Birdsong's Law Blog

EVERYBODY WANTS HEAVEN….BUT NOBODY WANTS DEAD.

………Think about it.

Birdsong

Birdsong read with interest last week of the United States Supreme Court decision in the case of Kennedy v. Louisiana.  In that case the Court ruled that it was unconstitutional and violative of the Eighth Amendment to put a defendant to death for the rape of a child.  The Court said that under our society’s evolving standards of decency execution for the rape of a child was cruel and unusual – the Eighth amendment standard.

           Although many may disagree, I believe the decision by the court was a right one.   But Birdsong is against the death penalty for all crimes and advocates for abolition of the death penalty in the U.S.  This will probably not come to pass during Birdsong’s lifetime.

            One reason Birdsong is against the death penalty in the U.S. is that it has often been used in discriminatory ways against African Americans and other minorities who often can not afford excellent legal      representation.  The defendant in Kennedy v. Louisiana was an African American.  Prior to the landmark Supreme Court case of Furman v. Georgia in 1972 the Supreme Court recognized that there was racial discrimination with respect to our use of the death penalty.  The Furman decision led to reforms in 35 states that lessened the unfettered use of the death penalty.

           Despite those reforms Birdsong contends that there is still discrimination with respect to our death penalty decisions.  The defendant’s race often seems to be a factor in seeking the death penalty.  But what of a country where the majority of the population is of African descent — should we still be uneasy about using the death penalty?

           If such a question intrigues you please read the following article I wrote about the matter a few years back.  You will certainly learn something…

  EXERCISE  IN RACE-NEUTRAL DECISION MAKING:  IMPOSITION OF THE DEATH  PENALTY  IN THE BAHAMAS — WE SHOULD STILL BE UNEASY                                

                                              ©  1999 by Leonard E. Birdsong

                                                  I.  Introduction

             This article is a view of  recent  race-neutral death penalty decisions made in the Bahamas, our closest neighbor in the English Speaking Caribbean [hereinafter ESC].²  Though race-neutral, a thorough examination of the decisions made in these cases should still leave us uneasy about the imposition of the death penalty in our modern day world.

            I  have long been against the use of the death penalty in the United States of America. It does not seem to be a deterrent to crime. And unfortunately, for much of the history of our country the death penalty has been used against African-Americans in  an unfair way and in numbers disproportionate to our number in the overall society. Some say that African-American lawyers and law professors like myself should continually speak out and  press for the abolition of the death penalty because, given the history of racism in the United States, it is impossible that the death penalty can be administered in a race-neutral way. In the United States death row is disproportionately inhabited by African-American men.  According to the Capital Punishment Project of The NAACP Legal Defense and Educational Fund, forty two  per cent of  the approximately 3,300 inmates awaiting execution are Black.³

This Birdsong article was originally published in the Nova Law Review, Volume 26, Number 1.

It teaches Evidence law students about the residual exception to the Federal Rules of Evidence.

Read and learn.

 EXCEPTION TO THE HEARSAY RULE – HAS IT BEEN ABUSED – A SURVEY SINCE THE 1997 AMENDMENT

                                                          By: Leonard Birdsong

                                                                        © 2001

               I. INTRODUCTION

         In our legal system of trial by jury a good deal of the law of evidence is given to exploring hearsay and its exceptions. The factors upon which the value of testimony depends are the perception, memory, narration and sincerity of the witness.¹ In order to encourage witnesses to put forth their best efforts and to expose inaccuracies that might be present with respect to any of these factors our trial system has developed what is known as the testimonial ideal.  That is, witnesses are required to testify under oath, testify in person, and be subject to cross examination.  The rule against hearsay is designed to insure compliance with these ideals.  When one of them is absent a hearsay objection becomes pertinent.² Hearsay evidence is often characterized as unreliable and untrustworthy.  Nevertheless courts constantly admit hearsay evidence under the numerous exceptions found in the common law and in latter day statutes. Hearsay evidence exhibits a wide range of reliability. The effort to adjust the rules of admissibility of hearsay evidence to variations in reliability has been a major motivating factor in the movement to liberalize evidence law.³

            The Federal Rules of Evidence, adopted in 1975,⁴ for use in the federal courts and adopted by many states have helped liberalize the introduction of trustworthy hearsay evidence at trials.⁵  The Federal Rules of Evidence recognize twenty eight standard exceptions to the hearsay rule⁶.  In addition to those exceptions and the “nonhearsay” exceptions⁷, the Congress in promulgating the Federal Rules, adopted rules 803(24) and 804(b)(5), as

Birdsong wrote the following article for students of Evidence law as well as anyone interested in learning how a common law concept get codified into the Federal Rules of Evidence.

Read and learn.

             THE EXCLUSION OF HEARSAY THROUGH

 FORFEITURE BY WRONGDOING – OLD WINE IN A NEW BOTTLE – SOLVING THE MYSTERY OF THE CODIFICATION OF THE CONCEPT INTO FEDERAL RULE 804(B)(6)

                                                            By: Leonard Birdsong

                                                                        © 2001

      I. INTRODUCTION

                The development of modern rules of evidence has been a process of putting old wine into new bottles. That is, many of the old common law rules and notions of evidence have been codified into modern day state and  federal evidence codes. This article examines one such recent codification of a common law concept, forfeiture by wrongdoing, into the Federal Rules of Evidence and seeks to determine whether such codification was really necessary.

             The Federal Rules of Evidence, used in federal courts and adopted by many states, Puerto Rico, and the military are a codification of years of evidence rules.¹ The rules concerning hearsay have been codified in the Federal Rules of Evidence at Article VIII.  The  Rules recognize twenty eight standard exceptions to the hearsay rule.  In addition, a number of “nonhearsay” exceptions are also recognized.  Furthermore, Congress adopted rules 803(24) and 804(b)(5), as residual hearsay exceptions.  These two rules allow introduction of hearsay statements not specifically covered by any of the named exceptions but having circumstantial guarantees of trustworthiness if the court determines that certain stated conditions are met.

                In 1997, Congress amended the hearsay rules in two significant ways.  First, the residual hearsay rules of  Rule 803(24) and  Rule 804(b)(5), were combined into one new Rule 807.   Then, in 1997 Congress  added a new provision, Rule 804(b)(6), which excluded forfeiture by wrongdoing from hearsay.

            The new Rule 804(b)(6) provides:

                        (b) Hearsay Exceptions.  The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

                                    *      ****          *

(6) Forfeiture by Wrongdoing.  A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

            The promulgation of this new rule was another case of putting old wine into a new bottle. In common terms, the rule established the proposition that a defendant may not benefit from his or her wrongful prevention of future testimony from a witness or potential witness.  According to its drafters 804(b)(6) was intended as a prophylactic rule to deal with abhorrent behavior which strikes at the heart of the system of justice itself. That is, the  killing of witnesses or other wrongdoing that might prevent a witness from testifying at trial.   

Birdsong now rolls out a few more weird criminal law stories for your reading enjoyment:

July 2008.  In Los Angeles two elderly women were sentenced to life in prison without the possibility of parole for murdering two indigent men and then collecting on their insurance policies that the women had taken out on their lives. The evidence at trial revealed that the women, Helen Golay, age 77 and Olga Rutterschmidt, 75, a native of Hungary, befriended the two men, took out life insurance  policies on them and then staged their deaths to look like hit and run auto accidents.  Prosecutors alleged that the women collected $2.8 million from the scheme.

They sound like Black Widow Spiders!