Dreams As Evidence: A Compelling Case Study

"While glancing through one of the earlier volumes of The Green Bag--I frequently do so to entertain an odd moment..."

So begins George H. Westley's Convicted By a Dream (9 Green Bag 356 (1897)) and so begins the story of how I stumbled across Westley's essay this evening.  Westley recounts his discovery of an earlier Green Bag article, Dreams Before the Law Courts, which inspired him to pen an essay on the strange case of Eugene Clifford.

Clifford, a deserter from the British Army, took up residence in Fairfield, Vermont in 1840.  He soon married a widow who lived in that town with her two children.  Several months into the wedding, a bedraggled Clifford returned from a nearby lake and claimed that his wife and children had drowned as they attempted to sail across.  Despite several suspicious circumstances (Clifford remained drenched despite walking several miles from the lake and he had not stopped at the houses nearest to the lake before reporting the tragedy), Clifford - though initially arrested - was released.

The story took a strange turn, however, with the introduction of Mrs. Marvin - a woman who lived several miles from the place where Mrs. Clifford and her children drowned.  When Clifford set sail with his family, his wife and children were wrapped in shawls.  Westley writes of Marvin's recurring dream:

She dreamed that she saw Clifford, after he had drowned his wife and children, come out of the water bearing the two shawls in his arms and, proceeding to a point some fifteen or twenty rods from the shore, through timber and undergrowth, deposit them in a clump of alder-bushes, twisting them together and matting and tangling the grass over them.  The spot was fixed in the dreamer's memory by a fallen tree beside the hiding place.

Thus far the dream related to the past, but before it ended she also saw what was to be Clifford's punishment.  She dreamed that he would be tried, and upon her testimony convicted of the crime of murder; that he would not be hanged, but would remain in prison until, by slow decay, mind and body should perish.

After reporting this dream, Marvin lead two of her neighbors to the location she had seen in her dream.  After locating the alders and the fallen tree, they dug through the grass and found two shawls.  The authorities were notified and Clifford was arrested again and indicted for the murder of his wife.  During the jury trial, Marvin testified about the contents of her dream, but did not mention the portion relating to Clifford's punishment.  During jury instructions, the judge told the jury that they were to disregard Marvin's testimony.  Nevertheless, Clifford was convicted and sentenced to a year in solitary confinement before being hanged.

This is not the end of the story.  Westley concludes:

Shortly after Clifford was put in solitary confinement, his mind began to weaken, and each succeeding month found him less and less himself and less and less a man.  He became possessed with the idea that the jury who had tried him, instead of finding him guilty, had declared him not guilty.  So persistently did he harp upon this, that the warden of the jail was induced to write his lawyers to ascertain if there were or possibly could be any mistake about the verdict.  The reply he received assured him that there was not.  Clifford's mental and physical decay went rapidly on.  Before a year had expired he had become a hopeless wreck in body and mind.  He was transferred from prison to the insane asylum at Brattleboro, Vermont, and there he soon afterwards died, his career closing exactly as had been foretold in Mrs. Marvin's dream.

Ninth Circuit Upholds Sexual Orientation Change Efforts Ban

Dale Carpenter at the Volokh Conspiracy posts about the Ninth Circuit's decision today upholding California's SB 1172.  As I mentioned in this previous post, this statute bars mental health professionals from engaging in efforts to change the sexual orientation of minors (also known as sexual orientation change efforts, or SOCE).

The Ninth Circuit's opinion is available here.

The court does not shy away from the complicated issue of determining how the First Amendment should regulate the speech of professionals.  The court begins by outlining some important things that the bill does not do.  I have emphasized the points that I think are important, given the court's later analysis:

Importantly, SB 1172 does not do any of the following:
• Prevent mental health providers from communicating
   with the public about SOCE
• Prevent mental health providers from expressing their
   views to patients, whether children or adults, about
   SOCE, homosexuality, or any other topic
• Prevent mental health providers from recommending
   SOCE to patients, whether children or adults
• Prevent mental health providers from administering
   SOCE to any person who is 18 years of age or older
• Prevent mental health providers from referring minors
   to unlicensed counselors, such as religious leaders
• Prevent unlicensed providers, such as religious
   leaders, from administering SOCE to children or
   adults
• Prevent minors from seeking SOCE from mental
   health providers in other states

The court then outlines some basic principles that it derives from existing case law:

(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.

Noting that these principles are not enough to resolve the issue, the court goes on to develop a continuum approach to speech by medical professionals, with different levels of First Amendment protection being granted to three different places on that continuum.  The overall test is quoted after the break, with emphasis at the beginning of the discussion of each level of the continuum of speech protection.

Prior Convictions, Propensity, and Character for Truthfulness

At EvidenceProf Blog, Colin Miller posts about Horvath v. West Bend Mut. Ins. Co., a recent decision in the Seventh Circuit.  Horvath made a claim to recover from her insurance company after her house burned down, but the insurance company argued that the fire had been set with Horvath's permission.  During trial, the judge permitted evidence of Horvath's 1991 conviction for embezzlement.

Rule 609(b) of the Federal Rules of Evidence allows the admission of prior convictions that are over ten years old only if the probative value of the conviction substantially outweighs any prejudicial effect that the conviction may have on the jury.  Contrast this with Rule 609(a)(1)(B), the rule that would have governed in this case had the conviction been less than ten years old.  Under 609(a)(1)(B), the court MUST admit the evidence as long as it meets the requirements of Rule 403, meaning that as long as the prejudicial effect of the prior conviction does not substantially outweigh its probative value, the evidence must be admitted.

Under the more stringent 609(b) standard, courts are typically required to consider several factors when deciding whether to admit evidence of a past conviction that is over ten years old.  Those factors are:

(1) The impeachment value of the prior crime.

(2) The point in time of the conviction and the witness' subsequent history.

(3) The similarity between the past crime and the charged crime.

(4) The importance of the defendant's testimony.

(5) The centrality of the credibility issue.

Here, the Seventh Circuit determined that the district court made a mistake in applying this test. The district court apparently misapplied the third factor, reasoning that if the prior conviction was similar to the present case, that weighed in favor of admitting the prior conviction.

Why was the district court wrong to do this?

The Case Against Brilliance

Via Prawfsblawg (which seems to have received its own tip from one of my professors, Samuel Bray) I learned about Daniel Farber's, Too Clever by Half: The Case Against Brilliance.  Prawfs quotes at length from the article, and I will do so as well from the portion of the article that I found funniest:

The case against brilliance is strongest in economics simply because economics takes the most positive view of human rationality. If a theory is brilliant, by definition everyone in history prior to its discovery was systematically wrong about something. The whole thrust of economic theory, however, is against the likelihood that everyone has been wrong.

Another field where brilliance should be counted as a disadvantage is constitutional law—an area in which brilliant scholarship has recently become rampant. Consider just two particularly brilliant recent theories. Dean John Hart Ely of Stanford Law School has addressed the question of how to interpret certain vague clauses in the Constitution, such as the privileges and immunities clause of the Fourteenth Amendment ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"). Allowing judges an open-ended license under these clauses would be undemocratic, but to ignore the clauses would also be improper. Hence, Ely argues, judges should apply the clauses to strengthen democracy by striking down legislation that in some way encumbers the democratic process. This is Ely's famous "representation- reinforcing" theory of judicial review, so-called because the courts reinforce representative democracy.

Professor Ronald Dworkin argues, by contrast, that the open-ended clauses of the Constitution are based on specific conceptions of equality, freedom, and justice. In interpreting these clauses, however, judges should rely not on the particular conceptions of the framers but rather on the deeper philosophical concepts that lie behind these conceptions. Thus, in exercising judicial review, judges should not be concerned with how the framers of the equal protection clause construed the concept of equality, or even with how the average citizen today understands equality, but rather with the true meaning of equality. Dworkin's theory, like Ely's, takes the constitutional text as the starting point, but then adds a brilliant gloss of its own.

Unfortunately, these theories share a flaw, a flaw endemic to brilliant legal theories. The Fourteenth Amendment was not written by Ronald Dworkin or John Hart Ely. Its primary drafter was a man named John Bingham. Bingham had a certain flair for sermonizing. But, based on his public speeches, it seems doubtful that he was as intelligent as the average law professor, let alone Ronald Dworkin and John Hart Ely. It is hard to see how he could have had in mind a notion so ingenious that no one thought of it until Ronald Dworkin and John Hart Ely came along.

You should read the whole thing for yourself.  Also, via Orin Kerr, here is a link to a different version of the essay that was published in the Minnesota Law Review back in 1986.

Quirky Law Review Article of the Week: Banning Lawns

Here's an article I discovered a little while back.  I took a look at it before its destination was finalized, but it looks like it ultimately got picked up by the George Washington Law Review.  The article is Banning Lawns, by Sarah Schindler.  I think that the abstract does a pretty good job of showing how the article caught my attention:

        Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.        Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes to a loss of biodiversity and typically requires vast amounts of water, pesticides, and gas-powered mowing.          In this Article, I consider municipal authority to ban or substantially limit pre-existing lawns and mandate their replacement with native plantings or productive fruit- or vegetable-bearing plants. Although this proposal would no doubt prove politically contentious, local governments — especially those in drought-prone areas — might be forced to consider such a mandate in the future. Furthering this practical reality, I address the legitimate zoning, police power, and nuisance rationales for the passage of lawn bans, as well as the likely challenges they would face. I also consider more nuanced regulatory approaches that a municipality could use to limit lawns and their attendant environmental harms, including norm change, market-based mechanisms such as progressive block pricing for water, and incentivizing the removal of lawns.

 I recall that when I first read the article, Schindler did not address the political problems raised by her thesis.  It looks like she may have done more to deal with this issue, though I still have my doubts over whether towns will ever adopt the policies she suggests.  Nevertheless, it is a very interesting article with a lot of compelling arguments showing that lawns are very, very bad.

The Right Not to Bear Arms

The Huffington Post reports about a development in Nelson, Georgia's new firearms ordinance.  Enacted in April, the ordinance originally mandated firearm and ammunition ownership (with some exceptions for convicted felons, those with physical or mental disabilities, or those who object to gun ownership).

After being sued by the Brady Foundation, Nelson agreed to amend its ordinance, with the text of the amendment now recognizing the right of citizens not to bring firearms into their homes.  Unfortunately, this issue will not go to court, which prevents clarification of whether there is a right not to bear arms and the scope of this right.

I find this issue interesting because it reminds me of Joseph Blocher's recent article in the Stanford Law Review entitled The Right Not to Keep or Bear Arms.  Here is the abstract:

Sometimes a constitutional right to do a particular thing is accompanied by  a right not to do that thing. The First Amendment, for example, guarantees both  the right to speak and the right not to speak. This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding arms, and what practical implications, if any, the latter right would have. The Article concludes—albeit with some important qualifications—that a right not to keep or bear arms is implied by what the Supreme Court has called the “core” and “central component” of the Second Amendment: self-defense, especially in the home.  Recognizing such a right might call into question the constitutionality of the growing number of “anti-gun control” laws that make it difficult or illegal for private individuals to avoid having guns in their actual or constructive possession.

While laws of mandatory gun ownership are certainly not as common as laws that restrict gun ownership, the Nelson situation illustrates that these cases sometimes do arise.

Old and New Perspectives on Problems of Legal Scholarship

At Prawfsblawg, Paul Horwitz criticizes the overuse of exaggerated novelty claims in articles' abstracts and introductions.  Pointing to articles by Mark Tushnet and Judge Richard Posner, Horwitz notes that many articles often make similar argumentative moves, that authors may be pressured to publish by their departments, and that editors are susceptible to novelty claims because they want to feel relevant.

Meanwhile, via the Zombie Law blog (of all places), I learned about this excellent essay by Fred Roddell.  Though it was published in 1936, I found that much of Roddell's criticism remains relevant to legal scholarship today.  Some of Roddell's more memorable remarks include how to find humor in law review articles:

Occasionally, very occasionally, a bit of heavy humor does get into print. But it must be the sort of humor that tends to produce, at best, a cracked smile rather than a guffaw. And most law review writers, trying to produce a cracked smile, come out with one of those pedantic wheezes that get an uncomfortably forced response when professors use them in a classroom. The best way to get a laugh out of a law review is to take a couple of drinks and then read an article, any article, aloud. That can be really funny.

The strange implications of requiring numerous footnotes:

[Probative footnotes] also show the suspicious twist of the legal mind. The idea seems to be that a man can not be trusted to make a straight statement unless he takes his readers by the paw and leads them to chapter and verse. Every legal writer is presumed to be a liar until he proves himself otherwise with a flock of footnotes.

And, notably, authors' fear of making bold statements:

[I]t is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so-called style. The average law review writer is peculiarly able to say nothing with an air of great importance. When I used to read law reviews, I used constantly to be reminded of an elephant trying to swat a fly.
. . .
Long sentences, awkward constructions, and fuzzy-wuzzy words that seem to apologize for daring to venture an opinion are part of the price the law reviews pay for their precious dignity. And circumlocution does not make for strong writing.  I grant that a rapier in capable hands can be just as effective as a 'bludgeon. But the average law review writer, scorning the common bludgeon and reaching into his style for a rapier, finds himself trying to wield a barn door.

I think that Roddell's points are as relevant to today's legal scholarship as the points Horwitz, Tushnet, and Posner make.  I think that this is especially interesting with respect to Roddell's last point about the fear of making strong claims.  While the bulk of most legal articles fits Roddell's characterization, the consistent exception to this rule is the abstract and introduction.  In my experience, many articles consist of a deafening fanfare that gives way to mumbling and rambling.

New Jersey To Ban Sexual Orientation Change Efforts for Minors

It looks like New Jersey is going to be the second state to outlaw sexual orientation change efforts for minors.  Sexual orientation change efforts consist of therapy, counseling, and other efforts by psychiatrists to change the sexual orientation of gay youths.  Various professional organizations, including the American Medical Association and the American Psychiatric Association, decry this practice and argue that it is harmful for youths.

California was the first state to outlaw sexual orientation change efforts for minors.  The statute was challenged on First Amendment grounds, leading to a split between two California District Courts.  In Welch v. Brown, Judge William Shubb upheld an injunction preventing the law from taking effect, holding that the law constituted impermissible viewpoint discrimination and violated the First Amendment.  In Pickup v. Brown, Judge Kimberly Mueller refused to uphold a similar injunction, holding that sexual orientation change efforts did not constitute expressive conduct and was therefore subject to the state's control so long as there was a rational basis for the law.  The case has since been appealed and the Ninth Circuit still has yet to release a decision.  (The various briefs submitted by the parties and amici can be found here).

Eugene Volokh blogged about the split here, noting that existing Ninth Circuit precedent seemed to support Judge Shubb's ruling.  In Conant v. Walters, 309 F.3d 629 (2002), for instance, the Ninth Circuit upheld an injunction prohibiting the criminal investigation of a doctor on the sole basis that the doctor recommended the use of medical marijuana to a patient.  The court noted that it is important that a doctor feel able to speak freely to his or her patients.  Volokh pointed out, however, that the sexual orientation change efforts cases raise an open question (at the Supreme Court level) of the power of states to restrict professional-client speech on the grounds of that speech harming the client.  He concludes that this case may well be destined for the Supreme Court because it raises such an open question.

The New Jersey statute certainly makes things more interesting for this type of statute.  I have not researched the issue in depth, but my preliminary check of cases turned up no controlling authority for the New Jersey courts.  The closest authority I could find was Cunningham v. New Jersey, 452 F. Supp. 2d 591 (D. N. J. 2006).  In this case, the New Jersey District Court cited Conant and noted that it stood for the proposition that a doctor's statements to a patient regarding treatment could be protected by the First Amendment.  The court, however, was distinguishing the case before it from Conant, and, in any event, this opinion is at the district level and is persuasive at most for the New Jersey District Court.

I am interested in this issue because I think it illustrates the limits of theories behind the First Amendment.  One central justification for First Amendment protections is that protecting speech preserves a marketplace of ideas.  People speak freely and share ideas, and through this process of sharing, the best ideas will become clear to those participating in the discourse.  Speech between doctors/psychiatrists/psychologists and patients may be less likely to contribute to any meaningful marketplace of ideas because the speech is private.  The patient may feel compelled to share whatever is discussed with others, but the structure of the professional/patient interaction does not seem to lend itself to this.  Moreover, speech by professionals reminds me of speech by experts that Robert Post discusses in his book, Democracy, Expertise, and Academic Freedom : a First Amendment Jurisprudence for the Modern State.  Post seems to raise similar questions about whether the marketplace of ideas theory applies to private professional-client speech.  Moreover, Post notes that traditional marketplace of ideas justifications break down in the context of expert speech.  Speech by experts is not characterized by a deluge of conflicting opinions, but is rather regulated by peer review.  The dominant theory underlying expert speech seems to be accuracy, rather than variety.  This doesn't necessarily mean that expert speech should be easily regulated, however, because there is the danger of the state getting a regulation of expert speech wrong.  While I approve of the states' policies in this case - there is always the danger that states may make similar laws banning speech that is not as obviously harmful, or that may in fact be beneficial.  This danger perpetually exists because legislators are often not experts themselves.

I think that the California and New Jersey statutes and the cases involved in the California litigation are fascinating examples of how the First Amendment affects state regulation of professional speech.  I would not be surprised if litigation similar to the California lawsuits occurs in New Jersey, and I am interested in seeing how the New Jersey District Court (with its lack of controlling precedent) will react to such a lawsuit.

Iowa Supreme Court: Sentences of Mandatory Life Without Parole (or Practical Equivalent) for Juveniles is Unconstitutional

In three opinions released last Friday, the Iowa Supreme Court ruled that Iowa's constitution prohibits courts from imposing a sentence of life in prison without the possibility of parole for juvenile offenders.  The Court notably applied this rule to cases involving sentences that are the "practical equivalent" of life in prison without parole -- meaning that defendants sentenced to lengthy prison terms may still challenge these sentences if they result in the defendants effectively spending the rest their lives in prison.

The cases are:

State v. Null

State v. Pearson

State v. Ragland

I thought that this excerpt from Ragland did a good job summarizing the Court's holdings and reasoning:

[T]he rationale of Miller, as well as Graham, reveals that the unconstitutional imposition of a mandatory life-without-parole sentence is not fixed by substituting it with a sentence with parole that is the practical equivalent of a life sentence without parole. Oftentimes, it is  important that the spirit of the law not be lost in the application of the  law. This is one such time. The spirit of the constitutional mandates of  Miller and Graham instruct that much more is at stake in the sentencing  of juveniles than merely making sure that parole is possible. In light of  our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for  the attributes of juveniles that are distinct from adult conduct. At the  core of all of this also lies the profound sense of what a person loses by  beginning to serve a lifetime of incarceration as a youth.  

In the end, a government system that resolves disputes could  hardly call itself a system of justice with a rule that demands  individualized sentencing considerations common to all youths apply only to those youths facing a sentence of life without parole and not to those youths facing a sentence of life with no parole until age seventy-eight. Accordingly, we hold Miller applies to sentences that are the  functional equivalent of life without parole. The commuted sentence in  this case is the functional equivalent of a life sentence without parole.

The Des Moines Register reports on the case here.

(H/T: Howard Bashman at How Appealing)

Introduction: Interest Convergence and the Limits of Law Enforcement: Developments, Prospects, and Distractions

In a New York Times Op Ed released yesterday, Professors Devon Carbado, Kimberlé Crenshaw, and Cheryl Harris reacted to Judge Scheindlin's opinion that the New York City Police Department's "Stop-and-Frisk" policy violated the Fourth and Fourteenth Amendments.  (That opinion is available in two parts: here and here).

Carbado, Crenshaw, and Harris focus on how this decision makes little difference to the status quo where the Supreme Court's approach to the Fourth Amendment permits police officers' use of race as a factor in stopping, frisking, and pulling over African-Americans and Latinos.  The government's law enforcement power remains characterized by the vast discretion afforded to officers.

This article is a very good primer on police discretion under existing Fourth Amendment law.  It effectively outlines the various parts of police searches and seizures and does so in a very approachable manner.  The article does not explore how these problems can be solved.  This is not surprising because virtually all of the practices the article discusses have been upheld by the United States Supreme Court.  This means that short of legislative action or systemic changes to police enforcement policies, changes to the status quo face a very difficult uphill battle.

My next project will be to argue that there may be a solution within reach.  Drawing on Derrick Bell's theory of interest convergence, I will outline how recent developments in the Supreme Court's Fourth Amendment jurisprudence indicate that the Court may be willing to give new force to this often-neglected safeguard.  I will then note that current discussions of government surveillance practices and the executive's use of lethal force present an excellent opportunity for a paradigm shift in Fourth Amendment law.  Finally, I warn against potential distractions that may undermine the coalition of interests that the current political climate can foster.

My hope is to have this written and sent out by the end of the current law review slating cycle.  At the same time, I will plan to write a number of posts that correspond to the various parts of the essay I will be writing in order to summarize and outline the arguments I intend to make.  This post is dedicated to the introduction, a more developed version of which appears after the jump.

Lessons on Empirical Legal Research Through a Twombly/Iqbal Lens

Through the Civil Procedure and Federal Courts Blog, I learned of the existence of this article by David Freeman Engstrom a while back, but due to the hectic schedule of wrapping up work I was not able to read it until my flight back to Iowa.  Once I was finally able to read it, I found the article to be very informative and interesting, and I recommend that anybody who is interested in Civil Procedure, the ramifications of Twombly and Iqbal, or empirical legal research in general to read it.  The full citation is: David Freeman Engstrom, The Twiqbal Puzzle and Empirical Study of Civil Procedure, 65 Stan. L. Rev. 1203 (2013).

Here is the (mercifully short) abstract:

This essay, written for a Stanford Law Review issue exploring “The Empirical Revolution in Law,” offers a critical assessment of the large body of empirical scholarship examining the effect of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on judicial and litigant behavior and then uses the critique to make some broader observations about the past, present, and future of empirical study of civil procedure.

The article offers some good examples of empirical legal studies of the impact of Twombly and Iqbal -- the two cases that raised the standard of proof required in civil pleadings.  While many commentators theorize and lament that these cases would create a sea change in civil procedure, the satisfactory studies apparently show that while some changes have occurred, they are not as substantial as the changes forecasted or supposedly demonstrated by less-satisfactory studies.

I found the most informative portion of the article to be that beginning on page 1213 which detailed the missteps of commentators discussing Twombly and Iqbal's impact.  Among other problems, the article discusses sampling bias, failure to include control groups, and the danger of using Westlaw or LexisNexis in generating samples of cases for legal research.  I mentioned in this earlier post that I had come across some scholarship that appeared to make these errors, but Engstrom's article uncovers the depth and widespread nature of these errors in many of the published studies of these cases.

I think that this article, or in the very least, the portions of the article discussing the systematic errors made by scholars studying Twombly and Iqbal are very helpful for law journals' articles editors who may not be entirely familiar with what good empirical legal research looks like.  Engstrom tells a good cautionary tale, and provides an approachable list of missteps that should be identified and avoided, both by authors and by law journals.

Another Reason I Don't Like Section 230 of the Communications Decency Act

I mentioned section 230 of the Communications Decency Act in this previous post, but I will briefly discuss it again here.  Under section 230, plaintiffs are typically barred from suing websites for defamation or other causes of action arising from the conduct of third parties who post the offending material on the website.

Take this flagrantly defamatory post as an example.  This post contains almost all of the elements that make commentators upset about section 230.  For much of the post, the author implies that I have a criminal history so extensive that it reaches back beyond the date of my birth.  I would love to sue the author of this post, but unfortunately his blog and his posts are all anonymous.  The author does refer to me as a "fellow" law student, indicating that he too may be a law student.  While normally this would preclude recovery in a lawsuit due to insolvency of the defendant, the possibility remains that the author of this post is one of those lucky students who has received a job offer in these troubling economic times.

Could I sue Wordpress for accommodating this attack on my character?  The answer, unfortunately, is no.  Under section 230, Wordpress is not to be treated as the publisher of anything posted on its website by third parties.  Section 230 has been further interpreted that this will hold true even if Wordpress has a policy of policing and removing offending content.

Courts and the legislator justify section 230 because it promotes the use of online platforms and prevents chill that may arise in the event that websites could be sued for the conduct of third parties who post on the website.  This is an admirable goal, although it may need some revision in light of the internet no longer being a developing medium of communication and expression.  In the meantime, however, section 230 remains, and those of us who are defamed by anonymous fellow law students must continue to suffer.

Delving Into Undue Prejudice: A Study in Profile Evidence with Denny Crane

In my evidence class last semester, we used George Fisher’s popular casebook, which began our study of evidence with a walkthrough of evidentiary “basics”: relevance (FRE 401) and unduly prejudicial evidence (FRE 403).  As the course progressed, these concepts tended to fade into the background – often playing the part of backup arguments in the event that a hearsay or character evidence objection seemed too simple or ill-founded.

While this treatment of relevance and undue prejudice was probably necessary given the time constraints of the class, this quick treatment may cause classes to overlook the rich doctrine of these rules.  Despite the relatively simple text of bans on unduly prejudicial evidence, these rules are the vehicle for an intricate web of traditional and judge-made doctrine regarding the admission of specific types of evidence.

Take, for example, profile evidence.

Testimony is profile evidence when it seeks to infer that a defendant committed a crime because that defendant fit the profile of a guilty person.  This evidence appears in a variety of contexts, most infamously in cases involving drug couriers.  In a typical case of profile evidence, a police expert is called to testify about the features of a “typical” criminal.  For instance, a typical drug courier would purchase a one-way plane ticket, would pack lightly, would walk quickly, and would meet a contact person at his/her destination.  The expert would then note how the defendant fit all of these features.

Or, to borrow an example from Boston Legal, consider the profile of the typical person looking to solicit sex for a fee in a restroom.  In “Oral Contracts” (Episode 8, Season 4), William Shatner’s character, Denny Crane, finds himself in an uncomfortable situation when he is arrested for this very crime:

Red Eye and Lawfares

One of my favorite shows is Red Eye.  It airs weeknights at 3:00 am Eastern Time on Fox News.  The show follows a panel format, with the host, Greg Gutfeld summarizing stories and asking snide and insulting questions to each member on the panel.  Gutfeld is accompanied by his “repulsive sidekick,” Bill Schulz and ombudsman, Andy Levy.  John Bolton, former ambassador to the United Nations, is the “President” of Red Eye.  Guests on the show include comedians, people like Paul Mecurio who claim to be comedians, Fox News contributors or anchors, politicians, and, as this post demonstrates, conspiracy theorists.

With this background, consider this recent post by Benjamin Wittes over at Lawfare.  Wittes makes it very clear that Lawfare, a blog about national security and law, is not to be confused with the Lawfare Project, run by Brooke Goldstein.  Wittes had never had occasion to distinguish the two organizations, but Red Eye intervened.

Red Eye is characterized by its informal presentation, with Gutfeld, Schulz, and guests often interrupting each other.  When the set falls silent during a guest’s point, it is a strong indication that something is going horribly wrong.  When Paul Mecurio interjects and tries to stop another guest from digging herself deeper into a hole, you can be positive that something awful is happening.

The one question I have after watching this video and reading Wittes’s reaction is whether Andy Levy, the ombudsman for the show, corrected Goldstein’s rant.  Levy conducts a “Post-Game Report” (formerly the “Halftime Report”) where he corrects the often numerous errors made by Gutfeld and the panelists.  Sometimes he goes out of his way to ridicule people who are not on the show.  I would be very surprised if Levy did not reply to Goldstein’s comments, and if I manage to find a video of this response, I will make sure to post it.

A Fizzled Debate Raises an Interesting Question About the Computer Fraud and Abuse Act

Exciting times over at the Volokh Conspiracy.

Stewart Baker posted about Michael Vatis’ post (which seems to have been removed).  Baker argued that the Obama Campaign’s practice of having workers log in to Facebook and use the campaign website’s software to create and send messages to their undecided friends constitutes a violation of the Computer Fraud and Abuse Act (CFAA).  Baker thought that this could be the makings of a new scandal for the administration.   

Orin Kerr then chimed in and pointed out that there was probably no violation of the CFAA, noting that the violation would probably only have occurred under a broad reading of the law that the Department of Justice holds.  Kerr notes that under the DOJ’s interpretation – that illegal, “unauthorized” access occurs whenever a user violates the terms of service on a website – everybody is probably guilty of violating the CFAA.

Baker ended up retracting his original post, noting that upon further review of Facebook’s terms of service, it appeared that the Obama Campaign had complied and did not violate the CFAA even under the DOJ’s broad interpretation.

While it appears that Baker’s original concerns about violating the statute were misguided, I feel like had Facebook’s terms of use not authorized the campaign’s practice, this situation would have been a harder case than Kerr argued.

United States v. Alaniz: A Case Study in Issue Conflation and Awkward Analysis

Over at the EvidenceProf Blog, Collin Miller posts about the recent Fifth Circuit case, UnitedStates v. Alaniz.  In this money laundering case, one of the codefendants, Magana, claimed that she did not realize she was helping her brother engage in criminal conduct.  To support this claim, Magana sought to admit evidence of a coworker who would testify that Magana was a naïve and gullible person.  The district court ruled against the admission of this evidence, concluding that even if Magana was naïve, she still could have acted knowingly or willingly in the money laundering scheme.  The Fifth Circuit affirmed this ruling, adding that the coworker’s testimony about Magana’s naïveté would have only incrementally supported her claim that she was not aware of the overall scheme.

Miller does not hold back in expressing his opinion on this ruling.  Miller labels the Fifth Circuit’s discussion of the naïveté evidence as “some of the worst analysis that I have ever seen by a federal appellate court.”  He also deems “Ridiculous” the conclusion that the coworker’s testimony would have only incrementally added to Magana’s defense, and argues that because this is the only evidence mentioned by the court that supports Magana’s naïveté claim, this evidence would have been the “centerpiece” of her defense.

I am in agreement with Miller that the district court’s reasoning for excluding the evidence was lacking.  If the reasoning of its decision were adopted universally, character evidence would become largely inadmissible, since people are always capable of acting in a manner inconsistent with their character.

On the other hand, I am not so sure that the Fifth Circuit’s analysis is as terrible as Miller argues.  The Circuit begins by noting that the district court has a great deal of discretion in making decisions regarding the admission of evidence.  This is worth mentioning because the lower court may have concluded that the coworker’s friendship with Magana may have indicated bias and therefore decreased the probative value of the testimony.  Alternatively, the coworker would probably not have been able to testify about Magana’s gullibility when it came to organizing her finances – making the character evidence less probative regarding the central issue of the case.  While the district court did not engage in any of this analysis, it was probably worth mentioning that the court had the discretion it did.

Moreover, I think that Miller overstates the argument against the Fifth Circuit’s analysis of the incremental nature of the coworker’s testimony.  While Magana’s claim of naïveté may have been her full defense, it is worth noting the volume of evidence against.  Over the course of the money laundering scheme, Magana received $220,000 in wire transfers into eleven bank accounts that she controlled.  Money was also wired out of these accounts to other individuals involved in the scheme.  Magana was aware that her brother was using a false name, and three cars were purchased in Magana’s name over the course of the scheme.  Even if the coworker’s testimony about Magana’s naïve character would have been the bulk of her defense, I think the Fifth Circuit would probably be right to conclude that any error in excluding this testimony was harmless beyond a reasonable doubt.  Even though the coworker’s testimony was Magana’s full defense, that doesn’t change the fact that the defense would have almost certainly failed to exonerate her.

That said, the court should have been more explicit in stating why the coworker’s testimony would have failed to make a difference.  Moreover, I think that this analysis is better suited to a harmless error discussion, and I do not think that it is proper for the court to lump all of the discussion together in the context of why the court acted within its discretion.  Here, the relative probative value of evidence was better suited for a discussion of harmless error – not for analysis over whether error had occurred in the first place.