hearsay, I tell you!

Federal Rules of Evidence 413, 414, and 415, enacted as a part of the Violent Crime Control and Law Enforcement Act of 1994, permit prosecutors and civil plaintiffs to offer evidence of the defendant’s other acts of sexual assault or child molestation, “on any matter to which they are relevant.” George Fisher, Evidence 182 (2002).

“The new rules for sex offense cases authorize admission and consideration of evidence of an uncharged offense for its bearing ‘on any matter to which it is relevant.’”Susan Molinari, Concerning the Prior Crimes Evidence Rules for Sexual Assualt and Child Molestation Cases, Cong. Rec. H8991-92, Aug. 21, 1994. This means that evidence of offenses for which the defendant has not been prosecuted or convicted is admissible, alongside evidence of prior convictions.

So what’s the big deal? While I understand that the court is attempting to make it tougher for child and sexual predators to get off the theoretical hook, the application of these rules simply serves to usurp the power of FRE 404(b), which is a safeguard in our court system created specifically for this purpose.

Rule 404(b) provides that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the perosn acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence or mistake or accident.”

“The purpose of Rule 404(b) in a criminal trial is to ensure that the defendant is tried on the merits of the crime as charged and to prevent a conviction based on evidence of other crimes or wrongs.” State v. Bassett, 139 N.H. 493, 496.

By allowing evidence of crimes for which the defendant has not been previously prosecuted nor convicted of in the past, courts are allowed to circumvent a major safeguard that has been built into our system. There is no right to trial, fair or otherwise.

404(b) provides a way to admit the evidence 413-415 seeks to welcome in, but it requires a standard. Our courts should not be welcoming a melee of conflicting opinions and stories. Rules are in place specifically to protect hearsay and plotting from wiggling their way into the system.

*Please note, obviously I find the crimes heinous, but it doesn’t mean that those on trial for them deserve any less than the full protection our courts provide everyone else.

hrfh.

“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”  –Justice Cardozo, 1932

In the United States v. Verdugo-Urquidez, 494 U.S. 259, Verdugo-Urquidez, a Mexican resident, was arrested on drug charges, and was then brought to the United States to await trial.  While he was in a U.S. correctional facility, the DEA entered and seized property property from Verdugo-Urquidez’s property in Mexico without a search warrant.

The Fourth Amendment reads, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Supreme Court held that Verdugo-Urquidez could not object to the DEA action on Fourth Amendment grounds, because he was not considered to be one of the people the Framers intended to protect when they drafted the clause against unreasonable search and seizure.

Clearly, it is arguable that the Fourth Amendment of the Constitution was drafted to protect the national community from  unjust and undue governmental action.  Should it be so limited to those who have a sufficient connection with the community, as to be considered a part of that community?  How weak or strong must that connection be?  Should we extend the protection of the Constitution to those who are forcibly brought to or detained in this country?  Should we allow it to those who willingly, yet illegally live here?

Should the evidence be permissible in  a court, and if so, what should the legal remedy be against the offending party who confiscated the material?