WEBVTT 1 00:00:00.000 --> 00:00:04.230 SJC-13474: Commonwealth v. Rochelle Scordino 2 00:00:04.230 --> 00:00:09.230 and SJC-13486: Commonwealth v. Dominique M. Oliver. 3 00:00:15.042 --> 00:00:17.209 Okay, Attorney Yeshulas. 4 00:00:20.408 --> 00:00:22.350 Thank you, Chief Justice Bud. 5 00:00:22.350 --> 00:00:23.183 Good morning. 6 00:00:23.183 --> 00:00:24.016 May it please the court, 7 00:00:24.016 --> 00:00:26.460 Laurie Yeshulas for Rochelle Scordino. 8 00:00:26.460 --> 00:00:28.470 Your honor, this case is significant, 9 00:00:28.470 --> 00:00:31.230 because we are faced with the question of whether, 10 00:00:31.230 --> 00:00:34.791 in an otherwise unremarkable bank transaction, 11 00:00:34.791 --> 00:00:36.420 the Commonwealth's presentation 12 00:00:36.420 --> 00:00:38.700 of the account holder's testimony 13 00:00:38.700 --> 00:00:40.820 that she does not know the payee 14 00:00:40.820 --> 00:00:44.400 and does not owe her money count as sufficient evidence 15 00:00:44.400 --> 00:00:47.340 of circumstantial proof beyond a reasonable doubt 16 00:00:47.340 --> 00:00:51.480 to support the conviction of the crime of uttering. 17 00:00:51.480 --> 00:00:53.670 The appeals court answered this question no, 18 00:00:53.670 --> 00:00:55.170 and for good reason, 19 00:00:55.170 --> 00:00:57.990 because the account holder's testimony does not give us any 20 00:00:57.990 --> 00:01:01.080 insight into the payee's knowledge or intent. 21 00:01:01.080 --> 00:01:02.604 In fact, it only gives us insight 22 00:01:02.604 --> 00:01:05.280 into the account holder's knowledge. 23 00:01:05.280 --> 00:01:08.183 The Commonwealth cannot rely on proof 24 00:01:08.183 --> 00:01:09.750 beyond a reasonable doubt 25 00:01:09.750 --> 00:01:13.230 on an account holder's statements of unfamiliarity, 26 00:01:13.230 --> 00:01:16.143 and that's what the Commonwealth asked this court to find. 27 00:01:17.070 --> 00:01:18.600 The Commonwealth relies on cases 28 00:01:18.600 --> 00:01:21.090 that were cited in the concurrence in the Oliver case 29 00:01:21.090 --> 00:01:22.830 to support its proposition, 30 00:01:22.830 --> 00:01:26.370 but an actual clear and careful understanding and reading 31 00:01:26.370 --> 00:01:28.590 of those cases suggest otherwise. 32 00:01:28.590 --> 00:01:31.440 In the Green case, 33 00:01:31.440 --> 00:01:34.380 cited by the concurrence in the Oliver case, that case, 34 00:01:34.380 --> 00:01:37.980 there was other indicia of circumstantial proof 35 00:01:37.980 --> 00:01:39.160 of knowledge, 36 00:01:39.160 --> 00:01:41.640 including the defendant's admissions 37 00:01:41.640 --> 00:01:43.020 that he only did it once, 38 00:01:43.020 --> 00:01:45.060 his admissions he was unfamiliar with the company 39 00:01:45.060 --> 00:01:46.855 on whose check it was written, 40 00:01:46.855 --> 00:01:50.160 and those apply additional circumstantial evidence 41 00:01:50.160 --> 00:01:51.000 of knowledge. 42 00:01:51.000 --> 00:01:53.220 In the other case that is cited 43 00:01:53.220 --> 00:01:55.058 by the concurrence in Oliver. 44 00:01:55.058 --> 00:01:56.955 Can I ask a question though? 45 00:01:56.955 --> 00:02:01.955 So, anytime, someone, let's tell do a hypothetical, 46 00:02:02.100 --> 00:02:03.900 someone steals a check 47 00:02:03.900 --> 00:02:08.900 and writes themself a, you know, make themselves the payee, 48 00:02:12.939 --> 00:02:14.670 they're off the hook, right? 49 00:02:14.670 --> 00:02:16.380 There's no way of proving this. 50 00:02:16.380 --> 00:02:18.000 So there are other ways and there are cases 51 00:02:18.000 --> 00:02:20.010 that talk about maybe handwriting exemplars, 52 00:02:20.010 --> 00:02:20.843 where you come in 53 00:02:20.843 --> 00:02:23.102 and have someone do a handwriting exemplar. 54 00:02:23.102 --> 00:02:24.540 So you've got a good hand-writer 55 00:02:24.540 --> 00:02:26.255 who reads the name carefully. 56 00:02:26.255 --> 00:02:28.260 And so, in that case, 57 00:02:28.260 --> 00:02:29.093 I would suggest 58 00:02:29.093 --> 00:02:31.560 that the Commonwealth do a further investigation on how, 59 00:02:31.560 --> 00:02:35.010 you know, it's the Commonwealth's burden to explain 60 00:02:35.010 --> 00:02:38.040 how the check passed from the actual account holder 61 00:02:38.040 --> 00:02:39.181 to the payee. 62 00:02:39.181 --> 00:02:40.824 Who is gonna end up with... 63 00:02:40.824 --> 00:02:41.657 The Commonwealth's always gonna be able 64 00:02:43.176 --> 00:02:45.150 to prove the account holder doesn't know the person. 65 00:02:45.150 --> 00:02:49.620 It's also gonna be showing no other names are on the list, 66 00:02:49.620 --> 00:02:52.080 you know, and no other endorsements. 67 00:02:52.080 --> 00:02:54.570 But doesn't this gonna always result in sort 68 00:02:54.570 --> 00:02:58.020 of a free pass to steal checks? 69 00:02:58.020 --> 00:03:00.933 I don't agree, Justice Kafker, and for the reason is, 70 00:03:00.933 --> 00:03:03.600 we don't operate under presumption, right, 71 00:03:03.600 --> 00:03:06.450 that someone giving a third party check is going to, 72 00:03:06.450 --> 00:03:07.920 it's going to be a fraudulent check? 73 00:03:07.920 --> 00:03:10.200 We operate that this is a negotiable instrument, 74 00:03:10.200 --> 00:03:11.760 and we can negotiate it freely. 75 00:03:11.760 --> 00:03:12.630 Totally agree with that, 76 00:03:12.630 --> 00:03:14.040 but usually you know someone 77 00:03:14.040 --> 00:03:18.330 in the list of endorsements, right? 78 00:03:18.330 --> 00:03:22.550 The example that Justice Rubin gives in his, 79 00:03:22.550 --> 00:03:25.620 about an attorney who got paid. 80 00:03:25.620 --> 00:03:27.914 You know, his client owes him money, 81 00:03:27.914 --> 00:03:28.980 and the brother of the client pays. 82 00:03:28.980 --> 00:03:30.708 That's not our situation. 83 00:03:30.708 --> 00:03:33.060 Normally, what we've got is just this, 84 00:03:33.060 --> 00:03:37.295 which is someone's stolen a check and written something, 85 00:03:37.295 --> 00:03:39.060 endorsing it to them. 86 00:03:39.060 --> 00:03:40.500 The problem with the Commonwealth's evidence 87 00:03:40.500 --> 00:03:42.030 in this case is we don't know who stole 88 00:03:42.030 --> 00:03:43.290 or forged the check because... 89 00:03:43.290 --> 00:03:44.511 I agree. 90 00:03:44.511 --> 00:03:45.344 It's hard. 91 00:03:45.344 --> 00:03:46.950 And I think this is like the Pacheco case, 92 00:03:46.950 --> 00:03:50.490 which is the case that cited in, it's 128, 93 00:03:50.490 --> 00:03:52.613 cited in my brief, that case, 94 00:03:52.613 --> 00:03:54.930 and we are referring to the attorney, in that case, 95 00:03:54.930 --> 00:03:56.220 the attorney receives a check. 96 00:03:56.220 --> 00:03:59.070 It was misrepresented to her by her client, 97 00:03:59.070 --> 00:04:00.780 and that scenario happens all the time. 98 00:04:00.780 --> 00:04:02.868 Third party checks are passed all the time. 99 00:04:02.868 --> 00:04:05.823 They don't know someone in the chain of title, right? 100 00:04:07.560 --> 00:04:11.305 I skipped my UCC class, so I'm using the wrong terminology. 101 00:04:11.305 --> 00:04:13.560 So, you know, for guidance, 102 00:04:13.560 --> 00:04:16.170 we can look at cases in other jurisdictions. 103 00:04:16.170 --> 00:04:18.810 The Heath v. State case, which I do not cite in my brief, 104 00:04:18.810 --> 00:04:20.490 but the appellant 105 00:04:20.490 --> 00:04:25.490 in Oliver states it is 382 Southern II, 291 at 392. 106 00:04:25.620 --> 00:04:27.710 It was a Florida District Court of Appeals case. 107 00:04:27.710 --> 00:04:28.543 In that case, 108 00:04:28.543 --> 00:04:33.440 the person actually impersonated the account holder. 109 00:04:34.636 --> 00:04:36.030 There was an impersonation. 110 00:04:36.030 --> 00:04:38.160 So when the person went to cash the check, 111 00:04:38.160 --> 00:04:40.020 he had no real way of knowing 112 00:04:40.020 --> 00:04:41.820 that he received the check from an impersonator. 113 00:04:41.820 --> 00:04:43.520 I'm trying to figure out what to do 114 00:04:43.520 --> 00:04:45.450 in the more common, harder case. 115 00:04:45.450 --> 00:04:50.204 Someone writes the right name down, steals the check, 116 00:04:50.204 --> 00:04:55.204 but they're not wearing a Groucho Marx, you know, outfit. 117 00:04:56.100 --> 00:04:59.910 You know, they're just stealing and writing and endorsing. 118 00:04:59.910 --> 00:05:00.990 With third-party checks, 119 00:05:00.990 --> 00:05:02.700 and I think the appeals court talks about this, 120 00:05:02.700 --> 00:05:03.780 are very common. 121 00:05:03.780 --> 00:05:07.146 In fact, you know, people often receive third-party checks 122 00:05:07.146 --> 00:05:10.830 for paying for services and goods for other people. 123 00:05:10.830 --> 00:05:12.147 Someone could pay for someone's... 124 00:05:12.147 --> 00:05:13.980 How do we know that, counsel? 125 00:05:13.980 --> 00:05:15.840 I'm sorry to interrupt your answer, 126 00:05:15.840 --> 00:05:18.660 but just, you're stating that as a fact, 127 00:05:18.660 --> 00:05:21.480 that people often receive third-party checks. 128 00:05:21.480 --> 00:05:24.000 So, let's just take an an example of when the attorneys, 129 00:05:24.000 --> 00:05:24.833 one example. 130 00:05:24.833 --> 00:05:26.430 Another scenario could be someone paying 131 00:05:26.430 --> 00:05:27.390 for somebody's car- 132 00:05:27.390 --> 00:05:28.860 I can come up with scenarios. 133 00:05:28.860 --> 00:05:32.160 How do we know that this is a common scenario? 134 00:05:32.160 --> 00:05:34.943 You know, is it just, we just know this. 135 00:05:34.943 --> 00:05:37.320 I think we can take judicial notice of it, or... 136 00:05:37.320 --> 00:05:40.200 So, banks generally accept third-party payee checks, 137 00:05:40.200 --> 00:05:41.850 and it happens all the time. 138 00:05:41.850 --> 00:05:44.190 This is something that's not uncommon. 139 00:05:44.190 --> 00:05:47.340 Generally, and I think the appeals court talks about it, is, 140 00:05:47.340 --> 00:05:49.230 we generally don't know, sometimes, 141 00:05:49.230 --> 00:05:51.113 when we receive a third-party check to pay 142 00:05:51.113 --> 00:05:54.150 for some good or service by someone else, 143 00:05:54.150 --> 00:05:56.730 a great aunt or a grandmother or a brother 144 00:05:56.730 --> 00:05:58.350 or someone paying for the services or goods 145 00:05:58.350 --> 00:05:59.366 for someone else. 146 00:05:59.366 --> 00:06:02.884 It happens quite frequently, and it's legal. 147 00:06:02.884 --> 00:06:05.460 There's nothing criminal about it, and it's allowable. 148 00:06:05.460 --> 00:06:06.420 What's the basis for your statement 149 00:06:06.420 --> 00:06:07.980 that it happens quite frequently, 150 00:06:07.980 --> 00:06:09.870 just your common knowledge? 151 00:06:09.870 --> 00:06:10.703 I don't know. 152 00:06:10.703 --> 00:06:11.640 I'm not disputing it. 153 00:06:11.640 --> 00:06:14.550 It's not my experience, but I'm wondering, is it yours? 154 00:06:14.550 --> 00:06:15.870 If I could speak outside the record, 155 00:06:15.870 --> 00:06:16.920 I have received checks. 156 00:06:16.920 --> 00:06:19.590 I have had other people pay for things for me 157 00:06:19.590 --> 00:06:21.960 on other checks, you know, in college. 158 00:06:21.960 --> 00:06:22.860 You've received checks 159 00:06:22.860 --> 00:06:27.076 from complete strangers that, not... 160 00:06:27.076 --> 00:06:30.333 Okay, so I understand when grandma sends you a check. 161 00:06:31.680 --> 00:06:32.589 You know grandma. 162 00:06:32.589 --> 00:06:35.631 Have you received checks from complete strangers? 163 00:06:35.631 --> 00:06:39.237 So there is a scenario in another case 164 00:06:39.237 --> 00:06:40.070 that I would cite to, 165 00:06:40.070 --> 00:06:41.730 is the Griffin case that's also cited 166 00:06:41.730 --> 00:06:43.557 in the appellant's case. 167 00:06:43.557 --> 00:06:47.128 That's 908 Southwest II 624. 168 00:06:47.128 --> 00:06:50.040 That's a case where someone steals a checkbook 169 00:06:50.040 --> 00:06:51.810 and impersonates the payor. 170 00:06:51.810 --> 00:06:55.410 And in both of those, in the Heath and Griffin cases, 171 00:06:55.410 --> 00:06:56.850 they talk about this scenario 172 00:06:56.850 --> 00:06:59.479 where someone's impersonating that account holder. 173 00:06:59.479 --> 00:07:03.090 The Heath case is a good example 174 00:07:03.090 --> 00:07:04.470 of someone who meets somebody, 175 00:07:04.470 --> 00:07:06.360 impersonates the account holder, 176 00:07:06.360 --> 00:07:08.039 and receives a check for goods. 177 00:07:08.039 --> 00:07:09.540 And in that case, 178 00:07:09.540 --> 00:07:13.590 the payee would have no way of knowing that the person is, 179 00:07:13.590 --> 00:07:15.390 you know, impersonating the account holder. 180 00:07:15.390 --> 00:07:18.480 So the answer to justice Kafker's question is, 181 00:07:18.480 --> 00:07:21.210 no, you don't often get third-party checks. 182 00:07:21.210 --> 00:07:22.290 Me personally? 183 00:07:22.290 --> 00:07:24.843 I think that's what he asked, yeah. 184 00:07:24.843 --> 00:07:27.930 I actually have in scenarios, 185 00:07:27.930 --> 00:07:30.204 not personal checks, but I received, you know, 186 00:07:30.204 --> 00:07:32.760 payment for something from someone I didn't know. 187 00:07:32.760 --> 00:07:33.593 It's perfectly- 188 00:07:33.593 --> 00:07:35.666 Counsel, could we just go back to this case for a second? 189 00:07:35.666 --> 00:07:37.935 Why isn't this just a sufficiency case? 190 00:07:37.935 --> 00:07:38.940 It is a sufficiency case. 191 00:07:38.940 --> 00:07:39.773 Exactly. 192 00:07:39.773 --> 00:07:40.606 Why isn't it sufficient? 193 00:07:40.606 --> 00:07:43.560 I mean, you're saying we need plus, okay? 194 00:07:43.560 --> 00:07:46.259 So, if you have a situation 195 00:07:46.259 --> 00:07:49.807 where you've got an account holder saying, 196 00:07:49.807 --> 00:07:53.940 "I have no reason to have given this person this check 197 00:07:53.940 --> 00:07:55.530 for any amount of money." 198 00:07:55.530 --> 00:07:58.175 The person negotiates the check. 199 00:07:58.175 --> 00:08:01.087 I mean, why isn't that just enough to say, 200 00:08:01.087 --> 00:08:04.350 "Okay, there were better sufficiency cases," 201 00:08:04.350 --> 00:08:06.879 but but why isn't that enough 202 00:08:06.879 --> 00:08:09.346 to satisfy the Commonwealth's burden? 203 00:08:09.346 --> 00:08:10.658 Because the Commonwealth has 204 00:08:10.658 --> 00:08:11.940 to show knowledge of the payee. 205 00:08:11.940 --> 00:08:13.560 By showing knowledge of the account holder, 206 00:08:13.560 --> 00:08:14.790 you don't have any insight 207 00:08:14.790 --> 00:08:15.623 to how that payee 208 00:08:15.623 --> 00:08:17.160 received the check. You never do though. 209 00:08:17.160 --> 00:08:20.340 It's embedded in our jury instructions. 210 00:08:20.340 --> 00:08:21.173 Very often, 211 00:08:21.173 --> 00:08:24.900 we can't tell what's going on in somebody else's mind. 212 00:08:24.900 --> 00:08:25.890 Hold on a minute. 213 00:08:25.890 --> 00:08:28.620 We can't tell what's going on in somebody else's mind, 214 00:08:28.620 --> 00:08:31.410 so we do this every day by circumstantial evidence. 215 00:08:31.410 --> 00:08:35.760 So, if you walk into your home, 216 00:08:35.760 --> 00:08:39.150 and I happen to be sitting at your table eating something, 217 00:08:39.150 --> 00:08:41.460 and I have no reason to be there, 218 00:08:41.460 --> 00:08:44.107 and you haven't invited me, and you say, 219 00:08:44.107 --> 00:08:45.390 "I don't know this person. 220 00:08:45.390 --> 00:08:46.819 I didn't invite them into my home," 221 00:08:46.819 --> 00:08:49.500 and you're telling me that that's not gonna be enough 222 00:08:49.500 --> 00:08:50.333 to sustain a B&E? 223 00:08:50.333 --> 00:08:54.800 I think the problem is there's a difference between... 224 00:08:56.580 --> 00:08:58.830 We don't know who stole and forged the check, right? 225 00:08:58.830 --> 00:09:00.270 So, all we have is, 226 00:09:00.270 --> 00:09:02.430 the account holder doesn't know the payee, 227 00:09:02.430 --> 00:09:04.230 but we don't know the circumstances surrounding 228 00:09:04.230 --> 00:09:06.121 on how the payee received the check, 229 00:09:06.121 --> 00:09:08.518 much like the attorney in the Pacheco case. 230 00:09:08.518 --> 00:09:12.148 The problem is it's the Commonwealth's burden to bridge 231 00:09:12.148 --> 00:09:15.750 that gap, and they can't resort to unreasonable inference. 232 00:09:15.750 --> 00:09:16.583 It's not a reasonable... 233 00:09:16.583 --> 00:09:18.450 You're saying it's an unreasonable inference, 234 00:09:18.450 --> 00:09:21.150 but there is a world that somebody might say, 235 00:09:21.150 --> 00:09:23.490 a finder of fact might say that's a reasonable inference. 236 00:09:23.490 --> 00:09:25.350 I don't think so, your honor, respectfully, 237 00:09:25.350 --> 00:09:27.600 because you'd have to pile inference. 238 00:09:27.600 --> 00:09:30.060 Just because the account holder doesn't know the payee, 239 00:09:30.060 --> 00:09:32.250 then the payee must know it's fraudulent. 240 00:09:32.250 --> 00:09:33.210 That's the leap. 241 00:09:33.210 --> 00:09:35.280 That's the piling of inference upon inference, 242 00:09:35.280 --> 00:09:36.600 and you cannot get there just 243 00:09:36.600 --> 00:09:38.280 because the account holder doesn't know. 244 00:09:38.280 --> 00:09:40.650 Because in Ms. Scordino's case, 245 00:09:40.650 --> 00:09:42.570 there's three people living in the house, 246 00:09:42.570 --> 00:09:43.920 Ms. Adams' house, with her. 247 00:09:43.920 --> 00:09:45.480 They all had access to this checkbook. 248 00:09:45.480 --> 00:09:46.920 There's been no break-in. 249 00:09:46.920 --> 00:09:50.245 These two people are unfamiliar to each other. 250 00:09:50.245 --> 00:09:51.987 So, what happened in between? 251 00:09:51.987 --> 00:09:54.510 And it was the Commonwealth's burden to prove what happened 252 00:09:54.510 --> 00:09:59.510 in between, prove those circumstances to show knowledge. 253 00:09:59.880 --> 00:10:01.020 If we do not do that, 254 00:10:01.020 --> 00:10:02.880 what we end up doing and the danger 255 00:10:02.880 --> 00:10:05.864 that the appeals court talked about in its decision, 256 00:10:05.864 --> 00:10:09.765 is we end up uttering into a strict liability offense, 257 00:10:09.765 --> 00:10:12.690 and all the Commonwealth will have to do 258 00:10:12.690 --> 00:10:14.670 in those cases is bring the account holder in. 259 00:10:14.670 --> 00:10:16.307 Who cares what happened in between? 260 00:10:16.307 --> 00:10:19.000 And that is just not enough to show knowledge. 261 00:10:19.000 --> 00:10:21.600 It's the Commonwealth's burden to show knowledge 262 00:10:21.600 --> 00:10:24.090 of the payee, and in this case, they can't do it. 263 00:10:24.090 --> 00:10:24.923 There's nothing in between. 264 00:10:24.923 --> 00:10:28.817 But just following up on Justice George's question. 265 00:10:28.817 --> 00:10:33.060 Isn't it a case-by-case situation 266 00:10:33.060 --> 00:10:35.822 where we look at what the evidence is 267 00:10:35.822 --> 00:10:39.060 and we look to see whether or not there's enough 268 00:10:39.060 --> 00:10:41.070 to say there's intent here? 269 00:10:41.070 --> 00:10:44.594 Correct, it's always that way in sufficiency cases. 270 00:10:44.594 --> 00:10:47.400 The problem is, and this court has the authority to say so, 271 00:10:47.400 --> 00:10:48.630 this isn't enough. 272 00:10:48.630 --> 00:10:50.280 The Commonwealth presents it case. 273 00:10:50.280 --> 00:10:53.270 Nothing remarkable about the bank transaction. 274 00:10:53.270 --> 00:10:54.103 No, I understand, but- 275 00:10:54.103 --> 00:10:55.982 Only the testimony of the defendant. 276 00:10:55.982 --> 00:11:00.060 And so, what we do is, and what the jurors do 277 00:11:00.060 --> 00:11:01.080 or the judge, 278 00:11:01.080 --> 00:11:04.908 you look at what's there on a case-by-case basis. 279 00:11:04.908 --> 00:11:06.270 Correct, we always do that. 280 00:11:06.270 --> 00:11:10.740 However, I think that what this court should find is that, 281 00:11:10.740 --> 00:11:13.590 just relying on the account holder's testimony alone 282 00:11:13.590 --> 00:11:15.960 is insufficient to get to the knowledge of the payee. 283 00:11:15.960 --> 00:11:18.150 Depending on what the account holder says. 284 00:11:18.150 --> 00:11:20.370 So, if there are more circumstances around it, 285 00:11:20.370 --> 00:11:22.996 if the Commonwealth somehow can, you know, 286 00:11:22.996 --> 00:11:25.814 find out who stole and forged the check, sure. 287 00:11:25.814 --> 00:11:27.480 But we don't have that here. 288 00:11:27.480 --> 00:11:29.190 It's silent here, and that's the problem. 289 00:11:29.190 --> 00:11:30.023 Can I ask the last question? 290 00:11:30.023 --> 00:11:31.410 [Chief Justice Budd] Yes, please. 291 00:11:31.410 --> 00:11:34.800 Can you tell us, from your research, 292 00:11:34.800 --> 00:11:37.230 whether or not there's a majority rule, minority rule 293 00:11:37.230 --> 00:11:38.970 as you looked across the states? 294 00:11:38.970 --> 00:11:41.389 So, I actually looked at the cases 295 00:11:41.389 --> 00:11:43.713 that Johnson v. State, 296 00:11:45.030 --> 00:11:47.670 which is the case that is relied 297 00:11:47.670 --> 00:11:48.930 on the concurrence in Oliver. 298 00:11:48.930 --> 00:11:50.580 And if you look at those cases, 299 00:11:50.580 --> 00:11:52.350 it talks about all the different factors. 300 00:11:52.350 --> 00:11:53.700 The Griffin case is another case 301 00:11:53.700 --> 00:11:55.470 that talks about all the different factors, 302 00:11:55.470 --> 00:11:58.511 which is enough to show circumstantial proof of knowledge. 303 00:11:58.511 --> 00:12:00.802 Some of the things that the cases rely. 304 00:12:00.802 --> 00:12:04.260 But I've read the cases. 305 00:12:04.260 --> 00:12:06.660 But have you looked to see whether or not, 306 00:12:06.660 --> 00:12:08.550 when we have our law clerks look at it, 307 00:12:08.550 --> 00:12:11.824 if there's a rule that 49 states use? 308 00:12:11.824 --> 00:12:13.950 Do you have a breakdown for us? 309 00:12:13.950 --> 00:12:15.180 I didn't find that breakdown, 310 00:12:15.180 --> 00:12:16.350 but what I did find is, 311 00:12:16.350 --> 00:12:18.127 I don't think there is one case out there that says, 312 00:12:18.127 --> 00:12:19.740 "The account holder's testimony is enough." 313 00:12:19.740 --> 00:12:21.510 No, I'm asking you for that breakdown. 314 00:12:21.510 --> 00:12:23.123 You haven't done that research? 315 00:12:23.123 --> 00:12:24.420 I have not. 316 00:12:24.420 --> 00:12:26.173 All right, I'm gonna ask the counsel that question too. 317 00:12:26.173 --> 00:12:27.600 Okay, thank you. 318 00:12:27.600 --> 00:12:29.109 Oh, sure, a question, sorry. 319 00:12:29.109 --> 00:12:33.853 Why is it not a fair inference that the jury might make 320 00:12:33.853 --> 00:12:37.470 that if the account holder doesn't know the payee, 321 00:12:37.470 --> 00:12:41.013 the defendant, that the defendant should have known? 322 00:12:41.970 --> 00:12:42.803 [Attorney Yeshulas] I'm sorry. 323 00:12:42.803 --> 00:12:44.040 I didn't understand this question. 324 00:12:44.040 --> 00:12:45.278 Could you ask that again? 325 00:12:45.278 --> 00:12:46.111 So, the testimony 326 00:12:46.111 --> 00:12:48.423 is the account holder doesn't know the payee. 327 00:12:49.710 --> 00:12:50.966 Why isn't it a fair inference 328 00:12:50.966 --> 00:12:55.966 that the jury might draw that the payee knew 329 00:12:57.320 --> 00:12:59.640 that the account holder didn't know them? 330 00:12:59.640 --> 00:13:03.390 And I think that's the whole point is, 331 00:13:03.390 --> 00:13:06.420 there is no evidence as to the payee's knowledge and intent. 332 00:13:06.420 --> 00:13:08.700 We only know the account holder's knowledge. 333 00:13:08.700 --> 00:13:10.811 There's no insight into the payee's. 334 00:13:10.811 --> 00:13:13.410 And again, it could be an imposter scenario, 335 00:13:13.410 --> 00:13:15.778 it could be a third payee type of scenario. 336 00:13:15.778 --> 00:13:18.150 The check is stolen and forged 337 00:13:18.150 --> 00:13:19.470 and someone representing themselves 338 00:13:19.470 --> 00:13:20.580 to be the account holder. 339 00:13:20.580 --> 00:13:22.410 So I think in order to get there, 340 00:13:22.410 --> 00:13:24.240 you have to pile inference upon inference. 341 00:13:24.240 --> 00:13:27.840 Just because the account holder doesn't know the payee, 342 00:13:27.840 --> 00:13:29.111 doesn't recognize their name, 343 00:13:29.111 --> 00:13:34.111 therefore we can presume the payee knows it's fraudulent, 344 00:13:34.860 --> 00:13:38.130 that's too much of piling inference upon inference 345 00:13:38.130 --> 00:13:38.963 upon inference, 346 00:13:38.963 --> 00:13:42.010 and the evidence just isn't enough to get there. 347 00:13:42.010 --> 00:13:43.593 [Chief Justice Budd] Okay, thank you. 348 00:13:43.593 --> 00:13:45.270 Thank you 349 00:13:45.270 --> 00:13:46.473 Attorney Daniels. 350 00:13:54.600 --> 00:13:55.433 Good morning. 351 00:13:55.433 --> 00:13:56.640 And may it please the court, 352 00:13:56.640 --> 00:13:59.010 Attorney Josh Daniels for Dominique Oliver 353 00:13:59.010 --> 00:14:00.270 in the other case. 354 00:14:00.270 --> 00:14:03.450 I'd just like to jump in where the discussion left off. 355 00:14:03.450 --> 00:14:06.183 First of all, Justice Gaziano, to your question, 356 00:14:07.050 --> 00:14:09.420 I have not done a 50-state survey. 357 00:14:09.420 --> 00:14:13.440 I know that there is an ALR annotation that's quite old, 358 00:14:13.440 --> 00:14:14.532 from like 1946. 359 00:14:14.532 --> 00:14:16.415 I can get that for you if you want. 360 00:14:16.415 --> 00:14:18.750 We'll do that, and I appreciate that. 361 00:14:18.750 --> 00:14:20.130 And this case law, it's quite old as well. 362 00:14:20.130 --> 00:14:22.630 The thing I would say about the case about a lot 363 00:14:23.988 --> 00:14:25.050 of the case law is, 364 00:14:25.050 --> 00:14:27.180 a lot of the cases collected, for example, 365 00:14:27.180 --> 00:14:28.639 in that ALR annotation, 366 00:14:28.639 --> 00:14:33.630 long antedate sort of our modern notion since the '70s, 367 00:14:33.630 --> 00:14:35.220 since Winship and those cases, 368 00:14:35.220 --> 00:14:36.660 about how we allocate the burden 369 00:14:36.660 --> 00:14:38.040 of proof under the 14th Amendment. 370 00:14:38.040 --> 00:14:40.920 And so, I think we need to be very careful 371 00:14:40.920 --> 00:14:43.170 in looking too far back in the case, 372 00:14:43.170 --> 00:14:44.370 like the older the case is, 373 00:14:44.370 --> 00:14:46.230 I think there's a real danger of digging around 374 00:14:46.230 --> 00:14:47.520 in that old soil, 375 00:14:47.520 --> 00:14:49.470 because a lot of those cases are bringing 376 00:14:49.470 --> 00:14:53.540 that old soil from England where, under the common law, 377 00:14:53.540 --> 00:14:56.490 the government could more freely shift the burden 378 00:14:56.490 --> 00:14:57.323 onto the defendant. 379 00:14:57.323 --> 00:15:00.540 So that's just a point I wanna give to your honor 380 00:15:00.540 --> 00:15:02.160 as you're doing your research. 381 00:15:02.160 --> 00:15:03.667 I appreciate that. 382 00:15:03.667 --> 00:15:04.541 Thank you. 383 00:15:04.541 --> 00:15:08.021 So, picking up where the discussion left off, I think, 384 00:15:08.021 --> 00:15:11.628 Justice Georges, as you pointed out, these cases are, 385 00:15:11.628 --> 00:15:14.580 and I think the Chief Justice also made this point too, 386 00:15:14.580 --> 00:15:16.323 that these cases are often done, 387 00:15:17.790 --> 00:15:18.940 circumstantial evidence is all 388 00:15:18.940 --> 00:15:22.320 about taking the circumstances as we find them case by case, 389 00:15:22.320 --> 00:15:23.880 and I think that's right. 390 00:15:23.880 --> 00:15:28.020 I think the big problem with the Commonwealth's approach 391 00:15:28.020 --> 00:15:30.720 and the approach that Justice Singh took 392 00:15:30.720 --> 00:15:32.750 in her concurrence is, 393 00:15:32.750 --> 00:15:35.520 the relevant circumstances that shed light 394 00:15:35.520 --> 00:15:37.680 on the defendant's knowledge are usually going 395 00:15:37.680 --> 00:15:40.980 to be the circumstances under which they come 396 00:15:40.980 --> 00:15:42.150 by the check 397 00:15:42.150 --> 00:15:44.850 and under which they take possession of the check. 398 00:15:44.850 --> 00:15:47.452 And that's really what gives us the most visibility 399 00:15:47.452 --> 00:15:48.690 into intent. 400 00:15:48.690 --> 00:15:51.192 But the defendant doesn't have to do anything. 401 00:15:51.192 --> 00:15:52.101 [Attorney Daniels] Correct. 402 00:15:52.101 --> 00:15:54.763 And that creates the issue, right? 403 00:15:54.763 --> 00:15:56.253 Because the Commonwealth 404 00:15:56.253 --> 00:16:00.556 isn't gonna know how the defendant got a hold of the check 405 00:16:00.556 --> 00:16:03.390 and the defendant doesn't have to testify, 406 00:16:03.390 --> 00:16:06.720 so that makes this difficult, right? 407 00:16:06.720 --> 00:16:07.553 Right, and I think... 408 00:16:07.553 --> 00:16:12.480 Well, to finish my other thought before I take that on. 409 00:16:12.480 --> 00:16:14.130 So, I think the problem with, 410 00:16:14.130 --> 00:16:17.041 with relying solely on the account holder's disavow 411 00:16:17.041 --> 00:16:19.980 of the check, and saying, "I don't know this person," 412 00:16:19.980 --> 00:16:21.990 is that all it really tells us is 413 00:16:21.990 --> 00:16:24.510 who the defendant didn't get the check from, 414 00:16:24.510 --> 00:16:26.598 and it doesn't really shed any light on 415 00:16:26.598 --> 00:16:29.460 how they did get the check, who they got it from, 416 00:16:29.460 --> 00:16:31.170 or what that person told them, 417 00:16:31.170 --> 00:16:33.150 which is really what gives us visibility 418 00:16:33.150 --> 00:16:33.983 into their knowledge. 419 00:16:33.983 --> 00:16:35.940 To take your point, Justice Kafker, 420 00:16:35.940 --> 00:16:38.280 the second best window we have into 421 00:16:38.280 --> 00:16:42.150 that I think are the circumstances that happen at the bank, 422 00:16:42.150 --> 00:16:45.117 at the teller counter, or in the investigation that follows. 423 00:16:45.117 --> 00:16:47.910 I take your concern that there are going 424 00:16:47.910 --> 00:16:50.105 to be some cases that the Commonwealth can't win. 425 00:16:50.105 --> 00:16:52.350 I think that's accounted 426 00:16:52.350 --> 00:16:56.040 for when the Supreme Court set the allocation 427 00:16:56.040 --> 00:16:56.873 of the burden of proof. 428 00:16:56.873 --> 00:16:59.070 I do think in many cases, though, you know, 429 00:16:59.070 --> 00:17:00.809 you could have done more. 430 00:17:00.809 --> 00:17:03.060 There may be cases where there is no more, 431 00:17:03.060 --> 00:17:05.127 but there may well be lots of cases 432 00:17:05.127 --> 00:17:07.800 where there is more and they just didn't bring it in. 433 00:17:07.800 --> 00:17:09.960 In neither of these cases, did the bank teller, 434 00:17:09.960 --> 00:17:11.835 who actually took the check testify. 435 00:17:11.835 --> 00:17:14.827 That bank teller could have testified about, 436 00:17:14.827 --> 00:17:16.530 "Oh, yeah, this person was really, 437 00:17:16.530 --> 00:17:18.324 really nervous as they were cashing the check." 438 00:17:18.324 --> 00:17:21.540 Usually, when you pass a forged check, 439 00:17:21.540 --> 00:17:23.947 you get a call about it later, and they say, 440 00:17:23.947 --> 00:17:26.070 "Hey, that check you gave us was forged. 441 00:17:26.070 --> 00:17:26.903 What's up?" 442 00:17:26.903 --> 00:17:29.550 And whatever you say or if you, you know, 443 00:17:29.550 --> 00:17:31.950 hang up the phone on their ear, that can be introduced. 444 00:17:31.950 --> 00:17:33.189 Who gets that phone call? 445 00:17:33.189 --> 00:17:35.490 Who's getting that phone call? 446 00:17:35.490 --> 00:17:39.180 The defendant, often. 447 00:17:39.180 --> 00:17:40.290 So, you know, 448 00:17:40.290 --> 00:17:42.933 that was, for example, the case in Catania, you know. 449 00:17:42.933 --> 00:17:44.610 The bank calls up. 450 00:17:44.610 --> 00:17:47.340 Sometimes it's the police who call up or come knocking, 451 00:17:47.340 --> 00:17:51.270 and either they tell a story that's not believable, 452 00:17:51.270 --> 00:17:55.200 but in any case anything they say can be brought in. 453 00:17:55.200 --> 00:17:56.490 The fact that they slammed the phone 454 00:17:56.490 --> 00:17:58.350 on their ear can be brought in or slam the door 455 00:17:58.350 --> 00:17:59.280 in their face. 456 00:17:59.280 --> 00:18:00.450 Can you- 457 00:18:00.450 --> 00:18:01.975 I'm sorry, Justice Gaziano, please. 458 00:18:01.975 --> 00:18:02.808 Okay, thank you. 459 00:18:02.808 --> 00:18:03.930 Can you remind me... 460 00:18:03.930 --> 00:18:06.390 What this strikes me as similar 461 00:18:06.390 --> 00:18:10.020 to are the receiving stolen property inference cases 462 00:18:10.020 --> 00:18:11.270 that get you over the rail 463 00:18:11.270 --> 00:18:13.803 when you have recently stolen property, 464 00:18:14.867 --> 00:18:17.010 and we've drawn inferences in those cases? 465 00:18:17.010 --> 00:18:18.510 I think that's still a good lie. 466 00:18:18.510 --> 00:18:19.530 That's my memory at least. 467 00:18:19.530 --> 00:18:20.370 I might be wrong. 468 00:18:20.370 --> 00:18:24.258 Yeah, there's a permissive inference or presumption. 469 00:18:24.258 --> 00:18:25.740 No, get you over the rail, 470 00:18:25.740 --> 00:18:27.443 and then it can be rebutted. 471 00:18:27.443 --> 00:18:29.940 So, how are these cases different from that? 472 00:18:29.940 --> 00:18:32.220 So, functionally, 473 00:18:32.220 --> 00:18:35.340 I don't think it really is a different analysis. 474 00:18:35.340 --> 00:18:36.270 As I understand, 475 00:18:36.270 --> 00:18:38.638 the way that this court is talked about it- 476 00:18:38.638 --> 00:18:40.004 Yeah, the analysis is fine, 477 00:18:40.004 --> 00:18:41.460 but how is the inference logical 478 00:18:41.460 --> 00:18:44.555 in the receiving stolen property case, but illogical- 479 00:18:44.555 --> 00:18:46.410 The point I'm trying to make is 480 00:18:46.410 --> 00:18:48.240 that it may not always be logical 481 00:18:48.240 --> 00:18:49.830 in a receiving stolen property case. 482 00:18:49.830 --> 00:18:51.660 I think, you know, if you look at Littles, 483 00:18:51.660 --> 00:18:55.110 and the way that you discuss permissive presumptions, 484 00:18:55.110 --> 00:18:57.540 really it's functionally the same analysis 485 00:18:57.540 --> 00:19:00.750 as whether an inference is an available one 486 00:19:00.750 --> 00:19:01.890 for sufficiency purposes. 487 00:19:01.890 --> 00:19:03.735 It's case and evidence specific. 488 00:19:03.735 --> 00:19:06.360 In my memory, I haven't looked at in a while, 489 00:19:06.360 --> 00:19:07.470 but we've said 490 00:19:07.470 --> 00:19:09.540 that the receiving stolen property inference is valid. 491 00:19:09.540 --> 00:19:10.373 Correct? 492 00:19:11.316 --> 00:19:12.930 I might be wrong on that. 493 00:19:12.930 --> 00:19:16.650 I don't know that it's declared valid 494 00:19:16.650 --> 00:19:19.140 across every single case on a categorical basis. 495 00:19:19.140 --> 00:19:21.510 I think you have to look at the specific facts 496 00:19:21.510 --> 00:19:23.788 and the specific evidence presented before you can... 497 00:19:23.788 --> 00:19:26.430 Again, this is off the top of my head, 498 00:19:26.430 --> 00:19:28.500 but assume for the sake of argument 499 00:19:28.500 --> 00:19:33.170 that that's a valid presumption that gets you over the rail. 500 00:19:33.170 --> 00:19:36.093 Is this the same situation here? 501 00:19:41.239 --> 00:19:45.175 Assuming that assumption, which I don't take... 502 00:19:45.175 --> 00:19:48.060 We're gonna put a bookmark on that, 503 00:19:48.060 --> 00:19:50.275 but assuming that assumption, please tell me. 504 00:19:50.275 --> 00:19:52.250 I mean, I think, I think there is an analog there. 505 00:19:52.250 --> 00:19:54.930 Again, I don't think that assumption is correct, 506 00:19:54.930 --> 00:19:56.763 but you'll take a look at that. 507 00:19:58.465 --> 00:20:01.350 I think I've taken a swing at every pitch 508 00:20:01.350 --> 00:20:04.781 from the last inning that I wanted to, and in my last time, 509 00:20:04.781 --> 00:20:07.753 I just wanna talk about the two facts 510 00:20:07.753 --> 00:20:11.199 that the appeals court in Ms. Oliver's case relied on 511 00:20:11.199 --> 00:20:14.400 for saying that this was different than Ms. Scordino's case. 512 00:20:14.400 --> 00:20:15.300 I actually don't think 513 00:20:15.300 --> 00:20:17.100 there is a meaningful difference here. 514 00:20:17.100 --> 00:20:19.530 So the most important fact that the appeals court relied 515 00:20:19.530 --> 00:20:23.760 on was the presence of this extra loop in the signature, 516 00:20:23.760 --> 00:20:25.590 which apparently nobody saw. 517 00:20:25.590 --> 00:20:28.740 I think, you know, before you can get from the existence 518 00:20:28.740 --> 00:20:30.390 of that mistake in the signature 519 00:20:30.390 --> 00:20:33.292 to a reasonable inference of guilty knowledge, 520 00:20:33.292 --> 00:20:36.791 you would have to be able to reasonably conclude 521 00:20:36.791 --> 00:20:39.447 that the defendant, in fact, did notice that, 522 00:20:39.447 --> 00:20:41.790 not just that she might have noticed it, 523 00:20:41.790 --> 00:20:43.398 because this isn't an inquiry notice 524 00:20:43.398 --> 00:20:45.900 or constructive knowledge standard. 525 00:20:45.900 --> 00:20:48.540 And where, even the bank teller, who is, you know, 526 00:20:48.540 --> 00:20:51.644 the one person in this entire world who's supposed to be 527 00:20:51.644 --> 00:20:53.760 on the lookout for these things, 528 00:20:53.760 --> 00:20:56.139 there's no evidence that she saw anything there. 529 00:20:56.139 --> 00:20:59.449 The bank teller's not gonna have any insight 530 00:20:59.449 --> 00:21:02.640 unless the person is a terrible thief 531 00:21:02.640 --> 00:21:05.970 and is, you know, sweating profusely and in a panic. 532 00:21:05.970 --> 00:21:07.380 I mean, I understand your other point 533 00:21:07.380 --> 00:21:09.533 that the police can follow up, 534 00:21:09.533 --> 00:21:11.722 and that, that may be different, 535 00:21:11.722 --> 00:21:16.390 but the bank teller's not gonna have any useful information. 536 00:21:16.390 --> 00:21:17.462 I mean, often, 537 00:21:17.462 --> 00:21:21.930 at least I remember doing this when I opened a bank account, 538 00:21:21.930 --> 00:21:23.190 I filled out a signature card, 539 00:21:23.190 --> 00:21:25.550 and this wasn't that long ago, you know. 540 00:21:25.550 --> 00:21:27.240 Opening an account. 541 00:21:27.240 --> 00:21:29.523 When you're just cashing your check, 542 00:21:30.690 --> 00:21:33.480 they're not doing a lot with you, right? 543 00:21:33.480 --> 00:21:36.480 I mean, I guess my only point is, 544 00:21:36.480 --> 00:21:38.490 the bank teller is the one person who is supposed 545 00:21:38.490 --> 00:21:39.840 to be on guard for these things, 546 00:21:39.840 --> 00:21:43.080 and if even they are not seeing anything wrong, 547 00:21:43.080 --> 00:21:45.000 I don't know how it's reasonable to conclude 548 00:21:45.000 --> 00:21:47.013 that my client probably did. 549 00:21:47.957 --> 00:21:49.560 Particularly, when, you know, 550 00:21:49.560 --> 00:21:52.200 what we're talking about is the drawer's signature 551 00:21:52.200 --> 00:21:53.200 rather than... 552 00:21:53.200 --> 00:21:55.710 Isn't that just something that you would argue 553 00:21:55.710 --> 00:21:56.979 to the jury then? 554 00:21:56.979 --> 00:22:00.176 I mean, it seems like you're slightly differently positioned 555 00:22:00.176 --> 00:22:03.330 than in the prior case in that, 556 00:22:03.330 --> 00:22:07.500 here there is something wrong on the face of the check, 557 00:22:07.500 --> 00:22:09.390 and I'll grant you, it's an extra loop, 558 00:22:09.390 --> 00:22:10.650 and maybe, you know, 559 00:22:10.650 --> 00:22:12.690 the average person might not have seen it, 560 00:22:12.690 --> 00:22:15.595 but isn't that something that the jury could infer, 561 00:22:15.595 --> 00:22:18.993 that the client did see, and therefore, 562 00:22:20.340 --> 00:22:22.625 would be on notice that this was not hers? 563 00:22:22.625 --> 00:22:24.990 I mean, I think it could be a jury argument, 564 00:22:24.990 --> 00:22:27.208 but before you get to the jury argument, 565 00:22:27.208 --> 00:22:30.420 the judge has to decide whether the case has enough 566 00:22:30.420 --> 00:22:31.253 to send it to the jury, whether- 567 00:22:31.253 --> 00:22:32.520 Well, isn't that part of it? 568 00:22:32.520 --> 00:22:34.710 Indulging all reasonable inferences 569 00:22:34.710 --> 00:22:36.141 in the favor of the Commonwealth, 570 00:22:36.141 --> 00:22:38.853 this one tips it over the edge? 571 00:22:39.883 --> 00:22:41.903 I'm pointing at the check that I have there. 572 00:22:44.220 --> 00:22:47.250 The point that, like, almost any sufficiency argument 573 00:22:47.250 --> 00:22:49.170 could be a jury argument, I think, you know, 574 00:22:49.170 --> 00:22:53.730 that way of looking at it essentially leads to, 575 00:22:53.730 --> 00:22:55.080 no case is insufficient, 576 00:22:55.080 --> 00:22:56.347 because you could always make a jury argument. 577 00:22:56.347 --> 00:22:58.643 Well, no, I understand the standard. 578 00:22:58.643 --> 00:23:02.041 My question is that, you know, 579 00:23:02.041 --> 00:23:06.480 there's this fact that Eileen is spelled with two L's 580 00:23:06.480 --> 00:23:07.705 instead of one L. 581 00:23:07.705 --> 00:23:10.336 And given that, 582 00:23:10.336 --> 00:23:12.850 not only do we have the account holder saying, 583 00:23:12.850 --> 00:23:15.000 "I don't know Ms. Oliver," 584 00:23:15.000 --> 00:23:18.272 we also have, on the face of the check, 585 00:23:18.272 --> 00:23:22.524 something that looks, you know, somewhat different. 586 00:23:22.524 --> 00:23:23.923 I mean, if, in fact, 587 00:23:23.923 --> 00:23:28.347 she noticed it, and that's the big question, and I just... 588 00:23:28.347 --> 00:23:31.920 Given how subtle this particular error is, 589 00:23:31.920 --> 00:23:34.960 it's not as though, you know, Eileen begins with an AY. 590 00:23:34.960 --> 00:23:39.240 You know, it's a very subtle mistake 591 00:23:39.240 --> 00:23:41.370 that would require you to, essentially, 592 00:23:41.370 --> 00:23:43.470 count the number of loops and compare it 593 00:23:43.470 --> 00:23:45.300 to the printed portion. 594 00:23:45.300 --> 00:23:48.030 Who knows how much scrutiny people actually give 595 00:23:48.030 --> 00:23:50.280 to the drawer's signature as opposed to their own name 596 00:23:50.280 --> 00:23:51.854 or the amount of the check? 597 00:23:51.854 --> 00:23:53.678 I don't think that's enough, 598 00:23:53.678 --> 00:23:55.830 and that was the most important fact 599 00:23:55.830 --> 00:23:56.970 that the appeals court relied on. 600 00:23:56.970 --> 00:23:57.803 The other fact, 601 00:23:57.803 --> 00:24:00.443 I just wanna make one quick point about Catania. 602 00:24:00.443 --> 00:24:04.110 So, the Commonwealth analogizes the second fact, 603 00:24:04.110 --> 00:24:05.370 essentially, which is, 604 00:24:05.370 --> 00:24:07.320 this is a large check and it's being cashed 605 00:24:07.320 --> 00:24:08.910 to the situation in Catania. 606 00:24:08.910 --> 00:24:11.460 I think in looking at Catania, 607 00:24:11.460 --> 00:24:14.040 you really do have to take into account inflation. 608 00:24:14.040 --> 00:24:16.560 I wish I had thought of this when writing my brief, 609 00:24:16.560 --> 00:24:19.320 but you know, in July of 1974, 610 00:24:19.320 --> 00:24:20.587 when that check was presented, 611 00:24:20.587 --> 00:24:22.807 $9,000 would've been the equivalent of, like, 612 00:24:22.807 --> 00:24:26.436 $46,000 in January of 2019. 613 00:24:26.436 --> 00:24:29.520 So, you know, in terms of using Catania as a baseline 614 00:24:29.520 --> 00:24:33.540 for, like, what is a large enough check 615 00:24:33.540 --> 00:24:35.640 to make it more than unremarkable, 616 00:24:35.640 --> 00:24:38.284 I think we're in a different order of magnitude. 617 00:24:38.284 --> 00:24:40.819 The other thing I would stress is, you know, 618 00:24:40.819 --> 00:24:43.080 the bank is in the best position 619 00:24:43.080 --> 00:24:45.150 to determine which transactions are remarkable 620 00:24:45.150 --> 00:24:45.983 or unremarkable. 621 00:24:45.983 --> 00:24:47.700 If you recall, in Catania, 622 00:24:47.700 --> 00:24:48.630 the check was so large 623 00:24:48.630 --> 00:24:51.090 they wouldn't actually let him cash the whole thing, 624 00:24:51.090 --> 00:24:53.040 and there's nothing like that here. 625 00:24:53.040 --> 00:24:55.353 I think that's another important difference. 626 00:24:56.430 --> 00:24:58.710 I don't want to overstay my welcome again, 627 00:24:58.710 --> 00:25:00.510 but thank you very much for your time. 628 00:25:00.510 --> 00:25:01.343 Thank you. 629 00:25:03.045 --> 00:25:05.037 Okay, Attorney DeBlander. 630 00:25:22.020 --> 00:25:22.853 Good morning, your honors. 631 00:25:22.853 --> 00:25:24.060 And may it please the court, 632 00:25:24.060 --> 00:25:26.520 Assistant District Attorney Daniel Michael DeBlander 633 00:25:26.520 --> 00:25:28.560 for Middlesex on behalf of the Commonwealth. 634 00:25:28.560 --> 00:25:31.470 Turning immediately to the sufficiency 635 00:25:31.470 --> 00:25:34.503 of the evidence argument primarily in Scordino, 636 00:25:37.320 --> 00:25:39.750 the Commonwealth asks this court to reverse the judgment 637 00:25:39.750 --> 00:25:41.520 of the appeals court and find that, 638 00:25:41.520 --> 00:25:43.736 when taken in the light most favorable to the Commonwealth, 639 00:25:43.736 --> 00:25:44.946 as this court must do, 640 00:25:44.946 --> 00:25:48.080 that a rational trier of fact could find 641 00:25:48.080 --> 00:25:52.020 beyond a reasonable doubt all of the elements of the crime 642 00:25:52.020 --> 00:25:53.910 of uttering a false check here, 643 00:25:53.910 --> 00:25:56.880 including that of knowledge and intent of fraud. 644 00:25:56.880 --> 00:26:00.780 But all we have is testimony as to the lack of knowledge 645 00:26:00.780 --> 00:26:03.390 of the account holder of the defendant. 646 00:26:03.390 --> 00:26:05.497 How does that translate into anything 647 00:26:05.497 --> 00:26:07.950 about the defendant's knowledge? 648 00:26:07.950 --> 00:26:09.544 Right, your honor. 649 00:26:09.544 --> 00:26:11.400 So this is obviously, as in most of these cases, 650 00:26:11.400 --> 00:26:13.815 circumstantial evidence of that knowledge. 651 00:26:13.815 --> 00:26:16.088 It is our position that 652 00:26:16.088 --> 00:26:21.000 where the Commonwealth introduces that testimony 653 00:26:21.000 --> 00:26:24.420 of the victim, where that they do not know the defendant, 654 00:26:24.420 --> 00:26:25.980 the defendant does not have any reason 655 00:26:25.980 --> 00:26:27.476 to expect payment from them, 656 00:26:27.476 --> 00:26:29.299 that they did not sign the check, 657 00:26:29.299 --> 00:26:31.890 whereas here in both these cases, 658 00:26:31.890 --> 00:26:34.437 the checks were found to have been stolen, 659 00:26:34.437 --> 00:26:39.248 that it is ultimately a question of fact for the jury, 660 00:26:39.248 --> 00:26:44.248 or in the first case the judge as finder of fact to, 661 00:26:44.959 --> 00:26:48.270 you know, infer from that transaction 662 00:26:48.270 --> 00:26:50.220 that this individual would have no reason 663 00:26:50.220 --> 00:26:52.893 to expect payment from a total stranger. 664 00:26:54.210 --> 00:26:57.223 So, you know, there are other factors 665 00:26:57.223 --> 00:27:00.150 that may be present in other cases here, 666 00:27:00.150 --> 00:27:03.420 but it is our position that that is a permissible inference 667 00:27:03.420 --> 00:27:04.740 for the finder of fact. 668 00:27:04.740 --> 00:27:08.298 But we don't even know whether... 669 00:27:08.298 --> 00:27:11.397 I mean, three other people live with this woman, right? 670 00:27:11.397 --> 00:27:12.873 Correct. 671 00:27:14.310 --> 00:27:17.280 We don't know whether one of them stole the check, right? 672 00:27:17.280 --> 00:27:22.280 So the fact that she doesn't know the person who cashed it, 673 00:27:23.191 --> 00:27:27.960 one of her three housemates may have stolen the check 674 00:27:27.960 --> 00:27:29.820 and written the check to this person, right? 675 00:27:29.820 --> 00:27:31.860 That's the thing that makes this difficult, right? 676 00:27:31.860 --> 00:27:34.254 You haven't established who stole the check. 677 00:27:34.254 --> 00:27:36.630 She didn't steal the check, right? 678 00:27:36.630 --> 00:27:39.518 She has probably no access to the home. 679 00:27:39.518 --> 00:27:40.950 That's right, your honor. 680 00:27:40.950 --> 00:27:43.260 So we do not have any evidence here 681 00:27:43.260 --> 00:27:46.010 of the defendant actually having stolen the check. 682 00:27:46.010 --> 00:27:49.290 We do have some testimony as to individuals who did live 683 00:27:49.290 --> 00:27:51.069 with the victim account holder here. 684 00:27:51.069 --> 00:27:55.252 However, you know, it is for the trier of fact to- 685 00:27:55.252 --> 00:27:58.553 You need some information on that. 686 00:27:58.553 --> 00:28:02.160 Do you need some information, as your brother argues... 687 00:28:02.160 --> 00:28:03.690 Okay, the police went to her 688 00:28:03.690 --> 00:28:06.690 and she didn't give any explanation of 689 00:28:06.690 --> 00:28:08.240 how she got ahold of this... 690 00:28:08.240 --> 00:28:11.130 Do you need something else is what I'm trying to figure out. 691 00:28:11.130 --> 00:28:13.380 I understand this is a common situation. 692 00:28:13.380 --> 00:28:15.330 Sure, it it is our position 693 00:28:15.330 --> 00:28:18.724 that that alone is sufficient here. 694 00:28:18.724 --> 00:28:23.395 You could have gone a couple of steps further, right? 695 00:28:23.395 --> 00:28:24.530 Yes, your honor, 696 00:28:24.530 --> 00:28:26.730 and often these cases do involve 697 00:28:26.730 --> 00:28:28.781 at least some other element. 698 00:28:28.781 --> 00:28:31.080 I think the baseline position here, 699 00:28:31.080 --> 00:28:33.600 and I think it is a basic empirical question, 700 00:28:33.600 --> 00:28:36.623 that a rational trier of fact could consider, 701 00:28:36.623 --> 00:28:40.830 is that when an individual, you know, 702 00:28:40.830 --> 00:28:42.570 we do have to introduce the testimony 703 00:28:42.570 --> 00:28:43.740 of the victim account holder, 704 00:28:43.740 --> 00:28:46.140 that they have no connection with this individual. 705 00:28:46.140 --> 00:28:49.373 I think a reasonable individual who would be cashing a check 706 00:28:49.373 --> 00:28:53.365 would know that they are not owed a substantial sum 707 00:28:53.365 --> 00:28:55.168 from a stranger, someone who- 708 00:28:55.168 --> 00:28:57.423 Let me give you a hypothetical. 709 00:28:57.423 --> 00:29:01.013 So, you've got an elderly person living with a caretaker, 710 00:29:01.013 --> 00:29:03.133 and the caretaker steals the checks, 711 00:29:03.133 --> 00:29:07.593 and you know, writes checks to people. 712 00:29:11.190 --> 00:29:12.510 The fact that the elderly person 713 00:29:12.510 --> 00:29:15.570 doesn't know the person getting the checks, 714 00:29:15.570 --> 00:29:19.077 that's enough to prove that the person 715 00:29:19.077 --> 00:29:23.167 who was cashing the checks knew they were fraudulent? 716 00:29:23.167 --> 00:29:26.900 I'm concerned about that, you know. 717 00:29:26.900 --> 00:29:27.910 I understand, 718 00:29:27.910 --> 00:29:30.510 and I think the problem that you're alluding 719 00:29:30.510 --> 00:29:33.810 to here is something that my brother and sister referred 720 00:29:33.810 --> 00:29:34.830 to as sort of this, 721 00:29:34.830 --> 00:29:39.540 making this a strict liability offense. 722 00:29:39.540 --> 00:29:42.663 And as it was mentioned in Scordino- 723 00:29:43.559 --> 00:29:47.430 Do you need some more to draw the necessary inferences? 724 00:29:47.430 --> 00:29:49.929 Do you need, as in the other case, 725 00:29:49.929 --> 00:29:50.970 the misspelling of the person's name? 726 00:29:50.970 --> 00:29:54.840 Do you need something else, or is this enough? 727 00:29:54.840 --> 00:29:55.920 I honestly don't know. 728 00:29:55.920 --> 00:29:59.280 I would suggest that it alone is sufficient, 729 00:29:59.280 --> 00:30:02.100 and that I would point to at least not many... 730 00:30:02.100 --> 00:30:05.936 To address an issue that Justice Gaziano had raised, 731 00:30:05.936 --> 00:30:09.630 so the Commonwealth has not done a 50-state sort of survey 732 00:30:09.630 --> 00:30:11.010 of the law in this area. 733 00:30:11.010 --> 00:30:13.140 I think that my brother makes a number of good points 734 00:30:13.140 --> 00:30:15.900 that more recent cases are more probative of this 735 00:30:15.900 --> 00:30:18.420 and not all jurisdictions have either addressed 736 00:30:18.420 --> 00:30:20.491 and very few have addressed this exact issue 737 00:30:20.491 --> 00:30:24.150 of sufficiency alone on the testimony 738 00:30:24.150 --> 00:30:25.950 of the victim account holder. 739 00:30:25.950 --> 00:30:29.190 There is often something further that's under consideration. 740 00:30:29.190 --> 00:30:31.410 That does not, from the Commonwealth's perspective, 741 00:30:31.410 --> 00:30:33.930 mean that that is not something 742 00:30:33.930 --> 00:30:36.540 that can be considered sufficient. 743 00:30:36.540 --> 00:30:39.473 I would suggest that the best case 744 00:30:39.473 --> 00:30:43.029 to consider is Stacy v. Williams, the Utah case, 745 00:30:43.029 --> 00:30:48.029 where it was drawn on the account of a business check. 746 00:30:49.910 --> 00:30:50.910 I'm not sure that 747 00:30:50.910 --> 00:30:53.790 that necessarily makes any difference here. 748 00:30:53.790 --> 00:30:55.163 But the basis of the- 749 00:30:55.163 --> 00:30:58.680 There were three checks all told. 750 00:30:58.680 --> 00:31:03.180 So the defendant had, in his or her possession, 751 00:31:03.180 --> 00:31:05.070 three or four, I don't remember, 752 00:31:05.070 --> 00:31:08.520 but it wasn't just the one forged check, 753 00:31:08.520 --> 00:31:13.413 and that seemed to weigh in the Utah decision. 754 00:31:13.413 --> 00:31:16.410 I think the ultimate finding, 755 00:31:16.410 --> 00:31:19.500 and to quote at least some portion of that, 756 00:31:19.500 --> 00:31:21.450 I think the most relevant thing for the court, 757 00:31:21.450 --> 00:31:23.580 there was the testimony of the victim 758 00:31:23.580 --> 00:31:24.990 that he was not employed, 759 00:31:24.990 --> 00:31:27.243 that he had no reason to know or expect payment here. 760 00:31:27.243 --> 00:31:29.130 It's true there may have been more checks, 761 00:31:29.130 --> 00:31:31.710 but I think the fundamental point being made by the court, 762 00:31:31.710 --> 00:31:33.210 if I can read from part of their finding. 763 00:31:33.210 --> 00:31:34.830 The defendant presented no evidence 764 00:31:34.830 --> 00:31:37.350 to controvert the logical inference 765 00:31:37.350 --> 00:31:39.960 which could be drawn by the jury that without explanation 766 00:31:39.960 --> 00:31:41.520 as to where he got the check- 767 00:31:41.520 --> 00:31:45.672 You said that the defendant doesn't have to do anything. 768 00:31:45.672 --> 00:31:47.343 This is true and I think- 769 00:31:47.343 --> 00:31:49.583 No, no, of course, no, your honor. 770 00:31:49.583 --> 00:31:52.433 So, to address that point here, 771 00:31:52.433 --> 00:31:54.657 the defendant need not, obviously, 772 00:31:54.657 --> 00:31:57.810 testify or introduce any direct evidence of the fact. 773 00:31:57.810 --> 00:32:00.960 That's why I found the Utah decision less than persuasive, 774 00:32:00.960 --> 00:32:03.270 because they seemed to have shifted the burden 775 00:32:03.270 --> 00:32:04.830 and the facts were a little different. 776 00:32:04.830 --> 00:32:07.530 The defendant was in possession of three stolen checks 777 00:32:07.530 --> 00:32:09.600 with no explanation. 778 00:32:09.600 --> 00:32:11.190 I didn't see any, 779 00:32:11.190 --> 00:32:13.050 and it doesn't sound like you have found any, 780 00:32:13.050 --> 00:32:16.500 whereas this bare minimum is enough to take something 781 00:32:16.500 --> 00:32:17.400 to the jury. 782 00:32:17.400 --> 00:32:20.040 And maybe, you know, it doesn't say nothing. 783 00:32:20.040 --> 00:32:23.702 It does say that these kind of cases are insufficient. 784 00:32:23.702 --> 00:32:25.103 I would suggest... 785 00:32:25.103 --> 00:32:27.900 So, I do agree with your point 786 00:32:27.900 --> 00:32:30.990 that there is no one direct case from a foreign jurisdiction 787 00:32:30.990 --> 00:32:33.810 on point where this is the sole evidence 788 00:32:33.810 --> 00:32:35.070 that the court has considered. 789 00:32:35.070 --> 00:32:37.770 I would suggest that a number 790 00:32:37.770 --> 00:32:39.123 of the foreign jurisdictions 791 00:32:39.123 --> 00:32:40.403 in the cases that we cite in our brief 792 00:32:40.403 --> 00:32:43.170 at least consider that as some evidence. 793 00:32:43.170 --> 00:32:45.810 So, the question here is more is, 794 00:32:45.810 --> 00:32:48.006 is that baseline sufficient? 795 00:32:48.006 --> 00:32:50.444 I would suggest that, you know, 796 00:32:50.444 --> 00:32:53.040 it is ultimately an empirical question 797 00:32:53.040 --> 00:32:54.600 for this court to decide. 798 00:32:54.600 --> 00:32:56.462 So, your research has uncovered 799 00:32:56.462 --> 00:33:00.648 that most states require some sort of a plus factor. 800 00:33:00.648 --> 00:33:03.960 It's not a term I would use or that is present 801 00:33:03.960 --> 00:33:06.060 in the case law, but to extrapolate, yes. 802 00:33:06.060 --> 00:33:09.086 I would suggest that that is, frequently, they are present. 803 00:33:09.086 --> 00:33:12.480 I would suggest, actually, that, here, 804 00:33:12.480 --> 00:33:16.080 I mean, really Scordino is the sort of baseline case 805 00:33:16.080 --> 00:33:17.250 that we're considering. 806 00:33:17.250 --> 00:33:18.270 I would suggest that- 807 00:33:18.270 --> 00:33:19.170 Amount? 808 00:33:19.170 --> 00:33:21.067 Remind me the amount in Scordino. 809 00:33:21.067 --> 00:33:24.750 $950. The other case was 810 00:33:24.750 --> 00:33:25.903 3,600, your honor. 811 00:33:25.903 --> 00:33:29.190 $3,600 is a lot to cash. 812 00:33:29.190 --> 00:33:32.163 It has to be given in hundreds, right? 813 00:33:35.100 --> 00:33:37.200 Is that a plus factor? 814 00:33:37.200 --> 00:33:38.610 The number itself, you know... 815 00:33:38.610 --> 00:33:43.350 Walking out with $3,600 in cash, it seems a little unusual. 816 00:33:43.350 --> 00:33:44.540 I would suggest that a trier 817 00:33:44.540 --> 00:33:48.720 of fact could consider not only the amount at issue, 818 00:33:48.720 --> 00:33:51.660 which, you know, $900, $3,600, 819 00:33:51.660 --> 00:33:52.860 we've talked a little bit, 820 00:33:52.860 --> 00:33:54.870 and my brother opined about sort of the history of, 821 00:33:54.870 --> 00:33:56.100 like, with inflation. 822 00:33:56.100 --> 00:33:58.325 So, taking into account some changes over time, 823 00:33:58.325 --> 00:34:01.316 I would also suggest the score could consider that... 824 00:34:01.316 --> 00:34:03.298 I mean, taking something out in cash 825 00:34:03.298 --> 00:34:06.870 in those amounts these days when most, or more frequently, 826 00:34:06.870 --> 00:34:09.330 transactions are just conducted either online 827 00:34:09.330 --> 00:34:11.053 or in other capacities, 828 00:34:11.053 --> 00:34:13.293 is something that someone could consider, 829 00:34:14.880 --> 00:34:15.713 whereas here, 830 00:34:15.713 --> 00:34:17.779 a substantial sum in the amount of $900 831 00:34:17.779 --> 00:34:20.880 or $3,600 is taken out immediately in cash. 832 00:34:20.880 --> 00:34:24.194 It is a factor that, in addition to others, 833 00:34:24.194 --> 00:34:26.370 a trier of fact who consider, 834 00:34:26.370 --> 00:34:27.720 because it provides the defendant 835 00:34:27.720 --> 00:34:31.742 with immediate access to the funds and a substantial amount. 836 00:34:31.742 --> 00:34:33.990 But when you say the trier of fact could consider, 837 00:34:33.990 --> 00:34:35.640 there were a lot of these cases, 838 00:34:35.640 --> 00:34:37.680 these othering cases in the community courts, 839 00:34:37.680 --> 00:34:40.210 and if you focus on Ms. Scordino's case, 840 00:34:40.210 --> 00:34:43.020 none of what would be open 841 00:34:43.020 --> 00:34:47.880 to the defendant is evidence, right? 842 00:34:47.880 --> 00:34:51.638 So on cross-examination of the account holder, 843 00:34:51.638 --> 00:34:53.545 you don't know her, 844 00:34:53.545 --> 00:34:57.210 you don't know whether or not somebody gave her the check 845 00:34:57.210 --> 00:35:00.330 or that this was, all of that stuff is impeachment. 846 00:35:00.330 --> 00:35:01.590 It's not evidence. 847 00:35:01.590 --> 00:35:03.014 The argument that, hey, 848 00:35:03.014 --> 00:35:05.160 they've presented no one to tell you 849 00:35:05.160 --> 00:35:07.560 that she didn't get it from some third party. 850 00:35:07.560 --> 00:35:08.547 That's not evidence. 851 00:35:08.547 --> 00:35:12.697 So, all you'll have is just the account holder saying, 852 00:35:12.697 --> 00:35:14.495 "I don't know this person." 853 00:35:14.495 --> 00:35:17.380 If we're not gonna take a categorical approach, 854 00:35:17.380 --> 00:35:22.380 how does this get over the hump in Ms. Scordino's case? 855 00:35:23.490 --> 00:35:24.976 I know all Oliver's case, 856 00:35:24.976 --> 00:35:27.990 there's these other things that we can talk to. 857 00:35:27.990 --> 00:35:31.350 But just, in the Scordino case, 858 00:35:31.350 --> 00:35:33.843 how does this get over the hump? 859 00:35:35.490 --> 00:35:36.390 Thank you, Justice Georges. 860 00:35:36.390 --> 00:35:37.657 I would would suggest 861 00:35:37.657 --> 00:35:41.910 that the court could also consider this issue 862 00:35:41.910 --> 00:35:42.838 of immediate cashing. 863 00:35:42.838 --> 00:35:46.865 I know that the Scordino case, 864 00:35:46.865 --> 00:35:50.490 the defendant was actually cashing this at her own bank, 865 00:35:50.490 --> 00:35:52.860 but that happened to also be the bank of the check 866 00:35:52.860 --> 00:35:56.190 of the victim account holder as well. 867 00:35:56.190 --> 00:35:58.770 So, it is at least some other factor 868 00:35:58.770 --> 00:35:59.910 that could be considered. 869 00:35:59.910 --> 00:36:01.230 That people would prefer 870 00:36:01.230 --> 00:36:03.780 to cash the check versus depositing it? 871 00:36:03.780 --> 00:36:05.880 That where a defendant is cashing a check 872 00:36:05.880 --> 00:36:08.940 that has later been shown to have been stolen, 873 00:36:08.940 --> 00:36:12.598 not necessarily shown or proven at trial by the defendant, 874 00:36:12.598 --> 00:36:16.934 that that gives rise in the mind of a rational trier of fact 875 00:36:16.934 --> 00:36:20.370 of something untoward that they consider 876 00:36:20.370 --> 00:36:22.877 in addition to the evidence of the testimony 877 00:36:22.877 --> 00:36:24.210 of the account holder. 878 00:36:24.210 --> 00:36:25.650 So, to cash a check 879 00:36:25.650 --> 00:36:27.990 at your own bank is suspicious. 880 00:36:27.990 --> 00:36:28.950 Why would that- 881 00:36:28.950 --> 00:36:30.600 I mean, I think she would have 882 00:36:30.600 --> 00:36:33.630 to be cashing it at this bank regardless, 883 00:36:33.630 --> 00:36:34.980 because it was also the bank 884 00:36:34.980 --> 00:36:38.790 at which the victim account holder did their banking. 885 00:36:38.790 --> 00:36:40.680 That sounds like a total wash. 886 00:36:40.680 --> 00:36:43.140 There's no significance to that, right? 887 00:36:43.140 --> 00:36:45.690 I think it's the taking it out in cash that 888 00:36:45.690 --> 00:36:47.130 that could be considered. 889 00:36:47.130 --> 00:36:47.963 Why? 890 00:36:47.963 --> 00:36:49.590 Why is taking something out 891 00:36:49.590 --> 00:36:54.590 in cash at all indicative of knowledge? 892 00:36:57.780 --> 00:37:01.893 It provides some, you know, immediate access to funds. 893 00:37:01.893 --> 00:37:04.170 Some people need immediate access to cash. 894 00:37:04.170 --> 00:37:05.850 I understand, your honor, yes. 895 00:37:05.850 --> 00:37:07.990 And I think that, 896 00:37:07.990 --> 00:37:12.099 this may be not as strong a case as taking out $3,600 897 00:37:12.099 --> 00:37:16.150 in Oliver in immediate cash, but it also... 898 00:37:16.150 --> 00:37:19.312 Can I ask you, on Oliver, if we're gonna pivot to that, 899 00:37:19.312 --> 00:37:23.580 why is that extra loop enough 900 00:37:23.580 --> 00:37:26.010 to push us over the edge where, you know, 901 00:37:26.010 --> 00:37:27.780 assuming Scordino does not? 902 00:37:27.780 --> 00:37:32.780 So, I think the Oliver Court correctly notes 903 00:37:33.885 --> 00:37:38.885 that it is reasonable to presume that an individual 904 00:37:39.660 --> 00:37:41.250 who is cashing a check for the amount 905 00:37:41.250 --> 00:37:43.620 of $3,600 will have reviewed the check. 906 00:37:43.620 --> 00:37:46.170 I think it's also obvious that they had 907 00:37:46.170 --> 00:37:47.910 to have at least looked at the check here. 908 00:37:47.910 --> 00:37:50.760 Ms. Oliver needed to know the bank that she was going to 909 00:37:50.760 --> 00:37:52.860 to cash it, that it was being drawn on. 910 00:37:52.860 --> 00:37:54.540 So some review of the check- 911 00:37:54.540 --> 00:37:55.776 Does the error matter, right? 912 00:37:55.776 --> 00:37:59.880 The extra loop in Eileen is different than, you know, 913 00:37:59.880 --> 00:38:02.481 if her name was spelled differently, you know, 914 00:38:02.481 --> 00:38:06.120 as your opposing counsel pointed out. 915 00:38:06.120 --> 00:38:10.950 It certainly allows a trier fact to note 916 00:38:10.950 --> 00:38:14.160 that there's something extra that's a bit untoward here. 917 00:38:14.160 --> 00:38:16.500 This check, it was stolen. 918 00:38:16.500 --> 00:38:19.530 It is not the signature of the victim account holder, 919 00:38:19.530 --> 00:38:21.420 and it is very clearly not that signature, 920 00:38:21.420 --> 00:38:24.123 because it does contain this extra loop. 921 00:38:27.660 --> 00:38:28.764 Counsel, excuse me. 922 00:38:28.764 --> 00:38:31.770 Am I not correct that no one 923 00:38:31.770 --> 00:38:35.820 during the entire litigation of a trial over the uttering 924 00:38:35.820 --> 00:38:38.765 of this check noticed the extra loop? 925 00:38:38.765 --> 00:38:40.620 At the trial, it is true, 926 00:38:40.620 --> 00:38:42.150 that this was not mentioned directly 927 00:38:42.150 --> 00:38:43.680 by the prosecutor. 928 00:38:43.680 --> 00:38:45.150 It was not mentioned, correct? 929 00:38:45.150 --> 00:38:46.080 Correct, your honor. 930 00:38:46.080 --> 00:38:49.351 So you are arguing that it is a reasonable inference 931 00:38:49.351 --> 00:38:53.636 that this woman necessarily examined the signature 932 00:38:53.636 --> 00:38:57.398 when the lawyers who were trying a case 933 00:38:57.398 --> 00:39:02.220 over whether this is a false check, did not notice the loop? 934 00:39:02.220 --> 00:39:05.790 Your honor, what I'm suggesting is rather that, 935 00:39:05.790 --> 00:39:08.460 given the presence of that extra loop here, 936 00:39:08.460 --> 00:39:11.190 this is something the trier of fact who were encouraged 937 00:39:11.190 --> 00:39:13.560 to consider the signature both on the front 938 00:39:13.560 --> 00:39:16.650 and back of the check would have had at their disposal 939 00:39:16.650 --> 00:39:18.908 in considering the disposition of this case. 940 00:39:18.908 --> 00:39:19.741 I agree with you that a trier 941 00:39:19.741 --> 00:39:23.250 of fact could extremely reasonably look at the loop 942 00:39:23.250 --> 00:39:28.110 in deciding whether Eileen really signed the check, 943 00:39:28.110 --> 00:39:29.760 but we're talking about something different, 944 00:39:29.760 --> 00:39:31.950 which is whether there is sufficient evidence 945 00:39:31.950 --> 00:39:35.985 of the defendant's knowledge that this was a forged check. 946 00:39:35.985 --> 00:39:40.079 So can you please explain why it is reasonable to assume 947 00:39:40.079 --> 00:39:43.375 that a person, and we're talking about, 948 00:39:43.375 --> 00:39:45.300 you used the word empirical before, 949 00:39:45.300 --> 00:39:47.700 and I think that's a good word here, 950 00:39:47.700 --> 00:39:49.320 because we're sort of debating, 951 00:39:49.320 --> 00:39:50.959 what do people do with checks? 952 00:39:50.959 --> 00:39:54.418 And so, can you explain the basis for your argument 953 00:39:54.418 --> 00:39:57.180 that it's reasonable to assume 954 00:39:57.180 --> 00:40:00.390 that everyone in this courtroom, when we deposit a check, 955 00:40:00.390 --> 00:40:03.803 we have looked at the signature and the spelling? 956 00:40:03.803 --> 00:40:04.800 Sure, your honor. 957 00:40:04.800 --> 00:40:09.390 So I would suggest that it is a number of factors here 958 00:40:09.390 --> 00:40:11.400 that we are asking that be considered together, 959 00:40:11.400 --> 00:40:14.340 not just that everyone always reviews the signature 960 00:40:14.340 --> 00:40:16.140 on a check that they're depositing. 961 00:40:16.140 --> 00:40:18.810 Here, this is a check from an individual 962 00:40:18.810 --> 00:40:21.962 that the account owner has testified, 963 00:40:21.962 --> 00:40:23.970 they do not know this individual. 964 00:40:23.970 --> 00:40:25.920 So, we've established 965 00:40:25.920 --> 00:40:29.876 that this is a stranger cashing a $3,600 check 966 00:40:29.876 --> 00:40:31.470 on an account. 967 00:40:31.470 --> 00:40:32.820 Oh, sorry, if I may interrupt you there? 968 00:40:32.820 --> 00:40:34.925 So, there's another empirical question. 969 00:40:34.925 --> 00:40:37.890 So, I'm sure you'll agree with me, 970 00:40:37.890 --> 00:40:39.780 there are people who do not have bank accounts. 971 00:40:39.780 --> 00:40:40.710 Is that correct? 972 00:40:40.710 --> 00:40:42.427 Correct, your honor. 973 00:40:42.427 --> 00:40:44.191 And they're entitled to cash checks 974 00:40:44.191 --> 00:40:46.650 that are given to them, correct? 975 00:40:46.650 --> 00:40:48.630 Correct, your honor. 976 00:40:48.630 --> 00:40:51.018 So is it reasonable for a fact finder 977 00:40:51.018 --> 00:40:54.450 to assume that it is necessarily suspicious 978 00:40:54.450 --> 00:40:56.456 that a person cashes a check? 979 00:40:56.456 --> 00:40:58.410 Not necessarily, your honor, 980 00:40:58.410 --> 00:41:00.570 but here I would suggest that something, 981 00:41:00.570 --> 00:41:03.420 an extra factor that can be considered is sort of, 982 00:41:03.420 --> 00:41:06.420 this was discussed a bit earlier as well, 983 00:41:06.420 --> 00:41:09.330 sort of the case law around receiving stolen property. 984 00:41:09.330 --> 00:41:12.150 So these checks at issue are not just checks 985 00:41:12.150 --> 00:41:13.080 in the normal course. 986 00:41:13.080 --> 00:41:15.330 They are checks that were established at trial 987 00:41:15.330 --> 00:41:16.680 to have been stolen, 988 00:41:16.680 --> 00:41:19.320 not necessarily established as, like, 989 00:41:19.320 --> 00:41:20.940 stolen by the defendant. 990 00:41:20.940 --> 00:41:23.460 And so, I would encourage this court 991 00:41:23.460 --> 00:41:25.380 to look to some of the case law around that 992 00:41:25.380 --> 00:41:28.080 and the jury instructions on receiving stolen property 993 00:41:28.080 --> 00:41:30.120 as well, which allows for permissible inference. 994 00:41:30.120 --> 00:41:31.652 That's still good case law, correct? 995 00:41:31.652 --> 00:41:32.700 Sorry, yes. 996 00:41:32.700 --> 00:41:33.736 Yes, your honor. 997 00:41:33.736 --> 00:41:36.650 And so, whereas here it- 998 00:41:36.650 --> 00:41:39.870 Is the analogy apt, I wonder? 999 00:41:39.870 --> 00:41:41.987 I'm sorry Chief, if I could continue. 1000 00:41:41.987 --> 00:41:42.820 [Chief Justice Budd] No, go ahead. 1001 00:41:42.820 --> 00:41:47.204 If you get a stolen, flat-screen TV, 1002 00:41:47.204 --> 00:41:52.204 that's going to cause you to wonder where this came from. 1003 00:41:52.800 --> 00:41:55.380 But there are multiple scenarios 1004 00:41:55.380 --> 00:41:58.470 that your opposing counsel has delineated 1005 00:41:58.470 --> 00:42:01.409 where you might be getting a check 1006 00:42:01.409 --> 00:42:06.409 from a party whom you have had no contact with. 1007 00:42:07.179 --> 00:42:12.179 It seems like the analogy might not work in that context, 1008 00:42:12.720 --> 00:42:14.926 where there's multiple different explanations 1009 00:42:14.926 --> 00:42:17.310 for getting a check, whereas, you know, 1010 00:42:17.310 --> 00:42:18.960 the flat screen TV showing up 1011 00:42:18.960 --> 00:42:21.647 in your living room is cause for pause. 1012 00:42:21.647 --> 00:42:23.580 Thank you, your honor. 1013 00:42:23.580 --> 00:42:27.346 I would suggest that it is analogous enough. 1014 00:42:27.346 --> 00:42:31.007 We're we're discussing property in the sum of money. 1015 00:42:31.007 --> 00:42:34.440 The checks were established to have been stolen, 1016 00:42:34.440 --> 00:42:37.020 and the defendant is the one trying to cash them. 1017 00:42:37.020 --> 00:42:38.460 I would suggest the case law 1018 00:42:38.460 --> 00:42:42.150 in receiving stolen property also talks about the recency 1019 00:42:42.150 --> 00:42:43.032 of the theft, 1020 00:42:43.032 --> 00:42:46.140 and I would suggest that the closeness in time, 1021 00:42:46.140 --> 00:42:47.130 at least in Oliver, 1022 00:42:47.130 --> 00:42:50.610 was established between it having been stolen 1023 00:42:50.610 --> 00:42:52.740 and it having been cashed. 1024 00:42:52.740 --> 00:42:54.270 But again, just to follow up 1025 00:42:54.270 --> 00:42:56.160 on Justice Wendlandt's point though. 1026 00:42:56.160 --> 00:42:59.640 I mean, we want free transferring of checks. 1027 00:42:59.640 --> 00:43:03.090 The whole UCC is based on sort of the idea 1028 00:43:03.090 --> 00:43:08.090 that we don't want it too hard to use checks 1029 00:43:08.850 --> 00:43:11.190 and endorse checks and pass them on. 1030 00:43:11.190 --> 00:43:15.270 That's sort of the nature of check-writing, right? 1031 00:43:15.270 --> 00:43:16.103 Yes, your honor. 1032 00:43:16.103 --> 00:43:18.870 So, it's a little different than stolen property. 1033 00:43:18.870 --> 00:43:20.040 I would suggest it's something 1034 00:43:20.040 --> 00:43:21.420 that could be considered in addition 1035 00:43:21.420 --> 00:43:23.160 to the other factors at play here. 1036 00:43:23.160 --> 00:43:24.930 I do realize I'm over my time if I can address 1037 00:43:24.930 --> 00:43:26.252 at least one further point. 1038 00:43:26.252 --> 00:43:29.160 A lot of these questions have concerned issues 1039 00:43:29.160 --> 00:43:32.555 where there have been a number of hypotheticals, 1040 00:43:32.555 --> 00:43:37.170 the talk of possible, like, third parties here as well. 1041 00:43:37.170 --> 00:43:39.720 I suggest that this is, ultimately, 1042 00:43:39.720 --> 00:43:42.000 an issue for the trier of fact, 1043 00:43:42.000 --> 00:43:43.470 and that defense counsel 1044 00:43:43.470 --> 00:43:45.000 and the defendant always have a right 1045 00:43:45.000 --> 00:43:46.290 to introduce further evidence 1046 00:43:46.290 --> 00:43:48.750 of how they obtain the check themselves. 1047 00:43:48.750 --> 00:43:50.460 They're not obligated to testify 1048 00:43:50.460 --> 00:43:52.050 or to introduce such evidence. 1049 00:43:52.050 --> 00:43:55.982 However, it is not a strict liability of defense. 1050 00:43:55.982 --> 00:43:58.526 Defense counsel has a right to present their case 1051 00:43:58.526 --> 00:44:01.200 as they deem appropriate, 1052 00:44:01.200 --> 00:44:02.880 and it is a reasonable inference, 1053 00:44:02.880 --> 00:44:04.708 with the evidence that was presented here, 1054 00:44:04.708 --> 00:44:08.010 that an individual has no reason 1055 00:44:08.010 --> 00:44:10.026 to expect payment from an account holder, 1056 00:44:10.026 --> 00:44:13.293 would know that the check is fraudulent when they cash it.