Judicial Dilemmas

Does Defecating Qualify as an “Excited Utterance”?

The lawyer who sent in this opinion wrote that it will “make you pee in your pants laughing.” Maybe he was just caught up in the spirit of the opinion, which begins:

This case decides the heretofore undecided question of whether the act of defecating in one’s pants upon being informed of a pending criminal charge is a relevant fact for the jury.

That’s a heckuva way to get your reading audience’s attention. Here’s what happened:

The prosecutor elicited testimony from the arresting officer that, upon being informed he was under arrest for sexual child assault, the defendant defecated in his pants (although he denied doing so at trial). Defense counsel objected on relevancy grounds and the judge sustained the objection. The judge told the jury to disregard the comment. Oh yeah, I’m sure the jurors were able to just completely forget that little tidbit.

The defendant appealed, asserting a mistrial should have been granted. On appeal, the prosecutor argued that the defendant’s unseemly accident was admissible as an “excited utterance” under the rules of evidence.

“Excited utterance” is an exception to the rule the bars the introduction of hearsay testimony. Hearsay–that is, statements made outside of court–are, subject to many exceptions, barred because they are deemed untrustworthy. The basis for admitting an excited utterance into evidence is the belief that statements made under shock or surprise are likely to be trustworthy.

Judge Hardberger, writing for the Texas Court of Appeals, did an admirable job of fairly identifying the conflicting inferences that could be drawn from the alleged act by the defendant. After rejecting defendant’s argument that the act had no relevance, he wrote:

On the other hand, defecation in one’s pants upon arrest does not necessarily indicate guilt. Such an act could be evidence of the innocence of a man accused of a heinous crime he didn’t do … Granted, it could also be the act of a guilty person being found out. Or it could simply be the act of a man sick to his stomach.

The court determined that the trial judge’s instruction to the jury to disregard the testimony cured any possible error.

— Marles v. State, 919 S.W.2d 669, 670–71 (Tex. Crim. App. 1996). Thanks to David Keller.

Reversed, With Love and Admiration

 

judge richard posner
Judge Richard Posner

Friend of lawhaha.com, Lihwei Lin, has made several choice contributions to Strange Judicial Opinions, including one posing this question: What would you do if you were a judge and had to reverse a case in which your boss had sat as the presiding judge? And what if your boss was none other than the legendary Richard Posner? Here is Lihwei’s take on the situation:

Imagine yourself in this situation: You are a newly-appointed circuit judge sitting in a circuit with the likes of Frank Easterbrook, “Rick” Posner and other judicial demigods. One day, your Chief Judge, Posner, apparently runs out of things to do in between being a chief judge, mediating the Microsoft case, and writing 5000 books, and decides to make a guest appearance by special designation in a federal trial court. In that role, he makes a few clearly reversible errors in a case, Chicago School-style no less. The case has come up for review and you are the presiding judge. What would you do?

Judge Evans confronted this dilemma of judicial review in Bankcard America, Inc. v. Universal Bancard Systems, Inc., 203 F.3d 477 (7th Cir. 2000). His footnote only three sentences into the opinion leaves you with the feeling than reversing one’s own Chief Judge is a bit more delicate than reversing your typical trial court:

It is a testament to the dedication of Chief Judge Posner that he volunteer to sit in the district court and hear this case which, at the time, needed the guiding hand of a new judge. Judge Posner, of course, carries a full load of cases on this court. He also discharges a multitude of administrative duties as the circuit’s chief judge. But that’s only part of what he does. He has written more books than many people read in a lifetime. On top of all this, in his spare time he is working as a court-appointed special mediator in the government’s blockbuster antitrust suit against Microsoft. Obviously, Judge Posner has more on his plate than a long-haul trucker working an “all you can eat” buffet line. It is a tribute to Judge Posner’s talent that he handles his many roles with such vigor, brilliance, and panache.

The only thing missing is: “I’m sooooo sorry about this, Judge. Please don’t take away my parking space.”

— Bankcard America, Inc. v. Universal Bancard Sys., Inc., 203 F.3d 477, 479 n.1 (7th Cir. 2000). Thanks to Lihwei Lin.