Academic

Reactions to the alleged video clip of Mohamed Mohamud

By Tung Yin

KPTV News (the local Fox affiliate), which obtained the phone video clip of Mohamed Mohamud, has a couple of new stories:

Muslims React to Terror Suspect Video 

Attorney Shares Take On Mohamud Phone Video

The first story includes the following quote from Harris Zafar (Ahmadiyya Muslim Community of Southwest Portland):

?Whatever his motivation is or whatever his anger is targeted towards, to bring religion into it and to bring this theory of Islam versus the West is inaccurate, inappropriate and un-Islamic.?

(Zafar, by the way, is going to be the KGW "Straight Talk" show that will be airing on Saturday evening.  The other guests are Kayse Jama of the Center for Intercultural Organizing; Portland Assistant Police Chief Eric Hendricks; and me.)

On the legal significance of the video phone clip:

[Local criminal defense attorney John] Hingson says the video doesn't offer an obvious benefit to either side.

"With skillful lawyering on both sides it can help or hurt", said Hingson. "It depends what the defense makes of it and what the prosecution makes of it."

Hingson went on to suggest that the defense could perhaps defuse the impact of the video by arguing that Mohamud is young and has a right to free speech.

While I think Hingson is certainly right that a skilled attorney can do so, this conversation does illustrate a serious downside of the current subjective test for entrapment that is used in federal courts. 

By "subjective test," the courts mean that the issue is not whether a reasonable person would have been entrapped by the government actions, but rather, whether this particular defendant was (or was not, because of predisposition to commit the crime).  An "objective test" -- which focuses on the hypothetical reasonable person -- would not inquire at all into the specifics of the defendant.  The subjective test, on the other hand, forces the government to prove this defendant's mindset.

Because that is so, the raising of an entrapment defense in a subjective test jurisdiction (like the federal courts) potentially opens the door to the introduction of evidence that might otherwise be deemed irrelevant and thus excluded.

For example, if entrapment were not an issue, then this video would have little relevance to whether Mohamud committed the crime with which he has been accused.  It does not tend to prove or disprove that he attempted to use a weapon of mass destruction.  To the extent that it does tend to show that he might be more likely to engage in violence, it might be excluded as inadmissible character evidence.

Things get a little here in terms of character evidence.  Rule 404 of the Federal Rules of Evidence states in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

I suppose one could argue that the video clip, if authentic, is marginally probative of motive (anti-West feelings?) or intent (willingness to assault people?).  Absent the entrapment defense, however, it wouldn't make sense to show this video to prove that he had the intent back in May (when the clip was supposedly recorded) to commit a crime that he hadn't yet formulated.  Even if it's too marginally probative, and it has the potential to prejudice the jury unfairly, as this clip might -- by distracting the jury and having it dwell too much on the tirade -- then a judge can still exclude the evidence under Rule 403 of the Federal Rules of Evidence.

However, things look different if the question shifts to, was he predisposed (i.e., willing) to commit the crime by the time the FBI approached him with the undercover operation?  An expressed willingness to engage in violence of some sort, even if different from the bomb plot, is somewhat more relevant to the predisposition question than it is to intent.

Again, the judge could still exclude it on Rule 403 grounds.  But the relevance is greater, and hence the necessary showing of danger of unfair prejudice would rise as well, meaning that it's less likely to be excluded to overcome entrapment than it would be to show intent.

This is a downside of the subjective entrapment test.

Full post as published by The Yin Blog on December 03, 2010 (boomark / email).