[Evidence] 3.5 United States v. Pacelli [Zoom피드백 포함]

United States v. Pacelli (1974) I.       FACTS. Appellant Vincent Pacelli indicted for conspiring with Barry Lipsky and others to kill Victim Patsy Parks on Feb 4, 1972 to prevent her from testifying against his narcotics trial. Lipsky testified at trial that Pacelli had committed the murder of Parks. Pacelli was prosecuted twice before, but the first conviction was vacated and the second was declared a mistrial both due to Lipsky’s perjurious denial on the existence of a plea deal. Through the third indictment, Pacelli was sentenced to life imprisonment. Pacelli appealed based on the below grounds.·        Grounds for appeal by Pacelli   o   Wrongful Admission of hearsay:        §  in Feb 10th meeting with Beverly Jalaba (Pacelli’s wife), Beverly took Lipsky aside and told him that Parks’ body had been found and Pacelli had been put in Jail        §  Frank Bassi was saying there is a million other places to put a body.        §  Al Bracer and Abbe Perez told him to go away for a while giving him $1,000.        §  Prosecutor’s remarks in summation “They were strongly indicative that they (the 3rd party declarants) knew that Pacelli caused Patsy Parks’s death and that they knew that Lipsky had seen Pacelli kill Parks'   o   Prosecution’s failure to disclose 1) letter of Lipsky on his terrible mental state after his perjury and mistrial, and 2) various statements on his involvement on Pacelli’s narcotics business II.     ISSUES.A.        Whether Lipsky’s testimony as to the conversation in Feb 10th meeting and the prosecutor’s summation was inadmissible hearsayB.        Whether the prosecution failure to disclose Jencks Act statements was a harmful error to the trial III.   RULES.·        18 U.S.C. 3500 Jencks Act (a defendant in a federal criminal trial is entitled, after a government witness has testified on direct examination, to receive any statement of the witness in the government's possession.)·        Falknor, Silence s Hearsay, 48 U.Pa.L.Rev. 192 (implied assertion with added danger-> hearsay)·        801 (a) (implied assertion or inference -> not hearsay) IV.   APPLICATION.A.        CredibilityThere are ample ground to challenge Lipsky’s testimony due to his credibility considering 1) conspiracy to transport stolen securities, 2) perjurer, and 3) had been promised immunity and lenient treatment. B.        HearsayIn general, it is more likely that the declarants of the statements did not intend them as assertions of what had been implied, and thus the danger of insincerity may be reduced. However, in this case, there is the added danger of misinterpretation of the declarant’s belief. Also, the declarant’s opportunity and capacity for accurate perception or his sources of information remain of crucial importance, because the declarants could have made the same statements even if Lipsky had been the executer of the murder whilst Pacelli had instigated it. C.        Harmful Error from Failure to Disclose Jencks Act StatementsThe most critical Jencks Act statements in this case is the letter which included a blatant lie to the effect that his perjury has been unintentional. Considering that the prosecution had been denied of the opportunity to use such forceful impeaching material bearing on the credibility of the sole witness of the crime, the failure to disclose this was a harmful error. V.    CONCLUSION. The case is remanded for retrial.VI.   DISSENTINGA.        Witness’s credibilityIt is jury’s role in the system of criminal justice to decide on the credibility of the witness, and in this case jury believed Lipsky after hearing all the cross-examination by appellant’s attorney. Only when appellate court finds the evidence for conviction so strong, then it may substitute itself for jury and decide that the ‘harmless error’.  Therefore, it was invasion of the province of jury to flip the judgment on witness’s credibility and discredit Lipsky’s testimony. B.        Hearsay as harmful errorWeighing against all the material evidence of the case (blood, car, coat with blood, knife), the role of the 3rd party declarant’s statement in the case is minute therefore should not be the cause of retrial. C.        Jencks Act Statements already covered by cross-examination of LipskyLipsky provided full capacity as the witness at the trial and the defendant could enjoy ample opportunity to challenge Lipsky’s mental state. Also, all the key issues such as promised immunity and perjury was covered during trial. This should not be construed as harmful error.  [Class notes Nov 5, 2020] United States v. Pacelli (1974) (Danger of implied assertion)-          1800 년대 Wright 케이스의 Hearsay의 요건이1900년대 FRE이 확립되어  801 (a) intended 요건이 추가 되면서 완화되었으나, 이 케이스에서는 inferred임에도 danger로 인한 hearsay로 배제됨. Implied assertion이 해석자의 오류에 의해 착오가 있을 위험이 큼. 또한 Declarant가 진실을 제대로 알 수 있는 기회가 있었는지에 대한 의문이 큼.-          (Four hearsay dangers) In assessing the reliability of implied assertions, it is important for judges to consider the dangers ofa)       insincerity;b)       ambiguity (uncertainty of implied assertion);c)        faulty perception; andd)       erroneous memory-          FRE 801 (정의)언제 제정? 1974년 제정, 케이스에는 룰에 대한 언급 없음-          801 (d)(2)(E) – 공모자가 반대 입장에서 증언하는 것은Hearsay가 아니다-          만약에 립스키가 본인이 밥먹으면서 한 이야기에 대해서 변호인이 물어서 “예” 했습니다 라고 하는 것은 hearsay? hearsay exception? testimony?o   “예”라는 답변 자체는 hearsay가 아닐 것으로 판단됨. 다만, 변호인이 한 질문 자체가 hearsay의 요건을 충족하면 hearsay가 되어 배제될 수 있을 것으로 판단됨.