In People v. Davis, (12/30/09), the Fourth Department held that reversal was not required where a sitting Supreme Court justice sat as foreperson of the grand jury that indicted the defendant because she was not a part of the superior court that impaneled the grand jury.
Defendant argued that a grand jury is impaneled by a superior court and constitutes a part of such court (CPL 190.05), and that as such, every supreme court justice is "a part of" every grand jury impaneled throughout the state (CPL 190.05) and thus, not qualified to serve as a grand juror. Denying defendant relief, the Fourth Department reasoned that "a superior court is defined as '[t]he supreme court' or '[a] county court,' rather than as a single entity comprised of individual justices or judges (CPL 10.10 [2])."
The court also rejected defendant's challenged to the constitutionality of Legislature's action repealing Judiciary Law 511(4) (which had disqualified judges from sitting on juries).
Although ultimately unsuccessful, a fine bit of creative appellate advocacy by long-time creative appellate advocate Esther Cohen Lee of Utica.
Friday, January 1, 2010
Permissible for sitting Supreme Court justice to serve as grand jury foreperson
In People v. Davis, (12/30/09), the Fourth Department held that reversal was not required where a sitting Supreme Court justice sat as foreperson of the grand jury that indicted the defendant because she was not a part of the superior court that impaneled the grand jury.
Defendant argued that a grand jury is impaneled by a superior court and constitutes a part of such court (CPL 190.05), and that as such, every supreme court justice is "a part of" every grand jury impaneled throughout the state (CPL 190.05) and thus, not qualified to serve as a grand juror. Denying defendant relief, the Fourth Department reasoned that "a superior court is defined as '[t]he supreme court' or '[a] county court,' rather than as a single entity comprised of individual justices or judges (CPL 10.10 [2])."
The court also rejected defendant's challenged to the constitutionality of Legislature's action repealing Judiciary Law 511(4) (which had disqualified judges from sitting on juries).
Although ultimately unsuccessful, a fine bit of creative appellate advocacy by long-time creative appellate advocate Esther Cohen Lee of Utica.
Defendant argued that a grand jury is impaneled by a superior court and constitutes a part of such court (CPL 190.05), and that as such, every supreme court justice is "a part of" every grand jury impaneled throughout the state (CPL 190.05) and thus, not qualified to serve as a grand juror. Denying defendant relief, the Fourth Department reasoned that "a superior court is defined as '[t]he supreme court' or '[a] county court,' rather than as a single entity comprised of individual justices or judges (CPL 10.10 [2])."
The court also rejected defendant's challenged to the constitutionality of Legislature's action repealing Judiciary Law 511(4) (which had disqualified judges from sitting on juries).
Although ultimately unsuccessful, a fine bit of creative appellate advocacy by long-time creative appellate advocate Esther Cohen Lee of Utica.
In People v. Hammons (12/30/09) the Fourth Department held that the trial court "did not abuse its discretion in refusing to give an adverse inference charge concerning the failure of the police to record defendant's interrogation. It is well settled that the police have no obligation to record an interrogation (see People v Childres, 60 AD3d 1278, 1279, lv denied 12 NY3d 913), and that the failure to record a defendant's interrogation electronically does not constitute a denial of due process (see People v Lomack, 63 AD3d 1658, lv denied 13 NY3d 798; People v Malave, 52 AD3d 1313, 1315, lv denied 11 NY3d 790)."
Unless read carefully, the court's reasoning could be misleading. Neither police violation of an established obligation nor a denial of due process are prerequisites for a proper adverse inference charge - those criteria apply to the abuse of discretion standard applicable to the appellate court's consideration of the lower court's refusal to give such an instruction; i.e., if the police refusal to record defendant's interrogation violated defendant's due process rights, it would have been an abuse of discretion for the trial court to refuse to give an adverse inference instruction.
This analysis means a couple things: (1) the Appellate Division won't be doing anything to advance the recording of interrogations or confessions, and (2) application of the abuse of discretion standard facilitates an overly deferential approach to law enforcement procedures by insuring that juries will never be instructed that they may draw an adverse inference from the police election to deprive the fact finder of what would have constituted the best evidence of the circumstances and content of defendant's interrogation and confession.
Keep in mind that with or without an adverse inference instruction, a defendant can still comment on the police election not to record a defendant's interrogation and confession (see, People v. Harrison, 35 A.D.3d 52 [1st Dept. 2006] lv. denied 8 N.Y.3d 923 [2007]; People v. Wright, 41 N.Y.2d 172 [1976]).
Some further resources on this issue include:
● Police Experiences with Recording Custodial Interrogations, Thomas P. Sullivan, Northwestern University School of Law (Summer 2004).
● Practices of U.S. police departments regarding recording interrogations, Sullivan and Thomas (2003).
● Eye on Interrogations: How Videotaping Serves the Cause of Justice, Hennepin County Attorney website (2002).
● Report of the Governor’s Commission on Capital Punishment (Illinois, 2002).
● True Confessions, Margaret Talbot, http://www.truthinjustice.org/confessions.htm (2004).
● Statement of the District of Columbia Association of Criminal Defense Lawyers in Support of Bill 14-3 “The Miranda Codification Act of 2001”
There can be no legitimate reason not to record interrogations and confessions, nor have police or prosecutors ever suggested one. As Professor Yale Kamisar asks “Why should we assume that the police remember everything that happened?” (Illinois Will Require Taping of Homicide Investigations, New York Times, 7/16/03). In Illinois, Kankakee County State’s Attorney Edward Smith finds that a courtroom videotape is helpful given the popularity of home video cameras: “We feel that a common question in a juror’s mind might be: Why didn’t they tape it, if it’s so important?” (Cops Urged to Tape Their Interrogations, Chicago Tribune, 5/30/03).
The inescapable conclusion that flows from the refusal to record interrogations and confessions is that the interrogators have intentionally elected to deprive the fact-finder of the best evidence – a contemporaneous, verbatim recording of the suspect’s statements – in favor of a “sum and substance,” “I can’t recall” malleable recollection of events, impaired by imperfect memories and subject to the interrogators’ prism of prosecutorial bias. In short, some cops continue to refuse to resist recording interrogations because it eliminates the opportunity to lie later on about what took place during the interrogation, and what the defendant said in his confession. Slowly, courts and legislatures are beginning to agree.
The Massachusetts Supreme Court has ruled that when “interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation, that fact alone justifies skepticism of the officers’ version of events, above and beyond the customary bases for impeachment of such testimony,” and ruled that juries must be so instructed by trial courts (Commonwealth v. DiGiambattista, 442 Mass. 423 [2004] [emphasis added]).
This level of professionalism and accuracy – rather than the “sum and substance” guesstimation that occurs in the absence of recording – is easily attainable, and should be, and is becoming, the expected, rather than the resisted standard by courts, legislatures, police agencies, and, perhaps most importantly, by juries. Evidence in a murder case is at least as important, and merits commemoration with at least the same level of accuracy and reliability as we routinely use to preserve our children's Christmas pageants and birthday parties.
Unless read carefully, the court's reasoning could be misleading. Neither police violation of an established obligation nor a denial of due process are prerequisites for a proper adverse inference charge - those criteria apply to the abuse of discretion standard applicable to the appellate court's consideration of the lower court's refusal to give such an instruction; i.e., if the police refusal to record defendant's interrogation violated defendant's due process rights, it would have been an abuse of discretion for the trial court to refuse to give an adverse inference instruction.
This analysis means a couple things: (1) the Appellate Division won't be doing anything to advance the recording of interrogations or confessions, and (2) application of the abuse of discretion standard facilitates an overly deferential approach to law enforcement procedures by insuring that juries will never be instructed that they may draw an adverse inference from the police election to deprive the fact finder of what would have constituted the best evidence of the circumstances and content of defendant's interrogation and confession.
Keep in mind that with or without an adverse inference instruction, a defendant can still comment on the police election not to record a defendant's interrogation and confession (see, People v. Harrison, 35 A.D.3d 52 [1st Dept. 2006] lv. denied 8 N.Y.3d 923 [2007]; People v. Wright, 41 N.Y.2d 172 [1976]).
Some further resources on this issue include:
● Police Experiences with Recording Custodial Interrogations, Thomas P. Sullivan, Northwestern University School of Law (Summer 2004).
● Practices of U.S. police departments regarding recording interrogations, Sullivan and Thomas (2003).
● Eye on Interrogations: How Videotaping Serves the Cause of Justice, Hennepin County Attorney website (2002).
● Report of the Governor’s Commission on Capital Punishment (Illinois, 2002).
● True Confessions, Margaret Talbot, http://www.truthinjustice.org/confessions.htm (2004).
● Statement of the District of Columbia Association of Criminal Defense Lawyers in Support of Bill 14-3 “The Miranda Codification Act of 2001”
There can be no legitimate reason not to record interrogations and confessions, nor have police or prosecutors ever suggested one. As Professor Yale Kamisar asks “Why should we assume that the police remember everything that happened?” (Illinois Will Require Taping of Homicide Investigations, New York Times, 7/16/03). In Illinois, Kankakee County State’s Attorney Edward Smith finds that a courtroom videotape is helpful given the popularity of home video cameras: “We feel that a common question in a juror’s mind might be: Why didn’t they tape it, if it’s so important?” (Cops Urged to Tape Their Interrogations, Chicago Tribune, 5/30/03).
The inescapable conclusion that flows from the refusal to record interrogations and confessions is that the interrogators have intentionally elected to deprive the fact-finder of the best evidence – a contemporaneous, verbatim recording of the suspect’s statements – in favor of a “sum and substance,” “I can’t recall” malleable recollection of events, impaired by imperfect memories and subject to the interrogators’ prism of prosecutorial bias. In short, some cops continue to refuse to resist recording interrogations because it eliminates the opportunity to lie later on about what took place during the interrogation, and what the defendant said in his confession. Slowly, courts and legislatures are beginning to agree.
The Massachusetts Supreme Court has ruled that when “interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation, that fact alone justifies skepticism of the officers’ version of events, above and beyond the customary bases for impeachment of such testimony,” and ruled that juries must be so instructed by trial courts (Commonwealth v. DiGiambattista, 442 Mass. 423 [2004] [emphasis added]).
This level of professionalism and accuracy – rather than the “sum and substance” guesstimation that occurs in the absence of recording – is easily attainable, and should be, and is becoming, the expected, rather than the resisted standard by courts, legislatures, police agencies, and, perhaps most importantly, by juries. Evidence in a murder case is at least as important, and merits commemoration with at least the same level of accuracy and reliability as we routinely use to preserve our children's Christmas pageants and birthday parties.
In People v. Hammons (12/30/09) the Fourth Department held that the trial court "did not abuse its discretion in refusing to give an adverse inference charge concerning the failure of the police to record defendant's interrogation. It is well settled that the police have no obligation to record an interrogation (see People v Childres, 60 AD3d 1278, 1279, lv denied 12 NY3d 913), and that the failure to record a defendant's interrogation electronically does not constitute a denial of due process (see People v Lomack, 63 AD3d 1658, lv denied 13 NY3d 798; People v Malave, 52 AD3d 1313, 1315, lv denied 11 NY3d 790)."
Unless read carefully, the court's reasoning could be misleading. Neither police violation of an established obligation nor a denial of due process are prerequisites for a proper adverse inference charge - those criteria apply to the abuse of discretion standard applicable to the appellate court's consideration of the lower court's refusal to give such an instruction; i.e., if the police refusal to record defendant's interrogation violated defendant's due process rights, it would have been an abuse of discretion for the trial court to refuse to give an adverse inference instruction.
This analysis means a couple things: (1) the Appellate Division won't be doing anything to advance the recording of interrogations or confessions, and (2) application of the abuse of discretion standard facilitates an overly deferential approach to law enforcement procedures by insuring that juries will never be instructed that they may draw an adverse inference from the police election to deprive the fact finder of what would have constituted the best evidence of the circumstances and content of defendant's interrogation and confession.
Keep in mind that with or without an adverse inference instruction, a defendant can still comment on the police election not to record a defendant's interrogation and confession (see, People v. Harrison, 35 A.D.3d 52 [1st Dept. 2006] lv. denied 8 N.Y.3d 923 [2007]; People v. Wright, 41 N.Y.2d 172 [1976]).
Some further resources on this issue include:
● Police Experiences with Recording Custodial Interrogations, Thomas P. Sullivan, Northwestern University School of Law (Summer 2004).
● Practices of U.S. police departments regarding recording interrogations, Sullivan and Thomas (2003).
● Eye on Interrogations: How Videotaping Serves the Cause of Justice, Hennepin County Attorney website (2002).
● Report of the Governor’s Commission on Capital Punishment (Illinois, 2002).
● True Confessions, Margaret Talbot, http://www.truthinjustice.org/confessions.htm (2004).
● Statement of the District of Columbia Association of Criminal Defense Lawyers in Support of Bill 14-3 “The Miranda Codification Act of 2001”
There can be no legitimate reason not to record interrogations and confessions, nor have police or prosecutors ever suggested one. As Professor Yale Kamisar asks “Why should we assume that the police remember everything that happened?” (Illinois Will Require Taping of Homicide Investigations, New York Times, 7/16/03). In Illinois, Kankakee County State’s Attorney Edward Smith finds that a courtroom videotape is helpful given the popularity of home video cameras: “We feel that a common question in a juror’s mind might be: Why didn’t they tape it, if it’s so important?” (Cops Urged to Tape Their Interrogations, Chicago Tribune, 5/30/03).
The inescapable conclusion that flows from the refusal to record interrogations and confessions is that the interrogators have intentionally elected to deprive the fact-finder of the best evidence – a contemporaneous, verbatim recording of the suspect’s statements – in favor of a “sum and substance,” “I can’t recall” malleable recollection of events, impaired by imperfect memories and subject to the interrogators’ prism of prosecutorial bias. In short, some cops continue to refuse to resist recording interrogations because it eliminates the opportunity to lie later on about what took place during the interrogation, and what the defendant said in his confession. Slowly, courts and legislatures are beginning to agree.
The Massachusetts Supreme Court has ruled that when “interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation, that fact alone justifies skepticism of the officers’ version of events, above and beyond the customary bases for impeachment of such testimony,” and ruled that juries must be so instructed by trial courts (Commonwealth v. DiGiambattista, 442 Mass. 423 [2004] [emphasis added]).
This level of professionalism and accuracy – rather than the “sum and substance” guesstimation that occurs in the absence of recording – is easily attainable, and should be, and is becoming, the expected, rather than the resisted standard by courts, legislatures, police agencies, and, perhaps most importantly, by juries. Evidence in a murder case is at least as important, and merits commemoration with at least the same level of accuracy and reliability as we routinely use to preserve our children's Christmas pageants and birthday parties.
Unless read carefully, the court's reasoning could be misleading. Neither police violation of an established obligation nor a denial of due process are prerequisites for a proper adverse inference charge - those criteria apply to the abuse of discretion standard applicable to the appellate court's consideration of the lower court's refusal to give such an instruction; i.e., if the police refusal to record defendant's interrogation violated defendant's due process rights, it would have been an abuse of discretion for the trial court to refuse to give an adverse inference instruction.
This analysis means a couple things: (1) the Appellate Division won't be doing anything to advance the recording of interrogations or confessions, and (2) application of the abuse of discretion standard facilitates an overly deferential approach to law enforcement procedures by insuring that juries will never be instructed that they may draw an adverse inference from the police election to deprive the fact finder of what would have constituted the best evidence of the circumstances and content of defendant's interrogation and confession.
Keep in mind that with or without an adverse inference instruction, a defendant can still comment on the police election not to record a defendant's interrogation and confession (see, People v. Harrison, 35 A.D.3d 52 [1st Dept. 2006] lv. denied 8 N.Y.3d 923 [2007]; People v. Wright, 41 N.Y.2d 172 [1976]).
Some further resources on this issue include:
● Police Experiences with Recording Custodial Interrogations, Thomas P. Sullivan, Northwestern University School of Law (Summer 2004).
● Practices of U.S. police departments regarding recording interrogations, Sullivan and Thomas (2003).
● Eye on Interrogations: How Videotaping Serves the Cause of Justice, Hennepin County Attorney website (2002).
● Report of the Governor’s Commission on Capital Punishment (Illinois, 2002).
● True Confessions, Margaret Talbot, http://www.truthinjustice.org/confessions.htm (2004).
● Statement of the District of Columbia Association of Criminal Defense Lawyers in Support of Bill 14-3 “The Miranda Codification Act of 2001”
There can be no legitimate reason not to record interrogations and confessions, nor have police or prosecutors ever suggested one. As Professor Yale Kamisar asks “Why should we assume that the police remember everything that happened?” (Illinois Will Require Taping of Homicide Investigations, New York Times, 7/16/03). In Illinois, Kankakee County State’s Attorney Edward Smith finds that a courtroom videotape is helpful given the popularity of home video cameras: “We feel that a common question in a juror’s mind might be: Why didn’t they tape it, if it’s so important?” (Cops Urged to Tape Their Interrogations, Chicago Tribune, 5/30/03).
The inescapable conclusion that flows from the refusal to record interrogations and confessions is that the interrogators have intentionally elected to deprive the fact-finder of the best evidence – a contemporaneous, verbatim recording of the suspect’s statements – in favor of a “sum and substance,” “I can’t recall” malleable recollection of events, impaired by imperfect memories and subject to the interrogators’ prism of prosecutorial bias. In short, some cops continue to refuse to resist recording interrogations because it eliminates the opportunity to lie later on about what took place during the interrogation, and what the defendant said in his confession. Slowly, courts and legislatures are beginning to agree.
The Massachusetts Supreme Court has ruled that when “interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation, that fact alone justifies skepticism of the officers’ version of events, above and beyond the customary bases for impeachment of such testimony,” and ruled that juries must be so instructed by trial courts (Commonwealth v. DiGiambattista, 442 Mass. 423 [2004] [emphasis added]).
This level of professionalism and accuracy – rather than the “sum and substance” guesstimation that occurs in the absence of recording – is easily attainable, and should be, and is becoming, the expected, rather than the resisted standard by courts, legislatures, police agencies, and, perhaps most importantly, by juries. Evidence in a murder case is at least as important, and merits commemoration with at least the same level of accuracy and reliability as we routinely use to preserve our children's Christmas pageants and birthday parties.
The recent packet of Fourth Department decisions (12/30/09) includes a number of appeals arguing (unsuccessfully, in every case but one) that the defendant's conviction was not supported by the weight of credible evidence, giving the court an opportunity to restate the applicable standard for review of such claims.
In People v. Goff, the only case where defendant obtained relief on a weight of credible evidence claim this time around (likely because the testimony of the complainant's mother proved that defendant could not have committed the offense when the complainant claimed he did), although the defendant failed to preserve his claim that the evidence was legally insufficient to support the convictions under two counts of the indictment, the court reversed, reasoning that:
"[v]iewing the evidence in light of the elements of those counts as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we agree with defendant, however, that the verdict with respect to both of those counts is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495), and we therefore modify the judgment accordingly. Where, as here, a different finding from that of the jury would not have been unreasonable, we must 'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from that testimony' and, if we conclude that the trier of fact failed to give the evidence the weight it should be accorded, we may set aside the verdict (id.)."
The court provided another iteration of the same standard in People v. Kalen: "Although an acquittal . . . 'would not have been unreasonable, upon weighing the probative value and force of the conflicting testimony and the inferences to be drawn therefrom,' we cannot conclude that the jury failed to give the evidence the weight it should be accorded (People v Kuykendall, 43 AD3d 493, 495, lv denied 9 NY3d 1007; see generally Bleakley, 69 NY2d at 495) . . . We accord great deference to the jury's credibility determinations, 'which obviously reflect[] at least [the jury's] uncertainty concerning much of the complainant[s'] testimony [with respect to] the . . . crimes of which defendant was acquitted. However, the jury was entitled to credit some of [their] testimony while discounting other aspects' (Kuykendall, 43 AD3d at 495; see People v Reed, 40 NY2d 204, 208)."
In People v. Goff, the only case where defendant obtained relief on a weight of credible evidence claim this time around (likely because the testimony of the complainant's mother proved that defendant could not have committed the offense when the complainant claimed he did), although the defendant failed to preserve his claim that the evidence was legally insufficient to support the convictions under two counts of the indictment, the court reversed, reasoning that:
"[v]iewing the evidence in light of the elements of those counts as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we agree with defendant, however, that the verdict with respect to both of those counts is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495), and we therefore modify the judgment accordingly. Where, as here, a different finding from that of the jury would not have been unreasonable, we must 'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from that testimony' and, if we conclude that the trier of fact failed to give the evidence the weight it should be accorded, we may set aside the verdict (id.)."
The court provided another iteration of the same standard in People v. Kalen: "Although an acquittal . . . 'would not have been unreasonable, upon weighing the probative value and force of the conflicting testimony and the inferences to be drawn therefrom,' we cannot conclude that the jury failed to give the evidence the weight it should be accorded (People v Kuykendall, 43 AD3d 493, 495, lv denied 9 NY3d 1007; see generally Bleakley, 69 NY2d at 495) . . . We accord great deference to the jury's credibility determinations, 'which obviously reflect[] at least [the jury's] uncertainty concerning much of the complainant[s'] testimony [with respect to] the . . . crimes of which defendant was acquitted. However, the jury was entitled to credit some of [their] testimony while discounting other aspects' (Kuykendall, 43 AD3d at 495; see People v Reed, 40 NY2d 204, 208)."
The recent packet of Fourth Department decisions (12/30/09) includes a number of appeals arguing (unsuccessfully, in every case but one) that the defendant's conviction was not supported by the weight of credible evidence, giving the court an opportunity to restate the applicable standard for review of such claims.
In People v. Goff, the only case where defendant obtained relief on a weight of credible evidence claim this time around (likely because the testimony of the complainant's mother proved that defendant could not have committed the offense when the complainant claimed he did), although the defendant failed to preserve his claim that the evidence was legally insufficient to support the convictions under two counts of the indictment, the court reversed, reasoning that:
"[v]iewing the evidence in light of the elements of those counts as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we agree with defendant, however, that the verdict with respect to both of those counts is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495), and we therefore modify the judgment accordingly. Where, as here, a different finding from that of the jury would not have been unreasonable, we must 'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from that testimony' and, if we conclude that the trier of fact failed to give the evidence the weight it should be accorded, we may set aside the verdict (id.)."
The court provided another iteration of the same standard in People v. Kalen: "Although an acquittal . . . 'would not have been unreasonable, upon weighing the probative value and force of the conflicting testimony and the inferences to be drawn therefrom,' we cannot conclude that the jury failed to give the evidence the weight it should be accorded (People v Kuykendall, 43 AD3d 493, 495, lv denied 9 NY3d 1007; see generally Bleakley, 69 NY2d at 495) . . . We accord great deference to the jury's credibility determinations, 'which obviously reflect[] at least [the jury's] uncertainty concerning much of the complainant[s'] testimony [with respect to] the . . . crimes of which defendant was acquitted. However, the jury was entitled to credit some of [their] testimony while discounting other aspects' (Kuykendall, 43 AD3d at 495; see People v Reed, 40 NY2d 204, 208)."
In People v. Goff, the only case where defendant obtained relief on a weight of credible evidence claim this time around (likely because the testimony of the complainant's mother proved that defendant could not have committed the offense when the complainant claimed he did), although the defendant failed to preserve his claim that the evidence was legally insufficient to support the convictions under two counts of the indictment, the court reversed, reasoning that:
"[v]iewing the evidence in light of the elements of those counts as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we agree with defendant, however, that the verdict with respect to both of those counts is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495), and we therefore modify the judgment accordingly. Where, as here, a different finding from that of the jury would not have been unreasonable, we must 'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from that testimony' and, if we conclude that the trier of fact failed to give the evidence the weight it should be accorded, we may set aside the verdict (id.)."
The court provided another iteration of the same standard in People v. Kalen: "Although an acquittal . . . 'would not have been unreasonable, upon weighing the probative value and force of the conflicting testimony and the inferences to be drawn therefrom,' we cannot conclude that the jury failed to give the evidence the weight it should be accorded (People v Kuykendall, 43 AD3d 493, 495, lv denied 9 NY3d 1007; see generally Bleakley, 69 NY2d at 495) . . . We accord great deference to the jury's credibility determinations, 'which obviously reflect[] at least [the jury's] uncertainty concerning much of the complainant[s'] testimony [with respect to] the . . . crimes of which defendant was acquitted. However, the jury was entitled to credit some of [their] testimony while discounting other aspects' (Kuykendall, 43 AD3d at 495; see People v Reed, 40 NY2d 204, 208)."
Sunday, December 20, 2009
Melendez-Diaz revisited, in a hurry
The Supreme Court will hear argument in Briscoe v. Virginia on January 11, 2010, a case revisiting the need for live testimony when introducing lab reports established by Melendez-Diaz. Prof. Richard Friedman, who writes the Confrontation Blog will argue for the defense. The National Association of Criminal Defense Lawyer's amicus brief was co-authored by a Washington PDS lawyer and Jeffrey Fisher, who argued Melendez-Diaz and Crawford v. Washington and in the "our rock stars are different than your rock stars" vein, is probably the Mick Jagger of appellate advocacy.
So what's the difference between the ink-barely-dry Melendez-Diaz and Briscoe? Justice Sotomayor, for one. There are other differences, but that may be the one that counts. As the New York Times points out here, we'll soon find out what Justice Sotomayor thinks about the right to confrontation.
So what's the difference between the ink-barely-dry Melendez-Diaz and Briscoe? Justice Sotomayor, for one. There are other differences, but that may be the one that counts. As the New York Times points out here, we'll soon find out what Justice Sotomayor thinks about the right to confrontation.
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