October 20, 2007
Molotov Cocktails and Rocks Behind Every Curtain: State's Attorney Tries To Introduce Character Evidence Against Motivational Speaker
Motivational speaker Ernest Garlington will soon be tried in Connecticut state court for allegedly ordering a "hit" on author Derek Hopson, the father of NBA and "He Got Game" star Ray Allen. The theory of the case is that Garlington was infuriated because Hopson was "messing" with Garlington's wife, who used to be married to Hopson; Garlington allegedly conspired with three other men to shoot Hopson outside a mental health clinic.
In an article discussing the upcoming case, the author references potentially admissible prior bad acts by Garlington against Hopson (such as choking and threatening him), but the author specifically highlights undercover video and audio recordings by detectives in which Garlington suggested to an ex-con that he burn down a building with a Molotov cocktail and shoot a woman in the buttocks. This incident is unrelated to the alleged plot to kill Hopson. According to the article, the recordings are part of alleged "uncharged misconduct" the prosecution wants admitted as evidence of a pattern of behavior.
According to the senior state's attorney, this "uncharged misconduct" is probative of the defendant's motive, intent, modus operandi, and to demonstrate a system of criminal activity. Setion 4-5(a) of the Connecticut Code of Evidence, like Federal Rule of Evidence 404(a), precludes the use of uncharged prior bad acts to prove that an individual has a propensity to act in a certain manner and thus acted in conformity with that propensity at the time in question (for instance, a man on trial for murder who once beat up a neighbor has a propensity to act violently and thus likely acted violently in killing the victim). At the same time, like Federal Rule of Evidence 404(b), Section 4-5(b) of the Connecticut Code of Evidence 4-5(b) allows the use of prior bad acts to prove other purposes such as motive and intent.
I don't see any conceivable theory under which the video and audio recordings could be admissible against Garlington. The proposed crime discussed in the recordings and the crime with which he is charged are factually distinct, meaning that modus operandi is not at issue. The proposed crime and the crime at issue are unrelated, so the proposed crime is irrelevant to motive. There's no issue with intent in the case. Instead, it seems clear to me that the senior state's attorney is trying to get the recordings into evidence to prove propensity/conformity, and the judge should rule against him.
October 19, 2007
Imbalanced Opinion: Tenth Circuit Misapplies 403 Balancing Test To Prior Conviction Under Rule 609
In an earlier blog entry, I noted that it appeared that courts pretty consistently exclude evidence based upon the evidence's prejudicial effect outweighing its probative value without making the required finding under Federal Rule of Evidence 403 that the evidence's prejudicial effect substantially outweighed its probative value. I then left open the question of whether courts err to an even greater degree when considering prior convictions under Federal Rule of Evidence 609, with its changes to the Rule 403 balancing test depending on whether the prior conviction/date of release is more than 10 years-old and whether the prior conviction was a conviction of the criminal accused or a conviction of some other witness/party.
Well, in my review of recent evidence cases, I found a concrete example of both a litigant and a court bungling the 609 analysis. At a Federal District Court trial in Colorado, Frederick Oluwole Solarin was convicted of armed bank robbery and using or carrying a firearm during and in relation to a crime of violence. Over defense counsel's objection, the prosecutor was allowed to introduce into evidence Solarin's 5 year-old conviction for aggravated robbery with intent to kill.
Because Solarin was the criminal accused, and because the date of his prior conviction (and date of release) was less than 10 years old, pursuant to Federal Rule of Evidence 609(a)(1), the prior conviction should have been admitted only if the district court determined that the conviction's probative value (in impeaching Solarin's testimony) outweighed its prejudicial effect.
Solarin's attorney recently appealed the conviction based in part on the improper introduction of this conviction, but he erroneously argued that the conviction was inadmissible under Rule 403 because its probative value was substantially outweighed by its prejudicial effect. As noted, under Rule 609(a)(1), all that defense counsel needed to prove was that the prior conviction's probative value did not outweigh its prejudicial effect.
The Tenth Circuit Court of Appeals, however, apparently followed the (il)logic of Solarin's attorney, concluding that the District Court properly allowed the prior conviction into evidence because while the conviction had little probative value, it also had little prejudicial effect. This conclusion makes it seem that the probative value of the conviction and its prejudicial effect were commensurate, meaning that the prior conviction should have been excluded under Rule 609(a)(1).
The Tenth Circuit and the District Court also ostensibly erred in finding that the conviction had little prejudicial effect. One of the major factors that courts consider in determining the prejudicial effect of prior convictions is the similarity between the prior conviction and the crime charged. See, e.g., United States v. Reece, 797 F.Supp. 843, 848 (D. Colo. 1992). Here, Solarin was charged with, inter alia, armed bank robbery, and his prior conviction was for aggravated robbery with intent to kill. Certainly, then, based upon this similarity, the prior conviction had more than a "little" prejudicial effect on Solarin.
(I also note that Solarin's prior conviction occurred when he was 16 years-old, which might have made the prior conviction a juvenile adjudication. In this event, Federal Rule of Evidence 609(d)'s stricter test for admissibility should have been applied. I can't tell from the court's opinion, however, whether this was a juvenile adjudication).
Psych-Out: Ohio Court Rules That Psychiatric Evaluation Is Inadmissible Hearsay
Gertrude Simpkins has been charged with the murder of her granddaughter in Ohio. Simpkins gave a video-recorded confession to police officers, and the court has ruled over her objection that this confession will be admissible at trial.
While talking with police officers, Simpkins indicated that she heard voices telling her to kill, that she was depressed, that she had not been sleeping, and that she had been eating very little. At a hearing in August, Simpkins sought to have her confession deemed inadmissible on the ground that it was not voluntarily given.
As support, she presented a written psychiatric evaluation, which stated that Simpkins had no prior encounters with law enforcement and that she was despondent and confused while waiving her Miranda rights. The court, however, ruled that the psychiatric evaluation constituted inadmissible hearsay.
In federal court, psychiatric reports are generally admissible as business records pursuant to Federal Rule of Evidence 803(6). See, e.g., Hodges v. Keane, 886 F.Supp. 352, 356 (S.D.N.Y. 1995). It appears, however, that while Ohio mostly codified this Federal Rule, its counterpart makes no express provision for the admissibility of opinions and diagnoses in medical or psychiatric records. See In re Brown, 1986 WL 13385 at *8 (Ohio App. 1986).
Nonetless, Ohio does allow for the admission of such records as exceptions to the rule of hearsay, but only when a strict, seven part test is satisfied. See Hytha v. Schwendeman, 320 N.E.2d 312 (Ohio APp. 1974). For me, the strangest factor is the second factor, which requires that the diagnosis must be the result of well-known objective testing and examining practices and procedures which are not of such a technical nature as to require cross-examination. It seems as if this factor will ensure that almost no psychiatric evaluations are admissible as business records because the testing done by psychiatrists is, by its nature, technical, thus requiring cross-examination.
October 18, 2007
Used to Love Her: Cop's Boasts Should Come Back To Haunt Him In Murder Trial
Pennsylvania Police Officer Jeff Dennis is on trial in state court for murder in the first degree on the ground that he allegedly shot his wife. If the prosecutor's opening statement is accurate, Dennis is guilty not only of the murder but also of the inability to keep his mouth shut.
According to the prosecutor, before the death of his wife, Dennis frequently bragged to people that he knew how to kill his wife with a bullet to the head while making it look like she pulled the trigger. Dennis' wife in fact did die from a bullet wound to the head. In opening statements, the prosecutor claimed that Dennis killed his wife because she was having an affair; defense counsel claimed that the wound was self-inflicted.
According to the prosecutor's opening statement, not only did Dennis brag about his "ability" before his wife's death, but he also wove nine different tales about his wife's shooting after her death. For instance, Dennis' wife was shot in the couple's bedroom, and, according to the prosecutor, Dennis told different people that when his wife was shot, he was in the bedroom, in the hallway outside the bedroom, and at work (only finding his wife dead when he returned home).
In his opening statement, defense counsel characterized this evidence as hearsay and vowed to give the jurors a roadmap around that hearsay. The Pennsylvania Rules of Evidence indicate that the jurors will have quite a bumpy road ahead of them.
The Pennsylvania Code of Evidence is structured differently than the Federal Rules of Evidence, but its Rule 803(25) is identical to the Federal Rule regarding the admissions of party-opponents (although it treats them as hearsay exceptions rather than admissible non-hearsay). Thus, under Rule 803(25), the statement of a party-opponent is an admission and admissible against him at trial. Here, Dennis' statements are the statements of the prosecutor's party opponent (the criminal defendant) and thus admissible when offered against him. Thus, jurors should be able to hear all of Dennis' boasts and ever-changing stories as the case proceeds.
Court Denies Bond Increase In Child Endangerment Case Despite Text Messages
Adrianna Mendietta is accused of leaving her two-year old daughter locked in a bathroom and has accordingly been charged with endangerment of a child and unlawful restraint and injury to a child. Police arrested Medietta in a motel last Thursday, and she has since been held on a $100,000 bond.
At a bond hearing in a Texas court on Tuesday, however, the prosecutor sought to have Mendietta's bond increased to $500,000 because she was a flight risk. The prosecutor claimed that Mendietta was at the motel because she was aware that the police were looking for her; as support for the argument, the prosecutor presented text messages from Mendietta to her husband which told him not to talk to police and advised him to stay away from her location and to avoid a possible trap.
Mendietta's attorney argued that a detective's testimony about these text messages was mostly hearsay and thus could not suport a bond increase. It appears that these arguments were at least partially accepted by the court, which denied the prosecutor's motion to increase Mendietta's bond.
The argument, however, makes no sense. The Texas Rules of Evidence, like the Federal Rules of Evidence, hold that statements by party opponents offered against them are admissions and not hearsay. Here, the prosecutor was clearly trying to introduce the statements (text messages) of a party opponent (Mendietta, the criminal defendant) against her. Thus, the text messages should have constituted admissions.
Even were this not the case, it appears that the prosecutor was not seeking to introduce the text messages to prove the truth of the matter asserted in them (that the husband should not talk to the police, etc.), but instead was offering them to prove that Mendietta knew that the police were looking for her. Thus, the text messages would not have constituted hearsay.
October 17, 2007
To Tell The Truth: Will fMRI Test Results Eventually Be Admissible In Court To Detect Lies?
The John D. and Catherine T. MacArthur Foundation has launched a $10 million project to bring lawyers, judges, philosophers, legal scholars, and scientists together to confront the issue of how breakthroughs in neuroscience can be used in the courtroom.
To me, the most intersting part of the article is the claim by at least two companies that they can use a type of brain scan called a fMRI (functional magnetic resonance imaging) to detect lies with greater accuracy than a polygraph. The article, however, also notes that there are studies indicating that brain sacns are not yet accurate enough to be used in legal situations.
Of course, the results of polygraph tests are generally inadmissible in American courts, so if the results of a new type of lie detector test are found admissible, it could completely overhaul the legal landscape, especially in criminal trials.
A brief search on Westlaw reveals that no state courts have considered fMRI test results in any context. A few federal courts, however, have considered fMRI test results.
In Entertainment Software Association v. Blagojevich, 404 F.Supp.2d 1051 (N.D. Ill. 2005), the court viewed with skepticism fMRI test results indicating the changes that occur in chilcren's brains when they view violence. I guess that only time (and maybe the Project) will tell whether fMRI test results will gain general acceptance in courts.
Mexican Standoff: Accused Border Patrol Agent Seeks to Have Witnesses Found Incompetent to Testify
U.S. Border Patrol Agent Nicholas Corbett is on trial in U.S. District Court in Tucson, Arizona. He's charged with second-degree murder, mansluaghter, and negligent homicide in connection with the death of Francisco Dominguez, a 22 year-old illegal immigrant from Mexico.
Corbett's attorneys have made a baffling motion seeking to preclude the testimony of three of Dominguez's relatives, who witnessed Dominguez's death and would testify that Corbett shot Dominguez and was not acting in self-defense.
According to Corbett's attorneys, Dominguez's relatives did not speak with U.S. authorities about the circumstances involved in the shooting until after they talked with a Mexican official, who told them that a civil lawsuit seeking monetary damages would be filed on their behalf against Corbett and the United States. The prosecutor claims that Dominguez's relatives actually spoke with a U.S. detective before speaking with the Mexican official.
Of course, the timing of their statements is important if defense counsel will try to impeach their testimony at trial by showing bias, but this is not the purpose of the motion. Instead, Corbett's attorneys are claiming that the contact with the Mexican official and his promises rendered Dominguez's relatives incompetent to testify because their testimony was irrevocably contaminated by statements made by the Mexican official.
Corbett's attorneys are either being disingenous in making their motion or misunderstanding the Federal Rules of Evidence. Defendants can challenge their identification by eyewitnesses based upon authorities using an unduly suggestive procedure, but in this case Corbett does not dispute that Dominguez' relatives identified Corbett as the shooter before talking with the Mexican official (the only question is whether Corbett was acting in self-defense).
Thus, the only challenge to the witness' competency could come under Federal Rules of Evidence 601-603. Federal Rule of Evidence 601 states that generally every person is competent to be a witness, Rule 602 states that lay witnesses must have personal knowledge to testify, and Rule 603 states that every witness must take the oath before testifying.
As the prosecutor has noted, very few witnesses are precluded from testifying based upon lack of competency. Those excluded typically include young children and incompetent individuals who, for instance, do not understand the difference between right and wrong, could not be subjected to meaningful cross-examination, etc. Because none of these factors is involved here, Corbett does not even have a colorable claim that the witnesses should be found incompetent to testify at trial.
October 16, 2007
Just Her Luck?: Will Lohan's suer be able to exclude CHiP report as hearsay?
Ray Ortega has sued Lindsay Lohan for crashing her car into his at Hollywood hot spot The Ivy. Lohan has counter-sued Ortega and claimed that the accident was not her fault. According to Lohan, she was driving down a street filled with paparazzi at the legal speed limit of 30 miles per hour when Ortega tried to make a U-turn; Lohan then crashed into Ortega when she couldn't stop in time. Ortega, meanwhile, claims that he has several eyewitnesses who will claim that Lohan was driving over 60 miles per hour and that she had drunk some alcohol before the accident.
The evidentiary issue revolves around a California Highway Patrol report which states that no alcohol was involved in the incident. According to Ortega's lawyer, however, this report constitutes hearsay. Unless there are facts of which I am not aware at play, however, I do not see how the report would constitute inadmissible hearsay.
Obviously, the report would be a statement offered by Lohan to prove the truth of the matter asserted -- that no alcohol was involved in the crash. At the same time, business records and public records (such as police reports) are admissible as exceptions to the rule against hearsay in civil trials in many circumstances. See Federeal Rules of Evidence 803(6) & (8). California appears to include both of these exceptions in Evidence Code Sections 1270-1272.
The main requirements of these exceptions are that the report was made in the regular course of business and that the report was made at or near the time of the act being reported. Police reports are prepared in the regular course of police business, and it appears that the police report was made soon after the accident.
The only way that I could see the report constituting inadmissible hearsay would be if the "no alcohol" comment was based upon the statement of someone such as a bystander. In that case, we would have "hearsay within hearsay," and the report (at least to the extent it contained hearsay) would be inadmissible. Barring that, however, the report should come into evidence in the unlikely event that the lawsuit is not settled before trial.
Though your brother's bound and gagged: Cook County court throws out murder confession made under Burge's reign
In what has been described as an unprecedented move, a Cook County judge ordered a new trial for James Andrews, who claimed that his confession was the result of torture at the hands of detectives working under former Chicago Police Commander John Burge.
In 1983, police brought Andrews in for questioning regarding a dog fight, and while being questioned, Andrews eventually confessed to murdering Floyd Jenkins and Keith Lewis. According to Andrews, he confessed because the detectives handcuffed him to a steel ring and punched and beat him with a flashlight.
A four year probe of police operations under Burge ended in July, 2006, with the report concluding that police officers under Burge had beaten and tortured subjects. Based upon this report, Judge Thomas Sumner ruled that a hearing had to be conducted to determine whether Andrews' confession should have been admitted at trial, and after the hearing, he ordered a new trial because Andrews' confession was the only signifcant evidence linking Andrews to the murders. Undoubtedly, this case will lead to other convicted felons challenging their convictions based upon similar claims.
This case calls to my mind John C. Tucker's excellent book, "Trial and Error: The Education of a Courtroom Laywer." In the book, Tucker, a former Chicago lawyer, describes a case he handled where a convicted felon claimed that his confession was the result of abusive tactics by police, and from what I remember, he lost although there were other felons making similar claims and there might have been a report on abusive police tactics. I'm not sure whether that confession was made under Burge's reign, but, again, I'm sure that Cook County courts will soon be flooded with similar challenges by defense counsel based upon this decision.
October 15, 2007
(Un)learned decision? Delaware Supreme Court reverses trial court's learned treatise ruling
In Berry v. Cardiology Consultants, P.A., the Delaware Supreme Court reviewed a trial court ruling allowing pages from a learned treatise into evidence as an exhibit. At trial, Anne Berry claimed that her husband died as the result of deficient care he received from Cardiology Consultants and Dr. Andrew Doorey.
Relying partially upon a set of guidelines that he published in a medical journal, the defendant's expert witness, Dr. Eric Prystowsky, testified that the defendants acted properly in performing atrial fibrillation treatment on Mr. Berry. Specifically, the guidelines contained an algorithm, and Dr. Prystowsky testified about the applicability of the algorithm to the atrial fibrillation treatment.
After this testimony, defense counsel sought, over plaintiff's objection, to have portions of the guidelines admitted into evidence. Delware Rule of Evidence 803(18) is identical to its federal counterpart in that it allows statements contained in, inter alia, published treatises to be read into evidence; however, those statements may not be received as exhibits.
The trial court partially granted defense counsel's motion and allowed four pages of the Guidlines -- consisting of the algorithm, charts, and explanatory text -- to be admitted as exhibits as demonstrative evidence that would better allow the jury to understand the doctor's technical testimony.
The Delaware Supreme Court reversed, concluding that the four pages constituted "text," which meant that they were inadmissible as exhibits pursuant to Rule 803(18). Presumably, according to the Court, charts and algorithms in learned treatises might be admissible under Rule 803(18) because they are not "text," but the explanatory text was, well, "text," and thus inadmissible as an exhibit under Rule 803(18). I'm not quite sure what distinction the Delaware distinction was trying to draw (Rule 803(18) does not contain the word "text"), and a quick review of Delaware case law reveals no prior Rule 803(18) cases dealing with the distinction between learned treatise "text" and "non-text."
The bigger problem, though, is that the Delaware Supreme Court failed to address the trial court's decision that the four pages were admissible as demonstrative evidence that could assist the jury in understanding the doctor's testimony. In its opinion, the trial court cited to cases from Tennessee and New York in which courts allowed parties to introduce pages from learned treatises as exhibits as demonstrative that would better allow the jury to understand the doctors' technical testimony. See Berry v. Cardiology Consultants, P.A., 909 A.2d 611, 617-18 (Del. Super. 2006).
The rule against hearsay only precludes a statement from being introduced to prove the truth of the matter asserted in the statement. Therefore, if pages from a learned treatise are not offered to prove the truth of the matter asserted in those pages but only as demonstrative evidence, Rule 803(18) would not even apply, and the trial court's ruling would be correct. I'm unconvinced that using pages from a learned treatise as demonstrative evidence means that a party is not using them to prove the truth of the matter asserted, but the Delaware Supreme Court clearly erred by not even addressing the basis upon which the trial court admitted the evidence.
A matter of (in)competence? Ohio Supreme Court reverses appellate court's hearsay decision
In State v. Muttart, the Supreme Court of Ohio reversed a decision by an Ohio appellate court excluding certain statements made by a child to health care professionals on the ground that the trial court failed to hold a competency hearing to determine whether the child was competent at the time the statement was made. Dennis Muttart had been convicted by the trial court of raping his 5 year-old daughter, and the sole evidence inculpating him were his daughter's statements to health care professionals in which she discussed the alleged rape.
Dennis Muttart then appealed to an Ohio appellate court, claiming that, with the exception of excited utterances, statements offered under exceptions to the rule against hearsay can only be admitted if it is determined that the person making the statement was competent at the time the statement was made. Because Ohio law presumes that a child under age 10 is not competent to testify at trial unless the court has established his/her competence through a hearing, and because no such competency hearing was held, the appellate court found the statements inadmissible and revesed.
The Ohio Supreme Court disagreed, noting that the case relied upon by Muttart and the appellate court, State v. Said, merely found that when a party seeks to introduce statements pursuant to Ohio Rule of Evidence 807 (similar to the federal residual or catch-all exception), a competency hearing must be held. The Court then noted that the evidence at issue was introduced pursuant to the rule holding admissible hearsay statements made for purposes of medical diagnosis or treatment. Compare Federal Rule of Evidence 803(4).
The Court then noted that the drafters of Ohio Rule of Evidence 807 acknowledged that statements admitted pursuant to Rule 807 are less reliable than statements admitted pursuant to Rule 803. The Court then concluded that a competency hearing is not required when statements are admitted pursuant to Rule 803(4) because there are two protections ensuring the reliability of statements made pursuant to 803(4).
The first is the selfish-motive doctrine. In other words, a person seeking medical treatment is unlikely to lie to a medical professional and risk a misdiagnosis or mistreatment. The second is the professional reliance factor. Under this factor, the ability of members of the medical profession to evaluate the accuracy of statements made to them is considered sufficient protection against contrived symptoms.
I'm not quite sure that the Ohio Supreme Court drew a sensical line between Rule 807 and Rule 803(4) when the statement at issue is made by a young child. For instance, while it is clear that an adult would be wary of lying to a medical professional based upon the risk of mistreatment/misdiagnosis, I don't think that it's nearly as clear that a 5 year-old child would understand the dangers of lying to a health care provider. That said, it appears that the Ohio appellate court made the more egregious error by applying an anlalysis performed under Rule 807 to Rule 803 without explaining the difference between the Rules.
October 14, 2007
3 Angry Men? Judge denies defense counsel's request to interview juror about e-mail
In July, former New Jersey Commerce, Economic Growth and Tourism chief of staff Lesly Devereaux was found guilty of improperly running her personal legal practice while working for the state.
After trial, however, one juror e-mailed the state to discuss (presumably improper) activities which allegedly occurred during jury deliberations. According to Devereaux's attorney, Jack Furlong, the activities alleged in this e-mail were similar to comments that were made by (1) a second juror to a member of Devereaux's family after trial and (2) a third juror made when he/she contacted Furlong's office after trial.
Furlong thus sought to interview the juror who sent the e-mail to determine whether the jury deliberations were tainted by possible prejudice or outside influence. Superior Court Judge Maryann Bielamowicz denied the request, finding that the information contained in the e-mail did not suggest an improper outside influence on the jury. Because the e-mail is under seal, its contents are unclear.
Federal Rule of Evidence 606(b) states that jurors may not testify as to any matter or statement occurring during jury deliberations unless (1) extraneous prejudicial information was brought before the jury, (2) any outside influence was improperly brought to bear on any juror, or (3) there was a mistake in enetring the veridct onto the verdict form.
Thus, after trial, a juror could testify, for instance, that a newspaper article discussing evidence excluded from the jury was brought into the jury room, that a juror was threatened by a party, or that the jury intended to award $30,000 to a civil plaintiff, but the number $50,000 was mistakenly entered into the verdict form. A juror might also be able to testify about, say, racial slurs used by jurors based upon Constitutional grounds. A juror, however, could not testify, for instance, that a juror was sick or drunk during deliberations, that the jury ignored jury instructions, or that the jury ignored limiting instructions.
New Jersey Rule of Evidence 606 merely states that a member of the jury may not testify before the jury on which the juror is serving. A review of New Jersey precedent, however, reveals that New Jersey courts have basically gone through the same analysis as federal courts in deterimining whether jurors can testify after trial about what happened during juror deliberations.
The fact that 3 jurors reached out after trial makes me think that the court's decision will be appealed, and it will be interesting to see whether the alleged misdeeds during deliberations are eventually revealed.