After a huge decision last week in Erickson Dimas-Martinez, the Supreme Court has continued its surge of protections for criminal defendants. This week the Supreme Court authored two important decisions in criminal defense.
In Mendez v. State, the Court was faced with the task of clarifying Arkansas Rule of Evidence 1009, which deals with translations of recordings or documents. The Rule comes into effect when parties disagree about the translation. Here, Mendez used certified interpreter Nicolas Durand (whom I must say is amazing) to interpret and translate the audio recording of an interrogation. Durand’s interpretation was that Mendez stated that he “did not” grab the alleged victim’s neck. The State’s interpreter translated the recording to say that Mendez “did” grab the alleged victim’s neck. The problem for the State was that their interpreter was not certified and in fact failed certification exams. Therefore, according to Rule 1009, the only interpretation that should have been permitted is Mendez’s because it was done by a certified interpreter. The Court allowed in both translations, which the Supreme Court ruled was reversible error.
The Supreme Court announced a huge shift in policy in Smoak v. State. Previously, the Supreme Court had adopted the policy that criminal defendants must either elect to deny the accusations or assert an entrapment defense but could not do both. In Smoak, the Court adopted the Mathews rule from the Supreme Court of the United States, which holds that a defendant may argue inconsistent defenses so long as substantial evidence supports each defense. This is an important shift and one that impressively recognizes that defendants should have the full array of possible defenses to any charge considering their liberty is at stake.
There was a powerful dissent in Smoak that argued that Appellant did not preserve the issue but agreed with the Mathews rule. Appellant never proffered an entrapment defense instruction and the dissent argued that it should prevent them from arguing it on appeal. While I think typically the Supreme Court goes out of its way to not address issues, here the Court did just the opposite. The Court took sympathy on the trial attorney because she was threatened with contempt for continuously arguing that she should be allowed to have the jury instructed on inconsistent defenses. To be honest, Justice Corbin is usually one of the first to come to the defense of the rights of Appellants but here he recognized the longstanding rule that an Appellant must proffer the instruction to preserve it for appeal. Regardless, good law was made and it appears the several members of the Supreme Court that are leaving the Court soon are trying to go out with a bang!