EvidenceProf Blog

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

Tuesday, May 13, 2008

Article of Interest: Professor John H. Blume's The Dilemma of the Criminal Defendant with a Prior Record -- Lessons from the Wrongfully Convicted

Cornell University Law School Professor John H. Blume has written a groundbreaking new article, The Dilemma of the Criminal Defendant with a Prior Record -- Lessons from the Wrongfully Convicted.  The article, which will be published in an upcoming issue of the Journal of Empirical Legal Studies, uses data gathered from the cases of incarcerated individuals subsequently exonerated due to DNA evidence to challenge the structure and application of Rule of Evidence 609, which governs impeachment through prior convictions. 

In his introduction, Professor Blume lays out the purpose of his article by noting that (1) impeachment critics assert that Rule 609 dissuades even innocent defendants from testifying, while (2) proponents counter that modifying Rule 609 to allow less impeachment would result in a flood of perjured testimony from guilty defendants liberated from their prior misdeeds.  According to Blume, cold hard facts have been missing from this debate, and his article is an attempt to fill this empirical void by examining cases of individuals who were convicted of crimes that we now know, as a result of DNA testing, they did not commit.

In Part II, Blume begins by laying out the current legal framework governing whether and when prosecutors can introduce prior convictions against criminal defendants.  He begins by laying out the less controversial and more entrenched anti-propensity rule contained in Federal Rule of Evidence 404 (and state counterparts), under which evidence of a defendant's bad character is inadmissible to prove that the defendant has a propensity to act in a certain manner (e.g., violently) and that he likely acted in conformity with that propensity at the time of an alleged crime.  At the same time, Federal Rule of Evidence 609 allows for prosecutors to impeach criminal defendants through relatively recent (1) prior convictions for crimes of "dishonesty or false statement" without regard to Federal Rule of Evidence 403 and (2) prior felony convictions not involving "dishonesty or false statement" as long as their probative value outweighs their prejudicial effect.  According to Blume, despite the fear that these convictions will impermissibly be used as propensity evidence, they are almost always admitted for impeachment purposes because courts find a wide variety of crimes involve "dishonesty and false statement" and because the probative value/prejudicial effect balance is routinely struck in favor of impeachment.  Such rulings deter criminal defendants with prior criminal records from testifying, but the unanswered question is whether it merely deters "guilty" defendants from testifying.

In Part III, Blume goes a long way toward answering that question by reviewing case summaries maintained by the Innocence Project.  From these summaries, Blume was able to determine whether 119 criminal defendants who were convicted but subsequently exonerated through DNA evidence testified at their trials.  Here are his results, compared against the baseline of the approximately 50% of all criminal defendants who testify at their trials:

     -61% of the wrongfully convicted testified at their trials while 39% did not;

     -of the wrongfully convicted defendants who testified, 43% had criminal records, with judges permitting every single one of these defendants to be impeached through their prior convictions;

     -of the wrongfully convicted defendants who failed to testify, 91% had prior convictions, with almost all of their attorneys indicating that avoiding impeachment was the principal reason why the defendant did not take the stand; and

     -in the few jurisdictions where impeachment with prior convictions is not permitted, all of the wrongfully convicted defendants testified.

Based upon this data, Blume concludes that "many demonstrably innocent defendants did not testify at trial because, had they done so, they would have been impeached with their prior convictions" and that this data "reveals the shortcomings of the current regulatory system, which gives courts discretion in most cases to allow or preclude impeachment."

In Part IV, Blume argues that these shortcomings can be cured through his proposal, under which the prosecution would not be allowed to impeach a criminal defendant's testimony through convictions unless "(1) the defendant has been previously convicted of perjury and the court determines that the probative value of permitting impeachment outweighs the prejudice to the accused; or (2) the defendant 'opens the door' by offering evidence of his character for truthfulness."  Blume lays out three arguments in support of limiting convictions-based impeachment in this manner:  (1) threatening a criminal defendant with the introduction of his prior record contributes to wrongful convictions; (2) there is no reason to believe that precluding impeachment will lead jurors to place too much weight on a defendant's testimony; and (3) except where the defendant has been previously convicted of perjury, there is no reason to believe that individuals with a prior record are more likely to lie under oath than defendants without prior records.

I asked Professor Blume about what led him to write the article, and he responded:

"Thank you for your interest in the article.  In much of my work, I try (with varying degrees of success) to challenge the "conventional wisdom."  I also think, as do many others, that the DNA exoneration cases are a very valuable data set which we can use to study the criminal justice system, and formulate ways to improve its accuracy.  I have always been interested in the issue of impeachment, and whether in fact the threat of impeachment with prior convictions kept actually innocent defendants from testifying at trial.  So, when an adequate number of exoneration cases were available to study, I decided to determine whether innocent defendants testified at any higher rates than criminal defendants in general, and, if not, why not.  So, that was the genesis of the project.  Much of my prior work, empirical and doctrinal, has been in the criminal procedure area, particularly capital punishment.  But, with this piece and another recent article ("Every Juror wants a Story:  Narrative Relevance, Third Party Guilt and the Right to Present a Defense") I have started to work more in the Evidence field and I have found it very rewarding."


May 13, 2008 | Permalink | Comments (1) | TrackBack (0)

Secret Indictment: Ninth Circuit Case Reveals Indictment Can't Be Used For Rule 609 Impeachment

The Ninth Circuit's recent opinion in In re Olson, 2008 WL 1932014 (9th CIr. 2008), contains an important discussion of when evidence of a prior crime can (and cannot) be used to impeach a witness pursuant to Federal Rule of Evidence 609 and state counterparts.  In Olson, Roy Olson appealed pro se from a decision of the Bankruptcy Appellate Panel affirming the bankruptcy court's order granting appellees retroactive relief from an automatic stay in order to validate a state court judgment entered after the bankruptcy order.

One basis for Olson's appeal was that the bankruptcy court impermissibly precluded him from impeaching a witness against him with evidence that the witness was indicted for bankruptcy fraud.  The Ninth Circuit correctly rejected this argument, noting that Federal Rule of Evidence 609 only permits a witness to be impeached through evidence that he "has been convicted of a crime;" evidence that a witness has merely been indicted for an alleged crime is not admissible under Rule 609.

The Olson case is important because I have seen many students get confused between the rules regarding character evidence and the rules regarding convictoon-based impeachment.  Under Federal Rule of Evidence 404(b) (and state counterparts), evidence that a party/witness committed a crime is admissible to prove, inter alia, knowledge, plan, or identity, regardless of whether the party/witness was charged or convicted of that crime.  So, let's say that a defendant, Dennis, is on trial for breaking into a safe and stealing $100,000.  Part of Dennis' defense at trial is that he would have no idea how to break into a safe.  The prosecution, however, has a witness who will testify that he is aware of a prior safe robbery committed by Dennis.  Even if Dennis were never charged/convicted with this prior crime, the witness' testimony is admissible to prove knowledge (that Dennis knew how to break into a safe) as long as the judge finds that a reasonable jury could find that Dennis committed the prior crime by a preponderance of the evidence pursuant to Federal Rule of Evidence 104(b).

Conversely, as noted in the Olson opinion, prior crimes of a witness can only be used to impeach that witness if he was actually convicted of the prior crime.


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

Monday, May 12, 2008

England's All Ears: The Varying Treatment of Ear Print Evidence in the U.K. And The U.S.

Last week's episode of Supernatural had the Winchester boys once again pitted against their arch nemesis, Bela.  Despite their crack detective skills, they were never able to determine Bela's actual identity, but retired hunter Rufus Turner was more successful.  He informs the quiptastic Dean that while Bela burned off her fingerprints, he was able to identify Bela through her ear print, a technique which is big in England.  And you know what?  The show's done its research.  Like low copy number DNA, ear print evidence appears to be something that is widely accepted in the U.K. but which courts on this side of the pond have determined is inadmissible.  As an article in the Journal of Forensic Sciences notes, the use of ear prints or "earmarks" as evidence in criminal trials in the U.K. is expanding, despite a dearth of peer-reviewed scientific publications supporting their reliability.

Meanwhile, courts in the U.S. have rejected ear print evidence, with the essential case being State v. Kunze, 988 P.2d 977 (Wash.App. Div. 2 1999).  In Kunze, David Wayne Kuze appealed his convictions for aggravated murder and other crimes, which were based upon the following facts:

An intruder entered the Washington home of James McCann; the intruder bludgeoned McCann in his head, causing his death and bludgeoned McCann's son Tyler in the head, causing a fractured skullTyler later told the police that he had been afraid to look at his attacker closely but that he thought that the intruder was a darkly complected male, possibly Puerto Rican, 25 to 30 years of age, who was wearing gloves but not glasses.  Kunze was in his mid-forties, wore glasses, and had reddish-blond hair.

George Millar, a fingerprint technician with the Washington State Crime Laboratory, processed McCann's home for evidence and discovered a partial latent earprint on the hallway-side surface of McCann's bedroom door.  He "dusted" the print by applying black fingerprint powder with a fiberglass brush and "lifted" the print by applying palm-print tape first to the door and then to a palm-print card. The resulting print showed the antitragus and portions of the tragus, helix, helix rim, and antihelix.

Notwithstanding Tyler's description of the intruder, the police were immediately interested in Kunze, because Kunze had been married to Diana James from 1976 to April 1994, and on December 12, 1994, four days before the intruder entered McCann's home, James told Kunze that she and McCann were planning to be married, which upset Kunze.  The police interviewed Kunze several times and searched his belongings, but the searches did not disclose anything significant.

Meanwhile, Michael Grubb, a criminologist with the Washington State Crime Laboratory, compared the latent print from McCann's bedroom door with photos of the left side of Kunze's face and concluded that the latent print "could have been made by Dave Kunze."  He also thought that "[i]t may be possible to obtain additional information by comparing the [latent print] to exemplar impressions."  Millar and Grubb later met with Kunze to obtain earprint exemplars. For each of the seven exemplars they took, they had Kunze put hand lotion on his ear and press the ear against a glass surface with a different degree of pressure. They then dusted the glass with fingerprint powder and used palm-print tape to transfer the resulting impression onto a transparent plastic overlay. Based upon this process, Grubb concluded that "David Kunze is a likely source for the earprint and cheekprint which were lifted from the outside of the bedroom door at the homicide scene."

The trial court then held a Frye hearing to determine whether such ear print evidence was generally accepted in the relevant scientific community (forensic science), making it admissible expert evidence.  At the hearing, numerous forensic scientists presented testimony about ear print evidence (their testimony is summarized in the opinion), which led the trial court to determine that it was generally accepted and thus admissible.  After Kunze was convicted, he appealed, and the Court of Appeals of Washington agreed with him

It found that 12 out of the 14 forensic scientists who testified at the Frye hearing "stated or implied that latent earprint identification is not generally accepted in the forensic science community."  The only two dissenters were Grubb and Dutch policeman named Cor Van der Lug, whom the court found did not even explicitly say that ear print evidence was generally accepted in the forensic science community. The appellate court thus found the ear print evidence inadmissible, and I have not been able to find a subsequent U.S. case where such evidence has been deemed admissible.

It's important to note that while U.S. courts thus don't allow such latent ear print testimony, other evidence about ear prints.  As the appellate court noted,

      "Nothing in our holding bars testimony at retrial concerning visible similarities and differences between the latent print and the exemplars. This type of comparison-an 'eyeballing' of readily discernable similarities and differences-is based on 'visual techniques' that 'present jury questions,' or, in alternative terms, on personal knowledge that can readily be understood and evaluated by the jury.  Thus, it need not be supported by a showing of general acceptance."


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

Go Speed Go!: North Carolina Allows Accident Reconstructionists To Opine About The Speed Of Vehicles

An opinion from late last year indicates that North Carolina has recently changed its tune with regard to the permissibility of accident reconstructionists opining about the speed of a vehicle.  Back in 1960, the Supreme Court of North Carolina rendered an opinion in Shaw v. Sylvester, 116 S.E.2d 351 (N.C. 1960), in which it concluded, inter alia, that

     "one who does not see a vehicle in motion is not permitted to give an opinion as to its speed. A witness who investigates but does not see a wreck may describe to the jury the signs, marks, and conditions he found at the scene, including damage to the vehicle involved. From these, however, he cannot give an opinion as to its speed. The jury is just as well qualified as the witness to determine what inferences the facts will permit or require."

As the North Carolina Court of Appeals' opinion in State v. Hazelwood, 652 S.E.2d 63 (N.C. App. 2007), makes clear, however, in 2006 the North Carolina General Assembly enacted N.C. Gen.Stat. Section 8C-1, Rule 702-i, which ovverruled Shaw and allowed "[a] witness qualified as an expert in accident reconstruction...[to] give an opinion as to the speed of a vehicle even if the witness did not observe the vehicle moving."  I think that North Carolina's change in course makes sense, and its decision appears consistent with the decisions of other states across the country. See, e.g., Bryant v. Buerman, 739 So.2d 710, 712-13 ((Fla.App. 4 Dist. 1999) ("An opinion of an accident reconstruction expert witness regarding the speed of a vehicle at the time of an accident is admissible, so long as the expert's testimony is helpful to the jury."). 


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

Sunday, May 11, 2008

I Do Not Think It Means What You Think It Means: Mississippi Court Misuses Harmless Error Doctrine In Mother's Day Related Case

The Court of Appeals of Mississippi's recent opinion in O'Neal v. State, 977 So.2d 1252 (Miss.App. 2008), stretches the meaning of the term "harmless error."  In O'Neal, Shawn Gavin O'Neal and Mary Landry were involved in a romantic relationship and lived together in the same household along with Landry's teenage son, Nicholas.  In August 2004, the three were having a cookout at their home; Nicholas eventually left the house, which left O'Neal and Landry alone together.  According to Landry's testimony at trial, she was afraid of being alone with O'Neal, so she decided to leave, but as she was pulling her car out of the garage, O'Neal reached into the car to pull the keys out of the ignition.  Landry claimed that O'Neal grabbed her hair and pulled her out of the car; as she resisted, he kicked her in the leg with his steel-toed boots and stomped on her back and side before she passed out from the pain.

Paramedics later arrived, and as they were attending to Landry, O'Neal told an investigator from the sheriff's department that he was trying to keep Landry from driving while intoxicated. He said that while he was trying to get her out of the car, their dog got in the way, and he tried to kick the dog, but he kicked Landry instead.  At trial, O'Neal testified that as he was helping Landry out of the car, he lost his balance, and they both fell over. A responding officer testified at trial that Landry was in a great deal of pain. Landry was later diagnosed with a broken femur.

At trial, Nicholas testified that O'Neal told him two different versions of what happened. Nicholas claimed that O'Neal called him to tell him to come home because his mother had tripped over the dog and injured her leg. Nicholas claimed, however, that after he arrived at the house, O'Neal told him that, as Landry was trying to get out of the car, the dog got in her way, and O'Neal tried to kick the dog, but he missed and kicked Landry.  Nicholas further testified that he found a necklace that he had given to his mother for Mother's Day in the garage. The necklace was broken into pieces with a lock of hair stuck to it.  Nicholas, however, did not turn the necklace over to the police or mention finding it; instead, he kept it until he delivered it to the district attorney just days before the trial began.

From the opinion, it appears that the only witness besides Landry, O'Neal, Nicholas, and the officer who gave relevant testimony was Dr. Barbieri, the orthopedic surgeon who repaired Landry's broken femur. He stated that the type of break that Landry sustained was usually the result of a high-energy force like a fall from a great height or a car accident, not the result of a simple fall.  Photographs of O'Neal's bruises were also introduced at trial  After O'Neal was convicted of aggravated domestic violence he raised two evidentiary arguments on appeal.

The first argument was that the court erred by allowing testimony about the necklace, which was not produced until days before trial.  The Court of Appeals of Mississippi doubted that the trial court committed error and further found that "testimony about the broken necklace was cumulative evidence of Landry's testimony that she was violently removed from the car by her hair and thrown onto the garage floor by O'Neal. Thus, any error created by the admission of the necklace was harmless in nature."

The second argument was that Dr. Barbieri was not classified as an expert witness an yet rendered expert opinion testimony regarding causation.  The Court of Appeals of Mississippi agreed with O'Neal but found that the admission of Dr. Barbieri's testimony was harmless error because "[e]ven without Dr. Barbieri's testimony as to causation, there was sufficient evidence submitted to the jury to establish the crime of aggravated domestic violence. Landry testified that O'Neal forced her out of her car, threw her down on the garage floor, and kicked and stomped on her leg and back. Photographs that show the bruises on her body, which were consistent with her testimony, were admitted into evidence. The officer who arrived on the scene testified that Landry was in a great deal of pain from the injury."

In other words, the only evidence of O'Neal's guilt was Landry's testimony.  The photographs showing bruises on Landry's body were consistent with her story, but they were also ostensibly consistent with O'Neal's story at trial that Landry and he fell over while he was helping her out of the car.  This is where Dr. Barbieri's testimony about the injuries being caused high energy force rather than a simple fall was necessary.  Similarly, the officer's testimony that Landry was in a great deal of pain was consistent with either O'Neal's story or Landry's story. This is where the testimony about hair in the necklace was necessary to corroborate Landry's claim that O'Neal grabbed her by the hair.

Now, certainly, Landry's testimony was more credible than O'Neal's story based upon the fact that O'Neal apparently told a few people slightly different accounts of what happened; however, I simply don't see how the Court of Appeals of Mississippi could have found that the admission of the only testimony corroborating Landry's testimony was "harmless error."


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

Saturday, May 10, 2008

Forfeit Victory, Take 6: Another Example To Reject The Dying Declaration Argument

Previously, I wrote about the erroneous argument raised in oral arguments in Giles v. California about how reading a specific intent requirement out of the forfeiture by wrongdoing doctrine would swallow up and render useless the dying declaration.  As I noted in that post, there is at least one situation where the dying declaration exception would apply but a forfeiture by wrongdoing exception without a specific intent requirement would not.  Well, a question by a student regarding my upcoming Evidence exam has raised another clear example.  That question was whether the dying declaration exception can apply even if the declarant doesn't die.  The answer is that the exception can still apply, at least in a civil case.

Let's say that the defendant, Dan, is alleged to have violently attacked the victim, Victoria.  Victoria is seriously injured by the attack and thinks that she is on the verge of death (maybe an EMT even tells her that it doesn't look like she is going to make it).  She informs a bystander or medical services provider that Dan or someone with his physical characteristics attacked her.  Despite Victoria thinking that she was going to die, a doctor is able to perform his magic, and Victoria makes it. 

A civil suit is filed by Victoria and/or her family against Dan, but Victoria is "unavailable" to testify at trial as defined under Federal Rule of Evidence 804(a) and state counterparts, with her unavailability not being caused by the assault.  Maybe, for instance, she is later in a car accident and dies (Rule 804(a)(4)), or maybe she is senile and can no longer remember what happened (Rule 804(a)(3)). 

In such a case, the forfeiture by wrongdoing doctrine, even without a specific intent requirement, would not apply because even if there were strong evidence that it was Dan who attacked Victoria, Dan would not have caused her unavailability to testify at trial, a requirement for application of the doctrine.  On the other hand, the dying declaration exception under Federal Rule of Evidence 804(b)(2) (and state counterparts) states that "[i]n a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death" is admissible as an exception to the rule against hearsay as long as the declarant is "unavailable."

Here, we have a civil action and a statement made by Victoria while believing her death was imminent which concerned the cause or circumstances of what she believed to be her impending death.  While Victoria did not actually die, this fact is irrelevant; all that is needed is for the declarant to be unavailable, whether as a result of the incident prompting the dying declaration or as the result of some later event. 

Thus, as I noted before, there is absolutely no reason for the Supreme Court to find that the forfeiture by wrongdoing doctrine contains a specific intent requirement based upon the belief that ruling otherwise would render the dying declaration exception meaningless.


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

Recalculating: Tennessee Police Placed GPS Device On Jeep Of Alleged "Wooded Rapist" Without A Warrant

Tennessee authorities have apprehended Robert Jason Burdick, the man they suspect of being the "Wooded Rapist," who raped 13 women.  The method of apprehending him, however, may jeopardize their case against him.  The 38 year-old Burdick has been charged with four rapes and two attempted rapes and is suspected of committing 13 rapes between 1994 and 2008. Most of those crimes were committed in homes that were near wooded areas, leading to its perpetrator being dubbed the "Wooded Rapist." 

Burdick first became a suspect in these crimes on April 28th after police received a report of a masked man in a subdivision and an officer saw Burdick walking through the neighborhood and getting into a Jeep. The officer questioned Burdick, but he refused a search of his vehicle.  Subsequently, officers, who were conducting 24-hour surveillance of Burdick, placed a GPS tracking device on his Burdick's Jeep even though they did not have a warrant.

Using the device, the officers tracked Burdick for two days, during which they, inter alia, followed him to the restaurant Tee Gees, took silverware, a plate, and a cup he had used, and got samples of his DNA.  Police Chief Ricky Watson has said that the DNA matched evidence discovered at the "Wooded Rapist" crime scenes.

According to Watson, police did not need a warrant to place the tracking device on Burdick's vehicle. He would not say when or where the GPS unit was hidden on the Jeep, but said he it was done in a public place.  "It's absolutely legal to do it," Watson said. "You can't do it when it's on private property."  Defense attorney David Raybin, however, countered this argument by saying that the police might have jeopardized their case by using the tracking device without a warrant, which could be construed as a violation of the Fourth Amendment.  So, who is right?

Well, Watson has some support for his argument.  A defendant seeking the suppression of evidence under the Fourth Amendment must demonstrate a legitimate expectation of privacy in the place or property searched.  Several courts have held that police do not need a warrant before affixing a GPS to a person's automobile because a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. See, e.g., People v. Gant, 802 N.Y.S.2d 839, 846 (N.Y.Co.Ct. 2005).  According to these courts, there is no unwarranted intrusion with a GPS device because the same result could be achieved through police officers conducting a visual surveillance of a defendant's vehicle as it travels on the public highways. See id.

On the other hand, I agree with those arguing that a warrant is required, a position eloquently defended by the Supreme Court of Washington in State v. Jackson, 76 P.3d 217 (Wash. 2003).  In Jackson, the Court concluded:

     "We do not agree that use of the GPS devices to monitor Mr. Jackson's travels merely equates to following him on public roads where he has voluntarily exposed himself to public view.It is true that an officer standing at a distance in a lawful place may use binoculars to bring into closer view what he sees, or an officer may use a flashlight at night to see what is plainly there to be seen by day. However, when a GPS device is attached to a vehicle, law enforcement officers do not in fact follow the vehicle. Thus, unlike binoculars or a flashlight, the GPS device does not merely augment the officers' senses, but rather provides a technological substitute for traditional visual tracking. Further, the devices in this case were in place for approximately two and one-half weeks. It is unlikely that the sheriff's department could have successfully maintained uninterrupted 24-hour surveillance throughout this time by following Jackson. Even longer tracking periods might be undertaken, depending upon the circumstances of a case. We perceive a difference between the kind of uninterrupted, 24-hour a day surveillance possible through use of a GPS device, which does not depend upon whether an officer could in fact have maintained visual contact over the tracking period, and an officer's use of binoculars or a flashlight to augment his or her senses." Id. at 223 (emphasis added).

The Court went on to note that:

     "the intrusion into private affairs made possible with a GPS device is quite extensive as the information obtained can disclose a great deal about an individual's life. For example, the device can provide a detailed record of travel to doctors' offices, banks, gambling casinos, tanning salons, places of worship, political party meetings, bars, grocery stores, exercise gyms, places where children are dropped off for school, play, or day care, the upper scale restaurant and the fast food restaurant, the strip club, the opera, the baseball game, the 'wrong' side of town, the family planning clinic, the labor rally. In this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles. The GPS tracking devices record all of these travels, and thus can provide a detailed picture of one's life." Id. (emphasis added).

Furthermore, the Jackson opinion doesn't seem reliant on the public/private dichotomy invoked by Watson. See id.  Unfortunately, I have not been able to locate any Tennessee cases on point, but maybe authority supporting Watson's argument is eluding me.  What do readers think?  Should police officers be required to get a warrant before putting a GPS device on a person's automobile?

[UPDATE:  Apparently, police did not put the GPS device on Burdick's Jeep until after they collected his DNA at the restaurant]


May 10, 2008 | Permalink | Comments (3) | TrackBack (1)

Friday, May 9, 2008

Not In My Courtroom: Oklahoma Bill Requires Plaintiffs Claiming Professional Negligence To Attach Expert Affidavits

Oklahoma is trying to make it more difficult for potential plaintiffs to file lawsuits containing allegations of professional negligence.  Pursuant to House Bill 2458, a potential plaintiff in a civil lawsuit for professional negligence (most often medical malpractice) must attach to his petition an expert affidavit attesting that a "reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant … constituted professional negligence."  The affidavit must specifically indicate that the plaintiff has consulted a qualified expert who has reviewed the available records and other facts, and that the qualified expert has provided a written opinion stating that the facts support a finding that the defendant was professionally negligent

The bill would provide for dismissal of the suit without prejudice if the affidavit is not attached and states that the affidavit would not be admissible in court.  Ostensibly, the new bill is part of the state's continuing effort to prevent frivolous lawsuits from wasting court resources, an effort which was started back in 2004 when similar legislation only applying to medical malpractice was enacted (and was subsequently thrown out by the state supreme court for being too narrowly tailored).  This new bill, however, covers all kinds of professional negligence and thus presumably covers, inter alia, attorney malpractice.

Now, some of you may be wondering why this new sine qua non of a professional negligence lawsuit -- the affidavit -- is itself inadmissible according to the bill.  Well, presumably it is because, like its federal counterpart (Federal Rule of Evidence 704), 12 Okl.St.Ann. Section 2704 permits expert opinion evidence that embraces ultimate issues in a case but precludes expert opinion evidence that embraces ultimate legal conclusions.  In other words, an expert could opine that a plaintiff was injured when a doctor operated on him too soon after he had eaten (an ultimate issue in a medical malpractice case) but could not testify that the doctor's actions constituted medical malpractice (an ultimate legal conclusion). 


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

Thursday, May 8, 2008

It's What You Did To Me: Supreme Judicial Court Of Maine Vacates Assault Conviction Based Upon Improperly Excluded Character Evidence

The Supreme Judicial Court of Maine has vacated the misdemeanor assault conviction of Michael R. Laferriere in State v. Laferriere, 2008 WL 1723709 (Me. 2008), based upon the conclusion that the trial judge improperly excluded evidence of past violent acts by the victim.  In August 2006, Laferriere and the victim, his then girlfriend, engaged in a physical altercation in their shared residence. The Sheriff's Department was called, and the victim told the responding deputy sheriff that Laferriere initiated the confrontation by punching her while she was sitting on the couch. She also explained that she subsequently destroyed Laferriere's property with a knife sharpener so that Laferriere would allow her to leave.

At trial, however, the victim testified that Laferriere did not punch her until after she "went after" his property with a large knife.  Meanwhile, Laferriere testified that the victim initiated the confrontation and that he physically struggled with her in defense of himself and his property.  Laferriere then sought to testify to prior violent acts the victim allegedly committed against him in order to show the reasonableness of his fear of imminent harm, but the State objected. The trial court sustained the objection, explaining that it would not permit evidence of the victim's prior bad acts.  After Laferriere was convicted, he appealed, and his appeal eventually reached the Supreme Judicial Court of Maine.

That Court first noted that generally under Maine Rule of Evidence 404, evidence of a person's prior bad acts are inadmissible to prove that the person has a propensity to act in a certain manner and thus that they likely acted in conformity with that propensity at the time in question.  In other words, evidence of the victim's past violent acts would be inadmissible to prove that she had a propensity to be violent and thus that she likely was acting violently when Laferriere assaulted her.

The Court further noted, however, that while evidence of a victim's prior bad acts is not admissible to prove propensity/conformity, when an accused raises the defenses of self-defense or defense of property, evidence of the victim's prior bad acts which are proven to have been known to the accused before the event are admissible "for the purpose of showing his reasonable apprehension of immediate danger."  The Court thus found that the trial judge erred in precluding Laferriere's proposed testimony and concluded that "because the court disbelieved Laferriere's version of the events due, in part, to its finding that the degree of force Laferriere exercised in purported self-defense 'far exceeded what was reasonable,' we cannot say that it is highly probable that the error did not affect the outcome of the trial."  While some courts hold differently, most courts have a similar dichotomy with regard to character evidence, see, e.g., Harris v. United States, 618 A.2d 140, 144 (D.C. 1992), and I think that the majority of courts are correct, as long as limiting instructions are used.


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

Wednesday, May 7, 2008

London Calling, Take 4: New Zealand Convict Likely To Challenge Use Of Low Copy Number DNA

On three previous occasions (here, here, and here), I have written about the U.K.'s controversial use of low copy number DNA, which allows the genetic profiles of suspects, victims or witnesses to be "uncovered" even when there is only a tiny amount of biological material present, sometimes as small as a millionth of the size of a grain of salt).  The U.K. first suspended use of low copy number DNA, but then controversially reinstated its use based upon a (politically motivated?) report finding it to be scientifically valid.  That decision was controversial because low copy number DNA has been consistently doubted in the scientific community, leading to it only being used in the U.K., the Netherlands, and New Zealand.

Well, in the wake of the U.K. experience, it looks as if New Zealand is primed to hear a challenge to its use of low copy number DNA.  Last August, Michael Scott Wallace was found guilty of the murder of German tourist Birgit Brauer in September 2005.  Allegedly, on September 20, 2005, Wallace picked up the 28 year-old Brauer as she was hitchhiking and then drove her to Lucy's Gully, where he bludgeoned her with a metal bar and dragged her bleeding body into the bush.  According to the State, Wallace then stamped on Brauer's neck and unbuttoned her jeans with sexual intent, but was spooked by a passing car and plunged a knife through Brauer's heart.  Brauer's body was later found by a jogger who saw drag marks leading into the bush.

Among other evidence, there was a small amount of biological material found on a metal bar linked to Wallace's vehicle, which forensic scientists determined likely belonged to Brauer based upon the use of low copy number DNA.  Wallace's lawyers now plan to appeal his guilty verdict, using the U.K.'s recent history with low copy number DNA to argue that this evidence should have been inadmissible at trial.  Based upon the paucity of countries using low copy number DNA and the troubles that have arisen with its use, I think that they have a very good argument. 


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

Tuesday, May 6, 2008

The Force Is Not Strong With This One: Judge Denies Motion To Suppress Grand Jury Testimony

Bradley Smith of Modesto, California, who is charged with making racist threats -- including a promise to burn a cross on a black man's lawn -- may not testify in his upcoming trial; nonetheless, the prosecutor will be allowed to introduce a transcript of incriminatory testimony that Smith gave to a grand jury last year, pursuant to a pre-trial ruling by U.S. District Judge Lawrence J. O'Neill.  Smith was a neighbor of Alfred Henderson and his wife Ramona (both African-American) and allegedly:

     -made racist comments about the Hendersons over a CB radio;

     -hurled racial slurs at Alfred;

     -threatened to sexually assault Ramona; and

     -as noted, promised to burn a cross on the Henderson's lawn.

Subsequently, there was a grand jury hearing where Smith denied these allegations but did admit, inter alia, that he had an antagonistic relationship with Alfred and that he sometime adopted the aggressive persona of "Obie Won" when he talked on his citizens band radio.  When he gave this testimony, Smith was neither notified of his right to an attorney nor represented by an attorney, but he also was not charged with anything, with the grand jury not handing up an indictment against Smith until months later.  Smith now stands charged with interfering with Alfred's housing rights and making a false statement to an investigator.

Before trial, Smith's attorney moved to suppress his testimony before the grand jury on the ground that Smith was not notified of his right to an attorney.  Judge O'Neill, however, denied this motion on the ground that Smith had not been charged with any crime at the time of his grand jury testimony.  I believe that this ruling is proper because it is well established that the right to counsel does not attach until the presentment of an indictment by the grand jury. See, e.g., People v. Brown, 89 Cal.Rptr.2d 589, 601 (Cal. App. 1 Dist. 1999).


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

Monday, May 5, 2008

Mostly Harmless: New Jersey Court Finds Incorrect Admission Of Expert Testimony Was Harmless Error

The recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Schellinger, 2008 WL 1848300 (N.J. Super.A.D. 2008), contains an interesting application of the harmless error doctrine to the rules of expert evidence.  In Schellinger, the defendant Arthur Schellinger and his co-defendant Tim McGeachy were charged with possession of cocaine based upon the following facts:  On May 3, 2005, Police Officer James Armstrong was surveying an area of Atlantic City known for narcotics sales when he observed McGeachy suspiciously walking back and forth between two streets.  Shortly thereafter, Armstrong saw Schellinger approach McGeachy, whereupon they talked and walked to the corner of the street and spoke again. Schellinger then handed McGeachy an undetermined amount of money, and McGeachy entered a nearby house before later returning.  The men then went to the parking lot of a store and proceeded toward an alleyway.  Armstrong, who had followed the men, then witnessed McGeachy hand Schellinger an item that Schellinger placed in the front right pocket of his pants.

Believing that the two men had engaged in a narcotics transaction, Armstrong exited his vehicle and instructed the men to stop and place their hands where he could see them. Schellinger then reached into his pocket, removed a small clear bag and threw it to the ground, whereupon Armstrong arrested both men.  Upon searching Schellinger, Armstrong found two glass crack pipes and a copper "brillo pad."  A search of McGeachy did not reveal anything of evidentiary value; however, Armstrong did not find this unusual because he believed that McGeachy was acting as a middleman to Schellinger's drug purchaseAt trial, Armstrong was not qualified as an expert witness, but he testified to the events that transpired and explained that he had made over three-hundred arrests for drug-related crimes in that specific area, which is well known for drug sales because a drug rehabilitation clinic is located nearby. Armstrong further stated that he completed a one-month internship with the Atlantic County Prosecutor's Narcotics Strike Force, an eighty-hour course with the Drug Enforcement Agency. and an eighty-hour narcotics course run by the New Jersey Attorney General.

On appeal, Schellinger claimed, inter alia, that the court erred by permitting Armstrong to render these opinions because they went beyond the opinion of a lay witness, and yet Anderson was not qualified as an expert witness.  The court disagreed, relying upon its previous opinion in State v. Kittrell, 279 N.J.Super. 225, 235 (App. Div. 1995). finding that while the trial court erred in allowing Anderson to testify, the error was harmless because "[a]lthough Armstrong was not tendered or qualified as an expert, enough evidence was presented at trial to qualify him as an expert."

It thus seems to me that New Jersey courts have created a per se rule that whenever a trial court permits a witness to render "expert" testimony despite not being qualified as an expert witness, any error will be deemed harmless as long as the expert could have been qualified as an expert witness.  And something about that feels wrong to me, although I can't quite put it into words at this point.  Do readers have any thoughts?


May 5, 2008 | Permalink | Comments (1) | TrackBack (0)

Sunday, May 4, 2008

Nothing But The Truth: Ohio Court Finds Experts Improperly Opined On Victim's Credibility

The recent opinion of the Court of Appeals of Ohio in State v. Winterich, 2008 WL 1747433 (Ohio App. 8 Dist. 2008), illustrates how courts do not allow expert witnesses to opine on the credibility of victims (and, indeed, any witness).  In Winterich, the victim gave the following testimony:  She was the defendant's biological daughter and between the ages of five and six at the time of the incidents at issue. The first incident occurred when the victim was sleeping in bed with the defendant and her mother. When the mother fell asleep, the defendant inserted his fingers into the victim's "private," and she told defendant to stop but he refused.  The second incident occurred at the defendant's house as well, when the victim's mother was home taking a nap. The defendant inserted his fingers into the victim's “private” again, and he told her that if she told anyone he would keep doing it. The victim, however, told her aunt and her sisters anyway because it hurt "bad." 

The prosecution then called the victim's aunt and half-sister, who corroborated that the victim told them about these acts of abuse.  The prosecution also called, inter alia,

     -(1) Teriea Anderson, a social worker with the intake sex abuse unit at Children and Family Services, who testified that she interviewed the victim, the victim used her own language when reporting the abuse, seemed believable, and did not seem suggestible;

     -(2) Dr. Beth Manning, an emergency room doctor at University Hospitals, who examined the victim and made a final of "presumed sexual assault" based solely upon the victim's statements; and

     -(3)  Lauren McAliley, a nurse practitioner at Rainbow Babies and Childrens' Hospital, who examined the victim and determined that the victim had “very possibly” been sexually abused based solely upon the victim's statements.

Based upon this testimony, the defendant was convicted of rape and gross sexual imposition.  He thereafter appeals to the Court of Appeals of Ohio on the ground that these expert witnesses improperly opined on the credibility.  The Court of Appeals agreed, noting that (as in courts across the country), experts may not comment on the credibility (or lack thereof) of a party/witness.  The American proscription on this type of testimony comes from the belief that the jury is the lie detector and that experts should not be able to, in effect, tell jurors how to decide cases. 

Now, of course, this meant that Anderson's testimony that the victim's testimony "seemed believable" was improperly admitted.  But what about the testimony of Manning and McAliley, neither of whom explicitly commented on the victim's credibility?  Well, the Court noted that "[p]ermitting the introduction of an expert's opinion, which relies solely on the child's statements, is tantamount to permitting the expert to testify as to the child's veracity."  Thus, the opinions of Manning and McAliley, which were based solely on the statements of the victim, were improperly admitted as well, and the Court reversed the defendant's convictions?

So, what do readers think?  Do you agree with the decision in this case and the American proscription of expert testimony on credibility?  I recently read a compelling article which argues to the contrary, and I will be doing a post about it in the coming weeks.


May 4, 2008 | Permalink | Comments (3) | TrackBack (0)

Saturday, May 3, 2008

Age Ain't Nothing But A Number, Take 2: Judge Allows Testimony About Three-Way in R. Kelly Trial

R & B superstar R. Kelly was dealt a serious blow in his upcoming child pornography trial after a pre-trial ruling by Judge Vincent Gaughan.  As I noted in a previous post, the singer will soon go to trial to face charges stemming from allegedly taping himself having sex with a girl who may have been as young as 13 years-old at the time of the act.  During closed pre-trial hearings, the prosecutors moved to present testimony at trial by a woman who allegedly will claim that she had a three-way sexual encounter with Kelly and the allegedly underage girl shown in the video.  After hearing arguments from both sides, Gaughan ruled in favor of the prosecution and said testimony about the three-way would be admissible at trial.

While I don't have access to a transcript of the arguments because the hearings were closed, the ruling appears correct based upon one of two theories.  First, while evidence of prior bad acts is inadmissible to prove that a person has a propensity to act in a certain manner and that the person thus acted in conformity with that manner at the time of the alleged crime, evidence of prior bad acts is admissible for other purposes, such as proving identity. See, e.g., People v. Contreras, 615 N.E.2d 1261 (Ill. App. 2 Dist. 1993).  Thus, for instance, in Contreras, the Appellate Court of Illinois found that evidence that a defendant committed an incident of burglary and rape of certain victims was relevant and admissible to prove the identity of the defendant as the offender in earlier incident involving the same victims. See id.  Similarly, in the R. Kelly case, probably the biggest issue is whether R. Kelly is actually the man in the video.  The fact that R. Kelly allegedly previously had sexual relations with the same girl allegedly in the video helps to prove his identity as the man in the video, making testimony about the prior sexual relations admissible.

The second possible theory is that the evidence is admissible under 725 ILCS/115-7.3, which provides that defendants accused of crimes such as predatory criminal sexual assault of a child, aggravated criminal sexual assault, and criminal sexual assault can have evidence of the commission of similar acts introduced against them.  Now the question is whether 725 ILCS/115-7.3 applies to defendants accused of crimes of child pornography, but I have found no cases applying it to such cases (or finding that it doesn't apply to such cases).  I would guess that a court would find that 725 ILCS/115-7.3 does apply to child pornography cases, but based about the "identity" theory of admissibility mentioned above, Judge Gaughan likely didn't need to resolve this issue.


May 3, 2008 | Permalink | Comments (3) | TrackBack (1)

Friday, May 2, 2008

It's In the Bag: Massachusetts Court Finds Emergency Exception Applied To Police Search Of Handbag

The recent Court of Appeals of Massachusetts opinion in Commonwealth v. McCarthy, 2008 WL 1810291 (Mass.App.Ct. 2008), contains what I feel is a correct application of the "emergency exception" to the warrant requirement.  The facts of McCarthy were as follows:  In May, 2006, Officer McGinnis was dispatched to the “Something Different” restaurant on a report of an unconscious woman. Upon arrival, he observed Linda M. McCarthy “thrashing” about on the floor. McCarthy was slurring her words and unable to communicate effectively, but McGinnis was able to discern that the she wanted help getting up and into a chair. McGinnis called for EMTs, who arrived and were able to move McCarthy to a sitting position in a chair. McCarthy's condition slightly improved, and the EMTs told McGinnis that they believed that McCarthy was suffering from a drug overdose.  They then inquired whether McGinnis knew what McCarthy had taken, and McGinnis responded that he didn't know.

McGinnis then observed an open woman's handbag several feet from McCarthy and searched the handbag for drugs, the identity of which, if known, could assist the EMTs in treating McCarthy.  Inside the handbag, he found two marijuana cigarettes and two amber colored vials that appeared to hold cocaine.  McGinnis showed the drugs to the EMTs and seized the bag and its contents. McCarthy was then transported to the hospital by the EMTs.  After the defendant was transported to the hospital, McGinnis had the vials “field tested,” and the test confirmed that the powder was in fact cocaine.

McCarthy was thereafter charged based upon her drug possession and moved to suppress the drugs obtained from the handbag on the ground that they were obtained without a warrant.  The trial judge granted her motion, and the Commonwealth took an interlocutory appeal to the Court of Appeals of Massachusetts.

The Court noted that it was undisputed that the search of McCarthy's handbag was undertaken without probable cause, which under normal circumstances would have been considered an invalid warrantless search and seizure.  It continued, however, that there is an "emergency exception" to the warrant requirement under which a warrant is not required when the purpose of a police search/seizure is not to gather evidence of criminal activity but rather to respond to an immediate need for assistance for the protection of life or property because of an emergency.  The Court then noted that “[f]or the [emergency] exception to apply, the burden of proof is on the Commonwealth to show that the warrantless entry falls within the exception and that there were reasonable grounds for the ... police to believe (an objective standard) that an emergency existed." 

The Court found that the first requirement was fulfilled because the purpose of the search was to assist the EMTs in treating McCarthy and "not to gather evidence of criminal activity."  With regard to the second requirement, the Court found that there were "objectively reasonable grounds for McGinnis to believe that an emergency existed."  It found so because "[i]n such medical emergencies, time is of the essence, requiring swift action."  Specifically, there was no indication from the EMTs that McCarthy "was no longer in imminent and substantial danger. Despite the fact that [McCarthy] had slightly improved, at least to the point where the EMTs were able to place her in a chair, there still existed a real emergency that required immediate assistance for the protection of the [McCarthy's] life. In fact, the EMTs ultimately concluded that the situation was serious enough to warrant sending [McCarthy], by emergency transport, to the hospital for treatment."   


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

Thursday, May 1, 2008

Hawkeye Appeal: Iowa Court of Appeals Affirms Conviction In Baby Shaking Case

The conviction of Edwin Paredes for child endangerment resulting in serious injury has been upheld by the Iowa Court of Appeals in State v. Paredes.  Paredes and his sixteen year-old  girlfriend, Cassidy, were the parents of J.M.  When J.M. was two months old, her parents noticed that the child was "twitching."  Paramedics later determined that J.M. was having a seizure, and he was taken to a hospital emergency room.  There, a pediatric intensive care physician diagnosed J.M. with "[s]haken baby syndrome, inflicted trauma."  The physician predicted that the baby would have a very strong chance to be deaf, blind, and have significant motor delay if he was able to walk again as well as having continued problems with seizures later.

The hospital thereafter notified the Department of Human Services, and Edwin eventually confessed to shaking J.M., and he later affirmed his confession, albeit with some equivocation.  Meanwhile, Cassidy contacted a Department social worker and stated that Edwin was not responsible for the child's injuries.  She also stated that she was afraid that she might go to prison when she was eighteen if she said that she shook the baby.  The social worker thereafter memorialized the conversation in an e-mail and transmitted it to a detective at the local police department.

Edwin was thereafter charged with child endangerment resulting in serious injury and attempted to introduce evidence about Cassidy's statements to the social worker.  The trial court, however, found these statements were inadmissible hearsay which were not covered by the statement against interest exception to the rule against hearsay.  On appeal, Edwin argued that the trial court improperly excluded evidence about Cassidy's statements.

The Iowa Court of Appeals noted that for Iowa Rule of Evidence 5.804b(3), the statement against interest exception, to apply, Edwin first had to establish that Cassidy was "unavailable" under Iowa Rule of Evidence 5.804a(1)-(5). The court noted that the only potentially applicable under which Cassidy could have been considered "unavailable" was Iowa Rule of Evidence 5-804(a)(5) under which a declarant is unavailable if she "[i]s absent from the trial or hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means."  The court then found that Edwin did not satisfy this test.

It noted that after J.M.'s condition came to light, Cassidy, a minor, was placed in foster care.  Edwin then moved to compel the State to provide him with Cassidy's address.  The trial court then ordered the State to make Cassidy available to receive a subpoena, and Edwin subpoeanaed her for his original trial.  That trial, however, was rescheduled, and the Iowa Court of Appeals noted that there was no indication that Edwin attempted to subpoena Cassidy again before this second trial.  Thus, the court found that Edwin failed to establish that he took reasonable means to procure Cassidy's attendance.

It seems to me that the court held Edwin to an excessively high standard, which seems confirmed by the dissenting opinion.  According to the dissenting judge, the trial judge actually found Cassidy "unavailable" and excluded evidence of her statement because it failed to meet the requirements of the statement against interest exception, not because Edwin failed to prove that she was unavailable.  The majority opinion never explained why it went against this ruling, and without such a ruling, the majority opinion seems lacking.


May 1, 2008 | Permalink | Comments (0) | TrackBack (0)