girl ipsa loquitur: 09/12/2004 - 09/19/2004 Email me!

Saturday, September 18, 2004

Fun With Evidence!

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Last time we were together, here at Girl Ipsa, we discussed the Godfather of all law school subjects; Constitutional law. Today we hit that geeky little brother; Evidence. Con law hangs around and keeps it's eye on evidence, as we shall see. But in the end, evidence is its own body of law with some interesting bits.

What I am finding, more and more each day, is that law school actually reconfigures your brain. I'd like to get a CAT scan to see if the changes are visible however I have no "before law school" exemplar of my brain to compare. Perhaps, you'd be wise to argue, Girl Ipsa has always been brain defected. For instance, to the everyday guy (Lets just use my Biggest Fan) the idea of not considering relevant evidence in a trial is tantamount to just telling lies.

Think of it this way: You have reason to believe that one of your kids has drawn on the wall with a sharpie marker. There are two who have motive, access to the weapon, were witnessed at the scene, and can not offer an alibi worth even listening to ("The cat somehow learned to hover 3 feet off the ground AND draw flowers?"). Each one points firmly at the other. The only piece of evidence you have which differentiates these two was illegally obtained. (Marker in the right color, looking a little battered from its recent mural work, stuffed under the mattress of defendant A) Now, here in Mommy Court justice is swift. All the defense objections of lack of probable cause and illegal search and seizure... OVER RULED!

But if it were in real court these issues would bear on the question of admissibility. Not relevance. Surely possession of the criminal instrumentality is relevant to the question of who used it. But sometimes relevant evidence is not admitted. Fan, with his every day guy brain, cares not for these rules. He just wants to know all the facts, admissible or not, so he can punish evil doers. (Note to NEW READERS: Fan is my Dad. I am familiar with the "justice is swift" brand of judicial parenting. A lot of time both defendants would get sentenced because even if we hadn't done this particular crime we had surely done others which went unpunished.) Fan is not a fan of the rules of evidence. But you know me, if it's a rule... well then I like it.

There are two HUGE cases going on in the news right now. Both of them bringing up evidence issues. First, the tragic Peterson trial. The jury was shown photos of Laci's autopsied body. Is this legally relevant evidence? Arguably the judge agreed that is was because I can not image that Mr. Geragos didn't object to its admission.

"Jurors winced and glanced away as they looked at photos of Laci Peterson's badly decomposed body cast in larger-than-life images on a white wall screen."

The question is whether the probative value of the evidence (it's tendency to make a fact more or less likely) is substantially outweighed by it's prejudicial effect. Jurors winced. That's prejudicial wincing. I would guess that the prosecution showed these photos in order to rebut Peterson's claims about how the body ended up in this condition. It was pulled apart, not cut apart. But did they have to be larger than life? Believe me, the prosecution was happy to put this evidence on.

Next we turn, with trepidation, to Michael Jackson and his sick-o criminal behavior. (Girl Ipsa will never sit on this jury 'cause I have a preconceived opinion regarding his guilt & small children of my own. Enough said.) This is our marker issue again, isn't it? Evidence obtained in contravention of Jackson's rights. I am going to hazard the guess that this evidence is relevant. Perhaps even damning. This is the sort of evidence which Fan wants to get his hands on. In this case no decision has been made yet regarding the admissibility of this evidence, only the contention that it was obtained illegally. Nevertheless, the rule is pretty clear:

Evidence obtained in contravention of the law or the defendants constitutional rights is inadmissible against him, no matter how relevant, probative or damning.

Why the heck would we have such a stupid rule? (I am channeling the voice of Fan and people like him every where) Good question.

The answer will illustrate my law school brain damage. We have this rule because it makes all the other rules matter. The 4th amendment right to be free from unreasonable searches and seizures would mean diddly squat if the state could just say "Oops, our bad." and prosecute with the evidence anyway. It is looking to the bigger picture-forest and ignoring the sleazy, disgusting and clearly guilty nature of the individual tree.

Here is my brain damage ~ If the operation of this rule means that Jackson is acquitted because this evidence is not admitted, I will say "The system works." Because my altered brain has learned to value the means over the ends. The conclusion that you reach is only as good as the path you took to get there. Convicting based upon "tainted" evidence is like cheating in a marathon.

I don't care if you crossed the finish line first if you took a cab to get there.

Tuesday, September 14, 2004

MPRE Confidential

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I have learned my MPRE results.

I passed.

I am tempted to leave this announcement at that... However, I must admit that I got a pretty mediocre grade. I am forced to admit this since I did all that bragging pre-test about how I was going to get a perfect grade. The powers of fate and karma got together to issue me a strong rebuke. At least they spared me a failure.

My scaled score was a 118. This was not low enough to incite schadenfreude in the other students. Nevertheless, I have spent some time pointing and laughing at myself...

"To live is so startling it leaves little time for anything else." ~ Emily Dickinson

"Ouch!" ~ Mrs. Palsgraff

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Be sure to read A Criminal Waste of Space
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