A man named Joe lost his wife in 1999 to brain cancer.The wife, Pam, had smoked for thirty years, starting in 1969, until she got lung cancer, which lead to her brain cancer.Back when Pam started smoking, cancer-stick companies only had to put general health warnings on the packages.It wasn’t until the 1980s that the warning labels had to include the threat of cancer.
Joe then did the American thing; he sued the manufacturer of Pam’s particular brand of coffin nails, Phillip Morris, in a Nevada federal court. He, or his attorney, told the court that Phillip Morris is strictly liable for Pam’s death.Strict liability is a lawsuit claim used when a business sells a dangerous product.If Joe can prove that Phillip Morris caused Pam’s death, Phillip Morris will have to pay.But Joe did not want to have to prove his case.Instead, he wanted the Court to make Phillip Morris prove that they did not cause her death.Usually a Plaintiff has to prove his case, but here, Joe figured the wicked Phillip Morris must disprove its case without Joe having to prove the normally required element of causation.
Joe basically wanted the court to tell the jury that the jury could presume that if the cigarette packages had the cancer warning when Pam started smoking, she would not have started smoking.In other words, Joe wanted the jury to assume from the beginning that Phillip Morris is in the wrong and Phillip Morris then had to prove that it was not in the wrong.Somehow, Phillip Morris would have to provide evidence that Pam would have smoked their cigarettes even if the cancer warning label had been on the packages--clear back in the 1960s.Come on now, that was the 1960s, dude.Do you really think a lot of the young people back then would have listened to warnings?I mean, gosh, wasn’t that the time of experimental drug use.Also, wasn’t the military actually handing out packs of cigarettes to the soldiers?
Anyway, Phillip Morris did not want to have to try to prove to a jury that Pam would have ignored the warning labels.They told the federal judge that this “heeding presumption” should not apply in this case.A heeding presumption is what I’ve been talking about--a jury may presume that a person would have heeded a warning if a warning had been given and the defendant then has to try to prove that the person would not have heeded the warning.It’s almost like a religious person asking an atheist to prove that God does not exist.
Well, since this is a federal case in Nevada and the federal judge did not know what to do, the judge decided to ask the Nevada Supreme Court what it thought.Does Nevada condone “heeding presumptions” like some other States do?The Nevada Supreme Court answered, “No!”Phillip Morris therefore won this little skirmish.Joe would have to prove causation.
You might ask why the Nevada Supreme Court would side with the manufacturers of death on this issue.Well, our scholars in black robes said that a heeding presumption is contrary to Nevada law and public policy.The Nevada Supreme Court is correct on the law issue.Nevada has never allowed heeding presumptions.And, I believe their point about public policy is sound too.
Joe said that other States have heeding presumptions because it forces companies to better label their products, and therefore heeding presumptions are good for the public, so they are good public policy.If companies knew they could be sued for not properly labeling their dangerous goods, then they would label them better.
Nevada is smarter than those other States, though, because we tell the companies that sell stuff here to make sure the stuff isn’t dangerous in the first place.If it’s not dangerous, then why would you have to warn?In other words, the public is safer when companies can be sued for strict liability.Warning labels do not make us safer, safer products do.I’ll end this with a Supreme Court Justice’s quote from the case:
[…] we strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products.
If you still want to read this long, boring Nevada Supreme Court decision after I have taken all the trouble of explaining it, you may.The decision is called Rivera v. Phillip Morris, and it was decided in June 2009.
Copyright: August 23, 2009
By: Anthony M. Wright, Juris Doctor
The Nevada Supreme Court has recently decided the case of Chavez v. State. Chavez was convicted for “digitally, vaginally, and anally penetrat[ing] [his daughter] during a five-year span”. The daughter is referred to as “D.C.” and died before Chavez’s trial and therefore could not testify at his trial. Instead of having her corpse miraculously testify, the prosecutor convinced the court that her prior testimony at the “preliminary hearing”, which had been videotaped, should be shown to the jury. Chavez’s attorney had cross-examined D.C. at the preliminary hearing, so the judge decided it was ok to let the prosecutor present the video to the jury. Chavez objected based on the Confrontation Clause in the Sixth Amendment of the United States Constitution which says that a defendant should be allowed to face his accusers. The judge said that Chavez did face, and cross-examine, his accuser at the preliminary hearing and did not have to again at trial. Chavez was then convicted and sentenced to four consecutive life sentences with a possibility of parole after 20 years.
Now, there was other evidence against this Chavez person—such as the vibrators and socks with D.C.’s saliva and Chavez’s semen on them and the testimony of D.C.’s siblings who claim to have witnessed strange behavior between D.C. and her loving daddy. My point is, I think Chavez was justly convicted—the jury probably got it right. Chavez and his attorneys thought something was wrong, however, because they appealed the conviction to the Nevada Supreme Court, focusing on the fact that Chavez could not again cross-examine his accuser at trial because he already did at the preliminary hearing. Chavez is grasping at straws probably because he does not enjoy the digital and anal penetration he is enduring in the big house.
The Supreme Court sided with the lower court and said that the video tape was admissible evidence and therefore Chavez’s conviction stands. But, is this really the most just, the most fair, decision our black-robed scholars could reach? They say it is. They said that Chavez had the right to confront his accuser once, at the preliminary hearing, and because she was unavailable (dead) at the time of trial, her testimony should get in and Chavez therefore would not have another crack at cross-examination. The Sixth Amendment of the US Constitution guarantees the right to face your accuser, but it does not say how many times a defendant has that right.
The Judges who wrote the decision looked at a former case known as “Crawford” to help them arrive at their rationale in this case and stated:
We have applied Crawford to cases before us, stating that the testimonial hearsay of an unavailable witness requires a prior opportunity to cross-examine the witness concerning the statement for it to be admissible. Flores v. State, 121 Nev. 706, 714, 120 P.3d 1170, 1175 (2005). Further, we have observed that “‘the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’” Pantano v. State, 122 Nev. 782, 790, 138 P.3d 477, 482 (2006) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). And we have explained that discovery is a component of an effective cross-examination. SeeEstes v. State, 122 Nev. 1123, 1140, 146 P.3d 1114, 1126 (2006).
Today, we further clarify our post-Crawford decisions by holding that a preliminary hearing can afford a defendant an opportunity for effective cross-examination. We will determine the adequacy of the opportunity on a case-by-case basis, taking into consideration such factors as the extent of discovery that was available to the defendant at the time of cross-examination and whether the magistrate judge allowed the defendant a thorough opportunity to cross-examine the witness. We first address the standard of review for such a claim and then address each of Chavez’s claims in turn.
In other words, the Court wants to keep its discretion and judge each situation on a case by case basis. Big surprise. Of course the court wants to retain discretion, that is how it retains its power over our lives. So, after “clarifying” its prior holdings, the Supreme Court then looked at this Chavez case using the factors and of course concluded that the factors meant, in this situation, the damning video testimony was allowed into evidence and Chavez will continue to rape or be raped in prison.
Ok, so let me ask the reader of my blog whether they think the Supreme Court of Nevada made a correct ruling. I’ll use the wonderful “Socratic Method” that we attorneys learned in law school by asking you a lot of leading questions so that you can consider this case from the view that I, and other lawyers, may view it. I’m not saying the jury was wrong in convicting this human offal, but I want to paint a picture of why the Supreme Court may be wrong in allowing preliminary hearing video tape testimony into evidence at trial.
Suppose you are the defendant and you are living with your ex-wife, with whom you have many arguments. You have children together and, when they are out of line, you punish them by spanking them or making them do pushups—as Chavez claims to have done. The mother then asks the kids one day as they are driving if they don’t like it when she and daddy fight. This too was in the evidence of the case. Suppose that one of the kids really hates your guts, maybe because you are the disciplinarian, and sets about to frame you for a crime to put you away. I’m not saying this happened in the Chavez case, but it could happen in some cases. Could a girl frame a father by planting evidence and then lying about sexual encounters that didn’t occur? Could a girl find her fathers porn magazines and get ideas? Could a girl get samples of her father’s semen and rub them on a vibrator and sock and then spit on the vibrator and sock? Could a girl then tell the police that she was raped when she was not?
Ok, I’m sure many of you paused at some of those questions and thought that there is no way a young girl could do that to her father. Think again. Young girls do do these things and it is not always clear cut who the real victim is. More often then not, the child is the victim, but in rare instances, the victim is the innocent parent figure. Now, let’s say the girl continues to tell her story and even testifies at a preliminary hearing. She holds up under all the questioning and maintains her story. Let’s assume she is a devil child and is lying. Again, I do not believe that is the case in Chavez, but I’m trying to make a point and hope you stay with me until I get it across. This deceptive girl even lies when her father’s lawyer asks her questions and she has to look over at her father. Maybe she didn’t get the toy she wanted. Maybe her father called her a “spoiled piggy little brat” and she is mad. Maybe her father hits her mother and this is the only way she can think to protect her mother. Who knows? There are two avenues that I want to next explore so that you can understand my problem with the Chavez decision.
First avenue, lets assume this evil girl lives and is able to testify at trial against her father, but has somehow seen the light and changes her testimony. Yes, she would get in trouble for perjury, but she is a kid and probably won’t get into too much trouble. Maybe she had a spiritual or religious conversion—maybe she realizes just how horrible her accusations are. Well, she can recant at trial and explain how she tried to frame her father. The trial is the last possible time she could do this. Guess what. Reasonable doubt! Papa goes free.
Second avenue, let’s assume that the girl continues to be evil and lies every chance she gets. You know what they say about liars—they can seldom remember all their lies and may get caught. So, she must testify under oath again, this time at trial. She continues to lie, however her answers to questions are now glaringly different from the answers she gave at the preliminary hearing. Papa’s attorney can see these discrepancies and bring them to the jury’s attention to raise reasonable doubt. The more times you can question a lying witness, the better your chances to expose them—it’s called impeachment. Did you know that prosecutors do this all the time? If they get to cross-examine a defendant at trial, they will try to find inconsistencies between current answers and prior answers so that jurors will believe that the defendant is a liar who ought to be locked up. If a prosecutor can bite at the apple more than once, don’t you think a defense attorney ought to too? After this Chavez ruling, a defense attorney loses that second bite at the apple with the potentially lying accuser if the accuser dies before trial but her prior testimony can still be shown to the jury.
Perhaps you hate child-rapists and want to disagree with me because you think defense attorneys should not get the second bite at the apple of truth, which we like to call cross-examination. Do you know that this Supreme Court ruling will not only apply to child rape cases, but to all criminal cases from now on? That means adult rape cases, domestic violence, murder cases, burglary cases, arson cases, etc. So, even if you believe a child would not lie about being raped, can’t you see that other witnesses who may have it in for a defendant could lie under oath during preliminary hearings in other scenarios, then die before they can recant at trial?
I hope this makes sense to you. Our scholars in black robes can have good intentions when they write their decisions. I’m sure they were upset about the child rape and did not want to see Chavez go free on a “technicality”, however, is the death of the key witness really a “technicality”? At least they are leaving room for doubt by stating that this must be decided on a case by case basis, which means that different judges with different biases will decide the same set of facts differently. This is what we call justice in America—or at least in Nevada.
Ok, I’ve complained about the Supreme Court decision. You may ask how I would decide differently under the same fact scenario. Well, that is a hard one because I don’t want to see Chavez go free either although I’d battle with the thought that maybe he was not guilty and he was only convicted because of video testimony from a preliminary hearing. I would also be troubled with how this ruling will affect future criminal cases. After this ruling, defense counsel may not wish to cross-examine star witnesses extensively at a preliminary hearings if there is a chance that the star-witness will be unavailable at trial. However, a good attorney would want to because of the impeachment tactic I mentioned earlier. This kind of ruling will confuse defense attorneys and detract from justice. I simply could not allow the video evidence in since it is a key witness and the defense attorney should be afforded the same rights that the prosecutor has, a second chance to cross-examine, impeach, and explore new defense theories.
And then, supposed the defendant had a bad attorney at the preliminary hearing and asked all the wrong questions during the cross-examination. Should a new defense attorney at trial have to deal with this video testimony of a dead witness when the old defense attorney was so rotten at his or her job?
On the other hand, and there always is an alternate argument, if the video evidence from a preliminary hearing is not allowed in, then the criminal defendant can knock off the key witness prior to trial, just like the mob used to do, and the prosecutor will have a much more difficult time convicting the s.o.b. I still must stand by my original sense of justice, though. If a star witness should be in that much fear for his or her life, then that witness can go into protective custody, arm themselves, or whatever until after the trial.
