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Professor Peter Tillers of Cardozo Law School in New York blogs for JURIST on the latest evidence issues...
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Monday, February 07, 2005
Shanley Convicted
The BBC just reported that ex-priest Shanley was convicted. My prediction was wrong.
Posted by Peter Tillers at 3:02 PM |
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Sunday, February 06, 2005
Repressed Memory: A Bad Memory or a Recurring Nightmare?
There is reason to think that the ex-priest Shanley molested one or more children somewhere sometime.
There is also good reason to think that the claim of Shanley's principal accuser in the current criminal case that he, the accuser, recovered memories of abuse that had been lost to him for up to twenty years is bogus.
The avenging angels of the Commonwealth of Massachusetts seem to have learned little from the ill-begotten repressed memory prosecutions of the 1980s. Perhaps the jury in the Shanley case will have more common sense. (I'm betting that the jury will acquit.)
Massachusetts, you folks may recall, is the state that allowed a woman to sue her cousin for molestation that allegedly took place 47 years before. See Time and Justice in Massachusetts
Illinois v. Fisher, 540 U.S. 544, 549, at 549 n. * (2004)(Stevens, J., concurring):
* Youngblood's focus on the subjective motivation of the police represents a break with our usual understanding that the presence or absence of constitutional error in suppression of evidence cases depends on the character of the evidence, not the character of the person who withholds it. United States v. Agurs, 427 U.S. 97, 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). Since Youngblood was decided, a number of state courts have held as a matter of state constitutional law that the loss or destruction of evidence critical to the defense does violate due process, even in the absence of bad faith. As the Connecticut Supreme Court has explained, "[f]airness dictates that when a person's liberty is at stake, the sole fact of whether the police or another state official acted in good or bad faith in failing to preserve evidence cannot be determinative of whether the criminal defendant received due process of law." State v. Morales, 232 Conn. 707, 723, 657 A.2d 585, 593 (1995). See also State v. Ferguson, 2 S.W.3d 912, 916-917 (Tenn. 1999); State v. Osakalumi, 194 W. Va. 758, 765-767, 461 S.E.2d 504, 511-512 (1995); State v. Delisle, 162 Vt. 293, 309, 648 A.2d 632, 642 (1994); Ex parte Gingo, 605 So.2d 1237, 1241 (Ala. 1992); Commonwealth v. Henderson, 411 Mass. 309, 310-311, 582 N.E.2d 496, 497 (1991); State v. Matafeo, 71 Haw. 183, 186-187, 787 P.2d 671, 673 (1990); Hammond v. State, 569 A.2d 81, 87 (Del. 1989); Thorne v. Department of Public Safety, 774 P.2d 1326, 1330, n. 9 (Alaska 1989).
Tennessee v. Ferguson, 2 S.W.3d 912, 914 n. 3 (Tenn. 1999):
"Fundamental fairness" is a concept which, by necessity, defies exact definition. As a general rule, however, a trial lacks fundamental fairness where there are errors which call into question the reliability of the outcome.
Rational Investigation; Fair Investigation; Due Process
You are an American trial lawyer or a police detective. You believe that Vila Victim is dead. You have five hypotheses -- H-1, H-2, H-3, H-4, and H-5 -- about how her death might have happened. Hypotheses H-3 and H-5, though quite different from another, involve wrongdoing by David Darling. Conjectures H-1, H-2, and H-4 do not involve any wrongdoing by David Darling. If you are a trial lawyer, David Darling is your client; and if you are instead a police detective, David Darling is on of your suspects in the possibly-criminal death of Victim. But whether you are a trial lawyer or whether you are a police detective, given the evidence known to you, you believe that the probabilities of conjectures H-1 through H-5 are roughly as follows:
Question 1. If you are a rational trial lawyer or police detective, which of your five conjectures should you investigate?
Question 1A. If you are a rational trial lawyer or detective, does it follow that it is irrational for you to investigate hypothesis H-2? On what assumptions?
Question 2. If David Darling was convicted of killing David Darling and police detectives investigated only hypothesis H-3, have Darling's due process rights been violated?
Cf. Arizona v. Youngblood, 488 U.S. 51 (1988).
Note: Larry Youngblood was released in the year 2000 -- after new technology -- a new type of DNA test -- convincingly demonstrated that Youngblood had not in fact committed the child molestation crimes for which he was convicted. See Barbara Whitaker, DNA Frees Inmate Years after Justices Rejected Plea, New York Times, August 11, 2000, Friday, Late Edition - Final, Section A; Page 12; Column 1; National Desk. Larry Youngblood spent roughly 17 years in prison for crimes that he very probably did not commit.
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Professor Peter Tillers
"I have practiced a little bit of law -- I worked as a litigator, once in California and once in Texas -- but for most of my professional life I have studied and taught law.
In the early part of my academic career I dabbled in philosophy, particularly the philosophies of Kant and Hegel. But as I matured, I came to my senses. This explains why during the last 15 years I have devoted much more attention to evidence, inference, and proof in litigation than to German Idealism and similar matters. However, I did not succeed in completely obliterating the influence of philosophy and epistemology on my thinking. Thus, in my effort to understand and explain the process of proof in litigation, I have devoted a great deal of attention to matters such as probability theory and theories of evidence, inference, induction, and proof.
Peter Tillers is Professor of Law at Cardozo Law School, Yeshiva University. He revised volumes 1 &1A of Wigmore on Evidence (1983) and is the author of Probability and Inference in the Law of Evidence (1988; with E. Green).
TILLERS ON EVIDENCE
