December 8, 2007
Take Good Care Of My Baby: Texas Court Applies Its Disgrace Exception To The Rule Against Hearsay
A recent case in Texas state court reveals an important distinction between the Texas Rules of Evidence and the Federal Rules of Evidence concerning the admissibility of statements against interest. Pursuant to Federal Rule of Evidence 804(b)(3) and most state counterparts, when a declarant is unavailable to testify at trial, his prior statement is admissible if it was "at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."
Courts generally preclude the admission of hearsay statements, but the theory of admissibility for statements against interest is that a person is unlikely to lie in a manner that would cause him to lose money, property, or his freedom. The Advisory Committee Notes to Rule 804 further indicate that the unavailability of the declarant is required because at common law the "statement against interest" exception was among those hearsay exceptions which evolved in connection with the unavailability requirement.
Texas Rule of Evidence 803(24), which contains its "statement against interest" exception, differs from the federal rule in two key regards. First, the declarant does not need to be unavailable for the exception to apply. Second, Texas Rule of Evidence 803(24), in addition to covering the types of statements listed in the federal rule, also covers statements which would "make the declarant an object of hatred, ridicule, or disgrace."
In Lewis v. State, 2007 WL 4260327 (Tex.App.-Waco 2007), Timothy Lewis was convicted of capital murder in connection with the death of four year-old Tyrone Fenner, his stepson. At trial, Timothy argued, inter alia, that Tyrone's death was caused not by him but by his mother, Virginia. Tyrone sought to prove this allegation in part through Virginia's statement seven weeks before Tyrone's death to her mother-in-law. See id. at *2. Specifically, Virginia, who was nine months pregnant at the time, allegedly told her mother-in law, "I hate kids. I hate kids. I wish they would die." Id. Lewis argued that this statement was admissible pursuant to Texas Rule of Evidence 803(24) because it "would make Virginia the object of disgrace." Id.
The trial court, however, found that Virginia's statement was inadmissible, and the Court of Appeals of Texas agreed. The Court of Appeals noted that a reasonable woman who was nine months pregnant "could claim to hate children out of frustration and not because she actually harbors hate." Id. at *3. It further found that Virginia's statement was "not so unreasonable that a person in her position would not have made the statement unless she believed it to be true." Id. The court then contrasted Virginia's statement with statements it had found admissible under Texas Rule of Evidence 803(24) such as a declarant's statement that he was H.I.V. positive and a clergyman's statement that he had a homosexual encounter in a public bathroom.
I'm not sure that I understand how Texas courts apply their rules. The court in Lewis focused at least partially on the fact that Virginia's statement could have been made out of frustration and not because she actually harbored hate for children. I can see how this statement makes sense, but I don't see how it's relevant to the issue of whether her statement subjected her to ridicule. Furthermore, if the court's theory was that Virginia's statement really just showed her frustration, her statement would have been non-hearsay because it would not have been offered to prove the truth of the matter asserted in the statement.
December 7, 2007
Jury Duty: Illinois Judge Makes Baffling Rulings On Jury Testimony
A judge in Knox County Criminal Court in Illinois has made what I can only characterize as a bizarre evidentiary ruling in the post-conviction hearing for Charles W. Campbell. In 1992, after a jury trial, Campbell was convicted of armed robbery and sentenced to life imprisonment under the habitual criminal act. Robert Taylor was a juror in that case, and he was later called for jury duty in 2002, at which point he told the court that was not sure that he could be fair and impartial because in the Campbell case two other holdouts and he eventually succumbed to pressure by other jurors to find Campbell guilty despite thinking that there was insufficient evidence against him.
Based upon these statements, Taylor moved for a post-conviction hearing, alleging that his Constitutional rights had been violated. The hearing is being held before Ninth Circuit Judge James Stewart, who warned Taylor that there was a possibility of criminal charges being filed against him for jury misconduct depending on his potential testimony. The judge then advised Taylor of his right to remain silent, Taylor then invoked his right, and the court dismissed him.
Over the objection of the Knox County State's Attorney, however, the judge allowed two men who had conversations with Taylor about the jury deliberations to testify. Reverend Tyson Haywood, and his brother, Terry, both testified that Taylor told them about the doubts he had about Campbell's guilt and how he aceded to the opinions of other jurors.
The judge's rulings are baffling to me. Judge Stewart shouldn't have told Taylor that he could have faced charges if he testified; he should have told him that he was precluded from testifying. Federal Rule of Evidence 606(b) states that jurors can't testify about their thought process in reaching a particular verdict, but that they can testify about either whether extraneous prejudicial information was brought before any juror or whether there was any improper outside influence brought to bear on any juror. Illinois doesn't have a statutory counterpart to this Federal Rule, but in People v. Holmes, 372 N.E.2d 656, 660 (Ill. 1978), the Supreme Court of Illinois quoted the federal rule with approval.
In Chalmers v. City of Chicago, 431 N.E.2d 361, 363 (Ill. 1982), the Supreme Court of Illinois later noted: "It is well established in this State, and almost universally recognized, that a jury may not impeach its verdict by affidavit or testimony which shows the motive, method, or process by which the verdict was reached." While I was unable to find an Illinois case directly dealing with the issue of pressure from other jurors, there are manifold examples of other courts holding that jurors could not testify after a verdict that they changed their vote after buckling from pressure by other jurors. See, e.g., United States v. Lloyd, 462 F.3d 510, 519 (6th Cir. 2006).
Of course, not only did the judge thus incorrectly instruct Taylor, but he then compounded his error by allowing the Haywood brothers to testify about Taylor's statements to them about the jury deliberations. Their testimony was not only inadmissible pursuant to the principles behind Rule 606(b), but they also constituted hearsay in that the Taylor brothers were testifying to Taylor's out of court statements to prove the truth of the matter asserted in them. I also note that depending on the nature of Taylor's statements to Reverend Tyson Haywood, the statements could have been protected from disclosure under Illinois' privilege for confessions and admissions made to members of the clergy.
Burning Down The House: South Carolina Court Finds Confession Letter Inadmissible Despite Rule 804(b)(3)
Jeremy Phillips is on trial, facing charges that he beat his neighbor, Juan Roman, and set fire to his mobile home, resulting in Roman's death in August 2006. Based on testimony that has been given against him in his case, it looks likely that he will be convicted, although he was successful in having one key piece of evidence excluded.
Shannon Powell testified for the prosecution that after Roman's death, Phillips told her that he placed a PVC pipe in Roman's mouth, poured gasoline in the opening, and flipped a lighted object in, resulting in Roman being "lit up like a Roman candle." This testimony was admissible becuase Phillips' alleged statements constituted admissions, which are non-hearsay under South Carolina Rule of Evidence 801(d)(1).
Also testifyng against Phillips was Nakia Moss Gosett, Phillips' girlfriend. Gosett claimed that she was outside Roman's mobile home shortly before the fire started and that she saw Phillips and Jesse Willis inside. She testified that she saw Phillips and Willis kicking and stomping Roman with their steel-toed work boots, leaving him in a pool of blood. Willis and Gossett have also been charged in connection with Roman's death and await later trials.
When the prosecutor attempted to introduce a letter in which Willis admitted to setting the fire, however, the judge sustained defense counsel's objection that the letter was hearsay. I'm not sure that the court's decision was correct.
The letter does meet the definition of hearsay under South Carolina Rule of Evidence 801(c): it is an out of court statement which was offered to prove the truth of the matter asserted in it. At the same time, there is an exception to the rule against hearsay in South Carolina for statements against interest. Under South Carolina Rule of Evidence 804(b)(3), "[a] statement which at the time of its making...so far tended to subject the declarant to civil or criminal liability...that a reasonable person in the declarant's position would not have made the statement unless believing it to be true" is admissible as an exception to the rule against hearsay. Here, clearly WIllis letter exposed him to criminal liability in connection with Roman's death.
The problem, though, is that the hearsay exceptions contained in South Carolina Rule of Evidence 804 require that the declarant be "unavailable" to testify at trial. Under South Carolina Rule of Evidence 804(a)(1), however, a declarant is "unavailable" when he is "exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." Here, presumably if the prosecutor called Willis as a witness, he would have claimed his Fifth Amendment right against self-incrimination, rendering him "unavailable" under South Carolina Rule of Evidence 804(a)(1). Thus, my guess would be that either the prosecutor erred by failing to call Willis or by failing to argue South Carolina Rule of Evidence 804(b)(3) when trying to admit the letter, or that the court erred by holding the letter inadmissible.
December 6, 2007
Article Of Interest: Professor Deirdre Smith Addresses The Role Of Medical Evidence In The ADA Definition of Disability
Professor Deirdre Smith of the University of Maine School of Law has written a fascinating forthcoming article for the Tulane Law Review. The article, "Who Says You're Disabled: The Role of Medical Evidence in the ADA Definition of Disability," argues that many courts are improperly and perniciously requiring that plaintiffs bringing claims under the Americans with Disabilities Act produce expert medical evidence to establish that they meet the statute's definition of an individual with a disability lest they have their claims dismissed at the summary judgment stage.
Part of the article addresses the legal improprietary of such a requirement. Professor Smith notes, for instance, that requiring ADA plaintiffs to produce such expert medical evidence to "corroborate" their claims that they have disabilities runs contrary to the general rule that, at the summary judgment stage, the court should not resolve issues of credibility.
The article also delves into a rich and detailed analysis of how the "medical corroboration" requirement runs contrary to the very aims of the ADA. Before the ADA, a disability was viewed as something "wrong" with the disabled person, a condition that a doctor could conclude rendered him or her powerless to deal with the world. In passing the ADA, there was an attempt to shift from this "medical model" of disability to a broader and more empowering conceptualization of the term.
Judges' continued insistence on corroborating medical evidence as the sine non qua of an ADA claim stunts any such re-conceptualization and makes the "medical model" sacrosanct. Furthermore, as Professor Smith notes in analysis with both legal and social implications, not only do judges requiring corroboration medical evidence reinforce the "medical model;" they also express a judicial skepticism of disability claims, under which judges signal that we should be wary that those claiming disabilities are engaging in malingering.
After reading the article, I e-mailed Professor Smith to ask her what led to write the article, and she responded,
"In terms of what led to writing the article, it was really several factors. Most ADA scholars have spent much time scratching their heads about the incredibly lopsided pro-defendant results on summary judgment motions and trying to identify the specific reasons why the numbers seem so skewed. My own interest has long been about the intersection of medicine (especially psychiatry) and law, and the ADA case law provides a great laboratory in which to examine it. I've been stumbling around the mental illness cases for awhile looking at the role of experts & psychiatry (my earlier piece on personality & the ADA came out of that). Then I came across one of the fibromyalgia cases in which the D got summary judgment because the only evidence in the record was the plaintiff's description of her significant pain and limitations, and that led me to doing a broader examination of this pattern. I was stunned to find the large number of cases that seemed to turn on this, and the rationales were surprising as well. I was also surprised to see a number of plaintiffs lose because their doctors had said something at a deposition that was at variance with the plaintiff's own description of her disability. As I mentioned this research to some colleagues and friends the response was nearly universallly something to the effect of "Well, how do we know whether they are faking the disability? Shouldn't they have to show some medical proof to win?" That inspired me to look at some of the potential cultural (legal and nonlegal) underpinnings of the trend in the cases. Finally, I think I had in the back of my mind the experience of representing the deaf couple mentioned in the footnote towards the end of the piece whose privacy and dignity were nearly disregarded during the discovery process by the focus on whether they were "really disabled" (although they attended deaf schools and used ASL) and therefore really needed an ASL interpreter at the doctor. I sent them for audiological exams (which, of course, they hadn't undergone in years) and the defendants sought in discovery their complete educational records (one of my clients was 50 years old), their medical records, their marital counseling records, and recordings of when they had called 911. (The jury found both of the clients to be disabled but found discrimination only against one of them... a strange result and a long story)
I had a lot of fun writing the piece. I too hope that judges read it, and that plaintiffs lawyers read it as well and raise some of the points in their oppositions to summary judgment motions. Unfortunately, some of the bad case law is due to poor lawyering by plaintiffs' counsel at times but then the precedent is set for everyone. I also think that judicial notice has been under-used in this context."
As I wrote to Professor Smith, I feel that this is an extremely compelling article, and I sincerely hope that the readers of this site and judges across the country have the opportunity to read it.
Without Prejudice: Minnesota Court Likely To Find Felony Metamphetamine Posessesion Conviction Admissible Under Rule 609(a)
Timothy James Everson faces a string of misdemeanor charges in connection with a fatal traffic accident in Minnesota this March. Specifically, Everson was driving a semi that collided with a minivan driven by the pregnant Lisa Johnson. Johnson suffered serious injuries from the accident; her unborn child was killed. Everson has been charged with careless driving, having inoperative defective brakes, having none or an inoperative brake warning device, having clamp type brakes out of alignment, and driving a commerical motor vehicle while disqualified. Prosecutor Laurie Anderson has asked the judge hearing the case to allow into evidence the fact that Everson was convicted of felony metamphetamine posessesion in 2006 should Everson testify at trial to discredit is testimony. Everson's attorney has countered that the prejudice that Everson would suffer from the introduction of this conviction would outweigh any probative value it might have.
Minnesota Rule of Evidence 609(a) states, inter alia, that a witness can have his credibility attacked by introduction of a felony conviction if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect. A couple of factors make it likely that the court will find Everson's conviction admissible should he testify. First, the conviction is very recent, and courts generally find that recent convictions are highly probative of a witness' credibility. See, e.g., State v. Davis, 735 N.W.2d 674, 680 (Minn. 2007). Second, a prior conviction's prejudicial effect is typically directly proportional to its similarity to the charges at issue. See id. Thus, were Everson charged with driving while under the influence, his prior conviction would be prejudicial because it might lead jurors to infer that he had a propensity to use drugs/alcohol and that he acted in conformity with that propensity at the time of the alleged crime. As noted above, however, there is no contention in the Everson case that he was drunk and/or high at the time of the accident. Finally, while drug possession is not a crime which is directly probative of a witness' credibility like perjury or tax fraud, courts have generally been open to admitting drug possession convictions on the ground that they bear some logical relationship to witness' credibility. See, e.g., State v. Flemino, 721 N.W.2d 326, 329 (Minn.App. 2006). It thus seems likely that the court will rule in the prosecution's favor on this issue.
December 5, 2007
Doctor, Doctor, Give Me the News: Utah Court Finds Motive Defense Leads to Potential Waiver Of Physician-Privilege
In 2005, B.W., the adoped daughter of Leroy Worthen and his wife, attempted suicide and was admitted to the University of Utah Neuropsychiatric Institute. During a mental health examination, B.W. claimed that there had been a lot of family strife recently and that she had been getting in frequent fights with her mother. She claimed that she had been abused by her biological granparents but denied any other abuse. She also claimed that prior to her suicide attempt, she got into a heated argument with her mother.
B.W. later received inpatient and outpatient therapy and counseling, during which she wrote journal entries describing angry feelings toward her mother. A few weeks after writing her last journal entry, B.W. disclosed to her therapist that Leroy had sexually abused her. Specifically, she claimed that he committed numerous acts of abuse against her over the course of several years. Based upon these allegations, Leroy was charged with ten counts of aggravated sexual abuse of a child.
At a preliminary hearing in Leroy's case, his attorney sought to question B.W. about her journal entries. Upon the prosecution's objection that these entries were covered by Utah's physician and mental health therapist-patient privilege, Leroy's attorney contended that the entries went to motive and were admissible for impeachment purposes. Defense counsel claimed that his theory of the case was that B.W. hated her adoptive parents and thus fabricated the allegations in order to be removed from their house; the journal entries helped prove this motive.
The court thus had to determine whether it should review the evidence Leroy sought in camera because it was potentially admissible or whether no such review was necessary because it was inadmissible under Utah's physician and mental health therapist-patient privilege. That privilege, contained in Utah Rule of Evidence 506, states that if information is communicated in confidence and for the purpose of diagnosing or treating a patient, the patient has the privilege, during the course of the patient's life, to refuse to disclose and to prevent any other person from disclosing the information transmitted, the diagnosis/treatment, etc.
The privilege, however, has a few exceptions, such as 506(d)(1), which states that no privilege exists under Rule 506 when the patient's condition is an element of a claim or defense. Thus, for instance, if the plaintiff is claiming severe neck injuries after a car crash with the defendant, the plaintiff's statements to her doctor about the extent of her neck pain and the doctor's diagnosis would not be privileged because the defendant would be entitled to show that the plaintiff was exaggerating or making up her neck injury.
The prosecution, however, claimed that (1) because motive is not an element of any crime, it cannot be an element of any defense, and (2) that previous Utah cases had found, sub silentio, that impeachment evidence cannot constitute an element of a defense under any circumstances. The court rejected these arguments and held that it would review the evidence in camera.
In rejecting the prosecution's first argument, the court found that elements of a criminal offense do not necessarily correlate with the elements of a criminal defense. This makes sense to me. Clearly, for instance, insanity and diminished capacity are not elements of any criminal offense, but they are both clearly criminal defenses that defendants can raise.
In rejecting the prosecution's second argument, the court found that the previous cases cited by the prosecution found that evidence which generally impeaches the credibility of a witness cannot constitute an element of a defense; they did not find that evidence which indicates that a witness has a specific reason to lie in the case at hand cannot constitute an element of a criminal defense.
This distinction also makes sense to me because it is consistent with how courts treat these different types of impeachment evidence in other cases. Under Federal Rule of Evidence 608 and state counterparts, extrinsic evidence is inadmissible when a witness is being impeached generally, but extrinsic evidence is admissible when a witness is being shown to have a specific reason, such as bias against the defendant, to lie in the case at hand.
The Lone Ranger and Tonto Fistfight in Heaven: Utah Judge Reverses Verdict After Evidence of Juror Racial Bias
A judge of the United States District Court for the District of Utah has entered a landmark ruling in that court's application of Federal Rule of Evidence 606(b). An officer spotted Kerry Dean Benally, a Native American man, who was allegedly driving erratically in the White Mesa area in southeastern Utah. The officer than followed Benally to his residence. At this point, according to the officer, Benally, who appeared to be intoxicated, punched the officer and struck him in the face with a flashlight. Benally was charged with assault on a federal officer, and trial began and ended quickly with the jury finding Benally guilty as charged.
After the verdict was entered, however, a problem soon arose. When the jury was selected to hear the case, all seated jurors denied that they had any preconceived notions about Native Americans. According to juror Karen Cano, however, some jurors were either fooling the court or fooling themselves. Cano came forward after the verdict and told the court that the jury foreman told the other jurors that he had lived on or near a reservation and that he told the other jurors, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent." According to Cano, a female juror then seemed to agree with the foreman, saying something about what happens when "they get drunk." Cano also claimed that two other jurors talked about a need to send a message to the reservation.
Upon submission of an affidavit by Cano asserting these allegations, United States District Court Judge Dale Kimball vacated Benally's conviction and ordered a new trial because jurors had failed to answer honestly when asked about whether they had any preconceived notions about Native Americans. The U.S. Attorney's Office is currently considering whether to appeal the court's decision.
Federal Rule of Evidence 606(b) states that jurors can't testify about their thought process in reaching a particular verdict, but they can testify about either whether extraneous prejudicial information was brought before any juror or whether there was any improper outside influence brought to bear on any juror. See, e.g., People v. Steele, 47 P.3d 225 (Cal. 2002). Thus, Cano's affidavit would have been admissible if it stated that a newspaper article talking about inadmissible evidence in the case found its way into the jury deliberation room or if it stated that a relative of the officer or defendant threatened a juror.
However, Cano's affidavit would have been inadmissible if it stated that jurors ignored jury instructions, considered evidence that was presented in the case but later stricken from the record, or, according to some courts, stated that jurors used racial slurs. See, e.g., United States v. Roach, 164 F.3d 403, 413 (8th Cir. 1998) (finding that juror's proffered testimony that other jurors used racial slurs against Native Americans during trial was inadmissible under Rule 606(b)). Some courts, however, have expressed the viewpoint that precluding evidence of racial slurs used by jurors might violate the 14th Amendment. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 222 (6th Cir. 1995).
The United States District Court for the District of New Mexico addressed this issue in dicta last year in United States v. Foghorn, 2006 WL 4017477 (D.N.M. 2006), a case somewhat factually similar to the Benally case. In Foghorn, a Native American man appealed a jury verdict finding him guilty of second degree murder and kidnapping based in part on a juror affidavit claiming that another juror made the remark, "those poor Indians and their alcohol." Id. at *28. The District Court noted that there had been Tenth Circuit cases where courts declared mistrials when it was revealed during trial that a juror or juror made racial slurs. See id. at *29.
The court then found, though, that no Tenth Circuit opinion had conclusively addressed the issue of whether "a court may consider post-verdict evidence of racial bias in harmony with rule 606(b)." Id. The court additionally noted that courts in other jurisdictions were split over the issue. See id. After all of this discussion, however, the District Court found that the juror's statement was "ambiguous and subject to interpretation" and thus that it could not support reversal even if it were considered. Id. at 30. The Benally case thus appears to be the first case in which a court in the Tenth Circuit has considered post-verdict evidence of juror racial bias in reversing a verdict.
December 4, 2007
Expert Rites: Michigan Court Refuses to Qualify Social Worker As Expert Witness
Christopher Pratt has been charged with doemstic violence, felonious assault, destroying a telephone and unlawaful imprisonment in connection with acts he allegedly committed against his live-in girlfriend, Norreen Parker. During the prosecution's case last week, Parker testified that during the altercation at issue, Pratt threw two chairs at her, smashed the phone when she tried to call 911, and briefly held her inside their house.
Based upon a seemingly bizarre ruling by the Michigan court hearing the case, however, jurors were not able to hear the proffered testimony of Maureen McNamara, a social worker and therapist with Sexual Assault Services, who was set to provide expert testimony about domsetic violence. Despite the fact that McNamara has two master's degrees and years of experience helping victims of domestic violence, the judge refused to qualify her as an expert witness based upon the fact that she had not conducted scientific research or undergone peer review of her work.
Assuming that the article reporting Pratt's case is accurate, this decision makes no sense to me. Michigan Rule of Evidence 702 states in relevant part that "[i]f the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise...."
Like other courts, Michigan courts have been liberal in finding witnesses to be qualified as experts. Indeed, witnesses can be qualified as experts even if they lack any type of formal training or experience or if they are no a licensed professional in the relevant field. See, e.g., Mulholland v. DEC Intern. Corp., 443 N.W.2d 340 (Mich. 1989) (qualifying a witness as an expert witness despite the fact that he was not a licensed veterinarian and lacked formal training). In accordance with this liberal position, Michigan courts have frequently found that social workers with relevant experience counseling victims of sexual violence are qualified as expert witnesses on issues related to sexual and domestic violence without any requirement of peer review/publication. See, e.g., People v. Beckley, 456 N.W.2d 391 (Mich. 1990). Perhaps the article got the details of the Pratt case wrong, or perhaps there were issues at play of which I am unaware, but it certainly seems to me that the Michigan court's decision was clearly erroneous.
I Can't Get No Satisfaction: Hanukkah Case Reveals That Proving Accord And Satisfaction Is A Permitted Use Under Rule 408
Howard Budman was a tenant at Riverview Apartments, which were owned by Union River Associates in Ellsworth, Maine. In December 2002, the manager of Riverview Apartments served Budman with a notice to quit for failure to pay rent; the notice indicated that Budman could avoid the termination of his tenancy by paying the full amount of rent due within seven days. When Budman thereafter failed to pay the rent due, Union River filed a complaint for forcible entry and detainer.
In his answer, Budman admitted that he failed to pay his rent, but he claimed that he deposited the funds necessary to pay the rent due into an account and asserted that he was withholding his payment in response to Union River's violation of his civil rights. Specifically, the Jewish Budman argued that the apartment manager refused to take action after Budman complained to the manager that someone had taken down his Hanukkah decorations and that two swastikas were carved into the hood of his car. Budman further argued that the manager was responsible for an "ongong lack of action that has created an escalating anti-Semitic atmosphere."
At the Superior Court hearing, Budman argued, inter alia, that prior to the hearing there were settlement negotiations between the two sides. He claimed (1) that Union River agreed to dismiss the complaint if he paid his rent arrearages, (2) that he thereafter paid his rent arrearages to Union River, and (3) that despite his payment, Union River failed to dismiss the complaint. Budman sought to have his former attorney testify to these facts, but the Superior Court judge sustained Union RIver's objection that this testimony was inadmissible under Maine Rule of Evidence 408.
Maine Rule of Evidence 408 generally precludes the admission of evidence of compromises, offers to compromise, and related statements in order to prove the validity, invalidity, or amount of a claim. Maine Rule of Evidence 408, however, does not mention whether such compromise-related evidence is admissible for other purposes, and its federal counterpart explicitly states that Rule 408 does not require the exclusion of such compromise-related evidence if offered for other purposes.
When Budman's case reached the Supreme Court of Maine, the court properly found that the statements at issue were not covered by Maine Rule of Evidence 408 because they constituted an "accord and satisfaction" in that they showed that Union River agreed to discharge its existing claim against Budman for failure to pay his rent in exchange for his substituted performance. The statements were thus not offered to prove the validity, invalidity, or amount of a claim.
The court's decision makes sense to me, and it appears in line with every other case I have read dealing with statements constituting "accord and satisfaction" that are made during settlement negotiations. See, e.g., Morden v. Continental AG, 611 N.W.2d 659, 681 (Wis. 2000). In fact, some states' rules of evidence explicitly provide that evidence of compromises, offers to compromise, and related statements are admissible to prove accord and satisfaction. See, e.g., Wisconsin Rule of Evidence 904.08.
December 3, 2007
You Can't Fool Your Wife...But You Can Keep Her Silent: Florida Case Reveals That It Lacks a Crime-Fraud Exception To the Spousal Communications Privilege
Robert Scott Gattuso has been reinstated to his position as a sheriff's deputy in Florida after his case was closed based upon application of Florida's spousal communications privilege. Two years ago, Garruso's Nissan Pathfinder sunk in Lake Tarpon at night without any passengers. At 6:50 a.m., the officer who discovered the Pathfinder called Gattuso, who sounded disoriented and possibly intoixcated. Gattuso claimed that his wife was driving the Pathfinder while drunk, so he told her to pull over and picked her up, leaving the Pathfinder behind. When authorities contacted Gattuso's wife, however, she denied being drunk on the night that the Parthfinder sunk and claimed that Gattuso had told her that the sinking was a scheme between his brother and he to collect insurance money. If the sinking was indeed a scheme, it was successful because State Farm later paid Gattuso's insurance claim. With Gattuso and his wife later separating from each other, Gattuso changed his story to claim that he was having sex with another woman at the time the Pathfinder sunk. Then, because Gattuso's wife was largely precluded from testifying based upon Florida's spousal communications privilege, the case against Gattuso was closed before any charges were brought.
Florida's spousal communications privilege states that "[a] spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife." This privilege, which applies in some form in federal courts and many state courts, is in place so that spouses can be open and "honest" when communicating with each other without fear that their private communications will later be aired out in a court of law. Thus, assuming that Gattuso made his statements about his insurance scheme to his wife in confidence, Florida's case against Gattuso was properly closed if the case relied upon the wife's testimony.
The outcome, however, might very well have been different if Gattuso's case were heard in federal court or the court of another state. It's difficult to tell from the stories reporting the case, but it appears to me that Gattuso unsuccessfully attempted to get his wife to agree to lie to the police so that he could sink his Pathfinder and collect the insurance money. Under the version of the spousal communications privilege applied in federal courts and in many state courts, there is a "joint participants" or "crime-fraud" exception, under which statements made between spouses that were intended to further a crime or fraud are not covered by the privilege. See, e.g,. State v. Baluch, 775 A.2d 141, 148 (N.J.Super.A.D. 2001). I agree with the reasoning used by these courts that while we generally want to protect marital bonds, a privilege which protects the harmony of marital bonds forged in shared criminality may have little to recommend it. See id. Unfortunately, Florida only has a crime-fraud exception to its attorney-client privilege and its accountant-client privilege, despite the objections of some members of its judiciary. See State v. Famiglietti, 817 So.2d 901, 912 n.12 (Fla.App. 3 Dist. 2002) (Sorondo, J. dissenting).
Come Be My Conspiracy: Fifth Circuit Wrongfully Finds Not Guilty Plea Places Intent At Issue In All Conspiracy Cases
The Fifth Circuit Court of Appeals' recent decision in United States v. Swarn, 2007 WL 4013541 (5th Cir. 2007) gives me a good reason to attack what I feel is a wrongfully decided line of cases. Along with others, Lou Gene Swarn was charged with conspiracy with intent to distribute cocaine and the use of a communication facility in furtherance of the conspiracy. Swarn pled not guilty to all charges. At trial, over Swarn's objection, the prosecutor introduced into evidence his prior felony convictions for possession of cocaine pursuant to Federal Rule of Evidence 404(b). Federal Rule of Evidence 404 generally prohibits the use of other crimes or wrongs to prove that an individual has a propensity to act in a certain manner and the he acted in conformity with that propensity at the time of the alleged crime.
Thus, Federal Rule of Evidence 404 would have prohibited the prosecutor from introducing Swarn's cocaine convictions to prove that he had a propensity to use/sell cocaine and that he acted in conformity with that propensity at the time of the alleged conspiracy. Federal Rule of Evidence 404(b), however, allows for evidence of prior crimes or wrongs to be admitted for other purposes, such as proving intent and knowledge. And, in line with prior Fifth and Eleventh Circuit precedent, the court held that Swarn, like all defendants in conspiracy cases, put his intent at issue solely by pleading not guilty to the conspiracy charges. To me, this line of cases make no sense.
Sure, if a defendant in a conspiracy case pleads not guilty and claims that he agreed with other people to sell bags filled with white powder but argues that he thought that the bags contained baking soda, he would put his intent at issue. The prosecutor would thus be allowed to introduce evidence of his prior cocaine convictions to show that he knew that the white powder was cocaine and that he knew he was dealing drugs.
On the other hand, that same defendant could plead not guilty and claim that he didn't even know the other people selling drugs and that he never possessed a bag of drugs. Or, the same defendant could claim that he was friends with the other people selling drugs but left the moment they started passing around bags of drugs. In either case, the defendant would not be claiming that he committed certain otherwise criminal acts without the requisite criminal intent; instead, he would be claiming that didn't commit anything resembling a criminal act, meaning that intent wouldn't even be an issue.
I believe that the first Fifth/Eleventh Circuit case to find that a defendant pleading not guilty in a conspiracy case always puts intent at issue was United States v. Roberts, 619 F.2d 379 (5th Cir. 1980). To me, it is a decision ripe with illogic. In Roberts, the defendant was allegedly a minor player in a gambling conspiracy. At trial, he pleaded not guilty, and the prosecutor sought to introduce evidence his prior gambling conviction to prove his intent pursuant to Federal Rule of Evidence 404(b).
The Fifth Circuit granted the prosecution's motion over the defendant's objections, finding:
(1) that the offense of conspiracy requires an element of "intent or knowledge which is often difficult to prove;"
(2) that "[i]ntent is particularly difficult to prove when a defendant is a passive or minor actor in a criminal drama;" and
(3) that "if the government does not present intent evidence in its case in chief the defendant may simply rest and argue lack of intent to the jury without giving the opportunity to present such evidence in rebuttal." Roberts, 619 F.2d at 382-83.
Based upon these findings, the Fifth Circuit categorically concluded that "[i]n every conspiracy case, therefore, a not guilty plea renders the defendant's intent a material issue" unless and until the defendant affirmatively takes the issue of intent out of the case. Id. at 383. The Fifth Circuit then noted that when defense counsel moved to exclude evidence of the defendant's prior gambling conviction he indicated "that he would not actively contest the issue." Id. at 383. The court, however, found that this offer did not constitute the defendant affirmatively taking the issue of intent out of the case because it "did not reduce the burden on the prosecution to establish intent...." Id.
Let's look first at the court's first finding. The Fifth Circuit noted that a conspiracy charge requires proof of intent, which is often difficult to prove. This finding is correct, but that is simply because courts have recognized that in any crime, such as robbery or burglary, where intent is an element, "intent is often difficult to prove and often must be inferred from circumstantial evidence." See, e.g, United States v. Jernigan, 341 F.3d 1273, 1279 (11th Cir. 2003). And yet, with other intentional crimes, when a defendant simply pleads not guilty, his intent must, as the Jernigan court noted, be inferred from circumstantial evidence, not proven by prior bad act evidence admitted pursuant to Federal Rule of Evidence 404(b).
Perhaps the Fifth Circuit's second finding provides a rationale for treating conspiracy cases differently. The first thing I note is that the Fifth Circuit found that intent is particularly difficult to prove when a defendant is a passive or minor actor in a criminal drama. At best, this means that conspiracy cases should be treated differently than other cases involving intentional crimes when the defendant is a street level player. When the defendant is upper management, presumably intent should be less difficult to prove, and the case should be treated like any other case involving an intentional crime.
Moreover, there are plenty of cases where Rule 404(b) evidence is at issue, the defendant is a "minor actor" in a criminal drama, and yet a conspiracy is not charged. Thus, for instance, in United States v. Griggs, 149 F.3d 1188 (8th Cir. 1988), Griggs was charged with aiding and abetting the robbery of a post office based upon being the getaway driver; there was no conspiracy charge. Under the Fifth Circuit's analysis, by pleading not guilty, Griggs should have placed intent at issue, but no court has come to such a conclusion.
Furthermore, conspiracy is not the only type of crime where courts have noted that intent is especially difficult to prove. For instance, numerous courts have noted that it is especially difficult to prove intent to defraud. See, e.g., United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007). Under the Fifth Circuit's analysis, a defendant pleading not guilty in a fraud case should place intent at issue, but no court has come to such a conclusion.
Let's finally look at the court's last ruling. The Fifth Circuit stated that "if the government does not present intent evidence in its case in chief the defendant may simply rest and argue lack of intent to the jury without giving the opportunity to present such evidence in rebuttal." Roberts, 619 F.2d at 382-83. Again, this rationale could apply to any intentional tort.
More importantly, the Fifth Circuit rejected the perfect compromise that was raised by defense counsel in Roberts. As noted, defense counsel in that case indicated "that he would not actively contest the issue" of intent when he moved to exclude evidence of the defendant's prior gambling conviction. The court, however, found that this offer did not constitute the defendant affirmatively taking the issue of intent out of the case because it "did not reduce the burden on the prosecution to establish intent...." Yet this offer by defense counsel would have prevented the very issue that worried the court: that defense counsel could preclude the introduction of Rule 404(b) evidence during the prosecution's case and then argue lack of intent to the jury.
December 2, 2007
Another State of Mind: Why The State Of Mind Exception Shouldn't Cover The Future Acts Of Non-Declarants
The murder trial of high school seniors Jean Pierre Orlewicz and James Letkemann provides a good case for me to air a grievance about how some courts apply the state of mind exception to the rule against hearsay. Orlewicz and Letkemann are facing charges of first-degree premeditated murder, felony murder, and mutilation of a corpse in connection with the death of Daniel Sorensen. Sorensen was found burned, beheaded, and stabbed 13 times in a garage belonging to Orlewicz's grandfather. The Wayne County medical examiner's office has stated that an autopsy on Sorensen revealed that he was already dead before he was burned and beheaded.
At the preliminary examination of Orlewicz and Letkemann, Sorensen's girlfriend, Breana Milow was allow to testify:
(1) that Sorensen occasionally carried a revolver and a knife and expected to collect $3,000 on the day he was killed; and
(2) that he went to the garage on the day he was killed to extort money from someone Orlewicz knew.
However, when Millow attempted to testify that Sorensen told her that he had gone to the garage earlier that week and that the floors were covered with a tarp, the judge sustained defense counsel's objection that this testimony constituted inadmissible hearsay.
Michigan Rule of Evidence 803(3), its "state of mind" exception to the rule against hearsay, indicates that "[a] statement of the declarant's then existing state of mind..." is admissible. Rule 803(3), however, only allows for statements about future acts to be admissible. Thus, a husband's statement to his wife that he was about to go to the grocery store would be admissible to prove that the husband in fact planned to go to the grocery store. In the same way, Sorensen's statements to Milow that he planned to collect $3,000 on the day that he was killed and that he was going to the garage to extort money from someone were admissible under the rule.
On the other hand, Rule 803(3) does not allow for the admission of statements of memory or belief to prove the fact remembered or believed. See, e.g., People v. Moorer, 683 N.W.2d 736, 742 Mich.App. 2004). This is the reason why Sorensen's statement about going to the garage earlier in the week was inadmissible. All courts adhere to this past/future dichotomy.
There is a split among courts, however, as to whether the state of mind exception allows for the admission of statements that reflect on not only the state of mind of the speaker, but which also speak to the alleged future acts of some other person. In other words, some courts would have only allowed Milow to testify that Sorensen was going to the garage to extort money from "someone," while other courts, like the Michigan court, would have allowed Milow to testify that Sorensen was going to the garage to extort money from someone Orlewicz knew: presumably Letkemann.
First, I don't see how courts can follow the latter line of reasoning. Courts in the days before the Federal Rules of Evidence allowed for the admission of statements that reflected on not only the state of mind of the speaker, but which also spoke to the alleged future acts of some other person in cases such as Mutual Life Insurance of New York v. Hillmon; however, in passing Federal Rule of Evidence 803(3), the Report of House Committee on the Judiciary made clear that the Rule was only intended to allow for the admission of statements to prove the conduct of the declarant, not to prove the future conduct of another person. Notwithstanding this legislative history, some courts have erroneously applied the Rule to allow for the admission of statements reflecting on the future acts of both the speaker and another person. See Glen Weissenberger, Judge Wirk Confronts Mr. Hillmon, 81 B.U. L. Rev. 707, 713 (2001). (It is unclear from the Sorensen case whether the Michigan court became one of those courts or whether defense counsel merely failed to object to the testimony.).
The second point that I want to raise is that courts following this latter line of reasoning are contradicting themselves by, in effect, allowing for the admission of statements of memory or belief to prove the fact remembered or believed. In effect, Sorensen's extortion statement can be broken down into two components. First, he told Milow that he planned to go to a gargage to extort money from someone. This portion of his statement was not a statement of memory because its validity did not rest upon Sorensen's reflective capacity. Sorensen could have told the person he was supposed to meet (and extort) that he planned to meet him in a high rise apartment building, and when he talked to Milow he could have incorrectly remembered his prior conversation and thought that the meeting was supposed to be at a garage. His faulty memory, however, would not discredit his statement. When Sorensen talked Milow, he planned to go to the garage, and unless he later changed his mind, he would have ended up at the garage.
The second component of Sorensen's statement was that he planned to meet someone Orlewicz knew -- presumably Letkemann. This portion of the statement was a statement of memory because its validity rested upon Sorensen's reflective capacity. Here, let's assume that Sorensen thought that he was meeting with Letkemann based upon the statement of Orlewicz or Letkemann earlier in the week. Let's say in fact, though, that he was instead supposed to meet some third person -- John Doe -- at the garage. Here, Sorensen's faulty memory would discredit his statement. When Sorensen talked to Milow, he planned to meet with Letkemann, but if his memory were incorrect, he would instead have met up with Doe. Therefore, this portion of Sorensen's statatement would be a statement of memory or belief to prove the fact remembered or believed and should have been held inadmissible.