Rule Change Eliminates Tome in Federal Cases

There is a significant amendment to the rule on prior consistent statements 801(d)(1)(B).  Up until now, prior consistent statements were non-hearsay only when elicited to rebut a charge of recent fabrication.  The amendment does away with that restriction.  Beginning on December 1, prior consistent statements will be admissible as substantive evidence to rehabilitate the witness after any kind of attack on credibility – memory, perception, etc.  Watch out for more Government sandbagging! While the Committee Comments claim that the rule retains Tome’s restriction (e.g. that the prior consistent-statement has to be pre-motive for fabrication), the proposed amendment makes the concept so difficult to define that Tome lives on in name only. At least that is my prediction, stay tuned.

For a nice history of this amendment, checkout this summary on the Federal Evidence Review
blog.

Time to Get Smart on Crime

Rep. Joe Haveman has introduced a number of bills to get smart on corrections. The bills would reduce sentences and increase supervision. It would also create sensible parole and probations reforms. Corrections cost the state a great deal of money and these bills make a great deal of sense. Unfortunately, they are being opposed by Attorney General Bill Schuette who is clearly trying to gain political capital by calling for tough sanctions on everything. I truly hope that General Schuette has thought through the costs that his positions will bring. For some reason Republican fiscal prudence is lost on some when it comes to corrections. It costs over $40,000 per year to house inmates and this needs to be factored in. Unfortunately, one of the problems with our modern day criminal justice system is that the successes are never heard from again and the failures make front page on the news.

CoA Says that Deroche Doesn't Apply to Actual Possession Cases

In People v. Deroche, 299 Mich. App. 301 (2013), the Michigan Court of Appeals held that a Defendant’s Second Amendment right to keep and bear arms invalidated Michigan’s statute barring a firearm while intoxicated. In Deroche, the Defendant was at home and intoxicated. The firearm was stored elsewhere in the home, but was also under Mr. Deroche’s control and dominion. This would have met the legal requirements for “constructive possession.” The Michigan Court of Appeals held that the Second Amendment barred this constructive possession theory.

In People v. Wilder, No. 316220, declined to extend Deroche to an actual possession situation. In Wilder, there was evidence that the Defendant actually moved the firearm while intoxicated. The Court, therefore, found that the statute met the intermediate scrutinity required for a Second Amendment analysis.

Ms. Wilder had been drinking most of the day with her domestic partner. The complainant testified that the defendant brandished the gun at her after she hit the complainant, strangled her, and told her to get out of the house; the Defendant testified that she moved the firearm to a place of temporary safety from her drunken partner. She denied the brandishing.

The Court of Appeals applied a two-prong test to determine and determined that the application did not violate the Defendant ‘s Second Amendment rights. The take-away is that gun owners who choose to drink in their own home will face judicial scrutiny if they have a firearm on their premises and drink. Person’s considering drinking at home should physically lock their firearms up prior to consuming any alcohol.
People v Wilder, Court of Appeals No. 316220.