EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, October 13, 2007

Does a call to a legal services hotline satisfy the right to counsel?

In December, 2005, a Canadian court found 25 year-old George Osmond guilty of first degree murder based upon allegedly killing 13 year-old Kayla John.  The primary evidence against Osmond was a videotaped statement in which he admitted to the police that he killed John.

Osmond appealed to the B.C. Court of Appeals, which reversed the conviction, finding that the police did not do enough to provide Osmond with legal counsel following his arrest.  The justice hearing the case noted that Osmond's father and girlfriend, both of whom could have helped Osmond get a lawyer, were denied access to Osmond while he was being questioned.  The justice also noted that Osmond was able to make a 2 minute phone call to a legal services hotline, and a lawyer advised him to remain silent.

Osmond, however, subsequently confessed during a series of interviews with a police investigator.  The justice ackowledged that Osmond was able to talk with a lawyer for 2 minutes, but he found that this access was overwhelmed by a skilled investigator lawfully entitled to persuade him to ignore the lawyer's advice. 

I wonder how an American court might rule under similar circumstances.  Looking through Westlaw, I didn't find any case where an arrested individual made a call to a legal servuces hotline.

I'm aware that some courts have found that when an arrested individual makes a telephone call to his attorney, that act, in and of itself, constitutes the exercise of his right to counsel. See, e.g. United States v. Porter, 764 F.2d 1, 6 (1st Cir. 1985). 


October 13, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, October 12, 2007

Article Of Interest: Professor Rosanna Cavallaro Looks At The Interplay Between Rule 403 and Rules 413-415

Pursuant to Federal Rule of Evidence 404 and most state counterparts, character evidence is generally inadmissible to prove that a person has a propensity to act in a certain manner and that he/she acted in conformity with that propensity at the time in question.  Thus, for instance, the prosecution could not offer evidence that a defendant on trial for murder brutally attacked people on two prior occasions to prove that the defendant had a propensity for being violent and acted in conformity with that violent propensity on the night of the murder.

The major exceptions to this Rule are contained in Federal Rules of Evidence 413-415, which allow for evidence of a defendant's past sexual assaults and child molestation to prove that the defendant did, in fact, commit the sexual assault or child molestation with which he is currently charged.  These Rules were enatced as part of the Violent Crime Control and Law Enforcement Act of 1994, despite the overwhelming majority of lawyers, judges, legal organizations, and law professors opposing the laws when it was submitted for public comments.

Since then, the vast majority of scholars and commentators writing about the Rules have viciously attacked the Rules, claiming that they are based upon improper legal and sociological foundations.  While such arguments are theoretically interesting, it does not appear that the Rules will be rescinded, leaving the question of when someone will write about what judges should do now that these Rules are in place.

Professor Rosanna Cavallaro's forthcoming article "Federal Rules of Evidence 413-415 and the Struggle for Rulemaking Preeminence," does an admirable job of filling that void.  According to Cavallaro, since the adoption of Rules 413-415, judges have essentially found that evidence offered pursuant to 413-415 has a "presumption of probativeness," making it extremely unlikely that such evidence will be excluded pursuant to Federal Rule of Evidence 403, which allows judges to exclude relevant evidence if its probative value is substantially outweighed by factors such as the danger of unfair prejudice.  As Cavallaro notes, such judicial deference to Congress makes sense only if Congress acted within its scope of expertise in drafting Rules 413-415.

On the other hand, if Rules 413-415 in effect rescinded properly delegated judicial authority to promulgate rules of procedure, judges should engage in a robust application of Rule 403 when a party seeks to admit evidence under Rules 413-415.  Cavallaro finds that Congress engaged in such improper activity in enacting Rules 413-415 based upon a separation of powers analysis contrasting the nature of the propensity ban (fundamentally adjudicatory) with  other evidence rules (like the ban on subsequent remedial measures), which have a more legislative, policy-weighing character.  Thus, judges should not be staying their hands.

In response to an e-mail asking about what led her to write the article, Cavallaro wrote me that she "was frankly very  surprised that courts have not viewed the rules as an encroachment into their domain, but have instead passively imposed them with minimal judicial scrutiny, while reciting that the legislative intent is that this kind of evidence be generally admissible.  This flies in the face of recent Supreme Court reaffirmations of the general ban on propensity evidence (Old Chief, e.g.), and ignores the act of transubstantiation that  made the remarks of the DOJ's spokesman, David Karp, into the legislative history of the rule.  As I am frequently observing about other political matters these days, where's the outrage?  Why have courts not seen this as a battle in the ongoing war over preeminince in rulemaking?"

I agree with Professor Cavallaro, think that the outrage expressed in her article is exactly what is needed now, and hope that judges will read the article and reclaim their territory. 


October 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Does the statement, "I don't want to give up any right, though, if I don't got no lawyer" invoke the right to counsel?

Dwayne Milton Gobert is on trial based upon allegedly stabbing a woman to death in her apartment in 2003.  Gobert moved before a Texas trial court to have a confession that he made to police suppressed because the police violated his right to counsel.  After being arrested, detectives read Gobert his rights, and Gobert responded, "I don't want to give up any right, though, if I don't got no lawyer." 

The police, however, continued to converse with Gobert and eventually got him to agree to answer questions.  After Gobert agreed, one of the detectives said,  "I want to clear something up, though, because earlier you said you don't want to give up your right to a lawyer. I want you--I want you--I want to clear up the fact that you want to talk to us about this. Okay? You understand what I'm saying?"  Gobert then responded, "Yeah," and he proceeded to admit to murdering the woman.

The Texas trial court ruled that the confession was inadmissible, and the state appealed the ruling to the Texas 3rd Court of Appeals.  In an opinion filed this April, the Court of Appeals agreed, holding that the defendant unambiguously, if ungrammatically, told the officers that he did not want to give up any right without first consulting with a lawyer.  The Court of Appeals specifically noted that the detective's response where he said that Gobert had earlier claimed that he did not want to give up his right to counsel made it clear that everyone involved thought that Gobert invoked his right to counsel at some point, thus making any subsequent statements inadmissible.

The Court of Appeals, however, recently reconsidered and reversed its prior opinion, now holding that at the very most Gobert's statement was an equivocal and ambiguous statement that Gobert might want to invoke his right to counsel.  In reaching this decision, the Court of Appeals made no mention of the detective's statement about Gobert not wanting to give up any right without a lawyer.  This seems to be a troubling opinion in which the Court of Appeals engaged in semantic gymnastics to try to ensure that the defendant's confession would be admissible against him.


October 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 11, 2007

Are R-rated movies too disturbing for jurors?: One Alaskan Judge Thinks They Are

A student in my Evidence class brought in an article about an interesting ruling in an Alaskan court.  Mechele Linehan is on trial for allegedly masterminding the decade-old murder of her husband.  The theory of the case is that she convinced John Carlin III, her former fiance, to kill her husband so that she could collect $1 million in insurance proceeds from his death.  Linehan was a stripper who one co-worker said got big tips just by talking to men

There are a ton of other fascinating details in the case.  The husband apparently learned of the plot, changed the beneficiary in his policy, and sent a letter to his parents to be read if something "fishy" happened to him.  The letter said to make sure that Linehan was prosecuted and said that Carlin III and maybe even another suitor were involved.  Despite this letter, there wasn't enough evidence for prosecutors to charge Linehan, and she reinvented herself as a doctor's wife and mother over the next decade.

Recently, however, the cold-case unit interviewed Carlin's son, who said he saw his father using bleach to wash out a handgun (apparently soon after the husband's death).  The state thus brought murder charges against Linehan.  At trial, a former stripper friend testified that Linehan and she watched John Dahl's top-notch neo-noir movie "The Last Seduction," and that Linehan adored and wanted to emulate Linda Fiorentino's femme fatale character, who sedcuces and convices another man to kill her husband (although, I note, not to collect insurance proceeds).

The prosecutor thus wanted to play the movie "The Last Seduction" for the jury, claiming that Linehan copied the femme fatale's murder plan, but the judge refused to allow the jurors to see the movie.  Unsurpsingly, the judge found that the movie was inadmissible because there were too many dissimilarities between the movie and the alleged killing of the husband.

What interests me, though, is that the judge also said that the movie could be too disturbing to the jurors.  I find this to be a curious ruling.  Sure, "The Last Seduction" is rated R, and it has some sex and violence; however, I wouldn't say that the sex or violence in the movie is excessive.  It is similar to the sex and violence in Lawrence Kasdan's top-notch neo-noir movie "Body Heat;" in fact, many film critics have compared the two films and their femme fatales.

Interestingly, in State v. Plaskett, 27 P.3d 890 (D. Kan. 2001), the Supreme Court of Kansas affirmed a trial court's decision to allow the prosecution to show to the jury 9 to 10 minutes of the most salacious scenes of "Body Heat" and found that defense counsel's objection to the selection of the clips was quelled by the fact that the prosecution offered to show the whole movie to the jury if the isolated clips were too prejudicial (the case involved a man allegedly sexually assaulting a child while showing her "Body Heat"). 

I would agree with that ruling and find that, assuming a movie is relevant, it should be admissible unless it is unusually gruesome, repulsive, or horrifying, which is the same standard that Alaska courts have applied to autopsy phtographs of victims and their fatal wounds. See, e.g., Howell v. State, 917 P.2d 1202, 1212 (Alaska App. 1996).  I would think that it would be the rare R-rated movie (which anyone 17 and over can see and which those under 17 can see with an adult) that would fail this standard.         


October 11, 2007 | Permalink | Comments (0) | TrackBack (0)

"Inconsistent" Change: Louisiana's Erroneous Change to Its Rules on Prior Inconsistent Statements

A ruling in a case in Louisiana brings to light an interesting revision that Louisiana made to its Code of Evidence in 2004.  Austin "Trey" Bernard III goes on trial in November on charges of aggravated rape of a juvenile less than 12 years old.  Bernard is one of six members of the now-defunct Hosanna Church, which has been accused of abusing children as the part of an occult ritual.  In addition to the alleged victim at trial, a few other alleged victims made a half-dozen statements that Bernard sexually abused them, but apparently they now say that they were never abused.  In a pre-trial ruling, the judge found that these past accusations would be admissible should the alleged victims be called as witnesses. 

If this case were being tried in federal court or in (as far as I know) any other state court, these past statements could only be admissible under Rule 613 (or its state counterparts) to impeach the alleged victims' testimony and not to prove that Bernard actually abused the alleged victims.  Rule 801(d)(1)(A) allows prior inconsistent statements to be admissible to impeach a witness and to prove the truth of the matter asserted in the statement, but only when the prior statement was given at a trial, hearing, other proceeding, or desposition while under oath and subject to the penalty of perjury.

Furthermore, pursuant to the widely adopted opinion in United States v. Ince, 21 F.3d 576 (4th CIr. 1994), most courts would not allow the prosecutor to call these alleged victims, knowing that they would deny any abuse.  Instead, courts would find that the prosecutor was calling these witnesses solely so that he could get their prior inconsistent statements before the jury so that, despite an appropriate limiting instruction, the jury could consider them for the truth of what they assert -- that Bernard committed acts of sexual abuse.  Most courts would thus find the statements inadmissible as unduly prejudicial against the defendant.

In 2004, however, Louisiana amended its version of Rule 801(d)(1)(A) so that in criminal cases past inconsistent statements not given under oath are admissible not only to impeach the witness but also to prove the truth of the matter asserted in the statement. See State v. Rankin, 2007 WL 2713076 at *4 (L.App. 2 Cir. 2007).  Apparently, Louisiana amended this Rule based upon problems with noncooperative witnesses in cases of domestic violence. See id.

First, this change to the rule seems odd because the reason that basically every court finds that prior inconsistent statement not made under oath are inadmissible to prove the truth of what they assert is because the person making the statement could have been lying.  I don't see how Louisiana can change this part of its Evidence Code without reevaluation all of its other hearsay rules. 

Second, if Louisiana was specifically concerned with cases of domestic violence, (a) why did it not limit the change to domestic violence cases, and (b) why did it limit the change to criminal cases?  As far as I can tell, the changed rule applies to all criminal cases, so it is overinclusive in that prior inconsistent statements could come in for their truth in any criminal case.  Furthermore, domestic violence can come up in both criminal and civil trials, so the changed rule is underinclusive because it does not cover civil domestic violence cases.


October 11, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 10, 2007

Should Movie Studios "Lawyer Up?": The Implications of the MPAA Allowing Precedent in the Movie Rating Appeal Process

The Motion Picture Association of American (MPAA) created the movie ratings (G, PG, PG, PG-13, R, NC-17), and the MPAA-created Classification and Rating Administration (CARA) watches films and assigns one of the ratings to a film based upon the amount of sex, violence, language, etc. in it. 

Until earlier this year, filmmakers appealing the rating given to their film could not cite prior precedent.  In other words, a filmmaker seeking to have his film's rating changed from R to PG-13 could not cite to a prior film with a similar amount of sex/violence/language which was rated PG-13 as support for his argument.  The ban on precedent led many courts to determine that the MPAA ratings lacked any legal authority. 

For instance, in Motion Picture Association of American v. Specter, 315 F.Supp. 824 (E.D. Pa. 1970), the District Court for the Eastern District of Pennsylvania found that CARA had "no defined standards  or criteria against which to measure its ratings."  I went into an analysis of the flaws and history of the MPAA ratings in my article A Wolf in Sheep's Clothing, 6 Vand. J. Ent. L. & Prac. 265 (2004).

As noted, earlier this year, based upon attacks on the application of the MPAA ratings and the appeals process, the MPAA changed the rules and now allows filmmakers to cite precedent in appealing the ratings given to their films.  For me, this raises the question of whether lawyers will or should have a bigger role in the process. 

Obviously, the stakes are high.  Studies have found that PG-13 rated movies make significantly more money than R rated movies, and NC-17 rated movies are even more financially limited because thery are subject to stringent advertising restrictions (as are R-rated movies to a lesser degree) and certain theater chains won't show them.

Furthermore, it would seem that with the MPAA now allowing the use of precedent, movie studios would have more of an interest in having lawyers involved in appeals because the process now somewhat resembles the legal process.

Despite this fact, I'm not aware of any push to have lawyers (more) involved in the process.  In fact, when CARA recently saddled Ang Lee's "Lust, Caution" with an NC-17 rating, distributor Focus Features decided against appealing the rating. 

It seems to me that movie studios would be interested in spending a comparatively small amount of money to have an attorney challenge a rating when millions of dollars are potentially at stake. 


October 10, 2007 | Permalink | Comments (0) | TrackBack (0)

Eyes Wide Shut? Ill. Supreme Court Finds Frye Hearing Must Be Held Before HGN Test Results Are Admissible

The Horizontal Gaze Nystagmus (HGN) test has long been considered the most reliable way, short of blood or breath test, for the police to determine whether a person has been driving while under the influence.  We've all probably seen this method used in TV shows or movies:  the police officer places a pen about 10 inches in front of the driver's eyes, tells the driver to follow the pen with his eyes, and moves it from side to side.  The officer determines that the driver was under the unfluence if his pupils are unusually jerky.

In its recent opinion in People v. McKown, the Illinois Supreme Court called into question the admissibility of HGN test results.  At Joanne McKown's trial for driving under the influence, the state offered into evidence the results of her HGN test, and defense counsel claimed that the results should not be admissible until a Frye hearing was held to determine whether the HGN test is generally accepted as reliable in the scientific community (Illinois has not adopted the more recent Daubert test).

The trial court found the results admissible without a Frye hearing, and the appellate court affirmed; both took judicial notice of the general acceptance of the reliability of HGN test results based upon prior court decisions.  The Illinois Supreme Court, however, reversed, holding that a Frye hearing had to be held to determine whether there was general acceptance in the scientific community.

The Illinois Supreme Court found that up until 1992, most courts did indeed take judicial notice of the general acceptance of the reliability of HGN test results as an indicator of alcohol impairment.  It noted, however, that since cases in Pennsylvania and Kansas in 1992, which called into question the reliability of the test, a majority of courts have resolved the HGN issue only after at least a partial Frye hearing occured in their jurisdiction, with some finding the results admissible and others finding them to be inadmissible.  The Illinois Supreme Court thus remanded the case to the trial court.

I haven't done the research to determine the accuracy of the HGN test (according to one article, the National Highway Traffic Safety Administration says it is 77 percent accurate), so I'm not sure how accepted the test is in the scientific community.  I'm pretty sure, though, that most judges are similarly uncertain, and the precedent cited in McKown certainly appears divided.  Thus, it appears that the Illinois Supreme Court acted properly in finding that the trial court improperly took judicial notice, and it will be interesting and educational to see what the trial court determines after looking at the relevant research.


October 10, 2007 | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 9, 2007

Secondary Abuse? South Africa Might Change How Child Sexual Assault Victims Testify

Last week, I reported that Australia was amending its Evidence Code to allow child and sexual assault victims to give their testimony in narrative form.  Now, it appears that South Africa may be following suit.

According to The Mercury, three children's rights organisations are leading the fight against the country's Criminal Procedure Act, which forces child sexual assault victims to be subjected to cross-examination and face their attackers.  Apparently, this fight was started by Pretoria high Court Judge Eberhard Bertelsmann, after presiding over a case involving two men who had allegedly raped children.  Bertelsmann was concerned that subjecting child sexual assault victims to the adversarial process was not in their best interests, and apparently a case study by Children First has interesting results about the "secondary abuse" suffered by such children as a result of the adversarial judicial process.

As with the change in Australia, these potential changes should be interesting to track to see if similar changes could be adopted in the U.S. court system.


October 9, 2007 | Permalink | Comments (0) | TrackBack (0)

Unseen Terror: Former AUSA's Statement Should Be Admissible Against Him

In 2003, former Assistant United States Attorney Richard Convertino (along with former State Department secuirty officer Harry Raymond Smith III) won the United States' first post-9/11 terror trial when he convinced jurors that two North African immigrants were part of a terrorist conspiracy.

Now, the two men will soon be on trial in Federal District Court in Detroit on charges that during that case they obstructed justice and made materially false declarations (and were engaged in a conspiracy to commit those crimes).  The charges against the men stem from the allegation that they lied to cover up the existence of photographs and other evidence that would have weakened the case against the immigrants.

In a pre-trial motion last Friday, Convertino's lawyers sought to have the judge exclude a statement that Convertino allegedly made to his boss after the terror trial judge hearing the case against the immigrants ordered a review of the case.  Allegedly, Convertino told his boss that the review was terrible because it would overturn the case and investiagtors would "find stuff."

Convertono's lawyers are arguing that the alleged statement should be excluded because it constitutes hearsay and is unfairly prejudicial.  A quick look at the Federal Rules reveals that Convertino will have more difficulty winning this argument than the terror trial.

Federal Rule of Evidence 801(d)(2)(A) says that a when a party's own statement is offered against him at trial, it is an admission and not hearsay.  Convertino is the criminal defendant and thus a party, and his statement would clearly be offered against him to prove cognizance of his wrongdoing and the wrongdoing itself.

Furthermore, Federal Rule of Evidence 403 states that a judge may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.  Convertino's statement is highly probative because, as noted, it both proves cognizance of his wrongdoing and the wrongdoing itself.  Furthermore, while Convertino's statement is prejudicial to him, it is hard to say it is unfairly prejudicial because it is his own statement.  Therefore, his admission will almost certainly be admissible against him at trial.


October 9, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, October 8, 2007

(The Lack of) Appearances Can be Deceiving: Is the Failure to Appear for Court Dates Admissible under 608(b)?

In United States v. Williams, the Eighth Circuit Court of Appeals, inter alia, affirmed a District Court ruling precluding defense counsel from interrogating prosecution witness Levi Garcia about his alleged failure to appear for court dates.  After the ruling, the defendant was convicted of various metamphetamine-related offenses.

The defendant claimed that defense counsel should have been allowed to interrogate Garcia pursuant to Federal Rule of Evidence 608(b)(1), which allows for attorneys to cross-examine witnesses about specific acts of conduct by the witness which are probative of the witness' truthfulness or untruthfulness.  Without further analysis, the Eighth Circuit merely disagreed with defense cousnel and concluded that a failure to appear for a court date is not probative of truthfulness or untruthfulness.

Courts appear to be split about whether failure to appear for a court date is an act sufficiently probative of untruthfulness to allow cross-examination about it (Compare United State v. Colella, 1989 WL 89212 (E.D. Pa. 1989) with United States v. DiPaolo, 804 F.2d 225 (2nd Cir. 1986)).

I don't think that a per se rule is applicable in this context.  Instead, I think that when a judge is faced with such a scenario, he/she should adduce facts such as why the witness failed to appear for the prior court date, whether and when the witness was subpoenaed, whether the witness promised to a person or people that he/she would appear, etc.  This would allow the court to determine whether the failure to appear was a matter of untrustworthiness or based upon some other factor.


October 8, 2007 | Permalink | Comments (0) | TrackBack (0)

Nothing in common?: Idaho Court Makes Improper Ruling Under 404(b)

In State of Idaho v. Guy Michael Cook, the Idaho Court of Appeals vacated and remanded a trial court opinion convicting a defendant after allowing evidence of past bad character against the defendant pursuant to Idaho Rule of Evidence 404(b).  Idaho Rule of Evidence 404(b) is identical to its Federal counterpart in that, as an exception to the rule against character evidence, it allows the admission of evidence of other crimes, wrongs, or acts for purposes of proving purposes such as intent, motive, or (common) plan (or scheme)/modus operandi/"signature" crime.

The defendant was convicted of rape of a child under the age of eighteen years, delivery of metamphetamine, and possession of metamphetamine.  Essentially, it was alleged that in 2004, the defendant agve metamphetamines to a minor so that she would be unable to resist his sexual advances.

At trial, the trial court allowed the Grand Jury testimony of two other minors, who testified that in 2003 the defendant similarly gave them metamphetamines (presumably so that he could rape them as well, although their testimony is unclear from the court's opinion).  On appeal, the Idaho Court of Appeals vacated, finding, inter alia, that the Grand Jury testimony was inadmissible under 404(b).

The court found that there were more than just baseline similarities between the events, but it nonetheless found that the testimony of the two other minors was inadmissible because it concerned a distinct offense separate from the alleged offense at issue.  Citing to its prior opinion in State v. Bussard, 760 P.2d 1197, 1201 (Idaho.App. 1988), a case where the court found that evidence of a past burglary was inadmissible against a defendant charged with burglary, the court in Cook found that the Grand Jury testimony was inadmissible under 404(b) because "plan" evidence requires that the past act(s) and the present act be progressive stages of a single plan.

What the court in Cook failed to mention, however, was that after coming to this conclusion, the court in Bussard proceeded to consider whether the burglaries had a distinctively similar modus operandi.  The Cook decision was thus deficient because Idaho courts have found evidence admissible under 404(b) based upon a modus operandi theory in other cases (See, e.g., State v. Nichols, 862 P.2d 343 (Idaho.App. 1993)).

Of course, even if the court considered the modus operandi theory, it likely would not have found that the defendant's method of giving drugs to minors was so distinctive as to constitute a signature crime (Roman Polanski immediately jumps to my mind as someone who committed a similar crime).  But, the court should at least have addressed this theory.

It also bears noting that such evidence would have been admissible in a federal court case under Federal Rule of Evidence 414 (or in a state court case in a state adopting Rule 414). 


October 8, 2007 | Permalink | Comments (0) | TrackBack (0)

Sunday, October 7, 2007

Question-Proof Fence -- Sexual Assault Victims in Australia allowed to testify in narrative form

According to an article in the Sydney Morning Herald, Australia will amend its Evidence Act in cases involving child and sexual assault victims.  Pursuant to the changes, child and sexual assault victims will be able to give their testimony in narrative form, rather than pursuant to the traditional question and answer model.

The bases for the change are that (1) such victims are more comfortable giving their testimony in narrative form, and (2) allowing narrative testimony gives these victims ownership of their experience in court, rather than having it controlled by lawyers.

It will be interesting to track the results of this change.  Of course, a similar change in American law would face obstacles such as the challenge that it would deny defendants of their right to confront witnesses.


October 7, 2007 | Permalink | Comments (0) | TrackBack (0)