This doesn't seem quite right....

Odd, from watching Sex Crimes Unit on HBO, I learned semen doesn't have DNA in it (only the sperm) thus a guy wasn't prosecuted because the semen left behind lacked sperm so they couldn't get a match. Then I see this article "Thirsty Burglar Drinks Victims' OJ, Leaves DNA For Cops To Find" in the Gothamist (one of my favorite blogs) where a burglar was caught because he drank from an Orange Juice carton and left it behind with his DNA on it (assuming saliva). So let me get this straight, if he were sterile and only ... on the carton he might not have been caught?

Are men or women preferred as jurors in sex crimes cases?

First of all, I am sure my many readers (sarcasm) have probably been missing my blog entries. Well, today after bar review class I sat down to eat my lunch at home and as I was flipping through the channels on TV, I stumbled upon the documentary Sex Crimes Unit on HBO. It was very interesting and I highly recommend it! It is a documentary about the New York City Sex Crimes Unit that prosecutes sex crimes. It referenced a number of legal issues that I have been studying during bar review so I was inspired to add another blog entry and also promote this documentary.

One legal issue raised, which is the subject of this entry, was the conversation by some of the prosecutors that male jurors tend to be more empathetic to victims of sex crimes than female jurors. As such it would seem ideal for prosecutors of sex crimes to eliminate as many female jurors during jury selection through the use of "peremptory challenges" (i.e., each side is allowed a number of these challenges to remove any jurors without having to state reasons why they wish to eliminate that particular juror.). However, under the rules of Criminal Procedure these challenges cannot be used to exclude a juror on the basis of that juror's race or gender. As such, these challenges couldn't be used to eliminate as many female jurors as possible. I am not suggesting that the prosecutors in the film are violating this concept.

Another interesting point in the documentary was when one of the prosecutors was recalling an instance where a defense attorney asked a victim of a sex crime on the witness stand whether she was a virgin at the time of the rape. Wow! That defense attorney most have forgotten the rules of Evidence related to sexual assault cases, specifically the rules known as "Rape Shield" laws. In such instances, a victim's prior sexual conduct is inadmissible at trial. The only exceptions to this prohibition are: (1) to inquire about the Victim's past sexual activity (if any) with the Defendant but only if the Defendant is arguing that the sexual activity was consensual, or (2) the Victim's sexual activity with others but only to prove that those "others" may be the source of the physical evidence related to this case (i.e., injuries, semen, etc.) instead of the Defendant.

For purposes of the New York bar exam there is also an interesting peculiarity where a victim's sexual activity can be introduced. If a Victim has been arrested within the past 3 years for prostitution this is admissible. This was an aspect referenced in the documentary as well. One of the cases featured in the documentary was People v. Kevin Rios. That case involved a victim raped at gunpoint. That victim was also a prostitute. The prosecution addressed this matter head on in the opening statement. As such, the defense could then freely discuss this fact whether or not this particular victim had been arrested for prostitution in the past 3 years or not. However, I am wondering if it would have inevitably come up during the trial because it was the manner in which the Defendant and Victim met (i.e., he had picked up the Victim seeking her services but then decided to take by force as opposed to paying). My limited bar review outline does not address this particular peculiarity.

Alright, I better get back to my studies, but definitely check out this film if you get a chance.

Is there a Proactiv equivalent for "clearing up" one's insanity?

Today during bar review of the New York Practice topic I thought the following statement was rather amusing: an insane person (defined as any mental disorder that causes overall inability to function in society), although able to bring a cause of action through a competent adult representative under the regular statue of limitations (i.e., time within which a claim must be filed) for a cause of action (e.g., In NY, within 3 years of the date of a personal injury), is entitled to the benefit of a toll (i.e., stopping the clock on the statue of limitations) until the disability ends. Or in the language of the review materials "until insanity clears up."

So the first thing that pops into my head is, "What are we talking about here, acne? Does insanity just 'clear up' like acne? Is there a Proactiv equivalent to 'clear up' one's insanity?" What does Proactiv have to do with pop culture you might be asking, well the product uses "popular" celebrities, like Jessica Simpson pictured here, to promote it and one of the means of promotion Proactiv has used is infomercials. Infomercials are a banal part of our "media culture" given their frequency on TV (See, e.g., Ronco Food Dehydrator, Sham Wow, Shake Weight). Don't get me wrong, I am not against infomercials, they are in fact one of my guilty pleasures in life, just like my friend and Saturday Night Live joke submitter John (click here for John's Twitter featuring his jokes that didn't make it on the show). Anyway, back to insanity in this context--I guess the rather broad definition of insanity above, any mental disorder, does lend itself to a broad range of such disorders that could "clear up." So when one's insanity does clear up, how does the insanity toll work?

There are two ways to determine the "new" deadline for a once insane person to sue:

(A) If the original statue of limitations is 3 years or more (which is the case with personal injury in NY which has a 3 year statue of limitations), then the Plaintiff, after his insanity ends gets the longer time period of either: (i.) has 3 years from the end of his insanity, OR (ii.) the time remaining from original statutory period measured from date of actual accrual of the claim (e.g., date of personal injury).

OR

(B) If the original statue of limitations was less than 3 years (so not a claim for personal injury, but another claim that has a shorter period), then Plaintiff, gets that statutory time period and must file the claim before that period expires with the clock starting from the date the insanity ends.

BUT, there is a 10 year limit that begins from the date the claim accrues.

Here is a chart to illustrate (Note: S/L = Statue of Limitations):

Statuory Period	Date Claim Accrues	Original S/L	Insanity Ends	New S/L Deadline	10 Year File Deadline	Does New S/L violate 10 year rule?
1 Year (B)	1/1/2000	1/1/2001	1/2/2000	1/2/2001	1/1/2010	No, 9 years left
	1/1/2000	1/1/2001	2/1/2005	2/1/2006	1/1/2010	No, 4 years left
	1/1/2000	1/1/2001	1/1/2009	1/1/2010	1/1/2010	No, but New S/L is last day.
	1/1/2000	1/1/2001	1/2/2009	1/2/2010	1/1/2010	Yes, 1 day too late!
2 Years (B)	2/1/2005	2/1/2007	2/2/2005	2/2/2007	2/1/2015	No, 8 years left
	2/1/2005	2/1/2007	2/1/2010	2/1/2012	2/1/2015	No, 3 years left
	2/1/2005	2/1/2007	2/1/2013	2/1/2015	2/1/2015	No, but New S/L is last day.
	2/1/2005	2/1/2007	2/2/2013	2/2/2015	2/1/2015	Yes, 1 day too late!
3 Years (A)
(i) 3/2/2010	3/1/2010	3/1/2013	3/2/2010	3/2/2013	3/1/2020	No, 7 years left
(ii) 3/2/2010	3/1/2010	3/1/2013	3/2/2010	3/1/2013	3/1/2020	Irrelevant use (A)(i)
(i) 3/1/2017	3/1/2010	3/1/2013	3/1/2017	3/1/2020	3/1/2020	No, but New S/L is last day.
(ii) 3/1/2017	3/1/2010	3/1/2013	3/1/2017	3/1/2013	3/1/2020	Irrelevant use (A)(i)
(i) 3/2/2017	3/1/2010	3/1/2013	3/2/2017	3/2/2020	3/1/2020	Yes, 1 day too late!
(ii) 3/2/2017	3/1/2010	3/1/2013	3/2/2017	3/1/2013	3/1/2020	Irrelevant

Can a spouse testify against the other spouse for engaging in child abuse?

As I was learning about Evidence law today, an exception to the Marital Communications Privilege and Spousal Immunity (Spousal Testimony Privilege) made me think of a song by Queen Ifrica entitled "Daddy Don't Touch Me There." (Click link for music video). I had first heard this song in a van in Sierra Leone (Click link for photos from my trip) when I traveled there for a project with some fellow law students (one of which is also blogging bar studies--probably more entertaining - click here for it) and our professor as part of the Fordham School of Law Walter Leitner International Human Rights Clinic.

We had been grooving to the song (it should be noted that it was playing on what sounded like a strained audio cassette as we drove on a rather bumpy gravel road thus making the lyrics somewhat difficult to fully grasp) until someone said something to the effect of "Wait, is this song about a girl who was sexually abused by her father?" As such our enjoyment of the song was diminished once we had knowledge of the song's lyrics. Fortunately, the tape also included a song by Busy Signal (our drivers really liked Jamaican artists apparently) entitled "One More Night" (Click link for music video, bonus--2 songs in one video--first "Night Shift," second "One More Night"). Alright, back to Evidence...

Returning to "Daddy Don't Touch Me There," let's assume that the girl who is the subject of the song is unable to testify to the abuse she was experiencing. Let's also assume that there is no "nosy neighbor" who observes and reports this bad behavior as in the song lyrics. What if the only other person with knowledge was the mother, can the mother testify about this abuse?

As mentioned at the outset there are two privileges relevant to this scenario. First, the Marital Communication Privilege protects confidential communications between married spouses. Either spouse can invoke the privilege (i.e., prevent the other spouse from testifying as to such marital communications) and in order to waive the privilege both spouses would have to agree to waive it. This privilege protects those confidential communications made during marriage and the protection of those communications lasts even after a marriage dissolves (but not communications made after the marriage dissolves) and also after death of one of the spouses. Presumably the abusive father in the song would not be willing to waive this privilege, which would prevent the mother from testifying as to marital communications regarding the abuse. It is important to note that the privilege only protects communications, but would not prevent the mother/spouse from testifying, if she wished to do so, as to actions or observations surrounding such abuse. Additionally, as will be explained further below, there is an exception to this privilege that would allow the mother/spouse to testify as to even the communications.

The second privilege is Spousal Immunity (Note: This is not a recognized privilege under New York law). This privilege only applies in a criminal case and precludes a prosecutor from compelling a defendant's spouse to testify against the defendant spouse. This privilege differs from Marital Communications in several important ways. First, it is limited only to criminal cases. Next, if the marriage ends, then the privilege no longer applies and as such an ex-spouse can be compelled to testify against the ex-spouse defendant (except as to confidential marital communications). Finally, although a spouse cannot be compelled to testify, a spouse can voluntarily testify against the defendant spouse (except as to confidential marital communications) without the consent of that defendant spouse. As a result, this privilege would not prevent a mother/spouse who wished to voluntarily testify as to actions or observations surrounding abuse by the father/spouse defendant.

Related to these privileges is a helpful exception. Both the Marital Communications Privilege and Spousal Immunity can be overridden by acts that are destructive to the family unit. Child abuse is considered to be an act that is destructive to the family unit. As such, related to the storyline of the song, a mother/spouse could voluntarily testify or be compelled by a prosecutor in a criminal case to testify as to communications (even confidential marital communications) or acts related to child abuse by the father/spouse defendant.

When could Tom Hanks in Cast Away be Legally Presumed Dead?

Spoiler Alert: This post reveals parts of the movie Cast Away

As I read through my bar review materials regarding the law of Evidence, my thoughts drift to the movie Cast Away featuring Tom Hanks as Chuck Noland, a FedEx employee who, subsequent to a plane crash, is stranded on a deserted island. I am not sure how long he actually spent on the island, but from the descriptions on Wikipedia and IMDB he was away for at least 4 years.

How does this relate to the law of Evidence? Well, according to the Multistate Bar Exam materials under the category of procedural issues related to evidence, there exist certain presumption rules that depend on a particular inference drawn from an ascertained set of facts. One specific presumption is known as "death from absence."

For multistate purposes if someone is unexplainably absent for a continuous period of 7 years without being heard from, then he or she is presumed dead. If Chuck Noland was only away for a period of 4 years as noted above, then he has not met the 7 year required period. The language of the presumption rule raises a question for me, which I cannot answer at this point, based on the scenario in the movie. In the movie, Chuck Noland's disappearance was not "unexplainable" as his employer (FedEx) and his girlfriend (would have been fiancée had he made it home from the flight, and of course had she said "Yes!") had knowledge that the FedEx flight Chuck Noland was on had endured bad weather and subsequently crashed in an unknown location. Does having an explanation for being missing undermine an attempt to presume someone's death based in the language of the multistate review materials? I don't know the answer but perhaps I am reading it too technically as the main point is that the person be missing for 7 years, especially in relation to a New York distinction which I will explain next.

Interestingly, if Chuck Noland's estate or some other legal interest were subject to a case in New York state (I think he lived in Tennessee, but let's assume he was from New York or that New York law governed such a situation), the presumption is slightly different under New York law. Under New York law the absence period is just 3 years, but a diligent search for the missing person is required. Based on New York law it seems that Chuck Noland would be presumed dead because he was missing for 4 years and, if I remember correctly, the FedEx company and government rescue officials did conduct a diligent search for him based on the plane's last known coordinates.

But for those of you who have seen the movie, thanks to his friendship to Wilson (see volleyball photo to the right), Chuck Noland survived and returned to his girlfriend only to learn that she had moved on and married some other guy. So sad, maybe Chuck would be "better off [presumed] dead."

Did the Ewoks Violate International Law?

In Star Wars Episode VI: Return of the Jedi, the Rebel Alliance sent a strike team to the planet of Endor, which the Ewoks (See photo of the lovable Ewok named Wicket to the right) inhabit, in their fight against the Galactic Empire. Shortly after landing on the planet they were making their way to their objective (i.e., the Empire's bunker that is the source of the protective "invisible" shield for the Death Star battle station orbiting Endor). At one point Chewbacca's senses were heightened and he clamored toward a dead animal carcass. The rest of the strike team approaches also and Han Solo says to Chewbacca, "Always thinking with your stomach." (click link for Han's audio). Turns out the carcass was bait for a trap set by the Ewok's and as Chewbacca grabbed at the carcass it set off the trap and the strike team was swooped up into a net and lifted into the air. The Ewok's arrived shortly thereafter and took the strike team as "prisoners."

One source of international law that regulates the conduct of hostilities that may be applicable to the above scenario is the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended May 3, 1996 (Amended Protocol II). Amended Protocol II article 7 prohibits "the use of booby-traps and other devices" involving "(j) animals or their carcasses." It should be noted that booby-traps are commonly understood as a device designed to kill or maim an unsuspecting combatant.

As an initial matter there are some questions of law applicability here. First, from a temporal view Amended Protocol II was adopted in 1996 whereas Return of the Jedi, which premiered in 1983, states in the opening sequence that the story takes place "a long time ago in a galaxy far, far away . . . ." As such, the provisions of the Amended Protocol II can not reach back in time to regulate the conduct of hostilities. Second, related to the temporal issue, the parties to the conflict in Return of the Jedi are, arguably, the Ewok's, the Rebel Alliance, and the Galactic Empire but given that international law is based on party consent (i.e., choosing to become a party to a particular treaty or convention) these parties could not have consented to be bound by the provisions in Amended Protocol II because it did not exist at the time of the conflict.

Assuming arguendo that the Amended Protocol II does apply to the scenario in Return of the Jedi, is the use of the animal carcass a violation of international law? It would seem that it is not, for at least two reasons.

First, as alluded to above, the Ewoks at the time of the booby-trap scene are not a "party" to the conflict. The conflict during the movie is between the Rebel Alliance and the Galactic Empire. However, subsequent to the booby-trap scene the Ewoks do join forces with the Rebel Alliance against the Galactic Empire. Given that Amended Protocol II's provisions are designed to regulate the conduct of hostilities among parties to a conflict and as such the Ewoks did not violate its provisions because at the time of the booby-trap scene the Ewoks were not a party to the conflict. Essentially this is third law applicability question as discussed above but given that it was more specific to the Ewoks I have discussed it separately.

The second reason why it seem the Ewoks are not in violation of Amended Protocol II is based on the nature of how the carcass was employed. In essence, the Ewoks set out the carcass as bait to lure another creature to be drawn and captured into a giant net. This does not comport with the definition of booby-traps that are designed to kill or maim a combatant. Instead the Ewoks employed a "live trap" wherein the captured individuals were not killed or harmed and as a result this seems to be outside the reach of what Amended Protocol II is designed to regulate. This is not to say that the Ewoks are entirely innocent. I mentioned above that the Ewoks took the strike team as prisoners, but this is not really true as they were taken back to the village and were being prepared by the Ewoks to be cooked for dinner. This further evidences that the trap the Ewoks set was not part of their participation in hostilities but rather as a means to sustain themselves nutritionally.