Thursday, November 3, 2011
In Massachusetts, the legislature passed a statute which basically, authorized the creation of an insurance fraud prosecution unit in the Attorney General's office. It would be funded by a special assessment on two insurance industry trade groups and the insurance industry will also create a fraud bureau to lend assistance to the state prosecutors. The constitutionality of the statute was challenged in Commonwealth v. Ellis. Unfortunately, the court denied the defendant's challenge in large part due to the fact, that the statute in question left the ultimate decision to prosecute in the hands of the public prosecutors. Additionally, the fact that this was a legislative creation subject to public input and review saved the statue and this form of private industry financing.
In California, the software developer, Borland International, suspected that a former employee had been conveying internal information to a competitor. The Santa Cruz County DA's office obtained a search warrant for the competitor's computers. Borland hired one consultant and the DA's office hired another. Borland paid for both consultants. Additionally, Borland paid for a private service to transcribe audio taped interviews of Borland employees. The trial court's decided to disqualify the entire DA's office from prosecuting the case due to Borland's various funding of the prosecution efforts. On appeal, the question framed was "whether a crime victim's payment of substantial investigative expenses already incurred by the public prosecutor creates a disabling conflict of interest for the prosecutor..." Under a unique provision of the California code, the California Supreme Court ruled yes. See People v. Eubanks, 14 Cal.4th 580 (1997).
Bottom line: With prosecutor positions being limited or cut, this issue will continue to arise and rear its ugly head. Know the law and arguments that need to made. Adios until after Thanksgiving
Monday, September 26, 2011
Veteran Prosecutors, Police, and Defense Attorneys to Join
Wisconsin Innocence Project’s New Advisory Board
New Board Created to Help Steer the Work of the Wisconsin Innocence Project
In Advocating for Wrongly Convicted Individuals and Recommending Reforms to
Improve the Reliability of the Criminal Justice System
CONTACT: Keith Findley, 608-262-4763, 608-335-4544, firstname.lastname@example.org
(Madison, July 12, 2011) – The Wisconsin Innocence Project, a legal education and advocacy project at the University of Wisconsin Law School’s Frank J. Remington Center, announced today the formation of a new Advisory Board. The new Board will include such prominent and respected experts as retired Milwaukee County District Attorney E. Michael McCann and retired Assistant District Attorney Jon Reddin, Retired Dane County prosecutors Judy Schwaemle and John Norsetter, Manitowoc County Assistant District Attorney Michael Griesbach, Port Washington Police Chief Richard Thomas, Madison Police Department Captain Vic Wahl, Marquette Law Professor Daniel Blinka, State Public Defender Kelli Thompson, and attorneys Stephen Hurley, Dean Strang, Stephen Glynn, Stephen Meyer, Gordon “Chip” Davenport, III, James Friedman, and Rebecca Mason, and former client and exoneree (and now attorney) Christopher Ochoa. Additional members may yet join the Board as well.
The Board is being created to advise the Wisconsin Innocence Project on case selection criteria, evaluating difficult cases, strengthening advocacy in individual meritorious cases, and evaluating and promoting policy initiatives to improve the criminal justice system.
University of Wisconsin Clinical Law Professor and Wisconsin Innocence Project Co-Director Keith Findley explained, “The work we do advocating for the wrongly convicted can have profound impact on the lives of the wrongly convicted, victims of crime, and the functioning of the criminal justice system. To help us chart an effective and appropriate course, we thought it best to bring in experienced and respected actors from across the criminal justice system to ensure full and balanced consideration of the issues we confront.”
Saturday, July 30, 2011
The general issue of the private financing of public prosecutions as against public policy was set forth as early as 1928 in the State of Wisconsin. In State v. Peterson, 195 Wis. 351, 218 N.W. 367, the Supreme Court stated: "In the prosecution of criminal actions, the district attorney prosecutes for public wrongs, not private wrongs, and such prosecution should be by a public officer, not a private party. This court has from earlier days given full effect to our statutory scheme, and has declared it the public policy of the state." Id. at 369.
Unfortunately in terms of the scope of this decision, the case involved the egregious facts of an attorney being hired by the complaining witness and actively assisting the prosecution during trial. Second, the court's ruling was dependent on the statutes which as we know can be changed without much notice or public input. Is there a constitutional barrier to this type of activity? How far can a private party go in assisting the prosecution? Initial investigation by the internal security of the company (think employee theft by store clerk)? Hiring of experts to assist the prosecution (think insurance companies in arson cases)? Payment of experts to testify at trial (same)? As one can see the degree of influence and financial assistance by the private party is one of degree and when and where do things cross the line?
In constitutional terms, due process mandates that the public prosecutor be impartial. In the landmark case of Berger v. United States, 295 U.S. 78, 88 (1935), the Court observe that , "the United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all." This impartiality requirement has been part of the touchstone along with public policy concerns in cases decided across the country raising this issue. My next entry will discuss two of the more prominent cases. Until then, enjoy your summer.
Sunday, July 24, 2011
Friday, June 24, 2011
Wednesday, April 27, 2011
Say for example, an expert opines that the defendant started the fire. Or from a different case, the defendant was speeding causing the vehicular homicide. A detailed examination of the bases for the opinions reveals that a portion of each opinion is driven by a credibility determination made by the expert as some other witness. For example, the state fire marshal concludes that the defendant has lied about being present at the scene when the fire commenced, or the accident reconstruction expert has been told by a witness that they observed the defendant speeding a half mile up the road from the accident. In essence, a portion of the expert's ultimate opinion is a result of a credibility determination, which is clearly an inadmissible conclusion per State v. Haseltine, 120 Wis.2d 98 (Ct. App. 1984). However, 907.03 explicitly states:
But wait a minute, just how poisoned are the ultimate conclusions(fire set by defendant, accidnet caused by defendant speeding) by this inadmissible evidence? Does the new 907.02 (or did the old?--I would argue it did) act as roadblock to allowing introduction of this expert's opinion because the well has been poisoned?
The Federal Advisory Committee had a inkling of this problem when the amendments to 702 were implemented in 2000. They wrote as follows:
"There has been some confusion over the relationship between Rules 702 and 703. The amendment makes clear that the sufficiency of the basis of an expert's testimony is to be decided under Rule 702. Rule 702 sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the expert's basis cannot be divorced from the ultimate reliability of the expert's opinion. In contrast, the ''reasonable reliance'' requirement of Rule 703 is a relatively narrow inquiry. When an expert relies on inadmissible information, Rule 703 requires the trial court to determine whether that information is of a type reasonably relied on by other experts in the field. If so, the expert can rely on the information in reaching an opinion. However, the question whether the expert is relying on a sufficient basis of information - whether admissible information or not - is governed by the requirements of Rule 702."
In other words, just because there is compliance with 907.03, doesn't mean automatic admissibility of the ultimate conclusion by the expert as to causation. As always it is time for advocacy.
Monday, March 21, 2011
Thursday, February 17, 2011
It is incumbent on defense counsel to object to this type of testimony. The grounds for the objection should be apparent. First, it is hearsay and a violation of the right to confrontation per Crawford. Second, it is not relevant and even if it is, the undue prejudice substantially outweighs its probative value (remember that probative value should be looked at on an incremental basis). Third, it is inadmissible character evidence.
Wisconsin practitioners should have two cases at their fingertips. First, there is an unpublished decision that agreed with the above analysis with little or no detailed discussion of the issues. In State v. ODonnell, 2000 WI App 1, the state conceded it was error but harmless. The appellate court disagreed and ordered a new trial.
A much more thorough discussion takes place in the 7th circuit case of United States v. Silva, 380 F.3d. 1018 (2004). An excerpt from the case relates a portion of the argument:
The prosecutor contends that most of the statements were admissible to show “the actions taken by [each] witness”. Allowing agents to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination, would go far toward abrogating the defendant's rights under the sixth amendment and the hearsay rule. This court has warned against the potential for abuse when police testify to the out-of-court statements of a confidential informant. See United States v. Lovelace, 123 F.3d 650 (7th Cir.1997). See also McCormick on Evidence § 249 (5th ed. 1999).
While Silva acknowledges that sometimes this information could be relevant, the 403 balancing test will frequently tip in the defendants favor. Go forth and fight.
Saturday, January 22, 2011
Monday, January 10, 2011
Jeff after you finish this issue, how about joining me in taking on the lack of a reasonable doubt instruction (and a prohibition on arguing its meaning) in the Seventh Circuit?