Friday, November 30, 2007
On Tuesday, a San Mateo County judge declared a mistrial in the trial of Mohammed Monie. Monie, a muscle car enthusiast from San Francisco, was on trial for murdering a man in 1989 for car parts. Specifically, it was alleged that Monie directed then 14 year-old Jesse Rodriguez to fatally shoot Robert Perruquet so that Monie could strip Perruquet's car of parts.
Helping Monie's case was the fact that Perruquet's body still has never been found. Hurting his case was the fact Rodriguez planned to testify against Monie at his trial. Rodriguez, however, never got that opportunity because before he could testify a police witness disclosed to jurors that Monie had previously been on probation based upon a misdemeanor drunk driving conviction. Upon defense counsel's request, the judge declared a mistrial because this prior conviction had previously been deemed inadmissible. Under the California Evidence Code, the judge acted correctly.
Under California Evidence Code Section 788, "[f]or the purposes of attacking the credibility of a witness, it may be shown by examination of the witness or by the record of the judgment that he has been convicted of a felony...." Meanwhile, California has a long and confusing history as to when misdemeanor convictions can be used to impeach a witness, but it appears to have resolved the question in People v. Harris, 118 P.3d 545 (Cal. 2005), when it found that "[p]ast criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352." Evidence Code section 352 states that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of unfair prejudice, or confusing the issues, or of misleading the jury."
Thus, the prosecutor could not use Monie's misdemeanor drunk driving conviction to impeach him because it was not a felony conviction and because it did not cover criminal conduct that had some logical bearing on his veracity (crimes such as perjury and tax fraud would fall under this category).
California thus has somewhat different rules regarding impeachment than all federal courts and many state courts. Like California Evidence Code Section 788, Federal Rule of Evidence 609(a) allows for a witness to be impeached by a prior felony conviction. However, whereas California allows impeachment in criminal cases based upon veracity-bearing crimes, under Federal Rule of Evidence 609(b), federal courts allow for witnesses to be impeached in both criminal and civil cases by convictions for crimes requiring proof of an act of dishonesty or false statements.
Furthermore, while it appears that California allows for these forms of impeachment when the probative value of the evidence substantially outweighs its prejudicial effect, regardless of the witness being impeached and the date of the conviction, the federal rules shift the balancing of probative value and prejudicial effect when the witness being impeached is a criminal defendant and when the conviction is more than ten years old.
I'm not sure why California limits non-felony impeachment to criminal cases, and it appears to me that the federal rules' balance shifting is more responsive to different situations than California's one-size-fits-all approach. That said, it appears as if federal courts struggle with the balance shifting approach.
On Tuesday, charges were dropped against Savannah Sachs and Vincent Lay, the undergraduate presidents of two Princeton University eating clubs. Both Sachs and Levy were charged with providing alcoholic beverages to a minor and maintaining a nusiance by doing so at their fraternity-like, off-campus eating clubs, which are owned and run by Princeton students and alumni independent of the university. I'm not at all sure, however, that the charges against Lay should have been dropped.
The charges against Cottage Club president Vincent Lay stem from an incident on September 10. The reporting of the case is a bit unclear, so I will simply reprint what one article stated: "The charges against Lay arose from a Sept. 10 first-aid call in which a highly intoxicated 17-year-old male had to be treated at the University Medical Center at Princeton hospital after allegedly being served alcohol at the Cottage Club, police said last month." The 17 year-old student, however, subsequently claimed that he never made it to the Cottage Club on September 10 and that he doesn't recall ever telling authorities that he went to the Cottage Club on September 10. Prosecutor Kim Otis thus dropped the charges against Lay, noting that under case law, even if the student "made a prior oral statement, that is not admissible."
It's difficult to argue with Otis without knowing the full facts of the case, but I think that a good argument could be made that any statement about the student becoming intoxicated at the Cottage Club could have been admissible as an exicted utterance under New Jeresy Rule of Evidence 803(c)(2) or as a statement for purposes of medical treatement under New Jeresy Rule of Evidence 803(c)(4).
Rule 803(c)(2) indicates that a statement is admissible as an exception to the rule against hearsay when it relates to a startling event or condition and is made while the declarant is under the stress of excitement caused by the event or condition and without the opportunity to deliberate or fabricate. Rule 803(c)(4) indicates that statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or general source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.
Again, it is unclear to me from the stories exactly what happened on September 10, but there seem to be 3 options: (1) a 17 year-old student who was intoxicated enough to need immediate medical attention made a first-aid call in which he stated that he got drunk at the Cottage Club, (2) someone else observed a 17 year-old student who was intoxicated enough to need immediate medical attention and made a first-aid call in which he/she stated that the student got drunk at the Cottage Club, or (3) one of these calls was made and did not reference the Cottage Club, but either before or after being treated, the student told authorities and/or a medical services provider that he got drunk at the Cottage Club.
In situation 1, it seems clear that the student's statement was made while he was still in the throes of the startling condition of being grossly intoxicated. In situation 2, it seems clear that the bystander would be startled and commenting on a startling event. See, e.g., Cook v. State, 199 S.W.3d 495, 498 (Tex.App.-Houston 2006) (finding a 911 call to be an excited utterance when the declarant observed a drunk individual throwing a beer bottle). In situation 3, as long as the student made the statement before being treated, it would also seem that the student's statement was made while he was still in the throes of the startling condition of being grossly intoxicated.
Furthermore, in situation 1, situation 2, or situation 3 (assuming a medical services provider was present), it seems clear that the statement would have been made for purposes of medical diagnosis or treatment. The only question would be whether the portion of the statement identifying the Cottage Club as the place where the student became intoxicated was reasonably pertinent to diagnosis of treatment because, for instance, that information could establish when the student became intoxicated.
It's also possible that the statement incriminating the Cottage Club could have been admissible as a present sense impression under New Jersey Rule of Evidence 803(c)(1) if the student made the statement while he was drunk at the Cottage Club or while an observer was observing the student drunk at the Cottage Club.
One final point is that prosecutor Kim Otis' statement that even if the student "made a prior oral statement, that is not admissible" is not 100% correct. Under New Jersey Rule of Evidence 613 when a witness is called at trial and provides testimony, his testimony can be impeached by his prior oral or written statements. In this situation, however, the prior statement would not be admissible to prove the substance of that prior statement (that the student got drunk at the Cottage Club), but only to call into question the student's testimony at trial.
Thursday, November 29, 2007
As a result of the conviction rate for reported rapes dropping from 33% of reported rapes in 1977 to only 5.4% in 2005, England is set to make some revolutionary changes to how rape cases are tried. First, a package to educate juries will be developed next month by a team of judges, doctors, and academics. The packet will attempt to dispel "myths" thought to have led to a fall in conviction rates. The packet will contain information about why rape victims are sometimes slow in reporting and why they sometimes seem unemotional in the witness box. In other words, it seems to me that England will be giving jurors a packet detailing Rape Trauma Syndrome. Initially, officials had floated the idea of expert witnesses being called in rape cases to testify about how rape victims behave, but the idea was rejected as creating a potential minefield. England will reverse the current law and find that when a rape victims tells details of an alleged rape to a friend or relative, those statements are admissible, even though they now constitute inadmissible hearsay.
I'm ambivalent about whether simlilar measures should be taken in the Unites States. I have previously argued that Rape Trauma Syndrome evidence is often useful and, in fact, should be used to establish the admissibility of excited utterances made when an alleged rape victim is presented with a subsequent startling event or condition (such as a rape victim making an emotional statement when she runs into her assailant weeks after the attack). See Colin Miller, A Shock to the System, 12 Wm. & Mary J. Women & Law 49 (2005). That said, in that situation, Rape Trauma Sydrome would be used in combination with an applicable hearsay exception to allow for the admission of an out-of-court statement. I'm not quite sure that England is acting properly in holding that any statement that a rape victim makes to friends or family should be admissible, without regard for other indicia of reliability (of course, there might be limitations to England's new rule that the articles don't mention).
Also, I'm not quite sure why England adopted the "package" approach but rejected the expert witness approach. When an expert witness is called to explain how the alleged victim's behavior is consistent with Rape Trauma Syndrome, defense counsel can then challenge that expert's credentials and conclusions. The introduction of a packet, on the other hand, seems to suggest to jurors that what they are reading is the final word on the issue. This is why in American courts, we allow learned treatises to be read into evidence, but we don't allow them to be admitted as exhibits in most cases under Rule 803(18). Again, though, it is tough to come to any final conclusions without seeing the entirety of England's plan.
On Tuesday, a Knox County Criminal Court jury found Doug Glenn Flack guilty of assaulting Tenisha Bright by punching her in the face in the parking garage outside a movie theater at a Tennessee mall. This verdict came despite the caucasian Bright having apparent difficulty identifying the african-american Bright as her assailant.
Specifically, a month after she was assaulted in 2004, Bright picked out someone other than Flack at a police lineup. At a subsequent police lineup, however, Bright did pick out Flack as her assailant. At trial, though, even with Flack sitting right in front of her in the courtroom, when presented with an assortment of mugshots, Bright picked out the mugshot of another man as her assailant. When asked to point to her assailant, however, Bright was able to identify Flack, the only African-American man sitting at the defense table. During trial, Flack's attorney attempted to question a detective about the problems with an eyewitness of one race identifying a person of another race, but Judge Kenneth F. Irvine Jr. precluded this line of questioning.
Judge Irvine's decision makes sense because I doubt that the detective had the qualifications to be able to render an expert opinion on the issue of the unreliability of cross-racial identifications. However, while the detective could thus not have been questioned about the unreliability of cross-racial identifications, I know that most courts have found that such testimony is admissible when presented by an expert witness. See United States v. Angleton, 269 F.Supp.2d 868, 873 (S.D. Tex. 2003).
But as I noted last week, Tennessee has a higher burden for the admissibility of expert evidence than other courts, which led me to wonder whether it has addressed this issue. As it turns out, the Supreme Court of Tennessee recently reversed Tennessee precedent that had stood for 24 years and held that properly qualified expert witnesses can testify about the unreliability of cross-racial identifications.
In State v. Wooden, 658 S.W.2d 553 (Tenn.Crim.App. 1983), the Tennessee Court of Criminal Appeals had found that a university professor of psychology could not testify about the unreliability of cross-racial identifications, holding that "[w]hether an eyewitness's testimony is reliable is a matter which the jury can determine from hearing the witness's testimony on direct and cross-examination and which does not require expert testimony." In 2000, the Supreme Court of Tennessee later extended the holding in Wooden and found that no testimony whatsoever could be given by expert witnesses concerning the unreliability of eyewitness testimony. See State v. Coley, 32 S.W.3d 831 (Tenn. 2000).
This May, however, in State v. Copeland, 226 S.W.3d 287 (Tenn. 2007), the Supreme Court of Tennessee found that its "decision in Coley [wa]s contrary to the modern trend" and noted that "[t]imes have changed." The court pointed to the "extensive amount of behavorial science research" on the unreliability of eyewitness testiony and thus allowed expert testimony on the issue of the unreliability of cross-racial identifications. Of course, none of this helps Flack, who for whatever reason, such as lack of adequate resources, apparently did not call an expert witness to provide such testimony and merely had his attorney attempt to question a detective.
Wednesday, November 28, 2007
In United States v. Vasilakos, 2007 WL 4124283 (6th Cir. 2007), the Court of Appeals for the Sixth Circuit became the latest court to determine that there is no Bruton violation when a trial court permits the introduction of a non-testifying co-defendant's self-incriminating statement which also incriminates the other defendant when the other defendant's name is redacted and replaced with a neutral pronoun. In order to analyze this case, let's start with the Supreme Court's opinion in Bruton v. United States, 391 U.S. 123 (1968).
In Bruton, the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. This holding has since become known as the "Bruton doctrine." In Richardson v. Marsh, 481 U.S. 2000 (1987), the Supreme Court held, however, that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession which also incriminates the other defendant does not violate the Confrontation Clause if the confession is redacted to elimate any reference to the other defendant's existence. The Court in Richardson left open the question of whether the Bruton doctrine would be violated by the admission of such a confession with the other defendant's name replaced with a symbol or neutral pronoun.
In Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court partially answered that question by finding that the Bruton doctrine is violated when the other defendant's name is replaced with an obvious blank space, a word such as "deleted," a symbol, or other similarly obvious indications of alteration." While the Court did not directly resolve the question of whether a defendant's name could be replaced with a neutral pronoun, it strongly implied that such replacement could be proper, at least in some cases. To wit, the Court found that the redacted confession in the case before it was improper because it read:
"Question: Who was in the group that beat up Stacey?"
"Answer: Me, deleted, deleted, and a few other guys."
The Court then pondered why the redacted confession could not instead have read:
"Question: Who was in the group that beat up Stacey?"
"Answer: Me and a few other guys."
In the wake of this language in Gray, most courts have allowed for the redactions of defendants' names and their replacement with neutral pronouns. See, e.g., United States v. Logan, 210 F.3d 820, 821-23 (8th Cir. 2000). In some cases, I think that these decisions make sense. Gray noted that a confession with "obvious indications of alteration" is inadmissible under the Bruton doctrine, but noted that the redacted confession "Me and a few other guys" would be permissible, presumably because the jury would have no way of knowing that the confession originally mentioned Gray.
However, let's look at the redacted confessions in United States v. Vasilakos that the court listed:
"Q. Who made deposits into that account?"
"A. Another person has."
"Q. Another person has?"
To me, this is an entirely different beast than the example cited in Gray. Whereas in Gray, under the example given, there were no "obvious indications of alteration," it seems to me quite clear that the redacted confession in Vasilakos was altered with the substitution of "Another person" for some other defendant's name (admittedly, the Vasilakos case is somewhat more complicated than a typical 2 defendant case because it involved a conspiracy with several defendants, so "Another person" could have referred to a few different people). My conclusion that either: (1) prosecutors need to hire script doctors to make redactions/replacements less obvious (I know a few WGA members who may be available), or (2) there are simply some cases where the use of a neutral doctrine can't pass the Bruton doctrine.
Jesus Colmenero Rivera is on trial in Superior Court in Merced, California based upon allegedly having committed various sex crimes. Rivera served as a Spanish and Drama instructor at Golden Valley High School until January 2004, when one of his students made a report of sexual abuse to school administrators and police, which opened the floodgates of other students bringing similar allegations. The case was recently submitted to the jury, and despite several objections by Rivera relating to alleged juror and judicial misconduct, Judge Ronald Hansen has ordered the jury deliberations to proceed.
First, last week prosecutor David Sandhaus moved for the dismissal of a juror who made a statement about his brother, a convicted serial child molester, during jury deliberations, claiming that he was biased and that his experience with his brother was interfering with his ability to make a fair judgment. Judge Hansen granted the motion and replaced the juror with an alternate juror. Rivera's attorneys asked for a mistrial because the juror had not committed any misconduct. Second, the dismissed juror then made the following allegations to the press, all of which prompted Rivera's attorneys to ask for a mistrial:
-a female juror made homophobic comments about Rivera, who is gay;
-another juror stated that Rivera must be guilty solely because there were five alleged victims, even though the judge instructed the jury to consider each count separately; and
-another juror was conducting legal research and reading about the case on the internet.
Rivera's attorneys also claimed that there was evidence that the other jurors were ganging up against the sole dissenter against a guilty verdict, although it is unlcear if this evidence came from the removed juror or elsewhere. Judge Hansen interviewed each of the jurors outside the presence of the press and determined that there was no reason to grant a mistrial. Judge Hansen also found that he properly removed the juror who made the statement about his brother, and thus ordered that jury deliberations continue.
Here are my thoughts. First, depending on what the removed juror said, Judge Hanson's decision to dismiss him could have been proper or improper. It is well established that a juror can be removed mid-trial if it is established that he cannot act impartially. See, e.g., United States v. Harbin, 250 F.3d 532 (7th Cir. 2001). Thus, if the removed juror stated that he doubted that Rivera was guilty because he thought he was being persecuted just like his brother, the removal would have been proper; however, if the removed juror merely made an innocuous comment about his brother, his removal would have been in error.
Next, with regard to the alleged juror misconduct, California Evidence Code Section 1150 has been interpreted as similar to Federal Rule of Evidence 606(b), which holds that jurors can't testify about their thought process in reaching a particular verdict, but they can testify about either whether extraneous prejudicial information was brought before any juror or whether there was any improper outside influence brought to bear on any juror. See, e.g., People v. Steele, 47 P.3d 225 (Cal. 2002).
Using this analysis, it first appears that the claim about the juror ignoring jury instructions cannot support the granting of a mistrial. Courts have found that evidence that a juror misunderstood or ignored jury instructions is exactly the type of evidence about jury deliberations that is inadmissible under Rule 606(b). See, e.g., Scogin v. Century Fitness, Inc., 780 F.2d 1316, 1320 (8th Cir. 1985).
Rivera's claims about homophobic comments and ganging up on a dissenting juror are also likely without merit. Courts have generally also found this type of evidence to be inadmissible under Rule 606(b). See, e.g., United States v. Roach, 164 F.3d 403, 413 (8th Cir. 1998) (finding that jurors' racial slurs against Native Americans and juror's claims that other jurors pressured her into changing her vote was inadmissible under Rule 606(b)). I will note, however, that some courts have expressed the viewpoint that precluding evidence of racial slurs used by jurors might violate the 14th Amendment, but it is doubtful that courts will apply this analysis to homophobic comments. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 222 (6th Cir. 1995).
On the other hand, unless Judge Hansen found that there was no merit to the claim that a juror was conducting legal research or reading about the case on the internet, his decision would have been in error because such research would constitute exactly the sort of extraneous prejudicial information that is not covered by Rule 606(b). Cf. United States v. Martinez, 14 F.3d 1030, 1037 n.3 (5th Cir. 1994).
Tuesday, November 27, 2007
UNIVERSITY OF OTTAWA LAW & TECHNOLOGY JOURNAL
Call for Papers
Special Issue on Science and the Courts (submission deadline March 1, 2008) and
General Issues (rolling submissions)
Detailed Call for Papers and Submission Information: http://www.uoltj.ca/cfp.php
Special Issue on Science and the Courts: The University of Ottawa Law & Technology Journal invites original scholarly articles for a special issue on Science and the Courts to be published in 2008. The University of Ottawa Law & Technology Journal (UOLTJ) is an open access, bilingual (English and French), faculty-run, peer-reviewed academic journal devoted to scholarly articles on law and technology. The special issue on Science and the Courts seeks to include a broad range of subject areas and perspectives and seeks representation from authors drawn from science, law (including judges, lawyers, and academics), and related disciplines. Suggested topics include electronic evidence, the role of the expert witness, novel science and the courts, the specialized court, patent litigation, nanotechnology, legal history of science and the courts, product liability, juries and science, DNA, science and mass torts, neutral science advisors to a court, and the interaction between emerging scientific research and legal precedent on cases involving science. The Journal is also open to considering submissions on any other aspect of the intersection between science and the courts. The deadline for submissions is March 1, 2008.
General Issues: The Journal also continues to invite submissions of original scholarly articles in English or in French for publication in its peer-reviewed general issues, which will be considered on a rolling basis. For its general issues, the Journal is interested in work on all aspects of the field of law and technology, regardless of the type of technology, substantive area of law at issue, or theoretical or philosophical focus. The Journal considers scholarship on the intersection of law with established or emerging technologies in any field, such as computer, internet and e-commerce law; privacy; intellectual property; technology and ethics; communications, entertainment, and social media; natural sciences; traditional knowledge; evidence; cybercrime; security; internet governance; and e-government. The Journal publishes articles on law and technology written by scholars from a range of disciplines and encourages submissions of interdisciplinary work. All articles submitted to the Journal are evaluated through a peer review process before being accepted for publication.
The Journal publishes two peer-reviewed issues annually and is available both in print and electronic formats. The current and past contents of the UOLTJ are freely available online on the Journal’s websites, http://www.uoltj.ca (in English) and http://www.rdtuo.ca (in French). The Journal is also carried in HeinOnline, LexisNexis, Westlaw, and LexisNexis Quicklaw, and indexed in the Index to Canadian Legal Literature, the Index to Canadian Intellectual Property Literature, and OpenJ-Gate. In addition, the full-text of the Journal is available on the Social Science Research Network, the Directory of Open Access Journals and the digital collection of the Library and Archives Canada. As a member of Open Access Law Canada, the UOLTJ has made a firm commitment to advancing the free public accessibility of legal information. The Journal’s publication agreement is available for consultation on the website http://www.uoltj.ca/copyright.php. In addition to publishing in an open access format, the Journal supports the use of free public online sources of legislation and case law by including citations to public online sources.
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Inquiries may be addressed to:
Professor Elizabeth F. Judge
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University of Ottawa Law & Technology Journal
University of Ottawa, Faculty of Law
State of Iowa v. Boggs, 2007 WL 3407331 (Iowa 2007), is a complicated case with many issues recently resolved by the Supreme Court of Iowa, but in terms of the issue I want to address, only a few basic facts need to be mentioned. On January 10, 2003, law enforcement officers executed a search warrant at the residence of David Boggs and discovered a large quantity of methamphetamine and marijuana in his basement. Boggs was then arrested, transported to jail, and given his Miranda warnings. Boggs was then interviewed by a police officer. At some point during the interview, Boggs and the officer discussed a possible plea bargain in excahange for helpful information, and the officer called the county attorney on the phone to discuss the matter. At another point during the interview, Boggs acknowledged ownership of the methamphetamine and marijuana found in his basement.
However, while a plea bargain was discussed, no plea agreement was actually reached. After a complicated adjudicative history, Boggs was eventually found guilty of possession of marijuana and possession of methamphetamine with intent to deliver after the prosecution had the officer testify concerning the admissions Boggs made to him. Boggs thereafter appealed, claiming, inter alia, that the trial court erred in admitting his admissions because statements made during plea discussions are inadmissible pursuant to Iowa Rule of Criminal Procedure 2.10(5), which states that "[i]f a plea discussion does not result in a plea of guilty,...the plea discussion...shall not be admissible in any criminal or civil action or administrative proceeding."
This Rule, however, only applies to statements made while defendants seek to negotiate pleas, not to statements made by defendants merely hoping to achieve leniency by agreeing to talk to law enforcement. The Supreme Court of Iowa thus properly held that statements made by Boggs before the county attorney was contacted would not be covered by the rule whereas statements made after the county attorney was contacted would be covered because "[p]lea discussions that take place during the course of a general police interview of a suspect do not transform the entire interview into a plea discussion so that all statements made during the interview become privileged under Rule 2.10(5)."
The Supreme Court of Iowa then cited to United States v. Robertson, 582 F.2d 1356 (5th Cir. 1976), which most courts have found supplies the test for whether statements were made during plea discussions and thus inadmissible. Under the Robertson test, a statement is inadmissible because it is made during a plea discussion if (1) the defendant subjectively believed that he was negotiating a plea when he made the statement, and (2) that belief was reasonable given the totality of the objective circumstances. The Supreme Court of Iowa then found that Boggs did not satisfy this test because he failed to produce any evidence to reveal that point during the interview when the plea discussions first occurred and that point when the incriminating statements were made. The court noted that Boggs' counsel was given an opportunity to elicit this evidence and failed to do so.
The Supreme Court of Iowa's decision constitutes one of the worst misreadings of Robertson I have ever seen. Immediately after setting forth the two part test I mentioned above, the Robertson court made clear that "the government apparently bears the burden of proving that the discussion was not a plea negotiation once the issue has been properly been raised...." Robertson, 582 F.2d at 1366 n.21. As I argued in my article Caveat Prosecutor, 32 New. Eng. J. on Crim. & Civil Confinement 209 (2006), courts have often failed to mention who bears the burden of proof in failed plea discussion cases and have made some odd evidentiary rulings, but I'm not sure that I have ever come across a case before the Boggs case where a court has so clearly and improperly placed the burden of proof on the defendant. Simply put, the Supreme Court of Iowa's decision is an improper application of the Robertson decision, in effect creating a "caveat accused" approach to plea discussions rather than the proper "caveat prosecutor" approach, where the government bears the burden of proving that an accused's statements were not made during plea discussions.
Many of you may have recently heard about the case of Lee Wayne Hunt on 60 Minutes in connection with the report on the FBI's use of misleading and unreliable comparative bullet-lead analyses. As the story noted, despite the fact that this unreliable analysis constituted the sole forensic evidence against Hunt, he was denied a new trial earlier this year. This seems like a severe miscarriage of justice to me, but I'm actually more interested in another part of the story. Here are the basic facts:
Lee Wayne Hunt is in the midst of serving two life sentences plus 20 years for murdering Lisa and Roland "Tadpole" Matthews. Jerry Cashwell was Hunt's co-defendant in the 1986 trial for the murders. In 2004, Staples Hughes, the state's appellate defender, revealed that Cashwell, one of his former clients who had since committed suicide, confessed 20 years ago that Hunt was not involved in the murders and that he was the sole killer of the Matthews.
Earlier this year, based upon the unreliability of the bullet-lead analysis and Hughes' affidavit concerning Cashwell's confession, Hunt moved for a new trial. Superior Court Judge Jack Thompson not only denied Hunt's request, but also found that Cashwell could be sanctioned for violating the attorney-client privilege. With regard to Hughes' affidavit, Judge Thompson held that it constituted inadmissible hearsay; the statement would have to come straight from Cashwell to be admitted. In August, the case was reviewed by the North Carolina Court of Appeals, which rejected Hunt's motion without comment. Hunt now plans to appeal to the North Carolina Supreme Court.
First, it is not at all clear that Judge Thompson's ruling was correct. Pursuant to North Carolina Rule of Evidence 804(b)(3), when the declarant is unavailable to testify, there is an exception to the rule against hearsay when the declarant makes a "statement which at the time of its making...so far tended to subject him to...criminal liability...that a reasonable man in his position would not have made the statement unless he believed it to be true." Here, obviously Cashwell is now dead and unavailable to testify, and his statement certainly exposed him to criminal liability for murder.
The potential problem, however, is that a statement tending to expose the declarant to criminal liability under North Carolina Rule of Evidence 804(b)(3) is inadmissible "unless corroborating circumstances clearly indicate the trustworthiness of the statement." Here, without the benefit of a written ruling from Judge Thompson, it is difficult to say whether there were sufficient corroborating circumstances, although the fact that there was no reliable forensic evidence implicating Hunt seems to corroborate Cashwell's statement.
Second, while I'm not sure whether Hunt's attorney raised the issue, Hunt has a great argument under the authority of Chambers v. Mississippi, 410 U.S. 284 (1973). In Chambers v. Mississippi, the Supreme Court found that a state cannot apply its evidence laws in a manner that denies a criminal defendant a fair trial in accord with traditional and fundamental standards of due process. Thus, for instance, in Morales v. Portuondo, 154 F.Supp.2d 706 (S.D.N.Y. 2001), co-defendants were convicted of murder, and the court relied upon Chambers v. Mississippi in allowing an attorney to testify that his now deceased former client confessed to the murder, despite the statement being covered by the attorney-client privilege. In finding that the confession was admissible, the court noted that the former client had been dead for four years and that two apparently innocent men had spent thirteen years in prison. Stories state that Cashwell committed suicide in either 2002 or 2003. Hunt has been in prison for over 20 years.
Monday, November 26, 2007
That Other Illinois Police Officer: Former Illinois Officer Has Convctions Reversed After Accuser's Prior Felony Conviction Is Discovered
While the bulk of the media attention has focused on Illinois Police Sergeant Drew Peterson, another Illinois police officer quietly had his conviction for official misconduct and criminal sexual abuse reversed last Monday. Former Illinois police officer David L. Lewis was accused by several women of using his position to sexually assault them. The charges brought as a result of these accusations were separated, with Lewis being given separate trials for each of the accusations.
His first trial was held in October, with his accuser serving as the prosecution's main witness. She testified that after 3:00 A.M. on March 17, 2006, Lewis pulled over her vehicle as she was driving home from her job at a strip club. She claimed that after Lewis pulled her over, he put one hand behind her neck and the other between her legs and forced her to kiss him. The accuser also testified that after pulling her over, Lewis tried to call her three times on her cell phone. Based in large part on the accuser's testimony, Lewis was convicted.
The problem with the case, however, was that neither the prosecutor nor the accuser disclosed the accuser's full legal name or the fact that she has a felony conviction. On Monday, Vermilion County CIrcuit Judge Claudia Anderson thus reversed Lewis' convictions because, as defense counsel noted, the accuser's felony conviction would have been "admissible to impeach her credibility."
Defense counsel's reasoning is correct. Illinois has not adopted a statutory counterpart to Federal Rule of Evidence 609, which allows for, inter alia, a witness to be impeached by prior felony convictions. In People v. Montgomery, 268 N.E.2d 695 (Ill. 1971), however, the Supreme Court of Illinois held that witnesses could be impeached by felony convictions. And it is well established that a new trial is warranted under Brady when the prosecution fails to timely disclose material exculpatory evidence, including evidence which could be used to impeach a key proseuction witness, to the defendant.
Finally, I note that defense counsel was correct in focusing on the admissibility of the evidence. While I have consistently argued that Brady should cover not only admissible exculpatory evidence but also inadmissible exculpatory evidence, Illinois appears to be among those states limiting the Brady doctrine to admissible evidence. See People v. Pecoraro, 677 N.E.2d 875, 886 (Ill. 1997).
In 2005, the Food and Drug Administration reviewed the risks of drugs such as Celebrex and Vioxx and concluded that they should include a label warning patients of increased risk of strokes and heart attacks. These FDA findings prompted thousands of individuals who suffered heart attacks, strokes, or other adverse cardiovascular events (or who had relatives suffer the same) to sue Celebrex-maker Pfizer and Vioxx-maker Merck. The plaintiffs' claims against Pfizer were subsequently consolidated in the United States District Court of the Northern District of California in San Francisco.
Last Monday, Judge Breyer of that court issued an order excluding certain expert evidence that the plaintiffs sought to introduce, causing devastating damage to their cases. For decades, both state and federal courts applied the Frye test to determine the admissibility of expert evidence. This test, which some state courts still apply, asks a court to determine whether the technique or test used by the expert has general acceptance in the relevant scientific community.
This test was displaced in all federal courts and most state courts by the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), a case that dealt with whether the plaintiffs' experts could tesify that the drug Bendectin was a risk factor for human birth defects. The Supreme Court found that judges should act as "gatekeepers" and determine whether expert evidence is relevant and the product of a reliable technique or test. In Daubert, the Supreme Court laid out five "general observations" about how judges should determine whether a test or technique is reliable such as whether it has been subjected to peer review or publication.
The Supreme Court, however, did not state that these "general observations" were definitive or exhaustive, and thus when the Supreme Court remanded the Bendectin case to the United States Court of Appeals for the Ninth Circuit, the Court of Appeals proceeded to consider not only factors such as peer review/publication, but also the "significant fact[or] of "whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying." Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). Because the plaintiffs' experts developed their testimony solely in anticipation of litigation and relied upon research not subjected to peer review/publication, the Ninth Circuit found that their proposed testimony was inadmissible.
Judge Breyer's order in case against Pfizer is almost a mirror image of his parent court's decision in Daubert. Breyer found that the plaintiffs' experts in the case against Pfizer developed their testimony solely in anticipation of litigation and relied upon research which was for the most part not subjected to peer review/publication and thus found that their proposed testimony was inadmissible.
Some will argue that this is yet another example of judges being too proactive and excluding expert evidence despite lacking the sceintific/medical/technical knowledge necessary to make such decisions. See, e.g., Susan Haack, An Epistemologist in the Bramble-Bush: At the Supreme Court with Mr. Joiner, 26 Journal of Health, Politics, Policy & Law 217 (2001). (Indeed, I wonder how many experts conduct tests to determine the risk factors of prescription drugs without being retained for an upcoming case?) Others will argue that the old Frye test, which the Florida Supreme Court recently reaffirmed, encourages matador judging in which courts allow in all sorts of junk scienece. Personally, I'm not really sure that either test is efficacious.
I think that the issue of expert testimony is the most important evidentiary issue facing courts today as expert testimony becomes increasingly specialized and technical, and judges are at risk of becoming Sheriff Ed Tom Bell in No County for Old Men. As Captain Jack Harkness says in Torchwood, "The 21st Century is when everything changes. And you gotta be ready." With all sorts of expert testimony presently at issue, from bullet-matching forensics to fingerprint evidence to DNA found under fingernails to profiling evidence, I'm just not sure that judges are ready.
Sunday, November 25, 2007
A man who has been charged with three counts of animal cruelty has moved for each count to be tried separately with different juries. Doug Kalberg, who owns the Dog Zone dog daycare center in Longview, Washington, has been charged with first and second degree animal cruelty for allegedly abusing two dogs in August and one dog in December at Dog Zone. If Judge Stephen Warning grants the motion, jurors in each case would only be able to hear evidence relating to the abuse of the dog covered by the case and could not hear evidence relating to the alleged abuse of the other two dogs.
In making the motion, Kalberg's attorney argued that combining the charges in one trial could prejudice the jury into believing Kalberg has a propensity to abuse animals. Kalberg's argument might be successful because under Washington Rule of Evidence 404(a), evidence of a person's character is inadmissible to prove that he has a propensity to act in a certain manner and that he acted in conformity with that propensity at the time of the alleged crime. Thus, for instance, the prosecutor in Kalberg's case would not be permitted to present evidence that Kalberg abused the two dogs in August to prove that he has a propensity to abuse dogs and that he acted in conformity with that propensity when he abused the third dog in December.
Washington Rule of Evidence 404(b), however, does allow for the admission of other crimes, wrongs, or acts to prove a common plan or scheme or modus operandi on the part of an individual, although courts differ sharply over how to apply this rule. Thus, for instance, in Sharp v. State, 837 P.2d 718, 725 (Alaska.App. 1992), an Alaska court found that under its version of Rule 404(b), the prosecution could present evidence that the defendant allegedly sexually abused four children under the theory that he had the common plan or scheme to use his position as chief-lieutenant at a day-care center to obtain access to young children. On the other hand, in State v. Kirsch, 662 A.2d 937 (N.H. 1995), the Supreme Court of New Hampshire found that allegations that the defendant used his position as a church staff member to molest several young girls did not satisfy the common plan or scheme requirement.
In State v. Lough, 889 P.2d 487 (Wash. 1995), the Washington Supreme Court set out a four part analysis to be applied before admitting evidence pursuant to the "common plan or scheme" rationale: the prior acts must be (1) proved by a preponderance of the evidence, (2) offered for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial.
It appears that Washington courts have been fairly liberal in applying Rule 404(b). For instance, in Doe v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 167 P.3d 1193, 1207 (Wash. App. Dic. 1 2007), a Washington court found that in a case where the defendant was charged with sexually abusing two stepdaughters, the biological daughter of the defendant could testify that her father sexually abused her in a similar manner under the "common plan or scheme" rationale. Thus, if there is sufficient evidence that Kalberg abused all three dogs and the acts of abuse were similar, Judge Warning is unlikely to grant the motion for separate trials.
Saturday, November 24, 2007
Two mock trial studies in Australia have produced fascinating conclusions about the effect of "gruesome" evidence on jurors. According to the studies, jurors presented with "gruesome evidence," such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence.
David Bright, a USNW PhD student involved with the study noted that "the prejudicial influence of gruesome evidence on decision making occurs at an unconscious level. Jurors appear to be unaware of the extent to which they are susceptible to prejudice as a result of exposure to this type of evidence." The studies also concluded that safeguards, such as judicial directions that jurors should view such evidence in a calm and deliberate manner probably don't offer sufficient protection to defendants.
The studies call into question the way that Australian courts have treated this "gruesome evidence." Currently, Australian judges are reluctant to exclude such material. Specifically, Australian case law reflects an assumption that post-mortem photographs have little or no prejudicial impact on juries.
These studies have provided empirical support for concerns about prejudicial evidence outlined by the Australian Law Reform Commission and the Government's Advisory Committee on the Federal Rules of Evidence that prejudicial evidence such as gruesome photographs can damage a defendant's case by provoking an irrational, emotional response, or giving evidence more weight than it warrants.
Of course, this study also calls into question the way that American courts treat "gruesome" evidence. Under Federal Rule of Evidence 403 and most state counterparts, there is a liberal standard for admissibility, with relevant evidence being admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, etc. "Gruesome" evidence such as post-mortem photographs, typically passes the Rule 403 test. See, e.g., State v. Fletcher, 609 S.E.2d 572, 591 (S.C. App. 2005).
I have always been of the view that jurors do not "need to be protected from themselves," see, e.g. State v. Bocharski, 22 P.3d 43, 57 (Ariz. 2001)(Martone, J., concurring), but these studies have caused me to questioned not only the validity of this viewpoint, but also its relevancy. First, maybe jurors do need to be protected from themselves. Second, and more importantly, however, maybe the relevant question is not whether jurors need to be protected from themselves, but whether defendants (and the law?) need to be protected from "gruesome" evidence.
Friday, November 23, 2007
Shop Smart. Shop S-Mart. Ohio Court Finds Res Ipsa Loquitur Inapplicable in Black Friday Wal-Mart Case
One morning, shortly after 6:00 a.m. in November, 2000, Pamela Tackett was shopping at a Wal-Mart store for a bicycle. She eventually came upon a display of disassembled boxed bicycles in the outside garden area. Tackett claimed that the boxes were stacked four boxes high on their narrow eight inch side, totaling approximately twelve feet high. Wal-Mart has a general rule that its freestanding box displays should not be stacked higher than five feet high, in order to prevent the items on display from being unstable and unsafe to patrons. Tackett claims that while she was looking at a bicycle box on the floor, a box fell from the top of display, causing injuries to her head, shoulders, and arm.
Tackett thereafter sued the superstore under a few theories of recovery, including a cause of action under the doctrine of res ipsa loquitur, a Latin phrase that means "the thing speaks for itself." Plaintiffs typically use this rule of evidence when they are unable to prove specifically how an accident occurred but they are able to prove that the accident was the type of accident that would not occur in the absence of negligence.
This September, the District Court for the Southern District of Ohio heard Tackett's case and noted that for the doctrine of res ipsa loquitur to apply, a plaintiff must prove (1) that the instrumentality that caused the accident was under the exclusive management and control of the defendant, and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. See Tackett v. Wal-Mart Stores, East, Inc., 2007 WL 2668133 at *4 (S.D. Ohio 2007).
If the accident occurred on an ordinary day, perhaps the court would have accepted Tackett's argument. But the day of Tackett's accident was not any ordinary day. Instead, it was Black Friday, the day after Thanksgiving, which is typically either the busiest shopping day of the year or second only to the day after Christmas. The court thus rejected Tackett's argument, noting that Wal-Mart was not in complete control of the bicycle display when Tackett' accident occurred because it occurred "on the busiest shopping day of the year, at the busiest time of day. There were numerous customers in the area, several boxed bicycles had already been purchased, and several customers had physically touched, moved, and/or manipulated the boxes." Id.
The court thus found that the doctrine of res ipsa loquitur did not apply to Tackett's case, although it did find that there were triable issues of fact on Tackett's specific claim that Wal-Mart was negligent in stacking the boxes. The bottom line seems to be that if a retail store commits some specific act of negligence on Black Friday, early bird shoppers may be able to recover, but otherwise, it's every man for himself.
Thursday, November 22, 2007
Mississippi Masala: Thanksgiving Self-Defense Case Reveals That Mississippi Has a Unique Interpretation of Rule 405(b)
In 2005, a jury in Mississippi found Tabitha Yolanda Miller guilty of manslaughter. At trial, it was adduced that Miller and Calvin James, the victim, had a brief, but tumultuous, romantic relationship. In November, 2000, Miller broke up with James, and her children and she were thereafter invited to a Thanksgiving dinner. James appeared at the Thanksgiving dinner intoxicated and caused a disturbance.
After dinner, Miller drove to the house of her ex-sister-in law, and, upon arrival, she saw that James was following her; he followed her into the house and cursed at her. Later, Miller had in her hand a knife which she was going to use to cut a cake, but James began pushing and shoving her. Miller thereafter called 911, but James continued to curse her.
James then allegedly punched Miller in the face, Miller warned him to get back, and James grabbed a butcher's knife and drew it back. Allegedly fearful that James was going to stab her, Miller stabbed James in the chest. James was later pronounced dead at a local hospital, and Miller first claimed that he fell on the knife before changing her story.
After being convicted of manslaughter, Miller claimed that the trial court erred by refusing, pursuant to Mississippi Rule of Evidence 404(a)(2), to allow her to present evidence of a continuing course of violence that James inflicted on her to establish the reasonableness of the fear that James was going to stab her and thus that her actions were in self-defense. The Supreme Court of Mississippi reversed Miller's conviction and found that her argument was correct in that pursuant to Mississippi Rule of Evidence 404(a)(2) a criminal defendant can present evidence that the victim had a pertinent character trait, such as a character for being violent.
If the case were being heard in federal court or most state courts, this decision would have been incorrect. While pursuant to Federal Rule of Evidence 404(a)(2), a criminal defendant is able to present evidence that the victim had a pertinent character trait, Federal Rule of Evidence 405(a) limits the methods of proof to opinion and reputation testimony. Therefore, Miller would have been entitled to present a witness who would have testified that in his opinion James was violent and that James had a reputation in the community for being violent, that witness could not have testified to specific acts of violence by James.
Federal Rule of Evidence 405(b) does allow for the introduction of specific acts of an individual to prove his character, but this Rule only applies when character is an essential element of a claim or defense (such as in a libel case) and does not apply in self-defense case. See, e.g., United States v. Gregg, 451 F.3d 930, 933 (8th Cir. 2006). Mississippi, however, has a unique interpretation of its version of Rule 405(b), under which the character of the victim becomes an "essential" element of the defense of self-defense when there is evidence of an overt act by the victim against the defendant. See, e.g., Hester v. State, 841 So.2d 158, 163 (Miss.App. 2002). In such cases, the defendant can therefore introduce into evidence specific acts of, for instance, violence by the victim to prove that he was a violent person. Thus, because there was evidence that James punched and brandished a knife against Miller, she was entitled to present evidence of past acts of violence by James.
Wednesday, November 21, 2007
Take Me To Another Place?: Recent Decision Reveals Tennessee's Heightened Skepticism of Expert Opinion Evidence
The recent opinion of the United States District Court for the Eastern District of Tennessee in Brooks v. Wal-Mart Stores East, L.P., 2007 WL 3389925 (E.D. Tenn. 2007), reveals that the proponent of expert opinion evidence in cases governed by the Tennessee Rules of Evidence bears a higher burden than the proponent of expert evidence in cases goverened by the Federal Rules of Evidence. In Brooks, the plaintiff sued Wal-Mart, alleging that its superstore in Tennessee allowed water to accumulate on the concrete floor of the entrance, causing her to slip and fall and suffer at least $750,000 in damages.
Wal-Mart then brought a motion for summary judgment dismissing the complaint, and the court granted the motion while noting the distinctions between federal and Tennessee law. Under Federal Rule of Evidence 702, as amended in the wake of the Supreme Court's ruling in Daubert, in order for expert opinion evidence to be admissible, it must assist the trier of fact to understand the evidence or determine a fact in issue, be given by a qualified witness, and (1) be based upon sufficient facts or data, (2) be the product of reliable principles and methods, and (3) be based upon a reliable application of the principles and methods to the facts of the case. The requirement that the expert's opinion "assist the trier of fact" is essentially a restatement of Federal Rule of Evidence 403, which holds that a judge may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, etc.
Conversely, under Tennessee Rule of Evidence 702, expert opinion evidence is only admissible if it will "substantially assist the trier of fact" to understand the evidence or determine a fact in issue. (emphasis added). Courts have consistently held that the addition of the word "substantially" is not merely a semantic difference in the Tennesse Rules of Evidence but instead reflects the fact that the burden for admissible expert opinion evidence "under the Tennessee Rules of Evidence is higher than [under] the Federal rule." Brooks, 2007 WL at *1 n.1. In other words, Tennessee requires that expert opinion testimony have stronger "probative force" than expert opinion testimony presented under the federal rules. See, e.g., State v. Prentice, 113 S.W.3d 326, 334 (Tenn.Crim.App. 2001).
In my search through Tennessee case law, however, I was unable to determine exactly how it modifies the Rule 403 balancing test. Obviously, as under the Federal Rules, relevant expert opinion evidence under Tennessee law is inadmssible if its probative value is substantially outweighed by the danger of unfair prejudice, etc., but is it inadmissible if its probative value is merely outweighed by the danger of unfair prejudice, etc., but not to a substantial degree? Or does Tennessee law actually require that the probative value of relevant expert opinion evidence outweigh the danger of unfair prejudice, etc.? As facr as I can tell, not Tennessee court has laid out the exact contours of the balancing test.
What I can say, though, is that a search through Tennessee case law and a recent decision in another state reveals that Tennessee's rules will often place its courts at odds with federal courts and most other state courts. I've blogged before about the infamous Moe Gibbs case, which recently ended with Gibbs being found guilty of murder. (As I noted before, I think that Gibbs has good ground for appeal based upon the court's incorrect rule of completeness ruling). A key piece of testimony in the Gibbs' case was the expert opinion testimony of a doctor that the amount of DNA evidence belonging to Gibbs found under the victim's fingernails was the result of "vigorous physical contact" between the two and not the result of a secondary transfer which might have resulted from the two touching a common item.
Conversely, in State v. Williams, 2006 WL 3431920 (Tenn.Crim.App. 2006), the Court of Criminal Appeals of Tennessee found that a Tennessee trial court erred by allowing an expert to opine that the amount of the defendant's DNA found under the victim's fingernails suggested that it was the result of something more than casual contact because the opinion lacked sufficient probative force.
Tuesday, November 20, 2007
The Wrongdoers: Colorado Finds Forfeiture By Wrongdoing Doctrine Does Not Preclude Hearsay Challenge
In June 2002, Jimmy Vasquez was placed under a restraining order prohibiting contact with his wife, Angela Vasquez. In July 2002, Jimmy was arrested on harassment charges and released on a bail bond which again prohibited contact with his wife. In August 2002, Angela reported to police that Jimmy was violating both the restraining order and the bail bond by calling her frequently and leaving phone messages.
As a result of this reporting, Jimmy was convicted of violating the restraining order and bond conditions. Shortly after Angela reported to the police, and two days before Angela was to testify in the trial on the harassment charges brought against Jimmy, her dead body was discovered in a hotel room. An officer at the crime scene encountered Jimmy, who admitted that he killed his wife because she set him up. Jimmy was later tried and convicted of murder in the first degree in connection with Angela's death.
In the harassment case, over Jimmy's objection, the trial court admitted Angela's statements to police identifying the voice on the phone messages as Jimmy's voice in August 2002. After Jimmy was convicted, he appealed to the Supreme Court of Colorado on several grounds, including the ground that the admission of Angela's hearsay statements violated his rights under the Confrontation Clause.
Under Federal Rule of Evidence 804(b)(6), added in 1997, "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness" is "not excluded by the hearsay rule...." While Colorado has not adopted a state rule of evidence similar to Rule 804(b)(6), the Supreme Court of Colorado has adopted a form of this doctrine of "forfeiture by wrongdoing" in People v. Moreno, 160 P.3d 242 (Colo. 2007).
What the Supreme Court of Colorado had to address in the Vasquez case, however, was whether this doctrine of "forfeiture by wrongdoing" means that the wrongdoer only waives his objections under the Confrontation Clause or whether he also waives his hearsay objections. In other words, a party who engages in forfeiture by wrongdoing waives his objection that he could not confront the witness whom he prevented from testifying through his wrongdoing, but can he still object that the witness' statements are inadmissible hearsay?
As the Supreme Court of Colorado noted, most courts interpreting the "forfeiture by wrongdoing" doctrine have held that the wrongdoer waives both his Confrontation Clause and hearsay objections because the Confrontation Clause and the hearsay rules are designed to protect similar values and because the Confrontation Clause, as a Constitutional provision, provides more expansive protections than the hearsay rules. The court then noted, however, that a small minority of courts have held that while the wrongdoer waives his Confrontation Clause objections, he does not waive the objection that the evidence the other party seeks to introduce constitutes inadmissible hearsay. The Supreme Court of Colorado adopted this approach, noting that it still had to ensure that the evidence introduced against the wrongdoer was reliable.
I find this conclusion troubling. In arguing that Rule 804(b)(6) should be added in 1997, the Advisory Committee noted that the Rule "filled the need for a prophylactic rule to deal with abhorrent behavior 'which strikes at the heart of the system of justice itself.''" In other words, we don't want a party to be able to kill a witness so that the witness' statements cannot be used against him at trial.
What the Supreme Court of Colorado is saying, however, is that in the typical case where a witness makes out-of-court statements implicating a defendant and the defendant kills the witness, Rule 804(b)(6) serves no practical purpose because the witness' statements will still be excluded as hearsay. Only in the rare case where the witness' statements happen to meet some hearsay exception will the rule have any teeth and serve its prophylactic purpose. The very purpose of the "forfeiture by wrongdoing" doctrine is to shift the court's focus from the reliability of the statements at issue to the equitable goal of preventing a party from benefiting from his wrongdoing, but the Supreme Court of Colorado collapses this dichotomy in its analysis. See Crawford v. Washington, 541 U.S. 36, 62 (2004).
In the end, though, the court's ruling had no practical effect in the Vasquez case because the court determined that Angela's statements were admissible pursuant to Colorado Rule of Evidence 807, which contains Colorado's residual hearsay exception. This decision, however, raises another question. Like its federal counterpart, Colorado Rule of Evidence 801(d)(1)(C) defines statements identifying a person as admissible non-hearsay. While a statement of identification typically involves a witness identifying a defendant at a lineup, some courts have applied it to the identification of a person based upon identifying his voice. See, e.g., United States v. Ramirez, 45 F.3d 1096, 1101 (7th Cir. 1996). I'm not sure whether those rulings are based upon a correct application of Rule 801(d)(1)(C), but it would have been interesting to see how the Supreme Court of Colorado would have addressed the issue.
Monday, November 19, 2007
Sketch Artist: Virginia Court To Resolve Whether Crime Scene Sketch Constitutes Inadmissible Hearsay
Last year, Lieben Marie Patrick was found guilty of attempted murder after she hit a 3 year-old girl and another woman, Angela Amos, with her car. According to the evidence at trial, Patrick went to Amos' home on Christmas Eve, and the two immediately started fighting. Patrick then refused to leave Amos' home, which led to Amos walking out of her house; she eventually came upon Rosanna Orange and three of her children near the top of a hill. Allegedly, Patrick then left Amos' house in her car, struck Amos, struck Orange's then 3 year-old daughter, backed up over the girl, and then fled the scene. Patrick's attorney contended that Patrick was struggling with the gearshift and didn't see Amos or the girl until it was too late.
At Patrick's trial, she claimed that a statement by Amos that she was near the edge of the road when she was struck conflicted with Orange's testimony that Patrick drove as much as six feet from the edge of the road to strike her daughter. Furthermore, over her attorney's objection, the trial judge allowed into evidence a sketch that a police officer made of the crime scene based upon Orange's statements about where her daughter was struck. Specifically, her attorney claimed that this sketch was hearsay because the officer did not view the "crime scene" and that the prosecution improperly relied upon the officer's credibility to back up the sketch rather than Orange's testimony alone. Now, Patrick is arguing these points on appeal.
I think that Patrick's argument might have merit. Virginia courts have held that when a victim describes his or her assailant to an officer who creates a composite sketch, the sketch is not hearsay because it does not constitute a "statement" but instead is similar to a photograph. See Harrison v. Commonwealth, 384 S.E.2d 813, 815 (Va. App. 1989). However, while I was unable to find any Virginia cases directly on point, most courts treat crime scene sketches differently.
Thus, for instance, in State v. Randolph, 462 A.2d 1011 (Conn. 1983), the Supreme Court of Connecticut was faced with the question of whether a police officer's sketch of a crime scene that he made based upon a witness' memory of the scene was admissible. The court found that "[a] sketch that is drawn up based upon a witness' personal observation and which is introduced through that witness who is competent to identify and explain its contents would not be hearsay assuming the sketch is being introduced in order to illustrate or explain the witness' in-court testimony." Id. at 1017 (emphasis added). On the other hand, such a sketch could not be introduced through the testimony of the police officer because in such a case it would be offered to prove the truth/accuracy of the sketch rather than to explain the witness' testimony. See id.
It is a little bit unclear from the article discussing Patrick's case how the "crime scene" sketch was introduced into evidence, but it appears that it was introduced at least partially through the testimony of the police officer. If this were the case, the trial court's decision would have been erroneous. If, however, the sketch were introduced through and used to illustrate Orange's testimony, the trial court's decision would have been proper.
The Shrink(ing) Privilege: Vermont Court Takes Overly Broad View Of Waiver Under Psychotherapist Privilege
In Rose v. Vermont Mutual Insurance Company, 2007 WL 3333394 (D. Vt. 2007), Christine Rose was involved in a car accident and settled her claim with the other driver for his insurance policy limit of $50,000. Rose then demanded additional damages from her own insurance company, alleging damages such as "emotional distress." Id. at *1. Her insurance company countered that Rose had a historic problem with depression and thus requested disclosure of persons who saw Rose for her depression and a copy of their records. See id.
Vermont Rule of Evidence 503 contains a psychotherapist-patient privilege, which states that a patient has the privilege to refuse to disclose confidential communications made for the purpose of diagnosis or treatment, and title 12, section 1612 of the Vermont Statutes Annotated prohibits a mental health professional from disclosing confidential information unless the privilege is waived. What the district court in Rose had to decide was whether Rose waived the privilege by seeking damages for emotional distress.
The court cited to Ruhlmann v. Ultster County Department of Social Services, 194 F.R.D. 445 (N.D.N.Y. 2000), for the proposition that there is a split among courts, with some courts taking a "narrow view" of waiver and some courts taking a "broad view." Id. at *2. An example of a court following the narrow view is the District Court for the Northern District of Illinois, which found that a plaintiff would waive the privilege if she put her state at mind at issue by having her psychotherapist testify that she suffered from emotional distress, see Allen v. Cook County Sheriff's Department, 1999 WL 168466 (N.D. Ill. 1999), but that a plaintiff would not waive the privilege merely by seeking damages for emotional distress resulting from a defendant's misconduct, see Hucko v. CIty of Oak Forest, 185 F.R.D. 526 (N.D. Ill. 1999).
On the other hand, other courts take the broad view and hold that a plaintiff waives the privilege merely by seeking damages for emotional distress. See Jackson v. Chubb Corp., 193 F.R.D. 216 (D. N.J. 2000). Without any analysis, the court in Rose concluded that it would adopt the broad view and find that the psychotherapist-patient privilege was waived as to Rose's claims for emotional distress.
A closer look at Ruhlmann, however, makes it appear as if the court in Rose skimmed that case and cited it as its main authority but failed read it in its entirety. After discussing the split among courts taking the narrow view and the broad view, the court found that even those courts taking the borad view find the privilege waived only when a plaintiff makes specific and significant claims of emotional harm and that the privilege is not waived when a plaintiff merely makes a "garden-variety" claim for emotional distress damages. Ruhlmann, 194 F.R.D. at *49. Therefore, a plaintiff like Rose who merely seeks damages for emotional distress would not waive the privilege while a plaintiff seeking damages for mental harm, including "anxiety, paranoia, depression, and hallucinations," would waive the privilege. Thus, by citing to Ruhlmann and yet failing to distinguish it (or provide any analysis), the Vermont court erred.
Sunday, November 18, 2007
Things are heating up in anticipation of the highly publicized bridenapping case in Utah. Lemuel and Julia Redd are accused of kidnapping their adult daughter, Julianna Myers, the day before she was to marry Perry Myers. At a recent preliminary hearing, Julianna testified that after her parents picked her up to shop for wedding clothes, they kidnapped her against her will and took her to Grand Junction, Colorado so that she would not marry Perry.
The Redds' attorneys seek to introduce evidence that Perry is a media whore who influenced the claims and actions of others around him by making sensationalist claims to police and by pressuring Julianna to say that she was kidnapped. Specifically, they have noted that Perry initially told police that Julianna's parents were simply trying to keep her from the wedding and that he wasn't concerned for her safety, but later changed his story and said that he was worried that it was a possible murder-suicide scenario. Utah County attorney Curtis Larson has countered that any statements by Perry would constitute inadmissible hearsay.
It's difficult to say how the court will rule without knowing the specific statements by Perry at issue, but it appears that there are two ways in which defense counsel could argue that they are admissible. Utah Rule of Evidence 801(c) defines hearsay as a statement "offered in evidence to prove the truth of the matter asserted." Thus, for instance, if defense counsel tried to introduce statements by Perry that he didn't think that Julianna was kidnapped to prove that she, in fact, was not kidnapped, the statements would be indmissible hearsay.
If, however, as the defendants' attorneys claim, they have evidence that Perry made statements to Julianna that were intended to pressure Julianna into saying that she was kidnapped, defense counsel would not be introducing those statements to prove that what Perry said was true, but instead to show their possible effect on Julianna, who might have thereafter lied in claiming that she was kidnapped. The statements would thus not constitute hearsay.
On the other hand, if no such statements exist, if Perry testifies at trial, Utah Rule of Evidence 613 states that Perry could be impeached by his prior inconsistent statements. Thus, for instance, if Perry testifies at trial that he always thought that Julianna was kidnapped and that he feared for her safety, defense counsel could use his prior statements to the contrary to impeach his testimony at trial.