There's a plethora of interesting stuff in this opinion by Justice Mihara. First, there's some good Miranda stuff, and the Court of Appeal holds that the defendant wasn't properly given his Miranda warnings when they were somewhat butchered by a telephonic AT&T interpreter who translated them into Mandarin. It's funny to know (but I guess not that surprising, once you think about it) that the best that the Santa Clara Police Department can do is to use off-the-shelf AT&T interpreters. In any event, this part of the opinion is interesting and worth a definite read.
Second, Justice Mihara also holds -- in a portion of the opinion that I think is clearly right -- that the court improperly allowed various privileged documents to be introduced at trial. The defendant wrote some very important communications to his attorney on a laptop, and both password-protected these documents and saved them in a file marked "Attorney". But the laptop was technically owned by his employer, and on this basis the trial court held that there was no reasonable expectation of privacy and hence no privilege. Now, I can see someone making this argument, and if justice were both blind and not very much concerned with the actual advancement of justice, I could see a court buying it. But I thought that the Court of Appeal was surely right that the defendant had a reasonable expectation of privacy in these documents notwithstanding their presence on the employer's computer. I've got lots of stuff on my University computer. Sure, they've got a technical policy that it's theirs and that they can do what they want with it. But, to my knowledge, they have never looked at it and never will. I've got a reasonable expectation of privacy. So did the defendant -- even more, since his documents (unlike mine) were password protected. So I clearly agree with Justice Mihara on this one.
(Brief tangent. There's an undercurrent here that I definitely perceived, but wonder if it is idiosyncratic. My fairly strong belief is that the only reason that the defendant got a reversal on the Miranda issue is because the erroneous translation was tape-recorded pursuant to AT&T's policies. If this wasn't the case, then you'd have just have had the police and interpreter testify falsely that the translation was accurate, and there'd have been nothing the defendant could do. Which is why the police often, I believe, have a policy not to record Miranda warnings and interrogations until the very end, when the defendant simply reiterates his prior confession. So there's no record. And, on that same theme, does anyone else who reads this opinion smell something pretty bad in the section about the privilege issue? The prosecutor here repeatedly swore that she didn't open the privileged documents until the very very end, and didn't know what was in them until then. But, for some reason, I had a gut feeling that she simply wasn't telling the truth. Which, I know, is assuredly terrible thing to say about an officer of the court. But that's nonetheless my strong feeling here.)
One last interesting part. On the merits, for the benefit of the retrial, at the end of the opinion, Justice Mihara talks about the decision of the trial court to exclude an proposed defense expert who was going to testify, inter alia, that due to the culture of the defendant and victim, various acts (e.g., drinking from the same glass and borrowing books) were probative of the fact that the defendant sincerely -- but mistakenly -- believed that there was consent to the sexual conduct at issue. This issue clearly makes Justice Mihara so uncomfortable that while he discusses it, and gives some insight, he doesn't actually decide whether the trial court was right or wrong. And the language that he uses is intriguing. Justice Mihara (rightly) holds that this proposed testimony was not relevant to the objective component -- did defendant's conduct demonstrate objective consent -- "because our society is not willing to tolerate a belief in consent that is based on the content of loaned books or the sharing of a wine glass." But on the real issue -- whether this evidence is relevant to the subjective component (e.g., did defendant actually believe there was consent), the only thing that Justice Mihara can say is that since the expert's testimony was not relevant to the objective component, the relevance of the testimony on the subjective component was minimal. But that's not really responsive. And Justice Mihara seems to know as much, since he concludes that "maybe" the expert could rephrase his opinions, and leaves it to the trial court to sort out this mess on remand.
The obvious undercurrent, I think, is that the proposed evidence is clearly relevant, but consists of something we very, very much don't like. Even if, in some cultures, it's evidence of desired intimacy that you drink from the same glass, we don't want to admit that evidence in the U.S., because we (1) don't want people in the U.S. to draw those inferences, and instead want to demand that they comport themselves according to our cultural mores, and (2) don't want to admit that it's ever a possible defense to a rape charge that the alleged victim did something like drank from the same glass as the victim. Just like, for obvious reasons, we'd be super-reluctant to allow evidence that an alleged rape victim was "asking for it" by wearing provocative clothing even if it were true that, in some cultures, wearing provocative clothing was an indicia of desired intimacy.
So I think there's a fertile area of intellectual thought here surrounding how you transport differential cultural values in the context of criminal prosecutions, particularly vis-a-vis consent. And it's because this is such a tough and complicated area that Justice Mihara basically totally punts on the issue. But someone smart and devoted could really draw some fascinating conclusions about this field.
