Speech as evidence of intent or of conduct
HOWARD H SCHWEBER
hhschweber at facstaff.wisc.edu
Sun Mar 18 15:41:02 PDT 2007
None of these comments abu out Wisconsin v. Mitchell seem to me to capture the situation that was originally described. A piece of artwork produced "several years earlier" cannot possibly establish a motive for a crime committed today, can it?
At first blush, I realize, this looks like a question of rules of evidence rather than First Amendment, but the separation is not complete; as several others have already noted, a rule that any speech at any time is evidence of "motive" for the rest of a person's life would have to have a pretty profound chilling effect once it became publicly known, one quite different from merely accepting contemporaneous statements as evidence of mens rea.
Howard Schweber
Dept of Poli Sci
UW-Madison
----- Original Message -----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
Date: Sunday, March 18, 2007 4:28 pm
Subject: Speech as evidence of intent or of conduct
To: conlawprof at lists.ucla.edu
> At least since Haupt, a 1940s treason case, the Supreme Court has
> recognized that speech is usable as evidence of intent or of conduct.
> Notwithstanding Mitchell, that does indeed deter speech in some
> measure. Nonetheless, a defendant's speech must be usable as evidence
> of what he did or why he did it, since so much of the evidence of
> people's intent (and much of the evidence of their conduct) stems from
> their own statements. If you're being prosecuted for the murder of
> your wife, evidence that you said to friends, "I hate my wife," is
> surely probative and must be admissible, even though the admissibility
> of such evidence would tend to deter such statements. Likewise, if
> you're being prosecuted for a crime in which one of the elements is
> racist motivation, evidence that you said to your friends "let's go
> beat up some white folks" is probative and must be admissible. If
> you're being prosecuted for treason, where the focus isn't just on
> what you did but on whether you did it with the intention of helping
> the Nazis, evidence that you sympathize with the Nazis is probative
> and must be admissible.
>
> In a criminal trial, such statements standing alone may not be
> enough to prove guilt beyond a reasonable doubt (though they may do so
> when coupled with other evidence). But where the threshold is lower
> -- probable cause -- even middling evidence of the crime, which may
> include the speech described below, would be adequate.
>
> Eugene
>
>
>
> Robert Sheridan writes:
>
> Wisconson v. Mitchell, 508 US 476 (1993) appears to be the case you
> very kindly provided; I'm impressed, not for the first time. Here's a
> quote from the headnote, which still seems to leave unanswered some of
> the questions posed:
>
> "...
>
> * Motive plays the same role under the state statute as it does
> under federal and state antidiscrimination laws, which have been
> upheld against constitutional challenge. Nothing in R.A.V. v. St.
> Paul, supra, compels a different result here. The ordinance at issue
> there was explicitly directed at speech, while the one here is aimed
> at conduct unprotected by the First Amendment. Moreover, the State's
> desire to redress what it sees as the greater individual and societal
> harm inflicted by bias-inspired conduct provides an adequate
> explanation for the provision over and above mere disagreement with
> offenders' beliefs or biases. Pp. 485-488.
>
> * (c) Because the statute has no "chilling effect" on free speech,
> it is not unconstitutionally overbroad. The prospect of a citizen
> suppressing his bigoted beliefs for fear that evidence of those
> beliefs will be introduced against him at trial if he commits a
> serious offense against person or property is too speculative a
> hypothesis to support this claim. Moreover, the First Amendment
> permits the admission of previous declarations or statements to
> establish the elements of a crime or to prove motive or intent,
> subject to evidentiary rules dealing with relevancy, reliability, and
> the like. Haupt v. United States, 330 U.S. 631 < . Pp. 488-490.
>
>
>
> The statute prohibiting criminal street gang membership, by contrast
> to Mitchell, does involve a restriction on constitutionally protected
> activity, association in a group, such as discussed in Scales, where
> the group was the CPUSA.
>
> Note also that Hamdi v. Rumsfeld (2004) __ US __, 124 S. Ct. 2663,
> can, and I believe should, be read as a "gang" membership case in that
> Mr. Hamdi sought to challenge his classification as an "enemy
> combatant," a member in a group fighting the U.S., i.e. a gang of
> sorts. The issue was whether he had received sufficient (or any)
> 'process,' with the Court holding 'no.'
>
>
> Should students be provided a Miranda-type warning before submitting
> homework essays or art projects, pursuant to school requirement,
> advising that what they say can and will be used against them in a
> court of law, such as in a hate-crime or gang-membership prosecution?
> That an attorney will be provided by the school at no cost to vet
> required student-submissions against the prospect of prosecution?
>
> Suppose a student not suspected of being a gang member, but
> impressed by the life and death issues of the gang culture in his
> school, submitted such a gang-related poster, and the school took it
> down. A violation of the student's right to express his fears and concerns?
>
> Doesn't fear of prosecution for student art or essays chill speech?
>
> Seems to me that I read in today's NYT Linda Greenhouse piece that
> the Court is now considering the "Bong hits 4 Jesus" student-banner
> case which may shed some light when decided. Think I also saw mention
> of our distinguished correspondent.
>
> rs
> sfls
>
>
> On Mar 18, 2007, at 11:32 AM, Douglas Laycock wrote:
>
>
> I think the relevant case is Wisconsin v. Mitchell(?), and
> it goes the other way. Not 100% sure I have the defendant's name
> right. This was a year or two after RAV; it held that speech could be
> admitted to show racial motive under a statute providing enhanced
> penalties for racially motivated crimes. Held, that was not
> punishment for the speech.
>
> Using speech to show membership, as in your case, seems a
> step more attenuated than using speech to show motive.
>
> Quoting Robert Sheridan <bobsheridan at earthlink.net>:
>
> > During a preliminary hearing to determine whether
> probable cause
> > existed to try a defendant for robbery and being a gang
> member, a
> > police Gang Task Force detective testified as an expert,
> as is
> > permitted, that in his opinion the defendant was an active
> member of
> > a "violent street gang," as defined by California´s Street
> Terrorism
> > Enforcement and Prevention Act, Penal Code Sec. 186.20,
> et. seq.
> >
> > Scales v. U.S. 367 US 203 (1961), one of the Communist
> Party
> > membership cases of the McCarthy Era, the Cold War, the
> Red Scares,
> > and the witch-hunts (see American Prometheus, by Bird &
> Sherwin
> > (Vintage, 2005), a biography of J. Robert Oppenheimer,
> "the father of
> > the atomic bomb,") requires that membership in an
> outlawed group be
> > "active" and with specific intent to further its illegal
> ends, in
> > order to incur criminal liability. This applies today to
> street
> > gangs.
> >
> > Among the factors the detective cited as gang
> active-membership
> > criteria were such things as:
> >
> > -self-acknowledgment
> > -wearing gang attire, embellishments, insignia, tattoos,
> colors,
> > numbers, etc.
> > -flashing hand signs
> > -associating with known gang members
> >
> > As to the particular defendant I was appointed to
> represent, there
> > was a different factor. Several years earlier, while the
> defendant
> > was a high school student, the detective was summoned to
> the school
> > in response to a fight near the school among boys who were
> said to be
> > gang members. My client was thought to have been
> involved in that
> > incident. While the detective walked through a school
> hallway to
> > speak to those detained in connection with the fight, he
> saw some
> > art- posters, made by students, on the wall.
> >
> > Recognizing the poster above the name of my client to
> contain gang-
> > related symbols, the detective photographed the poster and
> name. It
> > shows a yellow field on a red background on which has been
> pasted, or
> > printed, scatter fashion, in collage style, the following
> legends,
> > among others: "I am this man; I am reptile; I am wild; I
> am coral; I
> > am NORTE; I am North; I am student; I am ready; I am
> American..."
> > The large numerals 22 and 14 are prominently superimposed.
> >
> > Red is the color worn by Nortenos, blue by Surenos.
> People have been
> > murdered for wearing the wrong color in the wrong
> district. 14 is
> > the 14th letter of the alphabet, "n," for Norte or
> Norteno. 22
> > stands for 22nd street, which belongs to Nortenos. 22B
> stands for the
> > 22nd and Bryant Street subgroup of Nortenos. They appear
> in tattoos,
> > on clothing, tagged on walls and buses, etc.
> >
> > In Latin-American culture, gangs, according to the
> detective-
> > historian, have existed for perhaps hundreds of years.
> They have
> > devolved into a North South rivalry, with the northerners,
> or
> > Nortenos, with a tilde over the 2d `n,´ being the more
> acclimated
> > while the Surenos, likewise with the tilde, are supposedly
> the
> > relative newcomers. They are deadly rivals, especially in
> prison,
> > and have staked out turf on the streets of LA, SF, and
> other cities.
> >
> > After the prelim, the defendant´s c/l wife, Estrella, the
> mother of
> > his two children, a bright, bilingual young woman of about
> 22 years
> > with a high school education who attends vocational
> training school,
> > stated resentfully that she didn´t think it was fair for
> the police
> > to have used this poster as evidence of gang membership
> against Alex.
> >
> > As soon as she said it, I realized that she was making a
> Conlaw
> > objection, which I was able to flesh out in mind later.
> >
> > "Why?" I asked.
> >
> > "Because he was in school and that was a school project,"
> she replied.
> >
> > What struck me first was that she is the one who thought
> of the
> > objection, not me, and I purport to teach the class.
> Obviously
> > there´s a sad disconnect. This, I thought, is how Conlaw
> gets made.
> > Someone, a civilian, an accused, or his friend or
> relative, gets
> > upset at the fairness of a heretofore common usage. The
> lawyers put
> > it in legal form by raising objections and supporting
> briefs, citing
> > text and cases etc. This was a Conlaw Moment for me.
> >
> > Secondly, as I thought about the matter, I wondered on
> what legal
> > ground could I move to exclude this evidence at trial.
> What case, I
> > wondered, permitted the First Amendment to be used to
> exclude/
> > suppress evidence as the Fourth and Fifth Amendments are
> used in
> > cases of illegal searches and confessions obtained in
> violation of
> > Miranda or voluntariness rules.
> >
> > Although the matter is now academic, as the case dealt out
> before
> > trial on non-gang-related charges, I would like to ask
> whether there
> > are cases in which evidence in a criminal prosecution has
> been
> > excluded based on academic freedom, artistic license,
> general
> > creativity or expression, or related First Amendment
> protected ideas?
> >
> > Somehow I have the feeling that it either doesn't exist,
> or looms
> > large before my eyes and I´m not seeing it.
> >
> > Perhaps the answer is that if the other amendments in the
> Bill of
> > Rights can be used to suppress evidence, why not the
> First? It´s
> > just that I´m having difficulty in pulling up the leading
> case, as
> > obvious as I suspect it may be.
> >
> > Haven´t legally seized private, personal diaries been
> introduced into
> > evidence where they contain statements that might be
> considered by a
> > jury to be admissions? Even over a privacy objection?
> Here the
> > student´s poster was published on a school wall, which
> likely kills a
> > privacy objection. Does privacy reside in the First
> Amendment, or
> > is it a moveable feast, which I think Griswold suggests,
> in resting
> > the penumbras and emanations on no less than four
> amendments, 3, 4,
> > 5, & 9, as I recall, but not #1.
> >
> > Would it make a difference whether the art project had
> been required
> > by the school? In other words, was submitted
> involuntarily or in
> > submission to legal authority?
> >
> > Should student submissions receive some FA protection
> against use in
> > criminal proceedings? In all cases? Some?
> >
> > Are the statements actual admissions, or by contrast, are
> they simply
> > artistic expressions related to the young man´s worldly
> concerns
> > that don't amount to admissions per artistic license? As
> a matter
> > of law? Or fact for the hanging jury?
> >
> > Suppose that gangs loom large in Alex´s mental, rational,
> and
> > emotional life and that he is mindful of their influence
> over his
> > choice of friends, manner of attire, and how he conducts
> himself; and
> > that he expresses his inner mind in a poster submitted to
> his
> > school, voluntarily or not, the way someone else might
> contribute a
> > poem or essay expressing deep feelings. For him, as a
> young male
> > Hispanic, these are life and death matters. He should be
> thinking
> > about them. Why not express them artistically? Isn't
> that what
> > artists do?
> >
> > I´ve seen news reports of students being hauled before
> authorities
> > for essays thought to be alarming or which seem to
> threaten to commit
> > another Columbine-like shooting massacre.
> >
> > I´d appreciate any comments on or off list and offer
> thanks in advance.
> >
> > rs
> > sfls
> >
> >
> >
> >
>
>
> Douglas Laycock
> Yale Kamisar Collegiate Professor of Law
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI 48109-1215
> 734-647-9713
>
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