EvidenceProf Blog

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

Tuesday, April 15, 2008

Declare The Pennies On Your Eyes: Tax Case Reveals Interplay Between Rule 803(6) And Rule 1006

While I am completely clueless about all matters tax-related (I thank my wife Zoe for handling all of these matters), I thought I would do a tax-related post in (dis)honor of everybody's last favorite holiday:  Tax Day (I'm sad to report that Chipotle is not doing its annual Free Burrito on Tax Day promotion this year).  A "preference action" is a suit by a bankruptcy debtor, seeking recovery from a creditor of value received from the debtor during the so-called “preference period” immediately preceding the debtor's bankruptcy filing.  The plaintiff in In re Teligent, Inc., 2006 WL 1030417 (Bkrtcy.S.D.N.Y. 2006), brought such an action against the County of Fairfax, Virginia, but those wily Northern Virginians defeated the action by introducing the 2000 Assessment Record for Teligent, its 2000 tax bill, and its 2001 Assessment Record. 

The plaintiff objected that these documents were inadmissible under Federal Rule of Evidence 1006, which allows for a party to prove the contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court through the use of charts, summaries, or calculations, but only if the originals, or duplicates, are made available for examination or copying, or both, by other parties at reasonable time and place.  And according to the plaintiff, the County of Fairfax never produced the relevant documents underlying the assessments reflected in these three documents.  According to the court, however, the plaintiff "confused Rule 1006 with the business records exception to the hearsay rule contained in FED.R.EVID. 803(6)."

Under Federal Rule of Evidence 803(6), inter alia, a data compilation of conditions made from information transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the data compilation, is admissible as an exception to the rule against hearsay if properly authenticated.  And as the court in Teligent properly found, "[w]here the 'summary' is itself a business record, it is admissible without regard to the requirements of Rule 1006."  In other words, because the County of Fairfax as part of its regular practice of business, created tax-related data compilations, it could get these compilations admitted without having to show the plaintiff the original tax documents from which these compilations were created.


April 15, 2008 | Permalink | Comments (0) | TrackBack (0)

Minneosta Girl, Take 4: Dominic Jones Not Guilty Of Rape, Guilty Of Unwanted Sexual Contact With A Physically Helpless Woman

Dominic Jones, the former University of Minnesota football player accused of sexually assaulting an intoxicated 18 year-old woman, has been found not guilty of rape, but guilty of unwanted sexual contact with a physically helpless woman.  I have previously written about the Jones trial on three previous occasions (here, here, and here).  As my third post indicated, the prosecution presented strong evidence that Jones had some sexual contact with the victim, but it failed to present evidence of "sexual penetration." which is likely why Jones was found not guilty of rape.  Jones' attorney has vowed to appeal the verdict on the ground that the trial judge improperly excluded evidence of sexual contact that the victim had with other U Minn football players on the night of the alleged rape, but as I noted in my first post, the judge likely properly excluded this evidence pursuant to Minnesota's strict rape shield statute.


April 15, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, April 14, 2008

The Ice Pick Murderer: Ohio Court Finds Statements By Victim Admissible In Roommate Murder Trial

Jury selection is expected to begin today in the trial of an Ohio woman accused of stabbing her roommate in the head with an ice pick, and those jurors selected will likely hear testimony concerning the victim's statements identifying the defendant as her assailant.  Fifty-four year old Sandra Matthews-Johnson is accused of stabbing her roommate, Ottie Marie Tomlinson, below the left ear with an ice pick while the two fought in the home that they shared.  The ice pick broke off inside Tomlinson's head, so medics did not find the wound until after the victim was taken to an area hospital.  Matthews-Johnson was initially charged with assaulting Tomlinson, but those charges were upgraded to murder after Tomlinson died from her injuries a month later.  Before she died, however, Tomlinson told police investigators that Matthews-Johnson stabbed her and wrote "Sandy" on a piece of paper in response to questions by the investigators about who attacked her.  Attorneys for Matthews-Johnson argued that these statements were inadmissible hearsay, but Judge J. Timothy Campbell overruled these objections, paving the way for their likely admission at trial.  This ruling was potentially correct, but also very possibly incorrect.

First, Tomlinson's statements were both hearsay under Ohio Rule of Evidence 801(c) in that they were statements, other than those made by the declarant while testifying, offered to prove the truth of the matter asserted:  that Matthews-Johnson stabbed Tomlinson.  Thus, those statements were only admissible if they met some applicable hearsay exception.  Second, pursuant to the Supreme Court's opinion in Crawford v. Washington, the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.  While courts are split as to when a hearsay statement is "testimonial," most hold that a hearsay statement is "testimonial" when the statement was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.  I think it is safe to say that any court would deem Tomlinson's statements "testimonial."

Thus, for Tomlinson's statements to have been admissible, they would have needed to meet some hearsay exception which also obviated any Confrontation Clause concerns.  First, Tomlinson's statements could have constituted "dying declarations," which the Supreme Court has implied are admissible without regard for the Confrontation Clause. See Crawford, 541 U.S. at 56 n.6.  Under Ohio Rule of Evidence 804(B)(2), statements by an unavailable declarant are admissible in a homicide or civil case if they were made by the declarant while believing that her death was imminent, concerning the cause or circumstances of what the declarant believed to be her impending death.  Obviously, the question would be whether Tomlinson believed her death was "imminent" when she spoke with the police investigators, but it would seem to me that the fact that she lived for at least a month after the attack would indicate that she did not think her death was "imminent" when she spoke with the investigators.  Of course, if Tomlinson spoke with the investigators soon before her death, it is possible that her statements were "dying declarations."

Second, Tomlinson's statements could have been admissible under the "forfeiture by wrongdoing" docrtine contained in Ohio Rule of Evidence 804(B)(6).  Under this doctrine, a declarant's hearsay statements are admissible without regard to the rule against hearsay and the Confrontation Clause when the defendant's wrongdoing prevents the declarant from testifying at trial.  Some courts have found that this doctrine applies only in the witness tampering situation where a defendant kills or otherwise renders a prospective witness unavailable after she allegedly committed the subject crime while other courts find that it also applies when the prospective witness is the victim herself.  The Supreme Court is set to decide whether the doctrine can apply in this latter scenario in Giles v. California.  That case, however, should have no effect on Ohio, which has already limited the doctrine to the first scenario on its own volition. 

The Staff Note to Ohio Rule of Evidence 804(B)(6) indicates that "the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...."  Thus, in State v. McCarley, 2008 WL 375842 (Ohio App. 9 Dist. 2008), the Court of Appeals of Ohio found that the doctrine did not apply to statements made by a murder victim in the defendant's trial for her murder.  Thus, the forfeiture by wrongdoing doctrine seemingly would not apply to Matthews-Johnson's case.


April 14, 2008 | Permalink | Comments (4) | TrackBack (0)

Sunday, April 13, 2008

In Seattle: Jewish Federation Shooting Case Prompts Several Evidentiary Rulings

A number of evidentiary issues have been raised by the trial of Naveed Haq, who has been charged with one count of aggravated murder, five counts of attempted aggravated murder and numerous other crimes — including the state's hate-crime law — for the July 28, 2006, attack on the Belltown office of the Jewish Federation of Greater Seattle.  Haq has pleaded not guilty by reason of insanity.

The first issue revolved around Haq's 55 minute interview/confession to police, in which he discussed planning the rampage, his problems with Jewish people, and his bipolar disorder.  King County Superior Court Judge Paris Kallas found this confession to be inadmissible because Haq made it only after police detectives denied six requests that he made to talk to a lawyer.  This ruling makes sense because it is well established that "[o]fficers must cease questioning the moment a suspect makes an unequivocal request for an attorney." State v. Aronhalt, 994 P.2d 248, 251 (Wash. App. Div. 3 2000).

Defense attorneys also argued that other evidence that may have derived from Haq's statement should be disallowed as well, including search warrants of Haq's two residences.  Judge Kallas, however, said those searches were legal even though affidavits police swore to were "made with a reckless disregard for the truth."  Detectives, she said, had obtained information about the addresses from sources other than Haq's statement.  Thus, Judge Kallas determined that the evidence found pursuant to the warrant, which included gun receipts and Internet research into Jewish organizations, was admissible.  The basis for Judge Kallas' ruling is not entirely clear from the article on the trial, but it seems to me that she relied on the "independent source" doctrine, under which "[a] search warrant based on an affidavit that contains illegally obtained information may be valid if the affidavit contains facts sufficient to establish probable cause independent of the illegally obtained information." State v. Link, 150 P.3d 610, 617 (Was. App. Div. 2 2007).  In other words, while the police affidavits were invalid, there were independent sources justifying the searches.

The final issue is whether defense attorneys will be able to preclude the state's expert forensic psychologist from testifying about anything potentially incriminating that Haq told him during a court-ordered examination.  Defense counsel has argued that because the examination was ordered and Haq could not invoke his Fifth Amendment right to silence, any self-incriminating statements made during doctor interviews should be inadmissible at trial.  Judge Kallas has not yet ruled on this issue, but I think there is a good chance she will reject this argument.  This is because "court-ordered examinations regarding insanity have generally been found not to violate the Fifth Amendment." United States v. Davis, 93 F.3d 1286, 1295 n.8 (6th Cir. 1996).  There, are, however, several factors which can change this analysis, so I hesitate to come to any conclusions without knowing the full facts of how the examination occurred.


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

Saturday, April 12, 2008

The Happiest Place On Earth?: Grandmother Convicted Of Battery In Mad Party Tea Ride Line At Disneyworld

Alabama grandmother Victoria Walker has been convicted of misdemeanor battery in connection with an attack on another woman, Aimee Krause, at Disney World.  Prosecutors alleged that Walker got angry when Krause's kids cut in front of her at the Mad Party Tea Ride and thus elbowed Krause and jerked her head backward by the hair.  Expert witnesses testified that Krause suffered permanent brain damage from a concussion she suffered from the attack and also injured both of her knees.  Walker could have been convicted of aggravated battery and sentenced to up to 15 years imprisonment for the beating, but the jury instead found her guilty of misdemeanor battery, which is punishable by up to one year imprisonment in county jail.

Did the judge, however, improperly preclude jurors from hearing evidence which supported Walker's contention that Krause attacked her first?  Walker sought to have Cynthia Kinat and Tricia Murphy, the principal and assistant principal  at Pine Ridge Elementary in Clermont, where Krause's two children are students, testify on her behalf.  Walker's attorney hoped that the women would be able to testify about Krause's reputation for truthfulness in her community, but, after Judge Jose Rodriguez heard the information that they had to offer, he refused to allow them to appear before the jury, saying that the women did not know enough people who interact with Krause to be able to comment on the opinions of a "community."  Murphy also told Rodriguez that Krause had behaved aggressively on Pine Ridge's campus, but Rodriguez found that since Murphy could only point to examples of Krause's verbal aggression, her testimony wasn't relevant in Walker's case.  Both of these rulings seem correct to me.

First, with regard to Murphy's proposed testimony about Krause's aggressive behavior, Florida Evidence Code Section 90.404(1)(b) allows a criminal accused to offer evidence of a pertinent character trait of an accused, but Florida Evidence Code Section 90.405(1) limits the method of proof to reputation evidence.  Murphy's proposed testimony thus had two flaws:  (1) it was specific act evidence, not reputation evidence, and (2) as Judge Rodriguez noted, it went to a non-pertinent character trait:  verbal, rather than physical, aggression.

Second, with regard to the testimony about truthfulness, Florida Evidence Code Section 90.609, witnesses can impeach the testimony of a witness by indicating that the witness has a reputation for being untruthful.  Before such testimony can be rendered, however, it must be established that these witnesses now enough people who interact with the witness to be impeached to know their reputation. See, e.g., Morrison v. State, 818 So.2d 432, 449 (Fl. 2002).  Here, Judge Rodriguez found the prospective witnesses lacked this knowledge and thus properly excluded their testimony.


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

Friday, April 11, 2008

London Calling, Take 3: Report Finds Low Copy DNA To Be Scientifically Sound

I've written twice before (here and here) about how the United Kingdom suspended its use of "low copy number" DNA.  As I noted,  low copy number DNA allows the genetic profiles of suspects, victims or witnesses to be "uncovered" even when there is only a tiny amount of biological material present, sometimes as small as a millionth of the size of a grain of salt.  The technique amplifies these tiny DNA fragments when it is believed that a suspect may have transferred DNA through touch, like the residue believed to have come from cells such as skin or sweat left in a fingerprint.

In the wake of the disastrous Sean Hoey case, however, the Crown Prosecution Service ordered a re-examination of current cases relying on low copy number DNA evidence, and the Association of Chief Police Officers suspended its use of it (although its use was subsequently reinstated).  Well, that re-examination led to a report by scientists at the University of Strathclyde.  The report found the technique to be scientifically sound and Professor Brian Caddy, who carried out the review, said it should not cause wrongful convictions.  If the review had found problems with the science it could have triggered the re-examination of scores of criminal cases.

The review's authors did call for improvements in the collection of DNA from crime scenes and in its analysis to avoid the evidence becoming unusable.  Specifically, Caddy made 21 recommendations to standardize procedures, including (1) ensuring that police evidence-gathering kits are "DNA-clean" to avoid contamination with someone else's genetic profile, (2) a national agreement on how to interpret the results from low-template DNA, and (3) clear guidance on how courts should interpret the evidence. The report's authors also voiced concern at the quality of forensic science conducted by police laboratories, which often analyze low-template DNA first.

As I noted before, low copy number DNA has been consistently doubted in the scientific community, and it has thus only been used in the U.K., the Netherlands, and New Zealand, which makes me wonder, as with the New Jersey report on the Alcotest 7110, whether this was a "politically motivated" report based upon the consequences that would have occurred had low copy DNA been found unreliable.   


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

Let Us Live And Strive For Freedom: South African Supreme Court Finds Evidence Obtained By Torture Inadmissible

In what is being described as the first case of its kind since the advent of the Constitution of the Republic of South Africa in 1996, the Supreme Court of Appeal of South Africa has held that evidence obtained through the use of police torture is inadmissible.  According to Judge Azhar Cachalia in his judgment, "[i]n the pre-constitutional era the courts generally admitted all evidence, irrespective of how it was obtained, if it was relevant."  Judge Cachalia, however, found that all of this changed with the adoption of Section 35(5) of the Constitution, which provides that "[e]vidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice."  Cachalia determined that a plain reading of this section suggested that it required the exclusion of evidence improperly obtained from any person, not only from an accused.

This broad reading of Section 35(5) was essential to the case being heard by the Supreme Court because it involved a defendant being convicted based upon evidence obtained by the torturing of an accomplice.  Taxi operator and former policeman Bongani Mthembu was sentenced by the Verulam Regional Court to 23 years for stealing two vehicles and for an armed robbery of a post office 10 years ago.  Mthembu allegedly committed the crime with Sudesh Ramseroop, and Ramseroop incriminated Mthembu only after he was "assaulted severely" by his interrogators, with the assaults including electric shock treatment.  Two other witnesses against Mthembu were also allegedly tortured

The magistrate and trial judge in Mthembu's case found that the assault and torture did not render Ramseroop's testimony unreliable, but Judge Cachalia reversed them with an eloquent denunciation of torture:  "The absolute prohibition on the use of torture in both our law and in international law therefore demands that 'any evidence' which is obtained as a result of torture must be excluded 'in any proceedings.'"  My first thought on hearing this news was that Lowell Weicker, my former professor at UVA who played a large role in ending apartheid in South Africa, will be extreemly pleased with this result.


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

Thursday, April 10, 2008

Taxicab Confession: New York Appellate Court Finds Trial Court Erred in Admitting Hospital Record Without Redaction

My old court, the New York Supreme Court, Appellate Division, Second Judicial Department has rendered an interesting opinion in a case implicating the medical treatment/diagnosis exception to the rule against hearsay.  In Zito v. City of New York, 2008 WL 798033 (N.Y.A.D. 2 Dept. 2008), the plaintiff, Michael Zito, sustained injuries when he was shot by the defendant Hubert Desmangles, an off-duty New York City Corrections Officer. Zito then sued Desmangles and the City of New York alleging, inter alia, negligence and civil rights violations.

At trial, Zito testified that on the night in question, he asked to purchase a cigarette from a cab driver but was rebuffed. Zito claimed, however, that later that night, the cab returned and a passenger -- Desmangles -- exited the vehicle and shot him in the back. Two friends of the plaintiff who were present for the shooting corroborated Zito's testimony that he was shot in the back.

Desmangles provided a quite different account of the shooting.  He testified that Zito approached a cab in which he was a passenger and stated, "Give me your money or me and my boys will shoot you," whereupon the cab fled. Desmangles claimed that he thereafter ordered the driver to return to the scene, which he did, and Desmangles exited the cab to use a nearby pay phone when he saw four or five males, including the Zito, walk toward him.  Desmangles testified that one of the men said, "Let's get him," whereupon the group accelerated its pace toward him.  Desmangles claimed that at this point, he drew his gun and fired at the Zito, with the bullet hitting him in the stomach when he was about eight feet away.

At the close of the evidence, the jury found both Desmangles and Zito to be negligent and found Desmangles 15% at fault and Zito 85% at fault in the happening of the incident. The jury awarded the plaintiff the sum of $450,000 for past pain and suffering, and $74,000 for past medical expenses, but no damages for future pain and suffering.

Zito appealed, claiming, inter alia, that the trial court erred in failing to redact a statement, contained in the history portion of Zito's hospital records, that the bullet entered through the front of his body.  The Appellate Division agreed and remitted the matter for a new trial, finding that "[i]nasmuch as the record does not establish whether the statement was germane to either diagnosis or treatment, it constituted hearsay and should have been redacted from the record."  As support for this proposition, the court cited to a previous opinion, People v. Townsley, 240 A.D.2d 955, 957 (N.Y.A.D. 1997), in which another New York appellate court had received testimony from a treating physician that the manner in which a person sustained his gunshot wounds was not relevant to his treatment or diagnosis.

This portion of the ruling makes sense because Federal Rule of Evidence 803(4) (which New York has adopted in its case law) provides an exception to the rule against hearsay for "[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 [only] insofar as reasonably pertinent to diagnosis or treatment."  If the doctor is Townsley is right that the manner in which a person sustains a gunshot wound is not relevant to treatment/diagnosis, statements about how a gunshot wound occurred are inadmissible under Rule 803(4).

But, there seems to me to be a larger problem with the opinion, and maybe it's just a matter of the opinion not providing enough details (the Second Department has long received criticism for its bare bones opinions).  Presumably, the statement in the hospital record about where the bullet entered came from Zito.  And Zito was the civil plaintiff, with the prosecution [EDIT: defense] offering the hospital record against him.  Thus, the statement should have constituted the admission of a party opponent and been admissible against Zito at trial. See, e.g., People v. Mitchell, 626 N.E.2d 630, 633 (N.Y. 1993).  Now, maybe the statements didn't come for Zito, explaining the court's ruling, but if the statement did come from Zito, I don't see why the statement should have been redacted.


April 10, 2008 | Permalink | Comments (5) | TrackBack (0)

Wednesday, April 9, 2008

Article of Interest: Professor Sandra Guerra Thompson's Beyond a Reasonable Doubt?: Reconsidering Uncorroborated Eyewitness Identification Testimony

I highly recommend Beyond a Reasonable Doubt?: Reconsidering Uncorroborated Eyewitness Identification Testimony, the new article by University of Houston Law Center Professor Sandra Guerra Thompson, which will be published in an upcoming issue of the UC Davis Law Review.  The article's argument is that there should be a corroborating evidence requirement for eyewitness identifications.

In Part I, Professor Thompson notes that countless psychological experiments and field studies have concluded that eyewitnesses inevitably err in their recollections of events and persons.  There are two categories of variables that contribute to this likelihood of error:  estimator variables and system variables.  Estimator variables are variables that cannot be addressed by the legal system.  They include the lighting conditions at the time the event or person was percieved, whether the identification is cross-racial (which decreases the accuracy of IDs), whether the event perceived was violent (which also decreases accuracy), and unconscious transference (when a person seen in one situation is mistakenly remembered by a witness as being seen in a different situation).  Meanwhile, the two principal system variables are: (1) the possibility that police investigators can use conscious or unconscious suggestion to encourage eyewitnesses to choose the suspect arrested by police, and (2) the possibility that an eyewitness makes an identification based upon "relative judgment," a psychological process which causes a witness to select the person in a line-up who best fits the limited contours of the witness's memory, rather than choosing solely on the basis of independent memory.

In Part II, Professor Thompson argues that these problems have contributed to many individuals being wrongfully convicted based upon eyewitness testimony and that none of the remedies implemented to address these problems has even the potential to counteract the frequent inaccuracy introduced by eyewitness identification testimony.  The first is the right to counsel at police line-ups, which is  underutilized because it is limited to line-ups conducted after the initiation of formal proceedings against the accused and because it does not apply at all to IDs from photo spreads.  The second is the exclusion of IDs made under "unduly suggestive" circumstances, which is inefficacious because it requires police misconduct and fails to address estimator variables.  The third is the use of expert testimony and special jury instructions designed to educate the jury on the scientific knowledge on the effect of certain factors on identification accuracy; however, for decades, judges had precluded the use of such testimony and instructions.  The fourth is the proposed use of "blind" line-ups and photo-arrays, in which the police investigator does not know the identity of the suspect arrested by the police, and the sequential line-up, in which individuals are presented one at a time.  The problem with these techniques is that there is little reason to expect that they will be adopted on a wide-scale basis and, once again, they only address system variables, not estimator variables.  And as Professor Thompson notes, there is little scientific basis for believing that system variables account for the lion's share of inaccuracies.

Because Professor Thompson finds these remedies inadequate, she argues in Part III that the American justice system should not allow for a defendant to be convicted based solely on the identification testimony of one eyewitness and that instead there should be a requirement of some additional identifying evidence.  She first argues that such a bright-line rule is necessary because we cannot expect to safeguard the innocent from wrongful convictions by means of trial or appellate remedies that require courts to exercise their discretion.  She next contends that such a rule has advantanes for both police and prosecutors, specifically relieving the latter from having to resolve the moral dilemma of whether to try a defendant based upon the eyewitness testimony of a sole witness.  She then notes that her recommendation has historical support as corroboration requirements have perhaps the longest lineage of all evidentiary rules.

Professor Thompson concludes by arguing that her proposed rule could be adopted as a rule of criminal procedure, either by legislative initiative, by state high court decisions interpreting state constitutional law, or by the U.S. Supreme Court as a matter of federal constitutional law.  She then notes that there should be exception to the rule where the eyewitness had a pre-existing relationship with the defendant and addresses some potential criticisms to the proposal.

I have read numerous studies on the unreliable of eyewitness identifications and recommend the many studies cited in Professor Thompson's article.  And based upon those studies, I strongly agree with the recommendation made in Professor Thompson's article and think she does a tremendous job of advocating for the new rule in an even handed manner.  I e-mailed Professor Thompson about what led her to write the article, and she responded:

"In my criminal procedure class one day, we studied some of the psychology literature outlining the inherent failings of witnesses' perception and memory that often lead to erroneous eyewitness identifications.  We noted that the circumstances under which we usually ask witness to make identifications--after being victims of violent crimes--are those in which perception and memory are least likely to function accurately.  The discussion led one of my students to ask afterward how a jury could be allowed to convict "beyond a reasonable doubt" based only on such unreliable evidence.  I realized immediately that the student was right, no conviction should be allowed to rest solely on uncorroborated eyewitness identification testimony unless the witness and victim have a prior relationship.  Otherwise, the evidence should be viewed by law to be too unreliable to alone support a

So I set out to learn more about the psychological literature that focuses on the powers of perception and memory, in addition to the influences that can be brought to bear by police investigators.  My piece fills a gap in the list of remedies currently proposed by Innocence Commissions and activist organizations around the country. Most proposed reforms in the area of eyewitness identification have focused, quite naturally, on the conditions that the legal system can try to improve, namely the procedures followed by police investigators. My article focuses on preventing wrongful convictions by legally recognizing the inherent fallibility of crime victims' powers of perception and memory and simply requiring additional proof for conviction.  I delve deeply into the history of corroborating evidence requirements in making my case.  Corroborating evidence requirements have a bad reputation because of their past notorious use in rape trials. Overall, however, the history of such requirements put them on par with exclusionary rules as a means of preventing miscarriages of justice based on unreliable evidence.  This historical analysis of corroborating evidence rules is a feature of the piece that I believe
makes a new contribution to the evidence literature."


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

Attempted Suicide By Cop: Pennsylvania Man's Defense Opens The Door To Admission Of Character Evidence

A Pennsylvania man's "attempted suicide by cop" defense opened the door for the prosecution to present otherwise inadmissible character evidence in the man's trial for attempted homicide and aggravated assault.  In 2006, David Charles Kling of Airville, Pennsylvania and Cynthia Testerman had been living together, but in December 2006, Testerman asked Kling to move out.  In the early morning hours of December 17, 2006, Testerman allegedly received threatening and harassing phone messages from Kling and called the police and her father. Before the police arrived, Kling twice got gas cans and approached the mobile home in which Testerman and her mother had locked themselves.  Both times, however, Testerman's father allegedly stopped Kling from taking further action.  Eventually, the police arrived, and Kling used his pickup to chase troopers who were on foot and in patrol cars, and he pointed a shotgun at the police.  After a standoff that lasted about an hour, the police apprehended Kling after firing shots into his pickup truck.

Kling's defense at trial is that he never intended to set fire to the mobile home or harm the cops.  He testified that he planned to use the gas cans to set fire to himself and that his actions toward the police were attempts to get the officers to shoot him.  He claimed that his behavior was prompted by the fact that he had bipolar disorder and had not taken his medication in two weeks.

This strategy, however, allowed First Deputy Prosecutor Jeffrey Boyles to call Kling's ex-wife to the stand. Near tears, Kathleen Elizabeth Holmes told the jury that, in 1995, Kling put a shotgun to her head, poured gasoline around her feet and threatened to kill her during a standoff with Harford County, Md., sheriff's deputies.  Assistant public defender James Rader argued strongly against allowing Holmes to testify to the 13-year-old crime, but Common Pleas Court Judge Thomas H. Kelley said her testimony was admissible because the defense had "raised the specter of intent."  I disagree with this conclusion.

Pursuant to Pennsylvania Rule of Evidence 404(a), "[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion."  In other words, evidence the prior incident between Kling, his ex-wife, and the police would be inadmissible to prove that Kling was a violent person and that he thus acted violently on December 17, 2006.  Pursuant to Pennsylvania Rule of Evidence 404(b), however, "[e]vidence of other crimes, wrongs, or acts may be admitted for other purposes, such as....intent."

Thus, for instance, if Kling were charged with assaulting Testerman by punching and kicking her, his defense might be that the two were just playing around and that her injuries were accidental.  This would allow Testerman to testify about prior acts of abuse by Kling in the previous weeks or months to prove that Kling intentionally injured her at the time in question and that her injuries were not accidental.  But that is not the case at hand.

The prosecution alleges that Kling intended to set fire to the trailer to injure or kill Testerman and her mother and that he intended to attack and injure police officers.  Kling counters that he was suicidal based upon his failure to take his meds, that he planned to set fire to himself, and that his only intent with regard to the police was to get them to shoot him.  I don't see how an 13 year-old incident has any relevance in determining whether Kling was suicidal.  Sure, the events are similar, but I just don't see how an attack upon his wife 13 years ago establishes that Kling was not suicidal and instead had the intent 13 years later to attack another woman.


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

Tuesday, April 8, 2008

Mississippi Masala, Take 2: Judge To Consider Character Evidence Exception In Murder By Oil Case

Under Federal Rule of Evidence 404(a)(2) and most state counterparts, criminal defendants seeking to prove a claim of self-defense can introduce evidence indicating that the alleged victim was a violent person.  However, under Federal Rule of Evidence 405(a), they are generally limited to introducing opinion and/or reputation evidence (A witness could testify that that in his opinion, the alleged victim was violent or that he was the alleged victim's neighbor/co-worker/etc. and that the alleged victim had a reputation for being violent).  Conversely, most criminal defendants would not be able to introduce evidence of specific acts of violence by the alleged victim (A witness couldn't testify that he saw the alleged victim attack another dad at a youth baseball game).  As I have written before, however, Mississippi has a unique interpretation of its version of Federal Rule of Evidence 405(b) under which the character of the victim becomes an "essential" element of the defense of self-defense when there is evidence of an overt act by the alleged victim against the defendant. See, e.g., Hester v. State, 841 So.2d 158, 163 (Miss.App. 2002).  In such cases, the defendant can therefore introduce into evidence specific acts of violence by the alleged victim to prove that he was a violent person.

Previously, I wrote about how a Mississippi court applied this rule in a Thanksgiving dinner stabbing case.  Now, another Mississippi court might apply it in what has been described as one of the most sensational local murder cases in recent history.  Edna Mae Sanders has been charged with killing her husband, Sherman Sanders, by dousing him with scalding cooking oil while he slept; Sanders died about a week later at a hospital.  Defense attorney Brian Alexander is arguing a case of self-defense for Sanders and filed a court motion last Friday, which indicated that Sherman Sanders had a history of violence and that he "either openly demonstrated" to others or had told other people he had committed violent acts.  According to Alexander, those reports are admissible because they led Edna Mae Sanders to defend herself.  Judge Steve Simpson will hear arguments on the motion today.

Without knowing the full facts of the case, it is difficult to say how the court will rule.  Based upon what I have read, however, it seems unlikely that the judge will grant the motion because, as I noted, past acts of violence by the alleged victim are only admissible under the Mississippi rule when there is evidence of an overt act by the alleged victim against the defendant.  For instance, in the Thanksgiving dinner case, there was evidence that the alleged victim brandished a knife against the defendant before she stabbed him.  Here, however, the evidence seems to indicate that Sherman Sanders was sleeping when he was doused with oil, precluding a finding that he committed an overt act against the defendant.


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

Monday, April 7, 2008

It's My Space. That's Why They Call It MySpace, Take 2: Judge Finds MySpace Photos Inadmissible In Murder Trial

The trial for two teenagers, Jean Pierre Orlewicz and Alexander Letkemann, for the gruesome murder of twenty-six year old Daniel Sorensen will begin this week, but without evidence that defense counsel wanted to introduce about the victim.  I've written about this case before, and the brief facts are that Orlewicz and Letkemann are charged with first-degree premeditated murder, disinterment and mutilation of a corpse based upon the allegation that they lured Sorensen into a death trap where he was stabbed, beheaded and burned.  Specifically, authorities say that Orlewicz arranged for Sorensen to meet him in his grandfather's garage in Canton Township, where the floor had been covered with a tarp, the windows draped, and knives, a saw and cleaning materials were waiting.  Orlewicz and Letkemann allegedly then murdered Sorensen, with the only known motive being that the murder was a "thrill killing."

Orlewicz's defense lawyers sought to prove that Sorensen had a violent past and that Orlewicz may have killed him in self-defense.  They sought to prove this past through four personal protection orders taken out against Sorensen since 2000 by people in Illinois and Michigan who claimed to fear him and through pictures of weapons, illegal drugs and images from the movie "Scarface" that Sorensen posted on his MySpace page.  The judge, however, found that the statements used to obtain the protective orders were unchallenged opinions, not facts, and that the orders were thus inadmissible.  The judge also relied upon the fact that the defendants were unaware of the orders before Sorensen's death.  With regard to the MySpace photos, the judge found that "would tend to move the jury to decide the matter on an improper basis such as inflamed passions and emotions."

The protective order ruling clearly makes sense to me, and it seems like the judge's ruling on the MySpace photos was correct as well as any probative value that these photos had (if they had any) was likely substantially outweighed by their unfairly prejudicial effect and thus inadmissible under Michigan Rule of Evidence 403.  Moreover, if the judge had ruled otherwise, college students across the country could have their Tony Montana or A Clockwork Orange posters admissible if they became involved in court cases to prove...what, exactly?  I'm not sure that's the result we want.  Meanwhile, this is the second recent case to find evidence from a person's MySpace page to be inamdissible.  It will be interesting to see if subsequent cases find similarly.



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

Bullet In The Head: Illinois Judge Makes Seemingly Erroneous [EDIT: Correct] Hearsay Ruling In Attempted Murder Case

An Illinois judge has made a seemingly strange [EDIT: correct] hearsay ruling, which appears to have played a large role in a defendant being acquitted of the most serious charges against him.  Last week,  Scott Guidotti was on trial, facing charges of attempted murder with a firearm, home invasion, and aggravated battery with a firearm (all Class X felonies), as well as aggravated discharge of a firearm (a Class 1 felony) in connection with an incident in Tazewell County, Illinois in 2006.

That incident occurred on July 19, 2006, when officers responded to a report of shots fired at 1501 Highland Avenue.  After their arrival, officers found that three men had been in the house when the shooting began.  According to court records, police discovered that 31-year-old Scott Roberts of Pekin had a bullet wound to the back of his head.

Roberts testified that he was in the kitchen of the house at 1501 Highland Avenue preparing alcoholic beverages when bullets began flying through the front of the house on the night in question.  Roberts claimed that he thereafter ran out of the back door and around the house where he met Guidotti, who was allegedly holding a semi-automatic handgun.  Roberts then claimed to have tackled Guidotti in the driveway of the home, where a fist fight began.  Roberts claimed that after several seconds of fighting with Guidotti, he heard the gun fire twice, striking him in the head once.

In his defense, Guidotti testified that on the night in question, he began getting obscene phone calls from someone at 1501 Highland Ave., where his cousin resides. He said that he went to the house, whereupon Roberts came outside laughing and pointed a gun at him. According to Guidotti, after Roberts fired a round at Guidotti's truck, the two men began fighting, and, during the fight, a bullet was fired into the house. Guidotti told jurors that next, Roberts rushed through a wooden fence and fell to the ground, resulting in a third bullet being fired.  Guidotti said he jumped on Roberts in an attempt to control the gun and that while the two wrestled in the driveway, two more rounds were fired. Guidotti said he never noticed that Roberts had been shot.

There were several other witnesses in the case, but I will only focus on the testimony of Eric Guidotti, the defendant's brother.  Eric testified that at about 10:00 P.M. on the night of the incident, the defendant knocked on his front door.  “He looked like he had been run over by a truck,” Eric said, as he described his brother's wounds.  Eric then proceeded to detail events that followed and eventually began testifying about what the defendant told him about the incident  However, before Eric could relay to the jury what his brother said had happened, Tazewell County Assistant State's Attorney Michael Green objected to the brother's comments, citing it as "hearsay" testimony. After a short recess, Judge James Stewart of the Ninth Judicial Circuit Court agreed with Green and only allowed Eric to testify about his own actions that night.  Scott was thereafter acquitted on the Class X felony charges and only convicted of the Class 1 felony of aggravated discharge of a firearm

If these facts are accurate. the judge's ruling does not make sense [EDIT: It makes sense].  It is well established in Illinois case law that "extrajudicial statements made by a party opponent are not excludable as hearsay." People v. Simpson, 369 N.E.2d 1248, 1252 (Ill. 1977).  Thus, Scott's statements to his brother should have been admissible as part of the prosecution's case as admissions of a party opponent -- the criminal defendant.

EDIT:  However, as the commenter below notes, the objection was made by Tazewell County Assistant State's Attorney Michael Green, which presumably means that Eric was going to testify about statements that Scott made which helped his case.  Thus, it appears that the statements were not offered by the prosecution against a party opponent but instead by the defendant in support of his case.  Thus, Scott's alleged statements were hearsay, and the judge correctly precluded testimony about them.  I misread the articles on the testimony and apologize for the error.


April 7, 2008 | Permalink | Comments (1) | TrackBack (0)

Sunday, April 6, 2008

Minnesota Girl, Take 3: Judge In Dominic Jones Trial Curtails Impeachment Of Prosecution Witness

I've written twice before (here and here) about the sexual assault trial of former University of Minnesota football player Dominic Jones.  The case has already raised a number of interesting evidentiary issues, including (1) whether Jones could introduce evidence that the alleged victim had sex with three other U Minn. football players before coming into contact with Jones on the night of the alleged assault, (2) whether a cell phone video recording of the alleged assault would be admissible, and (3) whether Jones could introduce testimony by a "sexologist" about what it means to ejaculate on another person.

Now, the judge hearing the case, Hennepin County District Judge Marilyn B. Rosenbaum, has made a fourth evidentiary ruling, which could result in a reversal should Jones be convicted.  One of the witnesses called by the prosecution in Jones' case was Robert McField, a former U Minn. defensive end.  McField testified that on the night of the alleged assault, he saw Jones on top of a nineteen year old girl, making a "sexual motion."  On cross-examination, however, Jones' defense counsel Earl Gray, was able to get McField to admit that he did not see any penetration.  The distinction is important to Jones because one of the elements of the charge against him is that he "engaged in sexual penetration" with the alleged victim.  And while the jury has seen the aforementioned cell phone video of the incident, the recording does not show any penetration.

Gray, however, was partially foreclosed by Judge Rosenbaum in another attempt to undermine McField's testimony.  You see, McDaniel is currently serving a twelve year sentence in Missouri based upon a felony armed robbery conviction.  Gray wanted to impeach McDaniel through this conviction, but Judge Rosenbaum merely allowed McDaniel to testify that he had a conviction and precluded any testimony about the nature of the conviction.  Was this proper?

Well, under Minnesota Rule of Evidence 609(a)(1), "[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted...if...the crime...was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect."  Apparently, Judge Rosenbaum felt it was a close call whether the probative value of McField's conviction outweighed its prejudicial effect, which is why she allowed testimony that he had "a conviction" but no testimony about the type of conviction.

Now, it's impossible for me to tell the exact probative value of the conviction and its exact prejudicial effect without knowing the full facts of the case, but if McDaniel's act of armed robbery was merely a crime of violence without any deception, his conviction likely would not have a very high probative value on the issue of veraicty.  Even if that's the case, though, is it enough to justify Judge Rosenbaum's ruling?

As a disclaimer, Federal Rule of Evidence 609(a)(1) is slightly different from Minnesota Rule of Evidence 609(a)(1), but I think that the purposes behind the two Rules are the same: the Rules' drafters wanted convictions to be used as impeachment evidence but did not want them used as character evidence.  Thus, for instance, if a defendant testifies in his trial for armed robbery, a judge would almost certainly preclude the prosecution from impeaching him through a prior armed robbery conviction for fear that the jurors would use the conviction not merely to doubt his testimony but also as evidence that the defendant had a propensity to commit violent robberies and that he likely acted in conformity with that propensity at the time in question.

When, however, should a judge preclude defense counsel from impeaching a prosecution witness or limit such impeachment?  According to the Advisory Committee Note to Rule 609, the answer is not very often.  The Note indicates that "[t]he probability that prior convictions of an ordinary government witness will be unduly prejudicial is low in most criminal cases. Since the behavior of the witness is not the issue in dispute in most cases, there is little chance that the trier of fact will misuse the convictions offered as impeachment evidence as propensity evidence. Thus, trial courts will be skeptical when the government objects to impeachment of its witnesses with prior convictions."   

Here, McDaniel was not an alleged participant in the sexual assault but was instead a mere bystander.  Thus, his behavior was not at issue, making it likely that Judge Rosenbaum should have allowed defense counsel to impeach him fully. 


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

Saturday, April 5, 2008

St. Lucie Sound: Defense Counsel Claims Government Has Not Disclosed Exculpatory 911 Tape In Quadruple Homicide Case

Ricardo Sanchez and Daniel Troya have been charged with murder in connection with a quadruple homicide, with prosecutors seeking the death penalty against them.  According to Sanchez's attorney, however, the government, and not his client, is the one who has acted wrongfully, failing to grant him access to a tape of a 911 call that exonerates his client.  And assuming that the attorney's version of the facts is correct, I think that he raises an excellent point.

Jose Escobedo, his wife, Yessica, and two young children were shot to death in the predawn hours of October 13, 2006.  The St. Lucie County Sheriff's Office's theory of the case is that Escobedo was the head of a large drug ring and that Sanchez and Troya "killed their leader."  Prosecutors have said they also believe the killings were drug-related

Sanchez's attorney, Donnie Murrell, contends that "[f]or 18 months the government has told us that fingerprints on a toll ticket stamped at 3:02 a.m. showed that (Sanchez) got off the turnpike at Okeechobee Boulevard after the murder."  According to Murrell, however, there is a fatal flaw in this theory, which is that the government has a tape of a 911 call that is an actual recording of the murders as they happened.  The 911 call was recorded at 3:10:59 on October 13, 2006.  The Okeechobee Boulevard turnpike exit is 50 miles from the scene of the murders.

Acording to Murrell, "This 911 tape is clearly exculpatory when considered in conjunction with other evidence developed by the government, most notably a turnpike toll ticket. The government has a toll ticket bearing the latent (finger)prints of defendant Sanchez. That ticket was collected at the Okeechobee turnpike exit at 3:02 a.m. on October 13, 2006. It is fifty miles from the scene of the crime to the Okeechobee turnpike exit. Clearly it is physically impossible for defendant Sanchez to have exited the turnpike at Okeechobee Boulevard at 3:02 a.m. and get to the scene of the homicide, 50 miles away, in less than eight minutes."

Murrell contends, however, that the government "has refused to allow the defense to hear, copy or otherwise inspect the 911 tape."  Murrell has argued that this non-disclosure is in error because the rules of evidence require prosecutors to share all their evidence with defense attorneys.

Murrell is correct.  I'm not sure whether Florida has a specific statute requiring such disclosure, but the Supreme Court clearly indicated in Brady v. Maryland, 373 U.S. 83 (1963), that prosecutors are required to disclose to defendants material exculpatory evidence in a timely fashion.  Clearly, if what Murrell is claiming is accurate, the 911 tape would be material exculpatory evidence which the government would need to give to defense counsel.


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

Friday, April 4, 2008

Bordertown: California Judge Excludes Cellmate Testimony About Jailhouse Confession

A judge in a California murder case has made a seemingly incorrect evidentiary ruling based upon the statement against interest exception to the rule against hearsay.  Roger Clark is currently on trial for allegedly killing Charles Gibson in Sandy Valley, a small desert town on the California-Nevada border, in May 2002.  The prosecution's theory of the case is that Clark shot Gibson with a shotgun in the thigh and buttocks, then drove him away to a remote desert location and set a motor home on fire, leaving Gibson to burn alive inside.  The alleged motive is that Clark believed Gibson was having an affair with his girlfriend Carrie Abrao, who was Gibson's neighbor.

While several witnesses provided essential testimony in the case, one witness who did not was Robert Price, another of Abrao's neighbors, who was in custody awaiting trial on charges of receiving stolen property.  While on the witness stand, he refused to answer most questions about the night that Gibson died eventually invoking his Fifth Amendment right against self-incrimination.  According to Clark, Price invoked this right for good reason; apparently, Price confessed to his cellmate that he killed Gibson.

Defense counsel attempted to call this cellmate to testify about Price's alleged confession, but the attempt was rebuffed by the trial judge.  According to defense investigator Chuck Maine, this testimony was excluded because the judge concluded that Price's alleged statements constituted hearsay.  To me, this ruling seems  erroneous.  Sure, Price's confession was hearsay because it was a statement that was made other than by a witness while testifying at trial and that was offered to prove the truth of the matter stated:  that Price killed Gibson.

But, the confession seems to fit pretty clearly under a hearsay exception.  Pursuant to California Evidence Code Section 1230, "[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a
reasonable man in his position would not have made the statement unless he believed it to be true."  Obviously, Price's alleged confession that he killed Gibson subjected him to criminal liability for murder such that a reasonable man would not have made the statement unless he believed it to be true.

The only question, then, is whether Price was "unavailable" as a witness?  And clearly, he was.  Under California Evidence Code Section 240(a)(1), a witness is "unavailable" when he is "[e]xempted or precluded on the ground of privilege from
testifying concerning the matter to which his or her statement is relevant."  Here, Price was clearly exempted from testifying based upon the Fifth Amendment right against self-incrimination, which should have allowed for his alleged statement to his cellmate to be admissible. 


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

Thursday, April 3, 2008

From Music Critics' Whipping Boy To Judge's Whipping Boy, Take 2: Nickelback's Chad Kroeger Convicted Of Drunk Driving

Earlier, I posted about the strange DUI trial of Nickelback frontman Chad Kroeger in a Canadian court.  As I noted, an officer pulled Kroeger over for speeding in his Lamborghini and decided to give him a breathalyzer test only after having Kroeger blow in his face and detecting the odor of alcohol.  I noted that the B.C. Supreme Court had determined that under the Canadian Charter of Rights and Freedoms, the "blowing in the face" practice used by the officer is unconstitutional, but the judge in Kroeger's case nonetheless failed to exclude the breathalyzer test results, finding that the practice only minimally intrudes upon a person's body.  Because the breathalyzer test was not excluded and because it indicated that Kroeger's BAC was nearly twice the legal limit, Kroeger was convicted of driving under the influence yesterday.

This makes me repeat my initial concern with the judge's ruling:  What's the point?  By declaring the "blowing in the face" practice unconstitutional but nonetheless failing to exclude evidence obtained as a result of the practice, police are not deterred from using the practice and civilians are not protected in any practical manner.  According to the judge's ruling, the  B.C. Supreme Court's opinion has no teeth and no practical effect in any drunk driving case.


April 3, 2008 | Permalink | Comments (0) | TrackBack (0)

Is There A Doctor In The House?: Ninth Circuit Finds A Physician's Assistant Who Twice Failed His Physician's Exam Was Properly Qualified As An Expert Witness

The Ninth Circuit's recent opinion in United States v. Smith, 2008 WL 834453 (9th Cir. 2008), provides an illustration of how liberal most courts are in finding witnesses to be qualified as expert witnesses under Federal Rule of Evidence 702.  In Smith, in August 1999, four inmates at a federal penitentiary were in the recreation cage of the Special Housing Unit: Malik Smith, Charles Wesley Helem, George W. Jeffries, and Milton Johnson. After hearing scuffling noises, prison guards went to the cage, where they saw Smith stabbing Jeffries with a sharpened plastic object while Helem held him from behind. The object snapped into two pieces, but Smith continued to use one of the pieces to stab Jeffers.  The object was a prison-made knife which was about six inches long, flat, and sharpened to a point at one end.  The knife was made by melting down very thin Styrofoam trays and forming them into a hard plastic.

After the incident, Reynaldo Nisperos, a physician's assistant employed by the prison, examined the four inmates for injuries.  While Helem and Johnson had none, Smith had injuries on the palm of his right hand and on the inside of his lip, and Jeffries had sustained several cuts, including one that was about eight centimeters long and pierced the skin of Jeffries's right eyelid and another that was approximately ten centimeters long on his face.  Nisperios also noted a superficial abrasion on Jeffries's neck that was about six centimeters long and multiple superficial abrasions and laceration on Jeffries's lower back. According to Jeffries, either Smith or Helm yelled, "You're hot, you're hot" right before the attack began, with "hot" meaning in prison slang that Jeffries was considered a snitch.

Eventually, Smith was indicted for the assault with intent to murder, assault with a dangerous weapon, and the lesser included offense of simple assault.  At trial, Nisperos described the injuries Jeffries sustained and testified that the weapon used by Smith could cause "very fatal injuries."  He specifically noted that if the knife were used to hit an internal organ or a major artery, like the carotid artery or the jugular vein, it could cause "major injuries."  The district court allowed Nisperos to render this opinion over Smith's objection that Nisperos lacked sufficient expertise to qualify as an expert because he was not a doctor and twice had failed the exam to qualify as a doctor. In determining that Nisperos was qualified to give his opinion, the court relied on Nisperos's medical degree from the Philippines, his bachelor's degree in criminology, and his testimony that he had treated inmates for wounds inflicted by prison-made knives 50 to 100 times during his nineteen years at the prison.  Nisperos' testimony was then essential to the jury's verdict finding Smith guilty of assault with a dangerous weapon.

On appeal, the Ninth Circuit affirmed the district court's ruling, finding that Nisperos was properly qualified as an expert witness under Federal Rule of Evidence 702, which indicates, inter alia, that a witness can be qualified "as an expert by knowledge, skill, experience, training, or education."  The Ninth Circuit found that Nisperos had the requisite education based upon his medical degree and the requisite experience based upon his twenty years of treating inmates.  With regard to Nisperson twice failing the exam to become a doctor, the court noted that "[n]o specific credentials or qualifications are mentioned [in Rule 702]. Moreover, we have previously held that an expert need not have official credentials in the relevant subject matter to meet Rule 702's requirements."

The upshot of this is that most courts frequently qualify individuals as medical experts, even though they are not the type of people we would want diagnosing or treating ourselves or our loved ones.  The Supreme Court adopted Daubert to keep "junk science" out of the courtroom.  It seems to me that the Court might want to think about doing something similar to require that our expert witnesses in fact have what most would consider expertise.


April 3, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2008

Forfeit Victory, Take 3: Amicus Brief On Child Hearsay Filed In Giles Case

I have written a couple of posts about Giles v. California, the case that the Supreme Court will soon hear to resolve the issue of whether the forfeiture by wrongdoing doctrine contains an intent requirement.  Well, if the National Association of Counsel for Children and the American Professional Society on the Abuse of Children have their way, the Supreme Court will also conclude in Giles that the doctrine applies to cases in which defendants take advantage of predictably unavailable witnesses, which would apply in many child witness cases.

Irell & Manella and Jenner & Block have filed an amicus brief on behalf of these groups.  In Part I, the brief argues that the Supreme Court has long recognized modern exceptions to the Confrontation Clause based upon exceptions that existed at the time of the Framing.  It then notes that English courts frequently admitted unconfronted children's out-of-court reports of abuse based upon necessity and fairness with the reasoning being that the defendant's acts in these cases ensured that the natural and often only witness to the crime (e.g., the child victim) would be unavailable to testify.

Part II contends that despite this general rule, in the post-Crawford Confrontation Clause world, "trial courts routinely have barred testimonial hearsay from unavailable child witnesses."  The brief that supports this contention with cases from Kansas, Idaho, Colorado, Arkansas, Indiana, Oregon, Pennsylvania, Ohio, Mississippi, and Nevada where courts reversed convictions after determining that trial courts impermissibly admitted testimonial hearsay from unavailable child witnesses.  The brief finds these results troubling, noting that these rulings "enable individuals who commit crimes against or in the presence of children to benefit from young children's unavailability."

The brief thus argues that the equitable exception for unconfronted children's out-of-court reports of abuse should be used in cases such as the cases identified in Part II to obviate any Confrontation Clause concerns.  Part III notes, however, that simply resolving the Confrontation Clause issue does not mean that such statements are admissible under the rules of evidence and that children's statements must still be shown to be reliable.  The brief then argues that it is ironic that one of the conditions that can best establish the reliability of a child's out-of-court report -- the report being videotaped -- is one of the main conditions used to establish that a statement is testimonial and thus inadmissible under the Confrontation Clause.  The brief concludes, however, that because of the equitable Confrontation Clause exception at play, courts should find that the videotaping of children's out of court reports satisfies reliability concerns and does not violate the Confrontation Clause.

Giles is not a case involving a child's hearsay statements, so it is questionable whether the court will address the issue raised by the brief.  That said, the Supreme Court's Confrontation Clause opinions since Crawford have been so unpredictable that it would not surprise me in the least if it adopted the reasoning of the amicus brief.  At the least, though, I think that the brief sets out a compelling argument which the Supreme Court will have to consider strongly in this case or a future child hearsay case.    


April 2, 2008 | Permalink | Comments (0) | TrackBack (0)

The Myth Of Fingerprints, Take 3: Federal Grand Jury Indicts Brian Keith Rose

I have written twice before (here and here) about the state murder trial of Brian Keith Rose, in which Judge Susan Souder became the first Maryland judge to find fingerprint evidence inadmissible because there are doubts about its reliability.  So, what happened to Rose's case, in which he is accused of murdering the owner of a Cingular Wireless store at a Baltimore County mall?  The state prosecutors handed it over to federal prosecutors, and yesterday, a federal grand jury indicted Rose on two counts of attempted carjacking resulting in death and discharging a firearm during a crime of violence. Rose could get life in prison without parole if convicted, and federal prosecutors may seek the death penalty.  It's rare that this type of single murder case is brought in federal court based upon the expense of murder trials, but the feds took over based upon Souder's ruling.

That decision has prompted criticism by Paul DeWolfe, head of the Montgomery County public defender's office, who said the federal involvement undermines Judge Souder's decision.  DeWolfe stated, "We hope the federal authorities will respect decisions by state court judges....We hope prosecutors in state court will not bring it upon themselves to appeal to federal court every time they're unhappy with judges' rulings. It shows a lack of respect for judiciary and independence of judiciary. It puts a chilling effect on judges making rulings on one side or the other."  Meanwhile, Patrick Kent, head of the state public defender's forensic unit, who was Rose's attorney, contended that "[t]he federal indictment is a slap in the face of every state court judge ruling based on the law."

Conversely, Maryland U.S. Attorney Rod J. Rosenstein defended the process. He also appealed to the Maryland legislature to review the law and consider allowing state prosecutors the right to appeal evidentiary rulings, as federal prosecutors can.  According to Rothstein, "Judges make mistakes. Judges sometimes disagree....And it's very important in the judicial system that there be consistency between judges and that evidence that is admissible in one court be admissible in another."

I think that both sides are correct in parts.  As far as I am aware, in most states, state prosecutors can appeal evidentiary rulings, and Maryland appears to be in the minority of states in proscribing such appeals.  I think the majority rule makes sense and allows for appellate review of frequently difficult evidentiary issues.  I also agree with the public defenders that state prosecutors unhappy with state judge evidentiary rulings should not be able to punt their cases to the feds in the hopes of more favorable evidentiary rulings.  Of course, I can understand why the state prosecutors in the Rose case did so because they could not appeal Judge Souder's ruling.  So, it seems that the best solution would be to allow Maryland state prosecutors to appeal evidentiary rulings but not punt cases to the feds.  Unfortunately, I don't see either change happening any time soon.


April 2, 2008 | Permalink | Comments (0) | TrackBack (0)