Saturday, November 17, 2007
Denver Broncos' running back Travis Henry recently tested positive for marijuana, and he faces a year-long suspension unless he convinced the NFL of his innocence when he presented his case on Friday in Phoenix. The most interesting thing I discovered from articles discussing Henry's situation is that two time Super Bowl winning coach Mike Shanahan might make want to consider a second career as a lawyer. Shanahan has argued Henry's innocence by claiming that after Henry tested positive, he passed a lie detector test and had a recent hair sample come back negative for marijuana. According to Shanahan, "When he went back and took the hair sample and that was negative, the lie detector test and that was negative, we'll let due process take care of itself." It sounds like Shanahan has been reading some legal casebooks, or at least watching "Law and Order."
Of course, polygraph or lie detector results are generally inadmissible in court, but this prohibition does not prevent the NFL from considering them in deciding whether to suspend a player. Indeed, as I noted recently, employers are increasingly using the test to screen job applicants. Of course, the fact that Henry was suspended in 2005 for violating the league's substance abuse policy and was still part of its drug program when he tested positive will not help his case. Nonethless, yesterday, the polygraph examiner who tested Henry gave testimony at his hearing yesterday, and the NFL should issue a ruling on Tuesday.
Another interesting thing I noticed from the stories is how the authors construed polygraph evidence. For instance, in one Rocky Mountain News article, the author claimed that polygraph results are inadmissible in court because they reward two kinds of people: those who are telling the truth and those who are really good liars. I wonder if this is why most non-lawyers think that polygraph results are inadmissible? In reality, there are many reasons why polygraph results are inadmissible, ranging from the fact that the test monitors stress and not "truthfulness," to Justice Thomas' facmous statement that "the jury is lie detector." Even ignoring these other factors, however, I think that the author (and maybe most non-lawyers) reverses the thinking of most judges, which is that polygraph results are generally inadmissible because they penalize two kinds of people: those who are really lying and those who are nervous truthtellers, or false positives.
Friday, November 16, 2007
Nazis. I Hate These Guys: Deportation Order Entered Against Man Who Belonged to the Ukranian Auxiliary Police
An immigration judge in Chicago has ordered the deportation of Osyp Firishchak, an 88 year-old man living in the north side of Chicago. Two years ago, Firishchak had his U.S. citizenship revoked after a trial in which lawyers presented documents showing that an Osyp Firishchak who was born on the same day and in the same town as the defendant belonged to the Nazi-controlled Ukranian Auxiliary Police. This Ukranian unit assisted Nazis in rounding up, beating up, and killing tens of thousands of Jews.
At his trial, Firishchak claimed that the 60 year-old documents introduced against him were unreliable, circumstantial, and filled with hearsay. Yesterday, Immigration Judge Robert Vinikoor ordered that Firishchak be deported to his native Ukraine, finding that he was a member of a movement hostile to the United States and that he made willful misrepresentations on his visa application for the purpose of gaining admissions to the United States.
Looking at the the Seventh Circuit Court of Appeals' decision on Firishchak's appeal from his trial from two years ago, we can see how Firishchak's argument about the documents being unreliable because they were 60 years-old actually worked against him. Normally the documents at issue would have been considered hearsay because they contained out of court statements offered to prove the truth of the matter asserted in those statements. Federal Rule of Evidence 803(16), the "ancient document" exception, however, indicates that statements contained in documents in existence for twenty years or more are admissible as an exception to the rule against hearsay as long as their authenticity is established. Furthermore, Federal Rule of Evidence 901(b)(8) states that ancient documents are authenticated when they are in a condition as to create no suspicion as to their authenticty and when they are found in a place where one would expect to find them.
Indeed, this is not the first case where ancient documents have led to the deportation of an individual with Nazi ties. For instance, in United States v. Stelmokas, 100 F.3d 302 (3rd Cir. 1997), the defendant had his citizenship revoked after ancient documents revealed that he was a member of an armed Lithuanian unit known as Schutzmannschaft, which assisted Germans in confining and murdering Jews.
Usually Something Rolled This Big Is Illegal: California Court Makes Improper Impeachment Ruling in ADA LAwsuit Against Chipotle
Maurizio Antoninetti, a paraplegic individual requiring a wheelchair for mobility, has filed a lawsuit against Chipotle Mexian Grill. His claim is that Chipotle's "Customers With Disabalities" policy does not comply with the Americans With Disabilities Act Guildelines. Both parties filed motions in limine seeking to exclude certain pieces of evidence, leading to an order by the United States District Court for the Southern District of California on November 8, granting in part and denying in part the motions.
While there were several interesting rulings in the order, I will only address one which I feel was made incorrectly. Chipotle moved to exclude any evidence regarding allegations that its "expert witness Kim Blackseth had conflicts of interest or misused his position with the California Building Standards Commission during his service with that agency." Antoninetti v. Chipotle Mexican Grill, Inc., 2007 WL 3333109 at *7 (S.D. Cal. 2007). It claimed, inter alia, that any extrinsic evidence to impeach Blackseth would be inadmissible under Federal Rule of Evidence 608. Antoninetti countered that, inter alia, Mr. Blackseth's reputation in the disabled community as a person whose opinions are biased and not credible are admissible pursuant [to] Federal Rule of Evidence 608. The court sided with Chipotle, concluding that Rule 608 "expressly state[s] that specific instances of a witness' conduct that are offered for the purpose of attacking or supporting the witness' credibility may not be proven by extrinsic evidence."
If one were only to look at the language of Federal Rule of Evidence 608(b), the court's decision might seem correct. Federal Rule of Evidence 608(b) states that specific instances of conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness may not be proved by extrinsic evidence, although they may be inquired into on cross-examination of the witness in certain circumstances. The general theory under which this extrinsic evidence is exluded is that it is "collateral" to the issue at trial.
For example, in a case where a defendant is on trial for murder, defense counsel might want to impeach an alleged eyewitness with evidence that he cheated on his taxes to show that his testimony cannot be trusted. However, because the issue of whether the eyewitness cheated on his taxes is collateral to the issue of whether the defendant committed the murder which is the subject of the trial, Federal Rule of Evidence 608(b) would prohibit defense counsel from introducing extrinsic evidence of the tax fraud such as a copy of the eyewitness' tax form or the testimony of a witness with knowledge.
In this case, however, Antoninetti is presumably claiming that Blackseth is biased and has a conflict of interest in this case, and it is well established under both Supreme Court and Ninth CIrcuit Court of Appeals precedent that extrinsic evidence of prior misconduct is admissible to show a witness' possible bias or self-interest in testifying. See United States v. Abel, 469 U.S. 45, 49 (1984); Lewy v. Southern Pacific Transportation Company, 799 F.2d 1281, 1298 (9th Cir. 1986).
The reason for this distinction is that with evidence of bias, it is being claimed not that the witness is untrustworthy based upon a prior act unrelated to the trial, but instead that the witness has a specific reason to provide trustworthy or untrustworthy testimony in the trial because he is biased against or in favor of a party or a class to which he belongs. Thus, the issue of the witness' bias is related to an issue which is the subject of the trial and thus provable by extrinsic evidence.
Thursday, November 15, 2007
An assault case in Canada brings to light an interesting distinction between Canadian evidence rules and American evidence rules. Steelworker Eugene Kelly, who sings in the Irish Band Crooked Jack, was found unconscious in a Pizza Pizza parking lot in Canada. Police believe that Kelly was attacked by several teenagers, who pepper sprayed, punched, and kicked him repeatedly. Two teenagers are on trial on charges of aggravated assault in connection with the attack on Kelly, and a third man is being tried separately in adult court.
After learning of the assault, police interrogated a third teenager, Michael Sylvester Gajgal, about the incident. Gajgal initially signed off on a statement to police saying that he was not involved in the assault; after signing off, however, Gajgal blurted out, "All right, I kicked him once." Gajgal now refuses to adopt the statement for police that he signed, claiming that he signed it while under duress.
Assistant Crown Attorney Nancy Flynn (somewhat similar to a prosecutor in the U.S. system) wants to call Gajgal as a witness, but she also wants to cross-examine and impeach him based upon the signed statement. The Canadian rules of evidence normally don't permit lawyers to cross-examine or impeach the credibility of their own witnesses, but Flynn was able to argue successfully before Ontario Court Justice Bernd Zabl that she should be able to both call and impeach Gajgal on his signed statement.
American courts also generally used to preclude parties from impeaching witnesses whom they had called under the common law voucher rule. Now, however, under Federal Rule of Evidence 607 and many state counterparts, the credibility of a witness may be attacked by any party, including the party calling the witness. At the same time, most courts preclude a party from calling a witness for the sole purpose of impeaching that witness' credibility. See, e.g., United States v. Ince, 21 F.3d (4th Cir. 1994) (finding that the district court should not have allowed the prosecution to call a witness who could not remember a shooting for the sole purpose of impeaching her with her past statement that she saw the defendant shoot the victim).
I prefer the American approach because it takes account of the fact that witnesses can frequently provide testimony that both helps and hurts a party. If a party is precluded from impeaching its own witness, it often will not be able to present essential facts about the witness which would allow the jury to better assess his or her credibility.
Yesterday, in State of Washington v. Russell, the Washington Court of Appeals rejected Roy W. Russell's appeal of his conviction resulting from the slaying of 14 year-old Chelsea Harrison. The teenage victim was found dead in Russell's basement after a teen drinking party hosted by the then 45 year-old Russell. Russell was sentenced to life imprisonment without parole pursuant to Washington's "three strikes" law for repeat felons.
One of Russell's arguments on appeal was that the trial judge improperly allowed his neighbor, Christine Bisson, to testify that her dog barked every time she saw Russell. Russell claimed that the admission of this testimony violated his rights under the Confrontation Clause because the dog was the supposed [sic] witness and not [Bisson]."
The court of appeals, however, noted that Washington Rule of Evidence 801, which states that a declarant is "a person who makes a statement," ruled out the possibility that the hearsay rule might apply to sounds that animals make. The court thus concluded that Bisson could testify that her dog was barking without violating the hearsay rule because Bisson was the declarant and not her dog.
The court of appeals was correct in making this decision as is made clear from my favorite case involving alleged animal hearsay, People v. Centolella, 305 N.Y.S.2d 279 (N.Y.Co.Ct. 1969). In Centolella, the prosecution sought to have a state trooper testify that two bloodhounds trailed the defendant to prove his guilt. See id. at 280.
The defendant argued that this proposed testimony constituted hearsay, but the court countered that "[s]uch evidence falls into the category of opinion evidence rather than hearsay. The animals are not witnesses against a defendant any more than a microscope or a spectograph. They are not subject to cross-examination any more than the animal. It is the handler who is the witness and he is merely asked to testify to what the animal actually did, not his opinion as to guilt or innocence of a person. A person is no more placed in jeopardy by the action of an animal than he is by a breath analyzer or a blood test." Id. at 282.
Wednesday, November 14, 2007
Who's Afraid of Virginia?: Judge's Incorrect Evidentiary Ruling Leads to Charges Being Dropped Against Kwaume Edwards
Yesterday, Substitute Circuit Judge Warren Stevens made a seemingly bizarre evidentiary ruling in a Virginia courtroom, leading to murder charges being dropped against 18 year-old defendant Kwaume Edwards. Kwaume was charged with second degree murder, use of a firearm in the commission of a felony, and discharging a firearm from a vehicle in connection with the May, 2006 shooting death of 29 year-old Michael Tyler. Kwaume had previously been convicted of second degree murder last April, but his conviction was reversed when his counsel learned that state's witness Carlos Chapman discussed a plea deal with prosecutors despite denying this fact when testifying at Edwards' first trial.
During Kwaume's current retrial, his counsel argued that a taped interview between Kwaume and York Sheriff's investigators was inadmissible because it wasn't inculpatory evidence. Kwaume's cousin, Marquise Edwards pleaded guilty to first degree murder and use of a firearm in connection with Tyler's shooting, and the prosecution asserted that Kwaume helped him commit the crime. In the taped interview, Kwaume admitted to the investigators that he handled the gun allegedly used by Marquise before the shooting, wiped his fingerprints off of the gun, and stated, "I didn't have too much to do with the shooting."
Judge Stevens apparently agreed with defense counsel's argument that the evidence was inadmissible, which led to Assistant Commonwealth Attorney Charles Powell dismissing all charges against Kwaume based on inasufficient evidence. This turn of events led to an angry eruption between the defendant's family and Tyler's family, who believe it was actually Kwaume who shot Michael Tyler. From what I can tell from the articles reporting the judge's ruling, Tyler's family members had a right to be angry.
It is well established in Virginia case law that an out of court statement by a criminal defendant, if relevant, is admissible as a party admission, under an exception to the rule against hearsay. See, e.g., Bloom v. Commonwealth, 554 S.E.2d 84 (Va. 2001). Furthermore, "party admissions are admissible regardless of whether they are inculpatory or incriminating when made...." McCarter v. Commonwealth, 566 S.E.2d 868, 871 (Va.App. 2002). Instead, "[a]ny statement by a party to the proceedings, including an out-of-court statement by a defendant in a criminal case, is admissible as an exception to the hearsay rule when offered against the party." Alatishe v. Commonwealth, 404 S.E.2d 81, 82 (Va.App. 1991).
It is a little unclear from the artcles reporting his decision whether the judge merely found that Kwaume's taped statements were insufficient to prove the charges against him or whether the judge in fact found that they were admissible. It appears, however, that the Judge Stevens actually found the statements to be inadmissible, a ruling that would be clearly incorrect as a matter of law.
The Oh in Ohio: Supreme Court of Ohio to Review Order Requiring Prosecutor to Turn Over Police Report
Ohio appears to be a state plagued with odd evidentiary rules. Earlier, I wrote about how Ohio, unlike the vast majority of states, has no express provision for the admissibility of opinions and diagnoses in medical or psychiatric records. Then, I wrote about how the Ohio Supreme Court expanded the hearsay exception allowing for the admission of statements made for purposes of medical treatment or diagnoses further than any court in any case that I have come across.
Yesterday, however, I came across an even odder Ohio rule that may soon be repealed. Wilson Santiago has been charged with killing Detective Jonathan "A.J." Schoreder, and a judge recently issued an order requiring that prosecutor Bill Mason turn over to defense counsel all police reports and witness interviews related to Schroeder's death. Mason has appealed to the Ohio Supreme Court, claiming that both Ohio case law and its criminal rules indicate that a defendant is not entitled to police reports.
Most states have open discovery rules, which require that prosecutor disclose to defense counsel a full investigatory file so that defense counsel can glean any exculpatory material from it. Ohio Criminal Rule of Procedure 16, however, gives prosecutors sole discretion to determine what is exculpatory and thus what must be turned over to defense counsel.
Last December, the Supreme Court of Ohio considered changing the way that it interprets this rule after it received 800 letters asking that the rule be relaxed as opposed to only 20 letters, all from prosecutors, asking that the rule be kept the same. Those asking that the rule be altered claim that it provides a recipe for prosecutor misconduct. The prosecutors supporting the rule claim that it aloows anonymous tipsters to come forward without fear that their statements will be disclosed to the defendant; they also note that police reports are inadmissible as evidence.
Looking at the plain language of the Ohio Rules of Evidence, one might conclude that this latter statement is incorrect. Ohio Rule of Evidence 803(8) states that public records and reports are admissible as an exception to the rule against hearsay; however, in criminal cases matters observed by police officers and other law enforcement personnel are inadmissible hearsay, unless offered by the defendant. This language would seem to make police reports admissible when the defendant seeks to introduce them in a criminal case, but the Supreme Court of Ohio in State v. Ward, 474 N.E.2d 300, 358 (Ohio 1984), somehow came to the conclusion that this language only allows for the admission "routine records", a category that does not include police reports.
I would argue, however, that Ohio's rules are unconstitutional. 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. However, 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. Ohio appears to among those states finding that the failure to disclose inadmissible evidence can never form the basis for a Brady violation. See, e.g., State v. Davis, 2001 WL 10037 (Ohio App. 2 Dist. 2001).
I feel, however, that if the Supreme Court ever resolves this circuit split, it will decide that the failure to disclose inadmissible evidence can form the basis for a Brady violation, and the Wilson Santiago provides good reasons why this should be the case. First, even though the police report is "inadmissible," Santiago could easily have reason to use it at trial. If the police officer preparing the report testified in a manner inconsistent with his police report, Santiago's attorney could use the report to impeach his testimony under Ohio Rule of Evidence 613.
If the police officer testified and could not remember certain details, Santiago's attorney could use the report to refresh his recollection pursuant to Ohio Rule of Evidence 612. In fact, at this point, if the prosecution wanted to introduce the police report into evidence, the report would be admissible under Rule 612, providing a second reason why "inadmissible" evidence could form the basis for a Brady violation.
Third, even though a police report is "inadmissible," it could be used in producing admissible evidence. Federal Rule of Evidence 703 and many state counterparts (although not Ohio) allow an expert to testify about opinions he formed on the basis of inadmissible evdience as long as the inadmissible evidence is of a type reasonably relied upon by experts in his field. Thus, as one example, the Tenth Circuit Court of Appeals in Saiz v. Ortiz, 392 F.3d 1166, 1181 (10th Cir. 2004), found that while a police report was inadmissible, an expert witness properly relied upon it in forming conclusions about whether the victim suffered from battered woman's syndrome or post-traumatic stress disorder because experts frequently rely upon police reports in reaching such conclusions. Furthermore, in this case, not only would the police report be "admissible" if offered by the prosecution, but it would also be admissible if offered by the defendant if the judge found that its probative value in assisting the jury to evaluate the expert's testimony substantially outweighed its prejudicial effect.
Finally, even though a police report is "inadmissible," it could directly lead to admissible evidence. Thus, while a person's statement to a police officer that someone other than the defendant committed the crime at issue would be inadmissible hearsay, that statement could easily lead the defendant to the person identified in the statement and evidence linking him to the crime.
Tuesday, November 13, 2007
How Can the Same Thing Happen to the Same Guy Twice?: How the Stacy Peterson Case Brings to Mind the Doctrine of Chances
Today, officials exhumed the casket of Kathleen Savio, the third wife of Bolingbrook, Illinois Police Sergeant Drew Peterson. Savio was found dead in her bathtub in 2004. Now, with Peterson's fourth, current wife, Stacy Peterson, having disappeared two weeks ago, officials reopened Savio's case and recently called for the exhumation of Savio's casket to see whether they could unearth any evidence of foul play. State's Attorney General James Glasgow has claimed that the evidence suggests that someone killed Savio and then tried to make it look like an accident.
Hearing this story on a loop today made me think about the classic case of Rex v. Smith, which introduced the doctrine of chances. Generally, prior bad acts by an individual are inadmissible to prove that the individual has a propensity to act in a certain manner and that he acted in conformity with that propensity at the time of the alleged crime.
Rex v. Smith, however, introduced into evidence law roughly the same sentiment expressed by John McClane in "Die Hard 2": "How can the same thing happen to the same guy twice?" In Rex v. Smith, the defendant's wife died when she drowned in the bathtub, and the court allowed the prosecution to introduce evidence that two of his prior wives died when they drowned in the bathtub to rebut the defendant's claim that the drowning was accidental. The court reasoned that the past acts were admissible not to porve propensity/conformity, but instead because the court could infer from the unusualness of the occurrence and the number of times it was repeated that the drowning was not accidental.
This doctrine, however, is rarely applied. A quick Westlaw search shows that Illinois state courts have only mentioned it 13 times, and only twice since 1930. Furthermore, unless Stacy Peterson turns up dead in a bathtub, a court hearing Drew Peterson's case would almost certainly lack a reason to apply it. If however, Stacy Peterson turns up dead in a manner that looks like her killer tried to make it appear like she died as the result of an accident, the doctrine might just apply. See,e.g., People v. Brown, 557 N.E.2d 611, 621 (Ill.App. 1 Dist. 1990) (applying the doctrine of chances when the crimes to be compared were similar, but not identical).
Faces of a Stranger?: Prosecution Tries to Prevent Frye Hearing in Professor Rafael Robb's Murder Trial
Economics Professor Rafael Robb is facing charges that he murdered his wife, Ellen. Ellen Robb was found bludgeoned to death in the couple's Pennsylvania home, and Professor Robb is charged with first degree murder and staging a break-in to cover up the crime. The prosecution seeks to introduce into evidence a report by a psychologist and a psychiatrist who examined photographs of the victim and the crime scene.
The report concluded that "the obsessive intensity of force used against Mrs. Robb went beyond that necessary to cause her death" and that the killer demonstrated a "need to depersonalize" Ellen Robb. The experts would testify that Ellen Robb was "specifically targeted for death" by a killer who "wanted to wipe her face off the map." The report and the experts' opinions would greatly discredit the defense that Ellen Robb was killed by a random burglar, rather than by her husband.
On Friday, the Pennsylvania judge hearing the case was to hold a Frye hearing to determine whether the expert testimony and report were admissible because the technique or theory upon which they were based had general acceptance in the relevant scientific community (Pennsylvania has not adopted the federal Daubert test). The prosecution, however, delayed the hearing by arguing that a Frye hearing did not apply to the proposed report and testimony because the testimony in question concerned experts' opinions, not scientific testing.
I don't believe that this argument has any merit. For instance, in Callum v. Scott, 2002 WL 31951308 (Pa.Com.Pl. 2002), the court found that Frye applied to a doctor's report and his expert opinions based upon that report. In the same way that Daubert applies to both scientific and non-sceintific expert opinions (See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)), Frye also applies even when the expert opinion at issue is non-sceintific.
Thus, over the prosecution's objections, a Frye hearing should be held, and it is unlikley that the expert evidence will be admitted. Courts across the country have ruled that expert testimony basing a killer's psychological profile on crime-scene photographs is inadmissible. While what other courts have done with evidence is not conclusive in the Frye analysis, it is a very relevant factor. See, e.g., Commonwealth v. Moore, 635 A.2d 575, 582 (Pa. Super. 1993). Thus, unless the prosecution can characterize the expert evidence at issue in a unique manner, the court is likely to find it inadmissible.
Monday, November 12, 2007
Unlawful Entry? Rhode Island Judge Suppresses Evidence Seized From Defendant's House in Video Voyeurism Case
In October, 2005, Thomas Byrne, the owner of Off Center Coffee House in Rhode Island, was charged by police with video voyeurism. These charges came after a 10 year-old girl told police that Byrne took photos up her skirt while she helped him at the coffee shop. Based upon this allegation, the police obtained a warrant to search Byrne's home; the search uncovered not only cameras and computer equipment that authorities say contained photos of women taken without their consent, but also a marijuana plant.
Based upon a ruling by a Rhode Island Superior Court judge granting Byrne's motion to suppress the evidence, however, jurors in the case against Byrne will never see this evidence. The judge accepted Byrne's argument that the state failed to show that the warrant issued for his residence relied on more than suspicion and thus found that the evidence obtained from the search conducted pursuant to that warrant was inadmissible as "fruits of the poisonous tree." The prosecutors in the case had unsuccessfully argued that it was logical to make reasonable inferences that Byrne would have brought the pictures from his business to his home, providing justification for the search.
I think that the case was a close call, I can see the arguments on both sides of the issue, and it is difficult to question the judge's ruling without knowing all of the facts involved. That said, while I was unable to locate a similar case from Rhode Island, in my research I came across a somewhat similar case from Wisconsin where a judge found that a warrant was properly issued.
In State v. Lindgren, 687 N.W.2d 60 (Wis.App. 2004), the defendant was alleged to have taken photgraphs at his business of a 14 year-old girl in various states of undress without her consent; he also allegedly inappropriately touched the 14 year-old. In seeking a warrant to search the defendant's home, the state submitted the affidavit of Detective Ruben Silguero, which incorporated an attachment entitled "Preferential Child Molester Information." Id. at 64. The attachment, inter alia, listed common habits and characteristics of child molesters such as taking photographs of children, rarely disposing of them, going to great lengths to conceal and protect them, and storing them on their home computers. Id. Based upon this evidence, the court found that it was reasonable to believe that the photographs would be found in the defendant's home. Id.
Of course, in the Rhode Island case, there likely was no similar attachment, and as far as I know, there was no evidence that Byrne was a child molester as opposed to a mere voyeur. Thus, the judge's decision seems reasonable to me. I wonder, however, whether most courts, if presented with the "common habit" evidence like the Wisconsin court, would come to the same conclusion and allow the search of a home based upon photographs taken by a defendant at his business.
The Definition of Irony: William Speybrock's Fraud Conviction Reversed After Fraudulent Authentication is Discovered
Last November, a jury in Indiana convicted William Speybroeck of fraud on a financial institution and identity deception. Prosecutors had claimed that Speybroeck used his father's identity to open a credit account with HSBC, obtain a Kawasaki "Good Times Credit Card," and purchase a Kawasaki motorcycle.
At trial, over the defendant's objection, the prosecutor introduced into evidence, inter alia, Exhibit 11, which contained a notarized 'certificate of authentication' affidavit signed by the operations manager at HSBC's fraud department and several other documents indicating that the defendant was guilty of several crimes. The court found this evidence admissible pursuant to Indiana Rule of Evidence 902(9), which generally holds that "business records" are self-authenticating "[u]nless the source of information or the circumstances of preparation indicate a lack of trustworthiness."
On appeal, the Court of Appeals of Indiana reversed Speybroeck's convictions, finding that such circumstances existed, at least with regard to certain computer printouts. Specifically, it found that the operations manager's affidavit was signed and dated on October 23, 2006 while the printouts were not created until October 24, 2006. Obviously, it would be impossible for the operations manager to authenticate documents that had not yet been created. The court also noted that some of the documents in Exhibit 11 would have been inadmissible hearsay and would not have qualified for the "business records" exception contained in Indiana Rule of Evidence 803(6) because no one at HSBC had the personal knowledge necessary to authenticate the documents.
I generally think that courts should require more of proponents before finding that authentication requirements are met, and this case provides a good example of how courts have improperly adopted a "rubber stamp" approach to authenticating evidence.
Sunday, November 11, 2007
You're Gonna Kill That Girl: Natavia Lowery's Confession May Be Inadmissible in Future Linda Stein Murder Case
On October 30, celebrity realtor and former Ramones manager Linda Stein was murdered, and on Friday police though that they had cracked the case. Detectives had interviewed more than 60 people, but they finally caught a break when Stein's former assistant, Natavia Lowery, contacted them to complain about reporters outside her Williamsburg apartment.
Detective Kevin Walla then took Lowery to a Williamsburg diner, where Lowery confessed; she later provided another confession at a lower Manhattan precinct. Lowery told Walla that she snapped when Stein made racially-charged comments to her, blew marijuana smoke at her, and waived a weighted exercise bar in her face. Lowery admitted to grabbing the bar and killing Stein by striking her with it six or seven times.
If Lowery's attoreny has his way, however, the confession will never find its way into court. Her attorney, Gilbert Parris, claims that Lowery's confession should be deemed inadmissible because he had previously told police that Lowery was not to be interviewed if he was not present.
Without all of the facts of the case, it is difficult to determine whether Parris' argument will be successful. Looking at New York precedent, however, it looks as if there is a decent chance the confessions will be deemed inadmissible.
In People v. Skinner, 52 N.Y.2d 24 (N.Y. 1980), the Court of Appeals of New York (the equivalent of most states' supreme courts) granted a defendant's motion to suppress his confessions. Diane Snell had been found dead and police immediately focused their attention on the defendant, leading to repeated instances of questioning. See Id. at 26-27. As a result, the defendant's attorney told the police not to question the defendant unless he was present. See id. at 27.
Police later approached the defendant when his attorney was not present and told him that he had to appear at a lineup. See id. During the ensuing conversation, the defendant, after being given his Miranda warnings, made several damaging statements regarding his involvement in Snell's death. See id. The Court of Appeals of New York found that these statements were inadmissible because the defendant's attorney was not present. See id. The court found that the defendant did not have to be in custody for his statements to be inadmissible, and it concluded that the motivations of the police officers were irrelevant. See id.
Thus, assuming that Lowery's attorney is being accurate, and unless there are significant facts of which I am unaware, Lowery's statements will likely be inadmissible against her should she be put on trial.