Tuesday, January 1, 2013
Gregory Chandler-Relevance Requirement of Character Evidence
In criminal trials, the defendant has the option of introducing his character traits, or those of the alleged victim, it is obvious that the character traits must be relevant to the case, or else they will be excluded under Federal Rules of Evidence 402 and 403.
For example, in United States v. Martinez, 988 F. 2d 685 (7th Cir. 1993), the defendants were charged with murder arising from a prison incident. Evidence of the violent character of the victims was held properly excluded as not relevant where there was no viable self-defense claim.
The evidence showed the victims were rendered defenseless and were repeatedly stabbed while lying motionless on the ground.
The defendants argued that they were acting in self-defense at the beginning of the fight; but this was not relevant to the subsequent conduct that was at the heart of the murder charge.
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER-CHARACTER EVIDENCE
In trial litigation matters, there are two different uses of character evidence. In some cases, character is itself in issue, in the sense that a person's character is an element of a claim, charge, or defense; in these cases, character evidence is necessary if an issue is to be correctly decided. In other cases, character evidence is introduced as circumstantial evidence of conduct on a particular occasion and is generally barred, except that the defendant is given
the right to open an inquiry into character in a criminal case, special provision is made for criminal cases where the defendant claims self-defense and in cases of sexual abuse, and character evidence may be used to impeach or support the credibility of a witness. Federal Rule of Evidence 404 only concerns the circumstantial use of character evidence, while Federal Rule of Evidence 405 is not as limited. Federal Rule 405 deals with the proper form of character evidence, assuming that the evidence is admissible.
One further note is that most state jurisdictions have similar uses for dealing with character evidence.
GREGORY CHANDLER, Attorney at Law
Monday, December 31, 2012
GREGORY CHANDLER SAYS HAPPY NEW YEAR
TO ALL IN 2013.
HAPPY NEW YEAR!!!
GREGORY CHANDLER
ATTORNEY AT LAW
Gregory Chandler--Improper Questioning By Judge
In United States v. Tilghman, 124 F. 3d 414 (D. C. Cir. 1998), The Court reversed a conviction for making false statements on a government form because the judge's repeated questions to the defendant could have telegraphed to the jury that the judge did not believe the defendant. The case, itself, rested heavily on the defendant's personal credibility.
It seems to me that the judge wanted to be a player in the litigation rather than an umpire.
GREGORY CHANDLER, Attorney at Law
Wednesday, December 26, 2012
GREGORY CHANDLER ON EYEWITNESS IDENTIFICATION
An interesting case on the subject of eyewitness identification is
United States v. Smith, 12 F. 3d 1355 (11th Cir. 1997). The Court
affirmed a bank robbery conviction, holding there was no abuse of discretion in excluding expert testimony offered on behalf of the defendant regarding the reliability of eyewitness identifications.
The Court noted that precedent disfavoring such evidence has not been disturbed since the testimony, although scientific knowledge, does not assist the fact-finder. This is because the jury is able to determine the reliability of eyewitness identification with the tools of cross-examination. Furthermore, the defendant was sufficiently protected by instructions highlighting such problems as cross-racial identification, potential bias from earlier identifications, delay between the event and the identification, and stress.
GREGORY CHANDLER, Attorney at Law
Sunday, December 23, 2012
GREGORY CHANDLER--THE TRIAL OF QUEEN CAROLINE
The Trial of Queen Caroline has long fascinated me.
Those interested in legal history may want to study the trial. The text of Queen Caroline's trial may be found at 2 Brod. & Bing 284, 129 Eng. Rep. 976 (1820).
In 1820, in the British House of the Lords, Queen Caroline was on trial for the crime of adultery. King, George IV, had accused Queen Caroline of engaging in adultery with her Italian steward, Bergami, while the Queen was travelling on the continent. The King sought a divorce. Public opinion was not entirely on the King's side; he had lived with other women publicly himself, and many individuals felt that he had mistreated Queen Caroline.
Queen Caroline was represented by Henry, Lord Brougham, one of the finest lawyers in the British Empire. The trial was viewed as the trial of the century because the dignity of the British monarchy might be harmed. Many feared massive riots and civil war if the masses did not like the verdict.
Queen Caroline was a rather unattractive woman. George IV and Queen Caroline had an arranged marriage. There was never any love between George IV and Queen Caroline.
George IV decided that he could rid himself of Queen Caroline by charging her with the serious crime of adultery. George IV used witnesses to the alleged adultery that offered paid testimony. In addition, two of the five judges sitting on the case were brothers of George IV.
In my opinion, the Trial of Queen Caroline concerns several trial advocacy issues: (1) the concept of confrontation, (2) the concept of cross-examination to expose questionable testimony, and (3) the 10th Commandment of Cross Examination that one should save the ultimate point for summation.
An Italian livery servant of Queen Caroline named Majocchi was one of the primary witnesses for the George IV. Majocchi testified that he witnessed the Queen's adulterous behavior during a sea voyage. Majocchi's direct examination testimony is thus:
Q: Did the Princess [Queen Caroline] sleep under the tent [placed on the ship's deck] generally on the voyage from Jaffa home?
A: She slept always under the tent during the whole voyage from Jaffa to the time she landed.
Q: Did anyone else sleep under the same tent?
A: Bartolomo Bergami [the Queen's alleged lover].
Q: Did this take place every night?
A: Every night.
Lord Brougham's cross examination exposed Majocchi as an unreliable witness. Majocchi was questioned about the sleeping arrangements of others on the voyage. The cross examination was this:
Q: During the voyage, where did Hieronimus sleep in general?
A: I do not recollect.
Q: Where did Mr. Howman sleep?
A: I do not recollect.
Q: Where did William Austin sleep?
A: I do not remember.
Q: Where did Camera sleep?
A: I do not know.
Q: Where did the maids sleep?
A. I do not know.
Q: Did you not, when you were ill during the voyage, sleep below [in the hold] under the deck?
A: Under the deck.
Q: Did those excellent sailors always remain below in the hold with you?
A: This I cannot remember if they slept in the hold during the nighttime or went up.
Q: Who slept in the place where you used to sleep down below in the hold?
A: I know very well that I slept there, but I do not remember who else.
Q: Where did the livery servants of the suite sleep?
A: This I do not remember.
Q: Were you not yourself a livery servant?
A: Yes.
Q: Where did the Padroni of the vessel sleep?
A: I do not know.
Q: When her Royal Highness was going by sea on her voyage from Sicily to Tunis, where did she sleep?
A: This I cannot remember.
Q: When she was afterwards going from Tunis to Constantinople on board the ship, where did Her Royal Highness sleep?
A: This I do not remember.
Q: When she was going from Constantinople to the Holy Land on board the ship, where did she sleep then?
A: I do not remember.
Q: Where did Bergami sleep on those three voyages of which you have just been speaking?
A: This I do not know.
The bulk of Majocchi's cross examination answers, in the Italian language, are: "Non mi ricordo." In English this means, "I don't remember."
After the prosecutors rested, Lord Brougham gave his opening remarks. I address three advocacy matters that are displayed by the cross examination and summation.
1. Confrontation on Cross Examination.
In his opening remarks, Lord Brougham presents the confrontation of Majocchi with his own statements. Majocchi's direct examination was quite detailed as to where the Queen slept. On cross examination, Majocchi had no details as to where anyone other than the Queen slept.
2. Cross Examination to Expose Questionable Testimony.
The cross examination casts serious doubt on Majocchi's credibility. Majocchi testifies that he has knowledge of the Queen's sleeping place. Yet, Majocchi testifies that he has no recollection of where others slept on the ship.
3. Save the Ultimate Point of Your Cross Examination for Summation.
On December 9, 2012, I posted a blog titled: "Gregory Chandler: The 10 Commandments of Cross Examination." In such blog, I pointed out that a matter can be saved to argue during the trial attorney's summation. Here, Lord Broughman allows Majocchi to constantly testify on cross examination that he does not recall where persons other than the Queen slept.
A part of Lord Broughman's summation is this:
"Majocchi answered no categorical questions. When asked as to the number of sailors present, he would not tell if it was two or twenty-two. As to place he was equally in fault. Although he slept in the hold of the ship, he could not tell the others that slept at any time there, by day or by night."
After the government's case was devastated, the prosecution of Queen Caroline ceased. The situation is what I called a settlement based on circumstances.
GREGORY CHANDLER, Attorney at Law
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