Patterico's Pontifications

5/27/2007

Using People’s Summer Reading List Against Them in a Criminal Trial: Not Always a Bad Idea

Filed under: Crime — Patterico @ 9:30 am

Howard Bashman has an excellent column about using fiction that people read as evidence against them in criminal prosecutions. Howard argues that this should never be allowed. As well written as Howard’s column is, I disagree with its conclusion. In the abstract, it sounds like an easy call to argue that it violates the First Amendment to use people’s reading material against them. But it’s not an abstract question, as the facts demonstrate:

A man is arrested in Las Vegas on federal criminal charges of traveling across state lines with intent to engage in a sexual act with a minor and using an interstate communication facility to attempt to persuade a minor to engage in sexual acts. The evidence against the man consists of the transcripts of multiple online chats between the man and a police officer posing as a 14-year-old girl. On the date selected for their meeting, the man traveled from his home in Anaheim, Calif., to Las Vegas, where police apprehended him at the designated meeting place.

At trial, the man seeks to defend against the charges by maintaining that he believed that he was chatting with a 30- to 40-year-old woman who had been pretending to be an underage girl, and that he was expecting to meet that woman at the designated location in Las Vegas. When the man was arrested, he was carrying a personal digital assistant (PDA) containing more than 140 stories that described adults having sex with children. The prosecution sought to introduce many of these stories into evidence at trial, to rebut the man’s defense that he was not intending to meet an underage minor for sex.

The Ninth Circuit ruled that the evidence was admissible. Bashman writes that the dissent “stands as a masterful defense of the ability to read and think about ideas free from government interference in a free society. Sadly, that view no longer represents the law in the nation’s largest federal judicial circuit.”

I disagree with Howard’s argument that the Ninth Circuit’s opinion is a bad decision.

I have grave concerns about using people’s reading material against them. But at the same time, it would be a major disservice to the truth to exclude this evidence in this particular case. Take another example that takes the emotional issue of sex with minors out of the equation. A man stands accused of pushing another man off a cliff. His defense is that it was an accident. He is arrested at the scene of the crime with a PDA with more than 140 stories about men killing other men by pushing them off a cliff, and claiming it was an accident.

Do we really want to have an inflexible rule that would exclude any such evidence? Does it really make sense to say that the jury can’t even hear about this highly relevant evidence?

If we excluded such evidence, would we extend the per se exclusion to any writings that the defendant made that he could argue are fiction? Remember, I was against using Jim Webb’s depiction of sex acts with a minor in a novel against him in a Senate campaign. But if someone were on trial for fellating his seven-year-old stepson, and had written a “fictional” story about a man who fellates his seven-year-old stepson, with numerous similarities between the “story” and reality, I would think that would be highly relevant evidence.

This is not theory, by the way. I know of cases where accused murderers are caught on tape in jail rapping about how they killed the victim. Should such admissions be excluded from evidence?

Again, it all comes down to specifics, and I think that blanket rules of exclusion would be unwise.

I understand the concerns to the contrary. For example, nonsensical P.C. attitudes could easily create a situation where, for example, having read Huckleberry Finn or To Kill a Mockingbird could be used against you in a racial hate crime prosecution. After all, these books do have the N-word in them, and blacks have successfully argued to have them banned in some places, for that reason. The specter of misuse of such evidence looms large.

But I wouldn’t solve that problem by excluding all such evidence, including in cases like the cliff-murder hypothetical I described above. That, in my view, would impede the truth-seeking function of the justice system in some cases.

I would have a rule that is very restrictive against the use of such evidence, but that allows it in highly unusual cases like the ones described above. Defense attorneys will still have available to them the argument that fiction is fiction. They can argue to jurors: “You’ve all read books about crime. Do we really want to live in a world where your reading of such books can be used against you in court?” But I think juries should be given the chance to hear all the facts and make up their own minds, in cases where the relevance of the reading material is striking.

But then again, I’m just a tool of the state (albeit one speaking in his private capacity). Feel free to lay into me. But as you do, please don’t be flippant about the idea that this rule could allow serious criminals, including murderers, to go free. Imagine that the guy thrown off the cliff was your brother, son, or dad. And tell me where you would draw the line on arguably “fictional” writings by the defendant that strikingly resemble the actual facts of the crime.

P.S. As always, it’s worth reading the opinions themselves in coming to a judgment on their correctness. The majority opinion is more persuasive. It notes, for example, that the defendant had argued that his intent was to meet a grown woman who pretended to be a little girl. The majority argues that, if the defendant had 144 stories about a man going to meet a woman who pretends to be a little girl, that would certainly be relevant.

The dissent makes the Huckleberry Finn argument I note in the post. But it also unpersuasively argues that the majority confuses fantasy with intent, and gives all sorts of examples of people who engaged in fantasy who did not even arguably engage in criminal acts with criminal intent. For example, the dissent says:

Johnny Cash probably could not have written Folsom Prison Blues without imagining himself a murderer imprisoned for life — “I shot a man in Reno, just to watch him die” — but there is no reason to suppose that he ever intended murder in real life.

Indeed. But what if Johnny Cash really had shot a man in Reno — and the issue in the trial was whether he had done it in self-defense, or just to watch him die? In that case, I would think it highly relevant that he wrote lyrics saying that he had shot the man “just to watch him die.”

The dissent says the majority confuses fantasy with reality. But in truth, the dissent confuses people who only engage in fantasy with people who have arguably acted to make their fantasies a reality. There is a difference, and the dissent (and Bashman) should not paper over this difference.

49 Responses to “Using People’s Summer Reading List Against Them in a Criminal Trial: Not Always a Bad Idea”

  1. This nation used to have a 4th amendment as well.

    TC (b48fdd)

  2. I don’t understand what the point of that comment is.

    Patterico (eeb415)

  3. I suspect he may have been using The Fourth Amendment (TM) in the Radley Balko sense of the phrase, which is a shorthand for “I don’t like it.” As to the underlying issue, I’m not sure why any exclusionary rule is appropriate, including the limited one you propose. We don’t generally exclude evidence of past speech just because the defendant had a constitutional right to free speech. Why should his reading habits be treated any differently?

    Xrlq (facab4)

  4. I do think that prosecutors should have a freer hand to introduce evidence of a defendant’s actual statements than of his reading material. It’s stronger and more direct evidence of intent, as the decisions have held (read the opinion for citations and examples). Also, a defendant’s statements are directly admissible as admissions of a party opponent, whereas reading material would have to be introduced for a nonhearsay purpose (like intent) or come within a hearsay exception.

    Bottom line: it’s easier to divine intent from a person’s words than from his reading material. For example, I’ve read about all sorts of vile actions, but I have not advocated these actions in my own speech. I do think there is a concern here, but I think the dissent overstates it.

    Patterico (eeb415)

  5. I must say, I think you’re cleverly drawing a distinction in your post that Mr. Bashman (correctly) did not draw in his column.

    In your post, you make the example that you believe that if a man who was on trial for fellating his seven year-old stepson was on trial had written a story about fellating his seven year-old stepson, that shoudl be admitted. I would agree. But there is a significant distinction between simply reading something and writing something. Here, in this case at hand from the 9th Circuit, a man simply had in his possession things he had read. And again, moving away from the rather emotional issue of sex with minors, this has disturbing political implications.

    Xriq underlines the point, but comes to differeing conclusions: reading habits should be treated differently than protected speech, because there is the assumption that we place far greater import on our own statements than things we simply read. I, and I would think, many others, have all sorts of books and writings of people they disagree with, because in order to properly understand an issue, particularly political ones, it is necessary to understand what the other side says. I, and again, I assume others, place far greater weight on those things we say.

    As you note Patterico, statements by the defendant obviously fall under a party opponent hearsay exception. If a Prosecutor cannot (or does think they can) convinct a defendant without introducing his/her reading material, is that really a wise case for a DA to bring to trial?

    Jeffrey (76e564)

  6. Jeffrey,

    You act as though the only example I used related to a defendant’s writings. but I used several examples, and one of them (the cliff-murder example) dealt with reading material only. How do you feel about that?

    I included an example about a defendant’s writings because many of the same arguments relating to reading material could be (and are by the dissent) used to exclude a defendant’s arguably fictional/fantasy writings. We could all wring our hands about the government using our fictional writings against us, and how oppressive it would be to think that your creative impulses could be used against you.

    Indeed, the dissent itself explicitly does this by referring to Johnny Cash — it does not use the example of someone who had the Johnny Cash recording, but says that *Johhny Cash himself* is not a murderer, so it would be oppressive to use his lyrics against him.

    I use the example of the writings regarding fellating a stepson to show that the dissent’s logic can be (and explicitly is, in dicta) extended even to a defendant’s writings. And my point is that a lot of relevant admissions would get excluded.

    Patterico (eeb415)

  7. If a Prosecutor cannot (or does think they can) convinct a defendant without introducing his/her reading material, is that really a wise case for a DA to bring to trial?

    That’s not the standard for admissibility.

    Patterico (eeb415)

  8. The defendant should be allowed to place the material the prosecution wants admitted into context by having everything he has ever read also admitted into evidence. Starting with “See Dick Run”. And it all should be read to the jury on the record.

    nk (835ea1)

  9. Sure, nk. And if he made a statement right after the crime (like “I killed the guy”) then the jury should get to hear everything he ever said in his whole life. You know, for context.

    It takes a criminal defense attorney to come up with an argument like that.

    Patterico (eeb415)

  10. I thought you said you were saying something else in Comment #6. He didn’t write the stories, right?

    nk (835ea1)

  11. It’s an analogy. If, just after the crime, the defendant is found in possession of a wealth of stories that read just like the crime, you think the defense should get to introduce everything he ever said, relevant or not.

    So, if he made an inculpatory statement right after the crime, then by that same logic, he should get to introduce everything he ever said — relevant or not.

    Why would it make sense to do one and not the other?

    Patterico (eeb415)

  12. I would view the reading matter IN THIS CASE as being of the “propensity to engage in such and such behavior” type of evidence.

    The point is that the reading matter was directly relevant to the alleged crime. If he had been reading Story of O, it would not have been (but I would bet the prosecution would not have introduced it into evidence).

    As a test of relevance, just imagine the defendant trying to enter a bunch of homosexual pornography found on his laptop, as proof that his sexual tastes ran in a much different direction. Would that have been allowed?

    kishnevi (202292)

  13. Relevance is not the only consideration. Relevant, perfectly probative, evidence is excluded all the time for reasons of public policy. Exclusionary rule? The various privileges? This is close to a First Amendment question in my opinion.

    “You have the right to remain silent and hopefully you have remained illiterate because anything you say or have read can and will be used against you in a court of law.”

    Or “Be careful what you do, be careful what you say, be careful what you see, be careful what you hear, be careful waht you read”.

    nk (835ea1)

  14. I think that the mistake that’s been made is the false assertion that the First Amendment protection of free speech means that someone’s reading material cannot be inquired into. The First Amendment protection should mean that someone cannot be punished specifically for their choice of reading material ( ignoring the issue of obscenity etc for purposes of argument ). Here the conduct of the defendant in assembling this accumulation of material is probative of his interest in it.

    A better analogy would be that a prosecution for reading a book on poisons would be prohibited, but if being prosecuted for murder by poison, then possession of a book on poisons is probative.

    When the prosecution introduces a book, or any other evidence regardless of whether it is first amendment material or not, for the purpose of saying that the defendant is in general a bad person for his reading choices, then it should be excluded for not being probative, rather than a first amendment issue. But where the reading material proves a fact about the crime itself, its just evidence – not a constitutional issue.

    Robin Roberts (6c18fd)

  15. The problem lies in a prosecutor or judge or jury deciding what a particular book means to the defendant.

    “Lolita” was required reading for me in a class on literature in college. I read it and enjoyed it. I probably have the copy of Lolita that I read in college 16 years ago in a box somewhere in my attic, along with my Econ 101 textbook. Does that make me someone who wants to have sex with children?

    In the immediate aftermath of 9/11 I remember reading about an alleged domestic “terrorist” somewhere who’d been arrested… Police found night-vision goggles and a book about making explosives in his house! Well, shit… I have a pair of night vision goggles – they cost me $80 and they were manufactured by Coleman, the same company that made my tent and my camping stove. I also have a clearly self-published “book” that shows how to make M-80s for July 4th – something that I picked up at the annual town library sale for $0.50 ten years ago. Our town library accepts tons of donations but sells everything that isn’t hardcover at the annual sale each summer.

    Does possession of night vision goggles manufactured by Coleman make me a terrorist? Am I a child-molester terrorist because I own a copy of Lolita?

    You tell me.

    The Liberal Avenger (b8c7e2)

  16. I agree with what Robin says in the comment before me!

    Huzzah!

    The Liberal Avenger (b8c7e2)

  17. So nk, what is your reaction to the specific hypos presented in my post?

    Patterico (eeb415)

  18. Should be allowed to be introduced only as the head of the list of all of the reading material that the accused has, including in his home, garage, library card, bookmark list, … the amount of reading material that I possess that I have not yet gotten around to reading is probably larger than most people have read in their lives. (Whether that’s good or bad I’m not sure; makes for great exercise when moving, though!)

    htom (412a17)

  19. htom,

    Same question for you as for nk: would you say the same about statements made by the defendant? If not, why not? After all, we all say a lot of things.

    Also, what about my hypo re fictional writings by the defendant?

    Patterico (eeb415)

  20. Does possession of night vision goggles manufactured by Coleman make me a terrorist? Am I a child-molester terrorist because I own a copy of Lolita?

    Say a defendant robs a bank with a semi-automatic firearm. Police conduct one of those dreaded search warrants Radley Balko hates so much and find a semi-automatic weapon. Should the prosecution be allowed to introduce it if the victims say it looks like the weapon?

    But I HAVE A SEMI-AUTOMATIC AT MY HOUSE THAT LOOKS LIKE THE WEAPON TOO!!!! (Actually I don’t, but many of you might.) ARE YOU TRYING TO SAY I’M A BANK ROBBER TOO, JUST BECAUSE I OWN A GUN?!?!?! IT’S A SECOND AMENDMENT ISSUE!!!!

    Look. Evidence means different things in different contexts. The fact that a piece of evidence is innocent in one context is not a reason to EXCLUDE IT in another context where the context shows the evidence is not innocent.

    Whether it’s innocent or not depends upon many factors, of course, which is why we have trials and not resolutions by computer.

    Patterico (eeb415)

  21. Note: I do not like child predators, this is simply a question for Patterico.

    Pat: How do you feel about the practice of entrapment as provided by law enforcement in child cases (and in prostitution rings)?

    Lord Nazh (d282eb)

  22. Lord Nazh,

    Entrapment is illegal in California and every other jurisdiction I am aware of.

    Do you mean what do I think of undercover stings?

    Because not every undercover sting constitutes entrapment.

    Patterico (743b20)

  23. IIRC Scotus decided a civil case in the recent (last 20-yrs) past over a how-to murder book, a case that pretty much put the publisher out of business, on the basis that the murderer, or the person who hired him, had purchased that book, and used it as a blue-print for the crime.

    Another Drew (8018ee)

  24. Patterico #17:

    I would take all the examples where the defendant is the author out of the discussion altogether. The law pretty much now is that any uncoerced statement made by a defendant, anytime/anywhere, is admissible against him (with some qualifications such as privilege or prejudicial effect outweighing probative value, etc.) and the trier of fact determines what weight to give it.

    I would rule the connection between what people read and what crimes they commit as too tenuous as a matter of law. I would keep out not just “Huckleberry Finn” but “The Turner Diaries” in your hate-crime hypo. Extra caution should be taken not to put people in prison only for their thoughts. Especially in the case of an inchoate crime like this, where otherwise innocent behavior becomes criminal based only on the defendant’s state of mind.

    nk (835ea1)

  25. #24

    Rice v. Paladin Press? (A good case for Luttig fans too BTW.)

    nk (835ea1)

  26. NK,

    If all or substantially all of defendant’s reading material involved content similar to the crime for which s/he was charged, would that alter your opinion as to its admissibility? In other words, is this an issue that might be subject to a balancing test or does your First Amendment concern always trump the evidentiary issue?

    DRJ (2d5e62)

  27. DRJ,

    There is a First Amendment implication but a better Fifth Amendment analysis around due process and standard of proof, in my view. One appellate court in Illinois (not my case but another attorney’s in my office) mentioned First Amendment considerations in suppressing pornography possessed by the defendant in a rape case but the decision really centered around undue prejudice.

    More directly to your question, I believe the law does better when it concentrates on the act and the impact on the victim. Too much concern for the defendant’s state of mind verges on the metaphysical — punishing sin instead of crime. I would go so far as to say that a crime which needs inquiry into what the defendant likes to read in order to be proven probably should not be a crime under the law at all.

    nk (835ea1)

  28. Okay, but it seems like a predisposition for or a preoccupation with certain things is relevant and should be admissible. For instance, if a crime were committed with a samurai sword, it would be relevant and I think it should be admissible to show that the defendant collects and is fascinated by them. I suppose I’m focusing on the defendant’s preoccupation with something as a basis for admissibility but, absent a showing that the defendant had an undue interest in something relevant, I probably would agree with you.

    DRJ (2d5e62)

  29. I would insist as a foundation either 1) that no other person collects and is fascinated by samurai swords or 2) that every person who collects and is fascinated by samurai swords commits the same crime. And I would still want blood on the sword and matching cuts on the victim. A video tape of the defendant committing the crime would be nice too. 😉

    Seriously, I don’t think that we can or should analogize pattern of conduct or modus operandi to reading preferences, for the reasons I stated earlier. There’s a wide gulf between possessing the possible instrumentality of a crime and having read a book about that instrumentality.

    nk (835ea1)

  30. You aren’t answering my questions, nk.

    Is there a reason? I suspect there is.

    Anyone who disagrees with me is going to have a hard time addressing the hypos in my post head-on. Far easier to pretend like they aren’t there.

    Patterico (eeb415)

  31. NK,

    Patterico’s questions take first priority but, after you respond to them, it seems to me that you are being too picky. I think it is relevant if a defendant is preoccupied with an unusual weapon or method and that weapon or method is used in the commission of a crime.

    What if the defendant is charged with building and detonating a homemade bomb and s/he had reading material on how to build a bomb? Wouldn’t that be admissible? It seems to me that defendant’s possession of bomb-making instructions is relevant and admissible evidence that suggests defendant had the knowledge and the inclination to commit the crime. I assume the instructions would typically be offered to show defendant had knowledge about bomb-making but it seems to me it would be equally admissible to show inclination.

    DRJ (2d5e62)

  32. A man stands accused of pushing another man off a cliff. His defense is that it was an accident. He is arrested at the scene of the crime with a PDA with more than 140 stories about men killing other men by pushing them off a cliff, and claiming it was an accident.

    Same answer as my first comment. Put the stories in the context of everything he has read. Or is there a new definition of “relevant” — that it is only what is probative of guilt and not probative of innocence?

    But if someone were on trial for fellating his seven-year-old stepson, and had written a “fictional” story about a man who fellates his seven-year-old stepson, with numerous similarities between the “story” and reality, I would think that would be highly relevant evidence.

    This is not theory, by the way. I know of cases where accused murderers are caught on tape in jail rapping about how they killed the victim. Should such admissions be excluded from evidence?

    Anything a defendant says or does, anytime, anywhere, unless it’s privileged or the court determines that its inflammatory effect greatly outweighs its probative value, should be admissible for whatever weight the trier of fact wants to give to it. It goes for the Jonnhy Cash example, too.

    For example, nonsensical P.C. attitudes could easily create a situation where, for example, having read Huckleberry Finn or To Kill a Mockinghbird could be used against you in a racial hate crime prosecution.

    That’s the danger. Better a blanket rule. We are the most lawbound nation in the world. Most police per capita, most resources for prosecutors, judges and prisons. We can afford to grant the defendant a lot of justice but more important than that we can afford to be careful not to burn the wheat with the chaff. To spare the innocent from the thought police.

    I think that’s all of them. I will grant you that the pervert in this case asked for it. But as much contempt as I have for him, I have only slightly less for law enforcement manufacturing crimes which require this kind of evidence to prove them.

    nk (835ea1)

  33. You can find instructions on how to make nitrocellulose on my blog, DRJ. It’s my biggest Google hit, with my recipe for lentil soup running a close second, and my link to a homemade rifle used by partisans against Nazis in WWII third. Be careful to use a proxy server should you ever visit me.

    It’s a crime to make a bomb. It’s not a crime to know how to make one. Well, except maybe in the Ninth Circuit.

    nk (835ea1)

  34. I know, NK, and I’m not suggesting that possessing bomb-making instructions alone would be adequate proof of guilt. But you know better than I that evidence can be circumstantial and need not prove the ultimate fact in issue to be admissible.

    DRJ (2d5e62)

  35. DRJ,

    Do you know what first came to my mind when I read Patterico’s post? Anita Hill being “impeached” by the Judiciary Committee on her “pubic hair in my Coke” accusation of Clarence Thomas with a passage from “The Exorcist”. FWIW.

    nk (835ea1)

  36. I remember that. In fact, I was glued to the TV every night watching a recap of the hearings. It’s hard to believe that was 16 years ago.

    DRJ (2d5e62)

  37. Patterico writes:

    I have grave concerns about using people’s reading material against them. But at the same time, it would be a major disservice to the truth to exclude this evidence in this particular case.

    Well, the truth is that in this case, the five stories admitted as evidence at trial did not bear on the crime with which the defendant was charged. Those stories were about incest. But as Judge Kleinfeld notes in dissent (pdf at p. 53):

    Curtin was not charged with incest. He was charged with traveling in interstate commerce with the intent of sexually abusing a person under 18. If christy13 were real, sex with her would be a crime, but it would not be incest. Even if proving a person’s sexual fantasy were relevant to show an intention to carry it out, a doubtful proposition, it would not be relevant to show conduct quite different from the fantasy.

    I assume, Patterico, you did not mean to argue that exclusion of prejudicial admissions is unserviceable to the truth.

    Paul (eb0f23)

  38. Just a trivial side-note: If someone shot a man in Reno, he wouldn’t be doing time in California’s Folsom prison.

    Great song, though.

    Don Bear (0b5b34)

  39. I agree with numerous commenters that any connection between a person’s reading habits and his guilt/innocence is far more tenuous than the connection between his past statements and his guilt/innocence. I don’t see that as an argument for an exclusionary rule of any kind. What’s wrong with simply applying the basic rules of evidence, i.e., requiring the prosecution to establish minimal relevance, then having the judge throw the evidence out if it’s more prejudicial than probative (which, I suspect, will be the case 90% of the time)?

    Xrlq (facab4)

  40. Paul,

    “Well, the truth is that in this case, the five stories admitted as evidence at trial did not bear on the crime with which the defendant was charged.”

    Nonsense. Kleinfeld’s argument on this point is twaddle. The issue in the case was whether the defendant thought he was meeting a grown woman or a little girl. He had stories about meeting little girls. It is of no moment whether the little girls in the stories were related to the men in the stories. The relevant issue is whether the females in the stories were women or girls.

    This is perhaps Kleinfeld’s silliest argument, and you swallowed it whole.

    I am aware of no crime in my state called “incest.” If a man has sex with his seven-year-old daughter, he will be charged with a lewd act with a minor, not with “incest.” The relationship (or lack thereof) between the defendant and victim is legally irrelevant.

    Patterico (7bb4c7)

  41. I am aware of no crime in my state called “incest.”

    See Cal. Pen. Code § 285.

    Xrlq (facab4)

  42. I believe that there is established case rulings that govern things like that… there was a man prosecuted for arson and murder in CA that had written a book about arson crimes… he was an arson investigator and the book was key to the prosecutions case… they even made a movie out of it starring John Leguizamo called Point of Origin

    chris (64da58)

  43. nk #26
    Thanks for the cite. You know you’re getting old when 10-yr old details escape you.

    Personally, I believe that the urge for “hate crimes” legislation is very dangerous. We need to concentrate on people’s actions, and not their thoughts (sticks and stones, you know).

    The situation at Harvard with Laurence Summers is a good case in point. He asked an academic question regarding women’s participation in a specific area of work, and was hounded out of office for being a bigot. One of academe’s great shining moments.

    Another Drew (8018ee)

  44. Xrlq schools me on the criminal law in California. Embarrassing. For what it’s worth, “incest” never gets prosecuted as such, from what I’ve seen. I have never heard of a single such case.

    In any event, Kleinfeld’s argument is still nonsense.

    Patterico (eeb415)

  45. I’ll have to think about this tomorrow (when I’ll have a clearer head.) I hope that you all enjoyed Memorial Day, I know I did.

    htom (412a17)

  46. The UNIBOMBER was a big time reader of AL GORES fruadelent book EARTH IN THE BALANCE

    krazy kagu (c49761)

  47. No One has addressed the argument advanced by Bashman that the evidence in this case (i.e. the transcripts) was probably strong enough to obtain a conviction in any event.

    It seems to me that you are evaluating the probative value of the reading list in the context of every other piece of evidence admitted at trial. In that light, sure the reading list looks incriminating. But the point is that the reading list was not necessary.

    The danger of this opinion is that it is now going to be applied in much murkier contexts, and at some point, a reading list is going to be used as THE key piece of evidence in some prosecution. While this decision states that a reading list can be used in “limited circumstances,” it is the job of creative prosecutors to continually expand the circumstances in which the evidence will be used. And they will. And an important principle will erode away.

    I think that the principle of freedom of thought is important enough that the bright line rule that reading lists are inadmissible would have been the right decision. I think your assertion that guilty men will go free with a bright line rule is hyperbole. Prosecutors and Police will just have to work a little harder, that’s all.

    Scotty (e2a16a)

  48. In your hypothetical, Apple has fallen to his death from the top of a cliff and Onion is arrested at the top of that cliff, with a PDA containing 140 (or so) stories of people being murdered by being pushed from the top of cliffs, with the pusher claiming it was an accident, and Onion claims that Apple’s fall was an accident, right? There is no other evidence connecting Apple’s fall or death to Onion?

    Are you even sure that it’s Onion’s PDA? Perhaps it’s Apple’s, and Onion was the intended victim? Or Cherry is the killer, leaving the PDA to incriminate anyone who came upon it? Or Cherry was fearful of Apple, having downloaded his reading list, started it, confronted him, threw the PDA at him, and fled — Apple falling as Onion came upon the scene.

    I think you’re trying to change possible thought crimes into real ones without evidence. I think that the intent of the original case was to establish a horrible precedent that can be used to convict others whose only crime was reading.

    Don’t worry, it’s unlikely I’ll ever be in a jury pool.

    htom (412a17)


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