legal question and answer thread **no discussion**

[gritguy]

I wonder why the statute allows them to still be retained for capital cases but not anything else? I would think the issue of not fully participating in the discussion would apply no matter the type of case.

It's a little Alice in Wonderland, but in a capital case you have, if the verdict is guilty, another proceeding in which the jury listens to things before they again deliberate on the issue of the death penalty. I take it during this second proceeding an alternate could be brought in if a juror is excused. However, as the Bunning case makes clear, the alternate cannot be shuffled in after deliberations start. That's the only reason I see for the provision is because of the nature of the sentencing proceeding.

 

[~n/t~]

Hi gritguy,

I'm really concerned about this doll testimony. What are your thoughts? Is it prejudice? I know the Judge allowed it in but I'm not feeling confident. Could it be cause for an appeal? Or the case to be thrown out?


Thanks:seeya:

 

[~n/t~]

ok my other concern is the Judge. My understanding is he was the Judge in the first trial, he presided in the civil trial and he is now on the bench for this second trial?

The judge finds that Jason Young 'willfully and unlawfully' killed his wife and apparently labels him the "Slayer" in the civil suit.

Shouldn't he have recused himself? Doesn't that show bias? Isn't labelling JY a Slayer and finding him guilty of willfully and unlawfully murdering his wife in the civil trial considered a conflict of interest? How can this judge be unbiased? I'm very confused about that part of the law. :waitasec:

 

[gritguy]

Hi gritguy,

I'm really concerned about this doll testimony. What are your thoughts? Is it prejudice? I know the Judge allowed it in but I'm not feeling confident. Could it be cause for an appeal? Or the case to be thrown out?


Thanks:seeya:

We'll know more Monday when the actual testimony comes in. But I think he is threading the needle by not allowing any identification, and not allowing the story about the fruit snack. So, the testimony allowed is there only to show CY witnessed the assault; not as to who did it. From there, the jury can decide if that under the circumstances adds or not the theory of his guilt.

It could be cause for appeal (lots of things can), but IMO I don't see it really going anywhere. The trial judge is invested with a lot of leeway during a trial. Here he considered the probative value versus the prejudice and finds what he is allowing to meet the balance. Given the limited purpose of the evidence and the limit of the evidence, I think he is safe in the ruling so far.

Quite naturally, all evidence the prosecution introduces is intended to be prejudicial to the interests of the defendant, they hope. However, evidence can be disallowed if the prejudicial effect outweighs the probative value.

 

[gritguy]

ok my other concern is the Judge. My understanding is he was the Judge in the first trial, he presided in the civil trial and he is now on the bench for this second trial?

The judge finds that Jason Young 'willfully and unlawfully' killed his wife and apparently labels him the "Slayer" in the civil suit.

Shouldn't he have recused himself? Doesn't that show bias? Isn't labelling JY a Slayer and finding him guilty of willfully and unlawfully murdering his wife in the civil trial considered a conflict of interest? How can this judge be unbiased? I'm very confused about that part of the law. :waitasec:

Interesting points. I hesitate to weigh in on an opinion on that, except to say of course the defense could object (and they may have) and if there is anything to it it would be a ground for appeal so there is protection there.

I haven't seen anything personally (though I haven't watched much of the testimony) that seems like the judge is protecting or aiding one side over the other. The doll ruling I think would end the same with a lot of judges. Not necessarily all, because it is a judgment call. The trial seems to be running pretty smoothly.

 

[gritguy]

Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (

 

[gritguy]

Hearsay is a statement or conduct intended as an assertion made by someone other than while testifying at trial, offered in evidence to prove the matter asserted.

That last clause is very important. Hearsay is not allowed, except through a LONG list of exceptions. Here are some that have been mentioned:

(1) Present Sense Impression. – A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited Utterance. – A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Other Exceptions. – A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.

There are other exceptions as well if the declarant is unavailable.

 

[~n/t~]

Thanks for the replies. I'll probably have plenty more questions. :blushing::blushing:

My next question is why isn't Laci & Conner's law being applied in this case? Shouldn't he be charged with double murder? Michelle and the baby? Or is the law only applicable in the State of California?

 

[gritguy]

Thanks for the replies. I'll probably have plenty more questions. :blushing::blushing:

My next question is why isn't Laci & Conner's law being applied in this case? Shouldn't he be charged with double murder? Michelle and the baby? Or is the law only applicable in the State of California?

Sounds like we have just gotten that as Ethan's law.

http://www.wral.com/news/state/nccapitol/story/10441231/

 

[Boodles]

In listening to the 911 call again this evening, I hear the second part where she mentions "daddy" (which I had not heard before).

So at 2:00 she says "Daddy diiii..."

But then later in this same call, during the transfer of the call to the 2nd party, she clearly says in the background "Daddy did it."

These were words she uttered to the first person she had seen after having been left alone (with her deceased mother's body) in a house for who knows how long. And the first things she starts saying is "Daddy did it."

This is an on-the-record 911 call. Why is the prosecution not entering the audio as evidence? Is there some legal reason precluding it?

Thanks!


Nov. 3, 2006 Birchleaf Drive 911 Recording
http://www.wral.com/news/local/audio/1119462/

 

[gritguy]

I'm not sure. Unfortunately, I haven't seen all the testimony and missed most of the early part of the trial.

I thought they did play the tape this time, but I'm not sure if some of it was omitted.

Parties can have motions to object to evidence before or during trial, and I don't know if this was the subject of any. I apologize for not being more helpful on it but I haven't seen anything on it to help give an opinion.

 

[Madeleine74]

The transition part where the 911 operator is transferring MF's call to WCSO, and happens to be the utterance that is most clear from CY, was cut out. Why it was cut out I don't know, but I noticed it was not played. Only 1 utterance of "Daddy did it" was left in the recording, and it's the less clear one, IMHO.

 

[gritguy]

The transition part where the 911 operator is transferring MF's call to WCSO, and happens to be the utterance that is most clear from CY, was cut out. Why it was cut out I don't know, but I noticed it was not played. Only 1 utterance of "Daddy did it" was left in the recording, and it's the less clear one, IMHO.

Perhaps it was subject to a motion in limine before trial and was ruled inadmissible. Otherwise, I don't know why the DA wouldn't try to play it.

 

[thumbtack]

Perhaps it was subject to a motion in limine before trial and was ruled inadmissible. Otherwise, I don't know why the DA wouldn't try to play it.

If the DA tried to play it, what are some of the possible specific reasons why it would be ruled inadmissible?

I'm still having trouble w/ why the 911 tape isn't allowed to be played for the jury in its entirety. I can see not allowing the 05:01 part if an older child or adult said (what most hear as) "daddy did it." There would be the potential to mislead w/ someone older. But, w/ a toddler what she says is what she says. It's what it is.

Is it because it could be said she was coached to say things by MF, so being too prejudicial, the judge disallows it?

Please help me here. This is buggin the crap outa me.

 

[gritguy]

A specific reason is that it was a testimonial statement and the defendant cannot cross examine the child about it (she probably has no recollection for example due to her age then). That can violate the defendant's 6th amendment rights.

Here's a case (Georgia, not controlling here but maybe instructive) where a stepfather was convicted of killing his stepdaughter, where the court found that letting a police officer testify that a child said "Daddy did it" more than once in response to a question about an earlier assault on the child violated the defendant's 6th amendment rights.

"(a) On July 20, 2002, a military police officer responded to a domestic disturbance call made by the victim's mother.3  When the officer arrived, the victim had a bruise on her face and was holding an ice pack on it.   The officer, who had been trained on interviewing children, testified that when she asked the victim what happened, the victim, who was three or four at the time, repeatedly said “Daddy did it.”   In its order denying appellant's motion for new trial, the trial court found that the child's words were non-testimonial because they were in response to the officer's question as to what happened."

"The trial court erred in admitting this evidence because the victim's statements were testimonial and violated appellant's Sixth Amendment right to confrontation.  Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004);  Brown v. State, 278 Ga. 810(3), 607 S.E.2d 579 (2005).   As opposed to statements made in response to garnering police assistance during an ongoing emergency (such as statements elicited during a 911 call to determine the need for assistance), here the child's words were statements in response to a question by law enforcement after the emergency had already ended and were reflective of past events and, as such, were testimonial in nature. "

http://caselaw.findlaw.com/ga-supreme-court/1230870.html

So, there may have been a hearing with that as a result. The DA may have thought it would be a losing cause and so has not tried to introduce that. Rule 403 cited above could be another reason.

Anyway, these things turn on very complicated and not necessarily obviously logical factors, so take the above with much salt. It's just to say there could be valid reasons to keep the statement out.

 

[sureLocke]

gritguy; during the first trial when Jason was turned over to the prosecution; BH was the only one to question the defendant could the other DA also posed questions? And if they needed additional time to collect their thoughts could they have petitioned the court for a recess? I would expect the judge to look at such a delay as unprofessional, but I would expect him to afford the same benefit to the defense if they had asked for it?

 

[thumbtack]

Thank you so much for your reply! I now have a much better understanding, especially about the defendant not being able to cross examine the child.

In this case, it seems non-testimonial to me, since CY was actually saying these words in the background and it was being heard on a 911 call. Yet, I understand what you are saying.

Thanx for all of your help!

 

[gritguy]

gritguy; during the first trial when Jason was turned over to the prosecution; BH was the only one to question the defendant could the other DA also posed questions? And if they needed additional time to collect their thoughts could they have petitioned the court for a recess? I would expect the judge to look at such a delay as unprofessional, but I would expect him to afford the same benefit to the defense if they had asked for it?

NC General Rule of Practice 11 says that only one lawyer per side should question the witness, and that is almost always how it goes. However, the courts have ruled that a trial judge can allow a substitution for, as an example, a very lengthy exam.

I don't know a rule off the top of my head for "being ready to go" when direct is done, but you are expected to be ready to go. I'm sure you can ask for a delay, but yes the judge would be looking at you for an extraordinarily good reason. That's one of the headaches of trial - you must be ready to cross whoever might be called. If you imagine one side might therefore expand their witness list past who they really think they might call as a way to obscure their strategy and tax the other side's preparation resources, that would be a cynical viewpoint. :innocent: Not saying that happened in this case, as both sides likely are calling a lot of witnesses.

 

[nursebeeme]

G-guy,
Can the prosecution use JY's testimony he made in the first trial if he doesn't take the stand or only if he does?

tia

 

[gritguy]

They can use it, regardless of whether he testifies.