November 10, 2007
Navy Doctor Found Guilty After Military Judge's Homophobic and Indefensible Ruling
I've written previously on October 3 and November 1 about the Navy doctor on trial for allegedly secretly taping midshipmen having sex. As I noted, in the case, the military judge made the homophobic and legally erroneous decision to allow into evidence 2,100 thousand pictures of homosexual erotica found on the doctor's home computer to prove that the doctor had a need to view young, athletic males engaged in sex. The judge's decision is uttely lacking in any legal support because the evidence at issue is clearly inadmissible under the ban on character evidence.
Well, yesterday, the Navy doctor was sentenced to 46 months in prison after the military jury hearing the case found him guilty of the secret videotaping. The doctor's lawyer has vowed to appeal the sentence on the ground that the pornography found on the doctor's computer was irrelevant and inadmissible.
I often challenge the evidentiary rulings made by judges, but it is frequently understandable that they will make mistakes. That said, the military judge in the case, Steven F. Day, should be ashamed of his actions, and the Navy as a whole should be embarassed by this decision. The Navy doctor in this case may very well be guilty of the crimes with which he is charged, but there was absolutely no justification for the judge's evidentiary ruling.
Call the Doctor?: Niagra County to Decide Whether to Admit Sexual Abuse Evidence in Doctor's Trial
Dr. David Plache is on trial in Niagra County Court in New York, defending charges that he sexually abused at least three young patients. Prosecutor Richard Zucco has sought to introduce evidence at Plache's trial that he engaged in "strikingly similar behavior" with at least eight other young patients. According to the prosecutor, this evidence would show (1) that the conduct at issue was intentional and neither inadvertent nor medically necessary, and (2) that Plache had an abnormal interest in children.
Plache's attorney's response is that Plache is not claiming that he performed the acts at issue based upon inadvertence or medical necessity; instead, he's claiming that the acts alleged by the patients never took place. His argument is that the acts alleged in the indictment are so bad, there could be no medical justification for them, so the evidence of alleged prior acts of abuse would not be needed to prove intent.
It's difficult to say how the issue will be resolved without seeing the acts alleged in the indictment, but the controlling case here is People v. Molineux, 61 N.E. 286 (N.Y. 1901), where the Court of Appeals of New York found that when the character of an act precludes the possibility of its being innocently done and a felonious intent may be inferred, evidence of other similar crimes is inadmissible to prove intent.
Thus, if the acts at issue were arguably properly performed medical procedures with, say, inadvertent, improper touching, the prosecutor would have the right to show prior acts of sexual abuse by Dr. Plache to prove that the supposedly inadvertent touching was in fact intentional. If, however, as Dr. Plache argues, the acts at issues did not resemble any accepted medical procedure and were instead clear acts of sexual abuse, the prosecutor would be unable to introduce evidence of prior acts of abuse to prove intent because the only relevant question would be whether the alleged acts of abuse in fact occurred, not whether they occurred but were unintentional.
November 9, 2007
Defiance, Ohio?: James Stahl Rape Trial to Begin After Controversial Crawford Ruling
On Monday, the trial of James G. Stahl, who is accused of raping Ann Mazurek, is scheduled to begin in Summit County, Ohio. Pursuant to a 4-3 decision of the Supreme Court of Ohio last year, jurors will be entitled to hear the testimony of Jennifer Markowitz, a nurse practitioner and coordinator of the Developing Options for Violent Emergencies (D.O.V.E.) unit at St. Thomas Hospital. Markowitz will testify about what Mazurek, who has since died from a seizure, told her about the alleged rape by Stahl, her former boss.
The problem faced by the Surpeme Court of Ohio in The State of Ohio v. Stahl was that 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 does 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.
Because the defendant was not able to cross-examine Markowitz, the Supreme Court of Ohio had to determine whether Markowitz's statements to the nurse were "testimonial." Here are the facts surrounding the statements:
-Mazurek first went to Officer Amy Ellis of the Richfield Police Department and recounted the details of the alleged rape;
-Ellis then transported Mazurek to the St. Thomas Hospital, where she signed a "DOVE Program Consent for Forensic Exam and Release of Evidence" form, which authorized the release of, inter alia, evidence and information from the nurse's examination to a law enforcement agency for use only in the investigation and prosecution of this crime;
-Ellis then remained in the room while Mazurek gave her statements to Markowitz, although she did not participate in taking Mazurek's statements or examining her.
In finding that Mazurek's statements to Markowitz were not "testimonial," the Supreme Court of Ohio made several findings. Some of the major ones include:
-the finding that Mazurek's statements were not "testimoninal" because her primary purpose in making the statements was to receive proper medical treatment and not to assist in a criminal prosecution; and
-the finding that the consent form that Mazurek signed did not specifically indicate that her "statements" could be used in a subsequent prosecution. Thus, according to the court, the form could only create in Mazurek a reasonable belief that any physical evidence obtained by the nurse and not any statements that she made could be used in a subsequent prosecution.
The majority noted that in Crawford the Supreme Court found that the term "testimonial" statements at a minimum includes prior testimony at trials or hearings and statements made during police interrogations, and based upon the findings above decided not to find that the term also included Mazurek's statements.
Meanwhile, the dissenting opinion found, inter alia, that
-the consent form gave Mazurek the reasonable expectation that her statements could be used in a subsequent criminal prosecution;
-the primary purpose of D.O.V.E. and thus Mazurek's statements to Markowitz was the collection of evidence, not medical treatment; and,
-Markowitz was in effect an agent of the police based upon Ellis' presence while Mazurek made her statements.
The Crawford decision is so confusing and divisive that I won't even attempt to argue that the majority or the dissent in the Stahl case was correct on the Confrontation Clause issue. What is strange to me, however, is that the Supreme Court of Ohio found that Markowitz could testify about the statements that Mazurek made to her not only about the alleged rape, but also about the identity of the rapist.
Pursuant to Federal Rule of Evidence 803(4) and state counterparts, statements made for the purposes of medical treatment or diagnosis are admissible as an exception to the rule against hearsay. However, while statements about the general cause of an injury (such as rape, assault, etc.) are generally admissible under this exception, statements about the identity of the alleged assailant are almost never admissible. See, e.g., United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980).
One of these exceptions that some courts apply exists in domestic abuse cases such as cases where a child is claiming sexual abuse at the hands of a parent because part of the treatment of that child would involve having them separated from the abusive parent. See, e.g., State v. Brown, 746 So.2d 643, 648 (La.App. 4 Cir. 1999) In rape cases where this or a similar fact is not involved, however, courts generally find that the identity of the alleged rapist is inadmissible. See, e.g., State v. True, 438 A.2d 460, 466-67 (Me. 1981). Thus, I don't see how Mazurek's statements about the identity of her alleged rapists should have been held admissible.
Did Tyson Provide What Their Employees' Families Deserved? Judge to Make 2 Key Expert Witness Rulings
Tyson Foods Inc. is currently defending charges in federal court that it depressed wages at eight plants by hiring illegal aliens. The former Tyson employees seeking damages for depressed wages have sought to introduce the testimony of two expert witnesses, which should lead to some interesting rulings.
First, the plaintiffs seek to have economist George Borjas testify about a report he prepared, which concluded that "Tyson pays lower wages than what other unskilled workers get in comparable labor markets." Tyson has raised a few challenges to this report, including the argument that Borjas compared Tyson's wages to statewide wages and did not compare them to the wages in the areas immediately surrounding Tyson's plants in cities such as Ashland, Alabama, Corydon, Indiana, Center, Texas and Glen Allen, Virginia.
Second, the plaintiffs seek to have retired federal immigration agent Michael Cutler testify that Tyson officials should have known that many of its workers were not legal because they could not speak English. Tyson has countered that it could have concluded that these workers were permanent residents, first generation citizens, naturalized, etc.
Because this case is being heard in federal court, the judge must decide whether this evidence is admissible in light of Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), where the Court found that before admitting expert evidence, a judge must perform a preliminary assessment to determine whether the methodology used by the exprt is svalid and whether it can properly be applied to the facts at issue. Furthermore, for expert evidence to be admissible, pursuant to Federal Rule of Evidence 702, it must be able to assist the trier of fact in determining a fact in issue.
Without seeing Borjas' report, it is difficult to say whether it is "valid," but if Tyson's allegations are correct, the report would seem to be misleading. A quick internet search shows, for instance, that the average salary for jobs in Center, Texas is $21,454. Meanwhile, the median salary across the entire state is Texas is $56,235. Furthermore, with all of the controversies raging about illegal immigration, the judge's conclusion about whether experts can testify that employers should know that employees who don't speak English are likely illegal aliens could have wide ranging ramifications in later lawsuits.
Clearly the issues are not clear cut because while there were indications that these issues might have been resolved as early as yesterday, the judge eventually continued the Daubert hearing until next month
November 8, 2007
Don't Stand So Close to Me: Comparing Arkansas' "Pedophile Exception" with the Federal Rules
I learned through the Court of Appeals of Arkansas' recent decision in Pitts v. State, 2007 WL 3171942 (Ark.App. 2007) that Arkansas has a "pedophile exception" to the general rule prohibiting the use of character evidence to prove that an individual has a propensity to act in a certain manner and acted in conformity with that propensity at the time of the alleged crime.
Federal Rules of Evidence 413-415 allow for evidence of a defendant's past sexual assaults and acts of child molestation to prove that the defendant did, in fact, commit the sexual assault or act of 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 the Act was submitted for public comments.
Arkansas, however, has not adopted Rules 413-415, and it appears that its "pedohile exception" is different from these Federal Rules in at least 2 regards. According to Kassandra M. Bentley's case note, "Lost or Just Bewildered?" 59 Ark. L. Rev. 917, 936 (2007), Arkansas' "pedophile exception" is more limited than the Federal Rules "because it requires the prior act to be helpful in showing a proclivity toward a specific kind of act with a particular class of person with whom the defendant has an intimate relationship." Thus, for instance, if a defendant in Arkansas were on trial for drugging and engaging in intercourse with a teenager, the prosecutor would likely be unable to introduce evidence that he molested a 7 year-old he was babysitting because the prior act would not show his proclivity toward a specific kind of act with a particular class of person. Federal Rule of Evidence 414, however, has no such limitation, and thus this evidence would likely be admissible were the case heard in a state adopting this Federal Rule.
The second distinction, which makes Arkansas' exception broader than the Federal Rules, is that Federal Rules of Evidence 413-415 only allow for the admission of conduct that constitutes a crime of sexual assault or child molestation to prove that a defendant committed the sexual crime with which he is charged. Under Arkansas' "pedophile exception," however, evidence of a past act that did not constitute a crime can be admissible.
Thus, for instance, in Garner v. State, 101 S.W.3d 857 (Ark.App. 2003), a high school teacher was accused of trying to force himself on some of his female students. The Court of Appeals of Arkansas determined that under the state's "pedophile exception," the prosecutor properly introduced the testimony not only of students claiming that the teacher previously sexually assaulted them, but also, inter alia, the testimony of a former student that the teacher used to stare at her, tell her that she had a nice body, and make other inappropriate comments. Under Federal Rules of Evidence 413-415, only the testimony about the past sexual assaults would have been admissible.
To me, Arkansas' rule seems better than the new Federal Rules, to a large degree because it it appears more consistent with Federal Rule of Evidence 404(b). Rule 404(b) allows evidence of other crimes, wrongs, or acts to be admitted to prove that a defendant has a common plan or scheme or modus operandi for committing crimes. In essence, Arkansas' "pedophile exception" allows evidence under this same modus operandi theory while Federal Rules of Evidence 413-415 allow in evidence of past sexual acts that bear little relation to the crime with which the defendant is charged.
The Smoking Gun: William Gregory's Jailhouse Statements Should Be Admissible in his Murder Trial
William Gregory has been charged with murdering the mother of his child and her boyfriend and pleaded not guilty this Thursday. Investigators allegedly detected blood on one of Gregory's sneakers after the two victims were found with gunshot wounds to the head, and they claim that one of the fingerprints found on a 12-gauge shotgun found at the murder scene belonged to Gregory.
The most controversial piece of evidence, however, is a statement another inmate heard Gregory make while he was in jail before the murders on an earlier, unrelated charge. A little over a month before the murders, Gregory was arrested after a fight and received a letter from Skylar Meekins, the mother of his child, telling him that she no longer wanted to date him unless he got his act together. After Gregory received this letter, another inmate allegedly heard Gregory threaten to kill Meekins, saying "he was going to shoot her in the head." Two days after Gregory was released from jail, Meekins started dating Daniel Dyer, the other victim in the case.
Gregory's public defender has claimed that the other inmate should not be able to testify about Gregory's threat because such testimony would constitute hearsay. Florida Evidence Code Section 90.803(18)(a), however, indicates that statements made by a party and offered against him is an admission, an exception to the rule against hearsay. Thus, for instance, in State v. Rigdon, 621 So.2d 475 (Fla. App. 4 Dist. 1993), the defendant was charged with attempted murder, and the court properly allowed his wife to testify that approximately six weeks before the incident at issue he said once or twice that he was going to shoot her, their baby, and himself to put them all out of their misery because it constituted an admission.
The same analysis applies here and should ensure that the court is able to hear Gregory's threats.
November 7, 2007
Hiding the Ball: Tim Masters Presents Brady Claims in Peggy Hettrick Murder Case
In 1999, Tim Masters was convicted of murder in connection with the stabbing death of Peggy Hettrick in 1987. Masters, who was 15 years-old at the time of the murder, has now made a bid for a new trial, claiming that he received the ineffective assistance of counsel at trial and that the prosecution failed to disclose material exculpatory evidence to him.
You can find the full details of the case in this Denver Post article, but here are the basics. Early one morning in 1987, 37 year-old Peggy Hettrick was discovered dead in a field with several knife wounds; her left nipple and areola had been carefully removed, and the front of her body had been wiped clean of blood. Officers went door-to-door to see whether anyone knew about the murder, and they eventually came to Clyde Masters' house, which was 100 feet south of Hettrick's body. Clyde told the officers that his son, Tim, regularly walked through the field where the body was found on his way to school and suggested that he may have seen something. When officers later questioned Tim, he admitted to seeing Hettrick's body but claimed that he didn't report it because he thought that it was a mannequin and/or that a prank was being played upon him.
The officers later learned that in his school notebooks Tim sketched dinosaurs with arrows through them, gruesome war scenes, knife wounds, and horror films such as "Nightmare on Elm Street." From this evidence and other information, the state somehow developed the theory that Tim was a "psycho killer" with deviant sexual fantasies.
It was determined that Tim's mother died almost four years to the day before Hettrick's death, and officers came to the bizarre conclusion that because both women had red hair, Hettrick's murder was an anniversary killing and that one year after Hettrick's death, Tim would go "beserk" and revisit either the murder scene or Hettrick's grave. Police thus set up a "sting" operation where they shadowed Tim a year after Hettrick's death, but he visited neither the crime scene nor the grave. The prosecution, however, neither disclosed this failed "sting" to Tim Masters, nor did they disclose:
-evidence that police falsley told a reporter that they were close to making an arrest, delivered the paper where the reporter reported this story to the Masters house, and then suggested that Hettrick's killer would hoard stories about the case, all as part of an (unsuccessful) attempt to get Masters to confess.
Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exceulpatory evidence. Evidence is "material" when there is a reasonable probability that its timely disclosure would have changed the outcome at trial. While it's difficult to say whether the undisclosed evidence should be deemed "material" without knowing all of the other evidence in the case, it is important to note that courts before have found Brady violations when prosecutors have failed to disclose evidence of alternate suspects, see, e.g., Commonwealth v. Bussell, 226 S.W.3d 96 (Ky. 2007), and important evidence relating to "stings," see, e.g., Banks v. United States, 920 F.Supp. 688 (E.D. Va. 1996).
Liar, Liar: Mistrial Declared in Cheryl Fossyl Wrongful Death Suit After Polygraph Testimony
In a case that seems like it could form the basis for an episode of CBS' "Cold Case," a judge yesterday declared a mistrial after a polygraph examiner testified that one of the defendants failed his polygraph test. In 1977, the beaten and beheaded body of 16 year-old Cheryl Fossyl was found at the foot of a bridge in Ohio. The case went unsolved for over a decade and was finally reopened by Brown County Sheriff Dwayne Wenninger when he took office in 2001.
Following up on his pledge to look into cold case files, Wenninger assigned Captain Barry Creighton to the Fossyl case. What Creighton learned was that as former Brown County resident Jean Ann Chin was dying of cancer, she made a death-bed confession that she was at the scene of the Fossyl murder. This confession led Creighton to several other suspects, including now 55 year-old Thomas Watson and now 53 year-old Mike Milligan.
A polygraph examiner tested Watson, who broke down after the test, admitted he was with Cheryl Fossyl when she died, and indicated that he wanted to make a deal. According to the polygraph examiner, Watson also failed the polygraph test.
Based upon this and other evidence, Fossyl's family brought a wrongful death suit against, inter alia, Watson and Milligan, claiming that they were not only involved with Cheryl's murder, but also conspired to cover it up. Yesterday during the trial of that lawsuit, the polygraph examiner propelry testified to Watson's confessions after taking the polygraph test, but he also impermissibly testified that Watson failed the polygraph test. Based upon this prejudicial and inadmissible testimony (in addition to jurors improperly discussing the case), the judge declared a mistrial, with the jury selection process needing to be conducted anew.
In my opinion, the judge made the right decision because polygraph evidence is generally inadmissible and obviously Watson would have been highly prejudiced by the testimony that he failed a polygraph test. Indeed, in the vast majority cases where prosecutors have introduced polygraph results at trial, appallate courts have reversed convictions. I did, however, find at least one Ohio case where a court held to the contrary.
In State v. Wolf, 246 N.E.2d 365 (Ohio 1969), the Supreme Court of Ohio upheld a defendant's conviction despite the admission of evidence that he failed a polygraph test when the trial judge immediately gave a curative instruction for the jurors to ignore the evidence. It seems to me that the cat was already out of the bag at this point, but the court ruled that this curative instruction rendered a mistrial unnecessary.
Interestingly, I flagged an article a few weeks ago that states that while polygraph evidence is inadmissible in court, employers are increasingly using the test to screen job applicants.
November 6, 2007
The Sleeping Dictionary: Does a Dictionary Constitute Extraneous Prejudicial Information Under Rule 606(b)?
A Utah trial court found Carla M. Redding, a Salt Lake County Sheriff's Deputy, guilty of negligent homicide, negligent collision, and speeding in connection with a car accident that resulted in the death of one of the passengers in the car Redding's patrol vehicle struck. Redding thereafter appealed to the Utah Court of Appeals, which recently affirmed her conviction in State v. Redding, 2007 WL3104401 (Utah App. 2007).
On appeal, inter alia, Redding raised the argument that the jury improperly reached its verdict by relying on the dictionary definitions of certain terms instead of following the court's jury instructions. The Utah Court of Appeals rejected her argument, noting that at trial jurors submitted a note to the judge asking for a dictionary, and both sides stipulated to the jurors' use of a dictionary. Because Utah's invited error doctrine precludes a party which affirmatively represented to the trial court that it had no objection to an action from appealing on the ground that the action constituted an error, the court found that Redding's appeal was without merit.
I have no problem with the court's ruling, but it led me to wonder whether the Utah Court of Appeals would have reversed if jurors had consulted a dictionary without the defendant's knowledge or consent. What I found was that courts are sharply divided in such cases. Federal Rule of Evidence 606(b) and most state counterparts (including Utah Rule of Evidence 606(b)) state that upon inquiry into the validity of a verdict, a juror can testify about jury deliberations when, inter alia, extraneous prejudicial information was improperly brought to the jury's attention. The question is, however, whether a dictionary constitutes extraneous prejudicial information.
Some courts have held that jurors' use of a dictionary to define the elements of a crime or words in jury instruction does not constitute the use of extraneous prejudicial information because their use of the dictionary is for the purpose of defining a legal term rather and does not relate to "facts under deliberation." See, e.g., United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988). Other courts have held that jurors' use of a dictionary is not inherently prejudicial but have noted that in rare cases such use can require a new trial. See, e.g., United States v. Henley, 28 F.3d 1111, 1115-16 (9th Cir. 2001). Finally, some courts have found that it's quite possible that jurors' use of a dictionary can require a new trial, especially when jurors use the dictionary to define legal terms. See, e.g., Sharrief v. Gerlach, 798 So.2d 646, 652 (Ala. 2001).
I'm not sure whether I agree with the second or third line of cases, but I certainly disagree with the Eighth Circuit's decision in Cheyenne. Assuming that a crime has a certain definition of a term such as "malice," and assuming that a dictionary has a different and conflicting definition of the term "malice," it is easy to see how jurors' reliance on the dictionary definition could be prejudicial to a defendant if, for instance, the jurors found he acted in accordance with the dictionary definition of "malice" but they would not have found that he acted in accordance with the legal defintion of malice.
Don't Give a Damn About My Bad Reputation: Massachusetts Has Odd Character Evidence "Common-Law" Rule in Self-Defense Cases
In October, 2004, Harvard graduate student Alexander Pring-Wilson was found guilty of voluntary manslaughter in connection with the killing of 18 year-old Cambridge hotel clerk Michael Colono. An altercation began between the two men outside a pizza parlor and ended with Pring-Wilson stabbing Colono 5 times in 70 seconds. Pring-Wilson claimed at trial that he was acting in self-defense, but the court refused to allow him to admit evidence of past acts of violence by Colono, including incidents where (1) he was arrested after throwing money in the face of a pizzeria cashier and shattering glass in the pizzeria's front window, and (2) he allegedly assaulted two people on a subway and spit in the faces of his arresting officers.
Soon after his conviction, however, the Massachusetts Supreme Judicial Court made an odd evidentiary decision, which changed its already odd evidentiary "rules" and led to Pring-Wilson being granted a new trial. In Commonwealeth v. Adjutant, 824 N.E.2d 1 (Mass. 2005), the court adopted a "new common-law rule of evidence" that in cases where a defendant is claiming that his attack on the "victim" was self-defense and is not claiming to have any knowledge of the "victim's" allegedly violent past or reputation, evidence of the "victim's" reputation for being violent is inadmissible while evidence of specific past acts of violence by the "victim" are admissible in the discretion of the judge. The court came to this conclusion as "a matter of common-law principle," despite acknowledging the fact that most courts, including all federal courts pursuant to Federal Rule of Evidence 405, hold the exact opposite: in self-defense cases, evidence of the "victim's" reputation is admissible while evidence of specific past acts of violence by the "victim" are inadmissible.
Now, the reason that Massachusetts had to adopt this "new common-law rule of evidence" is because it does not have an officially adopted code of evidence. Instead, Massachusetts evidence law derives from a mishmash of common law, statutes, procedural rules, federal and state constitutions, the Federal Rules of Evidence, and the Massachusetts Proposed Rules of Evidence (which were never adopted). See Jeffrey S. Siegel, Note, Timing Isn't Everything, 79 B.U. L. Rev. 1241, 1244 (1999). Understandably, this "tapas" approach to creating rules of evidence creates anomalous and frankly bizarre results such as the Adjutant court's "new common-law rule."
The question now becomes whether Pring-Wilson's ability to present evidence of past acts of violence by Colono will change the result in his new trial. Harvard law professors asked about the case have noted that the new evidence will certainly provide an obstacle to the prosecution while remaining uncertain about whether the evidence will result in Pring-Wilson being acquitted this time around.
November 5, 2007
Cuz I'm a (Quasi-)Criminal: Utah Supreme Court to Consider Whether Exclusionary Rule Applies to License Revocation Hearings
Just after midnight on July 1, 2005, an officer of the Salt Lake City Police Motorcycle Squad pulled over Curtis J. Beller based upon his suspicion that the motorcycle violated, inter alia, an ordinance prohibiting the replacement of stock mufflers although he had neither equipment to measure the motorcycle's sound nor familiarity with the original make of Beller's motorcycle. After pulling Beller over, the officer concluded that he was driving while under the influence of alcohol. In the criminal trial against Beller, the judge concluded that the officer's search of Beller violated his Fourth Amendment rights and thus excluded the evidence that Beller was driving while under the influence of alcohol under the exclusionary rule.
Nonetheless, the Utah Driver License Division proceeded with a driver's license revocation hearing against Beller and used the officer's finding that Beller was under the influence of alcohol in revoking Beller's license. Beller has now appealed to the Supreme Court of Utah, claiming that pursuant to the exclusionary rule, this evidence should have been excluded to the same degree that it was excluded in his criminal trial.
As the main support for this argument, Beller has cited to Supreme Court of Utah's opinion in Sims v. Collection Div. of Utah State Tax Com'n, 841 P.2d 6 (Utah 1992). In Sims, a driver was stopped at an unconstitutional roadblock, and officers discovered marijuana and cocaine in his vehicle. See id. at 7. In addition to criminal charges being brought against the driver, "civil" charges were brought against him before the Utah State Tax Commission pursuant to an Act under which drivers must, inter alia, pay a tax when they transport illegal drugs into Utah. See id. At this hearing, the drugs found in Sims' car at the roadblock were admitted against him pursuant to the general rule that the exclusionary rule does not apply in civil proceedings. See id.
On appeal, however, Sims argued that the drugs should have been inadmissible because the charges brought against him were "quasi-criminal." Id. at 11. The Supreme Court of Utah agreed, finding, inter alia, (1) that the Act was similar to criminal law in its objectives and (2) that enforcement of the Act was inextricably connected with proof of criminal activity. See id. at 13-14.
I haven't seen a subsequent Utah case where this logic has either been applied or found inapplicable in license revocation hearings, and the case law appears all over the board. For instance, in In re Corey P., 697 N.W.2d 647, 654 (Neb. 2005), the Supreme Court of Nebraska found that the exclusionary rule does not apply to license revocation hearings because (1) they are civil and nonpunitive, (2) application of the rule would do little to deter police misconduct, and (3) any deterrent value would be outweighed by public health and safety concerns.
Meanwhile, in Hartman v. State of Alaska, Dept. of Admin., Div. of Motor Vehicles, 152 P.3d 1118 (Alaska 2007), the Supreme Court of Alaska stated the same general rule as the Supreme Court of Nebraska but noted that application of the exclusionary rule might be mandated in cases where a Fourth Amendment violation stems from lack of probable cause for a DUI arrest. Finally, in Piotrowski v. Commissioner of Public Safety, 453 N.W.2d 689 (Minn. 1990), the Supreme Court of Minnesota, relying upon a decision of the Supreme Court of Rhode Island, found that the exclusionary rule applies to license revocation hearings because in substance and effect they are quasi-criminal in that their objective is to penalize the driver for the commission of an offense against the law.
When I look at the logic of the Sims case, it seems as if the Supreme Court of Utah should follow the Supreme Court of Minnesota and the Supreme Court of Rhode Island. License revocation hearings have similar objectives to criminal drunk driving laws in that both seek to punish and deter drunk driving. Also, the revocation of Beller's license was inextricably connected with proof that he drove while under the influence. We'll have to wait and see, though, which line of cases the court decides to follow.
Age Ain't Nothing But a Number: Interesting Evidentiary Issues Arise in R. Kelly Case
It seems as if the R. Kelly child pornography case has been going on forever, and on Friday it produced three more interesting evidentiary issues. The R & B singer faces charges stemming from allegedly taping himself having sex with a girl who may have been as young as 13 years-old at the time of the act.
A significant obstacle faced by the Illinois prosecutors is that the girl they claim is in the video, who is now in her early 20s, claims and has provided grand jury testimony that she is not the girl in the tape. Prosecutors sought to rebut this denial through the testimony of Sharon Cooper, a developmental and forensic pediatrician, who was to testify that the girl's denial is behavior typical of victims of child pornography.
Now, if the allegd victim claimed that she was the girl in the video, Cooper could have testified that her behavior and symptoms were consistent with the behavior and symptoms of sexually abused children, and she has done so in several cases. See, e.g. State v. Hess, 632 S.E.2d599 (N.C.App. 2006). The problem in this case, however, is that the alleged victim is claiming she was not in fact the victim in the video, and the judge thus found that Cooper's testimony was inadmissible because it would have constituted an improper comment on the alleged victim's grand jury testimony.
This ruling is in accord with past Illinois decisions. For instance, in People v. Simpkins, 697 N.E.2d 302 (Ill.App. 4 Dist. 1998), the defendant was charged with aggravated sexual assualt against a child, who first made and then recanted her claim that the defendant assaulted her. At trial, an investigator from the Department of Children and Family Services testified that child victims of sexual abuse commonly recant their initial allegations of sexual abuse. See id. at 1242.
On appeal, the Illinois appellate court reversed, finding that this expert testimony was improper because it went to the credibility of the alleged victim and improperly and severly impinged upon the jury's function in determining the credibility of witnesses. See id. This finding is consistent with precedent across the country holding that determining the credibility of witnesses is the province of the jury, not expert witnesses.
In the R. Kelly case, the judge did, however, rule that Cooper could testify about the approximate age of the girl in the tape, which, again, is consistent with Illinois precedent. See People v. Normand, 831 N.E.2d 587, 594 (Ill. 2005). Presumably, Cooper will use the Tanner scale in making her age assessment. See id.
Finally, prosecutors sought to have Cooper provide testimony in which she would compare the vein pattern of Kelly's hand with the hand of the man in the video. The judge ordered a Frye hearing to determine whether the "vein pattern comparison" test to be used by Cooper has general acceptance in the scientific community.
In a quick Westlaw search, I found no cases where experts did a "vein pattern comparison," but in a quick internet search, I found a site claiming that vein pattern recognition technology is gaining momentum as one of the fastest-growing technologies. Apparently, the technology has found "easy acceptance" in parts of Asia, where there is strong resistance in fingerprinting. In fact, some sources are claiming that vein recognition technology has an advantage over fingerprint systems because vein patterns are biometric characteristics that are not left behind unintentionally in every-day activities.
It will be fascinating to see how the Illinois judge resolves this issue under the Frye test, although I doubt that the vein pattern comparison test has the required general acceptance in the scientific community (Illinois is also considering the admissibility of the Horizontal Gaze Nystagmus (HGN) test under Frye). Based upon my brief research, however, I think that the vein pattern comparison might fare better under the Daubert test followed by federal courts and many state courts.
November 4, 2007
Call Waiting: Judge in Derrick Glover Case Finds Taped Jailhouse Calls Are Admissible
Derrick Glover was charged with furnishing a gun to a minor after 12 year-old Tony Youmans was found dead in the woods as a result of a gunshot wound to the head. Authorities claim that Glover sold the gun to Youmans, who was the friend of his girlfriend's son. Over the Constitutional objection of Glover's public defender, the judge hearing the case found that 50 calls that Glover made from jail, and which were recorded by the government, were admissible against Glover, although he noted that certain calls could be excluded if they were independently inadmissible.
The public defender's argument was that taping Glover's jailhouse calls violated his rights under the Fourth Amendment. Specifically, he claimed that the city makes money from the calls and the system isn't set up to allow conversations that normally would be confidential, including talks between inmates and their doctor, clergy and spouses. The problem with this argument, however, is that for Fourth Amendment rights to apply, inter alia, the speaker must have a reasonable expectation of privacy, and most courts have found that no such reasonable expectation exists in outbound calls from prison. See, e.g., United States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996). The prosecutor in the Glover case successfully argued this point and noted that inmates and the people they call are warned each time they speak over a jail telephone line that the authorities are taping the conversation.