proposed legislation
“tender years” and Crawford
Apr 21st
Karl of CDW helpfully points out that there is a a big Constitutional roadblock to the tender years exception statutes: Crawford v. Washington, 541 U.S. 36 (2004) [pdf]. He directs me (and those interested) to State v. Snowden, [pdf] a Maryland case which is on point and oft-cited.
The statements that “tender years exceptions” typically seek to make admissible are testimonial in nature and made outside the presence of the defendant or defense counsel. This is clearly a Crawford violation. Crawford held generally that testimonial statements may not be admitted in evidence through non-declarant witnesses unless the declarant is unavailable and there is a prior opportunity for cross-examination. For the purposes of CT’s statute, testimonial means:
[3] “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
In fact, Maryland’s tender years statute looked rather similar to that of Connecticut. Connecticut permits testimony by the victim outside the presence of the defendant, if the court finds that there is a compelling need to do so. This is not exactly on point, so I think the tender years statute should be rejected under Crawford.
The Confrontation Blog has mountains of coverage on post-Crawford decisions.
Previous coverage:
- Tender years exception to hearsay
- Tender years II
- Tender years III
- “Anti-Innocence” bills: Tender years IV
Technorati Tags: tender years, crawford, connecticut
Serious Proposed Changes to DUI Statute
Apr 16th
Adding to the list of bills coming out of the Judiciary Committee last week is a baaaaaad DUI bill.
Among the many and extremely harsh changes:
1. Legal limit for those operating a CDL is .04; legal limit for those under 21 is .02
2. Evidence of BAC is admissible now, even if police failed to (a) “comply strictly” with the requirements of the statute, as long as the state can establish good cause, which includes showing that “the alleged failure does not materially affect the validity of such results”; and/or (b) provide our clients with a reasonable opportunity to contact an attorney before consenting or refusing to perform the requested test.
3. When prosecuted under subsection (1), evidence of BAC is now admissible all the time, not only when the defendant requests it. In other words, if my client blew a .06, thereby precluding a prosecution under subsection (2), the state can introduce the test in support of its case under subsection (1).
4. Fines and penalties are increased.
5. To be considered as a multiple offender, the state can look back over your entire driving record, not just the last 10 years. For example, if you were convicted for DUI at 21 and get convicted again at 50, you will be a second offender, where you used to be considered a first offender.
6. The new mandatory minimum for second offender is 180 days (previously 120). For third offender and beyond, it is two years (previously 1 year).
7. And, perhaps my favorite part, for third offense and beyond, the state will order forfeiture of the vehicle you were driving at the time of the offense, as long as you were the legal title holder of the vehicle. The state will then sell the vehicle at auction to fund the Criminal Injuries Compensation Fund. Please note that your car may also be forfeited if your license is suspended for DUI (even ABSENT any conviction) under certain circumstances. Further note, if convicted of Manslaughter in the second degree with a motor vehicle or Assault in the second degree, the state can order forfeiture of the vehicle involved even if the operator did not have legal title to it. For forfeiture to apply, the operator need only have “lawful possession” of the vehicle. Be wary of lending your car out!
8. Finally, there are MANY changes affecting DMV procedures and operator’s license retention. But perhaps the most significant are the changes to the hearing process. At a hearing, our clients used to be able to challenge whether the officer had probable cause to arrest them for DUI. If successful, they kept their licenses. Now, the hearing officers need not determine whether there was probable cause to arrest, but only whether (1) the person was arrested; (2) the person refused to take or registered a BAC above the legal limit; and (3) the person was operating a motor vehicle. The hearing is not only strictly limited to those issues, but also must be “based on” documentary evidence submitted by the arresting officer. Moreover, the statute now requires our clients to pay the fees of any witnesses summoned to appear at these hearings. Oh, one other thing – there is no longer any appeal from the suspension decision. In the end, our clients enjoy significantly less protection and opportunity to fight the suspension of their licenses, and a license may be lawfully suspended as a result of an arrest for DUI, even absent probable cause for the arrest. If I am pulled over, hauled out of my car with no explanation, immediately placed under arrest for DUI and refuse to take a breath test without first speaking to an attorney, my license will be suspended, and I cannot do anything to stop it. The police report need not justify the stop or the officer’s reasons for believing I was under the influence.
P.S. Not sure it’s worthy of noting but because I have friends who ask me all the time: If this bill becomes law, while it will still not be illegal to have an open container of alcohol in your vehicle, it will constitute a rebuttable presumption that the operator was drinking it at the time of operation, which IS illegal.
Lots of bills reported out of committee
Apr 14th
The judiciary committee, in a flurry of activity before the deadline, reported quite a few bills out of committee. Here’s a list of all relevant criminal justice bills reported out of committee this session:
- HB 5503 An Act Concerning Residency Restrictions for Registered Sexual Offenders
- HB 6285 An Act Concerning The Age of a Child with Respect to Juvenile Court Jurisdiction
- HB 7085 An Act Concerning the SOL for Prosecution of Certain Sexual Assault Offenses Using DNA Evidence.
- HB 7234 An Act Concerning Victim Services.
- HB 7313 An Act Concerning Domestic Violence.
- HB 7335 An Act Concerning Persistent Offenders.
- HB 7365 An Act Concerning the Procedure in a Capital Felony Trial.
- HB 7391 An Act Concerning Preventive Detention.
- HB 7406 An Act Concerning Youthful Offenders…
- HB 7408 An Act Concerning the Risk Assessment Board…
- SB 0170 An Act Concerning Pardons.
- SB 0708 An Act Creating a Violent Offender Registry.
- SB 0838 An Act Requiring the DNA Testing of Certain Arrested Persons.
- SB 1269 An Act Concerning the Quality of Legal Representation of Children and Youth in Juvenile Matters.
- SB 1322 Student Loan Repayment Assistance Bill for Public Defenders and Prosecutors.
- SB 1457 An Act Concerning Consensual Sexual Activity Between Adolescents Close in Age.
- SB 1458 An Act Concerning Jessica’s Law.
- SB 1479 An Act Concerning Judicial Branch Openness.
“Acceptable” registries and residency restrictions
Apr 12th
Ever since Steve posted his opinion on what would be sensible registry and residency restriction legislation, I’ve been thinking about what I’d like to see implemented. Today, I have a few ideas.
1. Mandatory risk-assessment: Every inmate shall have his case presented to a risk assessment panel no later than 6 months prior to his or her release date. The panel shall consist of previously appointed individuals from the board of parole.
2. Criteria to be examined: The age of the offender; the age of the victim; degree of kinship (if any); prior sexual offenses; length of sentence; ties to the community; job experience; potential for re-employment; programs availed of during incarceration; allocution; victim statement, if any; conditions of probation.
3. Statutory exemptions: Offenders convicted of “statutory rape” where the sexual contact was consensual are automatically exempt from any registration and registry requirements.
4. Risk level scores to be assigned (tiered system): The risk assessment panel shall assign a risk level score to each offender. The scale shall be as follows: 1 – low level offender; 2 – mid level offender; 3 – high level offender.
5. Low level offenders shall be required to register for only 2 years, but the registration will not be publicly available and shall not have any residency restrictions imposed on them.
6. Mid level offenders shall be required to register for 5 years and will not be permitted to reside within 1000 feet of schools or playgrounds. Mid level offenders will also not be permitted to work where they will come in contact with minors under the age of 16.
7. High level offenders shall be required to register for 20 years and will not be permitted to reside within 2000 feet of schools or playgrounds. These offenders shall also not be permitted to work where they will come in contact with minors.
8. All offenders shall be permitted to return to their existing residences if they have resided there for more than 5 years prior to the date of the offense, unless the victim of their offense lives within 2000 feet.
9. The registration of all mid-level and high-level offenders shall be available to the public.
10. Requirements for obtaining information: Any member of the public seeking information on mid-level and high-level offenders shall be required to provide a name, valid address and proof that a child under the age of 16 resides in their home.
11. The Department of Corrections shall be charged with the task of ensuring that all sex offenders are given adequate training in vocations that does not require contact with minors.
12. Parents will be charged with the task of educating their children about not talking to strangers and not getting into strangers’ cars.
13. Penalty for misuse: Anyone using publicly available information to threaten, harass or injure a released sex offender shall be guilty of the offense corresponding to their actions, or a Class D felony, whichever is greater.
Ugh. I had more, but I received a phone call and now I’ve lost my train of thought. Anyway, what do you guys think? A little crazy? Too liberal?
Loan repayment bill voted out of Committee
Apr 11th
CT’s public defender and prosecutor loan repayment bill has been voted out of the Judiciary Committee and referred to the Appropriations Committee. Keep those fingers crossed!
CT jumps into residency restrictions ring
Apr 4th
The Judiciary Committee today considered HB 5503: An Act Concerning Residency Restrictions For Registered Sexual Offenders. I am saddened by this news. The requirement is 1000 feet from schools or day-care facilities. However, exceptions exist:
The provisions of subsection (a) of this section do not apply if (1) the person has established a residence within one thousand feet of such property prior to the effective date of this section, or (2) the school or facility is newly located on or after the effective date of this section within one thousand feet of such person’s residence.
In a state this small, I wouldn’t be surprised if this effectively precluded offenders from living in any cities.
Technorati Tags: connecticut, residency restrictions, sex offenders
Legislative updates
Mar 29th
Perusing the legislature’s list of bills for the past few days, I’ve stumbled upon quite a few legislative proposals dealing with sex offenders and criminal justice. I’ll update this post with links to each subsequent post. There are a few bills I want to address on their own.
- Tender years exception and mandatory minimums
- Computer techs to be made mandatory reporters
- Violent offender registry proposed
- Deadlock legislation in death penalty cases
- Student loan repayment bill
As you can see in the footer, I’ve created a new category “proposed legislation”. I will be posting all future updates on proposed legislation to that category, so that’s an easy reference for those of you interested.
Tender years exception and mandatory minimums proposed
Mar 29th
On today’s list of bills was S.B. 1458 (“An Act Concerning Jessica’s Law”). This bill has several new proposals, most important of which is the “tender years exception” [see previous coverage below]. According to the proposed bill,
Sec. 9. (NEW) (Effective July 1, 2007) Notwithstanding any other rule of evidence or provision of law, a statement by a child under thirteen years of age relating to a sexual offense committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent authority over the child, shall be admissible in a criminal, juvenile or civil proceeding if (1) the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy, (2) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and (3) either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent nontestimonial admissible evidence of the alleged act. For purposes of this section, “child” includes a person who is chronologically thirteen years of age or older, but who has a mental or developmental age of less than thirteen years because of mental retardation or developmental disability.
This provision applies to a statement of a child under the age of 13, not the testimony itself. The court has to find that the statement is trustworthy (fine), the proponent has to make known the intent to offer the statement (fine) at such a time that the opponent has the time to prepare to meet it (good) and either the child testifies (okay, a reluctant witness) or is unavailable (again, reluctant or otherwise) AND there is independent, non-testimonial admissible evidence of the alleged act. Uh. I’m not sure what that would be…but I’ll wait till the public hearing to form an opinion.
The other provisions of this bill create the offense of “aggravated sexual assault of a minor”, where the victim is under 13. It would carry a minimum mandatory sentence of 25 years. The other provisions create mandatory minimums of 2-10 years for a variety of sex offenses, including repeat offenders.
Previous coverage:
Computer technicians to be made mandatory reporters and SOL
Mar 29th
A bill proposed today, HB 7408, adds the phrase “and any person who services and repairs personal computers” to the list of mandatory reporters under C.G.S 17a-101. Now, firedog and Geek Squad and others will have to report to the police if they find any illegal material on computers. Yikes. I’m not sure how the businesses will take this.
In addition, it increases the period for the statute of limitations to expire from 30 years to 40 years for sexual assault offenses.
Notwithstanding the provisions of section 54-193, no person may be prosecuted for any offense, except a class A felony, involving sexual abuse, sexual exploitation or sexual assault of a minor except within [thirty] forty years from the date the victim attains the age of majority or within five years from the date the victim notifies any police officer or state’s attorney acting in such police officer’s or state’s attorney’s official capacity of the commission of the offense, whichever is earlier, provided if the prosecution is for a violation of subdivision (1) of subsection (a) of section 53a-71, the victim notified such police officer or state’s attorney not later than five years after the commission of the offense.
Violent offender registry proposed – the branding continues
Mar 26th
This is a great time of year. The legislature is in session and new bills are being proposed. Via the OLR, I see that one such curious bill is Senate Bill 708 – An Act Creating A Violent Offender Registry. Yes, this bill proposes a registry akin to the sex offender registry for violent offendes. The offenses are:
- murder (including felony murder and arson murder),
- first-degree manslaughter,
- 1st-degree manslaughter with a firearm,
- 1st–degree kidnapping of a minor,
- 1st–degree assault, or
- conspiracy or criminal intent to commit any of the above crimes.
First time offenders are required to register for 10 years and second offenders for life. Failure to register is a Class D felony.
Are residency restrictions for violent offenders far away? Will we have an ever growing class of citizens who will be forced to live in seclusion? Shades of Escape from L.A.
Seriously, what does this achieve. Look at the list of offenses. Murder – minimum sentence of 25 years. Most murders aren’t random crimes. What will you do? Cross the street when you see someone who was convicted of murder? 1st degree assault? Do people seriously believe that assault convictees walk around randomly assaulting people?
Between this and the sex offender registry, it leaves only the larcenies and related offenses and the drug crimes. I’d rather have a community notified of someone who was convicted of a robbery or burglary. The store owner has as much a right to know that a person convicted of hold-ups lives in the neighborhood.
Also, isn’t the central argument behind sex offender registries and residency restrictions that that class of people cannot be rehabilitated? Registry proponents frequently cite statistics that recidivism rates are the highest for that class of offenders. Is the tune changing? Are they all equally likely to re-offend? You can’t have it both ways.
Maybe the way to end this is to make records of all convictions (which are public information anyway) available on a website. I don’t know.
At some point, SCOTUS will have to address the Constitutionality of these registries and residency restrictions. We are heading toward a very fractured society.
Technorati Tags: connecticut, violent offenders, registry
CT considers deadlock legislation in death penalty cases
Mar 15th
Currently before the Judiciary Committee is HB 7365, which provides for the imposition of life without parole in the event that the jury in a capital felony trial is deadlocked as to the sentence to be imposed.
Here [.pdf] is the testimony of Ron Gold, a public defender in the capital unit, in support of the legislation.
Student Loan Repayment Bill referred to Judiciary Committee
Mar 14th
The Connecticut legislature’s proposed bill to provide for student loan repayment for state’s attorneys and public defenders made it out of the Committee on Higher Education and Employment Advancement. It has now been referred to the Judiciary Committee for further hearings and consideration.
“tender years” exception to hearsay
Mar 4th
The Connecticut Legislature is currently considering a bill that would allow a “tender years” exception to hearsay. The bill [S.B. 1245] would add the following section to the General Statutes:
Notwithstanding any other rule of evidence or provision of law, a statement by a child under sixteen years of age relating to an offense committed against that child shall be admissible in a criminal, juvenile or civil proceeding if (1) the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy, (2) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and (3) either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent admissible evidence of the alleged act. For purposes of this section, “child” includes a person who is chronologically sixteen years of age or older, but who has a mental or developmental age of less than sixteen years because of mental retardation or developmental disability.
Immediately this proposal should raise red flags. This does not require that the defense have an opportunity to cross-examine the “minor”. Also, what the heck does “there is a probability that the statement is trustworthy” mean?
Further, how do you define “fair opportunity to prepare to meet it”? Does that mean that the statement has to be disclosed in advance? That the full length and breadth of the “minor’s” testimony has to be made available to the defense beforehand? I doubt that’s what the legislature means.
Anyone else have any ideas on this or know of other states that have proposed this?
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