After getting out of prison for burglary, Jack (defendant) shacked up with Fae, who ultimately became pregnant by him. Shortly after giving birth to Jack’s son, the two got into a heated argument when Jack drove up to the house and called out for Fae who came to the porch. The two were yelling back and forth when Jack threw some photos out the car window and, drawing his hand across his neck, said he would “level” Fae’s family. As Fae called 911 she yelled back, “You do that.” Sometime later, the police arrived and took a report. They told Fae she should nail her door shut to protect herself. Taking their advice, she did. Eventually the prosecution filed charges against Jack for criminal threats.
At trial, Fae testified to the above and, in addition, that Jack’s threats had made her afraid for her safety. To corroborate the reasonableness of her alleged fear, she was allowed to testify that: defendant had told her he had disemboweled an inmate in prison in order to retrieve drugs hidden in his stomach and that he had killed his ex-wife’s lover and dumped the body in a lake. Fae stated that knowing these things, caused her to take Jack’s statement that he would “level” her family seriously.
There were no reports, prior convictions or evidence of spousal abuse by defendant. Prison records did not contain any reports or information concerning an alleged disembowelment. Nor were police investigators ever able to find evidence or corroboration of a murder involving the dumping of the body in the local lake
The jury returned a verdict of guilty and appellant was sentenced, under Three Strikes, to life in prison.
Issue:
Was Fae’s evidence of alleged past crimes by defendant properly admitted as corroboration of her fear?
Argument
1. Fae’s hearsay evidence of supposed prior murders by defendant was improper self-corroboration. The purpose of corroborative evidence is to provide some independent verification of a witness’s testimony, and here the supposed “corroboration” came from the witness herself.
2. While Fae could testify that appellant made the threat to “level” her family, and while should could testify that she was made afraid by this statement, it was nothing but bootstrapping to allow her to give evidence of other alleged crimes in order to substantiate that her fear was reasonable.
Background: Criminalizing “threats” runs the risk of penalizing free speech which often makes threats or exagerrated statements as jokes or for rhetorical effect. To draw the line between legitimate and criminal speech, the court’s require several things: (1) that the person addressed actual feel fear and (2) that the fear be objectively reasonable. It is not enough for a person to simpy say that they were afraid. It is not even enough for them to actually have been made afraid. The fear has to be actual and reasonable -- the kind of fear a normal, average, person would feel in the same situation. The evidence of defendant’s alleged past murders was offered to prove that Fae’s fear was reasonable. But this evidence came entirely from Fae’s mouth with no independent verification at all. How do we know she wasn’t make it up?
3. Caselaw has universally held for close 300 years that evidence of past crimes is extremely prejudicial, in that it biases the jury against the defendant, and predisposes them to convict him, without examining the strength of the actual evidence on the present crime, simply because being a criminal he “probably” did it.
Appellate Court Ruling.
The court refused to reach the issue and let the sentence stand because, it said, there was no evidence in the record as to what proposed testimony was before the trial court when he made his ruling allowing the evidence.
Critique.
The court’s claim that there were insufficient facts in the record to adjudicate the claim is not substantiated by the record itself.
Prior to trial, the parties argued over whether Fae’s evidence of alleged crimes should be admitted. The reporter’s transcript shows them arguing over various numbered items that the prosecution wanted to introduce and listed in a written motion. With respect to Fae’s evidence, either the court or one of the attorneys referred to the item number in the list, giving a brief verbal description; e.g.. Okay, now, item number 3 - this business about him telling her that he disemboweled somebody in prison to retrieve the drugs....; and, Lets go to item number 9, that he told her he had killed his ex-wife’s lover and dumped the body in the lake. etc.
Notwithstanding these descriptions the Court Appeal asserted that it could not really evaluate what went on at the hearing without having a copy of the prosecutor’s written motion, even though the written motion itself was not part of the normal appellate record.
The court’s reasoning is inadequate. For the transcript as it stood to be insufficient, one would have to suppose that the trial court and counsel were engaged in creative fantasizing. The issue on appeal was not whether they were engaged in creative fantasizing but whether Fae was. To avoid that issue, the Court of Appeal would have us suppose that court and counsel were talking about something entirely different than what they are reported to have discussed.
As bad as being denied a full appellate review on the merits, the court’s ruling leaves spectral evidence alive and well in California.
At the Salem Witch trials back in the 1650’s, Sarah Goode, Sarah Osborne and others were accused of being witches and engaging in witchcraft; among other things, inducing a wart on one of the victims and so on. The victims were young girls aged 9 and 11. To substantiate their claims the victims were allowed to introduce “spectral evidence” -- this evidence consisted of them falling on the floor in court, shrieking and pointing hysterically at the witch’s spectre floating about the courtroom. Of course no one else could see it. But the evidence was admitted anyway.
Why? Because the judges, being well trained in both theology and the English Common Law ruled that the Devil could not use a person’s shape without that person’s permission and therefore when the victim claimed to “see” the ghost of a specific person, it was evidence that the defendant was in league with the devil. In modern lingo, the witnesses were allowed to self-corroborate.
Welcome to the 17th Century. In California the hollow spectre of an appeal has allowed spectral evidence to fly again.
But that’s just my opinion.
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