Crime and Punishment


I really will blog on the AAAL meeting, because a lot of interesting points from judges and practitioners were imparted, but yesterday the SJC came down with two criminal cases of some note, which I want to discuss first:

1.  State v. Berke, 2010 ME 34,


2.  State v. Gilman, 2010 ME 35,

In Berke, the Court held that a video that the defendant had taken showing him having sexual contact with children was admissible.  In Gilman, the issue was whether the individual characteristics of the defendant are relevant in assessing a constitutionality claim relating to the proportionality of a mandatory minimum sentence.

In the first decision, the SJC discussed what kind of authentication is needed to admit these types of tapes under M.R. Evid. 901.  No one testified that the tapes were a fair and accurate representation of events.  Noting that Rule 901(a) requires "evidence sufficient to support a finding that the matter in question is what its proponent claims," with ten non-limiting illustrations, the Court described the standard as "flexible," with a low burden of proof.  The tapes themselves provided evidence as to their authenticity, the SJC said, coupled with identification of the people in the tape by others.  

The question that this ruling raises in my mind is how this plays out as a practical matter.  When a defendant tapes his own criminal activity, I assume he will swear up and down later, when caught, that the tape has been doctored in some way.  If the defendant has tons of money, can he go find an expert to discuss techniques to doctor tapes and opine as to the possibility, so as to raise reasonable doubt?  And if he doesn't have tons of money, is the defendant's swearing that the tape isn't accurate enough to generate the need to provide him with an expert at the state's expense?  It doesn't look like the defendant in this case tried to get any expert evidence, but only made the argument that the state failed to meet its burden in having the tape admitted, so we shall see.  

In Gilman, the SJC holds that individual characteristics or circumstancesare not relevant in assessing the constitutionality of a mandatory minimum sentence and upholds the two-year minimum for operating after habitual offender revocation (Class C), 29-A M.R.S. s. 2557-A(2)(D)(2).  My musings here focus on what an individual "characteristic" or "circumstance" is.  The Court cited precedent for the proposition that one looks at the defendant's "conduct" and, at least in the federal system, "category" (e.g. a juvenile) (with individual determination only required in death penalty cases).  So age seems to be a "category," and "conduct" is reviewed – what is left for individual characteristics or circumstances?

The decision does not identify the particular characteristics/circumstances that the trial justice found required a sentence less than the minimum.  The defendant was not intoxicated at the time he was found driving, but that's not required to be guilty of the offense.  The defendant, a member of the local Elks Club, had been returning from the lodge, where he had repaired a broken walk-in cooler, and was stopped for speeding.  He knew his license had been suspended (in fact it had been revoked, and he had received notice of the revocation).  The witnesses included another member of the Elks Club, a psychiatrist who treated the defendant, the defendant's sister and the defendant.  So, making a guess based only on this text, I suspect there was testimony that the defendant was a veteran with some mental health issues, and/or the sentence would impose a hardship.  The SJC basically rules that the Legislature has a wide berth to determine the appropriate minimum sentence for a particular offense, and that there is  nothing unconstitutionally unreasonable about setting a two-year minimum for knowingly driving after 3 OUI violations.  If one is driving while having mental health issues, is that "conduct" or circumstances"  Or does one only look at the conduct in the abstract – 3 OUIs, not his particular mental state?   Could someone with mental health issues be viewed as a "category"?  In sum, I'm a little fuzzy on where and how the lines are drawn, but that may simply be because I don't practice a great deal in the criminal field.