Monday, March 31, 2008
Like many cities across the country, Davenport, Iowa began using computerized cameras, frequently referred to as "red light cameras," to monitor the speed of motorists and automatically issue tickets. One of these cameras clocked the car of Thomas Seymour going 49 miles per hour in a 35 mile per hour zone, resulting in Seymour automatically being given a $125 ticket. The ACLU used Seymour's case as an opportunity to challenge Davenport's cameras on the ground that the cameras generate tickets for a vehicle's owner even though that owner may not have been driving the vehicle at the time of the infraction, and the case was recently heard by the Supreme Court of Iowa, which should issue a decision later this year.
Critics of the cameras also claim that they are an impermissible government intrusion that violates the right to privacy while the government counters that the cameras raise revenues for cities and decrease the number of traffic accidents. For instance, Davenport claims that the cameras have raised $1 million in revenue since they were installed in 2006, and a city analysis indicates that traffic accidents have decreased red light crashes by 60% at four intersections. At the same time, other studies have shown that red light cameras have either had no effect on red light accidents or actually increased their frequency.
My goal isn't to resolve this dispute, although I have serious concerns with the red light cameras. Instead, my goal is to analyze what the Supreme Court of Iowa will likely do with the legal argument of Seymour and the ACLU, which is that the "traffic cameras fail to give alleged offenders the right to confront their accuser." And my answer is that they are almost certain to reject it.
The Sixth Amendment gives criminal defendants, inter alia, the right to be confronted with the witnesses against him. Now, Seymour is not technically a criminal defendant because Davenport treats the citations issued to people as a civil matter, but I assume that he is treated like a criminal defendant for Confrontation Clause purposes because the Iowa state code requires that people who run red lights be issued criminal citations. If that's not the case, Seymour and the ACLU have no argument, but even if that is the case, the seemingly insurmountable obstacle that they face is that essentially every court that has addressed the issue has concluded that "the Confrontation Clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial." United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008).
Sunday, March 30, 2008
It's Inevitably Inevitable: Air Force Case Indicates That Military Rules Of Evidence Codified Inevitable Discovery Doctrine
The United State Air Force Court of Criminal Appeals' recent opinion in United States v. Sanders, 2008 WL 818344 (A.F.Ct.Crim.App. 2008), reveals that, unlike the Federal Rules of Evidence, the Military Rules of Evidence contain a codification of the "inevitable discovery" doctrine. In Sanders, Edwin K. Sanders lived in government quarters at Fort Meade after being stationed in England. Several months after Sanders' arrival, the local Air Force Office of Special Investigations (AFOSI) was told that suspected child pornography had been found by workers cleaning Sanders' former government quarters in England. AFOSI investigators thereafter attempted to obtain authorization to search Sanders' Fort Meade government quarters, but their request was denied for lack of probable cause
The investigators then questioned Sanders, and he admitted that if the investigators were to search his home computer they would “probably” find child pornography. Subsequently, the investigators asked Sanders whether he would consent to a search of his home and computer, and he unequivocally refused. The investigators then contacted Sanders' First Sergeant and told him to keep Sanders with him until he received further instructions and the First Sergeant kept Sanders in his care for approximately one to two hours.
During Sanders' detention, the investigators then drove to the Sanders' home and told his wife about the child pornography allegations. They didn't lie to her, but they didn't tell her that her husband had refused to give his consent to search. Mrs. Sanders thereafter told the investigators that she had common access to the computer and signed a consent form which allowed them to seize and search the computer. The investigators then took the computer, received oral authorization from a military magistrate to search the computer, and eventually, after receiving written authorization to search the computer, retrieved 13 movie files and over 550 image files containing child pornography from the hard drive. After his motion to suppress this evidence based upon the computer being seized without a warrant was denied, Sanders was convicted of knowingly possessing a computer hard drive that contained images of child pornography.
On appeal, Sanders renewed his argument, noting that pursuant to Georgia v. Randolph, 547 U.S. 103 (2006), "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." The government, however, argued for a "narrow interpretation" of the Randolph decision. According to the government, because Sanders was not literally "physically present" at the time of the warrantless seizure of the computer, Randolph did not apply. Sanders countered that the court should give a "broad interpretation" to the Randolph decision. According to Sanders, because the government took steps to keep him from returning to his home and failed to inform his wife of his objection to the search/seizure, Randolph applied and made the evidence inadmissible.
The court noted that this was an interesting and difficult issue, but rather than deciding the issue, it chose to rely upon the inevitable discovery doctrine. The inevitable discovery doctrine creates an exception to the exclusionary rule allowing admission of evidence that, although obtained improperly, would eventually have been obtained through lawful means. The court found that once Sanders admitted that child pornography would likely be found on his computer, the investigators could have gotten a search warrant and seized the computer; instead, they jumped the gun, but it was inevitable that they would eventually discover the child pornography.
As I noted, though, the military court system, unlike the traditional court system, doesn't merely have this doctrine in its case law; instead, it is codified in Military Rule of Evidence 311(b)(2), which indicates that "[e]vidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made." This strikes me as a good move made by my former Evidence professor Fred Lederer, the principal author of the Military Rules of Evidence, and I wonder why we don't have a similar Rule in the Federal Rules of Evidence, even if the same effect is achieved through precedent.
Saturday, March 29, 2008
A man in Schaumburg, Illinois won a key legal victory after a Cook County judge found that the prosecution cannot use small explosive devices found at a Schaumburg home in which he rented a room in his trial for unlawful possession of explosives and unlawful use of a weapon. Back in 2006, Dominic Bender was arrested after authorities found explosives at, inter alia, the Schaumburg home. The problem was that those authorities went to the home not based upon any suspicion that Bender had explosive devices, but because he allegedly made harassing calls to his estranged wife. They thus weren't equipped with a search warrant for explosive devices; instead, they were seeking to serve an order of protection and an arrest warrant charging him with making harassing calls to his wife.
Upon arrival, the authorities looked for Bender throughout the house, including in a bedroom closet. Eventually, however, they looked through a duffel bag in which they discovered about 200 M-80 type fireworks devices. Circuit Judge John Scotillo found that this search of the duffel bag violated Bender's Constitutional rights and that the explosive devices were inadmissible. Judge Scotillo found that while it was reasonable for the authorities to seek to enforce the arrest warrant by looking in the closet because a person could hide there, the authorities exceeded their authority by ostensibly looking for Bender in the duffel bag.
This ruling makes sense based upon well established Supreme Court precedent. As the Supreme Court found in Steagald v. United States, 451 U.S. 204, 226 (1981), an "arrest warrant also limits the scope of the search, specifying what the police may search for- i. e., the subject of the arrest warrant. No general search is permitted, but only a search of those areas in which the object of the search might hide." Obviously, it would be physically impossible for most men to fit in most duffel bags, so there was no justification for the authroities to search inside the bag for Bender.
Friday, March 28, 2008
The Accidental Expert: Missouri Court Finds Accident Reconstruction Report Partially Based Upon Hearsay To Be Inadmissible
According to the Court of Appeals of Missouri's recent opinion in State v. Bybee, 2008 WL 762224 (Mo.App. W.D. 2008), an accident reconstructionist cannot base a report or testimony upon the statements of eyewitnesses. In Bybee, Steven Bybee was convicted of involuntary manslaughter and two counts of assault in the second degree. These convictions were based upon a 2004 single car crash in which the then 16 year-old Bybee was allegedly the driver and one passenger was killed while Bybee and two other passengers were seriously injured. After the accident, Bybee denied being the driver of the car, but Bybee was given a blood sample, and testing indicated that he had a blood alcohol level of .079%.
Sergeant Brown of the Missouri Highway Patrol later conducted an accident reconstruction analysis of the crash. He determined that the car had been traveling at a minimum of 100 miles per hour when the right tires briefly went off the side of the road, the driver steered abruptly left and then overcorrected to the right, the car began to spin off the right side of the road until it hit a driveway embankment, the car went airborne at 91 miles per hour, and the car then rolled over 300 feet. In his report, Brown repeatedly referred to Bybee as the driver of the car.
On appeal, Bybee claimed that the trial court erred in admitting this reconstruction analysis into evidence because Brown's conclusion that Bybee was the driver of the car was based solely upon the hearsay statements of the other passengers. The Court of Appeals of Missouri agreed, finding that, with rare exception, an expert may not give an opinion based on hearsay. The court did note that Missouri law allows for experts to testify based upon inadmissible evidence such as hearsay if it is of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and otherwise reasonably reliable. The court, however, cited to previous cases such as Edgell v. Leighty, 825 S.W.2d 325, 328-29 (Mo. App. S.D. 2004), where Missouri courts had found that eyewitness hearsay testimony did not provide a foundation sufficiently reliable to support the admissibility of accident reconstruction reports.
The court found further support in the Advisory Committee Note to Federal Rule of Evidence 703, which, like Missouri law, allows expert opinions and reports to be admissible if they are based upon inadmissible evidence if that evidence is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." The Advisory Committee Note to Rule 703, however, indicates that this "language would not warrant admitting in evidence the opinion of an 'accidentologist' as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied." Based upon this Note and previous Missouri case law, it seems to me that the Court of Appeals of Missouri reached the correct decision.
Thursday, March 27, 2008
Kay Song, a science teacher at Albany Middle School in upstate New York, stands charged of two felony counts of oral copulation of a person younger than 16 and two counts of sexual penetration with a foreign object in connection with alleged sexual acts with one of her former female students in 1990. If Song has her way, however, testimony about the contents of letters that Song may have written to the alleged victim will be deemed inadmissible, striking a potentially fatal blow to the prosecution's case. You see, the alleged victim did not contact authorities concerning the Song's alleged acts until last year, by which point the statute of limitations had run out, which means that there must be corroborating evidence about Song's alleged crimes beyond the victim's testimony.
The prosecution seeks to provide that evidence through testimony about the contents of letters that Song allegedly wrote to the victim around the time of the alleged sexual abuse. The prosecution seeks to prove their contents through testimony because the letters have since been destroyed. Defense counsel has argued that oral testimony about the contents of these letters would be "absolutely, not remotely admissible as evidence." There's a good chance, however, that this argument is without merit.
Pursuant to the Best Evidence Rule, "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress." At the same time, pursuant to Federal Rule of Evidence 1004, which New York has applied in its case law, see Schozer v. William Penn Life Ins. Co. of New York, 644 N.E.2d 1353, 1355 (N.Y. 1994), "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if [inter alia]
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith."
Furthermore, as I note in my new article, Even Better than the Real Thing, (look at pages 21-22) courts rarely find that originals have been lost in bad faith and have found that even negligently destroyed documents were not destroyed in bad faith. Thus, it is unlikely that the New York court will find that the letters were destroyed in bad faith, which means that it will allow testimony about their contents. If, however, the court makes such a finding, any testimony about the contents of the letters will be inadmissible under the Best Evidence Rule, and charges against Song will likely be dropped.
Wednesday, March 26, 2008
Earlier, I wrote about a proposed California state shield law, under which judges would not be able to hold domsetic violence victims in contempt for refusal to testify against their alleged attackers. Well, after a 3-2 partisan vote by the Senate Public Safety Committee, the bill is being forwarded and must pass the full Senate and Assembly. The vote is considered a major step toward the passage of the bill, and was reportedly based in large part on the testimony of Katina Britt, the woman was threatened with jail for not cooperating with the prosecution of her ex-boyfriend and whose case provoked the bill.
They Call Me Bruce?: Man Mistakenly Presents Res Ipsa Loquitur Argument In Case Based Upon Grocery Store Assault
If an article on a man's lawsuit against a grocery store is accurate, the man's attorney was inaccurate in seeking to recover against the store under the doctrine of res ipsa loquitur. Carlton J. Ford has claimed that while he was leaving a Bruce's Market Basket in Texas, he was thrown to the ground by an employee and falsely imprisoned. His attorney has claimed that, "Defendant's assault...was negligent...and was a proximate...cause of his injuries." The article also indicates that Ford is claiming that Bruce's Market Basket is liable to him under the doctrine of res ipsa loquitur.
The essential elements of false imprisonment are "(1) willful detention; (2) without consent; and (3) without authority of law." Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Obviously, a detention cannot be both negligent and willful, so Johnson's claims of negligence and res ipsa loquitur, which is a way of proving negligence, cannot support his claim for false imprisonment. Maybe, however, Ford is pleading in the alternative and claiming that the grocery store employee either intentionally falsely imprisoned him or that the employee and the store negligently restricted his movement.
Even in this latter case, however, the doctrine of res ipsa loquitur would be inapplicable. Res ipsa loquitur (Latin for "the thing speaks for itself") is an evidentiary rule that a plaintiff can use when he has evidence that the defendant very likely injured him but cannot prove the particular manner in which the accident was caused. See Hector v. Christus Health Gulf Coast, 175 S.W.3d 832, 837 (Tex.App.-Houston 2005). Res ipsa loquitur is applicable only when: "(1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant." Id. Thus, for instance, a shopper at a grocery store who is injured when boxes stocked on the top of a 9 foot shelf fall on his head could use res ipsa loquitur to get the question of negligence to the jury even if he couldn't sepcifically prove that the boxes fell because they were stocked improperly, the shelving was improperly installed, etc. This would be the case because he could likely prove that boxes don't fall from grocery store shelves in the absence of negligence and that based upon the placement of the boxes only grocery store employees were the only people with acces to the boxes. Res ipsa loquitur, however, would seemingly have no application to a case where the plaintiff is claiming that a grocery store employee restrained him, either intentionally or negligently.
Tuesday, March 25, 2008
Sex, Lies, And Texting, Take 2: Kwame Kilpatrick's Attorney Might Raise Authentication Challenge To Text Messages
Earlier, I posted about the Kwame Kilpatrick sex/perjury scandal. As I noted, Kilpatrick, the married mayor of Detroit, and Christine Beatty, his then married chief of staff, testified last summer in a police whistleblower lawsuit that they had no sexual or romantic ties in 2002 and 2003. The Detroit Free Press, however, got its hands on approximately 14,000 text messages on Beatty's city-issued pager for those years and found many examples of such ties.
Well, Kilpatrick has now been charged with perjury and obstruction of justice, but if his attorney has his way, the text messages will be ruled inadmissible. As I noted in my earlier post, there are privacy and statutory issues at play with the text messages, which Kilpatrick's attorney, Dan K. Webb, plans to include in a motion to suppress the text messages. If this motion is unsuccessful, however, Webb had intimated that he may challenge their authenticity. According to Webb, "Technically, they are hearsay -- out of court statements." "You have to prove they were sent by the mayor and sent by his chief of staff."
Based upon the liberal standard for authentication, such an argument would almost certainly fail. Pursuant to Federal Rule of Evidence 901(a) and state counterparts such as Michigan Rule of Evidence 901(a), "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." As I noted in a previous post, courts have been very liberal in finding that proponents have authenticated communications sent through modern technologies.
For instance, "[e]-mail communications may be authenticated as being from the purported author based on an affidavit of the recipient; the e-mail address from which it originated; comparison of the content to other evidence; and/or statements or other communications from the purported author acknowledging the e-mail communication that is being authenticated." The same rules apply for text messages: As long as the proponent can prove that a text message was sent by a device owned/used by the alleged sender of the message, the authentication requirement is satisfied. See, e.g., Dickens v. State, 927 A.2d 32, 37 (Md.App. 2007). So, assuming that the prosecution can prove that the text messages at issue came from devices owned/used by Kilpatrick and Beatty, the messages can be authenticated, and any arguments that Kilpatrick might have about somebody else sending the messages would go to the weight of the evidence, not its admissibility.
Miami State of Mind: Eleventh Circuit Finds Doctor's Statements About Past Fraud Inadmissible Under Rule 803(3)
The Eleventh Circuit's recent opinion in United States v. Nosovsky, 2008 WL 696595 (11th Cir. 2008), provides a nice clarification of the dichotomy created by Federal Rule of Evidence 803(3). In Nosovsky, from November 2004 until mid-April 2005, Rosa Walled, her brother Rafael Walled, and Gregory Delatour owned an HIV AIDS clinic in Miami, Florida. The plan of the clinic, according to Walled, "was trying to get patients and bill Medicare and make some money." The Walleds and Delatour planned to “recruit” patients, pay the patients from $100 to $200 per visit to their clinic, “alter” their blood work to make the patients eligible for “expensive [HIV/AIDS] medications,” and bill Medicare even though the patients, in fact, would neither receive the medications nor be treated by a physician. The Walleds and Delatour needed a physician to be associated with their clinic, as a medical director, so that they could utilize his “provider number” to bill Medicare for reimbursement. The physician they contacted was the defendant, Dr. Isaac Nosovsky, with the question being whether they informed him of this scheme.
After being approached by the government, Rosa agreed to wear a wire and record a conversation with Nosovsky. The government anticipated that Nosovsky would make admissions or statements in furtherance of conspiracy, but when Rosa broached the subject of the fraud, Nosovsky responded with surprise and shock at Rosa's declaration that there had been fraud at the clinic and that documents he had signed had been used to further that fraud. Nosovsky repeatedly denied having known about the fraud. Of course, the government did not want to introduce the recording of Nosovsky's statements at trial, but defense counsel sought to introduce them pursuant to Federal Rule of Evidence 803(3), the state of mind exception to the rule against hearsay. The trial judge, however, ruled the recording inadmissible, and Nosovsky was subsequently convicted of one count of conspiracy to defraud the United States and to commit health care fraud and six counts of health care fraud.
On appeal to the Eleventh CIrcuit, Nosovsky claimed that the trial judge's evidetiary ruling was erroneous because Federal Rule of Evidence 803(3) allows for the admission of statements of the declarant's then existing state of mind and his statements to Rosa evinced an innocent state of mind. The problem with this argument, however, is that while Federal Rule of Evidence 803(3) allows for the admission of statements of the declarant's then existing state of mind, its specifically excludes statements of memory or belief to prove the fact remembered or believed. Thus, the Eleventh Circuit found that Nosovsky's statements to Rosa were inadmissible because they were statements of memory to prove facts remembered. Now, if Rosa instead proposed that a fraud be committed in the future and Nosvsky balked at the idea, his statements would have been admissible because they would have referred to proposed future actions, not alleged past actions.
Monday, March 24, 2008
Minnesota Girl, Take 2: Former Minnesota Football Player Tries To Present Sexologist's Testimony In Sexual Assault Trial
Earlier I wrote about the sexual assault trial of former University of Minnesota football player Dominic Jones. As I noted, Jones is accused of engaging in sexual acts with a woman when she was too inebriated to consent, and the prosecution sought to prove these acts in part through a cell phone recording taken by another player. I further noted that the defense sought to have the recording excluded but that the judge overruled that objection and allowed the recording to be entered into evidence.
Well, according to an article on the case, the recording purportedly showed Jones ejaculating on the woman. Now, the defense wants to present the expert testimony of a "sexologist," who would testify that some people view ejaculating on another person as playful sex. According to court papers, the sexologist would testify that while some people view ejaculation as an act of hostility or aggression, others see it as "a symbol of closeness, sexual bonding or sexual competence." The court papers indicate that this sexologist is Marty Klein, who says he has a doctorate from the Institute for Advanced Study of Human Sexuality in San Francisco. The institute's Web site says it is "the only graduate school in the United States, and one of the few in the world, approved to train sexologists." It is not, however, an accredited educational institution. The prosecution has countered that this evidence is inadmissible and irrelevant because Jones sexually assaulted the woman knowing that she was physically helpless.
Now, without knowing the full factual context of the case, I can't say whether this sexologist's testimony is relevant, but the test for whether this sexologist can be qualified as an expert witness is the Frye test, which looks at whether the technique or theory upon which the witness' testimony is based is generally accepted in the relevant scientific community. This means that the judge would need to see whether Klein's ejaculation theory is generally accepted in the sexologist. So, who could be called to provide such testimony? Dr. Ruth? Dr. Drew?
It's tough to say how the court will rule because a Westlaw search reveals only a handful of cases where sexologists testified, and only one case, Artrip v. State, 2002 WL 242532 (Tex.App.-Amarillo 2002), has dealt with whether a sexologist can provide expert testimony. In Artrip, a fellow of the American Academy of Criminal Sexologists testified concerning the controversial STATIC-99 actuarial risk prediction instrument, and an appellate court found that the defendant's counsel did not provide the ineffective assistance of counsel by failing to object to his testimony because it was properly rendered expert testimony.
Sunday, March 23, 2008
Go %$#! Yourself, San Diego: Court Finds "Relevant" Means Different Things Under FRCP, FRE in Mt. Soledad (Easter) Cross Case
The current Mt. Soledad cross in San Diego was constructed by the Mt. Soledad Memorial Association and was dedicated to the veterans of World Wars I and II and the Korean War on Easter Sunday in 1954. Since that time, the cross has been the setting for annual Easter Sunday services, as well as weddings and baptisms. At least one local map formerly referred to the location as the Mt. Soledad Easter Cross.
The cross has led to a myriad of legal challenges under the First Amendment Establishment Clause and the California Constitution "No Preference" Clause. Eventually, the California district judge who had overseen seventeen years of federal litigation on the cross entered an order in May of 2006 enforcing a permanent injunction, such that the City of San Diego had to remove the cross from public land within ninety days or face fines of $5,000 per day. After the Ninth Circuit denied a request for a stay, the City sought relief in the U.S. Supreme Court, which, granted the stay.
Rather than allowing the courts to decide the issue, within a week of the district court's order, Congressman Duncan Hunter (yes, the guy you kept seeing at the bottom of the Republican primary result tallies) asked President Bush to invoke the authority conferred by a federal statute, 40 U.S.C. Section 3113, to take immediate possession of the Mt. Soleded Cross. Subsequently, in late June of 2006, Hunter introduced a bill designed to transfer the Mt. Soledad Veterans Memorial to federal control effective immediately. The bill passed both houses of Congress by early August of 2006, and the President signed it into law on August 14, 2006.
The Jewish War Veterans of the United States of America (JWV) thereafter filed a complaint challenging the Act and the presence of the cross on public land. During discovery, JWV served subpoenas on several individuals including Hunter, seeking nine categories of data, and the parties quibbled about whether all of the categories of data were relevant and/or protected by the Speech and Debate Clause. In considering this dispute in Jewish War Veterans of the United States of America v. Gates, 506 F.Supp.2d 30 (D.D.C. 2007), the District Court for the District of Columbia noted that under Federal Rule of Civil Procedure 26(b)(1), litigants "may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party...." (emphasis added).
The court then noted that under the Rule, "[i]nformation sought may be 'relevant' even if it is not admissible at the merits stage, so long as 'the discovery appears reasonably calculated to lead to the discovery of admissible evidence.'" According to the court, put differently, "a party may discover information which is not admissible at trial if such information will have some probable effect on the organization and presentation of the moving party's case." The court then cited to several cases for the proposition that "[t]he term 'relevant' thus has a different meaning-and a broader scope-under Federal Rule of Civil Procedure 26(b)(1) than it does under Rule 401 of the Federal Rules of Evidence.
In my mind, this holding makes no sense, and in looking at the cases cited by the court, I think I can see where courts went wrong. In looking at these cases, the first case I found using similar language was Hofer v. Mack Trucks, Inc., 981 F.2d 377 (8th Cir. 1992). In that case, the Eighth Circuit opined that "the standard of relevance in the context of discovery is broader than in the context of admissibility." The problem with the D.C. Court's opinion, however, is that Federal Rule of Evidence 401 is not a rule of admissibility. Instead, Rule 401 is merely definitional: It defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Federal Rule of Evidence 402 indicates, inter alia, that "relevant" evidence can still be inadmissible as "provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority." Thus, even "relevant" evidence must typically pass the balancing test imposed by Federal Rule of Evidence 403, which indicates 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." And while, inter alia, character evidence, hearsay testimony, and conviction evidence are usually "relevant" under Rule 401, they are frequently deemed inadmissible under Rules such as Rule 404, Rule 802, and Rule 609, respectively. Thus, courts such as the D.C. court in JWV have failed to provide a satisfactory reason for treating the term "relevant" disparately in these two contexts, and they should either eliminate the dichotomy or provide sensical reasons for their distinctions.
Finally, while I am not a Constitutional law scholar, in looking through the facts of the JWV case, it seems clear to me that the placement of the cross is unconstitutional, and it seems reprehensible to me that the City of San Diego, Hunter, and others transferred possession of the cross to the federal government after the district court had ruled against them. It will certainly be interesting to see how how things shake out when the dispute is finally resolved.
The Fifth Circuit's recent opinion in United States v. Whittington, 2008 WL 659150 (5th Cir. 2008), seems to me to underplay the prejudicial effect of comments made by a prosecutor during opening and closing statements. In Whittington, Jasinda Whittington, Jose Cardona, and others were convicted of various drug related crimes. At trial, three witnesses, Fuentes, Benevides, and Guerra, who had been incarcerated with Cardona, testified pursuant to plea agreements. All three testified that Cardona was a member of the Mexican Mafia. They also testified that Cardona had told them details of his drug-trafficking and that Cardona also gave them names of other individuals involved in his trafficking. One testified that Cardona used the term “chickens” as code for drugs. Conversations between Cardona and his wife that were recorded while Cardona was incarcerated indicated that they used the term “chickens” regularly in discussing various transactions.
On appeal, Cardona argued, inter alia, that he deserved a new trial based upon improper comments made by the prosecutor during opening and closing statements. During opening statements, the prosecutor told the jury that it would hear what some witnesses would expect the government to do in return for their truthful testimony. The prosecutor concluded: "Throughout the trial you won't hear the United States apologizing for having to make those deals with the sinners who are paying their penance so that we can convict the person that we believe to be the devil here today." (emphasis added). During its rebuttal at closing arguments, the prosecutor stated, "When I began this trial, I told you I wouldn't make any apologies for making the deals with sinners that i made on behalf of the United States to convict that man, the devil." (emphasis added). Cardona did not object to these statements at trial, but he argued that they were unfairly prejudicial on appeal, and the Fifth Circuit correctly noted that in deciding whether Cardona was entitled to a new trial, it had to consider "(1) the magnitude of the statement's prejudice, (2) the effect of any cautionary instructions given, and (3) the strength of the evidence of the defendant's guilt."
The court then found that the prosecutor's remarks could be characterized as simply a colloquialism because he appeared to be referring to Cardona in each statement. The Fifth Circuit then "assume[d] without deciding that referring to a defendant as 'the devil' [wa]s improper." It found, however, that such references did not affect Cardona's substantial rights because "[a]lthough such a statement, made during Easter week...would negatively impact the jury, the specific wording of the statement was designed to explain the plea agreements that the government made with unsavory characters that testified against Cardona." The court found that the "statements were minimized by the context in which they were made and would be of little prejudice." Finally, the court noted that while no cautionary instruction was given, Cardona did not object to the statements, and there was significant other evidence of his guilt.
Leaving aside the issue of the oddness of the court apparently finding that referring to the defendant as "the devil" would be more prejudicial during Easter week than at other times during the year, and leaving aside factors (2) and (3), I don't see how the court's consideration of the magnitude of the statements' prejudice makes any sense. In effect, the court is saying that if the prosecutor merely said that the jurors should consider the evidence closely because the defendant was the devil, his statement would have been unequivocally prejudicial. According to the court, however, because the prosecutor said that he wasn't going to apologize for making deals with sinners because he was doing so to prosecute "the devil" was less prejudicial based upon its context.
This makes no sense. In the first case, it seems to me that jurors could just think that the prosecutor was using hyperbole and telling them to look closely at the evidence because the defendant was guilty. In the second case, however, it seems to me that the jurors were unequivocally told one thing: sure, these state's witnesses are somewhat bad guys, but they're merely going to one of the upper circles of hell, but the defendant is so evil that he's actually the guy running the place. You must concvict him.
Saturday, March 22, 2008
A Pennsylvania judge has denied a petition by Fabian Smart appealing his murder conviction in the beating death of a Lock Haven area man nine years ago. Smart was convicted of first degree murder in connection with the death of Jason McMann and sentenced to life imprisonment without the possibility of parole. Smart, however, recently brought a Post-Conviction Collateral Relief Act petition.
Smart, who is African-American, claimed, inter alia, that a jury member contacted him after the trial and told him that jury members used racial slurs which were brought up "early and often." The judge considering the petition, Judge J. Michael Williamson, noted that this issue was controlled by Pennsylvania Rule of Evidence 606(b), which indicates in relevant part that "[u]pon an inquiry into the validity of a verdict,...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 in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror."
Thus, a juror cannot testify after a verdict is rendered that, inter alia, jurors ignored jury instructions, misconstrued the elements of a crime, or considered testimony that was stricken from the record because these are internal to the jury deliberation process. After a verdict, however, a juror can testify that, inter alia, a friend of the defendant threatened him or that a newspaper article discussing inadmissible evidence found its way into the jury room because these are external to the jury deliberation process. Courts have found that racial slurs are internal to the jury deliberation process and thus inadmissible under Federal Rule of Evidence 606(b) and state counterparts, and this is what Judge Williamson did, concluding that "[a] juror may not testify as to any matter or statement occurring during the course of the jury's deliberations."
What complicates the issue, however, and what Judge Williamson apparently didn't address, is that some courts have expressed the viewpoint that, in spite of Rule 606(b), precluding evidence of racial slurs used by jurors might violate the Fourteenth Amendment. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 222 (6th Cir. 1995). On the other hand, other courts have held that racial slurs used by jurors are inadmissible under Rule 606(b) and not admissible based upon the Fourteenth Amendment. See, e.g., United States v. Roach, 164 F.3d 403, 413 (8th Cir. 1998) (finding that juror's proffered testimony that other jurors used racial slurs against Native Americans during trial was inadmissible under Rule 606(b)).
In reviewing the Pennsylvania case law, I was unable to find any case applying the Fourteenth Amendment analysis to a Rule 606(b) case, but I did find an interesting jury bias case decided in the wake of 9/11. In Tabchi v. Duchodni, 56 Pa. D. & C.4th 238 (Pa.Com.Pl. 2002), an Arab husband and wife and their three children were involved in a car accident and brought a civil action against the other driver for their injuries. They thereafter moved for partial summary judgment on the issue of liability, and their motion was granted; the defendant was held solely responsible for the accident, leaving only the issue of damages to be tried before the jury. Id. at 239. At that trial, however, which began on September 24, 2001, "the jury returned a verdict in the amount of zero dollars as to each of the five plaintiffs, even though injuries to two of them were uncontroverted." Id.
After the jury rendered its verdict, one of the jurors approached plaintiffs' counsel and allegedly informed him of disparaging remarks concerning plaintiffs' Arabic heritage and culture made by other members of the jury during the course of their deliberations. Id. at 241. Several days later, the court received a letter from the jury foreperson which claimed that the ethnicity of the plaintiffs was openly discussed and apparently considered as a factor in the jury's deliberations. See id. The plaintiffs thereafter moved for a new trial, alleging, inter alia, that this prejudice made the jury's verdict fatally flawed. See id.
The court rejected this claim, finding that the "[p]laintiffs' contention that the jury was influence by anti-Arab bias and bigotry in the course of its deliberations is based solely upon the allegations of other jurors. However, such prejudice in the deliberative process, if it existed, and as odious and repugnant as it would be, is not and external or extraneous input that would override the sacrosanct nature of jury deliberations." Id. at 250 (emphasis added). In my mind, the Duchodni case clearly supports the proposition that the Fourteenth Amendment analysis should be applied to Rule 606(b) cases to ensure that cases are not decided based upon racial prejudice.
Friday, March 21, 2008
Device Under The Influence: Illinois Judge Finds Passive Alcohol Sensor Can Be Used To Gain Probable Cause
Last week, Kane County Judge Allen Anderson became the first Illinois judge to hold that the PAS IV, a passive alcohol sensor, can be used to put a suspected drunk driver through sobriety tests. Several Kane County, Illinois police departments use the PAS IV during traffic stops. The sensor looks like a heavy duty flashlight, but it uses a small intake valve to measure alcohol in the air. When alcohol is detected on a fuel cell, it lights up the PAS IV device. The device is useful because a police officer might be talking with a motorist he or she instinctively believes has been consuming alcoholic beverages, but the officer is unable to establish probable cause. An officer equipped with the PAS IV can hold it in close proximity to the vehicle, and by taking a sample of air the PAS IV is able to detect the presence of alcohol either on the driver’s breath or within the vehicle with an alleged 97 percent accuracy rate.
The driver does not need to blow into the device; instead, the device draws in air through a port and past a fuel cell, which will generate a small electric current if alcohol vapor is present. The current is amplified electronically and becomes visible on a display on the outside of the device. Judge Anderson agreed with the argument of Kane County Assistant State's Attorney Steve Sims that the fuel cell technology is not new and that the U.S. Department of Transportation evaluated an earlier model of the passive alcohol sensor and determined it to be reliable. He thus ruled that the PAS IV can be used to gain the probable cause necessary to conduct sobriety tests even though it does not provide a blood alcohol reading.
All of this makes sense to me because it seems that the PAS IV is reliable enough to meet the probable cause standard in that its results would warrant a prudent person's belief that the driver had committed a crime. But the article on the case (I don't have access to the opinion) indicates that "Judge Allen Anderson had to determine whether the scientific principles behind the technology are sufficiently established to have gained general acceptance." This is the Frye test for determining whether expert evidence is admissible at trial, but it is well established that the rules of evidence do not need to be applied to determine whether probable cause exists. See e.g., Brinegar v. United States, 338 U.S. 160, 174 n.12 (1949). In other words, a police officer can develop probable cause from evidence which would be inadmissible at a subsequent trial. I thus see no reason why Judge Anderson should have applied the Frye test to the PAS IV, but maybe something was lost in translation to the article.
Thursday, March 20, 2008
Open In Case Of My Death, Take 3: Wisconsin Manufacturer's & Commerce Issues Attack Ad Against Dissenting Justice In Mark Jensen Case
I've posted entries about the Mark Jensen murder trial on January 7th and February 22nd. You might recall that this was the case where Mark Jensen was accused of poisoning his wife with two doses of ethylene glycol, commonly known as antifreeze, so that he could be with his new girlfriend. The key evidentiary issue in the case concerned the admissibility of a note that the wife gave to a neighbor which indicated that Mark should be the first suspect if she died. This evidentiary issue eventually reached the Supreme Court of Wisconsin, and the majority opinion in State v. Jensen, 727 N.W.2d 518, 521 (Wis. 2007), held that the note was admissible under the forfeiture by wrongdoing doctrine, which allows for hearsay statements by prospective witnesses to be admissible when the defendant rendered the prospective witness unavailable to testify at trial.
In his opinion concurring in part and dissenting in part, Justice Louis B. Butler, Jr. countered that the note was inadmissible because the forfeiture by wrongdoing doctrine requires a showing of intent by the witness to render the prospective witness unavailable to testify at trial. Thus, according to Justice Butler, the doctrine would apply in the witness tampering scenario, where a defendant who allegedly committed a crime subsequently kills a prospective witness, but it would not apply where the prospective witness is the victim herself.
The majority opinion, however, carried the day, the note was admitted into evidence at Jensen's trial, and Jensen was convicted of murder in the first degree. The story, however, doesn't end there as Justice Butler is currently up for re-election. Apparently, Wisconsin Manufacturers & Commerce (WMC), the state's largest business lobby, has put forth a new ad which charges that Butler "almost jeopardized the prosecution of a murderer because he saw a technicality." "Thankfully, he didn't get his way," the ad says, before advising viewers to call Butler to "tell him needless technicalities are dangerous for Wisconsin." Apparently, WMC has taken this approach because it feels that criminal cases are important to maintaining a health business climate.
The ad, which can be found linked in this article, makes it seem as if Justice Butler applied some obscure law, such as the laws listed on the Crazy Laws website (example: the Alaskan law that Moose may not be viewed from an airplane). Instead, as readers of this blog are well aware, the majority's opinion fell on one side of a sharp judicial split over how to apply the forfeiture by wrongdoing doctrine while Justice Butler's decision fell on the other. In fact, the issue is so divided and unclear that the Supreme Court granted cert in Giles v. California to resolve the very issue that split the majority and dissenting opinions in State v. Jensen. Personally, I side with the majority opinion and again direct readers to the excellent new article by my colleague Ralph Ruebner and law student Eugene Goryunov, which addresses this issue and also sides with the majority. That said, there are certainly strong arguments supporting Justice Butler's opinion, which is why many courts have rendered opinions coming to the same conclusion. Indeed, I wouldn't be surprised in the least if the Supreme Court rendered an opinion siding with Justice Butler, not the majority.
All of which means that the WMC attack ad is misleading at best, which I suppose is to be expected in the political context of today. But hopefully, the citizens of Wisconsin are not swayed by an argument with much less substance than Justice Butler's opinion in State v. Jensen.
Be Kind, Rewind: Connecticut Considering Bills Requriring Videotaping Of Interrogations And New Identification Procedures
The Connecticut General Assembly is currently considering bills on police lineups and interrogations which I strongly support. The first bill requires that police officers conducting photo and live lineups not know which person in the lineup is the suspect. The hope is that the bill would avoid the possibility that the witness is influenced or coerced. The bill also mandates that all people and photographs in a lineup be viewed one at a time rather than simultaneously. If the bill were passed, eyewitnesses would be advised that the suspect might not be in the lineup and that they should not feel compelled to make an identification. These recommendations come directly from the innocence movement, and I will again direct readers to Duke University Law School Professor Robert P. Mosteller's article on why these identification procedures are essential to increasing accuracy in identifications.
Under the second bill, all interrogations of people in police custody for allegedly committing capital, Class A, or Class B felonies would be videotaped. Unrecorded statements would be inadmissible as evidence in a criminal proceeding. The purpose behind this bill is to corroborate defendants' claims of police coercion, deception, etc. when such misbehavior occurred and to refute such claims when such misbehavior did not occur. For those still asking the question of what Barack Obama has done legislatively, this provides a nice opportunity to note that he was able to get similar legislation passed despite severe opposition.
I think both of these bills help to increase the likelihood that innocent people are exonerated while guilty people are incarcerated.
Wednesday, March 19, 2008
Y For YouTube: U.K. Court Deems YouTube Video Inadmissible In Guy Fawkes Night Fireworks Explosion Case
As far as I can tell, the trial of Martin Winter in a Lewes' Magistrates' Court has resulted in the first evidentiary ruling on the issue of the admissibility of a YouTube video. Winter was the owner of Festival Fireworks, a fireworks supplier and fireworks display organizing company near Halland, East Sussex in England. During Guy Fawkes or Bonfire Night (check out V for Vendetta for further explanation), there was an explosion at Festival Fireworks' warehouse, resulting in several people being injured and two fire crew members being killed as they tackled the blaze.
The 50 year-old Winter, however, is not on trial for the explosion, but his ensuing conduct. After the explosion, Sussex police inspector Martin Pattenden set up a cordon, which separated Winter from other members of the Borough Firework Society. According to the prosecution, Winter thereafter swore at Pattenden and acted aggressively while carrying a flaming torch. Another member of the police also claimed that he smelled alcohol on Winter's breath. Winter was thus charged with disorderly behaviour and resisting arrest.
The prosecution sought to prove its case in part through video footage of Winter's arrest, which appeared on YouTube. You can find that footage linked in one of the articles reporting on the trial. The court, however, ruled that the footage was inadmissible. As I noted before, I think that this is the first case ruling on the admissibility of a YouTube video. A quick Westlaw search reveals only one state case mentioning YouTube, and that case merely makes reference to the "YouTube era." Adams v. City of San Bernardino, 2007 WL 2422098 (Cal. App. 4 Dist. 2007).
There are 17 federal cases mentioning YouTube, but it appears that none involved the admissibility of YouTube videos. Instead, they consist of cases where, inter alia,:
-someone alleged breach of copyright based upon posting of a YouTube video: See, e.g., Doe v. Geller, 2008 WL 314498 (N.D. Cal. 2008); or
-a judge felt compelled to direct his captive audience to a YouTube video that had nothing to do with the case at hand: See Central Mfg., Inc. v. Brett, 492 F.3d876 (7th Cir. 2007), for Judge Evans' gratuitous recounting of the George Brett pine tar incident along with a link to a YouTube video, in a case that dealt with a dispute involving George Brett and a baseball bat, but which otherwise had no connection to the video/incident.
Unfortunately, the articles on the case don't make clear why the court deemed the video inadmissible, and I can only speculate that it might have done so based upon authentication issues or claims that Lewis' right of privacy would have been violated by its admission. It would seem to me, however, that in the United States, the odds of such evidence being deemed admissible would be much higher, but only time will tell.
Vision Qwest: Tenth Circuit Reverses Joseph Nacchio's Convcitions Based Upon Improper Exclusion Of Expert Testimony
The Tenth Circuit has reversed the nineteen insider trader convictions of former Qwest Communications chief executive Joseph P. Nacchio based upon incorrect expert evidence rulings. Anyone who has followed the situation at Qwest is likely familiar with the saga of Nacchio, who was accused of knowingly concealing Qwest's mounting financial troubles from investors, while simultaneously selling millions in personal shares. Of course, there was significant evidence of Nacchio's guilt, leading to him being convicted, sentenced to a significant term of incarceration, fined $19 million, and ordered to forfeit $52 million more. So, what went wrong?
Well, on March 16, 2007, the defense disclosed its intention to call Professor Daniel Fischel to provide economic analysis of Mr. Nacchio's trading patterns, and to testify about the economic importance of the allegedly material inside information. The government objected that defense failed to comply with Federal Rule of Criminal Procedure 16(b)(1)(C), which indicates in relevant part that "[t]he defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence....This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications."
On March 29, Nacchio filed a revised, ten-page Rule 16 disclosure describing Professor Fischel's qualifications as an academic, his research and teaching in law and finance, and his previous experience consulting and testifying. It gave a “Summary of Opinions and Bases for Opinions,” explained that Fischel had conducted a “study of the Questioned Sales in relation to various benchmarks,” and provided his consequent opinion that Mr. Nacchio's sales were inconsistent with what one would expect them to be if the government's claims were true. It recounted that Professor Fischel had studied stock data and assorted public information and stock analysis and had concluded that Qwest's stock price was not significantly affected when the allegedly material information was released. The government again objected, and at trial, the judge granted the objection and precluded Professor Fischel from testifying, concluding that defense's Rule 16 disclosure failed to address methodology and that Fischel's testimony would not be helpful to the jury, making it inadmissible under Federal Rule of Evidence 403 or Federal Rule of Evidence 702.
In United States v. Nacchio, 2008 WL 697382 (10th Cir. 2008), the Tenth Circuit found that the judge erred in precluding Professor Fischel's testimony. The Tenth Circuit first found that the judge's Rule 16 ruling was in error, possibly because he was "confus[ed] between" the Federal Rules of Criminal Procedure and the Federal Rules of Civil Procedure because he indicated that "the criminal expert disclosure requirement is 'pretty close to what is required in the civil area.'" As noted, a disclosure under Federal Rule of Criminal Procedure 16(b)(1)(C) must contain only "a written summary of any testimony" and "describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." The Tenth Circuit found that the defense's ten-page Rule 16 disclosure satisfied this requirement.
The Tenth Circuit then noted that in civil cases, Federal Rule of Civil Procedure 26 requires that a party presenting expert testimony produce an expert's written report with "a complete statement of all opinions the witness will express and the basis and reasons for them," the witness' qualifications, all of the data or other information considered in forming the opinion, all summary or supporting exhibits, and the compensation he was paid. The defense did not comply with the this rule, but because it was a criminal case, not a civil case, compliance was not required, and the trial judge's determination was in error.
The Tenth Circuit then noted that the trial judge found that, even if the defense's Rule 16 disclosure was proper, Professor Fischel's still would have violated Federal Rule of Evidence 403 or Federal Rule of Evidence 702. The court, however, found that after the trial judge made his Rule 16 decision, he merely cursorily made these conclusions without the required factual analysis. Thus the Tenth Circuit reversed and ordered a new trial. While it is unfortunate that convictions supported by substantial evidence were overturned, it seems to me that the Tenth Circuit had no other choice based upon the clearly erroneous evidentiary rulings by the trial judge.
Tuesday, March 18, 2008
While, as I noted, the United States Supreme Court denied cert in State v. Bentley, 739 N.W.2d 296 (Iowa 2007), a Confrontation Clause case involving the videotaped testimony of a non-testifying child sexual abuse victim, it granted cert in Melendez-Diaz v. Massachusetts, a case dealing with whether forensic lab reports are "testimonial" for Confrontation Clause purposes. I don't have much more to add then what has already been extensively reported by University of Michigan Law School Professor Richard D. Friedman on his excellent Confrontation Blog. I have reported before on a recent interesting Court of Appeals of New York case dealing with the same issue, and I again direct readers to an excellent article on the same issue by Jennifer Mnookin, A Vice Dean and Professor of Law at the UCLA School of Law.
Judiciary Under The Influence, Take 2: Supreme Court of New Jersey Approves Use Of Alcotest 7110 For Drunk Driving Cases
Previously, I wrote about how the Supreme Court of New Jersey was considering whether a new breath alcohol testing technology -- the Alcotest 7110 MK III-C -- is sufficiently reliable to be admissible in drunk driving cases as a Breathalyzer alterantive. Yesterday, the Court found that Alcotest results are admissible in a 149 page ruling. I haven't had a chance to look at the opinion in detail, but it's sure to be controversial because, as I noted before, the Court appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings on it; while King initially reported that the technology was unrelaible in a 268 report, he later reversed himself in a 108 page report, which indicated that despite "minor defects" with the technology, it is more reliable than the Breathalyzer.
The question thus becomes whether the Court's decsion is legitimate or whether it was a political determination to save face for the New Jersey government. You see, 10,000 drunken driving prosecutions involving the test were put on hold while the Court decided whether the test was reliable and admissible; these cases can now proceed after the Court's decsion. The Court did, however, find that Draeger, the German company whose division in Pittsburgh manufactures the Alcotest 7110, must provide programming information about the device and train defense lawyers and their witnesses in drunken driving cases to use the Alcotest.