Friday notes (UPDATED)

1. Gotta love 4th Amendment under-garments. Are those body scanners constitutional anyway?

2. Speaking of the 4th Amendment, did the police violate Charlie Sheen's 4th Amendment rights? Sheen tweeted that he the police were respectful. Good thing for them because Sheen knows how to sue.

3. Say it ain't so Snoop.

4. Judge Posner on a lawyer lying about the number of words in his brief: "We add that the appellants’ brief is rambling, and would be more effective if compressed to 14,000 words."

5. I like when Justice Scalia is angry.

AFTERNOON UPDATE:

6. Judge Camp got 30 days in the grey-bar hotel.

7. The 11th Circuit wades into the world of rap videos and whether they should be played in criminal trials. The Court finds plain error but deems it harmless:

Based upon our independent review of the rap video and the totality of the record, we conclude that it was error under Fed. R. Evid. 403 to play this rap video to the jury. We recognize that the video could be construed to discuss Gamory inasmuch as the lyrics referred to JB, a white crib, a Range Rover, drugs and Hush Money and because the artist in the video, Tone Flowa, wore a necklace with a “JB” insignia that was similar to cuff links seized during the search of Gamory’s residence. But the substance of the rap video was heavily prejudicial. The lyrics presented a substantial danger of unfair prejudice because they contained violence, profanity, sex, promiscuity, and misogyny and could reasonably be understood as promoting a violent and unlawful lifestyle. At the same time, the video was not clearly probative of Gamory’s guilt. We cannot ignore the simple fact that Gamory was not in the video. Neither was there any evidence that Gamory authored the lyrics or that the views and values reflected in the video were, in fact, adopted or shared by Gamory.

We are also mindful of the fact that the government introduced the rap video at the end of its case after it had already presented significant evidence that Gamory was JB and he owned Hush Money Entertainment. These facts were not seriously contested at the time the video was introduced and such evidence was therefore cumulative. In short, the probative value of the rap video was minimal at best, and more importantly was substantially outweighed by the video’s unfair prejudice.

Further, there is little doubt that the rap video was inadmissible hearsay. The rap video contained 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.” Fed. R. Evid. 801(c). Subject to certain exceptions not applicable to Gamory’s case, the hearsay statements were inadmissible. See Fed. R. Evid. 802–804. In this Court, the government disavowed that the purpose of the video was to prove the truth of the matter asserted, but the District Court record contradicts that assertion. The prosecutor at trial stated as follows:

I believe that the reference of drug money is Hush Money, drug money is Hush Money which is said repeatedly throughout that video is very relevant to the issues for which are being tried here today, that being that the Government contends that Mr. Gamory is a drug dealer.

***

We conclude that the errors relating to the admission of the rap video were harmless.

So the life sentence sticks. (HT:CC)