Making a Murderer: Oh-So-Many Talking Points

635874987555624158-XXX-IMG-NETFLIX-MAKING-A-MUR-1-1-VGCTGMDU-78432434As the winter break winds down, it’s definitely worth your time to start binge-watching Making a Murderer, a recent Netflix documentary on a real-life criminal case. A very close-to-home criminal case, at that.

The documentary, filmed over 10 years, follows Steven Avery, who was convicted in 1985 of sexual assault. He maintained his innocence and, indeed, 18 years later DNA evidence exonerated him. After he was released, he sued Manitowoc County for his wrongful conviction. It looks as though that lawsuit starts digging up some very unsavory conduct among officials in Manitowoc County.

But then—Avery is arrested for the murder of photographer Teresa Halbach. Several months later, his nephew Brendan Dassey is also arrested.

I’ll stop there with plot. If you’ve been around Wisconsin, you’ve probably heard of the case. If you’ve been on the Internet in the last couple of weeks, you’ve almost surely heard of it. But you must watch it.

For law students, there’s so many teachable moments. For everyone, there’s so much to talk about. (more…)

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Do I Need to Draw You a Picture? The Zimmerman Trial and CGI Evidence

The Zimmerman trial nicely illustrates how messy trials can be. Witnesses contradict one another on most critical issues. For example, a bevy of witnesses have split over whether it was the victim Trayvon Martin or the defendant George Zimmerman screaming for help on the 911 recording. Moreover, the split among witnesses is, predictably, along party lines: friends and relatives of each claim the voice as their own. To make things messier, some of these witnesses seem to have contradicted themselves, asserting earlier that they couldn’t recognize the voice despite their trial testimony that now positively identifies it. Adding to the confusion, some witnesses deny making the earlier inconsistent statements.

So, what’s the jury to make of this morass? The defense solution is to draw a picture – literally. Yesterday the parties sparred over the defense’s attempts to introduce a computer-animated recreation of the fatal struggle between Zimmerman and Martin. Computer-graphic imaging (CGI) technology is being used more and more to recreate events in a myriad of cases. A week of conflicting testimony may be reduced to a 60-second cartoon.

There are two problems here. First, the accuracy (authentication) of a CGI recreation depends on its fidelity to the historical record: does it accurately reflect what occurred? Hard to say in this case. Martin is dead. Zimmerman has not testified. The CGI recreation rests on the creators’ reconstruction of events based on conflicting pretrial statements, including Zimmerman’s, some of which have been contradicted by trial testimony, itself no model of clarity.

Put differently, the CGI recreation is the animators’ version of the shooting, resting heavily on the defense version of events. It is tantamount to Zimmerman’s story of what occurred with one crucial difference: Zimmerman does not have to take the stand and face cross-examination under oath about any of it. My own view is that it should be excluded unless Zimmerman takes the stand and testifies that it “fairly and accurately” depicts what happened.

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Who Screamed? Experts, Rules, and the Zimmerman Trial

The Zimmerman homicide trial in Florida is an important bellwether on many levels. My colleague David Papke has already remarked on the jury’s composition and its possible effect on the outcome.  The evidence too is controversial and contested. The notorious 911 call recording is deemed critical, yet the trial judge excluded expert testimony on voice identification as unreliable. Her ruling rippled across the country and may even hold lessons here in Wisconsin.

The 911 call recorded a man’s voice “screaming” for help. The screamer’s identity is disputed. George Zimmerman has claimed self-defense. Prosecution experts asserted, however, that the plea came from the victim, Trayvon Martin, moments before he was shot dead. A bevy of defense witnesses, including specialists with the FBI and the NSA, attacked the methods used by the State’s experts.

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Assumptions and Presumptions

As most students at Eckstein are frantically and diligently studying to ensure we put forth our best efforts during this finals period, I can’t help but think about the certain “presumptions” built into our institution of law. Numerous assumptions and presumptions are used in many different areas of law, but they seem to be accentuated when looking at the Federal Rules of Evidence.

Let’s look at Federal Rule 801 2(b), for instance. Is it really true that a failure to respond makes for an adopted admission? Those who have had, or have, a significant other: have you ever been silent to an assertion made by your significant other? I’m assuming that, like me, you remained silent not because you wanted to tacitly give your approval of the assertion, but rather because you wanted to save the feelings of your significant other, or eliminate a needless argument. I am aware that most things that end up in court may not be so trivial, but nevertheless this example popped into my head rather quickly without much thought. I am sure that the same could be said for many others, and it is the basis of the presumption in general I find unreliable.

Let’s turn to another presumption by looking at Federal Rule 804(b)(2), the “Dying Declaration.”   (more…)

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A Visit From the Ghost of Jury Service Past

What do you remember about November 29, 1995? That was the day when one of the jurors in Jesse Webster’s drug trafficking trial was out sick. The next day, with all twelve jurors again present, Webster was convicted. Many years later, Webster claimed in a petition for post-conviction relief that the eleven jurors who showed up on November 29 improperly proceeded with deliberations that day at the direction of a rogue bailiff.

In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

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