Answer to Thursday’s Poll
In Thursday’s straw poll, I asked what the odds of a hypothetical perp being guilty vs. innocent, based on DNA evidence alone, where a partial match at 5 1/1 loci had placed the odds of an individual random match at 1.1 million to 1, and where this figure had translated into 9 potential perps in your relevant region who might have committed the crime. The correct answer is #10, or 8 to 1 in favor of innocence, as 9 potential perps translates into 1 actual perp, vs. 8 innocents. My original hypothesis was the readers would do a lot worse than they did. I expected far more moron answers like Jeff Barea’s:
Put down the bong everyone, you are way too paranoid and adding in all kinds of weird things.
The science alone says #2 - It’s actually stated in the question.
BONUS: #13 1:1
People who sit on juries are either too stupid to get out of doing or want to see criminals get justice.
OK, I half-lied. While I did expect more readers to be as clueless as Jeff Barea was, I didn’t actually expect them to be dicks about it. And I didn’t expect them to be quite that dumb, as the expected answer was #1 (1.1 million to 1 in favor of guilt), not #2 (1.1 million to 1 in favor of innocence), but I’m more inclined to chalk that up to carelessness and not anyone actually thinking that 1.1 million to 1 odds against a person being innocent translate into 1.1 million to 1 odds in favor of the same.
Those who have been following the DNA discussions (probably almost all of the respondents, since Patterico was the only major blogger who linked here) may have recognized some close parallels to the Puckett case. There, the defendant was indeed found by a trawl that stood a 1.1 million to 1 chance of randomly matching to any particular person, but a 1 in 3 chance of matching to somebody due to the sheer size of the database (338,000). The prosecutor, David Merin, did indeed instruct the jury that based on a population of 18 million people in California at the time of the murder (1972), half of them women, there were roughly 9 million men, leaving “eight or nine Caucasian men in the state that look like that crime-scene profile.” By omitting the perp himself (we know that he matches to his own DNA), the prosecutor made a boo-boo. He should have said there was a perp, and there were roughly 9 million other men in California in 1972, 8 or 9 of whom should be expected to match to him, bringing the total of potential perps to either 9 or 10. I split the difference by using 9 in my problem, as 9 was the higher number that David Merin actually gave the jury, and was also the lower number that he should have given them.
Puckett wasn’t convinced on DNA alone, of course, but was convicted on other evidence far to thin to have ever made him a suspect in the first place, and the L.A. Times story suggests that the jury relied heavily on the 1.1 million to 1 figure. The question is how heavily. Did they interpret the 1.1 million figure to mean that there were indeed 8-9 potential perps, but the odds were 1.1 million to 1 that the actual perp was Puckett rather than one of the other 8-9 (or, applying Merin-math, the other 7-8)? Or did they correctly interpret it to mean simply that there were only 8-9 perps (give or take a few to account for relatives and the standard error), and that based on DNA evidence alone, we haven’t a f’ing clue which, but they found the remaining evidence overwhelming enough to determine beyond a reasonable doubt that the perp was Puckett, and not one of the other 8-9 people they knew nothing about? We don’t know for sure, but here’s a brief summary of that other Really Overwhelming Evidence presented at trial:
- Puckett was on trial for a rape-murder. Puckett was a known serial rapist himself. What are the odds of that?
- Puckett had a clear M.O., which consisted of posing as a cop to gain his victims’ trust, placing a knife or ice pick to their throats, commandeering their cars, telling them he wanted to “make love” to them, raping them, and attempting to befriend them afterward (apologizing to one, and offering to try to help find another a job).
- Diana Sylvester’s killer supposedly matched that M.O. by murdering his victim with a knife, leaving no evidence of forced entry, and telling the sole eyewitness to “Go away! We’re making love!”
- No one could place Puckett in the right neighborhood on the right day, but they did find evidence he was somewhere in the right city (San Francisco) at some point during the right year (1972).
- The original suspect, Robert Baker, was never charged because his fingerprints didn’t match the ones found at the scene of the crime (neither did Puckett’s). He had been placed in the neighborhood and booked for another rape four blocks away, and had harassed a woman and a young girl and followed them to their home a few doors down from Sylvester’s apartment four days after the murder. Cops found a parking ticket in Baker’s van with unexplained blood drops on it, Type O, matching Sylvester’s. But the jury carefully weighed the evidence against Baker against the evidence against Puckett, and concluded that the perp was definitely Puckett, not Bak…. ha, ha, just kidding. Actually, the jury was never told about Baker at all.
Your read may be different, but mine is that none of this “other evidence” is conclusive enough to bridge the gap between “either Puckett did it, or one of those other 8 did” to proof beyond a reasonable doubt that Puckett was the one who did it. The most likely explanation is that the jury (and, in all likelihood, the judge) was just as innumerate as Jeff Barea, and believed that the 1.1 million to 1 figure meant Puckett was more likely to be guilty than the other 8, not equally likely. The second most likely explanation is that they relied on #1, figuring that eight guys pulled at random probably would not be sex offenders, but Puckett was, so it’s more likely that the sex offender in this case was Puckett, as well. That’s a rational inference to make, but an illegal one of questionable validity, as past or subsequent crimes are not generally admissible to prove guilt, nor does “we know nothing about those 8 or 9 others, so probably none are sex offenders” translate into proof beyond reasonable doubt that none of them are.
UPDATE: Daryl and Patterico point me to Section 1108 of the California Evidence Code, which creates a gaping exception for sex crimes, which apparently are admissible to prove guilt in the charged offense unless they violate Section 352. That statute, in turn, merely provides that a judge may (not shall) exclude evidence whose probative value is outweighed by its potential to unduly prejudice or mislead the jury, or to confuse the issues. So apparently, under what passes for due process in California it is not illegal for a jury to reason that the guy committed these other sex offenses, and he’s charged with a sex offense now, so screw it, the bugger must be guilty. [Section 1109 creates a similar exception for domestic violence.] So if someone can provide a coherent explanation for why Puckett’s lawyer should not have been allowed to present evidence that Baker did it rather than Puckett, maybe Puckett received a “fair” (under California’s Kafkaesque definition of “fair”) trial after all.
UPDATE x2: Whoops, make that federal courts, too. Rule 413, to be exact. I want my law school tuition money back.
August 24th, 2008 at 8:26 pm
That’s a rational inference to make, but an illegal one, as past or subsequent crimes are not admissible to prove guilt
Except there can be an exception for some types of sex crimes.
August 24th, 2008 at 9:47 pm
Care to elaborate? My understanding is that past crimes are never admissible to prove guilt for the offense being charged. Of course they sometimes get in under other theories, like the uncommonly silly M.O. theory advanced here (no forced entry –> maybe he impersonated a cop!).
August 25th, 2008 at 3:30 am
California Evidence Code section 1108(a):
In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.
August 25th, 2008 at 5:32 am
I don’t know how the California courts construe Section 1108 but it’s been my view, since the O.J. Simpson trial, that California is outside the curve on the admission of prior bad acts.
August 25th, 2008 at 6:58 am
See my update. Apparently, the California Legislature, a wholly owned subsidiary of NOW, has created two huge exceptions to the prior bad acts exclusion, namely Section 1108 (sex crimes) and 1109 (domestic violence). No fair trial for politically incorrect criminals.
August 25th, 2008 at 8:47 am
In the O.J. case, it was domestic violence. Now I understand how it got in. (Not that it was the only unfair tactic used by the prosecution.)
August 25th, 2008 at 10:31 am
See my last update; apparently there’s a similar exception for sex assaults under the federal rules, too. However, I’d have thought that evidence of O.J.’s past assaults on Nicole in particular would be admissible under more traditional rules, e.g., to prove motive, no?
August 25th, 2008 at 1:47 pm
The way the prosecutors argued it was as a pattern of conduct — abusive behavior which escalated to murder. Motive in a broader sense. “Why did he kill her?” “Because he’s an animal.”
August 26th, 2008 at 4:29 pm
“So apparently, under what passes for due process in California it is not illegal for a jury to reason that the guy committed these other sex offenses, and he’s charged with a sex offense now, so screw it, the bugger must be guilty.”
A bit overdramatic and inaccurate, as is your wont when discussing this issue. Your anarchist/libertarian tendencies are showing.
Apparently, what passes for due process in California is that, in some limited cases, juries are actually told the truth about the defendant’s past crimes. Horrors!!
August 26th, 2008 at 5:49 pm
It required no special rule for the DV evidence to be admitted in the OJ trial. It was a completely straightforwad application of Evid. Code 1101(b). I don’t even know (without looking it up) whether 1109 was around then, but it didn’t need to be for the evidence to be introduced.
August 26th, 2008 at 6:22 pm
If confusing and/or enraging juries with evidence of past offenses amounts to harmlessly “actually telling the truth,” why aren’t you leading the charge to repeal Section 1101(a) outright, and make everything admissible to prove everything else?
August 26th, 2008 at 6:29 pm
Your assumption is misplaced.
August 26th, 2008 at 6:52 pm
Doing away with the rules of evidence altogether is a different discussion. Puckett would have done fine under that scenario, where the priors (posts?) got in, but so did the database, the 1 in 3 figure and, most importantly, Baker. But I don’t hear you complaining nearly as loudly (read: at all) about the fact that the jury wasn’t told about Baker, the database or the 1 in 3 figure, so your point about telling the jury everything is not taken.
August 26th, 2008 at 7:46 pm
I’m sorry. I thought you asked: “why arent you leading the charge to repeal Section 1101(a) outright, and make everything admissible to prove everything else”?
I showed that, to the extent I can, I am.
I also recognize that we’re operating within a system that applies different rules from the ones I might pass if I were Dictator in Chief. My comments on the case deal with our present reality, where jurors weren’t told about a database, most likely at the request of the defense (if every similar trial I’ve ever heard about is any indication).
As for the Other Dude who supposedly Did It, I’d have to read the article again — and possibly know more than is revealed in the article — to form an opinion.
August 26th, 2008 at 8:34 pm
I guess I draw a distinction between getting rid of the rules of evidence completely, on the one hand, and unilaterally getting rid of the ones that help defendants, on the other. The former may be a good or bad idea, but it’s not fundamentally unfair. The latter is.
I agree it would be good to know more about Baker for one’s own edification, but if the goal is to tell the jury everything, shouldn’t he have gotten in, regardless? Maybe the case against him really was as speculative as the judge said it was, but shouldn’t that be up to the jury to decide like everything else?
August 26th, 2008 at 8:40 pm
“I guess I draw a distinction between getting rid of the rules of evidence completely, on the one hand, and unilaterally getting rid of the ones that help defendants, on the other.”
I’m going to invite you to read my post(s) again, and evaluate which of your two alternatives I argued for.
If you should prove to have misstated my position, I’d welcome any revision of your remarks.
August 26th, 2008 at 8:46 pm
Here’s a hint: if you click on the link I provided in this post, there’s another link to the actual proposal, hypoerlinked to the words “this post.” I can tell you didn’t click on it. Please do so now.
In that post, I provided the details of my proposal. In the link I provided in this post, I place the proposal in its full context. I gave the one link here, assuming that you’d read the context, and then click the “this post” link for the full details. I now see my assumption was misguided.
August 26th, 2008 at 9:04 pm
I read both posts the first time. I read them again now, and still can’t for the life of me tell what your point was. Are you or aren’t you advocating getting rid of all the rules of evidence, as opposed to hand-picking the ones that tend to favor the defense?
August 26th, 2008 at 9:20 pm
I have an easy answer: read them again, but slower this time.
If you come back with a sarcastic response, be prepared for a barrage of quotes that will make you look like a moron.
Hint: try looking for the phrase “cuts both ways” — and asking yourself what that could *possibly* mean.
August 26th, 2008 at 9:25 pm
Or, Mr. Careful Reader, you could give us a dissertation on how Ed Rosenthal might have benefitted from a rule system that “unilaterally get[s] rid of [rules] that help defendants.”
Please. Please, stop before I have lost all respect for you.
This time, ACTUALLY READ before you claim to have read. Just a suggestion.
August 26th, 2008 at 9:27 pm
I actually read it both times, I’m not reading it a third. I never said you were advocating unilaterally getting rid of rules that help defendants. I said that that’s what EC 2108 does, which is why I’m having a hard time squaring it with what you advocated in those posts.
August 26th, 2008 at 9:42 pm
Xrlq:
“Are you or arent you advocating getting rid of all the rules of evidence, as opposed to hand-picking the ones that tend to tfavor [sic] the defense?”
Patterico:
If you can’t tell from reading my posts, you need to 1) re-read them, or 2) take a remedial reading comprehension course.
I say again: tell me which one I advocated. I promise: it’s not a hard question.
Come back from the brink.
August 26th, 2008 at 10:07 pm
Clearly, the posts advocate getting rid of all the rules of evidence. What was less clear is whether you were still advocating that now, given that you seemed to be justifying the law admitting Puckett’s priors while simultaneously (I thought, anyway) supporting the judge’s decision not to allow his lawyers to discuss Baker or the database. If your actual position is that all three should have been admitted, I agree. That view is certainly consistent with the two posts; it’s just not what I got the impression you were advocating here.
August 26th, 2008 at 10:11 pm
I interpret as an attack on my fairness your suggestion that I advocate a system that disposes only of rules that benefit the defendant.
That suggestion is a clear distortion of my posts, as any literate, sentient reader can easily discern.
Please acknowledge that. If you won’t, I will prove you wrong with a series of quotes that will cause readers to wonder why you disputed me on this issue.
Time to obey the First Rule of Holes.
August 26th, 2008 at 10:14 pm
That post crossed with your latest.
You’re fuzzing up the issues.
Do you stand by everything you have said in this thread or not?
If not, now is a good time to retract what you never should have said to begin withm
August 26th, 2008 at 10:17 pm
Baker is a separate issue and you have zero evidence that I have ever expressed an opinion on that issue.
August 26th, 2008 at 10:21 pm
I don’t stand by any of what you seem to think I said in this thread. As to what I actually said, I hereby retract the implication that you think it’s OK that Puckett was not allowed to present evidence of Baker or the database. I’m actually quite relieved to have been wrong about that.
August 26th, 2008 at 10:22 pm
I’ll ask again:
“Are you or arent you advocating getting rid of all the rules of evidence, as opposed to hand-picking the ones that tend to tfavor [sic] the defense?
Can you really not tell that from reading my posts?
Is there really a colorable argument that I might have been advocating getting rid of only rules that benefit defendants?
August 26th, 2008 at 10:23 pm
That was a quote, btw. It wasn’t what I “think” you said but what I *said*.
Was what you *said* fair?
August 26th, 2008 at 10:30 pm
It’s what you thought I was saying about your prior posts, when I was actually talking about what you seemed to be saying in this thread, and drawing a contrast to what you were clearly advocating in those posts. Was it accurate? Apparently not. Fair? Based on what I’d heard you say up to that point, yes. But fair or not, I’m glad it it was wrong so why not just leave it at that.
August 26th, 2008 at 10:46 pm
I don’t follow.
I asked a simple question. Xrlq said: gee, I can’t tell whether Patterico meant x or y with his prior posts. x representing something even-handed, and y representing something skewing to the prosecution.
I noted that I clearly said “x” — the even-handed version.
For some reason, you won’t clearlt acknowledge that. So I leave it to the reader to decide — assuming anyone cares by now. Of course, dragging things out in a long back-and-forth comment thread tends to bore the reader and make him not care who is wrong or right. As an experienced blogger, you know that, which is undoubtedly why you have dragged this out. This way, it just seems like a pissing contest, instead of what it really is: you inexcusably distorting my posts and refusing to admit it.
I won’t participate in the charade any longer. Your goal of muddying the waters is accomplished. It’s unthinkable that anyone will have the patience to learn how badly you have distorted my position. This means you win the rhetorical game. Since that evidently means more to you than my respect, I leave you to your victory in the cheap rhetorical game, which you care about, and your loss of my respect for you, which you evidently don’t care about at all.
August 26th, 2008 at 11:11 pm
To sum up my beef concisely for posterity: Xrlq has suggested that I advocated “hand-picking” the elimination of evidentiary rules “that tend to tfavor [sic] the defense” in a criminal case. That would be unfair.
Instead, I quite clearly advocated liberalization of evidentiary rules across the board. That would be fair.
He refuses to clearly acknowledge that his accusation of unfairness has no basis. I don’t like being called unfair. There is zero basis for the accusation.
It would be as if I said I can’t tell whether, in this post, he is advocating the fair treatment of defendants, or the killing of all Jews. I read the post three times and can’t make out whether he’s an advocate of fairness or a murderous anti-Semite. It’s a mystery!
I’ve had it with this sort of nonsense. I’m done.
August 26th, 2008 at 11:22 pm
And yes, I understand that an accusation that I advocate rules that unfairly screw criminal defendants is not equivalent to an accusation that I advocate murdering Jews. Analogies are not equivalents.
I’m arguing that, as a prosecutor, I intensely dislike bullshit accusations that I am out to unfairly screw defendants. I will take such accusations seriously, and will write off people who level them irresponsibly and refuse to clearly withdraw them.
August 27th, 2008 at 7:17 am
I said no such thing. I’ve been clear all along on the point that both of the prior posts represented even-handed reforms. Go back and read your own posts, and the comments, and you’ll see that I saw both posts when they were new, and commented on both at the time. If I had interpreted either as advocating anything less than fairness to one party or the other, I’d have said so at the time.
This discussion wasn’t about your prior posts, though, nor was it about the merits of abolishing the Evidence Code completely. It was about two specific changes to the Evidence Code, Sections 1108 and 1109, both of which do indeed hand-pick for (partial) elimination two instances of one evidentiary rule that tends to favor the defense. Precisely the combination you now acknowledge to be unfair. But far from decrying them as unfair initially, you entered the conversation by mocking me for objecting to them at all:
Then, when I called you on it, you referred me back to two posts which advocated a comprehensive reform that is nothing like Section 1108 or 1109. To which I responded you can’t have it both ways. You can either advocate an evenhanded approach to allowing more evidence, as you did in the earlier posts, or you can argue that the current rules are too unfair in favor of the defense, in which case unilateral changes that help the prosecution only maybe justifiable (in which case the logical conclusion would be advocate getting rid of 1101(a)). But you can’t point back to posts calling for evenhanded reforms to justify the anything-but-evenhanded “reforms” that are Sections 1108 and 1109, unless your position is that every baby step along the way to total abolition of the Evidence Code is a good one, even if that particular baby step has the effect of unilaterally benefiting one party at the expense of the other. And if that’s your position, I cannot agree. Abolishing the Evidence Code may be a good or bad idea, but it should be a package deal.
I asked before, and I ask again. Are you or aren’t you advocating getting rid of all the rules of evidence (as you did in the two prior posts), as opposed to hand-picking the ones that tend to favor the defense (as the California Legislature did in enacting Sections 1108 and 1109)? That’s a fair question, and one you have yet to answer.
Which would be a reasonable reaction, had I leveled such accusations in the first place. I didn’t, so there’s nothing to withdraw, just a misunderstanding to clarify.
If you must bring up Hitler, at least get the analogy right. Suppose we were discussing a new Massachusetts law allowing the death penalty for first-degree murderers with special circumstances, but only if such murderers happen to be Jewish. Someone is sentenced under it, I attack the obvious racism of the law, and someone else (I won’t stoop to calling him you) joins in to say it’s just peachy that the bastard is getting his due. He then justifies his position by pointing back to two articles he had written in the past, both of which argue in favor of the death penalty generally. So I respond by asking whether he favors the death penalty generally (as he had advocated in the past) or whether he favors a death penalty just for Jews (which, I might remind you is not the law he had advocated in the past, but is the issue at hand). And then he gets pissy over me even asking that question, how dare I imply he is anti-Semitic, blah blah blah, when the whole misunderstanding could have been avoided simply by him stating upfront that he didn’t like the racist aspect of the new law, but did think it nevertheless produced the right result in this particular case.
August 27th, 2008 at 11:04 am
Xrlq in18:
“I read both posts the first time. I read them again now, and still cant for the life of me tell what your point was. Are you or arent you advocating getting rid of all the rules of evidence, as opposed to hand-picking the ones that tend to favor the defense?”
Since then, you’ve wished that comment out of existence. Three times you have denied that you expressed any confusion regarding what my posts meant. For example, your latest comment:
” Ive been clear all along on the point that both of the prior posts represented even-handed reforms.”
No, you haven’t. Read your comment 18 again:
“I read both posts the first time. I read them again now, and still cant for the life of me tell what your point was. Are you or arent you advocating getting rid of all the rules of evidence, as opposed to hand-picking the ones that tend to favor the defense?”
I could respect it if you said: “Yes, my comment 18 was wrong. Your prior posts were clear. Now my question is: do you feel that way as to Baker?” But you didn’t say that. Instead, you keep pretending like you never expressed any confusion over what my posts said. Yet you certainly seemed to when you said:
“”I read both posts the first time. I read them again now, and still cant for the life of me tell what your point was. Are you or arent you advocating getting rid of all the rules of evidence, as opposed to hand-picking the ones that tend to favor the defense?”
There’s other untruths in your latest comment, like your baseless insinuation that I havw acknowledged 1108 and 1109 are unfair. I have done no such thing.
But I don’t feel like explaining why, because I don’t like arguing with people who say something, and then look you in the eye and deny they said it. You were clear in comment 18 that you couldn’t tell whether my prior posts advocated an even-handed change. Since then, you have pretended you never expressed that confusion. Why should I debate further with someone who won’t even admit what he said in the same comment thread?
August 27th, 2008 at 11:58 am
I’m not denying what I said. I’m denying your gross misinterpretation of what I said, which was not the point I was making in Comment 18, and is in fact inconsistent with it. When I said:
What I meant was:
Misunderstanding Comment 18 when you originally read it is understandable; these things happen. What is not at all understandable is stubbornly clinging to your misunderstanding after it has been pointed out to you that it was in fact a misunderstanding on your part, particularly given that your error was pointed out not just once, but in every goddamned comment that followed.
No, I wasn’t. You made that up. I’ve been clear all along that your prior posts advocated an even-handed change. What was (and remains) unclear is why you think past essays on evenhanded change somehow justify Sections 1108 and 1109, which weren’t evenhanded at all. If there had been any doubt about whether the past essays advocated evenhanded change, there would have been nothing odd or unusual about your defense of 1108 and 1109 now, and the whole point of Comment 18 would not exist.
I “pretended” nothing. I made a point, you misunderstood it to mean something that I not only did not intend, but which is in fact inconsistent with the point I was trying to make. I corrected your misunderstanding, five times now (or six, counting this one) and you didn’t want to hear it. Instead, you copied and pasted the comment itself several times, as if copying and pasting someone else’s words can cause them to mean what you originally interpreted them to mean, as opposed to meaning what the person who said them actually … um … meant.
Because it never was about me admitting or not admitting to anything. It’s my blog, so if I were trying to hide anything it would be easy enough to delete Comment 18, or modify it to cover my tracks. So to accuse me of pretending I didn’t say it is just silly.
Bottom line: I made a comment, which raised a legitimate point you have yet to address. You completely misunderstood that comment to mean something completely different, which not only wasn’t my point but conflicted with it. Since then, your error has been pointed out to you five (or now six) times. So, you can either take my word that Comment 18 was meant to express A, or you can cling to your once understandable, but now totally irrational belief that it expressed B. To the extent Comment #18 actually means what you think it means, and not what I thought I was expressing when I wrote it, I hereby retract Comment #18. Happy?
Again, you lost me. Please cite the specific portion of my comment in which I insinuated that you think Sections 1108 and 1109 are unfair. I’ve been very consisting in arguing that I consider these sections unfair, and also inconsistent with the evenhanded reforms you have advocated in the past, but cannot for the life of me figure out where I supposed said you thought these provisions were unfair.
August 27th, 2008 at 12:07 pm
Hi, guys. No, I know you two are good friends and I am not getting in the middle of this.
My personal preference is for the judge to protect the jury and to use his discretion to allow in only what he, himself, would consider were it a bench trial. (The O.J. case is a cautionary tale of what happens when the judge lets in everything. Eighteen hours of watching O.J.’s aerobics video raw footage just to cross one defense doctor on the range of motion of O.J.’s arms, for crying out loud! And don’t get me started on car detailers, barking dogs and saying bad things about the judge’s wife.)
I have a defense bias, so I disagree with Illinois’s rape shield law which has been construed to keep out evidence that the victim was a prostitute.
I also disagree (have appealed and lost) the Illinois rule that any felony can be used for impeachment regardless of whether it involves untruthfulness or fraud. It seems to me, among other things, that it contradicts the law in another area, namely that somebody who has served his sentence for murder or for tax evasion can be admitted or re-admitted to the practice of law. It is also devastating if it involves the same class of crime your client is charged with. Unlike the rape shield law, it is within the court’s discretion, however.
On the question of the admission of past domestic violence: My office defended a “Burning Bed” case. The lady got tired of being a punching bag and put a revolver in her apron pocket. She was charged with murder. There was a question of whether it was self-defense or mistaken self-defense. The jury found mistaken self-defense, voluntary manslaughter, which is probationable, based on the history of domestic violence. FWIW.
August 27th, 2008 at 3:35 pm
This is all a good example of why I don’t enjoy discussing this case with you. You remain convinced that your comment couldn’t reasonably be read the way I read it, and that when you subsequently denied having *made* the accusation, I should have understood you meant to deny that you *meant it* as an accusation.
We simply can’t communicate when discussing this case. Each of us spends all our time explaining that we didn’t intend to argue what the other person thinks.
As to comment 18, you’re obviously convinced the misunderstanding is 100 percent my fault, that your comment was written with crystalline clarity, and that any interpretive failing is mine alone. If there was any misunderstanding, it should have been cleared up when you clarified what you really meant.
I’m equally convinced that your comment said what it said, and was *at best* ambiguous. When I took offense at what I consider to be a plain reading, rather than saying: “I can see how you took it that way, but I didn’t mean that” you instead said: “Nonsense! I ever *said* any such thing!!”
Either way, the argument resembles that of an old married couple. We can’t communicate about this case — for whatever reason — and should stop trying.
August 27th, 2008 at 3:44 pm
“Since then, your error has been pointed out to you five (or now six) times.”
No. You’re such a dick. You can’t even acknowledge the possibility that *you* wrote a crappy comment. You just explained what you meant in an understandable way for the first time. Before that, you didn’t appear to be pointing out an error. You simply appeared to be saying something completely inconsistent with what you’d previously said.
I now understand, for the first time, what you meant. It would now be irrational for me to continue to maintain that you *meant* to make an accusation. But it’s not irrational to point out that your comment was most reasonably read as one.
August 27th, 2008 at 3:59 pm
nk,
You have a valid point about trials spiraling out of control, and there is that potential. My main point is that most of the stuff hidden from juries is hidden to protect the defendant. If I could tell juries the defendant’s full record, what his punishment should be and why, etc., I’d put up with admission of some otherwise inadmissible defense-oriented nonsense.
Here in California we have the rule that you say you seek in Illinois: only felonies of moral turpitude are impeachable.
But note two things:
1) 1108 and 1109 aren’t unilateral. They actually level the playing field, since all prosecution witnesses have to disclose their own past crimes of moral turpitude.
2) The fact that a defendant was convicted of the conduct is not admissible — unless the defense wants it to be. Some jurors might consider that important; by keeping the database evidence out, you may also be keeping out any suggestion that the defendant was convicted of the past crimes (if he doesn’t testify).
There is a difference between the rules as they exist and the rules one might choose if one had absolute power. The fact that one might select a different set of rules than exist doesn’t suggest that a trial has been unfair under existing rules.
August 27th, 2008 at 4:26 pm
No, I don’t blame you for misinterpreting Comment 18. Like I said in the last comment, these things happen. What I do blame you for - completely - is how badly you handled the matter after the misunderstanding was pointed out to you, first in the form of other comments consistent with one reading but not the other (which was the best I could do at the time since I wasn’t entirely clear on what you were getting at, either), and then in the form of me vociferously denying having said crazy stuff I had not, in fact, said (but you had mistakenly assumed I meant, which I guess was close enough), and finally in Comment 30, where I said:
I can see why someone might read Comment 18 in a vacuum, and mistakenly interpret it to mean that the two older posts advocated reforms to the Evidence Code that unilaterally favor the prosecution. I cannot see how any reasonable reader could continue in that mistaken interpretion after reading Comment 30.
August 27th, 2008 at 4:49 pm
Comment 30 made no sense to me.
August 27th, 2008 at 4:53 pm
But I know, I know, that’s my fault too.
Whatever. I don’t care. We can’t communicate on this case and that’s that. OK?
August 28th, 2008 at 11:01 pm
If I may wax philosophical …
Were I allowed only one attribute for Due Process I would pick predictability. What do I need to know to conform my conduct to the requirements of the law? What should I be prepared to face in court were I ever accused?
Volumes can be written about fairness and balance — about the relative powers, rights and privileges of the government and the defendant. I take the view of the sailor: The sea [substitute "government"] is what she is. Adapt to her or perish.
August 31st, 2008 at 9:29 pm
Not too dumb to get an awesome shoutout!!!!
Score me.
“Poke A Bear’
October 13th, 2008 at 4:30 pm
[...] - bookmarked by 2 members originally found by LadyBirdalpha1 on 2008-09-30 Answer to Thursday’s Poll http://xrlq.com/2008/08/24/answer-to-thursdays-poll/ - bookmarked by 2 members originally found by [...]
November 16th, 2008 at 11:20 pm
To be clear and fair, while Jeff Barea IS clueless AND a dick, his inability to answer this question correctly is probably due more to his mental illness and substance abuse.