October 27, 2007
Crimson Hide?: Alabama Judge Finds Ray Keller's Character Is Not An Essential Element Of His Defamation Lawsuit Against The NCAA
The defamation trial between Ray Keller and the NCAA began this week in a courtroom in Jackson County, Alabama, but pursuant to the judge's odd order, jurors will not be able to hear evidence about Keller's background or reputation. Keller is an Alabama businessman and a former booster for the University of Alabama. In 2002, after an investigation into Alabama's football program, the NCAA Committee on Infractions issued a public report about a football recruiting scandal involving Alabama and Keller.
Alabama's football program was placed on probation, and Keller filed a lawsuit against the NCAA, claiming that the report constituted defamation of his character. Before trial, the NCAA sought to introduce evidence about Keller's background or reputation prior to when the NCAA report was issued. The judge decided that such evidence would not be admissible.
Without knowing the exact evidence that the NCAA sought to introduce, it is difficult to argue with the judge's ruling that Keller's prior "bad acts" were inadmissible because they were "too remote to be probative." What troubles me, though, is the judge's finding that the evidence was inadmissible because Keller's case was not a case "where the Plaintiff's character is an essential element of a claim or defense."
This language comes from Alabama Rule of Evidence 405(b), which is similar to Federal Rule of Evidence 405(b) in that it states that "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct." The judge thus apparently found that Keller's character was not an essential element of his defamation claim or the NCAA's defense of that claim.
This ruling is bizarre because it is well established in courts across the country "that the character of a plaintiff in a defamation case is at issue," fulfilling the essential element portion of Rule 405(b). World Wide Ass'n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1138 (10th Cir. 2006). The Supreme Court of Alabama is one of these courts following this general trend. See Ex parteHealthSouth Corp., 712 So.2d 1086, 1088-89 (Ala. 1997) (allowing discovery of the defendant's alleged prior bad acts pursuant to Alabama Rule of Evidence 405(b)). Furthermore, these holdings make perfect sense because truth is a complete defense in a suit for defamation.
Thus, unless there are factors at play of which I am unaware, the evidence proffered by the NCAA clearly met the "essential element" requirement of Rule 405(b), and the judge's decision conflicted with well-established precedent.
October 26, 2007
Article of Interest: Professor Mnookin Addresses the Interplay Between Crawford and Expert Evidence
Jennifer Mnookin, a Vice Dean and Professor of Law at the UCLA School of Law, has written a fascinating forthcoming article, "Expert Evidence and the Confrontation Clause After Crawford v. Washington," for a symposium dedicated to Crawford. This article is a must-read for professors as well as lawyers and judges as courts continue to grapple with how to apply this landmark decision.
In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant did not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.
Courts have had enough difficulty applying Crawford when the hearsay at issue is the statement of a lay witness. According to Professor Mnookin, they've struggled to an even greater degree with expert evidence, which, when done in connection with a criminal case, is normally made with the expectation that it will be used at trial. As Professor Mnookin notes, this has led and will lead to many problems under Crawford because (1) expert evidence is sometimes introduced through a certificate of analysis or its equivalent rather than live tstimony, and (2) experts sometimes want to testify about "testimonial" hearsay in the form of the information upon which they relied in foriming their conclusions.
Professor Mnookin then goes on to note how many courts have engaged in strained logic to try to allow such statements into evidence despite Crawford by arguing, for instance, (1) that the statements are not offered to prove the truth of the matter they assert and (2) that business records are per se non-testimonial. I think that she does a top notch job of shooting down these arguments and then presents several interesting about how to reconcile expert evidence and Crawford. I can't recommend the article more highly. I wrote Professor Mnookin about what led her to write the article, and she responded as follows:
"I became interested in the intersection between Crawford and Daubert in the course of researching a supplement to a chapter of a treatise for which I’m a co-author (The New Wigmore: Expert Evidence, with David Kaye & David Bernstein). I’m quite sure that when the Supreme Court decided in Crawford to rethink Confrontation Clause jurisprudence and come up with the rough contours of the category of the ‘testimonial,’ they didn’t have issues relating to expert evidence in mind. And yet, every bit as much as, say, interrogations by the police, forensic science evidence is generally produced with the strong and explicit expectation is that it will be used both for law enforcement purposes and, more specifically, as evidence introduced at trial if there is one. So it seemed to me that it would be hard to come up with a principled way to deem forensic science reports anything other than testimonial. As I began to look closely at the many cases wrestling with these questions, I was dismayed – not surprised, to be honest, but dismayed nonetheless – to see how many lower courts, mostly state but federal too, were doing anything, anything at all to try to avoid the conclusion that these kinds of evidence were testimonial. So I thought it would be worthwhile to take a close look at the variety of arguments these courts were making, to see if any of them actually came up with principled ways to avoid the conclusion that forensic science reports or certificates of analysis were testimonial. This piece was an interesting exercise for me – a lot of my scholarship is historical and genealogical, and this Article, by contrast, wrestles much more explicitly with an ongoing doctrinal problem and is aimed much more squarely at judges (not that they’ll necessarily pay attention – but I can hope, right?).
There’s enough variation in how the lower courts are handling these issues, and they have enough practical importance, that it would be terrific to see guidance emerge from the Supreme Court eventually - - though until now, they haven’t granted any of the several cert petitions in the area. When and if they do, it will be pretty interesting to see whether the Court is willing to follow through with the logical consequences of the category they invigorated, or if they don’t, whether they end up part of the way back to the sort of reliability-based framework that they were trying to leave behind. Of course, there’s a background question lurking in this area: to what extent can knowledge produced through scientific processes be understood differently from other kinds of evidence? Many courts want to put weight on this kind of distinction, suggesting that forensic science is different, because it’s more objective, or fact-based, or routinized, or whatnot, than other non-scientific kinds of proof that might be introduced without a testifying witness. My bottom line is that (1) these criteria all go to reliability, which Crawford supposedly took off the table as grounds for dispensing with the Confrontation right; and (2) even were we to allow ‘reliability’ back in as a legitimate criterion to some extent, we need to tread pretty carefully here, and we certainly shouldn’t just assume that forensic science is per se so reliable that Confrontation would obviously be superfluous or unhelpful."
Dead Man's Chest: New York Court of Appeals Will Hear Dead Man's Statute Appeal
Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate. The theory behind these statutes is that the interested person has reason to fabricate his testimony and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims. Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury.
Or, an attorney charged with taking money from his now deceased client could not testify that his client told him he could take the money as payment for his previous pro bono representation. This is the exact situation the New York Supreme Court, Appellate Division, First Judicial Department (one of New York's four intermediate appellate courts) faced when deciding whether to sanction Manhattan attorney Richard A. Zalk. (The New York Dead Man's Statute can be found at NY CPLR 4519).
Zalk represented Arthur and Ruth Gellman starting in 1970. Arthur died in 1990, and, according to Zalk, he continued to represent Ruth over the next 10 years, without billing her, in connection with her ownership of an apartment. In 2000, Ruth sold the apartment for $2 million, $200,000 of which was paid into Zalk's escrow account as a down payment.
After closing, Ruth died, and Zalk kept $172,151 in the escrow account for himself. He claimed that Ruth told him to keep this amount in the account as payment for his 10 years of unpaid legal services. The court found that pursuant to the New York Dead Man's Statute, Zalk could not testify to this alleged promise in the guilt phase of his disciplinary hearing, and it suspended Zalk from the practice of law for two years. See In re Zalk, 842 N.Y.S.2d 377 (N.Y.A.D. 1 Dept. 2007) (The court found that Zalk's testimony was "against" Ruth's estate even though her daughters were not parties to the hearing because (1) it went against their competing claim to the money, and (2) the court could have ordered that Zalk make monetary restitution to Ruth's daughters). The court did, however, find that Zalk could testify to this alleged promise in the phase of his hearing determining the nature of the discipline to be imposed on him. See id. at 383.
The New York Court of Appeals (the equivalent of most state's supreme courts) has now agreed to hear Zalk's appeal. I don't see how the New York Court of Appeals could change the evidentiary ruling.
Zalk was clearly an interested party as he stood to acquire $172,151 if Ruth's alleged promise was true. Furthermore, Ruth was clearly deceased at the time that Zalk wanted to testify. The reasoning behind the statute, protecting the deceased's estate from "plundering," was clearly at play in the case. And the court's argument about why Zalk's testimony went "against" Ruth's estate seems pretty persuasive. Therefore, under New York's Statute, Zalk was precluded from testifying.
The more interesting question for me is whether New York will follow the lead of most states and abolish its Dead Man's Statute. See Wesley P. Page, Dead Man Talking, 109 W. Va. L. Rev. 897, 898 (2007) (noting how most states have repealed their Dead Man's Statutes). The most recent example I have found involved Florida repealing it's Dead Man's Statute in the wake of the infamous Terri Schiavo case. Of course, it would be the New York legislature, and not the New York Court of Appeals, that would potentially make such a change.
October 25, 2007
Unsettling Decision: District Court Misapplies Rule 408 in Indeminifcation Decision
The District Court for the Western District of Kentucky recently made an inexplicable decision in Westlake Vinyls, Inc. v. Goodrich Corp., 2007 WL 3046519 (W.D. Ky. 2007). In Goodrich, Westlake Vinyls, Inc. sold property to Goodrich Corporation and agreed to indemnify Goodrich for any liability resulting from "remediation of any soil, surface water and/or groundwater resulting from or otherwise attributable to events occurring after the closing date...." Id. at *1.
When such liability arose, Goodrich sought to recover under this agreement, but Westlake claimed that any recovery Goodrich could receive should be reduced by the amount Goodrich recovered from its excess insurers. Westlake's argument is correct because Goodlake is not entitled to "double recovery."
The problem, however, is that Goodrich and some of its excess insurers could not agree on the amount of insurance proceeds Goodrich should recover, which led to settlement negotiations and eventual settlements. Thus, when Westlake tried to introduce evidence of these settlement negotiations and agreements to prove its "double recovery" claim, Goodrich objected that this evidence was inadmissible under Federal Rule of Evidence 408.
Federal Rule of Evidence 408 states that evidence of compromises, offers to compromise, and related statements are inadmissible when "offered to prove liability for, invalidity of, or amount of a claim that was disupted as to liability or amount...." The District Court somehow found the evidence at issue admissible despite this rule.
In its holding, the court stated, "Here, evidence that Goodrich recovered some of its insurance proceeds as a result of a settlement would not be introduced to prove that those insurers were liable to Goodrich or that Goodrich had a valid claim for the insurance proceeds. Instead, evidence of the settlements would be introduced merely to show the amount of insurance proceeds Goodrich has recovered, thus limiting any liability Westlake may owe to Goodrich..." Id. at *2 (emphasis added).
It almost seems as if the court read a redacted version of Rule 408 before reaching its decision. The court correctly noted that this was not a case where evidence of settlement negotiations was offered to prove liability for or invalidity of a claim that was disputed as to liability or amount. However, as the court itself noted, Westlake was using evidence of settlement of negotiations to prove the amount of a claim that was disputed as to liability or amount. Clearly, then, the evidence was covered by and should have been held inadmissible under Rule 408. This is not to say that Westlake was precluded from proving its "double recovery" claim; it simply could not rely on evidence of settlement negotiations to prove its claim.
Although it did not argue that this case was different than the typical case because a party (Westlake) was using evidence of settlement negotiations between the opposing party (Goodrich) and a third party (its excess insurers), perhaps the court relied upon these facts. As I noted in a blog post yesterday, however, there is no reason to treat these third party situations differently than the regular situations where both parties in a case were parties to the settlement negotiations.
(It's also noted that Federal Rule of Evidence 411, which excludes evidence of liability insurance, was not applicable here because Westlake was not using evidence of Goodrich's liability insurance to prove negilgence or otherwise wrongful conduct.).
Compromising Position: Ninth Circuit Finds Rule 408 Inapplicable When Proving Reasonable Apprehension
In Rhoades v. Avon Products, Inc., 2007 WL 2983757 (9th Cir. 2007), the Ninth Circuit Court of Appeals applied Federal Rule of Evidence 408 in a way in which I don't think it has ever been applied before. I think that its decision was correct.
In Avon, the plaintiff, Dean Rhoades, the owner of DermaNew, a new cosmetics company, attempted to register certain products and slogans (such as "If It Is Not DermaNew, It Is Not Personal Microdermabrasion"), with the Patent and Trademark Office. Avon, which distributes the ANEW skin care product line, then proceeded to challenge several of DermaNew's applications before the Trademark Trial and Appeal Board, file opposition proceedings, etc.
The two parties subsequently entered into settlement negotiations, which lasted more than four years. As these negotiations began to break down, Avon's counsel sent a letter to DermaNew. The letter promised that Avon would "initiate whatever additional proceedings or litigation is necessary to protect Avon's trademark rights." The letter noted that it was "written for settlement purposes only and shall not be admissible for any purpose in any legal proceeding."
DermaNew thereafter filed a complaint in California Federal District Court, seeking a declaratory judgment that its trademark applications do not infringe on Avon's. Avon then moved to dismiss the complaint based upon, inter alia, lack of subject matter jurisdiction on the ground that DermaNew failed to establish that it had a real and reasonable apprehension that it would be subject to liability if it continued to manufacture its product, a requirement before a party can bring an action for a judgment declaring that it is not infringing a trademark. Avon claimed that its counsel's letter to DermaNew was inadmissible to prove this apprehension under Federal Rule of Evidence 408.
Federal Rule of Evidence 408(a) states that evidence of compromises, offers to compromise, and related statements are inadmissible to prove liability for, invalidity of, or amount of a claim that was disputed as to liability or amount, or to impeach through a prior inconsistent statement or contradiction. Rule 408, however, goes on to state that evidence is admissible if offered for purposes not prohibited by 408(a). The Rule then lists as three illustrative examples: proving bias, negating a contention of undue delay, and proving an effort to obstruct a criminal investigation or prosecution.
Of course, proving reasonable apprehension is not one of these examples, but on appeal the Ninth Circuit correctly found that these examples are merely illustrative. The more important part of Rule 408 is that it states that evidence of compromises, etc. is admissible unless it is used for a purpose specifically exluded under 408(a). Thus, because DermaNew was not using the letter to prove the (in)validity of Avon's trademark claim or the amount it could or could not recover on its claim, the letter was admissible as not covered by 408(a), despite the alleged disclaimer included by Avon's counsel. While this is the first case I have seen where Rule 408 has been found inapplicable in this declaratory judgment situation, courts facing such situations in the future should apply the Ninth Circuit's analysis.
October 24, 2007
The Myth of Fingerprints, Part 2: Maryland Judge Primarily (and Wrongfully) Relies on Dissenting Opinion in Crisp case
I have now read the opinion of Judge Souder concluding that fingerprint analysis fails the Frye test for admissibility. It seems to me that the vast majority of Souder's analysis comes from the dissenting opinion in United States v. Crisp, 324 F.3d (4th Cir. 2003). Let's start with the majority opinion in the Crisp case.
Crisp was convicted of multiple crimes in connection with an armed bank robbery in Durham, North Carolina. He then appealed, claiming that (1) expert handwriting analysis and (2) forensic fingerprint analysis was inadmissible because it failed to satisfy the test laid out in Daubert v. Merrill Dow Pharmaceuticals, Inc. The majority concluded that both forms of evidence were admissible under Daubert, which requires that expert evidence be "the product of reliable principles and methods" or otherwise reliable.
Judge Michael dissented, arguing that the prosecution had not proven that the two types of analyses were reliable under Daubert. Judge Michael specifically noted, "I am not suggesting that fingerprint and handwriting evidence cannot be shown to satisfy Daubert. I am only making the point that the government did not establish in Crisp's case that this evidence is reliable. "
Judge Michael noted that simply because these forms of expert evidence were admissible under Frye did not automatically mean that they were admissible under "the more exacting analysis now required" under Daubert, which requires that expert evidence be "the product of reliable principles and methods" or otherwise reliable. The government needed to present evidence that fingerprint analyses were reliable, and it did not do so in Crisp. Judge Michael then proceeded to apply Daubert's more exacting analysis and find that the government had not proven that fingerprint and handwriting analyses satisfied the Daubert test.
Ostensibly, however, Judge Michael found that the government later did establish that fingerprint analyses satisfy Daubert, as he was part of the three judge panel in the per curiam deicsion in United States v. Gray, 85 Fed.Appx. 908 (4th Cir. 2004), which found that fingerprint analyses are admissible under Daubert.
Now, let's look at Judge Souder's opinion. The bulk of her opinion consists of cites to Judge Michael's dissenting opinion, where he questions the reliability of fingerprint analyses. Then, in the next sentence after one of these citations, she makes the assertion, without any authority, that the Frye standard is more stringent than the Daubert standard. This argument directly contradicts with Judge Michael's argument that Daubert's test is more stringent than Frye's test.
So, let's break down Judge Souder's opinion. She disagrees with the majority opinion in Crisp. She disagrees with Judge Michael's dissenting opinion in Crisp to the extent that it held that the Daubert test is stricter than the Frye test. Furthermore, she disagrees with Judge Michael's decision in Crisp to the extent that it implictly ackowledged that fingerprint analyses were admissible under Frye. And yet, Judge Michael's dissent in Crisp forms the centerpiece of her opinion. Simply put, her opinion is nonsensical.
Here is a PDF of the judge's decision.
UPDATE: A reader notes that Daubert can be applied more or less stringently than Frye. This is indeed correct, and some courts have in fact referred to Frye as a more rigorous test. See, e.g., Grant v. Boccia, 137 P.3d 176, 183 (Wash.App. Div. 3 2006). I wanted to clarify that my point was not that Judge Souder was acting nonsensically in holding that Frye was more stringent than Daubert or in citing to the portions of the Crisp dissent discussing the (un)reliability of fingerprint analyses. My point was that Souder acted nonsensically in cherrypicking certain portions of Judge Michael's dissent while (a) failing to mention his overall conclusions, which contradict her conclusion, and (b) including her claim about Frye being more stringent than Daubert in the middle of these citations without noting that her claim directly contradicts Judge Michael's comparison of the two tests.
The Great Compromise: Hawaii Court Resolves Circuit Split Over Whether Rule 408 Applies In Third Party Situations
The recent decision of the District Court for the District of Hawaii in McDevitt v. Guenther, 2007 WL 2121241 (D. Hawaii 2007) discusses and I think resolves an interesting circuit split under Federal Rule of Evidence 408. Rule 408 generally precludes the admission of evidence of compromises, offers to compromise, and related statements in federal cases to prove the validity, invalidity, or amount of a claim.
The first classic case under this Rule would involve a plaintiff being prevented from introducing the defendant's offer to pay the plaintiff a certain amount of money during failed settlement negotiations as evidence that the defendant knew that he was at fault and that the amount of money offered equaled the amount of the defendant's liability. The second classic case would involve the defendant being prevented from introducing evidence that he rejected the plaintiff's offer to settle a case for a small amount of money to show that that the plaintiff knew that he had a losing case (and that the defendant knew that he had a winning case).
The theories behind the Rule are (1) that parties might be making certain statements/offers in settlement negotiations to make a costly lawsuit go away, not because they believe the statements, and (2) that courts want to encourage settlements to avoid clogging courts with cases, and excluding statements made during these negotiations alows parties to speak openly during these negotiations without the fear that their words will later be disclosed in future cases.
Guenther, however, presented an atypical case in that the plaintiff, Timoth McDevitt, brought a lawsuit against the defendant, Lianne M. Guenther, claiming that she committed legal malpractice by failing to draft a proper prenuptual agreement, which meant that he had to pay more money to his wife upon their divorce than if they entered into a proper prenuptual agreement. The amount of damages he claimed was the difference between what he would have paid to his wife under the proposed prenuptual agreement and the amount he agreed to pay his wife after settlement negotiations (Guenther was not involved in the settlement negotiations).
The problem was that McDevitt was using evidence of a compromise with his wife to prove the amount of a claim, so under a literal reading of Rule 408, the evidence should have been excluded. According to the court in Guenther, however, "[c]ourts are split as to whether Rule 408 bars admission of evidence from a settlement between plaintiff and a third party to calculate a claim for damages against a defendant who is not a party to the original suit in which the settlement occurred." The Hawaii court sided with those courts finding such evidence inadmissible; I agree.
The Advisory Committee Notes to Rule 408 when it was first proposed in 1972, combined with the Advistory Committee Notes to Rule 408 when it was amended in 2006, clearly support the court's position. In 1972, after discussing the 2 theories behind the Rule, the Advisory Committee noted: "While the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be taken with respect to completed compromises when offered against a party thereto. This latter situation will not, of course, ordinarily occur except when a party to the present litigation has compromised with a third person."
In 2006, the Advisory Committee noted that the amendment it made to Rule 408 "makes clear that Rule 408 excludes compromise evidence even when a party seeks to admit its own settlement offer or statements made in settlement negotiations." This is beacuse Rule 408 protects both parties to the negotiation, so one party to the negotiations cannoy unilaterally waive the protections of Rule 408.
Thus, the 1972 Notes tell us that Rule 408 covers "third party" situations like the fact pattern in Guenther, and the 2006 Notes tell us that Rule 408 is applicable in this "third party" situation, regardless of whether the party to the settement negotiations is offering the evidence or having the evidence offered against him. The way I see it, the circuit split has been resolved, and all federal courts in the future should act in conformity with the Guenther opinion.
The Myth of Fingerprints: Maryland Judge Rules That Fingerprint Evidence Fails the Frye Test
Baltimore County Judge Susan Souder has made a landmark ruling in finding the prosecution's fingerprint evidence inadmissible in a capital murder case because it failed to meet the standard for admissibility laid out in Frye v. United States, which looks at whether the test at issue is generally accepted as reliable in the scientific community. It should be noted that in federal courts and in many state courts, the test laid out in Frye has been replaced by the test laid out in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
According to some sources, Souder is the first Maryland judge to find fingerprint evidence inadmissible. She did so in a 32-page ruling, relying heavily on an Oregon case in which a lawyer was wrongfully linked to the 2004 Madrid train robbings through fingerprint evidence. Professor David Faigman seems to have the best quote on the decision so far, noting that before DNA evidence, fingerprints were considered the gold standard of forensic science; according to Faigman, Souder is saying that the emperor has no clothes, which is troublesome for other forensic evidence because it is considered "less reliable" evidence than fingerprint evidence. Thus, not only should this decision lead to fingerprint evidence being challenged; it also means that almost all forensic evidence can be challenged.
I'll have more on this landmark decision after I read the opinion.
October 23, 2007
Capturing The Friedmans, The Aftermath: Hypnosis Evidence Should Not Overturn Convictions
A few years ago, some of you might have watched Andrew Jarecki's Academy Award nominated documentary, "Capturing the Friedmans." Jarecki initially wanted to make a documentary about children's birthday party entertainers in New York, including David Friedman. Jarecki, however, learned that David's brother, Jesse, and his father, Arnold, had been convicted of sex crimes against children whom they taught in computer classes out of their Long Island home, and decided to shift the focus of his documentary to them.
Arnold Friedman committed suicide in jail, but Jesse, who pleaded guilty as a teenager to 243 counts of sex crimes against children after several alleged victims gave grand jury testimony, served 13 years. Based upon the documentary, Jesse has now sought to have his convictions overturned and clear his family name, a la Randall Adams in the wake of Errol Morris' documentary "The Thin Blue Line."
It is extremely unlikely, however, that he was have similar success. In Jarecki's documentary, a 24 year-old man stated that he remembered being abused by the Friedmans only after being hypnotized. Upon seeing the doc, Jesse and his lawyer investigated and determined that several other youths making abuse allegations against the Friedmans only made these allegations after being hypnotized. Hypnotically refreshed testimony is inadmissible in New York courts.
It seems that Jesse could raise two arguments, both of which would fail. First, Jesse could claim that the fact that these individuals were hypnotized was material, exculpatory evidence under Brady v. Maryland, which prosecutors failed to disclose before their Grand Jury testimony, necessitating a new trial. This argument would fail because in United States v. Williams, 504 U.S. 36 (1992), the Supreme Court found that Brady evidence does not need to be disclosed at the Grand Jury stage.
Jesse could also argue that his confession was not "voluntary" because it was given without him knowing that the alleged victim's statements against him would be inadmissible at trial. This argument will also fail because New York courts, like other courts, have held that a confession is not rendered involuntary simply because the police or or others procure it through inadmissible evidence such as polygraoh results; in fact, the police can even procure a confession based upon deceptive or false statements as long as they are not fundamentally unfair. See, e.g., People v. Garcia, 284 A.D.2d 106, 107 (N.Y.A.D. 1 Dept. 2001).
You Wouldn't Like Me When I'm Angry: West Virginia Court Will Likely Exclude Character Evidence In Ex-Attorney Murder Case
Stephen R. Fielder, previously a West Virginia lawyer, has been charged with murdering his ex-wife. His ex-wife's body was found dismembered into parts that were stuffed into several suitcases by a creek.
Fielder is trying to raise a diminished capacity defense based upon the claim that he has damage to his thalmus as the result of several strokes he suffered. On the other hand, the prosecutor expects to request that past examples of Stephen Fielder's alleged "explosive temper" be admissible at trial.
Fielder's attempted claim has a much greater chance of success than does the prosecutor's request. Like Federal Rule of Evidence 404, under West Virginia Rule of Evidence 404, character evidence is generally inadmissible to prove that a person had a propensity to act in a certain manner and that he/she acted in conformity with that propensity at the time in question (e.g., Fielder had a propensity to get extremely angry and thus likely acted in conformity with his propensity for getting extremely angry when killing his wife).
As under the Federal Rules, Rule 404(a) of the West Virginia Code of Evidence does allow a criminal defendant to open up the door and present evidence of his good character (e.g., Fielder could present evidence that he is a non-violent person), and then the prosecutor could present evidence of his bad character. But before the prosecutor can present bad character evidence, the defendant has to present good character evidence.
Furthermore, even were character evidence to come in through this Rule (there's no indication that Fielder will present good character evidence), Rule 405(a) of the West Virginia Code of Evidence (like its fedral counterpart) only allows character to be proven through opinion and reputation evidence (e.g., a neighbor testifying (a) that in his opinion he thinks that Fielder is violent/non-violent, or (b) that Fielder has a reputation in the community for being violent/non-violent).
The "past acts" claimed by the prosecutor would thus be an impermissible form of character evidence in this case.
October 22, 2007
Beyond Therapy: Court Finds Police Violation Of Court Order Renders Confession Inadmissible
Allen R. Johnson has been aquitted by a Missouri court of charges that he molested his granddaughter after the judge ruled that his confession was inadmissible against him at trial. The 71 year-old Johnson reportedly admitted to sheriff's investigators that he touched his granddaughter's "private parts" and that he received sexual gratification from her touch.
The judge ruled that the confession was inadmissible because it was given at a time when, pursuant to a court order that the police disobeyed, Johnson should have been en route to the Mid-Missouri Mental Health Center in Columbia. Johnson was then acquitted after the jury received only the alleged victim's testimony and no physical evidence.
A party in Missouri can request that the judge hearing a case issue written findings, but such a request was not made here, so the grounds upon which the judge ruled are unclear. Both parties agreed that they could find no prior cases with remotely similar facts to the case at issue.
After a brief search through Westlaw, I also found no similar cases. Confessions are generally found to be admissible as long as, considering the "totality of the circumstances," they are voluntarily made, and they are inadmissible if they are involuntarily made based upon, inter alia, overbearing coercion or police abuse.
Of course, if the mental health center found that Johnson was mentally incompetent, his confession likely would have been "involuntary" and inadmissible. But I'm not sure that his confession should have been rendered involuntary simply because police failed to comply with a court order to send him to a mental health center (assuming that he was later found competent at the center). Unfortunately, without written findings, it is impossible to determine the totality of the circumstances surrounding the confession and thus the validity or invalidity of the court's ruling.
Penn State Rape Case Reveals Penn's Rape Shield Law Is Stricter Than Federal Law
Penn State running back Austin Scott is charged with raping a 22 year-old fellow student. A newspaper recently published a story, which indicated that around four years ago, Scott's accuser made similar allegations against a student at Moravian College in Bethlehem, Pennsylvania. The student-defendant in that case was found "not guilty" of rape, and the jury deadlocked on lesser charges (there was no re-trial).
Scott's attorney has claimed that this evidence of the accuser's "troubled past" will be admissible at trial as it goes to her credibility. I don't see how Scott's attorney could be correct.
In federal cases involving sexual misconduct, Federal Rule of Evidence 412, the "rape shield" law, prevents evidence that proves that the alleged victim engaged in other sexual behavior and evidence that proves the alleged victim's sexual predisposition. In criminal sexual misconduct cases, there are exceptions that apply when (A) someone other than the accused is alleged to be the source of the alleged victim's injuries, etc., (B) the prior sexual acts were between the accused and the alleged victim, and consent is at issue, or (C) the evidence's exclusion would violate the accused's Constitutional rights.
Pennsylvania, however, has not adopted Rule 412. Instead, Pa. C.S. Section 3104 is similar to the federal rape shield law in terms of excluding evidence, but it only has one exception, exception (B) above. Thus, the Pennsylvania rule ostensibly excludes more evidence than the federal rule. And because the alleged past sexual act at issue did not involve the accused, it would be inadmissible at trial.
UPDATE: While Section 3104 does not state the other 2 exceptions, I have found them both applied in Pennsylvania case law. Commonwealth v. Fernsler, 715 A.2d 435 (Pa.Super. 1998), notes that appellate courts in Pennsylvania have carved out an exception to its rape shield law when exclusion of evidence would violate the defendant's rights under the Confrontation Clause. And in Commonwealth v. Stansbury, 640 A.2d 493 (Pa. Super. 1994), the court found that evidence that someone other than the accused was responsible for the alleged victim's injuries, etc. can be admissible as an exception, but only when a strict test (above and beyond the federal test) is satisfied.
October 21, 2007
Polygraph Results Unlikely To Form Basis For Brady Violation in Pennsylvania Case
Calvin Harris was convicted of murdering his wife Michele in June in Pennsylvania. Since this conviction, there have been several twists and turns in the case, including a farmer, Kevin Tubbs, coming forward and claiming that he saw Michele Harris with another man well after police allege that Calvin Harris killed her and disposed of her body.
There are plenty of reasons to question Tubbs' testimony, including his wife's recent allegation that Tubbs expected to be paid in exchange for his testimony. What interests me, however, is how Tubbs' testimony relates to potentially exculpatory evidence that the prosecution failed to disclose to defense counsel before trial.
The police conducted polygraph tests on several individuals, including Stacy W. Stewart, when investigating Michele Harris' death, but Stewart was allegedly eliminated as a suspect early in the investigation. The police did not disclose the fact that they tested Stewart to defense counsel before trial; instead, defense counsel only learned of the test when talking with a newspaper reporter after trial (according to Stewart's mother, Stewart passed the polygraph test).
What is interesting about Tubbs' claim is that the man he claimed was with Michele Harris after her alleged death fits Stewart's description. Defense counsel has thus claimed that a new trial is warranted because the polygraph test results had to be disclosed as "material" evidence under Brady v. Maryland.
The problem that defense counsel faces is that polygraph test results are generally inadmissible. Furthermore, since the Supreme Court's decision in Wood v. Bartholomew, 516 U.S. 1 (1995), courts have split as to whether inadmissible evidence can ever form the basis for a Brady violation. And in Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005), the Supeme Court of Pennsylvania joined the ranks of courts finding that "inadmissible evidence cannot be the basis for a Brady violation."
As I've argued before, I think that courts coming to this conclusion are acting improperly. Instead, I think that inadmissible evidence can be "material" and constitute Brady evidence either when it could be used at trial (for instance, to impeach a witness) or when it could directy lead to admissible evidence (defense counsel could have interviewed Stewart).