Comments on: Should dead women tell some tales?

By: Forfeit what?

Forfeit what? — Fri, 14 Sep 2012 12:54:52 +0000

[...] problem with the transferred intent theory, as I mention in my post on the subject, is that it permits the introduction of a decedent’s statement in a murder trial for the [...]

By: Gideon

Gideon — Tue, 11 Sep 2012 23:51:34 +0000

Ah, okay. Well, glad I could help! I just started paying attention after the verdict and it seemed a big mess to me, so I wrote it out to unravel the whole thing. Credit goes to the two other bloggers I linked to for getting me 90% of the way there.

By: Facsmiley

Facsmiley — Tue, 11 Sep 2012 23:47:40 +0000

I just meant as far as the history of their being admitted in this trial. A lot of people aren’t clear on how it happened.

By: LJS

LJS — Tue, 11 Sep 2012 22:01:26 +0000

It did, and this is the majority rule. But it is the majority rule created well prior to Crawford, when FbW was rarely used. I think it significant when an appellate court says as a holding — no error where trial court found clear and convincting, and henceforth preponderance will do — that reviewing court is not looking at facts which a trial court says only (or barely) meet preponderance and might, if faced with that much weaker case, rule differently. But, having made that rule, it is almost never going to be asked to review that weaker set of facts.

Post Crawford, and in light of the rise of Stop Snitchin’ (where there’s a greater risk that a witness might be threatened/harmed/intimidated by someone unrelated to the case), I have major troubles with mere preponderance.

By: Gideon

Gideon — Tue, 11 Sep 2012 21:47:24 +0000

Thanks for the comment, but I think you might’ve gotten it backwards. Based on Giles, I don’t see a way that Stacey’s statements are admissible at all. Perhaps Kathleen’s are, but probably not the one she made to prosecutors.

By: Facsmiley

Facsmiley — Tue, 11 Sep 2012 19:04:23 +0000

Thanks for such a detailed analysis of this complicated feature of Drew Peterson’s trial. I’ve been trying to explain how the hearsay was admissible, but with no legal expertise it’s tough!

By: Gideon

Gideon — Tue, 11 Sep 2012 00:50:04 +0000

Maybe I misunderstood. I thought the court cited a majority of jurisdictions (both State and Federal) to support its conclusion that the standard to apply is preponderance. Isn’t that the prevalent standard in most other states? So what does it matter that in those other cases the court found that the State had cleared C&C and that it didn’t in Thompson’s?

I wasn’t commenting at all on the rest of the opinion, specifically the CoG section, which seems a bit bullshitty, but then again, that’s been our supreme court for the last 10-15 years or so.

By: LJS

LJS — Tue, 11 Sep 2012 00:43:41 +0000

Preponderance is the standard used in the vast majority of jurisdictions, but it was set back when forfeiture by wrongdoing was used much less often. Post-Crawford, and the death of the Roberts reliability rule, FbW apparently is being used far more often. If you look at those cases, in most the prosecution has made the C&C standard, but Court says it didn’t need to go that far and only needed preponderance. For Thompson, the issue is squarely faced — trial court says only preponderance met, not C&C.

The other problem is in how Connecticut (apparently alone among the jurisdictions) combines FbW and Consciousness of Guilt. In Thompson’s case, not only does the deceased witness’ statement come in, but the State gets to hold a mini-trial on the witness’ murder — a murder for which Thompson had not at that point been arrested for. So in Murder trial A, he has to, in effect, defend himself against claism of Murder B, without benefit of all the discovery and other rights he’d get if he was on trial for Murder B. That seems wrong.

By: Gideon

Gideon — Tue, 11 Sep 2012 00:31:00 +0000

Here's a link to State v. Thompson. I just re-read it and I don't find anything objectionable in its rationale, outside of the fact that I'd have preferred that they adopted the stricter "clear and convincing" standard.

By: LJS

LJS — Mon, 10 Sep 2012 13:40:13 +0000

Take a look at our Supreme Court’s most recent musings on this doctrine in State v. Thompson, 305 Conn. 412 (2012). At some point, I need to get to a law review article on why I think the whole doctrine needs a re-think in light of Crawford and its progeny.