Speech as evidence of intent or of conduct
Rosenthal, Lawrence
rosentha at chapman.edu
Sun Mar 18 21:35:35 PDT 2007
Professor Schweber is quite right to observe that there is a constitutional dimension to the rules of evidence in this context. That is the upshot of Dawson v. Delaware. Although Dawson's membership in the Aryan Brotherhood was considered relevant to the capital sentencing as a matter of Delaware's law of evidence, the United States Supreme Court could find no sufficient connection between that evidence and any fact at issue in the proceeding to permit the admission of the evidence under the First Amendment. What I take from Dawson is that the First Amendment bars admission of evidence of a defendant's speech or expression unless, as a matter of federal law, there is some reasonable relation between the speech or expression and a matter properly at issue in a criminal proceeding. Thus, I suppose that if a court were truly convinced that the student's art was not probative of current gang membership, either for reasons of staleness or the ambiguity of the message conveyed by the art itself, then the First Amendment would bar admission of the evidence regardless of its admissibility as a matter of state law. I am not as sure as Professor Schweber that the art in this particular case is so lacking in probative value (at least in some gangs, gang membership usually lasts for many years and a nonmember would be unlikely to advertise his association with gang turf), but if I am wrong about that, then the First Amendment would bar admission of the evidence.
Larry Rosenthal
Chapman University School of Law
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of HOWARD H SCHWEBER
Sent: Sun 3/18/2007 3:41 PM
To: Volokh, Eugene
Cc: conlawprof at lists.ucla.edu
Subject: Re: Speech as evidence of intent or of conduct
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
> >
> >
> >
> >
>
>
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