Chief among the bundle of rights one obtains in property ownership is the right to exclude others from the use and enjoyment of that property. This “sole and despotic dominion” that an individual commands over their property is placed in danger, of course, when the property becomes subject to the wants and needs of others. Absent the owner’s consent (as in the case of licensing) or operation of law (as with adverse possession), a property owner would be able to bring an action for trespass for such intrusions.
A judge holding a defendant liable for trespass perhaps carries the vision of plaintiffs having their rights vindicated, but cases do not end at liability. The judge must also determine whether further remedies beyond damages are appropriate, including whether a permanent injunction should issue. Such is a weighty decision touches upon an extraordinary remedy: a court order that a defendant must cease and desist its illegal activity or face punishment for contempt. That being said, in many property cases, a court order only issuing damages would effectuate a judicial licensing of the behavior. With that result, the incentives are adjusted such that the right to exclude does not rest with the plaintiff; instead, it is determined only by the extent to which the defendant is willing and able to engage in the trespassing behavior. As such, the courts have presumptively treated infringement of property rights as worthy of injunctive relief.
That has also been the rule in copyright infringement cases for the last few decades. Continue reading “Does the Threat of Future Copyright Infringement Amount to Irreparable Harm?”
The Supreme Court was not the only court wrestling this week with the admissibility of crime-lab evidence. A day after the Justices heard oral argument in Briscoe v. Virginia, the Seventh Circuit decided United States v. Turner (No. 08-3109). Both cases put into question the vitality of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).
A jury convicted Turner of selling crack to an undercover police officer. The drugs were sent to the Wisconsin State Crime Laboratory, where they were analyzed by a chemist named Hanson, who confirmed that they were indeed crack. The government intended to call Hanson to testify to this effect, but she went on maternity leave before the trial. So Hanson’s supervisor, Block, was summoned instead. Based on Hanson’s notes and data, Block testified that he agreed with her conclusion that the drugs were crack.
On appeal, Turner argued that Block’s testimony violated Melendez-Diaz. Continue reading “Seventh Circuit Weighs in on Crime-Lab Evidence”
The Seventh Circuit had only one new opinion in a criminal case this week, and it is not one in which the court broke new legal ground. In United States v. Harris (No. 07-4017) (Williams, J.), the court affirmed the defendant’s convictions for drug trafficking and unlawful gun possession. The defendant raised various evidentiary objections on appeal, including a challenge to the use of other bad acts evidence against him. Specifically, the government introduced evidence of prior drug sales perpetrated by Harris in order to show that he intended to distribute the drugs he was charged with possessing.
Litigation over other bad acts seems a routine feature of appeals in drug-trafficking cases. As I suggested in this earlier post, it strikes me that the Seventh Circuit has pretty well interpreted the Rule 404(b) restrictions on evidence of other bad acts out of existence, at least in drug cases. Although not as broadly worded as some other opinions, nothing in Harris seems inconsistent with the view that drug defendants are unlikely to find success with their Rule 404(b) arguments on appeal.
One of this Law School’s most noteworthy legacies is its production of many of the region’s most outstanding trial lawyers. The legacy was fully evident on Friday, November 6, 2009 at the Civil Trial Evidence and Litigation Conference. The sold-out event served as a “last call for Sensenbrenner Hall” of sorts while featuring a panel that well-represented the many fine trial lawyers who have distinguished themselves as Marquette lawyers. It was my privilege to help organize the conference along with Pat Dunphy (L’76), who conceived of the idea and was the key to assembling the talented panel of Marquette alumni. In light of Friday’s success, Pat and I have already begun discussing next year’s civil litigation conference, which will be held in the Law School’s new venue in Eckstein Hall.
The presentations spanned a broad array of issues and problems regularly confronted in civil litigation. The strength of the presentations rested not just in their discussion of doctrine and rules, but in the panelists bringing to bear their experience and insights in preparing and trying cases. Links to the written CLE material and the accompanying PowerPoint presentations will be posted on the Law School’s website later this week.
Starting the day was Michael J. Cohen (L’86) of Meissner Tierney Fisher & Nichols SC, who underscored the important relationship between pretrial practice and outcomes at trial. Drawing on his extensive experience as a commercial litigator, Mike addressed the duty to preserve evidence, especially electronic information, when a lawsuit appears on the horizon. Mike emphasized the need to work with the client to understand what the law requires so that discoverable information is not destroyed, inadvertently or otherwise, thereby exposing the client (or counsel) to sanctions. Pat Dunphy (L’76) of Cannon & Dunphy SC, addressed a different aspect of pretrial practice, namely, the creative use of requests to admit during discovery. Pat described how he used requests to admit to obtain a binding judicial admission in a major product liability case that proved determinative of its outcome. Continue reading “The Verdict? A Very Successful Civil Trial Conference”
The court staked out no new legal ground in its opinions last week, so I’ll just briefly describe a case that nicely illustrates a classic problem in evidence law. Based on information provided by a confidential informant, Milwaukee police stopped a Ford Excursion on suspicion of drug activity. Inside were Marc Cannon (the driver), David Harris (Cannon’s cousin), $8,900 in cash (found in Harris’s pockets), and a brick of cocaine. The cash pointed to Harris’s likely involvement in the drug-dealing operation, but, without more, the evidence still seems short of beyond a reasonable doubt.
At trial, the government thus relied heavily on the testimony of the confidential informant, Anderson, who recounted a series of interactions with Cannon and Harris. Perhaps most damaging to Harris was testimony that Cannon told Anderson that his cousin was coming to Milwaukee with a signficant amount of cocaine. This testimony, of course, was hearsay: Cannon himself did not testify, and Harris had no ability to cross-examine him. In order to overcome the hearsay problem, the government relied on the exception for statements by co-conspirators. But this required the government to prove that Cannon and Harris were indeed co-conspirators, and the strongest evidence of that were the very statements whose admissibility was at issue. The government’s argument thus had something of a boot-strapping character. Continue reading “Seventh Circuit Criminal Case of the Week: Of Hearsay and Bootstraps”
Criminal law and procedure are structured around the act requirement: a defendant is prosecuted for performing a specifically identified unlawful act, the criminal trial is designed to determine whether the defendant actually committed that act, and, once the defendant has been convicted and punished, we commonly say that he has paid his debt to society and should be relieved from any additional punishment for the act (a principle that is roughly codified in the Double Jeopardy Clause). The act, not the person, is the basic unit of analysis.
However, a host of recent trends in criminal law are putting tremendous pressure on the old act-based approach and pointing to a new paradigm in which a defendant is punished based on his propensity to commit crime, with little or no regard to the severity of the particular act of which he has been convicted (if, indeed, there has been a conviction at all). Some examples include the use of relevant conduct in the federal sentencing guidelines, three strikes laws and other sentence enhancements based on prior convictions, felon-in-possession laws, civil commitment of sex offenders, and preventive detention of terrorism suspects. Such innovations are suggestive of a system in which we punish bad people, not bad acts. To be sure, there is a wide gray area in which it is unclear whether we are punishing acts or people, but when (for instance) we impose what is effectively a life sentence for the theft of three golf clubs (as was done under the California three strikes law), there can be little doubt that the person, not the act, is the target of our condemnation.
Although sentencing law may most dramatically reveal the competition between the act and propensity paradigms, evidence law is also implicated — perhaps most importantly in Federal Rule of Evidence 404(b), which seems pretty clearly to embrace the act paradigm. More specifically, the rule states that evidence of other bad acts is not admissible to show the character of a defendant or his propensity to commit crime. Yet, to judge by recent Seventh Circuit cases, it seems that evidence of uncharged drug offenses and prior drug convictions are routinely used against defendants in drug cases. (See, for instance, my post here.)
Last week, the court shed some light on the Rule 404(b) exceptions in United States v. Conner (No. 07-3527) (Kanne, J.). Continue reading “Seventh Circuit Criminal Case of the Week: Other Bad Acts and the “Intricately Related” Doctrine”
As reported by California Case Law (via a tip by friend of the blog, Jack Sargent), the imponderable case of Nazir v. United Airlines, Inc., No. A121651 (Cal. App. Ct. October 8, 2009):
In plaintiff’s race and employment discrimination lawsuit against United Airlines, the trial court’s grant of summary judgment in favor of defendants is reversed as to eight causes of action as they must be decided by the jury. Furthermore, the trial court’s order sustaining 763 of 764 of defendant’s objections was a manifest abuse of discretion.
I can only do this case justice by stating precisely some of the court’s decision. This is all takes place in the context of a rather ordinary race discrimination in employment claim:
At the same time, the summary judgment procedure has become the target of criticism on a number of fronts. Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well‑funded litigants. More significantly, it has been said that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage. Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court . . . .
Continue reading “California Appeals Court Overturns “Objectionable” Employment Discrimination Decision”
Like nearly every criminal lawyer, I eagerly await – and wait and wait – for the Supreme Court’s long overdue decision in Melendez-Diaz v. Massachusetts (07-591), the only case outstanding from the Court’s November sitting (per SCOTUSBLOG). The case addresses the prosecution’s use of crime laboratory reports against the accused without testimony by the person who performed the analysis and wrote the report. We need not get bogged down in the constitutional niceties at present, if only because its delayed appearance renders the case’s auguries especially hard to read.
So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008). To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some). Continue reading “Confrontation Avoidance? Part I: A Good Article to Read While Waiting”
I’ve been reading a fascinating new article by Dan Blinka entitled “Why Modern Evidence Law Lacks Credibility.” (A draft can be downloaded from SSRN here.) Dan is exploring the clumsy handling of witness credibility issues in the rules of evidence. A major theme is the tension between, on the one hand, the teachings of modern psychology regarding the limited capacity of jurors to make accurate assessments of witness reliability and, on the other hand, a widespread public confidence in the ability of laypeople to judge credibility on the basis of “common sense.” In the conflict between expertise and common sense, Dan comes down on the side of the latter, emphasizing the importance of the common-sense approach in ensuring the legitimacy of trials.
I particularly enjoyed Dan’s recounting of a colorful early encounter between psychology and evidence law. In 1907, Hugo Münsterberg, a German psychology professor (pictured above), launched a “scientific” attack on the premises of Anglo-American evidence law. Taking up the gauntlet on behalf of the law was the legendary evidence professor John Henry Wigmore, who responded to Münsterberg with what Dan seems quite rightly to characterize as a “savagely brilliant critique.” Score: Law-1, Psychology-0.
Here is the abstract of Dan’s article: Continue reading “An “Incredible” New Evidence Article”