’t get him on the crime that would have put him away for 20 to life.
May 6, 2010, 12:25 pmzuch says:
Prof. Volokh:
Is this true? What about FRE Rule 414:
That would seem to directly contradict your claim.
Cheers,
May 6, 2010, 12:26 pmhattio says:
Martinned and some others seem to be arguing that if we don’t trust the jury we should do away with it. What this argument misses is that we don’t have a choice between either a jury OR a judge. We can have both, each with different duties. I don’t completely trust the jury, I don’t completely trust the judge, and I don’t completely trust the prosecutors. I don’t want to do away with any of them. The idea in the American system is that if a person is innocent, somewhere along there that fact will come out. It doesn’t always work out that way, but we’d probably have a higher percentage of innocent people convicted if we got rid of either judges or juries, and a higher percentage of guilty go free if we got rid of prosecutors.
May 6, 2010, 12:35 pmSuperSkeptic says:
I don’t think you can argue that juries are more “political” than judges. That’s only true in the fictional sense that they are sovereign. Judges are political in the sense that their job hinges on it. There’s no question judges are more “political,” but nice try.
Btw, I would support more inquisitorial aspects to our system, such as allowing more questions from the jury. The issue that would then arise is the contours, but that’s similar to the problem that we are having here with evidence rules…
May 6, 2010, 12:38 pmUrso says:
Which leads to bizarre situations where the jury decides the monetary claim, then the judge sends the jury out and decides the injunctive claim. Of course, the judge gives deference to but is not strictly bound by the jury’s findings. A strange system indeed, and with no apparent justification other than “that’s the way they did it in the 16th century, so by gum, that’s the way we’re doing it today!”
May 6, 2010, 12:38 pmMartinned says:
How many American judges do you know who would overrule the jury and acquit the defendant or, as is more likely to be the proper procedure, dismiss the case on the grounds of “no case to answer” (as they call it in England)? If the judge and the jury each had the power to acquit if they were not convinced, your argument would make more sense.
May 6, 2010, 12:40 pmUrso says:
Reversals of convictions happen literally every day based on jury abuse of discretion. It’s not an easy burden to meet, nor is it unheard of.
May 6, 2010, 12:43 pmhattio says:
Martinned,
May 6, 2010, 12:48 pmI have to back what Urso says. This happens every day, though it is rare. Also, the more proper way to handle it is a motion at the close of the State’s case (before the Defense puts on evidence and long before it goes to the jury) that the State did not prove their case. I have even heard of cases where the judge holds this motion under advisement until after the jury verdict and, if the jury comes back guilty, grants the motion. It is fairly rare to win a motion like that on ALL counts, but not unusual at all to win a motion of that sort on specific counts.
Martinned says:
Huh? A jury consist of 12 citizens, each with their own political (and other) opinions, who know that they will never have to answer to anyone about why they decided the way they did. At least a judge has to write a ruling. (Dutch judges, for example, try to explain as best as they can why they found some pieces of evidence more convincing than others.) Why would you assume that the jurors leave their political opions at the door? There’s a reason why they have special procedures to come up with “death-qualified juries”. Even after voir dire, there’s still plenty of bias left in the jury, and no reason to believe the bias will cancel itself out. (See upthread for examples.)
May 6, 2010, 12:48 pmNickS says:
That sucks, I’m sorry. Unfortunately, there are valid reasons for the Confrontation Clause that outnumber the possible downfalls, but there should be a happy medium in cases like this.
Was the inability to prosecute more that he plead to the other crime and was in prison/deported or the witness issues?
May 6, 2010, 1:06 pmShelbyC says:
His claim is:
So no, it does not.
May 6, 2010, 1:20 pmShelbyC says:
Judges can aquit the defendant if the state fails to make a prima facia case. And if the defendant chooses a bench trial, the judge can do fact-finding as well.
May 6, 2010, 1:33 pmMartinned says:
Yes, but “prima facie case” is not a very high burden to meet, or is it? AFAIK, any case that passes the grand jury will go to trial, unless the prosecutor withdraws it or settles it.
May 6, 2010, 2:01 pmDakota Loomis says:
The good faith issue here tangentially involves prosecutorial discretion. Clearly, Redland’s case would be much stronger with the inclusion of the prior bad acts. If his determination to charge was based upon his belief that this evidence would be admitted at trial and his belief was based upon a good faith interpretation of statute and case law, then the determination to file was also in good faith. The discussion of good faith centers around whether there is a viable argument to support the admission of the prior bad acts. Each state will have different standards and individual judges will interpret the case law/statutes differently as well making it impossible to divine whether prior bad acts will be admitted or excluded. So long as there is a plausible argument for their admission, then I think that would qualify as a good faith basis for arguing for admission.
May 6, 2010, 2:30 pmMartinned says:
@Dakota Loomis: But surely prior to that there is the question of whether the prosecutor honestly believes the guy did it? (With the benefit of every and any evidence that may not be admissible in court, etc.)
May 6, 2010, 2:35 pmhattio says:
Martinned,
May 6, 2010, 2:48 pmPrima Facie case is not a very high burden to meet. But, at least in my state that’s not the standard for a judgment of acquittal (a ruling by the judge, after the state has presented their case, that no reasonable jury could find the elements of the crime were met). And, it happens mid-trial. But again, because judges make mistakes, and juries make mistakes, I wouldn’t want to do away with either.
zuch says:
I understand your (and Prof. Volokh’s) point.
But as to federal law (which is what I bolded), one of his specific examples (“child molestation”) is addressed by the very “federal evidence rules” (albeit statutorily enacted ones) he cites, and permits such evidence of “propensity” (or past conduct). For this specific case, at the very least, it would seem he’s in error, and would best have left “child molestation” out of his claim.
Cheers,
May 6, 2010, 3:00 pmMartinned says:
So, as an empirical matter, do judges intervene like that very often? In a model with two decision makers, where each can veto the other’s guilty verdict (like, say, in this draft paper I recently wrote about that very problem), you’d expect the judge to acquit a significant part of the time, given that the judge gets to go first, even though the really weak cases are never brought to begin with. If judges are to catch jury bias like the one described for rape cases upthread, the ratio of judge acquittals vs. jury acquittals would maybe not be even, but at least 1:3 or 1:4. Add to that the fact that the defendant may opt for a bench trial, and that the goal is to minimise the number of false convictions, and you’d still end up with a ratio of 1:10 or thereabouts. Once judges are significantly less inclined than that to intervene, you can no longer say that they are a meaningful check on the jury at that stage.
May 6, 2010, 3:14 pmDakota Loomis says:
I’m not sure the question of whether the prosecutor “honestly believes” the guy or girl committed the crime is really the question that needs to be asked. The better question is can I prove beyond a reasonable doubt that this person committed this crime AND is it in the interest of justice to do so?
Relating this back to admissibility of prior bad acts, admissibility of prior bad acts make it much more likely that I can prove beyond a reasonable doubt that a suspect committed a crime. It’s also much more likely to make me believe that the suspect committed the crime as it would most if not all jury members. Maybe it shouldn’t, but I’m human and I certainly would be swayed by such evidence.
May 6, 2010, 3:35 pmhattio says:
Martinned says;
But the judge isn’t supposed to be a significant check on the jury. Both the judge and the jury are to be a check on the State. And, unless the defendant agrees to a bench trial, their roles are different. So, describing this as a “model with two decision makers where each can veto the others” isn’t correct. Again, throwing bench trials aside for a moment, the question for the judge is to decide the law. This primarily includes questions about admissibility and the technical aspects of how questions are phrased. It also includes a high standard about the sufficiency of the law. The question isn’t whether the judge thinks the person is guilty. The question is whether there is enough evidence for a reasonable person to find guilt beyond a reasonable doubt. So, there SHOULD be cases where the evidence is sufficient to find guilt, but the jury is not convinced. Don’t get me wrong, I think judges are too slow to use their power in this regard, but it should be that the universe of cases where a reasonable jury will acquit is much, much larger than cases where a judge acting property will grant a motion for judgment of acquittal.
Let me put it to you this way. If the State is prosecuting armed robbery, and puts up only slightly convincing evidence that the defendant was the armed robber, grainy photo, shaky testimony where the witnesses wasn’t sure, etc., the judge probably shouldn’t grant a motion for a judgment of acquittal. But, if the robber wasn’t armed and (at least in most states) didn’t do anything to make a person think he was (no threats, no hand in pocket, etc.) the judge absolutely should acquit.
May 6, 2010, 4:03 pmhattio says:
Dakota Loomis says;
Actually, that IS the question. The prosecutor has a duty to seek justice. If that prosecutor is convinced the defendant is innocent, but also convinced they can get a guilty verdict, their DUTY is to dismiss the case. And, anyone who has worked in the criminal justice system (or watched the news critically for any length of time) knows that you can get convictions on innocent people.
May 6, 2010, 4:05 pmShelbyC says:
But he wasn’t applying the specific example to federal law, he was using the specific example to illustrate a general principle of both state and federal (correctly), and he acknoweleged that there were exceptions. Appearantly federal law is one exception. The Iowa law at issue here is another.
May 6, 2010, 4:37 pmRoger says:
It is funny to see a prosecutor complain that he lost a case because he prepped a 7-year-old girl to testify in a particular way, but then she was unconvincing in court.
May 6, 2010, 5:05 pmSuperSkeptic says:
I think we have different definitions of “political” here. Precisely because the jury “will never have to answer to anyone” is why I consider them non-political – as opposed to the judges, who are often elected popularly or appointed by the parties – despite the fact that the juries bring ideologies to the courtroom (who doesn’t?), and despite the fact that they must deliberate to reach a verdict.
I think there’s a lot of things to be gained from a comparative analysis of the continental system, but its major defect is enormous state power (and politics, in the sense I’m trying to use the word “political”), against which the jury is the great bulwark.
I’m afraid the sense you use the word “political” in this context, to argue that juries are more political than judges, drains the word of meaning, i.e., all things are political.
One major defect we see from this side is the power of the state in your system. I don’t think I’ve explained myself very well, but there you have it.
May 6, 2010, 6:18 pmDave N. says:
No, you misunderstand what happened in my case.
I didn’t “prep” the girl to testify in any way at all, other than to tell the truth. I speak with her to see what she would say and I found what she said to be pretty convincing.
But more important than that, when she saw the defendant she started screaming hysterically. Frankly, most people in the courtroom thought it pretty damn compelling evidence that this little girl was deathly afraid of the defendant.
It wasn’t at all “unconvincing.” Unfortunately, it also wasn’t testimony.
May 6, 2010, 8:14 pmBanzel says:
In the late 90s and early 2000s the Iowa court suffered a string of three embarrassingly unanimous SCOTUS smackdowns of Iowa’s “jurisprudence”.
Ever since then the Iowa Court has become obsessed with breathing life into a long dormant, but non-reviewable, state constitution. They quite regularly throw out dicta encouraging state constitutional arguments.
Then they complain about how crowded their docket is.
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