Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, and media law, and seminars in appellate advocacy and law & theology. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Tuesday, April 1, 2014

Confessions and Concoctions

Here's the first scenario:

Smith is accused of the shooting murder of Jones. The prosecutor wants to introduce into evidence a statement that Smith made to a large group of people sometime after Jones had been killed. Smith said: "I shot someone but nobody saw me."

Is the statement admissible? Almost certainly so. Smith doesn't identify the victim, but that doesn't matter for relevancy purposes. The fact that he says he shot someone makes it more likely he did so, and the fact that he shot someone makes it more likely that he shot Jones.

Nor does the evidence give rise to a hearsay problem, even though the prosecutor is tendering it to prove that what Smith said is true. That's because hearsay does not include a statement being offered against the person who made the statement.

Nor does the statement fall into the category of inadmissible character evidence, even though it certainly makes Smith look bad. After all, the prosecutor isn't offering the statement to show that Smith generally has a bad character, but to show that Smith shot Jones. Even if Smith's character is otherwise nonviolent, saintly, and pristine this evidence still helps prove the prosecutor's case.

Here's the second scenario:

Smith is accused of the shooting murder of Jones. The prosecutor wants to introduce into evidence a statement that appears in a best-selling novel written by Smith. In the novel, one of the characters says to another "I shot someone but nobody saw me."

Is this statement admissible? I doubt it, at least on these limited facts. That Smith had a fictional character say he shot someone doesn't seem to make it more likely that Smith himself did so. It's not clear that this evidence even passes the relevance test, forgiving as it is.

Given its limited--perhaps nonexistent--relevance, we might wonder why the prosecutor would want to put the evidence in. Perhaps the prosecutor wants the jury to think of Smith as a person who likes to write about violent criminals and who therefore must himself have violent propensities. If so, then the prosecutor wants to offer this as character evidence--a use the rules condemn.

Why does this matter? Because in dozens of recent cases prosecutors have sought to offer evidence against criminal defendants that might or might not be admissible, depending on whether you think the evidence is closer to scenario number one or scenario number two.

In those cases, prosecutors have tried to put into evidence statements that criminal defendants made in the context of rap songs the defendants composed. A recent New York Times article reports that prosecutors have tendered such evidence in dozens of cases in the past two years. This has sparked a heated debate between prosecutors, criminal defense lawyers, civil libertarians, and legal scholars.

A good deal of the debate seems to turn on some uncertainty about the art form itself. Is a violent lifestyle essential to credibility as a gangster rapper? If so, then, the argument goes, such lyrics do indeed amount to personal confessions.

Or are these artists simply manufacturing a fictionalized persona that helps them sell songs? If so, then, the argument goes, these concoctions are no more confessions than are the narratives we find in the works of Bret Easton Ellis, Fyodor Dostoevsky, or William Shakespeare.

This debate does not lend itself to a binary analysis or a single rule. Consider this example, discussed in the New York Times article: should Johnny Cash be indicted after singing that he "shot a man in Reno, just to watch him die?" Of course not, says the ACLU; it's just a song. Not so fast, replies a prosecutor. Was the Man in Black living in Reno at the time of a mysterious and apparently unmotivated shooting?

Perhaps, to know how that case should be decided, we need more facts. Was a crime committed that  fits the description in the song? How specific is that description? Is there other evidence that links Cash to the crime?

The good news is that judges can sort through the circumstances of each individual prosecution on a case-by-case basis rather than by reference to a comprehensive bright-line principle.

And that is also the bad news.

Concluding that we've arrived in one of those legal spaces that demands case-by-case adjudication is always unsatisfying. Yes, such an approach spares us the injustices of fixed rules. But it is also unpredictable, mushy, and subject to abuses that may prove hard to correct.

Furthermore, our concerns about case-by-case adjudication are particularly high where dire consequences will follow from getting it wrong.

These are such circumstances. Exclude the evidence and an emboldened killer may go free. Let the evidence in and an innocent person may be condemned for an act of imagination--and freedom of expression by all artists may be significantly chilled.

It is a situation ripe for pain, injustice, and tragedy.

It seems like the sort of stuff of which great songs are made.

Sunday, March 16, 2014

Perfect Finish

Every year, I listen to dozens of student moot court arguments and almost as many appellate argument rehearsals by practicing lawyers. The vast majority of them have at least this in common: they close poorly.

It appears that, somewhere along the line, we were all told that we're supposed to close our oral arguments the same way we close a pleading: by telling the court the relief we want. This makes sense in the context of a complaint or motion. But, in the context of an oral argument, it is boring and pointless.

"For all the reasons I've just stated, we ask that this court reverse the decision of the trial court." Good grief. As if we could imagine an appellate judge crying out "Wait a minute! That's what you want?! Who knew?!" or "Wow! Now that I hear what you want I'm persuaded to give it to you!"

Indeed, I've noticed that this phrase is often uttered with a kind of relief or resignation, as though the lawyer is saying, along with the woman in T.S. Eliot's "The Waste Land" whose lover has just departed, "Well now that's done: and I'm glad it's over."

Martial artists recognize a principle they call "zanshin," which is usually translated as "perfect finish" or "remaining spirit." It refers to the ending of a "kata" or form, where the martial artist does a series of choreographed movements as if fighting multiple opponents. To end the kata and simply walk away is to fail. Zanshin means that in the last movement the martial artist does not relax their attention or spirit. Everything that came before is affirmed in the continuing energy of the finish. It is hard to describe, but impossible to miss once you have seen it.

I think that great oral advocates strive for zanshin in their arguments. They do not run away from their argument when it is over. Rather, they maintain the same energy and eye contact at the end that they sustained throughout. And they try to leave the judges with something that will keep them in the place where the advocate brought them: with a point, a phrase, an image that distils their argument in a compelling way.

I once saw my friend Ted Shaw of the NAACP Legal Defense Fund argue that his client should be allowed to intervene in a case involving an important affirmative action issue. He closed his argument with this: "It shouldn't be about us, without us." How good was that closing? More than a decade later, it stays with me.


Thursday, November 8, 2012

Crying Hurricane in a Crowded Metropolis

During Superstorm Sandy, someone falsely tweeted that the New York stock exchange was flooded under more than three feet of water and that Governor Andrew Cuomo was trapped in Manhattan and had been rushed to safety.  These tweets were picked up and retweeted by various mainstream news sources. 

It was later discovered that the source of the false tweets was the campaign manager for a Republican candidate for congress.  The tweeter immediately resigned fromt the campaign--which may have saved him the trouble of worrying about whether he'd be fired, but probably did not save him the trouble of worrying about whether he'd be indicted.

As a recent Wall Street Journal article reports, under New York law it is a crime to initiate or circulate "a false report or warning of [a] ... catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result."  The article goes on to note that, while some First Amendment scholars have questioned whether such laws pass constitutional muster, others have compared these tweets to the famous example of unprotected speech offered by Justice Holmes: crying "Fire!" in a crowded theater.

For present purposes, I don't want to undertake the ambitious project of trying to assess the constitutionality of such laws.  Instead, I want only to offer an observation about social media that I think might figure into the calculus. 

For most of human history, our communications fell into two categories.

Some of our communications were impetuous.  We shouted or cried out or muttered in a moment of anger or zeal or folly, often saying things that we would not have said if we had thought more carefully.  Still, there was one consolation: such impulsive communications were not rendered in a permanent medium. 

On the other hand, some of our communications had more permanence to them.  We committed some of our statements to writing or recording and, because that was a more serious (or at least more time consuming) enterprise, we acted with a higher level of deliberation.  Of course, sometimes the stuff we wrote or recorded was irresponsible gibberish.  But a little more thoughtfulness made it a little less likely that this would be the case. 

Social media, however, mix these two characteristics together into a potentially troublesome potion.  They allow us (in many contexts, encourage us) to be dazzlingly impetuous.  At the same time, they enshrine our recklessness in a kind of permanence.  And, to magnify the concerns, with the push of a button we can launch these communications into the universe--so that they go virtually everywhere to virtually everyone, forever.

I am not implying that these considerations provide an answer to the constitutional question.  I am merely suggesting that our traditional ways of framing First Amendment problems may not have kept up with the technology.

Were these tweets like crying "Fire!" in a crowded theater?

I'm not so sure.

Is a written message that appears on your phone more--or less--alarming than a cry?  At a minimum, can we at least agree that it is different?

And, while we're at it, can we agree that a tweet that is recirculated by the Wall Street Journal--as these tweets were--will reach vastly more people than you could ever fit into any theater ... no matter how crowded?

Monday, October 22, 2012

Matters of Character

We usually do not admit evidence of a criminal defendant's character at trial.  We want the defendant to be judged based on what the facts show about how he or she behaved on a particular occasion.  We worry about evidence that might prompt the jury to convict someone of a crime on the theory that he or she is a generally bad person who deserves to be behind bars--regardless of guilt with respect to this particular offense.

Still, evidence of character can find its way into criminal cases.  For example, a defendant who claims to have acted in self-defense can offer evidence showing that the victim had a tendency toward violent behavior.  Indeed, just last week the judge in the George Zimmerman case indicated that he would allow Zimmerman's attorney to seek Trayvon Martin's Twitter, Facebook, and school records to troll for evidence that Martin was a violent person.  You can read about the ruling here.

Of course, at this point we don't know whether Zimmerman's lawyer will succeed in obtaining the records, what he will find, or whether what he finds (if anything) will be admissible into evidence.  So, many things remain unclear.  But this much is fairly clear: if Zimmerman puts Martin's character at issue, this will probably open the door for the prosecution to do the same with respect to Zimmerman's character as well. 

Perhaps Zimmerman's lawyer is on to a brilliant strategy.

Or perhaps he is playing one-move chess.

Monday, August 6, 2012

The Asymmetries of Relevance

An interesting article in today's Detroit News reports that prosecutors hope to introduce into evidence at the corruption trial of former mayor Kwame Kilpatrick the fact that he received a C+ in a tax class that he took at the Detroit College of Law.  Several of the charges pending against Kilpatrick relate to his taxes, and prosecutors argue that his C+ is relevant to show that he was aware of his legal duty to report income for the years 2003-2008.

The argument raises a number of questions.  Does one need to go to law school and take a tax class in order to understand that income must be reported?  It seems like the sort of thing everyone knows without such training.  And, if this information is, for some reason, more arcane than it appears, then does a C+ really reflect much mastery of the material?  We can almost imagine the defendant saying "Well, I only got a C+.  That part about reporting income must be one of the things I missed."

But, for those of us who teach Evidence in law school, the most interesting question may sound something like this:  What if Kilpatrick had failed the course?  Would prosecutors concede that evidence of that fact should be admitted to show that the mayor was unaware of his legal obligations--indeed, demonstrably incapable of learning them?  In fact, would they conclude that in light of such compelling evidence they needed to drop the tax charges against him?

My guess is that many lawyers who would conclude that Kilpatrick's C+ passes the extremely forgiving standard for relevance would be reluctant to reach the same conclusion with respect to a failing grade.  In a sense, that is unremarkable.  Evidence that Kilpatrick took and passed a tax  course simply confirms what we would otherwise expect--that he knew about his duty to report income.  On the other hand, evidence that he failed the course would do little, if anything, to persuade us that this obligation came as news to him.

In this sense, Kilpatrick's law school grade may be an example of how relevance can behave asymmetrically in our analysis of evidence.  Evidence students often study another intriguing example of this in class: many courts hold that evidence of flight from arrest is relevant to show guilt; but few courts have shown any sympathy toward the argument that absence of flight is relevant to show innocence.  Why?  Because we don't expect people to try to escape when they're being arrested: when they do, it tells us something; when they don't, it tells us nothing.

These asymmetries are not just oddities within the discipline.  Rather, they highlight a fundamental truth about the law of evidence: much of it rests upon expectations about what people know, how they think, and how they behave.  And there's the rub, because those expectations can be over-valued, can become outmoded, or can be shown to have rested on faulty premises all along.

Will Kilpatrick raise any of these points at trial?  I'm not sure.  I don't know what grade he received in his Evidence class.     

Tuesday, July 17, 2012

Corporate People

In a recent op-ed in the Wall Street Journal, Jack and Suzy Welch responded to comments by Elizabeth Warren in which she declared that corporations obviously are not people because, for instance, they do not have hearts or get sick.  Jack and Suzy Welch replied, with equal zeal, that “Of course corporations are people.  What else would they be?”

What they would be, and in fact are, is clear.  Corporations are entities created by law; they exist to fulfill certain permitted purposes; and they are separate and distinct from their officers and employees.  Indeed, assuming that the interests of officers and employees are coextensive with those of the entity has led to no end of mischief, and more than a few indictments.

The real question is therefore not whether corporations lack passions, sorrows, and the capacity to dance (as Elizabeth Warren says) or whether they bond with their customers, mentor inner-city kids, and shout, laugh, and drink coffee (as Jack and Suzy Welch say).  The real question is whether legal entities like corporations should have certain rights that we normally assign to human beings.

As to some matters, this question would not make any sense.  No one argues that corporations should have the right to marry who they like, use contraception, or choose to get an abortion.  But, as to other matters, the question is not only sensible, but critical.  One such issue is whether speech engaged in by legal entities—including corporations—should receive the protections of the First Amendment.

Many, probably most, First Amendment scholars agree that the answer to this question is “yes.”  The Supreme Court answered this question that way long before Citizens United and its attendant rhetorical flurry.  Still, important issues remain.

Smart and informed people—like Elizabeth Warren and Jack and Suzy Welch—can reasonably disagree about those issues.  They can argue over the effects of concluding that corporations have First Amendment rights.  They can debate whether those effects are so destructive to the democratic process that our First Amendment jurisprudence leaves room for government regulation.

But I respectfully suggest that everyone should stop arguing over whether corporations smile or tango or take their kids to Little League or get misty-eyed during Hallmark commercials.  They don’t, and it would be creepy if they did, and none of that really has anything to do with the actual and serious issue at hand.

Monday, July 16, 2012

Diversity's Evidences

Today, Inside Higher Ed ran a short piece that I wrote musing on the benefits of having students from diverse backgrounds (and therefore with diverse perspectives) in the classroom.  If you are interested, you can find it here.  My comments drew some of the usual criticisms, from some of the usual critics, including this one: my argument indulges in stereotyping because it assumes that, for example, African Americans have a particular and unitary perspective on things.  This criticism, however, rests upon a profound misunderstanding of my argument.  The point is not that the educational experience is enriched by the presence of women, African Americans, Hispanics, Native Americans, Asian Americans,  those with diabilities, members of the LGBT community, and countless other categories of human beings because there is a specific perspective or viewpoint that we can attribute to the members of each of those groups.  That is, in my judgment, ridiculous.  Rather, the point is that these characteristics are highly self-definitional for most of us; that the world interacts with us differently because of those characteristics; and that this shapes the experiences we have, and, therefore, the perspectives we acquire along the way.  Far from stereotyping, this argument assumes a rich array of possibilities; but it also assumes--because it is true--that things like gender, race, ethnicity, and sexual orientation matter.  I believe that the logic, social reality, and psychological truth of this argument is irrefutable.  Perhaps that is why its critics so often choose to refute a different argument--one that I have never made and that has nothing to do with the Supreme Court's reasoning in Grutter.