RSS FeedTattoo as evidence of murder
Telltale teardrop quashes acquittal
Ontario Superior Court Justice Todd Archibald should not have barred testimony from a gang expert and three Malvern Crew members that could have bolstered the Crown’s case that Abbey had a teardrop tattooed under his right eye to show he had shot Simeon Peter, 19, the appeal court ruled.
Hypnosis evidence and murder
Man admits committing 1992 murder
A former Canada Post supervisor admitted today to the 1992 killing of his girlfriend, two years after the Supreme Court of Canada threw out his conviction in a landmark decision because key evidence was obtained through hypnosis.
More on the Lisa MacLeod testimony row
Judge more chivalrous than sexist
… he was making excuses for her. Probably in a way he wouldn’t have done for a man, but probably as a way of softening his discounting of her testimony.
Maybe, just maybe, he wasn’t so much being insensitive to a woman as he was being overly considerate of the fact that she is a young politician.
Not to mention the fact she was probably the most likeable person he encountered during the trial.
The law of apology
Letterman apologizes to Palin, Raitt to cancer-affected people, Baird to Toronto. It seems sorry doesn’t seem to be the hardest word lately. Just search Google News for “sorry“, “apologizes“, or “regrets.”
But what are the legal consequences of contrition? For one example, check out the Apology Act assented to in Ontario on April 23 this year.
Jersey Court Rejects Wikipedia Evidence
A NJ Appellate Division court says that Wikipedia is too malleable to be used as evidence in Palisades Collection v. Graubard, A-1338-07.
Mary Pat Gallagher of the New Jersey Law Journal reported yesterday,
“[I]t is entirely possible for a party in litigation to alter a Wikipedia article, print the article and thereafter offer it in support of any given position,” an appeals court held. “Such a malleable source of information is inherently unreliable and clearly not one ‘whose accuracy cannot reasonably be questioned,’” such as would support judicial notice under New Jersey Evidence Rule 201(b)(3).
The decision reversed an opinion by the lower court that the Wikipedia entry could be admitted under the provision that describes the type of material appropriate for judicial notice.
The issue of vandalism, or deliberately altering Wikipedia content and then printing it to tender as evidence, was raised by the court.
The reliability of Wikipedia is discussed by an entry on Wikipedia itself; its accuracy can approach that of mainstream encyclopedias.
Perhaps if Wikipedia entries were entered as evidence along with talk pages and all major revisions it might be treated differently.
But at that point it’s probably easier for counsel to just photocopy a page from Encyclopedia Britannica.
Cross-posted from Slaw.ca
A Google Search For “Mistrial” Yields Too Many Results
As the prevalence of internet-capable smartphones increases, so too does the rate of mistrials.
According to The New York Times,
The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.
Last week a juror in a large federal drug trial in Florida admitted to the judge that he had been doing online research on the case. The judge then discovered that eight other jurors had been Googling as well, which forced a mistrial and laid eight weeks of work by federal prosecutors and defence lawyers to waste.
In the same week, an Arkansas court was asked to overturn $12.6 million (USD) judgment, claiming that a juror used Twitter to send updates during the civil trial.
And defence lawyers in the federal corruption trial of a former Pennsylvania state senator demanded that the judge declare a mistrial because a juror had Tweeted that a “big announcement” (the verdict) was coming on Monday.
In the United States and Canada, jurors are not supposed to seek information relevant to the case outside of the courtroom. They must reach their verdict based only on the admissible evidence.
The principle behind this rule is that information presented in the courtroom must pass through a number of filters before reaching the “triers of fact.” These filters are the adversarial system, the law of evidence, and the discretion of a judge. They are intended to enhance the veracity, relevancy, and legality of information presented to jurors.
For instance, the adversarial system creates the opportunity for information presented to jurors to be responded to and challenged by both parties. The reliability of a witness’ testimony can be challenged in the crucible of cross-examination.
But neither party has the opportunity to challenge information gleaned from a juror’s Blackerry, which may be prejudicial and/or just plain false.
Now, using their cellphones, jurors can read the accused’s blog, or examine an intersection using Google Maps, thereby violating the legal system’s rules of evidence. They can also trumpet the contents of the jury’s secret deliberations to the public by Tweeting, blogging, and texting.
According to Douglas L. Keene, president of the American Society of Trial Consultants, “It’s really impossible to control it.”
Mr. Keene said jurors might think they were pursuing justice and the truth by conducting additional research and detective work:
There are people who feel they can’t serve justice if they don’t find the answers to certain questions.
But according to Professor Wellborn, co-author of a handbook on evidence law,
The beauty of the adversarial system [is lost] when the jurors go out on their own.
According to the New York Times,
In the Arkansas case, Stoam Holdings, the company trying to overturn the $12.6 million judgment, said a juror, Johnathan Powell, had sent Twitter messages during the trial. Mr. Powell’s messages included “oh and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter” and “So Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”
See relevant Canadian law by clicking “Read more.”
Can Someone Say Spoliation of Evidence?
What do you call it when you destroy 92 interview tapes?
(And what do you say when you previously claimed there were only 2?)
Court: No Expectation of Privacy in our Online Identity
The Ontario Superior Court of Justice has ruled that Canadians have no expectation of privacy in their online identity.
In a St. Thomas-area child porn case, the police asked Bell Canada for a customer’s name and home address based on that customer’s IP address. Bell Canada complied and handed over the information.
The customer’s husband was allegedly using the family computer to search for child porn. He was arrested.
The accused argued that the police search of Bell’s records should have required a warrant. Obtaining his details without a warrant, he claimed, was a violation of his s. 8 Charter right to be free from unreasonable search and seizure.
Justice Lynne Leitch disagreed, writing that:
“One’s name and address or the name and address of your spouse are not biographical information one expects would be kept private from the state.”
Her decision, though it represents an erosion of internet privacy, appears to be well founded. In a moot competition concerning s.8 of the Charter, Omar Ha-Redeye and I argued the exact same point on behalf of the Crown. (Ironically, Justice Leitch was one of the judges of our competition.)
In the appropriately named R. v. Plant, [1993] 3 S.C.R. 281, a marijuana grower sought s. 8 protection for his electricity consumption records. Justice Sopinka held:
… in order for constitutional protection to be extended, the information seized must be of a “personal and confidential” nature. In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. The computer records investigated in the case at bar while revealing the pattern of electricity consumption in the residence cannot reasonably be said to reveal intimate details of the appellant’s life since electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence. [emphasis added]
If you’re interested, see also R. v. Tessling, 2004 SCC 67 at paras. 59-62.
In R. v. A.M., 2008 SCC 19 however, the Supreme Court tempered the “biographical core of personal information” requirement. Binnie J. explained that even where the information sought by police is not aimed at revealing intimate details of the lifestyle of the accused, the analysis does not end there. Simply, the privacy of the contents of a communication is protected if it was reasonably intended by its maker to be private [para 68].
In the present child porn case, Justice Leitch held that the information sought by the police was nothing more than a name and an address. She likened it to information in a telephone book. There were no contents of communications which were worthy of protection.
Ultimately, she found that a customer could not have expected such information to be kept private from the state.
Tech blog Ars Technica criticized the decision:
“Though it’s clear that the ruling in the case (which is still ongoing) was made with good intentions, privacy advocates know what the road to hell is paved with. Critics fear that such a precedent could open the doors to police asking for information on all manner of Internet activities, ranging from the embarrassing to the questionable-but-legal, without judicial oversight.”
Prof. James Stribopoulos, who teaches criminal law and evidence courses at Osgoode, joined the chorus of criticism:
“There is no confidentiality left on the Internet if this ruling stands…”
The reasoning of the judge misses the context of what police are seeking, suggested Mr. Stribopoulos.
“It is not just your name. It is your whole Internet surfing history. Up until now, there was privacy. An IP address is not your name; it is a 10-digit number. A lot more people would be apprehensive if they knew their name was being left everywhere they went.”
This information should require a search warrant by police if there is suspected criminal activity, said Mr. Stribopoulos. Judges are accepting the argument that this is “just your name” because “everyone wants to get at the child abusers,” he said.
The case itself is still ongoing after this Charter ruling.
What’s Behind the Veil of Justice?
An abridged version of this piece was published today in the Toronto Star. Reproduced here for interest with permission of the author, all rights reserved.
Veils and justice
February 04, 2009
Faisal Kutty
Here they go again. Muslims just don’t give up trying to change our values and roll back hard fought rights of equality and justice. Though this time, we may have nipped it in the bud early – but should we?
Ontario Court Justice Norris Weisman‘s “admittedly difficult decision” to force a complainant to testify without her niqab, or face covering, in a sexual assault case has unleashed a torrent of discussion and debate. Again, the usual suspects with too little knowledge, appreciation or understanding of the complexities of the issue have jumped into the fray.
The ruling once again brings to the fore questions surrounding the limits of accommodation in a liberal multicultural society. But this time, in a novel twist, the clash pits a person’s religious right with the right of a defendant in a criminal trial to due process and procedural fairness; namely that of being able to face his or her accuser in open court. Obviously, both are important rights in a liberal democracy.
The niqab – which a small fraction of orthodox Muslim women use to cover their faces, and not to be confused with the hijab or head covering – is attacked by some as a symbol of oppression. By others as a badge of political Islam. By others as a public-relations nightmare for their “moderate” or more palatable versions of Islam. By others as something that should be compromised in the two-way dance of accommodation. And still by others as not compulsory or even totally unnecessary from a strict Islamic legal point of view.
YouTube Video Entered as Evidence in B.C. Trial
The B.C. Supreme Court entered a YouTube video of a Victoria man yesterday, the first time the Crown has done so in that province.
“AR-15 Makes Swiss Cheese Out of a Couch,” now removed from the site, was used as evidence against Brian Lynn Morrison for a number of charges, including the use of a prohibited weapon in a careless manner and without a licence or registration certificate.
The video allegedly shows Morrison demonstrating the weapon and explaining the silencer, saying,
It’s so powerful it goes right through everything.
Admissibility of Wikipedia
A recent American case, Badasa v. U.S. discussed the use of Wikipedia by a Homeland Security official.
John Timmer at ArsTechnica provides background,
References to information at Wikipedia have shown up in various inappropriate places, from homework assignments to college term papers. But there’s one place that it seems everyone can agree that it doesn’t belong: the US court system. The US Court of Appeals for the 8th Circuit, ruling in an immigration case, has agreed with the Board of Immigration Appeals in finding that a reliance on information in Wikipedia is insufficient grounds for a ruling. Nevertheless, it sent the case back to the Board, requesting that it clarify its decision.
The decision, filed late last week, stems from a case where an individual entered the country using a forged passport, and then applied for asylum based on the threat of torture if she were returned to her place of origin. Her application for asylum, and the processing of her case by the immigration courts, hinge on a personal identification document called a laissez-passer issued by the Ethiopian government.
Ryan Singel of Wired describes the decision,
Using the Wikipedia page as evidence, the government convinced an immigration judge that the document did not prove her identity, calling it a one-way travel document based on information provided by the applicant.
While the Board of Immigration Appeals subsequently said it didn’t “encourage the use of resources such as Wikipedia.com in reaching pivotal decisions in immigration proceedings,” it allowed the decision to stand since it couldn’t find any clear error.
The three-judge panel of the appeals court found that split decision disturbing. The court reiterated that anyone can edit Wikipedia and there’s no guarantee that the information on the page at the time the government officials looked at it had any correct information at all. The site may have misled and tainted government officials’ decisions in the case, the judges ruled:
The [Board of Immigration Appeals] presumably was concerned that Wikipedia is not a sufficiently reliable source on which to rest the determination that an alien alleging a risk of future persecution is not entitled to asylum. [...]
We do not know whether the [Immigration Judge] would have reached the same conclusion without Wikipedia, or whether (and, if so, why) the [Board of Immigration Appeals] believes that the IJ’s consideration of Wikipedia was harmless error, in the sense that it did not influence the IJ’s decision.
The decision also raises serious civil rights issues, if officers of Homeland Security are using sources like Wikipedia instead of training and briefings to guide their decisions.
It also raises the issue of lawyers being familiar with Wiki technology so that they can articulate and understand the editing process involved, and appropriate shortcomings and flaws.
h/t John Gregory on Slaw.
