March 2010 Archives

March 18, 2010

Memorial Videos in Death Penalty Cases

Memorial videos are a new form of victim impact "testimony" in death penalty cases.  A prosecutor may present a memorial video in the penalty phase of a death penalty trial, in an effort to convince a jury that a convicted murderer should be sentenced to death rather than to life imprisonment.

A typical memorial video portrays events in a murder victim's life.  It may begin with a photo of the victim as a baby or young child, and after a photo montage lasting about 15-20 minutes conclude with the victim's casket being lowered into the ground.

The ostensible purpose of a memorial video is to impress on jurors that underneath all of the legal formalities is a living being whose life the defendant took.  But if you think back to similar videos you may have cried through at weddings, anniversaries and other happy events, you'll realize that memorial videos can easily appeal to jurors' passions rather than their reason.  For this reason, judges have to carefully balance the probative value of a memorial video against the risk of unfair prejudice to the defendant.  For example, a judge might exclude a video of inordinate length, or one that unduly emphasizes the victim's demise and funeral.   

March 12, 2010

Love and Miranda Warnings Can Be Better the Second Time Around

A long-standing issue concerning the Miranda warnings is the "shelf life" of a suspect's refusal to talk to the police.  Of course, if a suspect chooses not to talk, the cops can't wait a few minutes and give the suspect a second set of Miranda warnings, in the hope that this time the suspect will change his mind and start blabbing.  But does a suspect's refusal to talk forever foreclose further questioning attempts? This was the issue that the US Supreme Court addressed in Maryland v. Shatzer (2010).   

In this case, a cop tried to interview Shatzer about possible sexual absue of his son.  After receiving Miranda warnings, Shatzer decided not to talk to the cop.  The interview was terminated and the case file was closed.  About 3 years later, based on new information, the cops re-opened the case file.  They gave Shatzer another Miranda warning, and this time he agreed to waive his rights to silence and a lawyer and talked to the cops.  Shatzer's incriminating statements were inroduced into evidence against him at trial and he was convicted of sexual abuse of his son.

The Court unanimously upheld the conviction.  The case establishes a rare bright-line rule:  Miranda rights last for 14 days.  If there's a "break in custody" of 14 days or more, the cops can issue a new Miranda warning to a suspect who previously refused to talk to them.  If the suspect waives his rights to silence and a lawyer the second time around, any statements the suspect makes are admissible in evidence at trial.  

So like Love, for cops Miranda rights can be wonderful the second time around. 


March 9, 2010

Miranda Warnings for Grammarians

As you probably know, unless police officers issue "Miranda Warnings" to suspects before interrogating them, whatever suspects say is generally inadmissible in evidence against them at trial.  One of the warnings is that "you have the right to have an attorney present when we question you."

In the case of Florida v. Powell (2010), police officers told Powell that "you have the right to talk to a lawyer before answering any of our questions" and that "you can use this right anytime you want to during the interview."  7 of the 9 U.S. Supreme Court justices upheld Powell's conviction, ruling that the warning adequately conveyed the message that Powell was entitled to the presence of a lawyer during questioning.  Two justices (Stevens and Breyer) disagreed, arguing that the officers' words didn't clearly tell Powell that he had a right to have an attorney present during (and not just before) questioning.  

The dissenters seem overly picky.  But the fact that the issue made it all the way to the Supreme Court is a reminder that language can be ambiguous.  In a country filled with native speakers ffrom non-English speaking countries, courts should make sure that police officers explain rights clearly.

March 2, 2010

Criminal Procedure 101

In 1963, the US Supreme Court ruled in the case of Brady v. Maryland that prosecutors have an obligation to turn over potentially exculpatory information to people charged with crimes.  When prosecutors fail to do so, either intentionally or through carelessness, the frequent result is the reversal of a conviction that may have been obtained at great financial and emotional cost.

The latest example may involve Michael Anderson.  In a notorious case, Anderson was convicted of killing five people in New Orleans in 2006 and sentenced to die. Torrie Williams was the key prosecution eyewitness.

It turns out that the New Orleans DA'a office had in its files a copy of a videotaped interview that prosecutors conducted with Ms. Williams prior to Anderson's trial.  The version of events that Ms. Williams provided in the interview was markedly different from the version that she testified to at trial.  Clearly, had the DA's office complied with its legal and ethical obligations and turned the videotape over to Anderson's lawyers, they could have used it to cast doubt on Ms. Williams' trial testimony. 

Anderson is trying to set aside his conviction based on the prosecutor's failure to disclose the existence of the videotape, and court hearings are underway.  Of course, the New Orleans DA's office is trying to protect its ass by claiming that the tape wouldn't have been all that helpful.  Do you think any of these prosecutors would make this same argument if their lieves were at stake?

If Anderson's conviction is set aside, he'll have the shoddy New Orleans prosecutors to thank.  Unfortunately, prosecutors are immune from suit if they fail to properly carry out their public duties. If they at least had to apologize to Louisiana taxpayers for wasting their money and to the families of the five victims for forcing them to relive the tragic events, maybe more prosecutors would follow rather than try to evade the rules of trial.