Wednesday, July 25, 2012
Ind. Decisions - A response to: Thoughts on today's decision in Erasmo Leyva, Jr. v. State of Indiana?
In response to this ILB entry from earlier this afternoon, a prosecutor has sent the following:
First, this isn't a new development, although i's somewhat surprising that Judge Baker is trying to revive it now through an opinion. He's really just advocating for an exception to the constitutional standards for reviewing sufficiency of the evidence in cases where a witness is a child. This is remarkable insofar as it has been rejected time and time again over several decades of Indiana jurisprudence. Some of the handful of examples that he cites from other jurisdictions are results of legislative acts, not judicially-created rules. Second, the "incredible dubiosity" rule (which is an Indiana concept) that Judge Baker has primarily based his dissent upon has actually never been used to reverse an Indiana conviction. Third, the concerns that Judge Baker has in the criminal context seem logically applicable to the civil context as well, although one could try to distinguish the two by the different remedies available in the two types of cases (it seems a somewhat arbitrary distinction when many civil cases involving molestation claims seek--and, as we've recently seen nationally, obtained--damages of enormous sums well beyond the ability of the defendant to ever pay). Fourth, the power Judge Baker would assign to appellate judges is motivated by his second-guessing words on a piece of paper and not the live testimony from which a unanimous jury of 12 peers had little problem found the defendant guilty beyond a reasonable doubt. His view of the jury system appears strikingly different from what Chief Justice's seems to be in light of Dickson's writings and recent questioning of judicial applicants about their trust in juries. And given their answers, it also seems incongruent with those of the trial judges who applied for Justice Sullivan's vacancy.Are there more?
Finally, it's ironic that Judge Baker chose Matthew Hale to illustrate his point. The late Lord Chief Justice famously: (a) held that marital rape is a legal impossibility because a wife abandons sexual autonomy upon entering into a marriage contract (a principle of English and Welsh law that prevailed until only 21 years ago); and (b) presided over notorious English witchcraft trials where he condemned women to death for witchcraft, sorcery, and unnatural love (a precedent that was relied heavily upon by Salem authorities a few years later). Perhaps it goes without saying that Hale might have better served the common law by announcing the incredible dubiosity standard instead.