2. Check Sound Check Mike Time

3. Today’s Lecture: Introduction to the Politics of Trial Judging 1. The Standards of Review 2. How They Affect Judging

4. Lecture Organization: Class Announcements Review Trial Judging: The Standards of Review Time The Significance of the Standards

5. Class Announcements 1. Next quiz is posted tonight** [maybe] -- 36 questions (almost 2 quizzes) -- worth its relative weight in points for Part I -- will give you a little more time -- due Friday after the midterm (26 th ?) at 10.** [maybe] -- covers everything since the last quiz until the end of evidence (last lecture) -- quiz will cover nothing from today up to the midterm -- lectures will be current over the weekend (one currently missing) Note: you may have to take the quiz at the testing center – Let’s discuss this

6. Class Announcements 2. Exam on Thursday the 25th -- covers everything since the beginning through syllabus topics 12 & 13 (lectures 14 on the web). [syllabus error] -- all essay, in class, NO open notes/book. 3. Paper topics -- better get moving. Questions? Time

7. Review 1. Basic rule of relevance -- two interesting features: basis & an anti-basis

8. Definition has two parts … Any tendency to make a material fact more or less likely 1 Unless it is … 2 confusing prejudicial misleading waste of time cumulative “Logic reasoning” probability induction “math” FAIRNESS BASISAnti-Basis

9. Review 1. Basic rule of relevance -- two interesting features: basis & an anti-basis -- this structure provided for an interesting result: someone could rule in different ways and still say that he or she was following the rule (could still say that the rule sanctioned the behavior) -- one judge could allow only black and white photos, another color, another 6 photos, another 23, another drawings, etc. (and all could theoretically be done in identical cases) Question: Is this true? Question: What if you appealed the rulings? Question: Let’s assume that you can’t appeal the rulings (hypothetical world). Does the rule have a uniform or correct answer? Question: Are rules that are structured like this “rules” at all?

10. 2. Hearsay rule -- something interesting -- the last item on the 24 or so exceptions was “other” -- this rule also has a basis anti-basis structure, but it is not as pronounced. (but we will add more to the story today). -- one additional point: remember also: “the evidence game?” You have to object on the spot or you lose the objection. (this makes hearsay quite an interesting game) illustration Not Hearsay Acceptable Hearsay Hearsay Review Time

11. Introduction to Trial Judging 1. Trial judging is a misunderstood subject -- Political Science – pyramid concept; the judge as manager -- The truth is that judges do much more than simply manage trials (or at least they have the power to). -- it is not clear that trial judges experience more constraint over their decisions than appellate or supreme judges; it is just that the freedom is directed upon a different kind of object -- (and it is not clear that supreme judges are as free as political science sometimes say either)

12. Introduction to Trial Judging -- POINT: both experience a set of choices that are relatively “free” and a set that are relatively “constrained.” 2. The only way to understand how trial judges use power is to understand the way that their decisions are POLICED by appellate courts -- Remember, you can appeal trial court decisions to appellate courts -- the question now is: how do appellate courts review these decisions? -- there are four standards under which rulings are reviewed. Let’s explain the standards BEFORE we see what they are applied to …. illustration Remember this? Trial Court Intermediate Appellate Court Supreme Court Appellate Courts

13. Also, one little footnote (explained last) … Abuse of Discretion Clearly Erroneous Harmless Error De Novo Four Basic Standards of Appellate Review … Per Curium/Unpublished opinions

14. Abuse of Discretion Clearly Erroneous Harmless Error De Novo Four Basic Standards of Appellate Review …

15. Abuse of Discretion Clearly Erroneous Harmless Error De Novo Four Basic Standards of Appellate Review … So long as there is some base level of explanation for the ruling – so long as the judge has some minimal chain of reasoning in his or her head – the ruling is ok. Another way of saying it: so long as the ruling isn’t “arbitrary” … let’s conceptualize Discretion goes too far (ruling is “way out there”) Discretion “reaches,” but is still not abused Discretion is either slight and/or very sound = “Bad discretion, either in using too much or making a very poor decision This is the only thing that is “illegal” under the abuse of discretion “rule” Translation: For issues decided under this rule, any sort of reasonable disagreement among legal culture as to who should win the issue is vested in the hands of the trial judge, without further meddling from anyone else.

16. Abuse of Discretion Clearly Erroneous Harmless Error De Novo Four Basic Standards of Appellate Review …

17. Clearly Erroneous Harmless Error De Novo Four Basic Standards of Appellate Review … Same exact thing as abuse of discretion, except it is applied to factual conclusions … (e.g., was the confession coerced? Did they beat him, etc.?) [here, law is clear, but facts are disputed] … So long as there is SOME BASIS to say that version P occurred rather than version Q, the finding will not be disturbed. Factual conclusion is clearly wrong Factual conclusion is highly uncertain and may be wrong Factual conclusion is very sound and not likely to be wrong = “Bad conclusion about the facts – something that didn’t really happen (an error) This is the only thing that is “illegal” under the “rule” Translation: For any he-said/she-said sort of issues – anything where there are two versions of events – the fact finder (judge or jury) has the power, in effect, to declare the winner.

18. Clearly Erroneous Harmless Error De Novo Four Basic Standards of Appellate Review … “Permissible Lawlessness” Even where the trial judge makes a mistake in a ruling, we will ignore it so long as the mistake doesn’t change the outcome of the trial Whether it does change the outcome is something that the appellate judge SPECULATES over [if the appellate judge thinks it does not, that is just “tough”] Translation: For issues decided under this rule, the trial judge can blatantly and intentionally violate “law” and “rules” so long as it doesn’t convincingly seem that doing so will change the outcome in the case.

19. Harmless Error De Novo Four Basic Standards of Appellate Review … -- “real review” -- Appellate court “rolls up its sleeves” and makes its own ruling without even caring how or why the trial judge ruled -- the trial judge receives NO deference whatsoever -- in theory, the same issue is decided twice regardless of its outcome. Translation: The ruling/ opinion of the trial judge is irrelevant here.

20. Also, one little footnote … Four Basic Standards of Appellate Review … Per Curium/Unpublished opinions -- Not a standard of review [Mention WV] [Mention growing controversy about unpublished opinions] Time

21. The Significance of the Review Standards 1. We just examined the four basic review standards that appellate judges apply to trial court rulings 2. Now we want to consider their significance -- that is, what kinds of rulings receive what kind of review standard, and how might this affect the power of trial judges? … let’s take a look

22. Abuse of Discretion Question: What kind of rulings or issues do you think this applies to, or should apply to, and why?

23. Abuse of Discretion Will apply to all sorts of issues before the trial court: scheduling whether to allow your expert to testify awarding alimony sentencing criminal defendants (in many states) permissibility of impeachment material many hearsay/relevance rulings (all kinds of evidentiary issues) limiting closing argument Note: being outcome-determinative doesn’t matter!

24. Abuse of Discretion An Example: Cheech and Chong in a different court -- same basic crime, same basic criminal history -- one is sentenced differently than the other in states that do not have mandatory sentencing grids Cheech Chong

25. Abuse of Discretion Cheech Chong Question: Is this consistent with the rule of law? Question: What is the rule of law and why do we have it? Answer: Karl Lewellyn: The hallmark principle of a legal system is judging like cases in like manner” Question: Does the abuse of discretion rule make this principle a fraud?

26. Abuse of Discretion -- Note something interesting about the structure of this rule Case A Case B Identical on any given issue. E.g., -- Jail, Alimony, crime scene photos

27. Abuse of Discretion -- Note something interesting about the structure of this rule Case A Case B A different result with respect to that issue

28. Abuse of Discretion -- Note something interesting about the structure of this rule Case A Case B Note that WHY the result occurred never gets incorporated into the body of “Law”

29. Abuse of Discretion Case A Case B Why-A Appellate Court Why-B No abuse of discretion There is no further articulation of what answer is correct for subsequent judging. It is like a judicial “black hole” or a “judging vacuum.” There is a zone of authority given to local trial judges to decide as they wish without encumbrance of either (a) their own prior decisions; or (b) the prior decisions of sister courts or appellate courts

30. Abuse of Discretion Case A Case B 20 photos, not prejudicial Appellate Court Only 4 photos, black and white No abuse of discretion

31. Abuse of Discretion Case A Case B Liberal alimony based upon old-school values Appellate Court No much alimony based upon this “equality” thing No abuse of discretion

32. Abuse of Discretion Case A Case B Note also that trial judges do not set “precedent,” so that the very SAME judge can rule differently in these cases if he/she wishes!! Question: What does this say about the rule of law for these types of issues in trial courts?

33. Clearly Erroneous Applies to any factual finding a trial court makes, whether it the judge/jury -- juries decide the ultimate questions of fact in cases that require them; judges decide the facts in cases that do not -- even in cases that use juries, judges decide preliminary questions of fact during pre-trial motions.. Examples:

34. Clearly Erroneous John Walker Lindh -- allegedly confessed -- he denied it -- no recording/documentation -- [strange] -- would be an admission Question: Who decides whether he did “confess?” for purposes of ruling on the admissibility?

35. Clearly Erroneous O.J. – Blood on the gates -- California law: can’t enter a person’s home [fenced front, side yard] without a warrant -- unless there is “exigent circumstances” (e.g., someone in the house is suffering bodily harm or is in grave danger) (an “emergency”) -- Police scaled O.J.’s gated house and discovered a bloody glove -- they didn’t have a warrant -- issue: if the police broke the law, the evidence would be suppressed. If not, it wouldn’t

36. Clearly Erroneous -- Police argued the following (a) heinous murder of his wife blocks away (b) his white Ford Bronco looked to be parked in a rush (c) they saw tiny blood droplets on the gate. -- Defense argued -- the police didn’t see the blood -- it was nighttime (or very close), and the blood droplets were too tiny (had a police expert testify) key assertion!

37. Clearly Erroneous Note how this is different from abuse of discretion Judge cannot erase the law with his discretion! Use Warrant Unless Exigency But the Judge can decide whether the police saw blood droplets, which creates exigency! Fact, not law. So long as there are two versions of the facts, the judge/jury gets to select whose version is correct. The appellate system will rarely interfere with this decision, so long as it has SOME basis. (pick which side you want to win?)

38. Harmless Error Will apply to many kinds of issues: evidence questioning (interrogating witnesses) hearsay (violating the rule) rules of procedure sometimes, it even applies to constitutional rights This is not a matter of judgment. This is a clear violation of the law. If the judge does this, it is not, paradoxically, “illegal” so long as it doesn’t appear to affect the outcome of the case. An Important Question: How is what I have been describing today different from the trial judging that we encountered in the story of the trial of Jesus? Question: What does this say about the rule of law for these types of issues in trial courts?

39. Rights that come from “Moses;” Rules that cannot be broken Standards; flexible rules License and discretion; the illusion of “rules.” Conceptualizing legality in trial courts Time