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What's Up in the 8th

There's a stretch of I-90 west of here that I drive just about every day, and I know that the cops patrol it vigorously.  The speed limit's 60, if you keep your speed at 69 or under, no problem.  But if you go over 70, you stand a decent chance of being stopped if The Man is out and about.  I know that.  Brian Lumbus apparently didn't; he got stopped going 72, and the police discovered a cornucopia of items making him the majordomo of a check-cashing and identity theft ring.  That search is good, but the one of his grandmother's garage isn't; the opinion in State v. Lumbus has lots of good stuff on when a consent to search is not voluntary, but merely acquiescence to a claim of lawful authority.  Fat lot of good it does Lumbus; he doesn't live there or stay overnight, so he has no standing to contest the search.  The moral of the story is to be nice to your grandmother, at least if you're using her place to hide evidence of your crimes.  Spending a lot of time with grandma might not be fun, but it's infinitely preferable to spending the next decade in prison, as is Lumbus' fate.  

Several years ago, I contrasted the 8th District's reputation as the most 4th-Amendment friendly court in the State with its less than stellar work on hearsay issues:

If you're charged with a crime up here, don't worry about what the police found, because that will get thrown out.  But everything anybody ever said about you or the crime will come in.

The first part of that is perhaps less true.  The State won not only in Lumbus, but also in State v. Arafat, where we learn that so many drug dealers use hotels around here as their place of business that there's actually a unit in the police force - the HIT, or "Hotel Interdiction Team" - which focuses on that.  They look for people paying for rooms with cash, checking into a hotel without a reservation, having a local address, using a rental car, and leaving immediately after checking in.  Arafat does all that at a Super 8, and more, so I can't get too bothered when the panel decides that he provided reasonable suspicion for the investigative stop that resulted in the discovery of major drug offender weight of cocaine.

I can get bothered about State v. BeckwithBeckwith was charged with murder, and at trial one of the state's key witnesses, McGeever, suddenly developed amnesia.  The prosecutor was allowed to impeach him with the statement he'd given to the police.

Normally, you can't impeach your own witness, but there are two ways to get around that.  The first is if you can show both surprise and affirmative damage.  If you can't do that, you can ask the court to call the witness as a court's witness under EvidR 614; that allows any party to impeach. 

Beckwith provides a third:  you can impeach with a prior inconsistent statement under EvidR 801(D)(1)(a).  That's what the trial court allowed in that case, and the panel upholds it.

Not to put too fine a spin on it, but that's just wrong.  Here's the rule:

A statement is not hearsay if:

   (1) Prior statement by witness.

   The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with declarant's testimony, and was given under oath subject to cross-examination by the party against whom the statement is offered and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

The emphasized portion is the key, and you can see the problem:  the witness' statement here was made to the police, not under oath, and not made at a trial, hearing, or other proceeding.

The purpose of the rule, as the commentary to it indicates, is that it makes the prior statement substantive evidence.  Normally, impeachment evidence isn't; for example, let's say a victim in a domestic violence case recants her testimony, and the prosecutor impeaches her with the statement she gave police.  That's well and good, but if that's all the prosecutor has, the case gets 29'd; impeachment doesn't provide substantive evidence.  (On the other hand, the impeachment, plus police testimony that they observed bruises on the victim, would be enough to get around this.)

Kudos to the appellate lawyer for Beckwith.  (Not so much for the trial lawyer; there was no objection to any of the prosecutor's examination, so plain error review greatly reduces the chances of a successful appeal.)  Always check the record.  In this case, the lawyer found one of the key witness statements, which wasn't admitted as evidence, stapled to the back of the autopsy report, which was.  Despite the fact that "if there is the slightest possibility that harm could have resulted from the jury's viewing of unadmitted evidence, then reversal is mandatory," the majority decides the error is harmless because the statement was the same as the witness' testimony.  The dissent makes a fairly convincing argument that it wasn't, and in fact the statement was far more expansive.

Beckwith is troubling, because you can bet a memo has gone out in the prosecutor's office describing the New, Improved Formula for getting a recanting witness' prior statement in.  Now you've got to explain to the judge why he should ignore the appellate opinion that he's duty-bound to follow.  Somewhere it'll get worked out.  I hope.  


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