Blog – Kuettner Legal, PLLC

Hearsay: the Telephone Game in the Courtroom

Fri, 12 Jan 2018 20:08:00 GMT

A lot of folks talk about hearsay. This blog covers what hearsay is, and a little of what it isn’t.

In elementary school, we occasionally played the “Telephone Game.” We played something like this: One person started by whispering a phrase or sentence in another person’s ear. The second person–ideally–repeated that phrase or sentence to her neighbor. After a class of 25 or so students each heard and repeated the phrase, the last person said what he or she heard aloud to the rest of the class. Laughter often ensued. The person who started then stated the original phrase. Often, the students misspoke, mis-remembered, or otherwise changed the phrase. The Simpsons referenced the game in an episode about teacher strikes (viewable here ).

While not every instance of the Telephone Game ended with “purple monkey dishwasher,” the game itself shows the unreliability of overheard statements. In court, we often call overheard statements “hearsay.” But not everything that appears to be hearsay actually is.

Hearsay – Defined

Minnesota law defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Let’s break that up a bit.

A “statement” includes spoken or written words, and can include conduct (a waive or a middle finger are both statements, for example). The “declarant” is the one testifying (usually a witness). “[O]ffered to prove the truth of the matter asserted” is a bit more difficult to define. Most of the time, we say things because we want people to believe them. If someone says she is going to the store, that statement is probably true. And, it was probably said because the speaker wants the listener to believe she is actually going to the store.

The Purpose of the Statement Changes its Admissibility

In court, we always ask ourselves, “what is the purpose of the statement?” If my roommate tells me he plans to take the trash out after dinner, I generally cannot use his statement in court to prove he took out the trash after dinner, or that he intended to take the trash out. However, if I offer the statement to show why I didn’t take the trash out, that statement is not hearsay. The statement in this case shows its effect on me, the listener. I didn’t take the trash out because my roommate said he would.

In the first example, the statement is offered to prove later actions or intent. That’s inadmissible hearsay (generally). In the second example, the statement is offered for its effect on the listener. That is, the listener considered his actions based on the speaker’s words. The court would allow the statement for that purpose.

The rules of evidence provide a lot of exceptions to the rule against inadmissible hearsay. If, for example, I sued my roommate because he didn’t take the trash out, he and I are parties to the case. That is, I’m the plaintiff (the one suing) and he is the defendant (the one being sued). A party opponent’s out-of-court statements may be used against him. So his statement may be offered both as substantive evidence to prove his intent to take the trash out, and the effect the statement had on me (of deciding not to take the trash out). We call that “admissible hearsay.” It fits the definition of hearsay (see above), but the rules of evidence allow it in court.

Another exception includes statements that have legal effect. For example, if I offer to pay him five dollars to take the trash out, and he states that he will, we have a contract. The statement may be admitted to show its legal effect (the formation of a contract).

Our Laws Developed Over Centuries

Much of our law on hearsay developed from the Common Law. The Common Law stems from English court, and provides much of the rules and background we use today. When the Framers of the Constitution created their rules, they borrowed much of the Common Law. Some rules they left behind. Others they modified. For example, we have the right to confront our accused. It wasn’t always so. Also, we have rules against the admission of hearsay. If I testify in court that I heard Jane talk about John, the court and the jury don’t really know if Jane is reliable. All they can tell from my testimony is that Jane said something. That’s the major purpose behind excluding hearsay: to be able to verify the truth of a statement by getting the statement from the source.

I had the recent opportunity to cross-examine a witness. She alleged our client committed some questionable conduct. On cross-examination, I discovered–and showed the judge–that all of her allegations were based on conduct-hearsay. That is, the witness didn’t actually see anything herself. Others told her what they saw. She testified that she feared our client based on what others told her. The Court discredited the testimony and dismissed the case against our client.

Courtroom practice requires knowledge of the rules and how they work together. In the example above, we didn’t even present a case. Instead, we used the courtroom rules and burdens of proof to win.

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You Have the Right to Remain Silent

Mon, 20 Nov 2017 18:19:00 GMT

It’s probably the most well-known scene in all of crime drama: the reading of Miranda . It usually goes something like this: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”

After the reading, law enforcement usually asks the suspect to waive all of those rights and talk. You shouldn’t. But commonly, in crime drama anyway, we’ve already seen the guilt of the suspect. Real life isn’t so simple.

So where does the Miranda warning come from?

On March 13, 1963, the Phoenix, Arizona police department arrested Ernesto Arturo Miranda. Police interrogated Ernesto for two hours before he confessed to crimes. Police never advised Ernesto he had the right to an attorney, nor did they tell him he didn’t have to talk. The district court admitted his confession. The jury found him guilty.

Eventually, he appealed to the Supreme Court. The Supreme Court, in a 5-4 decision, stated that police must warn a suspect regarding the above rights before subjecting the suspect to interrogation. Chief Justice Warren based part of his decision on heavy-handed police tactics. We call it the “ Miranda Warning” due to the name of the case.

Many of our clients tell us that they were never read their rights. Law enforcement doesn’t have to. Ever, really. The Miranda Warning only applies where a suspect is in custody and subject to interrogation. That means you can be arrested and never read the warning. You can also be interrogated and never read the warning. If you drive enough, you’ve probably been stopped by police. That same officer likely didn’t read you Miranda . The simple reason is that they need not; you weren’t “in custody.”

“In custody” essentially means under arrest, but there are times where a person not under arrest is still considered to be in custody. For example, if you are at the police station and not allowed to leave. (As a side note, politely ask whether you are free to leave. If you are, you should almost definitely leave.) On the other hand, you may be interrogated and free to leave. Miranda wouldn’t apply in that scenario.

What’s the remedy?

Most people are surprised to find that the sole remedy for a Miranda violation is the exclusion of the statements. Confessions often help conviction, but they are still rare. Most of the time, they’re unnecessary.

For example, other evidence, both direct and indirect, may be enough. Direct evidence could be a witness testifying that the witness saw someone walking through a snow-covered yard. Indirect evidence would be the footprints left in the snow. If we also have a broken window, a damaged house, and a missing person, a confession is likely unnecessary to believe a kidnapping occurred. Consider this scene from the movie Fargo . Compare that with Jerry Lundegaard’s (William H. Macy’s character) return home afterward, viewable here . No confession necessary.

So what should you say?

You still don’t want to talk. Instead, give your name. If you’re driving, also give your driver’s license and proof of insurance. Regardless, next ask for a lawyer. Loudly and clearly. Then say that you are invoking your right to remain silent. You might be surprised at how seemingly innocent statements may be later misinterpreted. Your silence is not an admission of guilt. It only says that you want legal advice before you spill your guts. Requesting a lawyer is not an admission of guilt. Many innocent people retain lawyers. Understand, however, you must ask for a lawyer and state you wish to remain silent (as oxymoronic as that sounds).

Why wouldn’t police read you Miranda ? Here’s a police training video talking about that subject. Mostly, it notifies a suspect that he or she is under investigation and may be arrested. Many of us watch what we say more closely when we’re under suspicion. An old–but effective–police tactic is to get a suspect talking. Before Miranda , police could use coercive techniques to gain a confession. Torture was outlawed, but many departments ignored certain abuses if they gained results. The Supreme Court didn’t like it. Now, police try to buddy-up to a suspect in order to get them to talk. You’d be surprised at how often law enforcement says “We only want to help you” before you face criminal charges.

If you’re in custody and subject to interrogation, assert your right to a lawyer. Then call us. You’ll be glad you did.

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Monkey see, Monkey sue? Legal Strategy

Mon, 09 Oct 2017 21:12:00 GMT

When animals start bringing lawsuits, one begins to wonder about the legal system. This one (pictured above) sued in Federal Court in California. Some of us question the legal strategy behind it. Isn’t there a better way?

How it Began

“A monkey, an animal rights organization, and a primatologist walk into federal court to sue[.] Monkey see, monkey sue is not good law[.]” This was part of the opening in the response to PETA’s filing in Naruto v. Slater. Naruto is probably (see below) the crested macaque pictured in the famous “Monkey Selfie” photo. People for the Ethical Treatment of Animals (“PETA”) is the animal rights organization referenced. The primatologist is Dr. Antje Engelhardt, Naruto’s purported “next friend”. (A “next friend” is someone who can sue on your behalf. More on this below.) Slater, the defendant, is David Slater, a photographer.

This case arose from Slater’s journey into Indonesia. He set up a remotely triggered camera in the jungle. Naruto, or a different macaque named “Ella”, depending on whom you believe, photographed itself with the camera many times in a series of adorable pictures. These pictures became known as the “Monkey Selfie” pictures.

Who owns the Pictures?

Naruto, PETA, and Dr. Engelhardt argued the macaque owns the pictures. Ordinarily, the creator of an artwork owns the art. When you take a photo, that photo is generally yours. When you draw a picture, that picture is generally yours. There are certain exceptions. For example, if you create a picture for your employer, or if you copy someone else’s, you may not own your work entirely. But what happens when an animal takes the picture? (There’s also this , though I don’t believe the elephant sued – yet.)

Without question, Slater didn’t trip the camera. The animal did. Yet the United States version of the copyright act doesn’t speak to animals owning property. So how can an animal own the copyright to a work of art?

Obviously, Naruto and Ella can’t file in federal court. That’s where Dr. Engelhardt came in. She, through PETA’s lawyers, claimed “next friend” status. A next friend is someone who takes on the mantle of another to assert rights on their behalf. Most often, this occurs in a parent-child relationship. Also common is a caregiver acting on behalf of a mentally ill person. In this way, the rights of the one needing care are still protected. One caveat is the next friend must act on the protected person’s behalf. Dr. Engelhardt and PETA therefore must act in Naruto’s interests. But does Naruto have the copyright, a form of property?

PETA, Dr. Engelhardt, and Naruto sued Slater and his publishing company (also a defendant) in an attempt to exercise (or even determine) Naruto’s rights. Did PETA make the right choice in filing suit? Since filing, Slater is broke. Dr. Engelhardt is no longer part of the case. PETA has taken a fair amount of press, good and bad.

Was PETA’s the Right Choice?

After all of this, I am left to wonder: Did PETA make the right decision? You can see PETA’s funding sources here . Time may tell if donations rise or fall based on this case. But one thing seems to be clear: Slater wanted to use some of the revenue to support the crested macaque’s habitat. Wouldn’t it have been substantially simpler to reach an agreement on this issue rather than sue? For example, couldn’t PETA have offered to create a charity in Slater’s name for the purpose of sustaining Naruto’s Indonesian territory?

Monkey Sue or Monkey Settle?

One alternative to filing suit involves mediation. Parties discuss their rights and interests through the use of a third-party mediator. Mediators are neutral. That is, they hold no stake in the outcome. We are trained to see the strengths and weaknesses in both sides. Then, we use those strengths and weaknesses to encourage settlement. This often happens in neighbor disputes, landlord-tenant disputes, and disputes involving family cases. We, as mediators, do not advocate for either side. If you need an advocate, hire an attorney. If you need help settling a dispute without going to court, you may want a mediator. Through this process, you can determine the outcome you are most satisfied with. Legal solutions rarely balance interests. It is usually all or nothing. Mediation and negotiation often allow the parties to actually split the baby without cutting the baby in half.

For you legal wonks, oral argument on the case is here . The case settled shortly after oral argument. Twenty-five percent of the profits will be used for the macaque habitat.

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Cheese it, the Cops! Police Contact

Mon, 25 Sep 2017 14:57:00 GMT

We are often asked what to do when contacted by police. This question turns on the specific situation. This post is the first in a series about common ways people come into contact with law enforcement.

People usually meet police through traffic stops. You can look at some statistics here . About half of all traffic stops result in a ticket. So, what should you do when you see flashing red lights in your rear view mirror?

First, find a safe place to pull your car over. The best place to stop is a place where you could otherwise park your car. This lessens the chance of a tow in case things go wrong.

Next, turn your inside dome light on if the stop is at night. This helps police see inside the vehicle. You want to do this slowly, intentionally, and calmly. You may otherwise be accused of making “furtive movements”, which is police slang for you hiding things.

After the light is on, roll down your window far enough to be able to talk to the officer. After you’ve done so, place your hands on the steering wheel and leave them there.

An officer will ordinarily approach the driver side of the car. If there is heavy traffic, he or she may approach the passenger side. If so, roll down the passenger window far enough to talk. Then, replace your hands back on the wheel.

After the officer asks you for license and proof of insurance, you should provide them. Narrate your hand actions before you move them. It sounds silly, but speaking out loud and saying, “I’m going to reach into my right pocket and retrieve my license” may keep you alive. It shouldn’t be this way. Officers are there to protect you, not the other way around. But you never know what an officer is thinking (even if they tell you).

You may wish to remain silent during this encounter. Officers will often ask if you know why you were stopped. If you tell them, you may have just admitted to a crime or other infraction. You just made their job easy. If you decide to remain silent, you must say so. This is another oxymoron found in the law, but you must invoke the right to remain silent by saying so. You may also request an attorney if you are arrested. But again, you have to request one.

Instead, if you prefer to answer some questions but not others, you may do so. If you are heading to a drug den to score your latest stash, you may not want to talk about your destination. But answers such as “heading home from work” are usually innocuous and calming. You want to cooperate where you can. You don’t want to obstruct. But there is a fine line between obstructing, cooperating, and confessing. Walk that line carefully.

You may always ask if you are free to leave. If the officer says yes, cautiously and calmly pull back into traffic and drive away. If you are free to leave but the vehicle not (sounds silly, I know), you may wish to walk away from your car. Lock it up first. Roll up the windows. Make sure it is in a place where it can be lawfully parked. Otherwise, it will be searched and it may be towed.

You should also know that in Minnesota, most traffic stops are recorded. The same trigger that turns the flashing lights on also triggers the recording device in a squad vehicle’s camera system. The recording device backtracks about a minute or two, which is usually long enough to catch the reason for the stop. The squad video will almost always be used as evidence, so be careful.

Finally, don’t argue your case on the side of the road. Many times, a police will accuse a driver of speeding at ten miles an hour over the speed limit. The driver may respond that he or she was only traveling five over. Crafty police stop the encounter and write a speeding ticket on the spot. The driver just admitted to speeding. Also, police have guns, tasers, vests, radios, and back-up. You don’t. You don’t want an up-close demonstration of those tools, either.

Like any profession, law enforcement attracts some bad eggs. There are good police, too. Just remember, their job is to serve and protect the public. We may disagree on what that means. Some police believe that means writing as many tickets and making as many arrests as possible. We don’t. That’s what we hope to resolve in the courtroom.

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Locked up for What!? BB Guns and Prison

Fri, 01 Sep 2017 22:12:00 GMT

Last year, the Minnesota Supreme Court decided that air-powered BB Guns are not firearms under Minnesota’s prohibition on felons possessing weapons. You can read the decision here . You can review the current version of the statute here . What does this mean for this group of Minnesota prisoners?

Well, a lot, really. Those convicted under the statute must be (and presumably have been by now) released from prison. In our eyes, that’s a step in the right direction. It also means–unless the legislature modifies the statute–that felons prohibited from possessing firearms won’t be incarcerated in the future for possessing a BB gun. That’s also a step in the right direction.

Those convicted under this statute may also seek an expungement. An expungement removes the crime from your criminal record. It may also seal the records of other state agencies, such as the Bureau of Criminal Apprehension (the BCA). This is really important. Agencies conducting background checks generally get their information from the BCA rather than the courts.

We can’t do anything about our friend, Google. However, we may obtain a court order erasing part of your criminal history. Many times, our clients are rejected from jobs or licensing based on poor background checks. It’s frustrating. An expungement can help.

Finally, anyone unjustly imprisoned in Minnesota may be entitled to compensation under the Minnesota Imprisonment and Exoneration Remedies Act or “MIERA” (read part of it here ). The Minnesota Supreme Court is currently wrestling with that issue. We await their decision.

If you’ve experienced this and need help, contact our office. We can’t get back your time. But we will assist you in attempting any remedies provided by Minnesota law. Let us know how we can help you.

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Give That Back! Civil Forfeiture in Minnesota

Wed, 19 Jul 2017 21:47:00 GMT

Recently, U.S. Attorney General Jeff Sessions advocated for expanding federal civil forfeiture. (Read more about it here .) Civil forfeiture occurs when the government seizes your property. The government owns the property upon seizure. Most often, it sells the seized property and divides proceeds. In Minnesota, law enforcement receives 70% and the prosecution 30%.

In Minnesota, forfeiture usually occurs in one of two contexts. One common way occurs through controlled substances. Government seizes property that “has been used, or is intended for use, or has in any way facilitated” controlled substance crime. (Click here for the Revisor’s website on controlled substance forfeitures.)

Another common cause of forfeiture relates to DWI laws. Convictions for first- or second-degree DWI subjects vehicles to forfeiture. (Click here for the Revisor’s site on DWI-related forfeiture.)

For a return of your property, you must show that your property was not involved in the crime. Attaining dismissal qualifies you for return of your property. Sometimes, you may consult with the prosecuting authority and negotiate a “buy-back” of your things. (It seems a bit counter intuitive to pay someone for the return of your things, but the law is not always intuitive.) Occasionally, government releases the property to a lien holder (such as a bank who loaned the money for the vehicle purchase.)

The legislature created civil forfeiture for prevention and punishment. Rare is the case, however, where persons with property subject to forfeiture know that the marijuana in a glove compartment or the alcohol in the blood causes seizure of their car. Most often, then, the government’s seizing property is simply punitive. Nonetheless, on occasion, the government seizes property with much, much less justification. (Click here for a Last Week Tonight piece regarding forfeiture.)

Finally, the Minnesota Public Defender’s Office cannot represent you in a forfeiture matter: forfeiture is civil in nature. Consult an attorney early if the government seizes your property. The deadlines for petitioning for return of your property come fast. Let us know if you need assistance by clicking here .

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Reasonable Doubt in Mankato

Wed, 28 Jun 2017 16:15:00 GMT

We require proof beyond a reasonable doubt to convict a person of a crime. The logic is simple: “It is better to risk saving a guilty man than to condemn an innocent one.”

Voltaire’s line sums a wonderful difference between our legal system here in the United States and the vast majority of legal systems throughout the world: We have made the active decision to protect those charged with crimes from the accusers and the accusation itself.

Our legal system allows certain rights and presumptions about the accused: the right to a jury trial, the presumption of innocence, the right to cross-examine witnesses against us, the right to call witnesses on our own behalf, the right to remain silent, and to require the state to prove guilt beyond a reasonable doubt. It is because we would rather set a guilty person free than incarcerate the innocent that we enjoy these rights.

Let me take a minute to discuss just one of those rights. The state’s attorneys will often say that a decision proved beyond a reasonable doubt is the standard by which “ordinarily prudent men and women would act upon in their most important affairs.” In fact, a judge will tell the jury about the same thing. The somewhat nonsensical phrase comes from a Criminal Jury Instruction Guide or “CRIMJIG”. (The quoted phrase is from CRIMJIG 3.03.) The state’s attorney usually gives examples to clarify the phrase, such as deciding whom to marry or which house to buy.

Yet, when a trial is over, the jury’s decision is final. People may buy homes they later regret. They may also marry spouses they later regret. We can undo those decisions. We can sell the house or divorce the spouse. May the jury undo a conviction at trial if they change their minds? No. That is why the right to a trial and finding good representation is so important. It is also why we hold the state to a high standard of proof.

This law blog will introduce our legal team, follow important developments in the law, and, with any luck, provide some entertainment for our dear readers. Stay tuned for updates. Feel free to email us with requests here: /contact/ .

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