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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Tuesday, December 21, 2010

Initial Trial Testimony Allowed to Be Reused at Trial on Remand after Witness's Death

A witness from a trial died before the retrial required by jury charge error. Would prosecutors reading the witness's testimony from the first trial at the second trial violate the defendant's right to confront the witnesses against him? The Texas Court of Criminal Appeals ruled that it did not. Judge Charles Holcomb wrote the opinion for every judge on the court except Judge Lawrence E. Meyers, who dissented. This is an original appeal from a death penalty trial. The defendant, Raymond Deleon Martinez, brought seven points of error. He complained of the factual sufficiency of the finding that he would be a future danger and of the finding that he deliberately intended to kill a person. These claims are based on Clewis, which was overruled by Brooks, as readers of this blog know. The legal sufficiency of the evidence of his future dangerousness was manifest. Three other points of error were attacks on the constitutionality of statutes that had been found constitutional before.
So how did they find that a trial transcript didn't violate the rule requiring confrontation? Because he had a chance to confront the witness at the first trial. They didn't find that the different jury charge was a material difference in the trials. I'd be curious to find if the material difference in the jury charges was why Judge Meyers dissented.

Are Hand-Written First Drafts Better?

Erik Gerding of the Conglomerate Blog makes an intriguing suggestion that we all might be better off hand-writing our first drafts reporting that law school professors say that law students who handwrite their exam answers and opposed to word-processing the answers tend to make the better grades in a class. He also pointed out that the legal work on the documents that occasioned the Great Recession was done by lawyers cutting and pasting parts of old documents rather than by drafting the documents from scratch. He implies that handwriting a draft might have improved their understanding of the nature of the documents and that someone would have understood the documents better and pulled the plug before the crisis. (Making money in the present blinds one to future dangers, such as the practical uninsurability of the risk of credit default.)
Still, I do believe that I understand my documents better when I have hand-written the first drafts of them.
I read in Skeptic magazine that Jared Diamond, the brilliant and thoroughly up-to-date author of The Third Chimpanzee and the wonderful Guns, Germs and Steel, makes his first drafts by hand. I haven't been going that far, though even now, important pieces of writing need a hand-made diagram before I start writing, or, at least, before I start writing in earnest.

Internet Teaching Model May Improve Legal Theory Learning

The cutting edge for some forms of legal education may be here. Many parts of legal theory seem to me to be well adapted to the Khan Academy method of teaching, such as appellate theory and rules complex in their application such as the Rule Against Perpetuities, hearsay within hearsay and Choice of Law, to name only a few.

Monday, December 20, 2010

An Appeals Court Is Much More Interested in Some Mistakes than Others.

What is a standard of review? It is the rule that a higher court uses to determine whether or not to correct something that happened in a lower court. Most appeals are appeals from trial courts. The two most common standards of review are:(1) abuse of discretion and (2) de novo (A review by the de novo standard may also be called a review by question of law.).
A judge can make many decisions at trial that observers might disagree with, but they might not be reversible error. A judge may find that some evidence is repetitive of earlier evidence and not let it in, while another judge would let it in. For one of the parties to complain about a decision about that is not likely to move an appeals court. The higher court doesn't want to "Monday morning quarterback" trial judges about decisions like that. The trial judge has the litigants and their counsel before the court, and is more likely to make a good decision than appellate justices reading a cold record a year later.
Some decisions appellate courts expect trial courts to get right such as whether to grant a summary judgment or to leave a question out of a jury charge. Appeals courts don't defer to the trial judges about such things. The appeals court will second-guess trial judges about such important matters. 

Monday, December 13, 2010

Be Real: Most Appeals Do Not Bring Relief

Appellants generally don't get relief. Generally, a decent brief prepared from scratch-- that is, not already pre-written in part-- takes days to write. The records, especially the reporter's record, are expensive. Litigants generally can't afford to appeal just because they want to. We'll talk about standards of review later-- that is, the rule that tells you how bad an error needs to be before an appeals court will correct it. Suffice it to say that generally, appeals should not be pursued unless the error is clearly contrary to law and harmful, or the judgment is of such a nature that it is a mortal blow figuratively or literally to a party.

Texas's Court of Criminal Appeals Defines How Little Reasonable Suspicion Needed for a Traffic Stop

Judge Barbara Parker Hervey, joined by all the other judges of the State of Texas's highest criminal court except Judge Johnson, who appears to have concurred without opinion, stated that the Fourth Amendment totality-of-the-circumstances test "requires only some minimal objective justification" for a stop like one in this case. The accused here was driving late at night, near a bar, where a trained and experienced officer saw the defendant driving aggressively.