This headline jumped out at me the other day. See Eric Tucker, Web Networking Photos Come Back to Bite Defendants. Basically, these pictures are being used as evidence in various trials (likely personal injury cases) and, at least in my take of the article, are invoking from the jury (or better, the judge at sentencing) the opposite of what the defense is trying to portray: antipathy.
At this point, I doubt I'll see anything come up on appeal regarding this issue, and even if I did, it would more likely come in the form of a discretionary call by the judge, in which case it's an uphill sell. If anything, I would question the relevance of some of these pictures, but if it is relevant, then I'm not sure how one could (with a straight face) argue that it's more prejudicial than probative. (Think in Liar Liar: "I object! Why? Because it's devastating to my case!") The pictures don't seem to be used at trial though, and they need not be, they are being used as an aggravating factor at sentencing. It's pretty clever.
This presumably took place in a Rhode Island state trial. For example, the prosecutor in this case used the photos to establish a timeline of events: "Two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner." To make the case for an appropriate sentence, the prosecutor then "used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital." To the prosecutor's credit, the "judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison." Of course, Lipton's defense attorney notes: "the photos didn't accurately reflect his client's character or level of remorse, and made it more likely he'd get prison over probation." Nevertheless...
The bottom line is that in the age of the internet, everyone should be cognizant of what is going up on you. I know they say you should run a google search once a year on your name, along with your credit reports and what not, but you can preempt this sort of trouble by either making your facebook/myspace profile private; untagging or contacting your friends who put up unflattering photos of yourself, or better, don't allow yourself to be photographed in a compromising situation. As Lipton's attorney wisely observes, you never know when they could come back to bite you: "If it shows up under your name you own it, . . . you better understand that people look for that stuff."
Tuesday, July 22, 2008
Web networking photos and the effect on litigation strategy
Thursday, May 15, 2008
Myspace suicides and same-sex marriages - and you thought the subway series was something to chatter about
Not that I have been following this case beyond the headlines, but I saw that the mother in this MySpace case where the mother posed as a 16-year old boy to pretend to be in love with a girl, which led eventually to the girl comitting suicide. See Mom indicted in deadly MySpace hoax. I can't figure out if the case is being brought in California or Missouri, but either way, I'm sure the news will keep this story afloat. We'll see how the appeals courts handle this one once the sensationalism of the facts gets fritted away.
Speaking of sensationalist cases, the Supreme Court of California gave Gov. Arnold his wish of letting the courts deal with the gay marriage issue and struck down the legislative ban against gay marriage in sunny CA as unconstitutional. See California Ban on Same-Sex Marriage Struck Down. While I will refrain from weighing in, mainly because I have not read the case (In re Marriage Cases can be found here), I think that it will open the door to whether other states can or cannot recognize the marriages which would be legal in one state but not recognized in others. Where this issue gets raised, the power (or perhaps limits) of the "full faith and credit" clause in this regard will be tested. Cf., e.g., Court Rules Against Same-Sex Divorce (RI Supreme Court denying a RI divorce to same-sex couples validly married in Mass.) with In First, N.Y. Judge Allows Gay Divorce (NY trial court permits divorce in NY of a lesbian couple married in Canada). Interesting times on both the west and east coast.
Read more!
Sunday, January 20, 2008
Letters from beyond the grave and Crawford issues that are created
As much of the legal world and evidence students are aware, the U.S. Supreme Court in 2004 redefined the understanding of the confrontation clause of the Constitution. Since that decision, there have been probably thousands of cases dealing with the aftermath and even a blog that appears dedicated to it. And, everytime you think you've got it figured out, another twist comes up. Currently, the U.S. Supreme Court is in the midst of tackling the "forfeiture by wrongdoing" aspect of the doctrine, and I'm sure that case will undoubtedly provide further explanation of some nuance. Regardless of how it plays out, Crawford keeps lawyers busy trying to figure it out, and that's fine by me.
Anyway, I saw and interesting headline that jumped out and it will sure enough create some issues on appeal. See Letter from Dead Sister Still Haunts Brothers. The article is pretty self-explanatory, but basically, wife dies and husband is implicated some time later. Husband argues suicide, the prosecution argues murder. What gives this case a Crawford-twist, however, is a sealed letter that wife gave to a neighbor twelve days before she turned up dead. According to the article, the letter "says that her relationship with her husband is deteriorating and that 'if anything happens to me, he would be my first suspect.'" And with that, we have a suspect.
I'm not going to speculate on this elaborate set-up that wife could have done here and obviously the defense will play up her alleged depression as much as they can in order to create reasonable doubt. The question I find interesting is whether this letter, which I can only imagine was let in as an exception to hearsay, implicates Crawford. Given the contents, how is it not "testimonial?" I leave the answer for the courts to decide and the lawyers to argue.
My question, and the facts would obviously have to play out in an opinion to read sometime in the future, deals with the content. If it wasn't a letter, but instead she told it to her friends, "Hey, if were to hypothetically die soon, you should know that it probably is my husband." I see this bordering on a testimonial statement despite the context of who she is telling it to. Given the short nature of the article and the few facts it describes, however, I will simply leave this as an open question and hope that a similar issue appears before me sometime in the next few months.
Sunday, December 30, 2007
Abortion, Equal Protection and When and If Raich and the Commerce Clause take abortion out of the scope of Congress's enumerated powers
Although I try to stay out of weighing in on such matters, there was a passage about Justice Ginsburg in The Nine that has got me thinking. Basically, Toobin writes that Ginsburg was selected in part because of how she approached the entire Roe debate from an equal protection standpoint. So, here's one way the abortion issue may play out.
Among other things, the U.S. Supreme Court decision in Gonzales v. Raich, 545 U.S. 1 (2005) suggests that the Commerce Clause power granted to the Congress is "breathtakingly expansive." While I will defer the intricacies of this case to the academics, Congress basically has the power to regulate anything dealing with "the production, distribution, and consumption of commodities." What Raich resolved (that Lopez and Morrison arguably did not) was the deference entitled to Congress in these matters. Under either the majority or Scalia's concurrence's view (under the Necessary & Proper Clause), the deference when the Commerce Clause is properly invoked by Congress is great.
The question, as suggested by Scalia in his concurrence in Gonzales v. Carhart, is whether abortion has anything to do with commodities such that it will fall within the scope of Congress's commerce power. Assuming when this gets resolved, the answer is no, the question becomes, I submit, whether, if given back to the states to decide, whether they can either. I think when this question arises, it's going to come down to interpreting how much the states' gave up in passing the 14th amendment.
Put another way, if Roe (and to some degree Casey) is overruled or further eroded or restricted, what happens next? Well, one possible outcome would be that Congress would try and ban abortions, probably under the commerce clause. Regardless of what power they try and pass it under, and assuming it passes, it's going to be challenged immediately. So, on the assumption that Raich will dictate whether or not abortions affect commerce (which seems unlikely), would that mean simply that the choice regarding this issue would then fall to the states? For the purposes of the rest of this argument, let's say Congress ultimately has no power to regulate this area and the states do. Now state A bans and adjacent state B does not. What constitutional issues remain and how will the media attempt to spin this issue?
I see two issues remaining that make it questionable as to whether a state can ban abortion, and regardless of how the courts settle the issue, these issues will extend beyond Roberts' tenure as CJ. Arguably, the practical effect of State A banning would require someone seeking an abortion to engage in interstate commerce such that they have to travel to State B. I'll set aside the impracticalities issues if State A is somewhere large like Montana and a poor citizen in the geographic center can't afford to travel out of state. I see this as a legislative debate issue that would be considered in passing the law in either State A or B, so I'll assume away the rational basis argument on this one. I will save my comments about State A citizens for when I am living in State A.
The stronger issue, as pointed out by Toobin in the book, is Justice Ginsburg's equal protection argument. Because I haven't really studied this area in any great detail beyond what I needed to know for the bar, I can't state whether or not this is a winning argument. Nor do I know whether this is already before the Court and my assumptions are incorrect. It does not matter, however. My point to this exposition isn't to express my position on whether it's Congress's or the State's power, if either can do anything in this particular area beyond what is already done, or where I think the issues shake out. It's only to spark some thought into the debate, based on where I think the state of the law is shifting.
Because I'm probably overlooking something and am otherwise unable to make an informed decision, I'll be happy to debate the issue a little more and research more about it if someone wants to provide cites to relevant law review articles expressing the sides of this equal protection debate. The bottom line is that I think this entire debated area is going to shift into equal protection land and perhaps create a better way to reexamine the Civil Rights Cases. Whether it actually plays out this way or not remains to be seen. In either case, it's an interesting time for constitutional scholars and the law clerks working on related cases. Maybe one of them will chime in on it (although doubtful).
