EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, February 14, 2008

My Bloody Valentine: Valentine's Day Case Reveals Texas Still Adheres To Common Law Rule For Prior Inconsistent Statements

The Court of Appeals of Texas' opinion in Madry v. State, 200 S.W.3d 766 (Tex.App.-Houston 2006), reveals that Texas still adheres to the old common law rule regarding the use of extrinsic evidence to impeach a witness through a prior inconsistent statement.  In Madry, it was undisputed that on Valentine's Day, 2004, the defendant, Eric Madry, shot his "on again, off again" girlfriend, Demetria Jackson, in the mouth, with the bullet traveling "through Jackson's lip, almost cut[ting] her tongue in half, and fractur[ing] the first cervical vertebrae in her neck." Id. at 767  At trial, the only disputed issue was whether the shooting was accidental or intentional, and the the jury went with the latter interpretation, convicting Madry of aggravated assault. Id.  Indeed, Jackson testified that the shooting was intentional at trial, and the trial judge foreclosed Madry from calling "Michelle Permenter, a Crime Victims Advocate, as a witness who allegedly would have testified that Jackson told her that the shooting was accidental." Id. at 769.

On appeal, Madry claimed that the trial judge's ruling was in error.  The Court of Appeals rejected this argument, noting that Madry failed to comply with Texas Rule of Evidence 613(a), which states that "[i]n examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and person to whom the statement was made, and must be afforded an opportunity to explain or deny such statement." (emphasis added).  The Court of Appeals noted that under Rule 613(a), Landry would have thus needed to "confront Jackson with the statement, telling her the contents of the statement and the time, place, and person to whom it allegedly was made" before he called Permenter; however, he failed to do so.

Undoubtedly, this ruling was correct under Texas Rule of Evidence 613(a), which relies upon the old common law rule, but this common law rule has been eradicated by the Federal Rules of Evidence. See, e.g., United States v. Delta Rose, 403 F.3d 891, 903 (7th Cir. 2005).  Under Federal Rule of Evidence 613(b), "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require."  The key difference under this federal rule is that the word "before" has been removed, meaning that if the Madry case were heard under the federal rules, while defense counsel would have needed to confront Jackson with her alleged prior inconsistent statement at some point during trial, he did not need to do so before Permenter testified.  Instead, defense counsel could have called Permenter to testify to the alleged prior inconsistent statement by Jackson and then called Jackson and confronted her with the statement. See id.

The Advisory Committee Note to Rule 613 indicates that the common law rule was relaxed so "several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement....Also, dangers of oversight are reduced."  It seems to me that the federal rule is prefereable because allowing a witness to explain a prior inconsistent statement before another witness relates it to the jury would seem to dilute its effect.  In the case of a sympathetic witness like Jackson, we may want such dilution, but for many witnesses who have waffled, allowing for opposing counsel to expose them without prior notice would seem preferable.


February 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Lost In Translation: Alaska Court Ignores Legislative History In Making Interpretor Ruling

The Court of Appeals of Alaska's recent opinion in Vuig Gui Tsen v. State, 2008 WL 341649 (Alaska.App. 2008), provides a good example of how courts frequently ignore the legislative history to their rules of evidence when it doesn't fit with their view of a case, even though they cite this history with approval when it serves their purposes. In Vuig Gui Tsen, the defendant ran an escort service/massage parlor in the Spenard area of Anchorage, Alaska.  After two of his female employees were arrested for prostitution, they agreed to aid the police by arranging to purchase cocaine from Tsen.  Tsen subsequently sold cocaine to the women and was arrested and charged with two counts of third-degree controlled substance misconduct (sale of cocaine, and possession of cocaine for sale) and one count of third-degree promoting prostitution.  During a pre-trial conference and at trial, Tsen's attorney, Assistant Public Defender John A. Bernitz, notified the judge that Tsen wanted to have a Vietnamese interpreter during trial.  The attorney noted that while Tsen spoke English, he was a native Vietnamese and language gets more complicated and quicker at trial.  The judge rejected the request, concluding, inter alia, that while an interpreter could certainly provide assistance to Tsen, an interpreter's presence was not required because Tsen clearly had command of the English language.  After Tsen was convicted on all three counts, he appealed, claiming, inter alia, that the trial judge violated his right to due process by refusing to order word-for-word interpretation of the jury voir dire and the trial testimony.

In its opinion, the Court of Appeals of Alaska proceeded to consider federal case law, which generally holds that the decision of whether to order word-for-word interpretation of trial testimony hinges on many variables, chief among them (1) the extent to which the defendant can comprehend spoken English ( i.e., understand the English speech of other people), (2) the extent to which the defendant can express himself or herself in English, and (3) the degree to which the trial testimony will present complex or subtle issues of fact that will require the defendant's input ( i.e., the defendant's participation in formulating the defense case and in devising the cross-examination of adverse witnesses)."  The court then found that the trial judge's opinion was proper because, inter alia, Tsen's comprehension of Enlish was not so deficient as to make his trial fundamentally unfair.

But why did the court rely upon federal case law, rather than Alaska case law?  Well, the court noted that Alaska law on the subject of interpreters was still undefined, with no published Alaska appellate decisions in the area.  At the same time, Alaska Rule of Evidence 604 does set forth the rule for interpreters at trial.  And the Commentary to Alaska Rule of Evidence 604, written by its main drafter, Professor Stephen A. Saltzburg, indicates, inter alia, that “[a]ppointment of an interpreter for [an] indigent defendant is probably constitutionally required if the defendant's understanding of the proceedings against him depends on it."  The Court of Appeals of Alaska noted this language, but it also noted that the Introduction to the Commentary to the Alaska Rules of Evidence made clear that the Supreme Court of Alaska had neither adopted nor approved the Commentary.  The Court of Appeals thus failed to ascertain whether the Commentary compelled a different test for whether an interpreter was required and assumed (without deciding) that Alaska law mirrors federal law on the issue of a criminal defendant's right to the assistance of an interpreter.

While the Court of Appeals is correct that the Supreme Court of Alaska has neither adopted nor approved the Commentary to the Alaska Rules of Evidence, it has frequently relied upon the Commentary in reaching decisions.  Indeed, in one case, Marron v. Stromstad, 123 P.3d 992, 1005 n.50 (Alaska 2005), the Supreme Court of Alaska even found the reasoning in an amicus brief written by Saltzburg to be "especially persuasive" because he was the main drafter of the Alaska Rules of Evidence.  The Supreme Court of Alaska is not alone in reaching decisions based upon the commentary as the Court of Appeals of Alaska did the same in numerous cases before Vuig Gui Tsen. See, e.g., Ryan v. State, 899 P.2d 1371, 1374 (Alaska.App. 1995).  The court's decision in Vuig Gui Tsen thus seems to be unsatisfactory in its dismissiveness of the Commentary.


February 14, 2008 | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 13, 2008

Evidence And Ethics 13: Professor Raeder's See No Evil: Wrongful Convictions And The Prosecutorial Ethics Of Offering Testimony By Jailhouse Informants And Dishonest Experts

Southwestern Law School Professor Myrna Raeder's contribution to the Evidence and Ethics Symposium is her article, See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts.  In the introduction, Raeder lays out the central question:  In the context of jailhouse informant and expert testimony, "[a]re prosecutors at fault for reaching out to witnesses whose testimony sounds too good to be true when it fills in the gaps that otherwise would likely derail the prosecution's case?"

Section I introduces the problem.  In attempting to get defendants convicted, prosecutors frequently must rely on the testimony of jailhouse informants, "the clearest threat to the integrity of the criminal justice system" because of their willingness to fabricate testimony in exchange for their "ticket to freedom."  At the same time, when technical or scientic evidence is involved in a case, there is a temptation for prosecutors to "expert shop," "casting a wide net before finding an expert to agree with their desired conclusion."

Section II then sets forth why prosecutorial reliance on such suspect sources of testimony has persisted and gone largely unchecked.  Raeder notes that, on the one hand, the 24/7 news cycle, the increased empahsis on victim's rights, and the "CSI effect" have increased the pressure on prosecutors to secure convictions through even questionable means.  On the other hand, much of the alleged prosecutorial misconduct with regard to these suspect sources "relates to 'activities that the [professional] codes refer to only obliquely, if at all," helping "to explain the paucity of cases in which prosecutors are disciplined."

Section III continues with this thread, reviewing the ethical obligations placed upon prosecutors by, inter alia, case law, the Model Rules, the ABA's Criminal Justice Standards on the Prosecution Function, and the U.S. Attorney's Manual.  This review again leads Raeder to the conclusion that the current rules did not satisfactorily cover "jailhouse informant" or "expert" shopping and the recommendation that "the rules or standards should be modified...." 

In Section IV, Raeder notes how "neither the constitutional framework for obtaining reversals of criminal convictions, nor any potential civil remedies provides sufficient incentives for prosecutors to be prudent when they consider employing jailhouse informants or dishonest experts."  Instead, based upon factors such as the finality doctrine and courts' restrictive readings of the Sixth Amendment in challenges to jailhouse informant testimony, "while claims  of prosecutorial misconduct are common, reverasals are not assured, even when the conduct is cleary unethical."  Raeder thus contends that "this appellate reality encourages winning at any cost, because ethicsa do not appear to affect outcomes, let alone at the polling place...."

In Section V, Raeder sets forth several suggestions for "reinvigorating the ethical approach to evidence."  With regard to confidential informants, she suggests the "stringent restrictions on the use of jailhouse informants adopted" in Los Angeles and the similarly stringent standards recently adopted by the Canadian Association of Chiefs of Police.  With regard to expert shopping, she cites to and expands upon Professor Moriarty's argument that the Model Rules should be broadened so that the prosecutor's special obligation to do justice includes the duty not to introduce unreliable information as well as false information.  Finally, Raeder argues for the creation of a self-regulatory body, whose very existence would have symbolic value.

Raeder's argument raises a lot of intriguing arguments, and, in particular, the Los Angeles and Canadian polices, of which I was unaware, seem to be something that the legal community should seriously consider extending across the country.

I asked Professor Raeder for her thoughts on the article, and she responded:

"I wrote this article because I believe our pro admissibility bias ensures that some very unreliable evidence of jailhouse informants and dishonest experts is likely to be presented at trial.  Therefore, I was attempting to create an affirmative ethical obligation on prosecutors to scrutinize this evidence before offering it for admission. It is my belief that many prosecutors would welcome self-regulation that would tend to lessen complaints that paint prosecutors as generally unethical, while focusing on the prosecutorial bad apples and pressures that currently exist to offer questionable evidence that
is likely to be admitted."


February 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Open The Door, ATF: Eighth Circuit Finds That ATF Form 4473 Is Inherently Trustworthy For Rule 807 Purposes

In United States v. Banks, 2008 WL 80577 (8th Cir. 2008), the Eighth Circuit determined that ATF Form 4473 is "inherently trustworthy" and thus presumptively admissible under Federal Rule of Evidence 807, the residual hearsay exception, even if it isn't admissible as a business record under Federal Rule of Evidence 803(6).  In Banks, Clarence Frazier Banks was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g). Id. at *1.  While executing a narcotics search warrant, police talked with Banks, who told them that his name was Andre Stevens. See id.  At trial, the prosecution introduced into evidence an ATF purchase form (ATF Form 4473) which indicated that a pawn shop in Colorado sold a semi-automatic pistol to a man named "Andre Stevens." Id.

On appeal, Banks claimed that the trial court erred by admitting this ATF form because it constituted inadmissible hearsay. See id. at *6.  The Eighth Circuit agreed with Banks that the ATF form was not admissible as a business record under Federal Rule of Evidence 803(6), which states, inter alia,  that records kept in the course of regularly conducted business activity are admissible if certain conditions are "shown by the testimony of the custodian or other qualified witness...."  The problem with the ATF form was that "the government did not call a witness from the pawn shop who was familiar with its record-keeping practices." Id.

The Eighth Circuit, however, noted that "Rule 807 allows for the admission of hearsay 'not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness.'"  There are five requirements for admissibility under Rule 807, with the first being "that the evidence have circumstantial guarantees of trustworthiness."  The Eight Circuit noted that Banks did not contest that the ATF form met requirements two through five and thus confined its analysis to the first requirement.

On that count, the court explained that, unlike other businesses, pursuant to 27 C.F.R. Section 478.124(a), "a firearms dealer is required to record all of its sales on Form 4473." Id. at *7.  On this form, "[s]pecific information must be collected, including the buyer's name, sex, address, date and place of birth, height, weight, race, citizenship status, and a certification that the buyer is not a person prohibited from possessing a firearm." Id.  Furthermore, "[a] dealer must maintain Form 4473 in an indexed manner for no less than 20 years after the date of sale....Upon demand, a dealer must make available its records for inspection by ATF officers...Failure to comply with these provisions may result in the dealer losing its license to sell firearms." Id

The Eighth Circuit thus concluded that the contents of a Form 4473 are "inherently trustworthy" based upon "the ATF regulations requiring proper record keeping practices." Id.  I agree with this conclusion and find it to be consistent with findings in other cases that business documents not meeting the technical requirements of Federal Rule of Evidence 803(6) ares still admissible under Federal Rule of Evidence 807 when there is no indication that the documents are unreliable. See, e.g., United States v. Laster, 258 F.3d 525 (6th Cir. 2001). 


February 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 12, 2008

Evidence And Ethics 12: Professor Aronson and Professor McMurtrie's The Use And Misuse Of High-Tech Evidence By Prosecutors: Ethical And Evidentiary Issues

The contribution of University of Washington School of Law Professors Robert Aronson and Jacqueline McMurtrie to the Evidence and Ethics Symposium is their article, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues.  The professors lay out their central point in the introduction to their article:  "As technological advances have introduced high-tech evidence into the courtroom, there is an even greater need for evidentiary guidelines to ensure that prosecutors fulfill their duty to do justice and prove guilt upon the basis of sufficient evidence."

In Part I, the authors address three new technologies increasingly being used in courtrooms:  computer-generated animations, simulations, and computer-assisted closing arguments.  With regard to animations, they note that despite courts using a three-pronged analysis for determining their admissibility, some prosecutors continue to submit unacceptable computer animations.  They argue that (1) "[c]omputer animations must be 'carefully scrutinized for proper foundation, relevancy, accuracy, and the potential for undue prejudice' because animations have such 'dramatic power,'" (2) judges should issue cautionary instructions to jurors highlighting the differences between computer animations and other types of evidence, and (3) animations should be excluded when such instructions can't dilute an animations' prejudicial effect.

They next contend that simulations require stricter scrutiny than animations "because they are dependent on scientific principles."  On the matter of computer-assisted closing arguments, they cite two cases where courts were lenient towards the prosecution's use of technology during closing arguments (in one of the cases, an arson case, the prosecutor displayed the elements of arson next to the image of a curtain engulfed in flames).  The professors argue against such leniency, asserting that courts "should take a stronger role in ensuring that prosecutors do not act unethically while making high-tech closing arguments."

Part II then addresses prosecutorial misconduct in the use of DNA evidence, ranging from misrepresentation of the evidentiary value of DNA evidence to prosecutorial resistance to postconviction DNA testing.  On the second count, they note that such resistance can result in the twin evils of prolonging incareceration of an innocent person and preventing identification of the true perpetrator.

In Part III, the professors contend that the use of high-tech evidence is often expensive, meaning that its use "may make it impossible for opposing counsel to counter effectively the animation or closing argument...."  They note that, in response, the Washington Supreme Court recently established the Access to Justice Technology Principles:

"Access to a just result requires access to the justice system. Use of technology in the justice system should serve to promote equal access to justice and to promote the opportunity for equal participation in the justice system for all. Introduction of technology or changes in the use of technology must not reduce access or participation and, whenever possible, shall advance such access and participation."

They argue that, "[a]t a minimum, more courts should establish these kinds of guidelines to ensure that defendants are able to adequately respond to the prosecution's evidence, even if a defendant has few resources."

Finally, in Part IV, Professors Aronson and McMurtrie point out that "[s]ome commentators have suggested that the judiciary consider drafting separate ethical rules for prosecutors that recognize their unique role as ministers of justice."  They support such a separate set of ethical rules but caution that "the solution must depend on the prosecutors themselves," with prosecutors being involved in the creation of these new standards.

I share the concerns raised by Professors Aronson and McMurtrie, as I have indicated in recent posts about computer-generated animations and computer-assisted closing arguments.  In fact, during law school, I conducted a research project where I sent surveys to legal aid attorneys and their most common adversaries, asking about how much technology they used both during trial preparation and at trial.  I was surprised that the gap was less wide then I expected, but it seems to me that the gap is much wider between prosecutors and defense attorneys, making this article all the more important as technology continues to inflitrate the courtroom.


February 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Doctor, There's Something Wrong With Me: Alabama Court Finds Statements Of Identity Admissible Under Rule 803(4) In Domestic Violence Cases

Federal Rule of Evidence 803(4) and many state counterparts indicate that "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are admissible as an exception to the rule against hearsay.  When the cause of a declarant's symptoms, pain, or sensations is a person, the declarant's statements for purposes of medical diagnosis or treatment usually have two components :  (1) the component concerning general causation (I was shot or hit by a car), and (2) the component concerning who caused the symptoms/pain/sensations (I was shot by "John" or "a caucasian man"). See United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980).  "The former in most cases is pertinent to diagnosis and treatment while the latter would seldom, if ever, be sufficiently related." Id.  Thus when a doctor asks what happened to a decalarant's hip and he responds, "I was struck by a car.  The car was driven by John," the former statement is admissible under Federal Rule of Evidence 803(4); the latter statement is not. 

Many courts, however, have developed an exception to this dichotomy in cases of child abuse by relatives.  For instance, as the EIghth Circuit noted in United States v. Renville, 779 F.2d 430, 436-38 (8th Cir. 1985):

"Statements by a child abuse victim to a physician during an examination that the abuser is a member of the victim's immediate household are reasonably pertinent to treatment[;] they are reasonably relied on by a physician in treatment or diagnosis. First, child abuse involves more than physical injury; the physician must be attentive to treating the emotional and psychological injuries which accompany this crime....The exact nature and extent of the psychological problems which ensue from child abuse often depend on the identity of the abuser....Second, physicians have an obligation, imposed by state law, to prevent an abused child from being returned to an environment in which he or she cannot be adequately protected from recurrent abuse."

A tougher question, recently faced by the Alabama Court of Criminal Appeals in Moore v. City of Leeds, 2008 WL 274720 (Ala.Cr.App. 2008), is whether there should be an exception to this dichotomy in cases of domestic violence.  In Moore, Jeffrey Scott Moore was convicted of domestic violence in the third degree based on the underlying offense of assault, harassment, and harassing communications. Id. at *1  Part of the evidence used to convict Moore consisted of the testimony of Dr. Ronald McCoy, an ear, nose, and throat specialist, who testified that he treated Moore's ex-wife, Karen Kelly, for, inter alia, a broken nose. Id. at *2.  According to Dr. McCoy, Kelly told him that "her injury was caused as a result of an 'altercation with her husband while they were driving.'" Id.  On appeal, Moore contended that the component of Kelly's statement identifying him as the source of her injury was inadmissible under Rule 803(4).   

The court rejected this argument, relying upon the Tenth Circuit's opinion in United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir. 1993), where the Tenth Circuit found that:

“Unlike the victims in the cases cited above, Ms. Joe was not a child but rather the estranged wife of the alleged sexual abuser. However, the identity of the abuser is reasonably pertinent to treatment in virtually every domestic sexual assault case, even those not involving children. All victims of domestic sexual abuse suffer emotional and psychological injuries, the exact nature and extent of which depend on the identity of the abuser. The physician generally must know who the abuser was in order to render proper treatment because the physician's treatment will necessarily differ when the abuser is a member of the victim's family or household. In the domestic sexual abuse case, for example, the treating physician may recommend special therapy or counseling and instruct the victim to remove herself from the dangerous environment by leaving the home and seeking shelter elsewhere. In short, the domestic sexual abuser's identity is admissible under Rule 803(4) where the abuser has such an intimate relationship with the victim that the abuser's identity becomes ‘reasonably pertinent’ to the victim's proper treatment.”

I think that there's a good argument that there should be an exception to the Rule 803(4) dichotomy in cases of domestic violence, but I don't think that the court in the Moore case provided that argument.  The Joe case principally relied upon by the the Alabama Court of Criminal Appeals in rendering its opinion, provides good reasons for an exception in cases of domestic sexual assault cases, but it says nothing about domestic violence not involving sexual assault. 


February 12, 2008 | Permalink | Comments (1) | TrackBack (0)

Monday, February 11, 2008

Evidence And Ethics 11: Professor Blinka's Ethical Firewalls, Limited Admissibility, and Rule 703

Marquette University Law School Professor Daniel D. Blinka's contribution to the Evidence and Ethics Symposium is his article, Ethical Firewalls, Limited Admissibility, and Rule 703.  In the article, Professor Blinka takes a close look at Federal Rule of Evidence 703 and argues that it forms the basis for rethinking how the doctrine of limited admissibility is used in the Federal Rules of Evidence and at trial.

In Part I, Blika lays out the doctrines of general and limited admissibility.  Multiple admissibility recognizes that every piece of evidence supports numeorus inferences and thus may be used to prove multiple factual propositions.  Its corollary, limited admissibility, sets forth that when evidence is inadmissible under the rules of evidence to prove certain factual propositions but admissible to prove other factual propositions, courts will admit it to prove the permissible purposes, with the evidence frequently being accompanied by a limiting instruction requested by opposing counsel to preclude jurors from considering it for impermissible purposes.

In Part II, Blinka notes how the doctrines of multiple and limited admissibility are threaded throughout the federal rules of evidence.  For instance, character evidence (e.g., a prior felony assault conviction) is inadmissible to prove that a defendant has a propensity to act in a certain manner (e.g., violently) and acted in conformity with that propensity when committing the subject crime (e.g., murder) pursuant to Rule 404.  However, that same evidence may be admissible to prove another purpose such as motive under Rule 404(b) or to impeach the defendant under Rule 609.  Furthermore, each of the specialized relevance rules contained in Rules 407-411 recognize that evidence of subsequent remedial measures, liability insurance, etc., are inadmissible for some purposes, but inadmissible for others.

In Part III, Blinka then considers how the doctrines of multiple and limited admissibility work in the Rule 703 context.  He notes that before the Rule's passage, courts rigidly adhered to the notion that experts could only provide opinion testimony if they formed their opinions based upon evidence which would be admissible at trial.  The increasing use of expert testimony, however, strained the common law's rigid approach, leading to Rule 703, which at the time it was enacted, stated: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted."

Blinka then notes that "[c]ase law soon revealed the fundamental incompatibility of Rule 703's reasonable reliance standard and exclusionary rules of evidence" as the proponents of expert opinion testimony were increasingly able to get "inadmissible" evidence before the jury as their experts explained the basis for their opinions.  In response to this problem and an ABA study, the Supreme Court amended Rule 703 by adding a third sentence, which reads: "Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect."  Blinka contends, however, that "[p]rotestations to the contrary, amended Rule 703 performed like the legendary alchemist's stone, transforming inadmissible evidence into a species of admissible evidence."

In Part IV, Blinka argues that while some might argue that a lawyer is acting unethically if he uses Rule 703 to disclose inadmissible evidence, there are "at least two ethical firewalls that insulate against charges of impropriety."  These are (1) the fact that evidence isn't "inadmissible" unless and until the opponent raises a timely and proper objectoon, and (2) Rule 703's incorporation of the limited admissibility doctrine.  In his conclusion, Blinka thus concludes that it is not the skilled trial lawyer using the doctrine to his advantage that is deserving of criticism.  Instead, he proposes that we (1) revisit many of the distinctions now recognized by evidence law, (2) redraw limiting instructions, and (3) pay more attention to arguments by counsel. 

Personally, I think that Rule 703 is perplexing, and Blinka does a great job of exposing the consternation and odd results that it has caused, both pre- and post-amendment.   


February 11, 2008 | Permalink | Comments (0) | TrackBack (0)

Why Wyoming?: Reay Case Reveals Wyoming Courts Hold Instrinsic Evidence Is Still Subject To Rule 404(b)

The Supreme Court of Wyoming's recent opinion in Reay v. State, 2008 WL 344116 (Wyo. 2008), reveals a distinction between its treatment of Wyoming Rule of Evidence 404(b) and most federal courts' treatment of Federal Rule of Evidence 404(b).  In Reay, Roy Glenn Reay was convicted of burglary, aggravated kidnapping, and battery against a household member based upon beating and trying to kidnap a Casper woman who had broken off a relationship with him.  At trial, the woman, Kelly Meyer, related the following details of the beating:

"I woke up, and I was being-I was held down. I couldn't move. I didn't know what was going on, why I couldn't move. And I was-the next thing that I realized was that [Mr. Reay] was there and that he was choking me. He was yelling at me; telling me that I was stupid, thinking that he wasn't going to find me, because he would always find me; saying that I thought I was so smart; choking me and hitting me; telling me he was going to kill me, going to take me up to the mountain and burn my body in tires. And he was hitting me fast and hard. And he-he flipped me over on my back, twisted my arm behind my back. Was saying that if I-if I thought that he abused me before, he didn't abuse me before; this was abuse. And then he was hitting and choking me again."

Defense counsel objected that this testimony and similar testinmony later provided by Meyer constituted inadmissible character evidence.  The trial court, however, overruled defense counsel's objections, and, on appeal, the Supreme Court of Wyoming affirmed these rulings.

In relevant part, Wyoming Rule of Evidence 404(b) and Federal Rule of Evidence 404(b) are identical:  They both indicate that "[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."

Thus, if Meyer's testimony revealed that Reay abused her before, and if the prosecution was trying to use this past abuse to show that Reay had a propensity to be abusive and acted in conformity with that propensity when he attacked Meyer in the instant case, her testimony would have been inadmissible.  If, however, Meyer's testimony did not reveal other crimes by Reay or if it did but was offered for a permissible purpose, it would have been admissible.

One other consideration, however, complicates the analysis.  As the Supreme Court of Wyoming noted, if Meyer's testimony clearly referred to a prior abusive act by Reay, it was "intrinsic evidence because "it 'and the evidence of the crime charged [we]re inextricably intertwined....'"  In other words, Meyer was relating statements Reay allegedly made during the instant act of abuse, not simply testifying about unrelated past acts. 

In most cases decided under the federal rules of evidence, the determination that Meyer's testimony referred to "intrinsic evidence" would have resolved the issue because most federal courts have held that "[i]ntrinsic other act evidence does not implicate Rule 404(b) of the Federal Rules of Evidence and 'consideration of its admissibility pursuant to Rule 404(b) is unnecessary.'"  See United States v. Skelton, 2008 WL 152601 at *5 (5th Cir. 2008).

In contrast, as the Supreme Court of Wyoming noted in the Reay case, it has consistently held that intrinsic evidence is still subject to analysis under W.R.E. 404(b).  Thus, the mere fact that Meyer's testimony referred to a statement made by Reay while committing the instant assault did not exempt it from W.R.E. 404(b).  Nonethless, the Supreme Court of Wyoming found that Meyer's testimony was admissible because it was not about other crimes, wrongs, or acts.  Instead, the Court found, inter alia,  that the phrase, "if I thought that he abused me before, he didn't abuse me before," was conditional, not a positive assertion that he had abused her before.

Frankly, I'm not sure whether I prefer the method used by most federal courts or courts in Montana.  I plan on conducting some research into Montana case law in the next few weeks to find cases where Montana courts have found that intrinsic evidence fails Wyoming Rule of Evidence 404(b) and see whether those decisions seem proper or improper.


February 11, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 10, 2008

The Wire: Supreme Court of Illinois Finds Joint Federal/State Investigations Don't Need To Comply With State Eavesdropping Law

In People v. Coleman, the Supreme Court of Illinois determined that Illinois police do not have to follow a state eavesdropping law when working as part of a federal ivestigation.  In Coleman, "the federal Bureau of Alcohol, Tobacco, Firearmes, and Explosives (ATF), the Addison police department, the Wheaton police department, and the Du Page County sheriff's office began a multiple jurisdiction narcotics investigation."  During this investigation, Randall Coleman was arrested and indicted on two counts of unlawful delivery of a controlled substance based in large part upon audio recordings of conversations between himself and the State's confidential informant, Eugene Sanders, who was wearing a wire.  The trial court refused Coleman's motion to suppress this evidence, leading to him being convicted, and the appellate court affirmed, prompting Sanders' appeal to the Supreme Court of Illinois.

The Court framed the issue as follows:  Under 720 ILCS 5/14-1 et seq., passed by the Illinois legislature in 1961, both parties must consent to the recording or the person doing the recording must get a judge's permission.  Because the local police did not comply with this statute, if they were acting alone, the audio recordings would have been inadmissible under 725 ILCS 5/108A-9.

On the other hand, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 governs wiretaps by federal agents and provides:  "It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception."  Title III thus does not require federal agents to obtain a court order before wiring a confidential informant. 

The Supreme Court of Illinois noted that Title III was an act of preemption but that Congress specifically permitted concurrent state regulation.  In other words, states may adopt standards more stringent than those in Title III.  The Court noted, however, that while 720 ILCS 5/14-1 et seq. is more stringent than Title III, Illinois courts have consitsently found that it doesn't apply during joint federal/state investigations.  Coleman contended that these cases were wrongfully decided, but the Supreme Court of Illinois noted that 720 ILCS 5/14-1 et seq. was passed in 1961, prior to the passage of Title III of the Omnibus Crime Control and Safe Streets Act, and the Illinois legislature did not subsequently amend 720 ILCS 5/14-1 et seq. to state that its more stringent standard applied in joint federal/state investigations.  This decision seems correct to me, with the Supreme Court of Illinois sending a clear message to the legislature that if it wants its more stringent wiretap standards to apply to joint federal/state investigations, it must pass new legislation.


February 10, 2008 | Permalink | Comments (0) | TrackBack (0)

Saturday, February 9, 2008

To Tell The Truth, Take 2: Researchers Claim 100% Accuracy In fMRI Studies

Earlier, I posted about research being conducted by a project launched by the John D. and Catherine T. Macarthur Foundation about how breakthroughs in neuroscience can be used in the courtroom.  As I noted, the most interesting part of an article reporting on the project were claims by at least 2 companies that they could use a type of brain scan called a fMRI (functional magnetic resonance imaging) to detect lies with greater accuracy than a polygraph.  I contended that if such claims led to fMRIs being admissible in court as lie detection tools, it would completely overhaul the current legal landscape under which polygraph results are generally inadmissible.  New research suggests that such a day may be closer than anyone thought.

First, let's look at how the fMRI works:  "Inside the machine is a magnet field 60,000 times the strength of gravity, equipped with special software that not only scans, but analyzes, the brain, four millimeters at a time. It looks for signs of lying when the person is confronted with some fairly simple questions." 

University of Las Vegas Associate Professor Phillip Patton is two months into a research project on whether the fMRI will one day be a foolproof lie detector.  According to Patton, "We showed [participants] a series of cards, and we asked them if that was their card that we handed them previously. One card they were supposed to tell the truth about, the other, they were supposed to lie about."  Patton has claimed that in all of the 20 studies he conducted, he was able to predict the truth based on "activation," under the theory that lying increases blood flow to key areas of the frontal lobe of the brain.  According to Patton, "We can see the part of the brain that is stopping the truth from coming out. We can see the other part of the brain that is constructing a lie."

University of Nevada, Reno Professor Craig Kluman cautions that there hasn't been nearly enough testing on the device to establish its accuracy.  He also notes that the device could be abused by law enforcement and that it is potentially violative of the right to privacy.  However, Joel Huizenga, president of a California company called No Lie MRI, claims that the fMRI will eventually be admissible in court, just like DNA evidence.  In the meantime, he is already charging $5,000 to $10,000 to take the fMRI test, with most clients being husbands and wives looking to prove their fidelity.

Personally, I side more with Professor Kluman as the test seems a bit too much like the precogs in Philip K. Dick's short story "Minority Report" (and Steven Spielberg's inferior movie of the same name).  But it will certainly be interesting to see the degree to which the brain scan will become accepted in the scientific, law enforcement, and judicial communities.


February 9, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, February 8, 2008

Evidence And Ethics 10: Professor Imwinkelried's Clarifying the Curative Admissibility Doctrine: Using the Principles of Forfeiture and Deterrence to Shape the Relief for an Opponent's Evidentiary Misconduct

UC Davis School of Law Professor Edward J. Imwinkelried's contribution to the Evidence and Ethics Symposium is his article, Clarifying the Curative Admissibility Doctrine: Using the Principles of Forfeiture and Deterrence to Shape the Relief for an Opponent's Evidentiary Misconduct.  Professor Imwinkelried begins by noting that under the "doctrine, if the opposing attorney injects inadmissible evidence into the record, the trial judge may allow the injured party to respond in kind to cure the damage done by the introduction of the inadmissible evidence."  In determining whether and how to apply this doctrine, judges must ask themselves two questions:  (1) Should I permit the innocent party to respond with otherwise inadmissible rebuttal evidence, and (2) If so, how far should I go?  Unfortunately, as Imwinkelried notes, the parameters of this doctrine are poorly defined, with courts often blurring the distinctions between curative admissibility and related doctrines such as specific contradiction impeachment in answering these questions.

In Part I of his article, Imwinkelried argues that judges should look at the forfeiture principle in answering the initial question and the deterrence principle in answering the second.  In other words, in determining whether he should permit the innocent party to respond with otherwise inadmissible rebuttal evidence, the judge should focus on the prejudicial nature of the improperly admitted evidence, not the subjective intent of the party/attorney who admitted the wrongful evidence.  In determining how far he should go, the judge should be guided by what ruling will deter future evidentiary violations and encourage compliance with evidentiary norms.

In Part II, Imwinkelried considers whether his proposed method of applying the curative admissibility doctrine comports with the Federal Rules of Evidence.  He contends that while there was no express reference to "forfeiture" before 1997, the "forfeiture by wrongdoing" exception was added as Federal Rule of Evidence 804(b)(6) in 1997, which could fuel the argument that the drafters explicitly approved of the forfeiture concept in only one context, impliedly disapproving of its use in other contexts.  But he rejects this argument, looking at the rule's legislative history and how courts have continued to apply the forfeiture concept in other contexts post-1997.  He also raises and rejects a similar argument under Federal Rule of Evidence 402, concluding, inter alia, that evidence admitted under his forumlation of the curative admissibility doctrine would clearly be "relevant to the issue injected by the opposing attorney...."

My favorite part of the article, however, is Imwinkelried's last argument, which focuses on Federal Rule of Evidence 102, which states that the Federal Rules of Evidence "shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined."  I have taken a keen interest in Rule 102 lately, but it is a rule which courts have almost never applied in large part because, as Imwinkelried notes, its "text is vague in the extreme."  And yet, its text must mean something, and Imwinkelried contends that we should define the phrase "justly determined" with reference to Federal Rule of Evidence 403, which states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Imwinkelried argues that the concept of "unfair prejudice" is kindred to the notion of "injustice."  Thus, focusing the curative admissibility doctrine's first question on "forfeiture" and thus the prejudicial nature of the improperly admitted evidence ensures that proceedings are "justly determined" under Rule 102. 


February 8, 2008 | Permalink | Comments (0) | TrackBack (0)

Forfeit Victory, Take 2: Supreme Court of Montana Finds Forfeiture By Wrongdoing Doctrine Doesn't Require Specific Intent

As I noted before, the United States Supreme Court recently granted certiorari in Giles v. California, a case that addresses the issue of whether the forfeiture by wrongdoing doctrine applies even when the prosecution cannot prove a specific intent on the part of a defendant to render a prospective witness unavailable to testify at trial.  The Court' opinion in the case is likely to have a significant impact across the country as courts are increasingly finding that such intent is not required.  Earlier, I wrote about how the Supreme Court of Wisconsin found that specific intent on the part of a defendant to render a prospective witness unavailable at trial was not required to apply the forfeiture by wrongdoing doctrine in the Mark D. Jensen trial.

Now, the Supreme Court of Montana has come to a similar conclusion in State v. Sanchez, 2008 WL 273926 (Mont. 2008).  In Sanchez, Raul Sanchez was convicted of deliberate homicide and sentenced to life without parole in connection with the shooting death of his estranged girlfriend, Aleasha M. Chenowith.  After dating Chenowith for about 4.5 months, Sanchez became suspicious that she was cheating on him with his co-worker.  He then confronted the co-worker, who confirmed his suspicions.  Subsequently, on the night of July 19, 2004, Sanchez was distraught, angry, and drinking as he tried to get Chenowith to come out of he trailer to talk to him.  She eventually came outside, they argued, and he shot her five times, allegedly when she threatened to have his children taken away.  These facts were not substantially disputed because Sanchez turned himself into law enforcement officials later that night and admitted to the shooting.  The question, though, was whether this was a planned murder or a heat of passion killing (Sanchez testified that something got dark in his head when Chenowith told him that she would have his children taken away.).

As evidence that the murder was planned, the prosecution sought to introduce, inter alia, a note written by Chenowith, which stated:

"On July 8, 04 around 10:30 p [sic] Raul Sanchez Cardines told me if I ever was cought [sic] with another man while I was dating him, that he would kill me.  Raul told me that he had friends in Mexico that had medicine that wold kill me and our doctors wouldn't know what it was till it was to [sic] late and I would be dead."

This statement would have been inadmissible hearsay unless the forfeiture by wrongoing doctrine applied.  Under this doctrine, a defendant waives his hearsay and Confrontation Clause ojections to evidence when he engages or acquiesces in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.  So, for instance, in the Sanchez case, if an eyewitness saw Sanchez kill Chenowith, the eyewitness told a friend, and then Sanchez killed the eyewitness, the friend could testify about the eyewitness' statements at trial, despite the statements constituting hearsay.

The more difficult question is whether a defendant like Sanchez, who specifically intended to kill Chenowith but who did not specifically intend to prevent her from testifying at trial against him, triggers the forfeiture by wrongdoing doctrine.  Like the Supreme Court of Wisconsin, the Supreme Court of Montana found that such intent was not required and thus found that the note was admissible pursuant to the forfeiture by wrongdoing doctrine.  The United States Supreme Court's upcoming decision will either confirm the validity of the ruling or strike it down.  I have my own thoughts on the dcotrine in this post.


February 8, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 7, 2008

Evidence And Ethics 9: Joseph Colquitt's Evidence and Ethics: Litigating in the Shadows of the Rules

University of Alabama School of Law Professor Joseph Colquitt's contribution to the Evidence and Ethics Symposium is his article, Evidence and Ethics: Litigating in the Shadows of the Rules.  The article raises a fascinating ethical issue:  What should an attorney do when opposing counsel offers a stipulation, the court finds that the attorney does not have to accept the stipulation, and yet the attorney knows that the evidence he seeks to admit is highly prejudicial.  Professor Colquitt opens his article with 2 intriguing scenarios, both partially based off of real world cases:

     -In Scenario 1, "[t]he socially prominent wife of a well-known physician stands charged with capital murder.  The charge arises out of the brutal murder of her husband in their home by an individual allegedly hired by the wife to kill the husband.  The prosecution asserts that the wife was motivated by her desire to obtain the husband's multimillion-dollar estate and to continue her social liaisons with several men.  Both the husband-victim and the wife are white.  The prosecution will call a former paramour to the stand to testify to the liaisons.  The witness is African-American, and he was married, with children, at the time of his sexual liaisons with the defendant."

Colquitt notes that the prosecution could offer this witness' testimony to prove motive and that if the judge finds it admissible, defense counsel could offer a stipulation that the defendant engaged in several extramarital affairs.  The judge could then find that the prosecution would not need to accept this stipulation, but Colquitt wonders whether it should, noting the highly prejudicial effect of such testimony and the prosecutor's obligation to the public.

     -In scenario 2, "[a] man is charged with rape, based on a woman's allegation that she was raped by an acquaintance during a date.  She reported to the police that she and the man had been dating rather frequently for some period of time, and that the man sexually assaulted her when they returned to her home from a social event.  During an ensuing police interrogation, the accused insisted that the sexual acts were consensual.  He stated that after the sexual relations an argument ensued, and he departed.  Shortly thereafter, she called the police and accused the man of rape.

     To prove that the allegation is false, the defense will call a witness to prove that the prosecutrix made a previous false claim of rape.  Both the current defendant and the prosecutrix are white.  The potential witness is African-American.  He will testify to a similar experience with the prosecutrix when they were dating."

Colquitt notes that if the judge finds this witness' testimony admissible, the prosecution could offer a stipulation that the prosecutrix previously claimed falsely that she was raped by another man.  The judge could then find that defense counsel would not need to accept this stipulation, but Colquitt again wonders whether it should, noting the highly prejudicial effect of such testimony.

After comprehensively analyzing these scenarios in Parts I and II, in Part III Colquitt contends that we should not only "provide counsel with some standards or rules (as we do), but that we also should school counsel that as attorneys they will be called upon to exercise professional judgment, and in doing so, they may have to rely on their professional conscience to identify the appropriate course of action."  I find the points raised by the article to be very interesting and plan on incorporating them into my "stipulation" materials the next time I teach Evidence.


February 7, 2008 | Permalink | Comments (0) | TrackBack (0)

Survivor: Rhode Island -- First Circuit Upholds Richard Hatch's Convictions Based In Part On Expert Testimony Ruling

The First Circuit Court of Appeals has upheld the tax and fraud convictions of Richard Hatch, the first winner of CBS' "Survivor," finding, inter alia, that the trial court properly allowed an IRS agent to provide expert testimony about the proper tax consequences of a transaction. See United States v. Hatch, 2008 WL 274037 (1st Cir. 2008).  In 2005, Hatch was indicted in Rhode Island for related tax and fraud crimes such as tax evasion based upon, inter alia, filing a "tax return for the year 2000 in which he falsely stated that he had negative income and was owed a $4,483 refund, and that he willfully failed to declare three sources of income: (a) the over one million dollars he won on “Survivor;” (b) $18,708 in rental income from property he owned in Newport, Rhode Island; and (c) $25,000 in charitable donations diverted to his own use." at *1.

During a pre-trial hearing, the prosecution indicated that it wanted to call IRS agent Michael Pleshaw to testify that if the above listed sums "omitted from the tax returns had been included, substantial tax would be owed," an element needed to prove tax evasion. Id. at *18.  There apparently was some dispute as to whether Pleshaw would be testifying as a fact witness or an expert witness, and the prosecution did not qualify Pleshaw as an expert witness. Id.  The record revealed, however, that while the trial judge invited defense counsel to file a motion for a Daubert hearing to determine whether Pleshaw needed to be qualified as an expert witness, defense counsel failed to file such a motion. Id. at *19.  Pleshaw  subsequently testified at trial, leading to Hatch's convictions. 

On appeal, Hatch claimed, inter alia, that the trial court improperly allowed Pleshaw to provide expert testimony. Id.  The First Circuit rejected this argument, noting that defense counsel failed to file a motion for a Daubert hearing, despite the trial judge's invitation. Id.  The court further found that if defense counsel would have asked for such a hearing, the trial judge would have qualified Pleshaw as an expert witness in conformity with precedent allowing IRS agents to provide expert testimony as to the proper tax consequences of transactions. Id.   

This conclusion seems correct to me because IRS agents have specialized knowledge about taxes that would be helpful to the trier of fact.  Indeed, my review of case law across the country reveals that several courts have all came to the same conclusion as the First Circuit. See, e.g., United States v. Pree, 48 F.3d 855, 869-70 (7th Cir. 2005); United States v. Mohney, 949 F.2d 1397, 1406-07 (6th Cir. 1999). 


February 7, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 6, 2008

Evidence And Ethics 8: Professor Rothstein's "Anything You Say May Be Used Against You": A Proposed Seminar on the Lawyer's Duty to Warn of Confidentiality's Limits in Today's Post-Enron World

Georgetown University Law Professor Paul F. Rothstein's contribution to the Evidence and Ethics Symposium is, "Anything You Say May Be Used Against You": A Proposed Seminar on the Lawyer's Duty to Warn of Confidentiality's Limits in Today's Post-Enron World.  The article is exactly what its title suggests:  a comprehensive guide on how a seminar on confidentiality's limits could look.

In Part I, Rothstein begins by addressing the problem.  He notes that while historically clients could be relatively confident that virtually anything that they told their attorney would be protected by the attorney-client privilege and the lawyer's ethical obligation of silence, modern developments such as the Sarbanes-Oxley Act and corresponding or even broader provisions in many state and model ethics rules, "the confidence that one's communications with a lwyer will remain sacrosanct today may be badly misplaced."

Part II notes that utility of the proposed seminar in light of the fact that there simply is not enough time to cover these issues in either an evidence class or most professional responsibility classes, and yet they rise with potentially great frequency in practice.

Part III then lays out Rothstein's vision of the course, which starts with students preparing "background reports" on issues ranging from sources of condidentiality to limits on confidentiality and concludes with a final unified report addressing issues such as whether existing warning requirements are sufficient.  In between students would engage in other tasks such as conducting mock interviews and preparing "specific creative papers."

It seems clear to me that Rothstein's seminar fills a clear void in the curricula in most law schools, and such a seminar is certainly something I will consider proposing to my school in the future.


February 6, 2008 | Permalink | Comments (0) | TrackBack (0)

Raising Arizona: Judge Prevents Defendant From Using Prior Conviction To Impeach Neighbor

An Arizona judge has ruled that Ronald D. Koch cannot impeach the credibility of his neighbor, Joshua Liest, through Liest's 1996 felony conviction for receiving stolen property in Koch's trial for aggravated assault and endangerment.  It is undisputed that the 50 year-old Koch shot Koch twice on August 13th during a disagreement, but the two men disagree as to what precipitated the shooting.  Koch claims that he was on a tractor, cutting grass on his own property when Liest approached him in a hostile and threatening manner while muttering under his breath in a threatening manner.  Koch also claims that he believed that Liest began reaching behind his back for a weapon, which led Koch to shoot him twice.  Koch is the president of an association that maintains the water supply from a well that served Kock, Liest, and others, and Koch was in the process of taking legal action against Liest for failure to pay his assessments at the time of the shooting.  Liest counters that he "did not reach for anything" before Koch shot him, and contends that the shooting took him completely by surprise.

The article reporting on the story notes that Koch tried to impeach Liest's credibility by introducing evidence on Liest's felony conviction on May 9, 1996 for receiving stolen property.  The article then notes that the judge refused to allow such impeachment during the trial, scheduled to start on February 25th, pursuant to the Arizona Rules of Evidence, which state that prior felony convictions more than 10 years old are inadmissible to impeach a witness/party unless a strict test is satisfied.  Specifically, under Arizona Rule of Evidence 609(b), "[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantiall outweighs the prejudicial effect." (emphasis added).

The important point in this rule is that in determing whether a prior conviction is older than 10 years, you go by the later of the date of the conviction or the date of release.  So, the fact that Liest was convicted on May 9, 1996 is irrelevant if he subsequently served time; it would be his date of release that would be relevant, with the question being whether he was released before late February, 1998.  Unfortunately, the stories on the case don't mention Liest's release date, even though it is the only relevant date (unless Liest's case is the rare case where he served his time before his trial and was then convicted and sentenced to "time served," which would make the conviction date the later date).  I'm assuming that the judge hearing Koch's case relied on the correct date, but with the way that courts frequently mishandle Rule 609 objections, one can never be sure.


February 6, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 5, 2008

Evidence And Ethics 7: Gerald Shargel's Federal Rule 608(b): Gateway to the Minefield of Witness Preparation

The contribution of Gerald L. Shargel, a criminal defense attorney and Practitioner-in-Residence at Brooklyn Law School, to the Evidence and Ethics Symposium is Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation.  Under Federal Rule of Evidence 608(b), a witness can be questioned on cross-examination about specific instances of truthfulness/untruthfulness of the witness or another witness, but these specific instances of conduct cannot be proven by extrinsic evidence.  In other words, a prosecutor could ask a defense witness whether he ever cheated on his taxes. If the witness admits to such cheating, the jury can take his admission as evdience that the act occurred, but no more evidence on the issue is allowedl if the witness denies cheating, the prosecutor cannot introduce, inter alia, the witness' tax returns or the testimony of another witness to prove the cheating.

As Shargel notes, this Rule raises the difficult ethical question of whether and when attorneys should reveal to their clients the contents of Rule 608(b) and state counterparts.  According to the "zealous advocates" school, informing a client about this rule is useful if not necessary for effective representation by forwarding goals such as witness preparation and client participation and autonomy.  Meanwhile, according to the "truth trumps" school, informing a client about the rule risks tempting him to commit perjury and undermining the search for truth and justice in general.  In Part I, Shargel considers these and other points and ultimately decides that (a) an attorney should tell his client that Rule 608(b) bars extrinsic evidence of collateral bad acts even though this might tempt him to commit perjury, and (b) an attorney should tell the client about Rule 608(b) before asking the client about his past.

Shargel acknowledges, however, that this course of action can easily lead to client perjury, and in Part II, he discusses a variety of techniques that attorneys can use when their clients plan to use Rule 608(b) to commit perjury, ranging from dissuasion and withdrawal to having clients testify in narrative form.

Finally, in Part III, Shargel reviews a variety of reforms that have been proposed to Rule 608(b).  He then endorses a proposal under which Rule 608(b) would still prevent extrinsic evidence concerning specific instances of truthfulness/untruthfulness when a witness denies the instance, but under which extrinsic evidence would be allowed when a witness admits the instance.  Thus, in the tax fraud example from above, if a defense witness denied committing tax fraud, the prosecutor still could not prove his tax fraud through extrinsic evidence.  But, if the defense witness admitted that he committed tax fraud, the prosecutor could then introduce extrinsic evidence to further prove that the tax fraud occurred.

Shargel acknowledges that such a change places the "honest liar" in a worse position than the "lying liar."  But, he also notes that the purpose of Rule 608(b)'s extrinsic evidence ban is to prevent "trials within trials," wasting the court's resources and confusing the issues. When a witness, however, admits to an act such as tax fraud, the concern about having a "trial within a trial" is no loner exists.  Furthermore, Shargel rejects amending Rule 608(b) to allow for extrinsic evdience against "lying liars," noting that Rule 608(b) was never intended to entrap such witnesses. 

I'm not sure that I agree with all of Shargel's conclusions, but they are well argued and have given me reason to research these issed more thoroughly.


February 5, 2008 | Permalink | Comments (0) | TrackBack (0)

Aruba, Jamaica, Take 2: Top Dutch Lawyer Contends That Tape May Be Inadmissible Even Though Obtained Without The Assistance Of Police

Yesterday, I wrote about how I thought that the secret videotaped confession of Joran van der Sloot would be admissible assuming that Aruban criminal law (which is modeled after Dutch criminal law) is similar to American law in deeming confessions inadmissible if unconstitutionally obtained by the government but admissible if unconstitutionally obtained by a private citizen.

Top Dutch lawyer Gerald Spong, however, has contended that the videotape obtained by Patrick van der Eem in collaboration with crime reporter Peter R. de Vries, "was, according to the European Court, a violation of the right of privacy. This court decided that monitoring and recording conversations by a private person in the context of and on behalf of an official investigation with the use of technical assistance of the police, is inadmissible."  Furthermore, "[a]ccording to Spong, even without the assistance of the police, penetrating the personal life with visual technical means is also inadmissible.  'But if that illegal evidence is given to justice on a silver platter, it may still be used in some cases, according to the verdict. I am not certain whether this is also the case here but it is indeed exciting.'"

The issue thus seems very muddled, with the possibility that an Aruban court could just as easily find the tape admissible or inadmissible.  What seems clearer according to Spong and to people watching 20/20 last night is that van der Sloot's was not an explicit confession of murder, merely a confession that he had some role in hiding Holloway's body after she died.  And, according to Antillean and Aruban law, a person who buries, hides, carries off or takes a body with the intent of concealing the death, will be sentenced to a maximum of 6 months imprisonment or a fine of a maximum of 300 guilders. It is not possible to keep the person in custody for such deed.


February 5, 2008 | Permalink | Comments (0) | TrackBack (0)

You're Sure To Fall In Love With Old Cape Cod: Judge Allows Testimony By Juror's Great Aunt In Juror Bias Hearing

In November 2006, Christopher M. McCowen, an African-American man, was convicted of raping and fatally stabbing fashion writer Christa Worthington at her secluded bungalow in the affluent beach town of Truro on Cape Cod.  Days after the jury rendered the verdict, however, three jurors contacted McCowen's attorney, Robert A. George, and told him that there had been racial bias during deliberations.  Two jurors specifically indicated that juror Eric "Billy" Gomes, a "dark-skinned Cape Verdean," said that he "did not like blacks because they cause trouble and that he considered himself white and preferred to socialize with whites."

These jurors' statements led to McCowen moving for a new trial and Judge Gary A. Nickerson conducting hearings to determine whether racial bias had an effect on the jury deliberations.  During questioning, Gomes denied making racist remarks, and his testimony was reported in a Cape Cod newspaper, which his 74 year-old great aunt Delainda Julia Miranda read.  Miranda then contacted Peter Manso, who is writing a book about the case, and Manso contacted George.  This led to George calling Miranda at the hearing, and she testified that Gomes "doesn't like blacks."  She claimed that Gomes "often made disparaging remarks about blacks similar to those he allegedly uttered to jurors" and "repeatedly denied being black."  She further testified that Gomes said that "all blacks do is come down here and get in trouble, do drugs," that they "don't like to work, and that all blacks like to do is kill people."  Nickersen is expected to rule on the motion for a new trial within 60 days.

According to the article on the case, "[l]egal specialists have said that Nickerson's decision to interview the former jurors was highly unusual because judges typically avoid prying into deliberations after a verdict. But federal rules of evidence and case law make a notable exception for extraneous racist remarks, particularly if the comments intimidate jurors and prevent them from voting their conscience."

This statement is partially correct.  Under Federal Rule of Evidence 606(b), "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying." (emphasis added).  Massachusetts applies the language of Rule 606(b) in its case law. See Commonwealth v. Delp, 672 N.E.2d 114, 116 n.3 (Mass.App.Ct. 1996).

The article is wrong that there is an exception under Rule 606(b) for racist remarks by jurors as courts have held that these do not constitute extraneous matters. See  Commonwealth v. Laguer, 571 N.E.2d 371, 376 (Mass. 1991).  The article is right, though, that some (but not all) cases have created an exception for racist remarks by jurors, allowing them to be admissible irrespective of the rules of evidence because deeming them inadmissible would violate defendants' rights to due process/equal protection/fair trials. See id.  This is the conclusion that the Supreme Judicial Court of Massacusetts came to in Laguer, where it held a hearing on juror bias when a defendant was convicted, and there was evidence that "[t]he deliberations were tainted wih blatant racism...." Id. at 375.   

Furthemore, the article on the case cites Jeffrey B. Abramson, a former prosecutor and now a professor at Brandeis University as saying, "I don't believe I have ever heard of a judge going to this length to essentially call a collateral witness....It means we now have a minitrial within a trial. We have a particular juror on trial."  I was in the same position as Professor Abramson until I heard about a bizarre case in Illinois where a judge allowed a reverend and his brother to testify in a post-verdict hearing that a juror told them that he had doubts about the defendant's guilt and was pressured by other jurors into finding him guilty.  In commenting about the case, I contended that the judge ruled incorrectly because the juror could not testify about this internal pressure pursuant to Rule 606(b), and the testimony of the reverend and his brother constituted inadmissible hearsay.

In the McCowen case, however, I think that the judge got it right.  As I noted, when a judge decides to hold a hearing investigating juror bias, he is saying that, despite the rules of evidence, the defendant has a Constitutional right to a hearing to investigate whether racism, sexism, etc. tainted the jury's verdict.  Thus, any argument that Miranda's testimony constituted inadmissible hearay would seem inapposite because the judge has already ruled that this is not a situation governed by the rules on evidence.


February 5, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, February 4, 2008

Aruba, Jamaica, Oooh I Want To Take You: Aruban Chief Prosecutor Claims Tape Made By Private Citizen Admissible In Natalee Holloway Case

Ever since American teenager Natalee Holloway disappeared on the island of Aruba during a high school post-graduation trip, police say that they have done everything in their power to crack the case.  In the wake of a tape which was first broadcast on Dutch television on Sunday night, they might finally have their break.

Holloway was last seen leaving a bar with Dutch student Joran van der Sloot and two Surinamese brothers hours before she was due to board a flight home.  Police, however, have been unable to prove that van der Sloot caused Holloway's disappearance, that is, until the tape that aired on Sunday in a report by a Dutch investigative journalist. 

Apparently, Dutch businessman Patrick van der Eem, a 34 year-old Dutch businessman, befriended van der Sloot with the intention of prying a confession out of him. (echoes of Linda Tripp). van der Eeem then secretly recorded van der Sloot saying with regard to Holloway, inter alia, that while he was with her, "[s]uddenly she started shaking and then she didn't say anything."  "I would never murder a girl."  According to stories on the tape, van der Sloot said that after the shaking, he panicked and tried to revive her.  Stories are inconsistent as to what van der Sloot said next, but some are reporting that he said that when he was unable to revive Holloway he then asked a friend to drop her body in the sea.  Hopefully, any inconsistencies will be resolved in the special edition of 20/20 on the case tonight.

What is clear is that the tape led Aruba to re-open the case against van der Sloot, which it had previously closed.  According to Chief Prosecutor Hans Mos, it is also clear that the tape will be admissible because it was made by a private citizen without any influence by authorities.

Aruba's criminal justice system is mirrored after the Dutch criminal justice system, and I'm assuming that both are similar to the American justice system with regard to the exclusionary rule. See Kuk Cho, "Procedural Weakness" of German Criminal Justice and its Unique Exclusionary Rules Based on the RIght of Personality, 15 Temp. Int'l  & Comp. L.J. 1, 29-30 (2001) (noting that the Netherlands has an exclusionary rule).  Under the American system, while the exclusionary rule prevents the admission of evidence obtained unconstitutionally by government officials or those acting on their behalf in criminal cases, it does not preclude evidence obtained independently by a private citizen. See, e.g., Commonwealth v. Ellis, 208 A.2d 1090. 1091 (Pa. Super. 1992).  Assuming this is true, the Chief Prosecutor is correct that the tape will be deemed admissible, but maybe a Dutch or Aruban reader can confirm this conclusion.


February 4, 2008 | Permalink | Comments (0) | TrackBack (0)