December 22, 2007
London Calling: U.K. Suspends Its Use of Low Copy Number DNA IN Wake of Hoey Acquittal
In what appears to be the across the pond equivalent of the FBI lead bullet analysis fiasco, the United Kingdom has suspended its use of "low copy number" DNA. Low copy number DNA allows the genetic profiles of suspects, victims or witnesses to be "uncovered" even when there is only a tiny amount of biological material present, sometimes as small as a milionth of the size of a grain of salt. The technique amplifies these tiny DNA fragments when it is believed that a suspect may have transferred DNA through touch, like the residue believed to have come from cells such as skin or sweat left in a fingerprint.
Since this technique was launched in 1999, it has been consistently doubted in the scientific community, and it has thus only been used in the U.K., the Netherlands, and New Zealand. Nonetheless, it has found popularity in the U.K., being used 21,000 times in its nine years of existence. That popularity now looks like a pernicious mistake which should result in an avalanche of appeals by criminals who were convicted using the method.
This avalanche is likely to come as a result of the acquittal of Sean Hoey, the only man charged in connection with the Omagh car bombing. The prosecution in Hoey's case used low copy number DNA evidence to link him to some of the explosive devices used in the bombing. The judge in the Hooey case, Mr Justice Weir, found that Hoey was not guilty and was extremely critical of the evidence, noting how few countries use it and how it had been used to wrongly link a 14 year-old schoolboy to a bomb in Lisburn. In the wake of the Hoey case, the Crown Prosecution Service ordered a re-examination of current cases relying on low copy number DNA evidence, and the Association of Chief Police Officers has suspended its use of it.
To me, the Hoey case brings to mind the Moe Gibbs case. In the Gibbs case, a key piece of the prosecution's case was expert testimony 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. Other courts, however, have found that similar proposed expert testimony is inadmissible as overly speculative. It seems to me that it's only a matter of time before the type of expert testimony used in the Gibbs case is found to be unacceptably unreliable.
December 21, 2007
Witness For The Prosecition: Montana Supreme Court Finds Trial Court Properly Circumscribed Cross-Examination Of State's Witness
In State v. Wilson, 2007 WL 4305475 (Mont. 2007), the Supreme Court of Montana affirmed Bianca Wilson's felony conviction for tampering with evidence. Here are the (very) abbreviated facts of the case. In September 2004, Wilson and Jesus Villareal allegedly drove to Lovell, Wyoming in a blue Ford Taurus to meet with Justin Marchant, who turned out to be a confidential informant. Allegedly, Marchant later entered the Taurus, and Wilson shot her with a gun, leading to Marchant either jumping out of or being ejected from the Taurus. Authorities later discovered Marchant's dead body on a gravel road. Subsequently, investigators caught up with Villareal and others (but not Wilson), and Villareal called Wilson to tell her to meet him, leading to her arrest. When the investigators searched the Taurus, however, they found no murder weapon but did find evidence that blood had been cleaned from the car.
Wilson was subsequently charged with aggravated kidnapping and deliberate homicide, and Villareal was charged with aggravated kidnapping, but those charges were later dropped. Wilson and Villareal were then charged with tampering with evidence of the homicide of Marchant, and Villareal accepted a plea deal with the State and was granted immunity in exchange for pleading nolo contendere and testifying against Wilson at trial.
During his opening statement, defense counsel wanted to make statements about Villareal's motives to kill Marchant, which included the fact that Villareal allegedly knew that Marchant was a confidential informant, that Marchant owed Villareal money for drugs, and that Villareal had threatened to kill Marchant on a previous occasion. Defense counsel claimed that these motives were relevant because they explained why Villareal would want to shift blame for Marchant's murder to someone else and because they explained why it might have been Villareal, and not Wilson, who covered up the crime by tampering with the evidence. The district court judge denied defense counsel's motion, finding that this motive evidence was not "relevant to the strict issue of whether or not Ms. Wilson tampered with evidence as these elements are defined in the criminal code. So we're not going to try the homicide here or anybody else's motives for homicide, that's a different case...."
Villareal thereafter was the only witness who testified that Wilson tampered with the murder weapon. During cross-examination, defense counsel did not ask Villareal about his motives to kill Marchant pursuant to the court's ruling, but did ask him about his nolo contendere plea, the grant of immunity, his prior drug use and distribution, and inconsistencies in his testimony. After Wilson was convicted, she appealed, claiming, inter alia, that the district court violated her rights under the Confrontation Clause by precluding her from questioning Villareal about his motives for killing Marchant.
Pursuant to the Supreme Court's opinion in Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986), the main and essential purpose of the right to confrontation is to secure for the opponent the opportunity of cross-examination, which includes an opportunity to expose the witness' motivation in testifying. At the same time, the right to cross-examination is not absolute and does not allow for cross-examination which would confuse the issues or be of only marginal relevance. See id. at 679. Pursuant to Van Arsdall, the Supreme Court of Montana found that cross-examination of Villareal on his motives to kill Marchant would have confused the issue from whether Wilson was guilty of tampering with evidence to the issue of whether Villareal killed Marchant and that such cross-examination would have been of only marginal relevance given the cross-examination of Villareal on other issues that was allowed.
I disagree with the court's ruling and find it egregious that the court failed to mention a key concern in any Confrontation Clause analysis. Courts consistently hold that the right to confrontation is particularly important and must be liberally construed when the witness to be confronted is critical to the prosecution's case and when the witness may have a substantial reason to cooperate with the government. See, e.g., United States v. Jimenez, 464 F.3d 555, 559 (5th Cir. 2006). Here, because Villareal was the only witness who testified that Wilson tampered with the murder weapon, he was undoubtedly crticial to the prosecution's case. Furthermore, evidence that he had several motives to kill Marchant undoubtedly gave him a substantial reason to cooperate with the government and perhaps fabricate his tampering allegations against Wilson in exchange for his plea bargain.
Judge Shop 'Til You Drop: Lousiana Court Rejects Judge Shopping Argument in Vince Marinello Trial
Vince Marinello, a longtime New Orleans sportscaster and leading media personality on post-Katrina New Orleans, is currently facing charges that he killed his estranged wife, Mary Elizabeth, by shooting her twice in the face. At Marinello's trial, over defense counsel's objection, the court introduced into evidence, inter alia, a check list found in Marinello's FEMA trailer, which stated, "Gun -- river on the way to mama; ... motive -- maybe -- NOT STRONG; ... bike -- paint; gloves -- ok; mustache -- ok..." It is alleged that Marinello attempted to disguise himself while he shot Mary as she left a regularly scheduled counseling session.
Defense counsel had alleged that the search of the FEMA trailer was "impermissible" because detectives sought out Orleans Parish Criminal District Magistrate Commissioner Marie Bookman to sign the warrant that authorized the search. Defense counsel's claim was Bookman was not on duty at the time she signed the warrant and allege the detectives were "judge shopping." The judge rejected this claim, finding that it was immaterial whether Commissioner Bookman was the "duty" commissioner or not, as the search warrant was properly granted.
This led me to wonder what would constitute improper "judge shopping" in obtaining a warrant. Unfortunately, Louisiana courts have not provided a clear definition of "judge shopping" in the only three cases I found where they discussed the issue. In State v. Matthieu, 506 So.2d 1209, 1213 (La. 1987), State v. Loera, 530 So.2d 1271, 1277 (La. App. 2 Cir. 1988), and State v. Allen, 913 So.2d 788 (La. 2005), officers obtained search warrants from judges for searches that were not within the judges' territorial jurisdiction. In each case, the court either found (1) that the officer went to the judge after unsuccessfully finding a judge in the relevant jurisdiction or (2) that the officer was confused about which judge had jurisdiction based upon Louisiana's parish system. These courts thus found that these officers had merely obtained warrants in violation of a procedural rule and not that they had engaged in misconduct such as "judge shopping."
While these courts did not provide further explication, it appears to me that the Louisiana courts have set up a "bad faith" test. In other words, as long as an officer first tries to go to a judge with jurisdiction or a judge whom he thinks has jurisdiction, the fact that he later obtains a warrant from a judge without jurisdiction will not render the warrant invalid. If, however, an officer first goes to a judge without jurisdiction because he thinks that the judge will grant the warrant while other judges would not have granted the warrant, he does so in "bad faith," and the warrant will be invalid.
December 20, 2007
Dead Man Talking: South Carolina Case Shows Why Prosecutors Should Prefer Dying Declarations Over Excited Utterances
Recently, I've written about cases dealing with the excited utterance and the dying declaration exceptions to the rule against hearsay. A murder trial in South Carolina brings to light why prosecutors might want to opt to get statements admitted under the latter exception when both are potentially applicable.
Last year, South Carolina Sheriff's Lieutenant John Stokes discovered Stephen Raines on the floor, bleeding from what appeared to be a gunshot wound. According to Stokes, when he found Raines, he was in a lot of pain and his organs were hanging out. According to Stokes, Raines proceeded to claim that he was in a confrontation with two black males and gave a description of his assailants. Based upon Raines' statements, officers arrested Tashi Franklin and Anthony Glover. While Glover's case has not yet gone to trial, Franklin is currently in court defending charges of murder, first degree burglary and possession of a firearm during the commission of a violent crime.
During Franklin's trial, the prosecution sought to have Stokes testify about Raines statements regarding his assailants, but defense counsel countered that these statements constituted inadmissible hearsay. The South Carolina court disagreed, finding that Raines' statements constituted excited utterances. Pursuant to South Carolina Rule of Evidence 803(2), a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition constitutes an "excited utterance," an exception to the rule against hearsay. Ostensibly, then, the judge in Franklin's trial found that Raines being shot was a startling event and that he made his statements regarding his assailants while he was under the stress of excitement caused by the shooting.
I wonder, though, why the prosecution did not argue, or the judge did not accept the argument, that Raines' statements constituted dying declarations. Under South Carolina Rule of Evidence 804(b)(2), "[i]n a prosecution for homicide or in a civil action or proceedings, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death," constitutes a dying declaration, an exception to the rule against hearsay. Here, Raines' statements to Stokes clearly addressed the cause of his death, and it's easy to infer from the fact that his organs were hanging out that he believed his death was impending, likely making his statements admissible as dying declarations.
One might wonder why it makes any difference whether Raines' statements were admitted as excited utterances or dying declarations. Here's why. In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant did not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.
In the wake of Crawford, courts have noted that under this test, excited utterances made to law enforcement personnel or other officials "may be testimonial under Crawford" and thus inadmissible if the declarant cannot testify at trial. See, e.g., Rivera v. Ercole, 2007 WL 1988147 at *6 (S.D.N.Y. 2007). Because Raines died soon after making his statements to Stokes and before Franklin could cross-examine him, the South Carolina court's evidentiary ruling could be challenged under Crawford.
In Crawford, however, the Supreme Court seemed to state that dying declarations are admissible, regardless of whether they are testimonial. See Crawford, 541 U.S. at 56 n.6. Thus, if the South Carolina court would have found that Raines' statements were admissible as dying declarations, the ruling likely could not have been challenged under Crawford.
Carolina In My Mind: Charlotte Court To Determine Admissibility of Alleged Excited Utterances
Marlon Blandin has been charged with first-degree murder in connection with the death of Paul Behling in 1993, with his trial set to start in January 2008 in Charlotte County, North Carolina. Prosecutors contend that Blandin shot and killed Behling after a cocaine sale between the two fell through. Blandin recently brought a pre-trial motion seeking to have the results of a polygraph examination that he took deemed inadmissible at trial, and the court unsurprsingly granted it as polygraph results are generally inadmissible in American courts.
In the pre-trial motion, Blandin also sought to preclude Behling's widow from testifying about a telephone conversation that allegedly occurred between Blandin and Behling soon before the latter's death. The prosecution wants to have Behling's widow testify that just prior to her spouse's death, he had a telephone conversation with a man he called "Marlon," but defense counsel claims that such testimony would constitute inadmissible hearsay. The prosecution has countered that Behling's statements on the telephone were "spontaneous statements," which presumably means that the prosecution is arguing that they are admissible under the excited utterance exception to the rule against hearsay. The court has deferred its ruling on the issue pending a hearing.
Under North Carolina Rule of Evidence 803(2), a statement is admissible as an exception to the rule against hearsay if the statement related to a startling event or condition and was made while the declarant was under the stress of excitement caused by the event or condition. According to the Supreme Court of North Carolina, for a statement to fall under the excited utterance exception, "there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication." State v. Morgan, 604 S.E.2d 886, 900 (N.C. 2004).
Thus, if Blandin and Behling were merely discussing their drug deal, and Behling had no reason to anticipate his impending death, Behling's statements likely did not constitute excited utterances, and his widow would not be able to testify about the telephone conversation. If, however, Blandin said something that led Behling to believe that his life might be in jeopardy, Behling's statements likely constituted excited utterances, and his widow would be able to testify about the telephone conversation. Of course, even in this latter scenario, Behling might have responded like Al Pacino's character in "Donnie Brasco," making it impossible for the court to determine whether his statements were excited utterances.
December 19, 2007
I Know Who Killed Me: Illinois Court Finds Victim's Statements Are Admissible As Dying Declarations
The trial of Brandon Crabb in an Illinois court is likely to end today, with the chances of his conviction greatly increased after the judge ruled that the victim's dying declarations could be introduced into evidence. Crabb is charged with first degree murder in connection with the stabbing death of Anthony Hart. In April, several police officers reportedly saw Crabb stop his car near Hart's car, walk over to Crabb's car, and start a conversation. At some point, Crabb appeared to punch Hart through the open window of the car and then drive off.
Hart then stumbled away while covered with blood and collapsed on a front porch. A bystander thereafter called the police and began to apply pressure to a wound near Hart's neck. A firefighter who responded minutes later indicated that it appeared that Hart was going into shock. His application of pressure was not stopping the blood flow, so the firefighter stuck his finger into the wound, hoping to stop the artery from gushing blood.
While the firefighter was attending to Hart, Hart allegedly told him that Crabb stabbed him without provocation. (Crabb has apparently admitted to the stabbing but has claimed that he acted in self-defense.). The prosecution sought to have the firefighter testify to these statements, but defense counsel vehemently objected that these statements constituted hearsay. The prosecution countered that they constituted dying declarations, exceptions to the rule against hearsay, and the court eventually agreed after the lawyers wrangled for several minutes.
WIthout knowing all of the facts, the court appears to have made th right decision. In order for a statement to constitute a dying declaration in a homicide case, (1) the declaration must pertain to the cause or circumstances of the homicide; (2) the declarant must possess the fixed belief and moral conviction that death is impending and almost certain to follow almost immediately; and (3) the declarant must possess mental faculties sufficient to give an accurate statement about the cause or circumstances of the homicide. People v. Gilmore, 828 N.E.2d 293, 303 (Ill. App. 2 Dist. 2005). Furthermore, the proponent of the evidence must prove these elements beyond a reasonable doubt. See id.
It seems clear to me that the first two elements were satisfied. Hart's statements described how and by whom he was stabbed, satisfying element one, and from the testimony about his unstoppable blood flow, it seems clear that Hart would have believed his death was impending, satisfying element two. If, however, the firefighter was correct that Hart was going into shock, it seems less clear that he had the requisite mental faculties to satisfy element three. Assuming, however, that the firefighter testified that Hart appeared rational, element three was likely satisfied as well.
Driving Down The 101: California Appellate Court Makes Incorrect Ruling On Settlement Letters
In Zhou v. Unisource Worldwide, Inc., 2007 WL 4374597 (Cal. App. 2 Dist. 2007), a California Appellate Court made an incorrect ruling on the admissibility of evidence of statements made during settlement negotiations. In Zhou, the plaintiff, David Zhou, was injured in a multi-vehicle accident in June 2003 in which Frank David Barreto, operating a truck owned by Unisource, struck an automobile from behind, which in turn hit Zhou's van and injured him. One year later, Zhou filed a lawsuit against Barreto and Unisource, seeking damages for the injuries he suffered in the accident, which included a hematoma to his forehead, fractured teeth, and injuries to his neck and back. On March 1, 2004, however, before bringing the lawsuit, Zhou was involved in a second car accident when an automobile driven by Donna Thorntill backed up into his van.
On April 8, 2004, Zhou wrote a letter to State Farm Insurance Company, Thorntill's insurance carrier, which stated in part that "this accident has increased my neck and back pain which was caused by a truck accident on June 1, 2003...." Later, on July 7, 2004, Zhou wrote another letter to State Farm, which stated in part that "the major reason of my neck and low back [pain] was caused by the car accident on June 17, 2003." The letter, however, also acknowledged that "this new car accident did complicate my medical treatments, and increase my back and neck pain substantially." Furthermore, the letter noted that while Zhou had hoped to avoid surgery, as a result of the second accident, "the doctors think there is no way to avoid the surgery to get fully recovered."
Prior to trial against Barreto and Unisource, the court granted Zhou's motion in limine to exclude all evidence relating to any settlement negotiations concerning the March 1, 2004 accident, and the court granted it pursuant to, inter alia, California Evidence Code Section 1154, which states that "[e]vidence that a person has accepted or offered or promised to accept a sum of money or any other thing, act, or service in
satisfaction of a claim, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove the invalidity of the claim or any part of it." This Section is thus similar to Federal Rule of Evidence 408, which generally precludes the admission of evidence of compromises, offers to compromise, and related statements in federal cases to prove the validity, invalidity, or amount of a claim.
After trial, the jury returned a verdict in Zhou's favor for $1,423,295: $173,295.24 in economic damages and $1,250,000 in general damages. Barreto and Unisource thereafter appealed, contending, inter alia, that Zhou's letters to State Farm should have been admissible to show that Zhou's injuries were at least partially caused by the second accident. The appellate court agreed.
The court held that California Evidence Code Section 1154 only prohibits evidence of settlement negotiations and related statements only if those negotiations relate to the claim being settled. Thus, under California Evidence Code Section 1154, Zhou's letters to State Farm would have been inadmissible in a lawsuit against Thorntill in connection with the March 1, 2004 accident, but they were admissible in the lawsuit over the earlier accident, which involved a different claim.
As its support for this argument, the court cited to Fieldson Associates, Inc. v. Whitecliff Laboratories, Inc., 276 Cal.App.2d 770 (Cal.App.1.Dist. 1969). Fieldson Associates involved a breach of contract action, and the court allowed settlement letters relating to the alleged breach of a different contract between the parties to be admitted because they were received to show the invalidity of a different claim: appellant's claim for lost profits under the purchase order, which was never mentioned in the negotiations concerning cartons. Id. at 772.
The court in Zhou seemed to miss the point of this case. The reason that the court in Fieldson Associates allowed for the admission of the letters was not only because they related to a separate contract, but mainly because those letters never mentioned the contract at issue and thus the claim being settled. Conversely, in the Zhou case, Zhou's letters to State Farm explicitly mentioned not only the March 1, 2004 accident, but also the June 2003 accident with Barreto. Thus, the letters not only related to an accident other than the accident at issue, but they also clearly related to the accident at issue and should have been held inadmissible. In other words, they proved the partial invalidity of Zhou's claim against Barreto and Unisource by proving the validity of her claim against Thorntill.
In the Zhou case, the court's incorrect ruling ended up being inconsequential because the court found that the letters' exclusion constituted harmless error to the extent that, inter alia, Zhou himself testified about the second accident during both direct and cross-examination. But it stands as a potentially dangerous precedent in future cases.
December 18, 2007
In Pursuit of Justice: Prosecution Moves to Have Bernard Kerik's Attorney Disqualified In Corruption Case
The corruption case against former New York Police Commissioner Bernard Kerik is heating up as the prosecution has moved to have Kerik's defense counsel, Kenneth Breen, disqualified from the case. Kerik, the Rudy Guiliani protege, has been accused of accepting $255,000 in work from a company hoping to get city contracts, lying to the White House, filing false income tax returns, and other crimes.
At his trial, the prosecution wants to present evidence that during a previous inverstigation, Kerik gave his attorneys false information to present to the Bronx district attorney's office as part of settlement negotiations. Breen was one of Kerik's attorneys during this investigation, and the prosecution wants to call him to testify about how Kerik allegedly gave him false information, which would necessitate him being disqualified as Kerik's attorney. Breen has countered that Kerik's statements to him were covered by the attorney-client privilege.
While not ruling on the motion, Judge Stephen Robinson seemed to side with the prosecution by noting that Kerik's statements to Breen would be "highly admissible" because they amount to the crime of obstruction of justice. He also indicated that he would not hold a hearing to resolve the issue. Another attorney representing Breen argued to the judge that Breen's testimony would merely duplicate the testimony of other witnesses and that for him to be disqualified, the prosecution would have to prove that he would be a "necessary witness, not a neat one, not a cool one." The attorney threatened that the judge's decision could lead to a reversal, and the judge responded, "That's my life."
Let's look at all of the applicable laws. The attorney-client privilege generally protects from disclosure confidential communications from a client to an attorney in the prusuit of or in facilitation of the provision of legal services. See, e.g., Denney v. Jenkins & Gilchrist, 362 F.Supp.2d 407, 411 (S.D.N.Y. 2004). Thus, generally Breen would be right that Kerik's statements to him would be protected by the privilege. At the same time, however, there is a crime-fraud exception to the attorney-client privilege, under which statements to an attorney are not privileged if they were made in furtherance of a crime or fraud such as the obstruction of justice. See, e.g., In re Sealed Case, 162 F.3d 670, 674 (D.C. Cir. 1998). Thus, assuming that Judge Robinson is correct that Kerik's statements to Breen constituted the obstruction of justice, the privilege would not apply.
I'll also briefly note that Kerik could arguably contend that his statements to Breen were inadmissible because statements made during settlement negotiations are inadmissible for certain purposes pursuant to Federal Rule of Evidence 408. Rule 408, however, specifically states that statements made during settlement negotiations are admissible if offered to prove an effort to obstruct a criminal investigation or prosecution, making this argument a nonstarter.
Kerik's attorney, however, is correct that Judge Robinson must find that Breen's testimony would be "necessary" to disqualify him. In fact, Judge Robinson must find that Breen's testimony is "both necessary and substantially likely to be prejudicial." Colandera v. Town of Orangetown, 490 F.Supp.2d 342, 353 (S.D.N.Y. 2007). If it is unclear whether these requisites are satisfied, "the motion to disqualify should be dismissed in the absence of clear prejudice to the moving party." Id.
Law & Order Criminal Intent: Texas Court Of Appeals Affirms Trial Court's Decision To Let Expert Testify On Defendant's Murderous Intent
In Martin v. State, 2007 WL 4335473 (Tex.App.-Houston 2007), the Court of Appeals of Texas affirmed Tameka Nicole Martin's conviction for the capital murder of D.D., her ten month old baby girl. Martin was charged when D.D. died of craniocerebral trauma four days after she was admitted to the Texas Children's Hospital. One of the doctors who examined D.D. at the hospital was Dr. Allen, who testified that the child had suffered from trauma to her brain, trauma to her body, malnutrition, and multiple broken bones. When asked for his opinion at trial, Dr. Allen testified that D.D. "was a severely beaten child that died." He further testified that D.D.'s injuries were "all high speed, high velocity injuries, which were directly intended to hurt [the] child." Dr. Allen's testimony and other evidence led to Martin's conviction, and she appealed, claiming, inter alia, that Dr. Allen was not allowed to provide testimony about whether D.D.'s injuries were intentionally inflicted.
Like Federal Rule of Evidence 704(a), Texas Rule of Evidence 704 states that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Thus, for instance, in Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 777 (Tex.App.-Corpus Christi 1999), the Court of Appeals of Texas found that an expert witness could give his opinion as to whether a party was negligent.
On the other hand, under Federal Rule of Evidence 704(b), "[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone." Thus, a doctor would not be able to testify that his opinion was that the defendant intentionally killed the victim. See, e.g., United States v. Wood, 207 F.3d 1222, 1235-36 (10th Cir. 2000). Thus, were Martin's case being heard in federal court under the Federal Rules of Evidence, Dr. Allen's opinion that D.D.'s injuries were based upon acts intended to hurt the child would have been inadmissible.
However, while some states, like Utah, have added state counterparts to Rule 704(b) or incorporated its language into their case law, other states, such as Texas, have not made the change. Thus, the Court of Appeals in Martin found that Dr. Allen's testimony on intent was admissible because Dr. Allen examined the injuries sustained by D.D. and testified based upon medical expertise and knowledge that he thought they were the result of acts intended to hurt her.
Federal courts have noted that the reason for Federal Rule of Evidence 704(b) is that, if believed by the jury, expert testimony on the mental state of the defendant necessarily dictates the jury's final conclusion and improperly invades the province of the jury. See Wood, 207 F.2d at 1236. On the other hand, states failing to adopt the federal rule in some form contend that such expert testimony is relevant and that jurors can still reject this testimony and come to their own conclusions. In the end, then, the issue comes down to how much faith jurors put into expert testimony about the alleged mental state of criminal defendants. I thus feel unequipped to answer the question of which courts are correct without having read any empirical studies on the issue, if such studies exist. If such studies do not exist, I would love to somebody tackle the issue.
December 17, 2007
Blank Check: Fourth Circuit Finds Conviction For Passing A Worthless Check Inadmissible Under Rule 609(a)(2)
In United States v. Kelly, 2007 WL 4327773 (4th Cir. 2007,), Randy Kelly appealed from his conviction for traveling in interstate commerce for the purpose of engaging in illicit sexual conduct. At trial, the following facts were adduced. Kelly was a long-haul trucker who hauled goods to various points in the midwest and frequently rested and refueled at the Go-Mart truck stop near Charleston, West Virginia. There, he met Cathy Carder, a prostitute, and became her regular client. Kelly later asked Carder to supply him with both pornography and child pornography. Subsequently, he informed Carder that he wanted to have sex with a 12 year-old virgin and asked her whether she could find one for him. He later referred to his request as his "birthday present."
When Carder realized that Kelly was serious, she contacted a Charleston police officer and told him about Carder's request. After working with police, Carder set up a day on which she would pretend to procure a child for Kelly. On that date, Kelly arrived in West Virginia and asked Carder for his birthday present. Carder then told him that she would retrieve the child, and Kelly gave her money to buy drugs and alcohol to relax the child. Carder then left Kelly, went to a police officer, and retrieved a recording device and two Viagra pills. Subsequently, she returned to Kelly and recorded a conversation in which Kelly detailed his plans for having sex with the child. Police thereafter arrested Kelly and, based upon the recording and Carder's testimony, Kelly was convicted.
Kelly appealed to the Fourth Circuit Court of Appeals, alleging, inter alia, that the court improperly precluded him from impeaching Carder through evidence that she had a prior misdemeanor conviction for passing a worthless check. Pursuant to Federal Rule of Evidence 609(a)(2), a witness can be impeached by a misdemeanor conviction "if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."
Starting with the the Fourth Circuit's 1981 opinion in United States v. Cunningham, 638 F,3d 696 (4th Cir. 1981), however, it appears that courts have found that passing a worthless check is not per se a crime of dishonesty or false statement. In doing so the court in Cunningham noted that the Conference Committee Report on Rule 609(a)(2) found that the rule covered a narrow class of "crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully."
The court in Cunningham noted that a conviction for passing a worthless check could fall into this category if it involved forgery or false pretenses but that it would not be covered by Rule 609(a)(2) if it merely involved a check being returned for "insufficient funds." Id. at 699. The problem in Cunningham was the same as the problem in Kelly: in both cases, the defendant failed to adduce the facts underlying the witness' convictions, making it impossible for the courts to determine whether they involved dishonesty or false statements, making Rule 609(a)(2) inapplicable. I am generally against per se rules, and I think that the fact intensive inquiry approved by the Cunningham courts and subsequent courts makes sense.
What troubles me, however, is another line of analysis in these cases. Carder's conviction was under a Florida statute making it a crime to "draw, make, utter, issue, or deliver to another any check...for the payment of money or its equivalent, knowing...that the maker or drawer thereof has not sufficient funds." Kelly did not raise the point at trial, but on appeal, he contended that the language of this statute made it clear that anyone convicted under it committed an act of dishonesty or false statement. In dicta, the Fourth Circuit noted that the language of the statute still did not mean that a conviction under it was per se a crime of dishonesty or false statement because the statute could cover a person who issues a check knowing that he does not currently have adequate funds in his account but who intends in good faith to make a timely covering deposit. This holding appears consistent with the holdings of other courts dealing with similar statutes. See, e.g., United States v. Barb, 20 F.3d 694, 696 (6th Cir. 1994).
I'm not sure that I understand the reasoning of these courts. As noted, pursuant to the Conference Committee Report, larceny by false pretense is per se covered by Rule 609(a)(2). Typically, a person who obtains money by false pretenses is guilty, regardless of whether he intended to and/or actually did repay the money obtained. See, e.g., Commonwealth v. Lewis, 720 N.E.2d 818, 822 (Mass.App.Ct. 1999). It seems to me that a person who issues a check knowing that he does not currently have adequate funds in his account but who intends in good faith to make a timely covering deposit is similar enough to a person who obtains money by false pretenses but who intends to repay the money that their convictions should both per se be covered Rule 609(a)(2).
A, O, Oh Way To Go Ohio: Court of Appeals Of Ohio Makes Incorrect Modus Operandi Ruling
In State v. Dailey, 2007 WL 4341216 (Ohio App. 8 Dist. 2007), Timoty Dailey appealed his conviction for attempted burglary to the Court of Appeals of Ohio. At Dailey's trial, Betty Keys had testified that at approximately 9:30 A.M. on June 20, 2006, she saw a blue car illegally parked in front of her house and saw a man walk across her front yard. The man then opened a screen door on the side of her house and began pounding loudly on the door; Keys assumed that the man was trying to break in because he did not ring the door bell and because the pounding was extremely loud.
Keys then hid in her kitchen and saw the same man standing in her kitchen window, unsuccessfully trying to push open the screen on the window. Subsequently, she called 911 and saw the man put his hands around his face and peer through the window as she waited for the police. Police Officer Keith Collins then arrived at Keys' house and saw a male get into an illegally parked blue car, and he unsuccessfullty attempted to chase the blue car. Keys' neighbor, however, told the officer that he saw the man who entered the blue car and later positively identified Dailey as the man from photographs. Upon being apprehended, Dailey gave differing accounts of where he was at the time of the alleged attempted robbery to police detective Dennis Bergansky. He first told him that he was not anywhere near Dailey's house at the time of the incident, but then he claimed that he had gone to Keys' home to find a friend who used to live there.
At Dailey's trial, the prosecutor asked Bergansky, "[b]ased on your experience, as a detective and officer, investigating those kinds of crimes, what is the modus operandi, if you will, of a daytime burglar?" Over defense counsel's objection, Bergansky responded, "[l]ately, we have been getting hit, the whole area, with daytime burglaries. The-the protocol for the way they do it is, the burglar will knock on the door usually, sometimes two people, they will knock on the door, ring a doorbell of a house that looks like somebody is gone, at work, or it's vacant, and, when no one answers, either the door gets booted in, or a window gets broken in, and they make entry into the house. I mean, it's common place. It happens constantly, too often."
On appeal, Dailey contended, inter alia, that the trial court erred in allowing Bergansky to provide this "modus operandi" testimony. Pursuant to Ohio Rule of Evidence 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent. preparation, plan, knowledge, identity, or absence of mistake or accident." Ohio has determined that proving modus operandi, a "unique, identifiable plan of criminal activity" or "behavioral fingerprint," is a permissible purpose under Rule 404(b). See, e.g., State v. Myers, 780 N.E.2d 186, 210 (Ohio 2002).
Thus, evidence that a defendant committed 3 prior robberies would be inadmissible to prove that he had a propensity to commit robberies and acted in conformity with that propensity at the time of the attempted robbery with which he was charged. However, if all 4 of the robberies were so similar that they established a "unique, identifiable plan of criminal activity" or "behavioral fingerprint" such that it must have been the same person who committed all 4 crimes, evidence of the prior robberies would be admissible to show the modus operandi of the defendant.
Dailey claimed on appeal that Bergansky's testimony was insufficient to establish modus operandi and that his testimony thus was improper under Rule 404(b). The Court of Appeals of Ohio, however, cited to the Staff Notes to Rule 404(b) for the alleged conclusion that Rule 404(b) only "prohibits evidence regarding other acts of the accused to show that he committed the crime with which he is charged." The court then concluded that "Detective Bergansky's testimony said nothing about any other criminal acts or burglaries by Dailey. His testimony related only to daytime burglaries in general; there was nothing specific about Dailey.
I have two issues with the court's decision. First, Detective Bergansky's testimony was in response to the prosecutor's question about "modus operandi." Modus operandi is a "unique, identifiable plan of criminal activity" or "behavioral fingerprint." If the court is correct, and Detective Bergansky's testimony was contending that there were general, shared characteristics of daytime burglaries, his testimony was saying there was no modus operandi, making it non-responsive and impermissible. The only way that Detective Bergansky's testimony was responsive would have been if he were implying that Dailey was the culprit in all of the daytime robberies, which would have triggered the exclusionary portion of Rule 404(b).
The second problem with the court's decision was its finding that Rule 404(b) only "prohibits evidence regarding other acts of the accused to show that he committed the crime with which he is charged." Simply put, this is an incorrect characterization of the Rule. Prosecutors can use Rule 404(b) to introduce evidence of other acts of the accused for purposes such as proving modus operandi, but they are precluded by Rule 404(b) from introducing evidence of other acts of the accused to prove propensity/conformity.
Contrary to the court's finding in Dailey, however, Rule 404(b) does not cover only other acts of the accused. Defendants can also use the Rule to introduce so-called reverse 404(b) evidence, under which the defendant introduces evidence of other acts of someone besides himself to prove that the other person was the likely perpetrator of the crime. United States v. Della Rose, 403 F.3d 891, 894 (7th Cir. 2005). Thus, the court's conclusion was based upon an impermissibly restricted construction of Rule 404(b).
December 16, 2007
Appellate Post-Mortem?: New York Man To Appeal Manslaughter Conviction Based Upon Medical Examiner's Conclusions
Edwin Tirado was recently convicted of second degree manslaughter in a New York court in connection with the death of Jonathan Carey, a 13 year-old autistic boy. Carey was on an outing in a van with another child from the O.D. Heck Developmental Center in Schenectady when Tirado, a health worker, allegedly improperly restrained him after he acted out. According to police, Jonathan thereafter stopped breathing, and Tirado continued to restrain him while the driver of the van, Nadeem Mall, continued driving around upstate New York, "doing errands, shopping and buying beverages." Tirado and Mall allegedly waited 90 minutes before reporting the medical emergency, too late to save Carey.
Tirdao was convicted in part based upon the testimony of a medical examiner as to the cause of death. At Tirado's sentencing, Carey's parents gave victim impact statements about the immeasurable pain they had suffered and asked that the court impose the maximum sentence. Their statements were apparently persuasive as the court sentenced Tirado to five to fifteen years imprisonment, the maximum sentence for second degree manslaughter. If Tirado has his way, however, he won't serve a day of this sentence.
Tirado's attorney has contended that he will file an appeal on Monday because "[t]he medical examiners testimony and opinion as to the cause of death was based on hearsay." While it is unclear from the articles discussing the case what hearsay the medical examiner allegedly used in reaching his conclusion, it should be noted that the simple fact that the examiner relied in part on hearsay would not necessarily render his conclusion improper.
Pursuant to Federal Rule of Evidence 703, experts can base their opinions on inadmissible evidence if experts in their particular field reasonably rely on that type of evidence in forming opinions. While New York does not have a statutory counterpart to this federal rule, its cases have come to a similar conclusion. In People v. Yates, 290 A.D.2d 888, 889 (N.Y.A.D. 3 Dept. 2002), a New York state appellate court found that "an expert may base his opinion on material outside the record, so long as it is of a type reasonably relied upon by experts in the field in forming their professional opinions." The same court later relied upon this language in finding that a forensic expert properly relied upon out-of-court statements in forming his conclusion about the victim's cause of death. See People v. Odell, 26 A.D.3d 527, 529 (N.Y.A.D. 3 Dept. 2006). Thus, there is good reason to believe that Tirado's conviction will be affirmed.