Saturday, May 31, 2008
Dexter In The Dark?: Mississippi Court Finds Forensic Pathologist Properly Gave Expert Testimony On Blood Spatter Evidence
The Court of Appeals of Mississippi's recent opinion in Flaggs v. State, 2008 WL 2169747 (Miss.App. 2008), confirms that Mississippi courts are in line with most courts across the country in permitting forensic pathologists to render expert opinions regarding blood spatter evidence. In Flaggs, Tavares Antoine Flaggs was convicted of murder based upon the following facts:
In April, 2005 Derrick Wright was found dead in his apartment, lying on the floor covered in blood with what looked like cut marks all over him. Officer Robert Jackson was dispatched to the apartment and observed Wright dead on the floor on his back with his hands up. He observed faint footsteps that appeared to be in blood extending from the hallway to the walk-in closet and a white t-shirt that appeared to be soaked in blood. Subsequently, crime scene investigator Charles Taylor found cast-off blood stains, multiple impact blood stains on the north wall of the hallway in the apartment, a bloodstained towel in the garbage can, a knife blade with no handle in the sink, and two other knives on the counter by the sink. A fingerprint recovered from one of the knives was later identified as Flaggs' fingerprint.
Dr. Hayne, the forensic pathologist who performed Wright's autopsy on Wright's body, testified at trial as an expert witness for the State that Wright had sustained fifteen stab wounds, one chop wound, and three slash wounds, with the fatal injury being a stab wound to the carotid artery and jugular vein in the neck. He opined that a stab wound to the back of the hand, a slash wound to the left forearm, and chop wound to the fourth finger on the left hand indicated defensive posturing on the part of Wright. According to Dr. Hayne, the sites of the body on which these wounds were located are commonly used to protect the neck, face, and part of the head from injury; however, Dr. Hayne testified that he could not determine the order in which Wright's injuries were received, although he could say that there was heart activity at the time the injuries were sustained. Dr. Hayne concluded that Wright died as the result of a homicide.
Subsequently, over defense counsel's objection, the State questioned Dr. Hayne in hypothetical terms regarding the positioning of the blood spatter that was present at the crime scene. After being shown a diagram of the crime scene, Dr. Hayne testified regarding the blood spatter that, inter alia,
"It would indicate two things, counselor. The blood spattering could be cast off from a weapon or it could be cast off from the decedent, and the decedent could be moving in a backward position away from the indicated area where the blood spatter was located. That would be a distinct possibility. Falling backwards. He could have possibly been dragged forward into an enclosed area, which would seem less likely since I don't see any footprints in the area in the photograph you showed me."
This testimony contradicted Flaggs' defense, which is that he was acting in self-defense after Derrick Wright attacked him. After Wright was convicted of murder, he appealed, claiming, inter alia, that Dr. Hayne was not qualified to render expert opinions regarding blood spatter evidence. The Court of Appeals of Mississippi noted that Dr. Hayne explained that the two main tasks in forensic pathology are "determination of the cause of death and determination of the manner of death, with the cause of death being the medical reason that a person died and the manner of death being the classification of the death as a homicide, suicide, accident, or natural." It further noted that "[t]he State contend[ed] that the field of forensic pathology encompasses the analysis of crime scenes, which would include blood spatter."
The Court then concluded that "[w]hile the State cites no authority supporting this proposition, we note that Dr. Hayne has been accepted in other cases as an expert in the analysis of blood spatter....Moreover, our supreme court has indicated that forensic pathologists are qualified to give opinions regarding blood spatter....Therefore, while there was no mention of blood spatter analysis during Dr. Hayne's expert qualification, we cannot say under the circumstances of this case that the trial court erred in allowing Dr. Hayne to testify regarding blood spatter."
Unfortunately, the Supreme Court of Mississippi opinion cited by the Court -- Whittington v. State, 523 So.2d 966, 976 (Miss. 1988) -- came to its conclusion without much analysis, and other courts which have come to similar conclusions have also not engaged in much analysis. See, e.g., State v. Goddard, 871 P.2d 540, 546 (Utah 1994).
So, do we have any readers with a medical background? Is "Dexter" author Jeff Lindsay a reader? Does anyone know whether we would usually expect a forensic pathologist to be able to interpret blood spatter evidence or whether the situation would be more analogous to a dermatologist testifying about HIV?
Friday, May 30, 2008
As I Lay Dying: North Carolina Court Finds That The Admission of "Testimonial" Dying Declarations Doesn't Violate The Confrontation Clause
The recent opinion of the Court of Appeals of North Carolina in State v. Bodden, 2008 WL 2095544 (N.C.App. 2008), reaffirms pre-Crawford North Carolina precedent holding that dying declarations do not violate the Sixth Amendment's Confrontation Clause. In Bodden, Roy Oswald Bodden appealed a judgment entered upon a jury verdict finding him guilty of second-degree murder of Nathan Alston. The relevant facts of the case were as follows:
In February 2004, Lathan Smith and Alston obtained drugs from one of Bodden's drug suppliers for the purpose of selling drugs for Bodden; however, instead of selling the drugs, Smith and Alston used them. Bodden later confronted Alston at a store adjacent to an Amoco gas station, telling him. "you better get my money." Bodden also told Alston that he would be right back, left the gas station store, and came back with a friend about an hour later. When Alston noticed Bodden and his friend, he started running down the sidewalk, whereupon he was shot five times in front of his apartment building at around midnight. Alston called 911, and 3.5 minutes later told his mother that he was going to die.
Durham City Police Officer A.M. Cristaldi responded to a dispatch call just after midnight, arrived at the Alston's apartment, and found the Alston bleeding, lying on the floor and screaming for help. Officer Cristaldi asked Alston who shot him, and Alston responded that he did not know who the shooter was, but that Bodden was with him. Alston was transported by ambulance to the emergency room at Duke Hospital, whereupon Durham City Police Officer Dana Keith asked Alston who shot him. Alston responded that "Roy" shot him, which prompted Keith to ask him if Roy's last name was Bodden. Alston answered affirmatively before dying later that day from the gunshot wounds. Bodden was subsequently charged with the first-degree murder of Alston.
At trial, the prosecutor admitted Alston's statements to police as dying declarations under North Carolina Rule of Evidence 804(b)(2), which allows for the admission of a statement made by a now unavailable declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death (The court found that the fact that Alston's statements were contradictory went to the weight of the evidence, not admissibility). On appeal, Bodden claimed, inter alia, that Alston's statements were inadmissible under the Sixth Amendment's Confrontation Clause in that, pursuant to the Supreme Court's 2004 opinion in Crawford v. Washington, they were "testimonial" in that they were made with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution, making them inadmissible because (1) Alston was unavailable to testify. and (2) Bodden did not have the opportunity to cross-examone him.
The Court of Appeals of North Carolina noted that in pre-Crawford opinions, North Carolina courts had found that dying declarations do not violate the Sixth Amendment right of confrontation. Under the "testimonial" test laid out in Crawford, however, "testimonial" dying declarations would be inadmissible under the Confrontation Clause, but, as I have noted before, the Supreme Court implied that dying declarations were exempt from this rule, holding at footnote 6 of its opinion that "[a]lthough many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis."
The Court of Appeals of North Carolina noted that, since Crawford, most courts have held that the admission of "testimonial" dying declarations does not violate the Confrontation Clause, and it followed suit, reaffirming its pre-Crawford precedent. Based upon the language in Crawford, I think that the North Carolina court (as well as courts in Nevada, llinois, New York, and Minnesota) got it right.
Thursday, May 29, 2008
The recent opinion of the Supreme Court of Iowa in State v. Tonelli, 2008 WL 2152529 (Iowa 2008), definitively answers two questions about Iowa's co-conspirator admission rule (Iowa Rule of Evidence 5.801(d)(2)(E)) which had remained unanswered for years. In Tonelli, several men living near Iowa State University planned a house party by putting an invitation on the internet site Facebook, purchasing two kegs of beer and other alcohol, making “Jell-O” shots, and making arrangements to collect money at the door and split the proceeds. According to the State, the men knew there were numerous people at the party who were under the legal age to drink alcohol and had reasonable cause to believe they were serving alcohol to minors. (One of the underaged guests was twenty-year-old Shanda Munn, who killed Kelly Laughery by striking Laughery with her vehicle after the party).
Three of the men were thereafter charged with the "serious misdemeanor" of providing alcohol to a person under the legal age. During a pretrial hearing, the State indicated that it intended to offer the incriminatory testimony of some of the men, pursuant to the co-conspirator admission rule (Iowa Rule of Evidence 5.801(d)(2)(E)), which indicates that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is admissible non-hearsay. Defense counsel objected, and the State thus filed a motion for adjudication of a law point, which eventually reached the Supreme Court of Iowa.
The Court noted that defense counsel's first argument was that Iowa Code Section 706.1 indicates in relevant part that "[a] person commits conspiracy with another if, with intent to promote or facilitate the commission of a crime which is an aggravated misdemeanor or felony, the person does either of the following:
a. Agrees with another that they or one or more of them will engage in conduct constituting the crime or an attempt or solicitation to commit the crime.
b. Agrees to aid another in the planning or commission of the crime or of an attempt or solicitation to commit the crime. "
According to defense counsel, because intent to commit a "serious misdemeanor" (such as providing alcohol to a minor) cannot constitute a "conspiracy" under this definition, the co-conspirator admission rule was inapplicable.
In rejecting this argument, the Court first cited a principle which I have previously mentioned on this blog, which is that a party does not need to be charged with the crime of conspiracy for the co-conspirator admission rule to apply. It then noted and approved of the federal court practice of distinguishing between the concept of conspiracy for purposes of the rule of evidence, which merely requires an agreement to engage in a joint venture, and the substantive elements of conspiracy under criminal law.
That left the Court with defense counsel's second argument, which was that for the co-conspirator admission rule to apply, the underlying goal of the joint venture and the means used to accomplish it must be illegal. According to defense counsel, because the mere planning of a party and sending of invitations are lawful acts and means, and statements made during that process could not qualify as co-conspirator admissions, even if the defendants had reasonable cause to believe they were serving alcohol to minors.
In analyzing this argument, the Court first noted that at least one court -- the D.C. Circuit in United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006), had found that "the term conspiracy as used in the rule of evidence does not depend upon a goal to promote a crime or civil wrong." The Court, however, rejected this conclusion, finding that "[a] review of Iowa case law reveals that the term 'conspiracy' has generally been used in the context of unlawful conduct, whether civil or criminal." It thus determined that Iowa Rule of Evidence 5.801(d)(2)(E) "may be applied where there is evidence of a conspiracy to accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner, but not to combinations or agreements in furtherance of entirely lawful goals advanced by lawful means." That leaves it up to the trial court to determine the goals of the defendants in Tonelli and the mans they used to accomplish them.
I agree with the ruling of the Supreme Court of Iowa. After all, Federal Rule of Evidence 801(d)(2)(E) (and state counterparts) is the "co-conspirator" admission rule, not the "joint venturer" admission rule. And because the sine qua non of a conspiracy is the agreement to engage in unlawful conduct, application of the co-conspirator admission rule should, at a minimum, require an unlawful goal or unlawful means.
Wednesday, May 28, 2008
I've written several previous posts about Rule of Evidence 606(b), which generally prevents jurors from impeaching their verdicts after trial through testimony about what occurred during jury deliberations. The bulk of my posts have related to the sharp split among courts across the country as to whether, notwithstanding Rule 606(b), jurors should be able to impeach their verdicts after trial through testimony about, inter alia, racial or religious slurs (some of these posts can be found here and here). Indeed, after finishing an article about felony impeachment in quasi-criminals trial this summer, I will be writing an article this fall on why courts should apply the doctrine from Chambers v. Mississippi, 410 U.S. 284 (1973), to permit post-trial juror impeachment through testimony about racial or religious slurs, notwithstanding the rules of evidence.
But what of Rule 606(b) in general? Does it make sense? The Court of Appeals of Iowa's recent opinion in Reed v. Lyons, 2008 WL 2041686 (Iowa.App. 2008), provides a nice opportunity to review the Rule. In Lyons, Austin Reed began experiencing knee problems while wrestling in high school and college. He would occasionally have his knee aspirated (drained) by doctors, and the knee problems subsided for several years before returning in 2003. Thereafter, on July 30, 2003, Reed went to a clinic and reported to a physician's assistant that his knee had been swelling for the past seven to eight months and that he would aspirate his own knee two or three times each week. The physician assistant, Steve Greenwaldt, advised Reed to stop self-aspirating because it could lead to infection.
Greenwaldt then referred Reed to Dr. Lyons, who last treated Reed on October 29, 2003, when he aspirated a large hematoma, or blood clot, from Reed's knee, but did not send the hematoma for lab analysis because he thought there was no evidence that Reed's knee was infected. Thinking that his knee could be infected, Reed requested a referral to another orthopedic doctor, but on November 9, before a referral appointment was arranged, Reed's family had to take him to the emergency room after he was found passed out in his home. Reed was diagnosed with severe infection in his right knee and treated at a hospital.
Reed thereafter sued Dr. Lyons, claiming that his negligent medical treatment led to his knee infection, and a physician's note from this treatment stated that Reed "admits that on several occasions over the last few months he has self-aspirated the knee joint," which formed the basis for Dr. Lyons' defense of comparative negligence (At trial, Reed claimed that this was incorrect and he did not self-aspirate after July 30, 2003 when Greenwaldt told him to stop). Based upon this note, the judge gave an instruction which advised the jury that Reed could be apportioned fault if the jury was convinced that Reed was negligent by self-aspirating and this negligence was a proximate cause of the damage. After trial, the jury found Dr. Lyons was 10% at fault and Reed was 90% at fault.
After trial, however, two jurors came forward and indicated that the jury was not persuaded by Dr. Lyons' self-aspiration defense, but instead found that Reed was at fault because he did not seeking medical attention sooner (as noted, his knee began swelling 7-8 months before he sought treatment). The problem was that defense counsel presented no evidence at trial that Reed's delay in seeking treatment contributed to his infection, and the judge did not instruct the jury about whether Reed should have sought care for his infection symptoms earlier. Instead, the jurors merely used external evidence of jurors' experience with infection to reach their verdict.
Nonetheless, the court precluded these jurors from impeach their verdict pursuant to Iowa Rule of Evidence 5-606(b), which states in relevant part that "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information [e.g., inadmissible evidence] was improperly brought to the jury’s attention or whether any outside influence [e.g., a threat from a party's friednd] was improperly brought to bear upon any juror."
According to the court, this rule is designed "to assure finality and prevent 'what is intended to be private deliberation, [from becoming] the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.'" What do readers think? Would allowing jurors to impeach their own verdicts through testimony about the internal jury deliberation process lead to juror harassment, and, as Justice O'Connor implied in Tanner v. United States, 483 U.S. 107 (1987), the destruction of the jury system itself? Or should the interest in preventing "unfair" verdicts outweigh any danger to jurors and/or the jury system? It's a tough question, and one that I'm not sure I can answer. I do, however, think that when there is evidence of racial, religious, or other prejudice in the jury room, impeachment should be allowed, and I hope to prove my case this fall.
Tuesday, May 27, 2008
Article of Interest: Professor Peter Margulies' Lawyering for Children: Confidentiality Meets Context
Last year, Roger Williams University School of Law Professor Peter S. Margulies published the terrific article, Lawyering for Children: Confidentiality Meets Context, as part of the St. John's University Symposium on "Race, Culture, Class, and Crisis in Child Welfare: Theory Into Practice." In the article, Margulies argues that attorneys representing children should utilize a "local competence view" under which they should explore three issues before deciding to disclose a "child client" confidence:
-(1) the likelihood and gravity of future harm;
-(2) the child's understanding of the consequence of the decision; and
-(3) the availability of alternatives to the current placement.
In Part, I, Margulies analyzes the current confidentiality framework for attorney-"child client" relationships. He begins by noting that many states take a "best interests" approach, under which "the lawyer may advocate for a position different from the one taken by the child, if the lawyer believes that the child's position would lead to an outcome prejudicial to her best interests." This approach, however, has increasingly given way to the belief "that children, if competent, should have the same authority as adults to make decisions." Margulies notes that this paradigm shift has dovetailed with the movement from a status-based conceptualization of capacity, which viewed children as wholly lacking in capacity, to the "consensus that capacity is not a global determination, with an all-or-nothing answer, but is instead a more textured, fluid inquiry." Finally, Margulies identifies the tendency of many courts to allow attorneys to disclose "child client" confidences to prevent harm to a child under a disjunctive standard, which allows for disclosure based upon "either the probability or gravity of harm."
In Part II, Margulies contends that attorneys representing children too often make the "fallacy of omniscience," under which they see themselves as child-savers, removing a child from an irreversibly harmful situation and into a separate peace. This fallacy is based in part upon failure to recognize flaws in cognitive and institutional dynamics, which result in the encouragement of the separation of child and parent and the discouragement of reunification. Margulies' solution is for attorneys to consider the strengths and weaknesses of all of the players in the child welfare arena before making disclosure decisions. These include:
-cognitive limitations: hindsight bias, presentism (undue weighing of present harms above harms in the future), representativeness (seeing superficial similarities between events or things as reflecting greater commonalities), and the attribution fallacy (attributing events to intentional action)
-organizational factors: children's lawyers are penalized and rewarded asymmetrically, being broadly condemned for advocating too aggressively for returning a child to a parent, but rarely receiving praise when reunification is successful; and
-race, culture, and class biases: attorneys sometimes miscomprehend the means of expression and living conditions of children from different socio-economic or ethnic backgrounds.
-subject to the same hindsight bias, asymmetrical incentive structure, and race/culture class biases as attorneys; and
-courts/judges faced with the crushing volume of child welfare cases tend to opt for risk-averse decisions.
Child Welfare Agencies:
-suffer from the same decisional deficits exhibits by both attorneys and courts;
-sometimes allow institutional momentum to influence questionable policy moves and permit funding sources to drive policy, with more funding available for foster care placements and less funding readily available for family reunification efforts that provide intensive services for families in need;
-sometimes engage in "group think;" and
-have the ability to learn.
-suffer from a collective action dynamic (the race to the bottom) which encourages policymaking that benefits their short-term political fortunes.
-have large deficits in their understandings of how consequences play out over time;
-(especially children under ten) have difficulty in conceptualizing a sense of self;
-(especially older children) face significant limitations in cognition and perception; and
-have insights that can advance a lawyer's understanding, and sometime confound expectations.
-many are simply people struggling to make due in a system where juggling is a never-ending necessity; and
-know more about their children than lawyers, judges, or social workers ever could.
In Part III, Margulies argues that after analyzing these local competencies of each of the players, attorneys should apply the aforementioned three issues in the following manner before deciding to disclose a "child client" confidence:
-(1) the likelihood and gravity of future harm: use a conjunctive test, with disclosure only to prevent both a probable and a grave harm to the child.
-(2) the child's understanding of the consequence of the decision: draw a boundary between second guessing a child client's decision and assessing the child's reasoning response.
-(3) the availability of alternatives to the current placement: examine proposed alternative placements from the child's point of view.
Margulies then proceeds to apply his test to several specific child welfare scenarios: (1) parental discipline; (2) recurrence of neglect; (3)recurrence of parental substance abuse; (4) disclosure to a mental health professional; (5) disclosure to a parent; and (6) disclosure and "children having children." Margulies concludes by lamenting that in some states, his test is precluded based upon the requirement of mandatory reporting of child abuse, which he contends "frustrates lawyer-client dialogue, exacerbates racial and socio-economic disparities in the child welfare system, and may actually make children less safe."
I asked Professor Margulies about what led him to write the article and his forthcoming scholarship, and he responded:
"I've written about lawyering for children, senior citizens, and people with mental disabilities in pieces published in symposia in the Fordham L. Rev. over the last 12-14 years, and I've been interested in how the lawyer balances her role as a gatekeeper for systemic integrity and the public interest with her role as zealous advocate. My current focus is on legal ethics and national security; I've written an article entitled, "True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers," forthcoming in the Maryland L. Rev., and also available on SSRN."
(The Fordham articles can be found at 62 Fordham L. Rev. 1073, 64 Fordham L. Rev. 1473, and 67 Fordham L. Rev. 2339. The forthcoming Maryland Law Review article can be downloaded from SSRN [SSRN link]).
I highly recommend Margulies' article to the subjects of his article: all of the players in the child welfare arena. More specifically, it is a must read for lawyers and professors dealing with both family law and professional responsibility issues.
Monday, May 26, 2008
Imagine John Lennon Dead, Take 2: Memorial Day Case Reveals That Tennessee Allows Expert Opinion Testimony On Premeditation
The opinion of the Court of Criminal Appeals of Tennessee in State v. Mobley, 2007 WL 1670195 (Tenn. Crim.App. 2007), reveals that Tennessee allows expert opinion testimony on whether a defendant acted with or without premeditation. In Mobley, Brandon Mobley was convicted of two counts of first degree murder, especially aggravated robbery, and setting fire to personal property. The evidence presented at trial indicated that Mobley killed two men on Memorial Day, 2003, over an unpaid drug debt and then burned the car in which he shot the victims.
Before Mobley testified, defense counsel sought to call Dr. Pam Auble, who was prepared to testify that she examined and performed personality tests on Mobley, which led to her belief that Mobley suffered from major depression, viewed himself in a bleak way, and had trouble controlling emotions. Dr. Auble would have testified that Mobley tended to respond first, and think second, and thus that due to the Mobley's mental diseases or defects, he could not have premeditated the shooting. The State objected to this proposed testimony, and the trial judge sustained the objection. After Mobley testified, however, the State withdrew its objection to Dr. Auble's testimony, and she went on to fully testify about the Mobley's mental issues and their effect on his ability to premeditate.
After Mobley was convicted, he appealed, claiming, inter alia, that the trial judge improperly excluded Dr. Auble's testimony, and the Court of Criminal Appeals of Tennessee agreed that the trial judge initially acted in error, but found this error to be harmless because Dr. Auble was later allowed to testify. This decision seems correct and straightforward to me, but the interesting aspect of the decision is that Dr. Auble would not have been allowed to testify under the Federal Rules of Evidence.
Both Tennessee Rule of Evidence 704 and Federal Rule of Evidence 704(a) provide that expert opinion testimony is not objectionable because it embraces an ultimate issue to be decided by the trier of fact, which would make expert opinion testimony about premeditation non-objectionable. However, as I havenoted before, in 1984, after the public outrage that resulted from Mark David Chapman's insanity defense in his trial for murdering John Lennon and John Hinckley, Jr.'s insanity defense in his alleged "Taxi Driver" inspired attempt on the life of Ronald Reagan, Congress decided to pass the Insanity Defense Act of 1984.
As a result of this Act, Rule 704(b) was added to the Federal Rules of Evidence. According to Rule 704(b), "[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone." Rule 704(b), however, wasn't crafted solely to prevent expert opinion testimony on the issue of insanity; instead, it was fashioned to reach issues such as "premeditation in a homicide case, or lack of predisposition in entrapment." S. Rep. No. 225, 98th Cong., 1st Sess. 230 (1983).
Tennessee, however, has never adopted a state counterpart to Federal Rule of Evidence 704(b). Instead, it enacted T.C.A. Section 39-11-501, which states that "no expert witness may testify as to whether the defendant was or was not insane." According to the 1996 Advisory Committee Comments to Tennessee Rule of Evidence 704, this is the only ultimate issue outside the scope of expert testimony, which explains why Dr. Auble's testimony on premeditation was admissible.
Sunday, May 25, 2008
Constructive Criticism: Court of Appeals of Texas Hints That Constructive Notice Might Be Sufficient Under Rule 404(b)
The Court of Appeals of Texas' recent opinion in Freeman v. State, 2008 WL 2122419 (Tex.App.-Tyler 2008), raises the specter that the court may only require constructive notice in Rule 404(b) criminal cases. In Freeman, Kenneth D. Freeman appealed his conviction for delivery of a controlled substance. Freeman conviction was based upon his sale of cocaine to a confidential informant at a Denny's restaurant. At trial, the prosecution entered against Freeman:
-evidence of a second drug transaction at the Denny's restaurant; and
-evidence that Appellant's house was a place where crack cocaine could be purchased.
This evidence was admitted under Texas Rule of Evidence 404(b), which states in relevant part that "[e]vidence of other crimes, wrongs or acts...may...be admissible for...purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction."
On appeal, Freeman claimed, inter alia, that the State failed to provide him with the "reasonable notice" required under Rule 404(b) of its intent to introduce the above evidence. The Court of Appeals of Texas noted that in the State's discovery compliance, its only reference to the above evidence was a single sentence, which read:
"State intends to offer extraneous offenses or bad acts included in attached documents, including defendant's prior criminal history as well as any bond violation committed by the defendant while on bond for this offense, under [Texas Rule of Evidence 404(b) and 609[,] rules of criminal [sic] evidence[,] and 37.07(3)(G)[,] code of criminal procedure.
The Court of Appeals of Texas then indicated that Freeman "does not deny that this provides some kind of constructive notice, but argues that it did not give him 'reasonable, specific notice' of what it was that the State intended to offer. [Freeman] argues further that he was not prepared to defend against the additional information because of the deficiency of the notice." (emphasis added). The Court of Appeals noted that its function on appeal was to determine whether Freeman was harmed by the State's allegedly deficient notice, with Rule 404(b) only being violated if the State's notice was "injurious."
It then found that the problem with Freeman's claim was that his counsel admitted to the judge, "Judge, I didn't say I was surprised or I was disadvantaged. All I'm saying is it didn't meet the requirements of 404(b), Judge." The Court of Appeals thus found that it did not need to "decide whether the notice was sufficient to apprise [Freeman] of the evidence because his counsel was not surprised by the extraneous information."
Well, let me answer that question by concluding that the "constructive notice" allegedly provided by the State was insufficient under Rule 404(b) and should have formed the basis for a reversal if it were indeed injurious. According to the Advisory Committee's Note to the 1991 amendment to Federal Rule of Evidence 404(b) (which added the notice requirement and upon which Texas Rule of Evidence 404(b) is based) indicates that the notice requirement "is intended to reduce surprise and promote early resolution on the issue of admissibility." (emphasis added). The Notes further state the notice provision "requires the prosecution to apprise the defense of the general nature of the evidence of extrinsic acts."
The questions, then, seem to be (1) whether the State's notice was calculated to promote early resolution of the issue of admissibility, and (2) whether the State's notice was calculated to apprise the defendant of the general nature of the evidence of the extrinsic acts it sought to admit? I would argue that it was calculated to do neither. The one sentence "notice" neither indicated the specific acts (nor their general nature) the State sought to introduce against Freeman, nor did it even hint at the purpose for which the State sought to introduce those acts. Thus, the State's "notice" was not in compliance with the goals behind Rule 404(b)'s notice requirement.
Saturday, May 24, 2008
Possible Cause vs. Proximate Cause: Supreme Judicial Court Of Maine Vacates $400,000 Award Against The Maine Department of Transportation
The Supreme Judicial Court of Maine has vacated a jury verdict in the amount of $400,000 against the Maine Department of Transportation in an opinion finely parsing between what testimony an expert witness could and could not give. In Tolliver v. Department of Transportation (MDOT), 2008 WL 2025325 (ME. 2008), the Court was presented with the following factual scenario:
In the early morning of June 20, 2004, Caroline M. Knight was driving when she struck Lucas E. Tolliver, a pedestrian. The portion of Route 302 where the accident occurred was under construction by the MDOT and had recently been repaved. The only markings on the road were yellow reflective markers delineating the center of the road, and there were no white edge lines separating the travel lanes from the breakdown lanes. After hitting Lucas, Knight drove away and did not call 911 or notify any other emergency service. Lucas sustained serious bodily injuries as a result of the accident, including a brain injury. Thereafter, Robert L. Tolliver, as sole guardian and conservator for his son Lucas, filed a complaint alleging negligence on the part of the MDOT and Knight, with the claim against the MDOT alleging that the MDOT had been negligent in failing to stripe Route 302 in a timely fashion, and in failing to maintain safe conditions on Route 302 through the use of temporary edge line markings. After trial, a jury awarded Tolliver $400,000 in damages against the MDOT
Now, there are a lot other facts and issues in the case relating, inter alia, to Knight's alleged intoxication, but I want to focus on one issue, which is the expert testimony of Laurent Lavigne, who provided the central testimony relating to causation. Lavigne was designated as an expert witness by Tolliver, and testified that he was currently working as a road construction consultant. Lavigne testified that he
-had a degree in civil engineering with a major in transportation;
-had previously worked for a paving company that performed road construction in Maine, including paving and striping activities;
-had worked on numerous highway construction projects, many of which involved striping and paving;
-(in connection with his company) was the MDOT subcontractor responsible for striping on some state road projects,
After Lavigne had testified to his experience working on highway construction projects in general, and specifically as an MDOT subcontractor, Tolliver asked Lavigne if, "based upon [his] training, education, experience and [his] examination of the site conditions at the scene of the accident,” he had “an opinion as to whether or not the failure of [MDOT] to stripe the fog line or sideline prior to the accident on June 20th was a substantial contributing factor in causing the accident." After MDOT's objection was overruled, Lavigne stated that he believed the lack of an edge line would be confusing to drivers and pedestrians in general and then stated that he believed the lack of an edge line was "a substantial contributor to the accident."
On appeal, the MDOT contended that Lavigne was not qualified to testify, inter alia, that the lack of an edge line was a substantial contributing factor to the accident. The Supreme Judicial Court of Maine agreed, finding that Lavigne was a road construction expert and not an accident reconstructionist; it thus concluded that "Lavigne's training and experience may have permitted him to opine that the lack of an edge line created an unsafe condition that was a possible cause of the accident, but not that it was a proximate cause of the accident. The mere possibility of causation is not enough to establish proximate cause, or, in Lavigne's words, "substantial contribut[ion]." The Court thus found that because there was no evidence of proximate causation, the MDOT was entitled to judgment as a matter of law and vacated the judgment.
Now, in fairness to the Supreme Judicial Court of Maine, there were other issues with Lavigne's testimony, such as the fact that he only visited the accident scene once and had only basic knowledge of the area where the accident occurred. Putting those issues aside, though, does the Court's distinction make sense in that, ostensibly, and accident reocnstructionist could testify about proximate causation, but a road construction expert could only testify about possible causation? I don't think so.
"Proximate cause is a legal term representing the common-sense notion that a closer causal connection should be required for liability than an act being the cause in-fact of an injury. Whether defendants' acts are the proximate cause of an injury depends upon whether the injury was of a type that a reasonable person would see as a likely result of their conduct." Webb v. Amato, 210 F.Supp.2d 1015, 1016 (N.D. Ill. 2002). Now, I'm no expert in the work of accident reocnstructionists, but it seems to me that they use crime scene evidence to paint a picture of how an accident occurred, which seems highly relevant to help decide whose story of an accident is true, but which doesn't seem especially relevant in establishing whether a reasonable person should have expected that the accident would occur (e.g., whether the MDOT should have known that the lack of an edge line would likely cause an accident).
So, who would I want providing that testimony? I would imagine that my first choice would be a road construction consultant, and preferably one who had worked in the state where the accident occurred, who had done the type of work involved in the accident (striping), and who had done work for one of the parties involved in the accident. Lavigne filled all three bills, and it seems very strange to me that the Supreme Judicial Court of Maine nonetheless found that he could not render expert opinion testimony on proximate causation. What do readers think?
(Hat tip to Professor Deirdre Smith)
Friday, May 23, 2008
And No Religion Too: Government Attorney Impropely Uses Imam's Religion As Character Evidence In Deportation Proceeding
Is a party's religion fair game in a courtroom? That's the question raised by a current deportation case in New Jersey, with United States government attorneys being accused of putting Islam on trial along with Imam Mohammed Qatanani. That question is part of a broader trial, which will determine whether the 44-year-old Palestinian-born spiritual leader should be expelled from the United States to Jordan for having failed to mention in his application for permanent residency here that he was arrested and held by the Israeli military for three months in 1993.
Defense witnesses characterized Qatanani as a man of peace dedicated to interfaith dialogue and to improving social conditions in Paterson, a gritty, post-industrial city of 150,000. They pointed out that Qatanani cooperated with local law enforcement officials to help prevent any upsurge of Islamic violence in the city, whose large Muslim immigrant community is predominantly Palestinian. Defense witnesses with expertise on Israel’s administrative detention policies also testified that the Israeli military court system routinely allowed authorities to hold prisoners for months without charges or access to a lawyer. Additionally, they claimed that Israel countenanced techniques that Human Rights Watch characterizes as torture, some of which were subsequently repudiated by the Israeli Supreme Court.
The trial, however, took on a decidedly religious complexion during questioning of a character witness, Rabbi David Senter of Temple Beth Shalom in Pompton Lakes. The lead government attorney, Alan Wolf, read a passage from the Koran asserting that God will cause unbelievers and hypocrites to "increase in illness and…be swiftly punished on the Day of Judgment." Gesturing toward Qatanani, Wolf asked Senter, whose testimony emphasized Qatanani’s commitment to interfaith outreach, whether a person who believed in such language could really be the moderate figure Senter believed him to be. Senter replied that he considered it wrong to quote the Koran out of context to impugn Qatanani.
At the opening of the third day of the trial, Claudia Slovinsky, an attorney representing Qatanani, demanded an apology from Wolf "unless the government is willing to admit that Islam is on trial here." Immigration Judge Alberto Riefkohl responded, "I don’t think [Wolf’s question about the Koran] was proper, but [also] do not believe it was intended with malice." I would also argue that the question was inadmissible.
Now, it's important to note that the Federal Rules of Evidence do not apply in deportation proceedings; instead, evidence is admissible provided that it does not violate the alien's right to due process of law. Zerri v. Gonzales, 471 F.3d 342, 346 (2nd Cir. 2006). However, using these Rules as a guide, I would argue that using religion as character evidence violated Qatanani's right to due process of law.
Let's start the analysis with Federal Rule of Evidence 610, which states that "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced." Now, this Rule would apply if Qatanani testified and the prosecution were trying to use his religion as evidence that jurors should not trust his testimony on the witness stand. Here, however, the prosecution apparently used the Koran passage to prove that Qatanani was an extremist/hatemongerer and not a moderate figure.
Thus, Rule 610 was not implicated, but the proscription of character evidence was. Assuming that that defense witnesses' testimony about Qatanani’s commitment to interfaith outreach and peaceableness injected his character as an issue into the trial, but even if it did, the prosecution could only challenge his character through reputation and/or opinion testimony under Federal Rule of Evidence 405(a). Evidence about Qatanani’s religion would not be admissible under this Rule.
To see why, let's look at the opinion of the Third Circuit in Government of the Virgin Islands v. Petersen, 553 F.2d 324 (3rd CIr. 1977). There, a Rastafarian man appealed his conviction for two counts of second degree murder by claiming that the trial court erred by precluding him from presenting testimony that Rastafarians believe in nonviolence. The Third Circuit rejected this argument, finding that,
-"A person may or may not act in accordance with a professed belief; it is the observation of the defendant's behavior over a length of time which is the recognized basis for both reputation and opinion testimony....This longstanding limitation reflects an accommodation between logical relevance on the one hand and the desire to avoid prejudice, confusion, surprise and consumption of trial time on the other. We believe that the appropriate means to elicit opinion testimony under the rule is to inquire directly as to the witness' opinion concerning the relevant character trait of the accused. The district court did not err in refusing to admit the proffered testimony."
So, this analysis seems to indicate that the question was impermissible under the Federal Rules of Evidence, but did it violate Qatanani's right to due process of law? I would argue that the answer is yes based upon another passage in the Third Circuit's opinion. In addition to finding that the proposed Rastafarian testimony was impermissible character evidence, it also found that it was not legally relevant. I agree and would argue that evidence about a person's religion (or lack thereof) to prove that the person is violent/nonviolent/honest/untrustworthy/etc. denies that person due process of law because that person's religion, and not that person, is being put on trial.
Thursday, May 22, 2008
My New Essay -- Ordeal by Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality
I have written four previous posts (here, here, here, here) about Alton Logan, the man imprisoned for 26 years for a crime committed by another man. I finally decided that, rather than continuing to write posts lamenting the failures of the legal system in his case, I would write an essay arguing for a change in the rules of professional responsibility, which would allow attorneys to prevent similar injustices from occurring. The result of this decision is my new essay, Ordeal by Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality, which will be published in the Northwestern University Law Review Colloquy this summer (my initial draft is now available on SSRN and can be read if you complete a free registration [SSRN link]). Here is the abstract for the essay:
"In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession. Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan were given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit, being locked up (Logan in a prison cell; the affidavit in a lock box). Pained by pangs of guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.
How does such an injustice occur? Until recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted. And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent reasonably certain death or substantial bodily harm, the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example. Conversely, Massachusetts Rule of Professional Responsibility 1.6(b)(1) permits attorneys to disclose client information to, inter alia, prevent the wrongful execution or incarceration of another. This article argues that the 25 states which have adopted some form of amended Model Rule 1.6(b)(1) can and should read a similar wrongful incarceration/execution exception into their existing Rules while the remaining 24 states (and the District of Columbia) which have not adopted some form of amended Model Rule 1.6(b)(1) should create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exceptions."
So, what do readers think? Does such an exception make sense? Or would such an exception restrict the free flow of information between client and attorney and/or undermine other societal goals? As I post into the conclusion to the essay, my firm hope is that while men such as Alton Logan and Lee Wayne Hunt have endured inordinate suffering, perhaps we can derive a quantum of solace from their plights if their cases lead to the recognition of the necessity of a wrongful incarceration/execution exception to attorney-client confidentiality.
Age Ain't Nothing But A Number, Take 3: Why The Copy Of A Copy Of A Copy Was Admissible In the R. Kelly Trial
I have received a few e-mails asking about how the R. Kelly sex video, which has been described as, "at best, a copy of a copy of a copy" was admissible in his child pornography trial. Well, let's take it through the legal analysis. Illinois does not actually have a codified rule of evidence (although incoming Illinois Supreme Court Chief Justice Thomas R. Fitzgerald has indicated that he is going to "try to do something with possibly codifying the law of evidence in Illinois"), but the evidentiary rules its courts have applied pretty closely mirror the Federal Rules of Evidence. And according to the Best Evidence Rule (Federal Rule of Evidence 1002), "[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."
Here, the prosecution in the R. Kelly is indeed seeking to prove the contents of a tape recording and thus had to produce the original, unless the exceptions in Rules 1003 or 1004 applied. Under Federal Rule of Evidence 1004, a party seeking to prove the contents of a recording can do so through any form of secondary evidence (such as a copy) if that party establishes one of three exceptions or establishes that the recoding is collateral to the issues at trial. Clearly the recording in the R. Kelly case is central to the prosecution's case and not "collateral," meaning that the prosecution needed to establish one of three exceptions:
-(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
-(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or
-(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing.
Now, the pre-trial hearings in the R. Kelly case were closed, so I don't know whether the prosecution was able to establish any of these 3 factors. Even if it could not, however, the prosecution still could have introduced the "copy of a copy of a copy" under Federal Rule of Evidence 1003, which indicates that a mechanically produced "duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Now, some of you may seize upon this first exception and think that R. Kelly's attorneys could have raised a genuine question as to authenticity.
(Indeed, looking at what's happened in the trial so far, his lawyers seem to be arguing that the man in the video is computer generated, that the man can't be R. Kelly because he doesn't have a mole, and the victim's head might have been digitally superimposed on a more mature woman's body. Indeed, defense counsel asked the alleged victim's former best friend, who identified her former friend as the girl in the video, if it was possible her former friend's head had been superimposed onto a more mature body. The former friend indicated that this was entirely possible, but then defense counsel made the strange choice to ask her whether the superimposition of a man's head on an infant's body in the Wayans brothers' 2006 movie "Little Man" looked pretty real. The question, which seems to me akin to asking whether the Wayans brothers actually looked like Caucasian women in their 2004 movie "White Chicks," drew a "Not really" response from the witness and guffaws from the courtroom).
The problem with this, however, is one that I addressed in my article, Even Better than the Real Thing, which will be published in the Maryland Law Review later this year and which is accessible now on SSRN if you sign up for a free account (SSRN link). And that problem is that courts almost never find genuine questions raised under Rule 1003(1). In the article, I argue that such a "conservative" application of this exception goes against its legislative history and plain language and that it makes little sense in a world where nearly anyone can fairly quickly create a fairly convincing forgery or digitally altered copy. But as things stand, Federal Rule of Evidence 1003 is basically a judicial rubber stamp, allowing for the admission of almost anything which the proponent claims is a mechanically produced duplicate.
Wednesday, May 21, 2008
A ruling by a City Court judge in Tucson could affect every alcohol breath test conducted in Arizona since December 1, 2006. That was the date when Arizona adopted the Intoxilyzer 8000 machine made by CMI. Apparently, defense attorneys in 49 DUI cases before Judge Thomas Berning had asked for the Intoxilyzer 8000's source code used to create the machine's software. In response, CMI agreed to make the source code available as long as defense attorneys agreed not to reveal it publicly, which defense attorneys agreed to. According to a ruling by Judge Berning late last week, however, "Despite this, neither the state nor CMI has released the source code." Instead, according to Berning, CMI came back with a counteroffer with "more onerous terms" that defense attorneys said were ethically problematic."
Unsatisfied by CMI's bait and switch, Judge Berning tossed out the alcohol breath tests from the 49 DUI cases. Apparently, there are also 50 to 70 pending cases before other judges who were waiting for Berning's ruling and now presumably will do the same; judges statewide might also follow suit, but everything will likely be put on hold until the prosecutors proceed with an appeal of the ruling. For instance, Sgt. Mark Robinson, a police spokesman, said the department is aware of Berning's ruling and will wait for the results of the appeal to decide whether to continue using the Intoxilyzer 8000.
So, why did Judge Berning rule in this manner? Well, according to several opinions by the Supreme Court of Arizona, "[u]nder Rules [of Evidence] 702, 703, and 403, expert testimony must (1) come from a qualified expert, (2) be reliable, (3) aid the triers of fact in evaluating and understanding matters not within their common experience, and (4) have probative value that outweighs its prejudicial effect." E.g., State v. Lee, 944 P.2d 1222, 1227 (Ariz. 1997). Presumably, CMI failing to release its source made it impossible to determine whether Intoxilyzer 8000 results were reliable, making the test inadmissible under factor 2.
Tuesday, May 20, 2008
Trial By Jury: Case Reveals South Carolina Allows Post-Trial Jury Impeachment Based Upon Juror Racial Prejudice
The Supreme Court of South Carolina's recent opinion in Shumpert v. State, 2008 WL 2019129 (S.C. 2008), reveals that South Carolina is among those states where evidence of racial prejudice during jury deliberations is admissible post-trial, despite Rule of Evidence 606(b). Shumpert itself is a fairly typical case by Rule 606(b) standards, with Tyrone Shumpert unsuccessfully attempting to appeal his convictions on armed robbery and conspiracy charges based upon a juror's affidavit. That juror's affidavit indicated in relevant part:
"I recall it being discussed in the jury room that if [Petitioner] wasn't guilty [ ] he would have taken the stand and informed us....There were a couple of people at least, maybe more, that made these statements. I firmly believe that these comments weighed importantly in the jury deciding to convict [Petitioner]. The tall skinny white lady who kept wanting to talk to [the trial court] seemed very concerned by this and I believe it played a big part in her decisions. She was very confused about it all. Also the preacher's wife, I can't recall her name, was very unsure about it. I don't recall anybody in the jury room mentioning the judge telling us not to consider that....If I had it to do again, it would have been nine to three because I think I let those comments about him not testifying swing my vote. Deep down inside I think we made a wrong decision and for the wrong reason-basically for the comments that were made in that room about him not getting up to deny it. I also believe that we made those ladies change their vote because of that."
The Supreme Court of South Carolina found that this affidavit was inadmissible under South Carolina Rule of Evidence 606(b), which precludes jurors from impeaching their verdicts after trial unless deliberations were tainted by extraneous prejudicial information (e.g., inadmissible evidence reaching the jury room) or improper outside influence (e.g., threats by a party's friends/family). Thus, jurors cannot impeach their verdicts based upon anything internal to the jury deliberation process, such as improperly drawing a negative inference based upon a criminal defendant choosing not to testify, which is why the juror's affidavit was inadmissible.
In reaching this conclusion, the Supreme Court of South Carolina contrasted its previous opinion in State v. Hunter, 463 S.E.2d 314 (S.C. 1995). In Hunter, Roosevelt Hunter, an African-American man, was convicted of kidnapping and armed robbery. He appealed these convictions based upon the proffered testimony of the only black juror, Margaret Richardson, who indicated, inter alia, that "a juror named Christine...used the word 'n*****' when referring to some testimony given at the trial. At trial, one witness quoted someone else as having said, 'We'll let the black boys work this weekend.' During deliberations, Christine misquoted this witness, saying, 'Let the n****** work.' After she said it, she caught herself, covered her mouth with her hand and said 'Oop[s].'"
In finding this testimony admissible, the Supreme Court of South Carolina cited the general proscription of South Carolina Rule of Evidence 606(b), but then found that "allegations of racial prejudice involve principles of fundamental fairness...If a juror claims prejudice played a role in determining the guilt or innocence of a defendant, investigation into the matter is necessary. To hold otherwise would violate 'the plainest principles of justice.'" South Carolina courts are among those courts which have held that juror testimony about racial prejudice is admissible based upon the Fourteenth Amendment. Conversely, some courts hold that juror testimony about racial or other prejudice is per se inadmissible. I fall into the former camp and think that any societal interests in not exposing the deliberation process to public scrutiny is outweighed by the litigant's need for a fair trial.
(It should be noted that while the court in Hunter found the juror's testimony admissible, it still affirmed Hunter's convictions, in what I would call a "questionable" decision. According to the court:
"The use of the word 'n*****' by a juror was highly improper. However, she was not referring to Richardson or Hunter when she made the statement, and she was instantly aware of the inappropriateness of her words, as shown by the immediate covering of her mouth. There is no evidence other jurors agreed with her sentiments, nor is there evidence any other remarks were made.")
Monday, May 19, 2008
Earlier, I wrote about how, pursuant to landmark new rules by the Supreme Court of Florida, (a) judges in civil cases must allow jurors to submit questions for witnesses, and (b) judges in criminal cases have the discretion to allow jurors to pose questions for witnesses. I concluded that post by musing, "I think that with proper educational initiatives, regular application of the rules, and proper oversight, the Florida system might result in a more proactive jury and serve as a model for other states. I will certainly be looking forward to the result." Well, the first results are in, and let's go to the scorecards.
An article indicates that while (as I suspected), the new rules have been sparingly used, at least in Sarasota and Manatee counties, juror questioning has already affected verdicts and surprised attorneys. It appears that Circuit Judge De Furia is the only judge in either county to allow juror questions in all of his trials (eight so far this year), while other judges have not made it part of their trials, so jurors are unaware the process even exists. And according to both prosecutors and defense attorneys who have tried cases before De Furia, the process has improved the quality of the trials. Meanwhile, jurors in those cases have claimed that the process has clarified issues and made their decisions easier.
First, let's look at how the process has worked, at least in De Furia's courtroom. To prevent questions that are not allowed under court rules, De Furia asks jurors to submit their questions to him in writing. Then, after the attorneys have finished questioning each witness, De Furia sends the witness and the jurors out of the courtroom. Both attorneys then have the chance to object to each question, and, if they do not (or if the objections are overruled), the jury and witness are brought back into the courtroom and the questions are asked by De Furia in open court.
An article on the new rules mentions 2 cases where juror questioning played a large role. In one case, it helped the prosecution. During a four-day trial involving a pool construction firm owner accused of misappropriating money, jurors submitted 42 questions. According to jury foreman Charlie Fridley, those questions became the turning points in deliberations in the jury room, with two or three of the jurors deciding that the defendant was guilty based on the questions they had asked and the answers that didn't make any sense.
In another case, juror questioning helped defense counsel. In a home-invasion robbery trial, jurors had questions about the testimony placing the defendant at the scene of the crime. Defense counsel claims that 20 questions asked by jurors during trial gave him insight into how to attack the state's case when he made his closing argument, resulting in the defendant's acquittal. According to defense counsel, "I think quite frankly it completely made my case....It gave me a really good idea what the jurors were thinking and what their problems were with the case."
So, what do readers think? Do the Florida rules make sense, or should the "experts" be the only ones asking the questions? Does the new process create the potential for making trials too lengthy? Does it give the jurors too much power? Or do the new rules protect against juror apathy and/or confusion? Do they allow for jurors to raise questions that might have been missed by the attorneys? I still maintain that juror apathy/confusion is the biggest concern facing the American legal system, and I think that based upon these early returns, the Florida rules could indeed serve as a model for other states.
Sunday, May 18, 2008
I'm Incomplete: Recent Opinions Reveal 1st and 4th Circuits Differ Over Whether Rule 106 Allows For The Admission Of Otherwise Inadmissible Evidence
Opinions on consecutive days reveal that the Fourth and First Circuits have different interpretations of the "rule of completeness" contained in Federal Rule of Evidence 106. In the May 12, 2008 opinion, United State v. Lentz, 2008 WL 2008920 (4th Cir. 2008), the Fourth Circuit affirmed Jay Lentz's conviction for interstate kidnapping resulting in the death of his ex-wife, Doris Lentz, in violation of the Federal Kidnapping Act. Lentz was initially convicted of this crime back in 2003, but he was later granted a new trial after it was determined that, inter alia, unadmitted, prejudicial information had found its way into the jury room during deliberations. While Lentz was in prison awaiting his re-trial on this kidnapping charge, he allegedly planned a murder-for-hire of witnesses who testified against him and discussed the details of this plan over a prison phone with this attorney. Unbeknownst to Lentz, these conversations were being recorded, and at Lentz' retrial, the prosecution introduced redacted excerpts from these recordings.
These redacted excerpts, which contained incriminatory statements by Lentz, were admissible because they were admissions of a party opponent under Federal Rule of Evidence 801(d)(2)(A) and covered by the crime-fraud exception to the attorney-client privilege. While the Fourth Circuit opinion is unclear, the redacted portions ostensibly did not relate to the murder-for-hire plot and/or consisted of exculpatory or innocuous statements by Lentz, which would not be admissible under Federal Rule of Evidence 801(d)(2)(A). The trial court rejected Lentz's claim that he should be able to introduce the redacted portions simultaneously with the admitted excerpts pursuant to the "rule of completeness" (Federal Rule of Evidence 106), which states that "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."
On appeal, the Fourth Circuit affirmed, finding that Federal Rule of Evidence 106 does not render admissible evidence which is otherwise inadmissible under the hearsay rules. In other words, according to the Fourth Circuit and several other courts, Federal Rule of Evidence 106 is merely a rule regarding timing. If, for instance, the plaintiff in a breach of contract action wants to introduce only a portion of the contract, which would be admissible in its entirety, the defendant would be able to get the entire contract seen by the trier of fact at the same time. An example might be a plaintiff introducing only page 6 of a contract and claiming that the term "bad faith" means one thing, which the defendant can rebut by simultaneously introducing the definitions page at the same time. Conversely, when a prosecutor introduces a redacted recording of a defendant making only incriminatory statements, the defendant would not be entitled to introduce the excised portions where he made exculpatory statements because the latter would be inadmissible hearsay that is not transformed into admissible evidence under Federal Rule of Evidence 106.
The opinion of the First Circuit in United States v. Bucci, 2008 WL 2025017 (1st Cir. 2008), from May 13th, comes to the opposite conclusion. Bucci also involved a redacted recording being introduced against a defendant. In Bucci, however, the First Circuit ruled as follows:
"Peculiarly, the Government maintains that the purview of Rule 106 is limited to the order of proof. To the contrary, our case law unambiguously establishes that the rule of completeness may be invoked to facilitate the introduction of otherwise inadmissible evidence."
To me, the First Circuit's opinion takes the day(s). Why? Well, let's look at Federal Rule of Evidence 410. Rule 410 deems nolo contendere pleas, statements made during plea negotiations, etc., inadmissible "against the defendant who made the plea or was a participant in plea discussions" in any civil or criminal proceeding. What is clear from this rule (although some courts disagree) is the defendant is not precluded from admitting such evidence on his behalf, which means, for instance, that a defendant may be able to introduce evidence that he rejected a plea deal to prove that he had an innocent state of mind. In this situation, however, there is an exception to Rule 410's general proscription "in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it."
In essence, this means that when, inter alia, the defendant introduces evidence relating to plea discussions, the prosecutor can now admit otherwise inadmissible evidence. So, let's say that Dennis is charged with first degree murder, and he enters into plea discussions with the prosecutor. The prosecutor eventually offers Dennis a plea deal where he will plead guilty to voluntary manslaughter. Dennis rejects the plea deal, telling the prosecutor, "I was at the scene of the shooting and saw Jim shoot the victim." Many courts would allow Dennis to later testify that he rejected the plea deal to show his innocent state of mind. By doing so, however, Dennis triggers the aforementioned exception, which would allow the prosecutor to introduce his otherwise inadmissible statement about being at the crime scene (which might be especially relevant if Dennis claims at trial that he was somewhere else at the time of the shooting).
The Advisory Committee's Note to the 1979 amendment to Federal Rule of Criminal Procedure 11(e)(6) [which is now Rule 11(f) and has been "merged" with Federal Rule of Evidence 410] explains the situation thusly: "This change is necessary so that, when evidence of statements made in the course of or as a consequence of a certain plea or plea discussions are introduced under circumstances not prohibited by this rule (e.g., not 'against' the person who made the plea), other statements relating to the same plea or plea discussions may also be admitted when relevant to the matter at issue. For example, if a defendant upon a motion to dismiss a prosecution on some ground were able to admit certain statements made in aborted plea discussions in his favor, then other relevant statements made in the same plea discussions should be admissible against the defendant in the interest of determining the truth of the matter at issue."
So, what is the relevance of this to Federal Rule of Evidence 106? Well, the next line of the Advisory Committee's Note indicates that "[t]he language of the amendment follows closely that in Fed.R.Evid. 106, as the considerations involved are very similar." Ergo, if the exception to Federal Rule of Evidence 410 allows for the admission of otherwise inadmissible evidence when certain evidence relating to a plea or plea discussions is admitted, Federal Rule of Evidence 106 should also allow for the admission of otherwise admissible evidence (such as redacted portions of recordings) when part of a recording/document/etc. is introduced.
Saturday, May 17, 2008
A Surveillance Photo Can Tell You A Lot...About The Photographer: Case Reaveals That New Jersey Has A "Surveillance Location Privilege"
The recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Bell, 2008 WL 2020174 (N.J.Super. A.D. 2008), reveals that New Jersey has a "surveillance location privilege." In Bell, Keith Bell appealed from his convictions for third-degree possession of heroin, third-degree possession of heroin with intent to distribute, and third-degree possession of heroin with intent to distribute within 1000 feet of a school zone. Bell was charged with these crimes after he was apprehended when police surveillance observed him engaging in a suspected drug transaction. Officer Carlos Lugo was the sole surveillance officer, and he testified at trial that he was within 50 yards of where the alleged drug transaction occurred and had high-powered binoculars. Defense counsel sought to question Lugo about his exact surveillance vantage point and whether he was conducting surveillance from a vehicle or from a house. The prosecution objected to these questions based upon citizen safety concerns, and the trial judge sustained the objections.
After Bell was convicted, he appealed to the Appellate Division, claiming, inter alia, "that the trial court's failure to disclose the officer's exact surveillance location, and its subsequent restriction on defense counsel's ability to cross-examine on that subject, violated his Sixth Amendment right to confrontation." The Appellate Division noted, however, that New Jersey's rules of evidence recognize a "surveillance location privilege" that permits the State, in appropriate circumstances, to conceal information about the location from which law-enforcement personnel observed alleged criminal activities. It further noted that "[t]his privilege is grounded on the notion that 'in certain instances, a defendant's right to gain access to information not vital to the defense must yield to society's interests in effective law enforcement and in encouraging citizens to cooperate with the police.'" The Appellate Division then found that this privilege applied in Bell's case because there were numerous citizen complaints of drug trafficking in the area where Bell was arrested, the State did disclose significant information concerning Lugo's location, and there was substantial corroboration of Lugo's observations.
This is the first that I have heard of such a privilege, but it appears that at least a few other states, such as Illinois, have a similar privilege. See, e.g., People v. Bell, 86 N.E.2d 807, 815 (Ill.App. 1 Dist. 2007). It seems to me, though, that the privilege is very similar to more widespread privileges, such as the state secrets privilege, and thus that states with these existing privileges should adopt a "surveillance location privilege." After all, as Michael Weston said in "Burn Notice," a surveillance photo can tell you a lot...about the photographer. If the State has a legitimate reason to believe that disclosing the exact location from where surveillance was conducted will compromise surveillance efforts in the future, it makes sense to protect that information in the absence of a compelling need for disclosure.
Friday, May 16, 2008
Article of Interest: Professor Deirdre Smith's An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in Federal Courts
Last December, I wrote about a very interesting article by University of Maine School of Law Professor Deirdre Smith about the role of medical evidence in the ADA definition of disability. Now, Professor Smith has written another terrific piece about a topic that has always interested me: When does a patient waive the psychotherapist-patient privilege? The article, An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in Federal Courts, which will appear in a forthcoming issue of the DePaul Law Review, offers an analysis of the questions implicated by waiver of the privilege and proposes an approach to the issue of waiver which ensures that the concept of waiver does not vitiate the right entirely.
In Part II, Smith traces the rise of civil defendants seeking (and procuring) records, testimony, and other information regarding plaintiffs' current and past mental health treatment. Civil defendants always sought such information to defend issues of liability, but with the 1990 Americans with Disabilities Act and the Civil Rights Act of 1991 allowing plaintiffs to seek damages for emotional distress, defendants' arguments for access were buttressed. Consequently, it has been relatively easy for defendants to fashion and find support for superficially valid arguments in support of a need to obtain a wide range of mental health evidence.
In Part III, Smith then traces the origins of the psychotherapist-patient privilege, considering its forerunner, the physician-patient privilege, how discussion began regarding the need for a separate psychotherapist privilege in the mid-20th century, and how such a privilege was thereafter adopted in some form by all states as of 1996. She then considers the "markedly different" development of the privilege at the federal level, leading up to the 7th Circuit's opinion in Jaffee v. Redmond, which recognized a psychotherapist-patient privilege, but one which was subject to a "balancing" approach, under which the privilege would not apply where "in the interests of justice, the evidentiary need for the disclosure of a patient's counseling sessions outweighs the patient's privacy interests." The 7th Circuit wouldn't have the last word, however, as Jaffee proceeded to the Supreme Court, which formally recognized a psychotherapist-patient privilege based primarily on the instrumental rationale of promoting confidence and trust in the psychotherapist-patient relationship. The Supreme Court also replaced the 7th Circuit's "balancing" approach with an "absolute" version or the privilege, but it regrettably made no substantive mention of what circumstances would give rise to waiver of the privilege.
In Part IV, Smith reviews and critiques the post-Jaffee federal case law regarding implied waiver of the privilege. According to Smith, there are several approaches (mis)applied by federal courts in the wake of Jaffee:
-there is a split among courts, with some applying a "narrow" approach, under which the privilege is only waived by a plaintiff calling her therapist as a witness (which is consistent with the essential principles of waiver generally), but most courts applying a "broad" approach, under which a plaintiff waives the privilege merely by asserting a nonspecific claim for emotional distress;
-some courts find that there is no waiver when a plaintiff seeks damages for "garden-variety" emotional distress (a not particularly useful construct) but that there is waiver when a plaintiff seeks damages for, inter alia, a specific diagnosable medical condition;
-many courts apply privacy, fairness, and relevance rationales to waiver questions, which implicitly rejects the "absolute" version of the privilege laid out in Jaffee and ignores the purposes of privileges in general;
-there is split among courts as to what has been waived when the privilege is waived, with courts generally permitting broad discovery by defendants while offering little scrutiny of the relevance of such records;
-many courts presented with discovery requests for psychotherapy records paired with a demand for a psychological/psychiatric evaluation under FRCP 35 confuse the analysis of waiver of the psychotherapist-patient privilege and the FRCP 35 analysis; and
-many courts presented with ADA cases have been quick to conclude that asserting a claim under the ADA effectuates a waiver of the privilege with respect to a claims for emotional distress damages and/or based upon the mere fact that the plaintiff claims to have a psychological disability.
In Part V, Smith concludes that these various and sundry approaches has created an unworkable and illusory privilege. She contends that to fix this problem, "courts must shift their focus from an instrumental rationale based upon the questionable assumption that the psychotherapist-patient privilege ensures that individuals seek psychotherapy in the first place, to a more realistic and pertinent instrumental rationale, namely that of ensuring that those who have or had a mental illness or treatment are not broadly discouraged from using the courts to remedy a deprivation of their rights." Specifically, under her approach:
-the first step in the analysis would be that when defendants request mental health records, courts would make an initial determination under FRCP 26 whether such records are in fact within the scope of permissible discovery;
-if the first step is satisfied, the second step would be to determine whether the records are covered by the privilege, a determination to be made without reference to fairness and necessity;
-if the records are covered, the third step would be to consider whether the plaintiff waived the privilege, with the burden of proof being on the defendant and the court focusing solely on the actions of the privilege holder, and with, inter alia, a mere claim for emotional distress damages not constituting waiver; and
-if there is waiver, the fourth step would be to take additional measures to protect litigants and to follow the broader aims of discovery and litigation.
I asked Professor Smith what led her to write the article, and she responded,
"There are several reasons I decided to tackle the issue of implied waiver of the psychotherapist-patient privilege, some stemming from issues that arose in my practice years ago and some from the more recent research I've done in the ADA context. Although I recognize that privileges are generally disfavored in the law since they necessarily run counter to truth-seeking etc. by shielding certain information from discovery and fact-finders, I was concerned that the case law on this important question was so chaotic. The question of whether a party has impliedly waived the psychotherapist-patient privilege can arise in any federal court case in which a person is either seeking emotional distress damages or alleging discrimination on the basis of a mental disability. The courts, however, rarely consider the broader issues when ruling on motions for protective orders or motions to compel, and therefore leave many important questions unaddressed. For instance, if a waiver, as that term is generally used in legal contexts, refers to a knowing and intentional act by a person holding a right, what acts can be properly considered to effectuate an implied waiver of a right? How broad is the reach of an implied waiver? Since privileges, almost by definition, generally protect otherwise relevant information, what role do questions of relevance, fairness, privacy and truth-seeking have in determinations of a waiver of a privilege? And what impact could the "implied waiver" doctrine have on the decisions of potential civil rights/discrimination plaintiffs with mental health histories who are considering bringing actions in federal court to vindicate their rights? I consider and attempt to answer each of these questions in the article and I also suggest an alternative framework for courts to employ when facing controversies regarding the enforcement of the privilege."
Snake In A Car: Supreme Court Of Iowa Finds That Warrantless Search Behind Steering Column Was Proper
The Supreme Court of Iowa's recent opinion Iowa v. Allensworth is a strange case with a simple ruling. In Allensworth, a Polk County sheriff's deputy stopped a vehicle for speeding, and the driver, Allen Allensworth, disclosed that there was an outstanding warrant for his arrest. What Allensworth didn't have to verbalize was that there was a large snake draped around his neck. The deputy confirmed that Allensworth had an outstanding warrant for a parole violation and arrested him; he decided to defer his inventory search of Allensworth's vehicle until it was towed and impounded based upon the amount of traffic and the snake.
Approximately two hours after Allensworth's vehicle was towed and impounded, the deputy received an anonymous phone call that there were drugs in Allensworth's vehicle. The deputy and another officer subsequently conducted an inventory search of the vehicle and found a small bag of marijuana in the center console. Then, knowing that the steering column "was a known place where people hide drugs," the other officer removed the horn button on the steering column and discovered a small plastic bag containing approximately 25 grams of methamphetamine.
Allensworth was then charged with possession with intent to distribute more then 5 grams of methamphetamine and failure to possess a drug tax stamp. He then filed a pro se motion to suppress the drugs on the ground that they were seized in violation of his Fourth Amendment rights. The trial court denied the motion with regard to the marijuana, finding that it was properly seized in conjunction with a proper inventory search, but it granted the motion with regard to the methamphetamine, finding that the search of the steering column exceeded the proper scope of an inventory search. The State then appealed this ruling, with its appeal eventually reaching the Supreme Court of Iowa.
The Supreme Court of Iowa noted that an inventory search of an automobile can blossom into a full blown search under the automobile exception to the warrant requirement if probable cause is found. The Court then determined that this is exactly what happened based upon the anonymous tip and/or the discovery of marijuana in the console. The Court then rejected Allensworth's argument that after discovering the marijuana, the officers were required to obtain a search warrant before they could legally extend the search beyond the scope of the inventory. It found instead that a search pursuant to the automobile exception may be as thorough as a magistrate could authorize in a warrant, relying in part for this conclusion on the United States Supreme Court's opinion in Carroll v. United States, 267 U.S. 132, 172-73 (1925), which uphold an automobile search that included tearing open a vehicle's seat cushion to find suspected contraband.
The Supreme Court of Iowa also rejected the argument of the trial court and the defendant that the probable cause which can transform an inventory search into a search under the automobile exception must arise at the scene of the stop. It found instead that "the only exigency required to justify a warrantless search of a vehicle is the vehicle's ready mobility."
Thursday, May 15, 2008
The Essential Character: Fifth Circuit Excludes Specific Act Character Evidence In Self-Defense Case
The Fifth Circuit's recent opinion in United States v. Gulley, 2008 WL 1887305 (5th Cir. 2008), contains an important discussion of Federal Rule of Evidence 405(b), a Rule which has been the cause for much consternation. In Gulley, Arzell Gulley was charged and convicted of the murder of Daryl Brown and aiding and abetting in Brown's murder. The charges stemmed from a penitentiary fight among Gulley, Brown, and David Jackson, which left Brown dead. Brown's autopsy indicated that he had eleven knife wounds, with a single strike that pierced the upper lobe of his left lung and the pericardial sac of his aorta causing his death.
Gulley's defense at trial was self-defense, that Brown was the first aggressor. Gulley tried to prove this claim in part through admitting evidence of eight prior instances of violence committed by Brown, but the trial court excluded this evidence. After Gulley was convicted, he appealed to the Fifth Circuit.
The Fifth Circuit noted that it is well established that criminal defendants are entitled to present character evidence about a pertinent character trait of the accused (e.g., violence in a homicide case). Specifically, Federal Rule of Evidence 404(a)(2) provides in relevant part that "[i]n a criminal case...evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused" is admissible. Federal Rule of Evidence 405 then governs the methods of proof that can be used to prove the victim's character.
Under Federal Rule of Evidence 405(a), "[i]n all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion." Specific instances of conduct can only be inquired into on cross-examination and cannot be proven by extrinsic evidence. On the other hand, under Federal Rule of Evidence 405(b), "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct."
Gulley's argument on appeal was that he could introduce specific instances of Brown's violent acts under Federal Rule of Evidence 405(b) on the ground that character was an essential element at issue in this case because Brown's propensity for violence tended to indicate that he was the first aggressor. As support he cited the (pre-Federal Rules of Evidence) 1972 D.C. Circuit case, United States v. Burks, 470 F.2d 432, 434 (D.C. Cir. 1972), which held that "evidence of the deceased's violent character, including evidence of specific violent acts, is admissible where a claim of self-defense is raised."
The Fifth Circuit noted, however, that almost all courts in post-Rules cases have disagreed with the D.C. Circuit. The Fifth Circuit then agreed with this majority, finding that the plain language of Rule 405(b) limits the use of specific instances of conduct to prove essential elements of a charge or defense (such as in a defamation/libel/slander case). The Fifth Circuit found that "Brown's character was not an essential element of the self defense claim in the 'strict sense' because a self defense claim may be proven regardless of whether the victim has a violent or passive character." I think that the reasoning employed by the Fifth Circuit makes sense and thus agree with the majority position.
Wednesday, May 14, 2008
The Eleventh Circuit's recent opinion in United States v. Edwards, 2008 WL 1932136 (11th Cir. 2008), notes that while a party can move to have a witness excluded from the courtroom under Federal Rule of Evidence 615, a party has no constitutional right to have such a motion granted. In Edwards, the prosecution claimed that Charles E. Edwards was running a Ponzi scheme while he claimed that he was running a legitimate corporation that provided management services to payphone owners. Prior to trial, Edwards moved under Federal Rule of Evidence 615 for the district court to sequester all potential prosecution witnesses, including those witnesses who purported to be the victims in the case. Rule 615 provides that: "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present."
The district court denied Edwards' motion under the fourth listed exception because he sought to exclude witnesses who purported to be victims. Pursuant to the Crime Victims' Rights Act (CVRA), 18 U.S.C. Section 3771(a)(3), a crime victim has "[t]he right not to be excluded from any...public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding." After Edwards was convicted, he appealed to the Eleventh Circuit.
The basis of Edwards' appeal was not that he had established by clear and convincing evidence that testimony by the victims would be materially altered but instead that Federal Rule of Evidence 615 "is constitutionally based and that the district court's invocation of the CVRA to deny his motion denied him his Fifth Amendment due process right to a fair trial and his Sixth Amendment right of confrontation." The Eleventh Circuit rejected this argument "for one simple reason: A criminal defendant has no constitutional right to exclude witnesses from the courtroom." Instead, it is within a trial court's discretion to decide whether to grant a motion for sequestration under Federal Rule of Evidence 615, and its decision will only be reversed if it abused that discretion.