There has been a lot of litigation in the United States about the admissibility

of 911 recordings since the United States Supreme Court decided Crawford v

Washington. So, Confrontation Clause aficionados might be interested in the following

Canadian analysis:

In R. v. Sylvain, 2014 ABCA 153, May 1, 2014, the accused was convicted of the

offence of sexual assault. At his trial, the Crown introduced a recording of a

911 emergency call made by the complainant, who also testified.  In the 911

call, the complainant said:

Uh, police. Uh, I’m about to be raped by some guy and I, I don’t know how to

fuckin’ deal with it and I can’t get up.

On appeal, the accused argued that the recording of the 911 call constituted

inadmissible hearsay and was improperly used by the trial judge.  The Alberta

Court of Appeal disagreed.

ADMISSIBILITY

The Court of Appeal pointed out, at paragraph 30, that as “a general principle,

res gestae statements are admissible as an exception to the hearsay rule…Res

gestae as a category has been criticized as being an unhelpful generality that

actually encompasses several discrete exceptions to the hearsay rule…That said,

the particular exception involved here relates to ‘excited utterances.’” The

Court of Appeal noted that the “rationale for admitting a statement in this

category for the truth of its contents is that the stress or pressure under

which the statement was made can be said to safely discount the possibility of

concoction…To avoid the prospect of fabrication, the statement should be

reasonably contemporaneous with the alleged occurrence. However, exact

contemporaneity with the event is not required.”

The Court of Appeal indicated that a “review of the case law confirms that 911

calls have often been admitted under the res gestae exception to hearsay…In

today’s information technology world, a 911 call in the middle of a crime is

akin to a cry for help heard by someone nearby. In these circumstances, the

someone nearby happens to be the 911 operator.”

The Court of Appeal concluded that the 911 call was properly admitted as an

“excited utterance” as part of the res gestae.  The Court of Appeal then

considered the “use” made of the 911 call by the trial judge.

THE MANNER IN WHICH AN EXCITED UTTERANCE IS TO BE USED BY TRIAL JUDGES

The Alberta Court of Appeal held, at paragraph 40, that a 911 call “qualifying

as res gestae may be relevant to the time and place of the events, or the

emotional state of those involved: Ratten, supra. To this we would add that a

911 call may also be relevant to the physical state of the person making the

call. In this case, the only issue was consent, and the emotional state of the

complainant, as revealed in the 911 call, was evidence on that point: Dessouza,

supra at para 35. The 911 call was also evidence of the sequence of events and

the physical state of the complainant at the time of the call.”

The Court of Appeal concluded that in this case, the 911 call “had probative

value beyond mere repetition” (at paragraph 43):

In this case, at a minimum, the 911 call had probative value beyond mere

repetition. It was evidence of the sequence and timing of events and both the

emotional state, and physical state, of the complainant at the time of the call.

The trial judge did not indicate in her reasons that she was using the 911 call

as “corroborative” of the complainant’s evidence. The record reveals that the

trial judge was concerned not so much with the complainant’s credibility as with

her reliability and the reasons for the concern had to do with the amount of

alcohol the complainant had consumed. It is important to understand how the

trial judge used the evidence about the 911 call. As the trial judge said about

that call: “That [the complainant] is not slurring or … mumbling is consistent

with the reliability of her testimony of the circumstances leading to the call.”

It was in this limited sense therefore that the trial judge treated the 911 call

as adding weight to the complainant’s in-court testimony. This she was entitled

to do given what the 911 call revealed about the complainant’s emotional and

physical state at the time of the 911 call. Therefore, the trial judge properly

placed it on the scale in assessing the reliability of the complainant’s

in-court testimony as to the circumstances leading to the call.

Responding to an earlier op-ed criticizing judicial elections (see Gavel Grab), Los Angeles (California) County Superior Court Judge Randolph M. Hammock has defended them in the Los Angeles Times, emphasizing the transparency they afford.

See more here.

Legal analyst Linda Greenhouse is adding her voice to those recently lamenting the extreme polarization of the U.S. Supreme Court (see Gavel Grab).

In a New York Times op-ed, Greenhouse suggests the court’s polarization is more than a reflection of polarized politics in the United States:

“[I]t occurs to me to wonder if the flow might also be running in the other direction. I wonder whether the Supreme Court itself has become an engine of polarization, keeping old culture-war battles alive and forcing to the surface old conflicts that people were managing to live with. Suppose, in other words, that instead of blaming our politics for giving us the court we have, we should place on the court at least some of the blame for our politics.”

Read more here.

During the economic downturn, lots of cash strapped states found myriad ways to raise additional revenue out of the criminal justice system.  Not infrequently, courts were in concert or supportive of these strategies on the theory that it was essential to keep the courts and the justice system open.  But, as this series shows, we are paying (actually poor people are exclusively paying) a very steep price:

A report from National Public Radio, produced with the help of the Brennan Center and  National Center for State Courts, examines how criminal justice debt, the result of cash-strapped states and localities charging offenders fees for everything from public defenders to prison costs, is a growing problem. On Morning Edition, Lauren-Brooke Eisen explained that these policies are often counterintuitive. “These fines and fees create new pathways back to jail and prison. You’re just sending these people back not even for committing a crime, but just for missing a payment.” Alicia Bannon, who helped NPR conduct a nationwide survey on state court fees, joined All Things Considered. In an editorial, the The New York Times drew attention to the series and the Brennan Center’s research, and called the system “unjust and counterproductive.” Increasingly these fines extend even to juveniles, Eisen told Marketplace: “In recent years, about 20 state legislatures passed laws holding parents responsible for their children’s crimes.”

The Globe & Mail reports:

Doctors fighting to prescribe heroin to a select group of severe addicts have cleared a significant hurdle with an injunction that will effectively green-light the practice while a larger constitutional challenge is before the courts.

B.C. Supreme Court Chief Justice Christopher Hinkson released his decision on Thursday morning, finding risks associated with severe heroin addiction “will be reduced if [the addicts] receive injectable diacetylmorphine treatment from Providence physicians. These potential harms are clearly irreparable in nature.”

Whether you agree with the decision of Judge Hinkson or not likely misses the point:  the judge acted with courage.

The full story can be found here.

For those who are interested in the over use of prisons in the United States, you might want to read this notable new paper by E. Lea Johnston now available via SSRN.

Here is the abstract:

The United States is in the midst of an incarceration crisis. Over-incarceration is depleting state budgets and decimating communities. It has also led to the overfilling of prisons, which has degraded conditions of confinement, increased violence, and reduced access to needed medical and mental health care. Judicial sentence modification offers a means to address both the phenomenon of over-incarceration and harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. Proportionality is also an express purpose of the proposed Model Penal Code provisions on judicial sentence modification.

This paper explores whether the tools available to judges at sentence modification hearings are adequate to respond to the unjust punishment experienced by prisoners. In examining this question, the article focuses on one population particularly likely to experience disproportionate or inhumane punishment: inmates with serious mental disorders. A deep literature suggests that individuals with serious mental illnesses are especially likely to be victimized by staff and inmates, to be housed in isolation, and to experience an exacerbation of mental illness while incarcerated. This article’s analysis reveals a gap in remedial coverage for some members of this population. In particular, existing remedies are inadequate to respond to the plight of those prisoners who must remain incarcerated, but for whom incarceration in current conditions constitutes a disproportionate or inhumane punishment.

To remedy this shortcoming, the article proposes that states authorize judges, upon a finding of past and likely future unjust punishment, to modify a mentally disordered prisoner’s conditions of confinement. Only with such expanded authority will the process of sentence modification allow judges to reserve prison for those who deserve it and ensure that continued confinement will be a just and appropriate sanction.

Carissa Byrne Hessick and F. Andrew Hessick (University of Utah – S.J. Quinney College of Law and University of Utah – S.J. Quinney College of Law) have posted Procedural Rights at Sentencing (Notre Dame Law Review, Vol. 90, 2014 Forthcoming) on SSRN.

Here is the abstract:

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems ― systems that limit sentencing factors and specify particular punishments based on particular facts ― defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentence based on ex post facto laws. By contrast, for discretionary systems ― systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion ― defendants do not enjoy these protections. This Article challenges this discrepancy. It argues that, given the rationales underlying each of these rights, there is equal reason to apply these rights in discretionary sentencing systems as in mandatory ones. As it explains, procedural rights regulate the means by which facts are found and the manner in which courts use those facts, and consequently are critical to discretionary systems. Just as in mandatory sentencing systems, judges in discretionary systems must make factual findings to determine the appropriate sentence to impose. The Article argues that the various justifications for providing fewer procedures in discretionary schemes are based on misconceptions about the nature of discretion at sentencing and inaccurate historical analysis.

Debra L. Parkes (University of Manitoba – Faculty of Law) has posted The ‘Great Writ’ Reinvigorated? Habeas Corpus in Contemporary Canada (Manitoba Law Journal, Vol. 36, No. 1, 2012) on SSRN.

Here is the abstract:

This short prelude to Professor James Oldham’s 2nd Annual DeLloyd J Guth Visiting Lecture in Legal History, “Habeas Corpus, Legal History and Guantanamo Bay,” discusses some of ways that the writ of habeas corpus plays an important role in promoting access to justice and protecting basic liberty interests in contemporary Canadian law. The focus will be on developments in the law since the Canadian Charter of Rights and Freedoms was enacted, touching on two important features of a modern doctrine of habeas corpus, namely flexibility and gap-filling, both of which Professor Oldham also develops in his essay.

The McClatchy Newspapers recently published this article by Timothy M. Phelps on overhauling the death penalty in the U.S.:

The death penalty should be overhauled “from the moment of arrest to the moment of death,” and the lethal drug cocktail used in Oklahoma’s botched execution last week should be abolished in favor of a single drug, according to a bipartisan panel of criminal justice experts.

The committee, which included death penalty supporters who have been responsible for carrying it out, recommended using a single anesthetic or barbiturate approved by the Food and Drug Administration to bring on death, as well as 38 other changes.

“Without substantial revisions – not only to lethal injection, but across the board – the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional,” said committee member Mark Earley, who was a Republican attorney general of Virginia when the state carried out 36 executions.

The study by the panel at the Constitution Project, a Washington legal research group, is billed as one of the most comprehensive reviews of the ultimate punishment ever undertaken in the U.S.

Thirty-two states have the death penalty on the books, but its use has declined rapidly. Five states have abolished it in the last seven years.

Particularly timely is the report’s recommendation that the most commonly used drug protocol for lethal injections – a barbiturate for anesthesia, followed by a muscle relaxant to stop breathing and an electrolyte to stop the heart – be replaced by large doses of a single anesthetic or barbiturate. The report said that difficulties in obtaining the proper drugs, complicated procedures for mixing them and the lack of trained medical staff willing to administer them have led to unnecessary suffering on the part of the condemned.

In Oklahoma last week, Clayton Lockett writhed, gasped and grimaced for more than 30 minutes before his execution was called off, only to die of what appeared to be a heart attack about 10 minutes later. The Constitution Project said the state used an untested three-drug cocktail obtained from undisclosed sources.

According to the group, eight states have used the single-drug method. That includes Texas, which performs the most executions of any state. Six others have announced plans to use a single drug.

The committee that undertook the two-year study was led by Mark White, former governor of Texas; Gerald Kogan, former chief justice of the Florida Supreme Court; and attorney Beth Wilkinson, who helped prosecute the Oklahoma City bombing case. The panel included former FBI Director William S. Sessions and several prosecutors and judges, as well as death penalty opponents.

“We need to make sure if we’re going to have a death penalty that it’s carried out properly and that due process is not short-circuited in the name of expediency,” Earley said in an interview.

White said the report should be useful to Attorney General Eric H. Holder Jr., whom President Barack Obama asked to examine how the death penalty is carried out in light of what happened in Oklahoma.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-death penalty group in Sacramento, Calif., disputed the Constitution Project’s claim that its report was bipartisan.

“The Constitution Project always takes the side of the defendants,” Scheidegger said. “Their claim to be neutral is dishonest.”

But he said he agreed with the one-drug approach to capital punishment.

The report says state and federal courts too often refuse to hear claims of new evidence presented by prisoners on death row and use other procedural means to deny prisoners their rights.

It calls on states to adopt new procedures to evaluate whether a defendant is intellectually disabled. It urges new federal standards for forensic labs and examiners, and says they should operate independently from law enforcement, which would be a major change.

The report also says states should no longer execute people for “felony murder,” in which someone who participates in a crime resulting in death can be convicted of murder even if he or she did not do the killing.

White said he supported the death penalty, but worried that it could be applied incorrectly.

“It’s gotten to the point where we don’t have proper procedures to make sure we’re not executing innocent people,” said White, a Democrat who oversaw 19 executions as governor from 1983 to 1987.”

From The Evidence Prof Blog:

Similar to its federal counterpart, Alabama Rule of Evidence 615 provides that

At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order of its own motion. This rule does not authorize exclusion of

(1) a party who is a natural person,

(2) an officer or employee of a party which is not a natural person designated as its representative by its attorney,

(3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause, or

(4) a victim of a criminal offense or the representative of a victim who is unable to attend, when the representative has been selected by the victim, the victim’s guardian, or the victim’s family.

Rule 615 makes no mention of timing. So, what happens if a party makes a sequestration motion after some, but not all, witnesses have testified? That was the question addressed by the Court of Criminal Appeals of Alabama inWiggins v. State, 2014 WL 1744091 (Ala.Crim.App. 2014).

Continue reading here.