November 24, 2007
That's Not A Knife Wound: Australian Studies Produce Fascinating Conclusions On "Gruesome" Evidence
Two mock trial studies in Australia have produced fascinating conclusions about the effect of "gruesome" evidence on jurors. According to the studies, jurors presented with "gruesome evidence," such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence.
David Bright, a USNW PhD student involved with the study noted that "the prejudicial influence of gruesome evidence on decision making occurs at an unconscious level. Jurors appear to be unaware of the extent to which they are susceptible to prejudice as a result of exposure to this type of evidence." The studies also concluded that safeguards, such as judicial directions that jurors should view such evidence in a calm and deliberate manner probably don't offer sufficient protection to defendants.
The studies call into question the way that Australian courts have treated this "gruesome evidence." Currently, Australian judges are reluctant to exclude such material. Specifically, Australian case law reflects an assumption that post-mortem photographs have little or no prejudicial impact on juries.
These studies have provided empirical support for concerns about prejudicial evidence outlined by the Australian Law Reform Commission and the Government's Advisory Committee on the Federal Rules of Evidence that prejudicial evidence such as gruesome photographs can damage a defendant's case by provoking an irrational, emotional response, or giving evidence more weight than it warrants.
Of course, this study also calls into question the way that American courts treat "gruesome" evidence. Under Federal Rule of Evidence 403 and most state counterparts, there is a liberal standard for admissibility, with relevant evidence being admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, etc. "Gruesome" evidence such as post-mortem photographs, typically passes the Rule 403 test. See, e.g., State v. Fletcher, 609 S.E.2d 572, 591 (S.C. App. 2005).
I have always been of the view that jurors do not "need to be protected from themselves," see, e.g. State v. Bocharski, 22 P.3d 43, 57 (Ariz. 2001)(Martone, J., concurring), but these studies have caused me to questioned not only the validity of this viewpoint, but also its relevancy. First, maybe jurors do need to be protected from themselves. Second, and more importantly, however, maybe the relevant question is not whether jurors need to be protected from themselves, but whether defendants (and the law?) need to be protected from "gruesome" evidence.
November 23, 2007
Shop Smart. Shop S-Mart. Ohio Court Finds Res Ipsa Loquitur Inapplicable in Black Friday Wal-Mart Case
One morning, shortly after 6:00 a.m. in November, 2000, Pamela Tackett was shopping at a Wal-Mart store for a bicycle. She eventually came upon a display of disassembled boxed bicycles in the outside garden area. Tackett claimed that the boxes were stacked four boxes high on their narrow eight inch side, totaling approximately twelve feet high. Wal-Mart has a general rule that its freestanding box displays should not be stacked higher than five feet high, in order to prevent the items on display from being unstable and unsafe to patrons. Tackett claims that while she was looking at a bicycle box on the floor, a box fell from the top of display, causing injuries to her head, shoulders, and arm.
Tackett thereafter sued the superstore under a few theories of recovery, including a cause of action under the doctrine of res ipsa loquitur, a Latin phrase that means "the thing speaks for itself." Plaintiffs typically use this rule of evidence when they are unable to prove specifically how an accident occurred but they are able to prove that the accident was the type of accident that would not occur in the absence of negligence.
This September, the District Court for the Southern District of Ohio heard Tackett's case and noted that for the doctrine of res ipsa loquitur to apply, a plaintiff must prove (1) that the instrumentality that caused the accident was under the exclusive management and control of the defendant, and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. See Tackett v. Wal-Mart Stores, East, Inc., 2007 WL 2668133 at *4 (S.D. Ohio 2007).
If the accident occurred on an ordinary day, perhaps the court would have accepted Tackett's argument. But the day of Tackett's accident was not any ordinary day. Instead, it was Black Friday, the day after Thanksgiving, which is typically either the busiest shopping day of the year or second only to the day after Christmas. The court thus rejected Tackett's argument, noting that Wal-Mart was not in complete control of the bicycle display when Tackett' accident occurred because it occurred "on the busiest shopping day of the year, at the busiest time of day. There were numerous customers in the area, several boxed bicycles had already been purchased, and several customers had physically touched, moved, and/or manipulated the boxes." Id.
The court thus found that the doctrine of res ipsa loquitur did not apply to Tackett's case, although it did find that there were triable issues of fact on Tackett's specific claim that Wal-Mart was negligent in stacking the boxes. The bottom line seems to be that if a retail store commits some specific act of negligence on Black Friday, early bird shoppers may be able to recover, but otherwise, it's every man for himself.
November 22, 2007
Mississippi Masala: Thanksgiving Self-Defense Case Reveals That Mississippi Has a Unique Interpretation of Rule 405(b)
In 2005, a jury in Mississippi found Tabitha Yolanda Miller guilty of manslaughter. At trial, it was adduced that Miller and Calvin James, the victim, had a brief, but tumultuous, romantic relationship. In November, 2000, Miller broke up with James, and her children and she were thereafter invited to a Thanksgiving dinner. James appeared at the Thanksgiving dinner intoxicated and caused a disturbance.
After dinner, Miller drove to the house of her ex-sister-in law, and, upon arrival, she saw that James was following her; he followed her into the house and cursed at her. Later, Miller had in her hand a knife which she was going to use to cut a cake, but James began pushing and shoving her. Miller thereafter called 911, but James continued to curse her.
James then allegedly punched Miller in the face, Miller warned him to get back, and James grabbed a butcher's knife and drew it back. Allegedly fearful that James was going to stab her, Miller stabbed James in the chest. James was later pronounced dead at a local hospital, and Miller first claimed that he fell on the knife before changing her story.
After being convicted of manslaughter, Miller claimed that the trial court erred by refusing, pursuant to Mississippi Rule of Evidence 404(a)(2), to allow her to present evidence of a continuing course of violence that James inflicted on her to establish the reasonableness of the fear that James was going to stab her and thus that her actions were in self-defense. The Supreme Court of Mississippi reversed Miller's conviction and found that her argument was correct in that pursuant to Mississippi Rule of Evidence 404(a)(2) a criminal defendant can present evidence that the victim had a pertinent character trait, such as a character for being violent.
If the case were being heard in federal court or most state courts, this decision would have been incorrect. While pursuant to Federal Rule of Evidence 404(a)(2), a criminal defendant is able to present evidence that the victim had a pertinent character trait, Federal Rule of Evidence 405(a) limits the methods of proof to opinion and reputation testimony. Therefore, Miller would have been entitled to present a witness who would have testified that in his opinion James was violent and that James had a reputation in the community for being violent, that witness could not have testified to specific acts of violence by James.
Federal Rule of Evidence 405(b) does allow for the introduction of specific acts of an individual to prove his character, but this Rule only applies when character is an essential element of a claim or defense (such as in a libel case) and does not apply in self-defense case. See, e.g., United States v. Gregg, 451 F.3d 930, 933 (8th Cir. 2006). Mississippi, however, has a unique interpretation of its version of Rule 405(b), under which the character of the victim becomes an "essential" element of the defense of self-defense when there is evidence of an overt act by the victim against the defendant. See, e.g., Hester v. State, 841 So.2d 158, 163 (Miss.App. 2002). In such cases, the defendant can therefore introduce into evidence specific acts of, for instance, violence by the victim to prove that he was a violent person. Thus, because there was evidence that James punched and brandished a knife against Miller, she was entitled to present evidence of past acts of violence by James.
November 21, 2007
Take Me To Another Place?: Recent Decision Reveals Tennessee's Heightened Skepticism of Expert Opinion Evidence
The recent opinion of the United States District Court for the Eastern District of Tennessee in Brooks v. Wal-Mart Stores East, L.P., 2007 WL 3389925 (E.D. Tenn. 2007), reveals that the proponent of expert opinion evidence in cases governed by the Tennessee Rules of Evidence bears a higher burden than the proponent of expert evidence in cases goverened by the Federal Rules of Evidence. In Brooks, the plaintiff sued Wal-Mart, alleging that its superstore in Tennessee allowed water to accumulate on the concrete floor of the entrance, causing her to slip and fall and suffer at least $750,000 in damages.
Wal-Mart then brought a motion for summary judgment dismissing the complaint, and the court granted the motion while noting the distinctions between federal and Tennessee law. Under Federal Rule of Evidence 702, as amended in the wake of the Supreme Court's ruling in Daubert, in order for expert opinion evidence to be admissible, it must assist the trier of fact to understand the evidence or determine a fact in issue, be given by a qualified witness, and (1) be based upon sufficient facts or data, (2) be the product of reliable principles and methods, and (3) be based upon a reliable application of the principles and methods to the facts of the case. The requirement that the expert's opinion "assist the trier of fact" is essentially a restatement of Federal Rule of Evidence 403, which holds that a judge may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, etc.
Conversely, under Tennessee Rule of Evidence 702, expert opinion evidence is only admissible if it will "substantially assist the trier of fact" to understand the evidence or determine a fact in issue. (emphasis added). Courts have consistently held that the addition of the word "substantially" is not merely a semantic difference in the Tennesse Rules of Evidence but instead reflects the fact that the burden for admissible expert opinion evidence "under the Tennessee Rules of Evidence is higher than [under] the Federal rule." Brooks, 2007 WL at *1 n.1. In other words, Tennessee requires that expert opinion testimony have stronger "probative force" than expert opinion testimony presented under the federal rules. See, e.g., State v. Prentice, 113 S.W.3d 326, 334 (Tenn.Crim.App. 2001).
In my search through Tennessee case law, however, I was unable to determine exactly how it modifies the Rule 403 balancing test. Obviously, as under the Federal Rules, relevant expert opinion evidence under Tennessee law is inadmssible if its probative value is substantially outweighed by the danger of unfair prejudice, etc., but is it inadmissible if its probative value is merely outweighed by the danger of unfair prejudice, etc., but not to a substantial degree? Or does Tennessee law actually require that the probative value of relevant expert opinion evidence outweigh the danger of unfair prejudice, etc.? As facr as I can tell, not Tennessee court has laid out the exact contours of the balancing test.
What I can say, though, is that a search through Tennessee case law and a recent decision in another state reveals that Tennessee's rules will often place its courts at odds with federal courts and most other state courts. I've blogged before about the infamous Moe Gibbs case, which recently ended with Gibbs being found guilty of murder. (As I noted before, I think that Gibbs has good ground for appeal based upon the court's incorrect rule of completeness ruling). A key piece of testimony in the Gibbs' case was the expert opinion testimony of a doctor that the amount of DNA evidence belonging to Gibbs found under the victim's fingernails was the result of "vigorous physical contact" between the two and not the result of a secondary transfer which might have resulted from the two touching a common item.
Conversely, in State v. Williams, 2006 WL 3431920 (Tenn.Crim.App. 2006), the Court of Criminal Appeals of Tennessee found that a Tennessee trial court erred by allowing an expert to opine that the amount of the defendant's DNA found under the victim's fingernails suggested that it was the result of something more than casual contact because the opinion lacked sufficient probative force.
November 20, 2007
The Wrongdoers: Colorado Finds Forfeiture By Wrongdoing Doctrine Does Not Preclude Hearsay Challenge
In June 2002, Jimmy Vasquez was placed under a restraining order prohibiting contact with his wife, Angela Vasquez. In July 2002, Jimmy was arrested on harassment charges and released on a bail bond which again prohibited contact with his wife. In August 2002, Angela reported to police that Jimmy was violating both the restraining order and the bail bond by calling her frequently and leaving phone messages.
As a result of this reporting, Jimmy was convicted of violating the restraining order and bond conditions. Shortly after Angela reported to the police, and two days before Angela was to testify in the trial on the harassment charges brought against Jimmy, her dead body was discovered in a hotel room. An officer at the crime scene encountered Jimmy, who admitted that he killed his wife because she set him up. Jimmy was later tried and convicted of murder in the first degree in connection with Angela's death.
In the harassment case, over Jimmy's objection, the trial court admitted Angela's statements to police identifying the voice on the phone messages as Jimmy's voice in August 2002. After Jimmy was convicted, he appealed to the Supreme Court of Colorado on several grounds, including the ground that the admission of Angela's hearsay statements violated his rights under the Confrontation Clause.
Under Federal Rule of Evidence 804(b)(6), added in 1997, "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness" is "not excluded by the hearsay rule...." While Colorado has not adopted a state rule of evidence similar to Rule 804(b)(6), the Supreme Court of Colorado has adopted a form of this doctrine of "forfeiture by wrongdoing" in People v. Moreno, 160 P.3d 242 (Colo. 2007).
What the Supreme Court of Colorado had to address in the Vasquez case, however, was whether this doctrine of "forfeiture by wrongdoing" means that the wrongdoer only waives his objections under the Confrontation Clause or whether he also waives his hearsay objections. In other words, a party who engages in forfeiture by wrongdoing waives his objection that he could not confront the witness whom he prevented from testifying through his wrongdoing, but can he still object that the witness' statements are inadmissible hearsay?
As the Supreme Court of Colorado noted, most courts interpreting the "forfeiture by wrongdoing" doctrine have held that the wrongdoer waives both his Confrontation Clause and hearsay objections because the Confrontation Clause and the hearsay rules are designed to protect similar values and because the Confrontation Clause, as a Constitutional provision, provides more expansive protections than the hearsay rules. The court then noted, however, that a small minority of courts have held that while the wrongdoer waives his Confrontation Clause objections, he does not waive the objection that the evidence the other party seeks to introduce constitutes inadmissible hearsay. The Supreme Court of Colorado adopted this approach, noting that it still had to ensure that the evidence introduced against the wrongdoer was reliable.
I find this conclusion troubling. In arguing that Rule 804(b)(6) should be added in 1997, the Advisory Committee noted that the Rule "filled the need for a prophylactic rule to deal with abhorrent behavior 'which strikes at the heart of the system of justice itself.''" In other words, we don't want a party to be able to kill a witness so that the witness' statements cannot be used against him at trial.
What the Supreme Court of Colorado is saying, however, is that in the typical case where a witness makes out-of-court statements implicating a defendant and the defendant kills the witness, Rule 804(b)(6) serves no practical purpose because the witness' statements will still be excluded as hearsay. Only in the rare case where the witness' statements happen to meet some hearsay exception will the rule have any teeth and serve its prophylactic purpose. The very purpose of the "forfeiture by wrongdoing" doctrine is to shift the court's focus from the reliability of the statements at issue to the equitable goal of preventing a party from benefiting from his wrongdoing, but the Supreme Court of Colorado collapses this dichotomy in its analysis. See Crawford v. Washington, 541 U.S. 36, 62 (2004).
In the end, though, the court's ruling had no practical effect in the Vasquez case because the court determined that Angela's statements were admissible pursuant to Colorado Rule of Evidence 807, which contains Colorado's residual hearsay exception. This decision, however, raises another question. Like its federal counterpart, Colorado Rule of Evidence 801(d)(1)(C) defines statements identifying a person as admissible non-hearsay. While a statement of identification typically involves a witness identifying a defendant at a lineup, some courts have applied it to the identification of a person based upon identifying his voice. See, e.g., United States v. Ramirez, 45 F.3d 1096, 1101 (7th Cir. 1996). I'm not sure whether those rulings are based upon a correct application of Rule 801(d)(1)(C), but it would have been interesting to see how the Supreme Court of Colorado would have addressed the issue.
November 19, 2007
Sketch Artist: Virginia Court To Resolve Whether Crime Scene Sketch Constitutes Inadmissible Hearsay
Last year, Lieben Marie Patrick was found guilty of attempted murder after she hit a 3 year-old girl and another woman, Angela Amos, with her car. According to the evidence at trial, Patrick went to Amos' home on Christmas Eve, and the two immediately started fighting. Patrick then refused to leave Amos' home, which led to Amos walking out of her house; she eventually came upon Rosanna Orange and three of her children near the top of a hill. Allegedly, Patrick then left Amos' house in her car, struck Amos, struck Orange's then 3 year-old daughter, backed up over the girl, and then fled the scene. Patrick's attorney contended that Patrick was struggling with the gearshift and didn't see Amos or the girl until it was too late.
At Patrick's trial, she claimed that a statement by Amos that she was near the edge of the road when she was struck conflicted with Orange's testimony that Patrick drove as much as six feet from the edge of the road to strike her daughter. Furthermore, over her attorney's objection, the trial judge allowed into evidence a sketch that a police officer made of the crime scene based upon Orange's statements about where her daughter was struck. Specifically, her attorney claimed that this sketch was hearsay because the officer did not view the "crime scene" and that the prosecution improperly relied upon the officer's credibility to back up the sketch rather than Orange's testimony alone. Now, Patrick is arguing these points on appeal.
I think that Patrick's argument might have merit. Virginia courts have held that when a victim describes his or her assailant to an officer who creates a composite sketch, the sketch is not hearsay because it does not constitute a "statement" but instead is similar to a photograph. See Harrison v. Commonwealth, 384 S.E.2d 813, 815 (Va. App. 1989). However, while I was unable to find any Virginia cases directly on point, most courts treat crime scene sketches differently.
Thus, for instance, in State v. Randolph, 462 A.2d 1011 (Conn. 1983), the Supreme Court of Connecticut was faced with the question of whether a police officer's sketch of a crime scene that he made based upon a witness' memory of the scene was admissible. The court found that "[a] sketch that is drawn up based upon a witness' personal observation and which is introduced through that witness who is competent to identify and explain its contents would not be hearsay assuming the sketch is being introduced in order to illustrate or explain the witness' in-court testimony." Id. at 1017 (emphasis added). On the other hand, such a sketch could not be introduced through the testimony of the police officer because in such a case it would be offered to prove the truth/accuracy of the sketch rather than to explain the witness' testimony. See id.
It is a little bit unclear from the article discussing Patrick's case how the "crime scene" sketch was introduced into evidence, but it appears that it was introduced at least partially through the testimony of the police officer. If this were the case, the trial court's decision would have been erroneous. If, however, the sketch were introduced through and used to illustrate Orange's testimony, the trial court's decision would have been proper.
The Shrink(ing) Privilege: Vermont Court Takes Overly Broad View Of Waiver Under Psychotherapist Privilege
In Rose v. Vermont Mutual Insurance Company, 2007 WL 3333394 (D. Vt. 2007), Christine Rose was involved in a car accident and settled her claim with the other driver for his insurance policy limit of $50,000. Rose then demanded additional damages from her own insurance company, alleging damages such as "emotional distress." Id. at *1. Her insurance company countered that Rose had a historic problem with depression and thus requested disclosure of persons who saw Rose for her depression and a copy of their records. See id.
Vermont Rule of Evidence 503 contains a psychotherapist-patient privilege, which states that a patient has the privilege to refuse to disclose confidential communications made for the purpose of diagnosis or treatment, and title 12, section 1612 of the Vermont Statutes Annotated prohibits a mental health professional from disclosing confidential information unless the privilege is waived. What the district court in Rose had to decide was whether Rose waived the privilege by seeking damages for emotional distress.
The court cited to Ruhlmann v. Ultster County Department of Social Services, 194 F.R.D. 445 (N.D.N.Y. 2000), for the proposition that there is a split among courts, with some courts taking a "narrow view" of waiver and some courts taking a "broad view." Id. at *2. An example of a court following the narrow view is the District Court for the Northern District of Illinois, which found that a plaintiff would waive the privilege if she put her state at mind at issue by having her psychotherapist testify that she suffered from emotional distress, see Allen v. Cook County Sheriff's Department, 1999 WL 168466 (N.D. Ill. 1999), but that a plaintiff would not waive the privilege merely by seeking damages for emotional distress resulting from a defendant's misconduct, see Hucko v. CIty of Oak Forest, 185 F.R.D. 526 (N.D. Ill. 1999).
On the other hand, other courts take the broad view and hold that a plaintiff waives the privilege merely by seeking damages for emotional distress. See Jackson v. Chubb Corp., 193 F.R.D. 216 (D. N.J. 2000). Without any analysis, the court in Rose concluded that it would adopt the broad view and find that the psychotherapist-patient privilege was waived as to Rose's claims for emotional distress.
A closer look at Ruhlmann, however, makes it appear as if the court in Rose skimmed that case and cited it as its main authority but failed read it in its entirety. After discussing the split among courts taking the narrow view and the broad view, the court found that even those courts taking the borad view find the privilege waived only when a plaintiff makes specific and significant claims of emotional harm and that the privilege is not waived when a plaintiff merely makes a "garden-variety" claim for emotional distress damages. Ruhlmann, 194 F.R.D. at *49. Therefore, a plaintiff like Rose who merely seeks damages for emotional distress would not waive the privilege while a plaintiff seeking damages for mental harm, including "anxiety, paranoia, depression, and hallucinations," would waive the privilege. Thus, by citing to Ruhlmann and yet failing to distinguish it (or provide any analysis), the Vermont court erred.
November 18, 2007
Runaway Bride? Utah Court Faces Hearsay Questions In Anticipation of Bridenapping Trial
Things are heating up in anticipation of the highly publicized bridenapping case in Utah. Lemuel and Julia Redd are accused of kidnapping their adult daughter, Julianna Myers, the day before she was to marry Perry Myers. At a recent preliminary hearing, Julianna testified that after her parents picked her up to shop for wedding clothes, they kidnapped her against her will and took her to Grand Junction, Colorado so that she would not marry Perry.
The Redds' attorneys seek to introduce evidence that Perry is a media whore who influenced the claims and actions of others around him by making sensationalist claims to police and by pressuring Julianna to say that she was kidnapped. Specifically, they have noted that Perry initially told police that Julianna's parents were simply trying to keep her from the wedding and that he wasn't concerned for her safety, but later changed his story and said that he was worried that it was a possible murder-suicide scenario. Utah County attorney Curtis Larson has countered that any statements by Perry would constitute inadmissible hearsay.
It's difficult to say how the court will rule without knowing the specific statements by Perry at issue, but it appears that there are two ways in which defense counsel could argue that they are admissible. Utah Rule of Evidence 801(c) defines hearsay as a statement "offered in evidence to prove the truth of the matter asserted." Thus, for instance, if defense counsel tried to introduce statements by Perry that he didn't think that Julianna was kidnapped to prove that she, in fact, was not kidnapped, the statements would be indmissible hearsay.
If, however, as the defendants' attorneys claim, they have evidence that Perry made statements to Julianna that were intended to pressure Julianna into saying that she was kidnapped, defense counsel would not be introducing those statements to prove that what Perry said was true, but instead to show their possible effect on Julianna, who might have thereafter lied in claiming that she was kidnapped. The statements would thus not constitute hearsay.
On the other hand, if no such statements exist, if Perry testifies at trial, Utah Rule of Evidence 613 states that Perry could be impeached by his prior inconsistent statements. Thus, for instance, if Perry testifies at trial that he always thought that Julianna was kidnapped and that he feared for her safety, defense counsel could use his prior statements to the contrary to impeach his testimony at trial.