Sunday, August 31, 2008
Recalculating, Take 3: NY Times Publishes Story About Warrantless GPS Tracking Which Cites Terrific Law Review Article
I've written a couple of posts (here and here) addressing whether police are required to obtain a search warrant before attaching a GPS device to a suspect's vehicle. In those posts, I agreed with a couple of judges who found that a warrant was required. Specifically, in State v. Jackson, 76 P.3d 217 (Wash. 2003), the Supreme Court of Washington noted, inter alia, that it perceived
"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...[T]he 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."
Meanwhile, in his dissenting opinion in People v. Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), Justice Stein stated that
"Specifically, I would reject the 'premise...that information legitimately available through one means may be obtained through any other means without engaging in a search....' Instead, I would adopt the principle that 'a privacy interest...is an interest in freedom from particular forms of scrutiny'...and would find that '[a]ny device that enables the police quickly to locate a person or object anywhere ... day or night, over a period of several days, is a significant limitation on freedom from scrutiny'...and upon a person's reasonable expectation of privacy, even if it occurs in a place where an expectation of privacy would not be considered reasonable under other circumstances. Stated otherwise, while the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause."
Well, The New York Times has an article on the issue, "Police Using G.P.S. Units as Evidence in Crimes." The article mentions a few more cases where police have used G.P.S. devices to track defendants and cites to a terrific article I hadn't noticed before. That article is Tied Up in Knotts?: GPS Technology and the Fourth Amendment, published by University of Maryland School of Law Professor Renee Hutchins in the UCLA Law Review. In the article, Hutchins argues that GPS-enhanced surveillance should be deemed a search within the meaning of the Fourth Amendment and, as such, must be preauthorized by a warrant supported by probable cause. I would highly recommend it to anyone with an interest in this area of the law.
(Hat tip to reader Paula Gordon)
Deal Or No Deal?: Supreme Court Of Vermont Finds That Statements Made During Plea Discussions Are Inadmissible To Impeach
In my mind, the recent opinion of the Supreme Court of Vermont in State v. Amidon, 2008 WL 3982509 (Vt. 2008), clearly reached the correct conclusion in finding that statements made during plea discussions are not admissible to impeach a defendant at trial (barring a Mezzanatto waiver). In Amidon, Seth Amidon was charged with sexual assault for having nonconsensual sexual intercourse with the alleged victim in July 2006 at her apartment in Bennington, Vermont. The alleged victim and Amidon were friends who regularly had sexual intercourse with one another, and, at the time of his arrest, Amidon admitted having sexual intercourse with the alleged victim on the date in question, but claimed that the sex was consensual.
Amidon thereafter entered a plea of not guilty at his arraignment but subsequently reached a plea agreement with the State. After engaging in a full colloquy with Amdion, the trial court accepted his plea and ordered that a Presentence Investigation (PSI) report be conducted, reserving its decision as to whether to accept the sentencing recommendation until after reviewing the report. In the course of conducting the PSI, an officer conducted a taped interview of Amidon, and when he asked him about what happened on the date of the alleged incident, Amidon replied, "I...started kissing her and stuff like that. One thing led to another and she basically told me that she did not want to have sex with me. I never physically harmed her or nothing like that. She just kept telling me no, she didn't want to have sex with me. I didn't take no for an answer. That's how it ended up...."
The trial court declined to accept the recommended sentence, and Amidon was allowed to withdraw his guilty plea. Before the case went to trial, the State notified defense counsel of its intention to use this statement in its case-in-chief as well as to impeach defendant should he take the stand and testify that the victim consented to the sexual intercourse. The trial court approved the former use, finding that
"'if the defendant were to testify and during direct examination specifically contradict[ ] such statements and such statements bear directly on the elements of the charged offense.' The court further opined that '[the] statements would certainly seem to be impeaching evidence for [defendant] to testify that it was consensual.'"
Amidon thereafter chose not to testify at trial, and after he was convicted, he appealed, contending that the trial court's evidentiary ruling was in error. The Supreme Court noted that it was faced with two issues on appeal. The first was whether the record was insufficient for appellate review. You see, in its 1984 opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that appellate review of a trial court's decision to allow the prosecution to impeach a defendant through evidence of his prior felony conviction under Federal Rule of Evidence 609(a)(1) was unavailable because the defendant chose not to testify at trial.
The Supreme Court of Vermont noted that it had "thus far neither expressly adopted nor rejected Luce, at least in the context of the preservation of non-constitutional claims" and then "decline[d] to adopt the rule of Luce as governing the issue in th[e] case" before it. Its main reason for doing so was that it found that it sat "in review not of a trial court's discretionary decision on a subtle evidentiary question requiring the careful fact-specific weighing of probative value verses prejudicial effect, but of a purely legal question as to whether a particular ruling is permissible generally under statutory and constitutional guarantees."
I strongly agree with this conclusion because I have just written an article on Rule 609(a)(1), which does indeed force a court to make subtle, discretionary (arbitrary?) decisions, and I have also written an article on the rule implicated by the Amidon case, Rule 410, which makes it absolutely clear whether statements made during plea discussions are admissible to impeach a defendant at trial. See Colin Miller, "Caveat Prosecutor," 32 New Eng. J. On Crim. & CIv. Confinement 209 (2006).
This leads to the second issue faced by the Supreme Court of Vermont, which was whether Amidon's statement was admissible to impeach him at trial. It noted that the issue was governed by Vermont Rule of Evidence 410 (and Vermont Rule of Evidence 11(e)(5)), which states, inter alia, that "except as otherwise provided in this rule, evidence of the following is not...admissible against the defendant...who...was a participant in the plea discussions:...any statement made in the course of proceedings under Rule 11 of the Vermont Rules of Criminal Procedure."
The court noted that "the Reporter's Notes to the 1977 amendment to V.R.Cr.P. 11, 'makes clear the uniformity of the Vermont and Federal rules on this important question of admissibility.'" The court then noted that the
"legislative history of the 1975 amendments to F.R.Cr.P. 11 and F.R.E. 410 provides 'unusually clear' guidance as to whether statements made in connection with plea proceedings were intended to be used for impeachment purposes....[T]hat history shows that while crafting the 1975 amendments to F.R.Cr.P. 11 and F.R.E. 410, Congress debated whether statements made in the course of plea proceedings should be available for later admission to impeach a defendant....The Senate sought to specifically permit such use, while the House opposed the exception....The House view prevailed."
The Supreme Court of Vermont thus correctly viewed "this legislative history as conclusively demonstrative of Congress' intent to prohibit the use of statements falling under the general protection of F.R.Cr.P. 11 and F.R.E. 410 for impeachment," found that the trial court erred, and thus reversed and remanded.
Saturday, August 30, 2008
She's A Femme Fatale: Ninth Circuit Finds Federal Rule of Civil Procedure 32(a)(4)(B) Allows For Admission Of Deposition Testimony In Life Insurance Murder Case
The Ninth Circuit's recent opinion in Nationwide Life Ins. Co. v. Richards makes an important point about the interplay between the Article VIII of the Federal Rules of Evidence and Federal Rule of Civil Procedure 32(a). In Richards, Nationwide Life Insurance Company brought a non-statutory interpleader action to resolve conflicting claims to the proceeds of a one million dollar insurance policy written on the life of Bryan Richards, who was murdered in December 2001. The district court entered a judgment against Bryan's wife and in favor of Bryan's brother, Keith, in his role as guardian ad litem for Bryce and Kendall Richards, the two minor children of Bryan and Angelina. Why did it do so?
Well, it determined that Angelina did conspire in, aid, and abet Bryan's murder, and thus was disqualified from receiving any proceeds from the policy. Instrumental in that finding was the deposition testimony of Gerald Strebendt, a former Marine sniper and close personal friend of Rafiel Torre, who was convicted of Bryan's murder. In his deposition, Strebendt, who did not testify at trial, testified that, inter alia,
-he met Angelina through Torre in early September 2001 and that later the same month he witnessed Angelina and Torre get Bryan intoxicated so that the two of them could spend the evening together without Bryan's knowledge;
-Angelina told him that she and Torre were having an affair;
-he saw Angelina give Torre $10,000 in cash and that shortly afterward Torre said, "Angelina just wishes she could be rid of Bryan, she wishes he was just gone...and she's even willing to pay somebody $10,000 to do it...and she knows you [Strebendt] were a sniper in the Marines and she wanted to know if you're interested....;"
-Torre called him several times in late December and early in mid-January, stated that Bryan had been killed, and emphasized his need to see Strebendt in person;
-Torre admitted to killing Bryan but claimed that it was self-defense after Bryan accused him of having an affair with Angelina and pointed a Glock handgun at him;
-Torre asked Strebendt to provide an alibi, which Strebendt refused to do, although Strebendt did agree to keep Bryan's handgun;
-he contacted sheriff's detectives and agreed to make recorded telephone calls to Angelina;
-On December 11, 2003, Strebendt told Angelina that “[t]he gun that Rafiel gave me has been recovered,” to which Angelina responded that she did not know what Strebendt was talking about and that he had better talk to Torre;
-On December 12, 2003, Strebendt told Angelina that Torre had admitted to killing Bryan in self-defense, had given Strebendt Bryan's gun, and had told Strebendt that Angelina would pay $10,000 for someone to kill Bryan. Angelina responded: "That's ridiculous. I would never say that."
At trial, Angelina raised a hearsay objection to Strebendt's deposition testimony regarding Torre's statements but the district court found that Angelina and Torre were engaged in a conspiracy to murder Bryan and that Torre's statements as reported by Strebendt thus were admissible as non-hearsay statements of a co-conspirator under Federal Rule of Evidence 801(d)(2)(E).
On appeal, Angelina claimed, inter alia, that the trial court erred in finding that Federal Rule of Evidence 801(d)(2)(E) applied and in finding that Strebendt's deposition testimony was admissible under Federal Rule of Evidence 804(b)(1), the former testimony exception to the rule against hearsay. That exception requires that the declarant be "unavailable" to testify at trial, and Angelina correctly argued that Strebendt did not meet any of the definitions of unavailability listed in Federal Rules of Evidence 804(a)(1)-(5).
The Ninth Circuit, however, found that Strebendt's deposition testimony was admissible under Federal Rule of Civil Procedure 32(a)(4)(B), which states that "[a] party may use for any purpose the deposition of a witness, whether or not a party, if the court finds...that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition." The Ninth Circuit correctly noted that under Federal Rule of Evidence 802, "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Thus, because Federal Rule of Civil Procedure 32(a)(4)(B) is one of these "other rules," Strebendt's deposition testimony was properly admitted.
The Ninth Circuit then found that there were sufficient facts in the record to support application of Federal Rule of Evidence 801(d)(2)(E) to Torre's statements to Strebendt. And while the Ninth Circuit did not address the issue, I will note that even Torre's statements asking Strebendt for an alibi and to take his handgun would likely qualify as statements during and in furtherance of the conspiracy to kill Bryan even though they occurred after his murder. See, e.g., United States v. Silverstein, 737 F.2d 864, 867 (10th Cir. 1984).
Friday, August 29, 2008
I'm A Soldier: Supreme Court of Missouri Finds Closing Statement Comparing Jurors To Soldiers Is Not Plain Error
According to the Supreme Court of Missouri's recent opinion in State v. McLaughlin, 2008 WL 3906355 (Mo. 2008), a prosecutor's closing statement comparing jurors to soldiers is not plain error. In McLaughlin, the jury found Scott A. McLaughlin guilty of first-degree murder, forcible rape, and armed criminal action based on the first-degree murder in connection with the rape and murder of his ex-girlfriend. The jury, however, deadlocked on the final step of the punishment phase, and so the question of punishment went to the trial judge, who imposed a sentence of death. McLaughlin subsequently appealed, claiming, inter alia, that the jury might have imposed a lighter sentence if the prosecutor had not made prejudicial remarks during his closing statement.
The contested portion of that statement, to which defense counsel did not object, went as follows:
"Also, another thing I want to point out to you is when you are out there deciding now what you are going to do, when you're deciding - we've talked about that duty. When you find a shred of humanity, ladies and gentlemen, find it for her family.
You know, she didn't have somebody there who was trying to decide her fate and decide whether she should live or die. She just had this man. You know, sometimes when you come in you have a duty. You've all seen this. You've all seen soldiers in World War II. You know, they're now what? In their 70s and 80s, if they're still around.
They went back in World War II, and they did their duty. The war wasn't something I'm sure they took pleasure in. They didn't want to do that. They didn't want to get taken away from their families and go over and fight the Germans and the Nazis. That wasn't what they wanted to do; they had a duty to do it, and they did their duty.
And just as you have a duty to do.
When you talk about those men now, and you look at those men, you know what? They're able to stand up there tall, and they're proud. They're not proud because of what they had to do to those other young men, but they're proud because they're able to do their duty. They did what was right even though it was hard to do that.
So, ladies and gentlemen, you've heard all the evidence. You've heard both the aggravating and mitigating. It's up to you to decide. In doing that, if you're trying to think of why you should do this, well, number one, the evidence is there for you to do it. And, number two, you know, you could send a message. Even if it only stops one other person from doing what he did, that's a message you want to send."
The Supreme Court of Missouri found that the admission of this statement was not plain error, contrasting this closing statement with one found to be improper in Weaver v. Bowersox, 438 F.3d 832 (8th Cir. 2006). In Bowersox, the prosecutor said:
"I know there's a movie, Patton, and in the movie, George Patton was talking to his troops because the next day they were going to go out in battle and they were scared as young soldiers. And he's explaining to them that I know that some of you are going to get killed and some of you are going to do some killing tomorrow morning. And they all knew that. And he was going to try to encourage them that sometimes you've got to kill and sometimes you've got to risk death because it's right. He said: But tomorrow when you reach over and put your hand in the pile of goo that a moment before was your best friend's face, you'll know what to do."
The Supreme Court of Missouri found, however, that Bowersox was not analogous for two reasons. First, according to the court, "[i]n the present case, the comment by the prosecutor was not as extensive as that criticized in Weaver." Really? I count 330 contested words in the McLaughlin closing statement compared to 126 contested words in the Bowersox closing statement, seemingly making the former much more extensive.
Second, according to the court, unlike the prosecutor in Bowersox,
"the McLaughlin prosecutor did not tell the jury that it was its duty to impose death. Rather, he basically told the jurors that like soldiers, they had a duty, but he then identified that duty as being to hear the evidence and decide on a punishment, stating, “[s]o, ladies and gentlemen, you've heard all the evidence. You've heard both the aggravating and mitigating. It's up to you to decide.” He did not tell them it was their duty to decide to kill, in other words, but to reach a decision."
Maybe I'm reading too much into the McLaughlin prosecutor's closing statement, but it certainly doesn't seem to me that he was simply asking the jurors to "reach a decision." He told them that, like the soldiers fighting the Nazis during World War II, they had a duty to do something that they didn't want to do. How could that merely be the duty to "reach a decision," when that is exactly what most jurors want to do so that they can get on with their lives (Pauly Shore in "Jury Duty" excepted). Instead, it seems clear to me that he was asking them to sentence McLaughlin to death.
And it seems to me that my assumption is confirmed by the last two lines of the prosecutor's closing. in those lines, he stated, "In doing that, if you're trying to think of why you should do this, well, number one, the evidence is there for you to do it. And, number two, you know, you could send a message. Even if it only stops one other person from doing what he did, that's a message you want to send." (emphasis added). It's clear to me that "this" means the imposition of the death penalty, and how could it not be? Section 565.030 of the Missouri Code states that jurors in the McLaughlin case only could have imposed the death penalty or life imprisonment without eligibility for probation, parole, or release except by act of the governor. I strongly believe that the prosecutor was telling them to do the former despite not wanting to do so because it was their duty, just like it was the duty of the soldiers during World War II.
Thursday, August 28, 2008
My New Article: Impeachable Offenses?: Why Civil Parties in Quasi-Criminal Cases Should be Treated Like Criminal Defendants Under the Felony Impeachment Rule
Yesterday, I finished my summer article, Impeachable Offenses? Here is the abstract for the article:
With one exception, every Federal Rule of Evidence dealing with propensity character evidence or evidence which can be misused as propensity character evidence makes it either: (a) as difficult to admit such evidence in civil trials as it is in criminal trials, or (b) more difficult to admit such evidence in civil trials than it is in criminal trials. The "mercy rule" falls into this latter category as it allows criminal defendants to inject the issue of character into their trials while a similar luxury is not afforded to civil parties. Before 2006, however, a substantial minority of courts extended the "mercy rule" to civil parties in quasi-criminal cases because they were in most respects similar to criminal cases. Congress finally shut the door to this practice based upon the serious risks of prejudice, confusion, and delay that propensity character evidence engenders.
These same risks, however, support treating civil parties in quasi-criminal cases the same as criminal defendants under the felony impeachment rule. That rule, Rule 609(a)(1), makes it much more difficult for courts to exclude the felony convictions of civil parties than it is for them to exclude the felony convictions of testifying criminal defendants. It is thus the only Federal Rule of Evidence which makes it easier to admit evidence which can be misused as propensity character evidence in civil trials than it is in criminal trials. Courts should correct this anomaly by treating civil parties in quasi-criminal cases the same as criminal defendant under the Rule.
If you would like to download a copy of the article, you can do so by clicking on this link to SSRN.
Lie Detector As Sentencing Tool?: Maryland Judge Allows Defendant To Take Polygraph Test As Part Of Sentencing Process
In a strange ruling which I think is clearly contradictory to Maryland precedent, a Baltimore County judge has given convicted felon Trent L. Banks a chance to take a lie-detector test as part of the sentencing process. According to Judge Lawrence R. Daniels, "[t]he appellate courts say it can't come in [as evidence] as proof of guilt or innocence, and I certainly agree that the state shouldn't be able to say, 'He failed a polygraph so you should find him guilty on that basis.'" Judge Daniels noted, however, that private employers, the military, the federal government and even local prosecutors' offices routinely use lie-detector tests. According to Judge Daniels, "They use them as an investigatory tool. I'm just using it as a sentencing tool."
This is an interesting conclusion, but one that is inconsistent with a consensus among courts against the use of polygraph evidence at the sentencing stage of trial. See, e.g. Ortega v. United States, 270 F.3d 540, 548 (8th Cir. 2001). And Maryland falls within that consensus. In its1985 opinion in Johnson v. State, 495 A.2d 1 (Md. 1985), the Court of Appeal of Maryland dealt with a case where a reference was made to a polygraph test at a sentencing proceeding, and the trial judge overruled an objection to the reference. On appeal, the court found that this was error, citing to its 1984 opinion in Guesferid v. State, 480 A.2d 800, 803 (Md. 1984), for the proposition that "[t]here is no longer any doubt that in this State, the results of a lie detector test, as well as the fact of taking such a test, are inadmissible at trial." At first glance, I'm a bit confused by the facts of the Banks case, so I will look into them some more before doing a more detailed post on the case. But as I see things now, Judge Daniels' decision is clearly erroneous.
Wednesday, August 27, 2008
It looks as if New Zealand might be ready to join the United States and other countries in enacting a rape shield rule. Currently, in rape case in the country, judges admit evidence concerning the sexual history of both the complainant and the accused in open court without prior consideration of its relevance to the case. And if New Zealand juries are anything like juries in the U.S., that can cause serious problems. To wit, for the better part of this country's history, defense counsel in rape cases used to parade into court all of the alleged victim's sexual partners to, in effect, prove that she had a propensity to consent to sexual relations and that she acted in conformity with this propensity, and thus consented, at the time of the alleged rape. Or, more generally, they used the evidence to prove that the alleged victim was a liar.
Such a display impacted not only jurors, but also judges, who often revealed their chauvinistic tendencies in their opinions. For instance, in its 1895 opinion in State v. Sibley, 33 S.W. 167, 171 (Mo. 1895), the Supreme Court of Missouri fatuously concluded that"[i]t is a matter of common knowledge that the bad character of a man for chastity does not even in the remotest degree affect his character for truth, when based upon that alone, while it does that of a woman."
With such crazy notions bandied about courtrooms, its easy to see why it was difficult for prosecutors to procure rape convictions and easy to see why the anti-rape movement, an offshoot of the civil rights movement of the 1960s and 1970s, was able to get rape shield rules passed. These rules as well as Federal Rule of Evidence 412 in effect shield complainants from having their past sexual behavior and/or predisposition exposed in the courtroom unless defense counsel can point toward a compelling theory of admissibility.
And New Zealand's Justice Ministry is considering doing the same. It is currently seeking feedback as to whether current guidelines in the Evidence Act should be amended. The Ministry has suggested changing the law to extend protection for complainants, by making previous evidence about their previous sexual experience inadmissible without prior agreement of the presiding judge. It will be interesting to see whether the proposal is successful, and if so, whether the enacted law is more of a rape shield law or a rape sieve law.
Tuesday, August 26, 2008
Because I'm teaching Federal Rule of Evidence 104(b) today, I figured it would be an opportune time to do my first post on this rarely invoked rule of evidence. In United States v. Dillon, 532 F.3d 379 (5th Cir. 2008), former Assistant City Attorney of New Orleans Henry Dillon appealed conviction for depriving two women of their right to bodily integrity under color of law by sexually assaulted them. One of the grounds for his appeal was that the trial court erred by permitting Sheena Cheneau to testify that Dillon sexually assaulted her after he prosecuted a battery case in which she was the victim
The trial court admitted this evidence under the controversial Federal Rule of Evidence 413, which abrogates the ban on propensity character evidence and allows the prosecution in a sexual assault case to present evidence of the defendant's commission of another offense of sexual assault. While the other offense does not have to result in a conviction or even criminal charges, there does need to be sufficient proof that it occurred, which is where Federal Rule of Evidence 104(b) comes into play. Federal Rule of Evidence 104(b), which covers conditional relevance, states that "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition."
In other words, a judge must admit conditionally relevant evidence if he believes that a reasonable jury could find the conditional fact (the sexual assault on Cheneau) by a preponderance of the evidence. Even if the judge thinks it is more likely than not that the conditional fact did not occur, he must admit the evidence if he thinks that a reasonable juror could find that the fact occurred. This is an extremely liberal standard of admissibility, which is why the Fifth Circuit found that Dillon's argument that Cheneau's allegations had to be corroborated was without merit.
Indeed, as the case I cover in class today notes, a conditional fact does not even require direct evidence and can be established through inference. In that case, Cox v. State, 696 N.E.2d 853 (Ind. 1998), a murder victim had testified against the defendant's close friend, Jamie Hammer, at a bond reduction hearing held four days before he was murdered. The conditional fact to be established in the case was that the defendant in fact learned of the victim's testimony, giving him a motive to murder him. And the Supreme Court of Indiana found that the trial court did not abuse its discretion in finding that Rule 104(b) was satisfied despite a lack of direct evidence that the defendant learned of the victim's testimony. Instead, the court merely found that:
"the State introduced evidence that Cox spent almost every day at the Hammer house where Hammer's mother lived both before and after the bond reduction hearing and up to the time of the shooting. Hammer and Cox were close friends and Hammer's mother attended the hearing. This evidence is sufficient to support the inference that Cox had learned what transpired at the hearing"
Monday, August 25, 2008
The Lone Ranger and Tonto Fistfight in Heaven, Take 2: 10th Circuit Hears Oral Arguments In Rule 606(b) Appeal
Last Wednesday, I used my post from last December about a district court's landmark Rule 606(b) ruling in my Evidence class. Readers may recall the case, in which a Utah District Court vacated a Native American man's conviction for assaulting a federal officer after receiving evidence that, inter alia, the jury foreman told the other jurors that he had lived on or near a reservation and that, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent." At the time, I noted that the case "appear[ed] to be the first case in which a court in the Tenth Circuit has considered post-verdict evidence of juror racial bias in reversing a verdict," and noted that the U.S. Attorney's office was considering whether to appeal the court's decision.
Well, after class, I decided to check up on the case and found out that the U.S. Attorney's office did indeed decide to appeal, and oral arguments were held before a three judge panel of the Tenth Circuit last week. It will certainly be interesting to see what result the court reaches, and whichever way it decides, it will widen the already sharp circuit split over whether, notwithstanding Rule 606(b), jurors should be able to impeach their verdicts after trial through testimony about, inter alia, racial or religious slurs.
I'm in the last week of finishing my summer article, and as I noted before, I will be taking my stab at the split this fall, with my argument being that 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. And maybe, based upon the case currently before the Tenth Circuit, the Supreme Court will finally be granting cert on the issue and reaching its own conclusions.
Sunday, August 24, 2008
I remember flipping through the channels one day and landing upon the TV show "Laguna Beach" and concluding that it was pretty much the worst television show I had ever seen (maybe topped only by the short lived "Poochinski"). And while one of its "stars," Jason Wahler (who apparently also appears on that show's spinoff, "The Hills") isn't the worst person out there, his pending court case reveals that he has a pretty checkered history, albeit one that I don't think that jurors will be able to hear about.
Tow truck driver Dario Stevenson claims that in 2006, Wahler was traveling in a car with friends when their vehicle was blocked by his tow truck, which was trying to move an illegally parked vehicle. Stevenson claims he was "roughed up" by Wahler while trying to impound the other car and that the vehicle in which Wahler was a passenger almost "clipped" the tow truck as well as traffic officer Jonathon Wallace. In addition, both Wallace and Stevenson -- who are African-American -- have claimed Wahler used the N-word during the incident. Consequently, Stevenson has sued Wahler in civil court for compensatory and punitive damages for the verbal and physical altercation.
And he'd like to introduce evidence of Wahler's checkered history to prove his case. Some of these acts include:
-Wahler being arrested in April 2007 on charges of assault and criminal trespassing after a (hopefully non-"Borat"-esque) tussle in a Marriott hotel lobby, and
-a 2006 conviction for resisting arrest and bribery following a bust in New York.
According to Wahler's attorney, "[Wahler] was arrested in New York and in Seattle as a result of incidents not remotely related to this lawsuit...Such evidence should not be allowed to reach the jury inasmuch as it would only constitute evidence of character which is inadmissible." Meanwhile, the plaintiff's lawyers counter that the 21-year-old's history of arrests is perfectly admissible because it shows a consistent pattern where "he does not respect authority."
In this dispute, I definitely side with Wahler's attorney. California Evidence Code Section 1101(a) states that "[e]xcept as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." In other words, Wahler's prior bad acts could not be used be jurors to conclude. "Once a violent criminal, always a violent criminal."
On the other hand, according to California Code of Evidence 1001(b), "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, [common] plan [or scheme], knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
In essence, it appears that the plaintiff's attorney is trying to argue that Wahler's past acts show that he has a common plan or scheme of disrespecting authority, making those acts admissible under California Code of Evidence 1001(b). The clear problem with this argument is that there is no similarity between the two past acts and the tow truck dispute. Now, if all three incidents involved disputes with two truck drivers, or if all three involved hotel lobby fights, or if all three involved resisting arrest and/or bribery, the plaintiff's attorney might have a point. But from my perspective, the evidence of Wahler's prior bad acts is classic propensity character evidence, which is inadmissible under the rules of evidence.
Saturday, August 23, 2008
Why Oh, Why Oh, Why Oh?: Ohio Case Reveals That It Might Have Strictest Jury Impeachment Rules In The Nation
A recent case from Ohio reveals that it might just be the place where a jury will least likely be able to impeach its verdict. In Desai v. Franklin, 2008 WL 3009691 (Ohio App. 9 Dist 2008), Ashokkumar J. Desai and Aris W. Franklin, M.D. entered into an employment agreement whereby Desai would join Franklin's professional corporation, Diagnostic Imaging. Desai formally resigned as an employee of Diagnostic in 2000. After Desai's resignation, Desai and Franklin disagreed over the amount of money that Desai was entitled to for his percentage of the accounts receivable and deferred compensation payments that he was due under the employment agreement, and Desai alleged that Diagnostic Imaging had failed to redeem his stock as provided for in a buy-sell agreement. Desai thereafter sued Franklin claiming causes of action sounding in, inter alai, breach of fiduciary duty, unjust enrichment, and fraud. After trial, the jury awarded Desai $50,670.18 for his breach of fiduciary duty claim, $301,597.34 for his unjust enrichment claim, and $116,248.00 for his fraud claim.
After trial, Franklin, inter alia, brought a motion for judgment notwithstanding the verdict, which the trial court denied and which, on appeal, the Court of Appeals treated as a motion for a new trial. The motion claimed that there was no evidence to support the award of $116,248.00 on the cause of action for fraud and that the jury's verdict awarded Desai those damages "based on a conversation that one of the parties' attorneys had with the jury foreperson." As the court correctly noted, this allegation implicated Ohio Rule of Evidence 606(b), which states in relevant part that:
"Upon 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. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented."
As far as I can tell, in any other jurisdiction in the country, this would mean that the jury foreperson could testify about what the attorney said to him because the attorney's statements would constitute extraneous prejudicial information and/or an improper outside influence. So, why couldn't the jury foreperson impeach the jury's verdict in Desai v. Franklin?
Well, according to the court, in Ohio:
"[s]uch evidence....is generally not admissible to impeach a jury verdict unless there is supporting evidence aliunde....Evidence aliunde is extraneous, independent evidence of alleged conduct based on the firsthand knowledge of one who is not a juror....Franklin fails to argue that any evidence aliunde exists that would impeach the jury's verdict. Consequently, the trial court did not abuse its discretion in denying Franklin's motion."
According to the Supreme Court of Ohio, one of the purposes behind this requirement is "ensuring that jurors are insulated from harassment by defeated parties." State v. Schiebel, 564 N.E.2d 54, 61 (Ohio 1990). It seems to me, though, that Ohio is splitting the baby by trading harassment by unscrupulous parties for harassment by defeated parties.
In any other jurisdiction, an unscrupulous party knows not to approach/threaten/influence a juror during trial because even if that juror stays silent throughout trial, that party is perpetually Tony Soprano at Holsten's, looking over his shoulder, fearing that the juror can come forward and impeach the jury's verdict. In Ohio, however, it's open season on the jury pool. As long as the unscrupulous party threatens/influences the juror in a private place, there is nobody besides the party and the juror with firsthand knowledge, meaning that the party can sleep like a baby after trial, knowing that Ohio's rules will keep the threatened juror silenced.
Friday, August 22, 2008
Blame The Media: Supreme Court of Utah Ignores Alleged Juror Exposure To Media Coverage In Rule 606(b) Ruling
The Supreme Court of Utah's recent opinion in Allen v. Friel, 2008 WL 3835061 (Utah 2008), contains a seemingly disastrous oversight in its (mis)application of Utah Rule of Evidence 606(b). In Friel, Paul Allen was convicted of hiring an accomplice to kill his wife. Allen later made several claims over several appeals, including the claim that the trial court erred in denying the jurors' request for transcripts of the prosecution witness' testimony. He attempted to bolster this claim through the affidavit of juror Trenton David, which stated that if the trial judge would have allowed the jurors to see the transcript of a particular prosecution witness, "it was very likely that I would have found Paul Allen innocent of all charges."
The Utah Supremes disagreed, first properly finding that the trial judge's decision to deny jurors the requested transcripts was in line with Utah Rule of Criminal Procedure 17. The court then noted that David's affidavit was inadmissible under Utah Rule of Evidence 606(b), which states in relevant part that:
"Upon 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 was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."
The court then found that David's affidavit was inadmissible under the Rule because it clearly contained "testimony about the effect a particular piece of evidence would have had on his mind during deliberation." Undoubtedly, this was the correct decision, but there remained one problem: There was more to David's affidavit.
According to the court, "Mr. David also stated that he witnessed jurors disobeying the court's instructions not to view any media coverage of the case or discuss the case during the trial. Finally, Mr. David expressed his opinion that some of the other jurors were biased prior to trial because of exposure to media coverage of the trial." Now, to the extent that the affidavit mentioned jurors discussing the case during trial, it was inadmissible because it related to matters internal to the jury deliberation process and did not relate to anything external to that process.
The allegation that jurors disobeyed the court's instructions and ostensibly viewed media coverage of the case, however, is a different matter. Such media coverage could be viewed either as extraneous prejudicial information or an improper outside influence on juror deliberations and should have formed the basis for proper jury impeachment under Rule 606(b). See, e.g., Drew v. State, 76 S.W.3d 436, 460 (Tex.App.-Houston 2002) ("Media coverage about appellant constitutes an outside influence, and Rule 606(b) thus permits a juror to testify about such."). The Supreme Court of Utah, however, didn't address this part of the affidavit, thereby leaving some seemingly very important evidence on the table.
Thursday, August 21, 2008
Forgive Me Father: New Jersey Court Finds Cleric-Penitent Privilege Doesn't Apply In Child Molestation Case
In its opinion yesterday in State v. J.G., 2008 WL 3850772 (N.J.Super.A.D. 2008), the Superior Court of New Jersey, Appellate Division reversed a trial court's decision to apply New Jersey's cleric-penitent privilege in the case of a man accused of sexually molesting his daughters. I agree with the court's conclusion but not its reasoning. In J.G., in 2000, the defendant's children reported to their mother that their father had sexually abused them. The mother then contacted her pastor, Glenford Brown, and reported the children's allegations. While the defendant knew Brown from their native Jamaica, the defendant did not attend Brown's church in New Jersey.
Believing that he had a duty to protect the wife and children, Brown arranged to meet the defendant outside Brown's townhouse. During that meeting, the defendant, "without directly saying [he] sexually molested them,...acknowledged what he did” and asked Brown, inter alia, "to counsel" him, but Brown declined because he was too angry with defendant and felt that he "needed real psychological help which [Brown] was not qualified to give." A few weeks later, the defendant went to Brown's church, where he talked with Brown and "acknowledged what he did." The defendant then asked Brown to baptize him, but Brown told the defendant he could not baptize him because Brown "thought he wanted cover for his actions" and urged the defendant to turn himself in to the police.
The defendant was subsequently charged with molesting his daughters, and he moved to preclude Brown from testifying about his confession pursuant to New Jersey Rule of Evidence 511, its cleric-penitent privilege, which states that:
"Any communication made in confidence to a cleric in the cleric's professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric's professional or spiritual counseling role."
The trial court granted his motion, but the Appellate Division reversed, finding that its analysis was governed by its previous opinion in State v. Cary, 751 A.2d 620 (N.J.Super.A.D. 2000), where it found that to warrant protection under the cleric-penitent privilege, "a person's communication must be made: (1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor."
The Appellate Division then found that these elements were not satisfied because:
"(1) defendant did not ask and Brown did not offer to keep the conversation confidential; (2) Brown reached out to defendant-not as a spiritual advisor-but to protect defendant's children; and (3) Brown specifically told defendant he could not counsel him or even baptize him because defendant needed professional help."
I agree with regard to the third point but disagree with regard to the first two points. I think that the court was wrong on the first point because none of the professional privileges requires a request that the communication at issue be kept confidential. Could you imagine if we required clients to tell their lawyers to keep their communications confidential before applying the attorney-client privilege or if we required patients to tell their psychiatrists to keep their communications confidential before applying the psychotherapist-patient privilege? It seems to me that the court placed a burden on the defendant that does not exist under the law.
With regard to the second point, the court wrongfully focused on the state of mind of Brown -- the pastor/cleric -- not the state of mind of the defendant -- the alleged penitent. In the professional privilege context, it is the state of mind of the possible client/patient/penitent that controls, not the state of mind of the attorney/psychotherapist/clergyperson. If the former made statements to the latter for the purpose of retaining his services, the statements are covered by the relevant privilege, regardless of the state of mind of the latter.
There is, however, an exception to this general rule, and that is why the court's third point was correct. When an attorney/psychotherapist/clergyperson affirmatively tells a prospective client/patient/penitent that he will not render him services, any subsequent conversation is not covered by the relevant privilege. See, e.g., People v. Gionis, 9 Cal. 4th 1196 (Cal.App.4th 1995). And that's exactly what happened in J.G.. Brown told the defendant that he would not counsel him, and the defendant subsequently told him that he molested his daughters.
Wednesday, August 20, 2008
This Land Is Your Land, This Land Is My Land: Court Of Federal Claims Hears Pearl Harbor Land Dispute Despite Hearsay Claims
The Court of Federal Claims is currently hearing a case involving an interesting piece of history. In 1942 and 1943, in the wake of Pearl Harbor, government agents apparently arrived on the doorsteps of several Kentucky landowners and told them that they had to move off of their farms so that the U.S. government could build World War II training camps on them. After the war, the government later earned a windfall from coal, oil, and gas resources found under the land. According to the government, the former landowners and their heirs were not entitled to any of this money because the landowners were fairly compensated when their property was taken and not promised any future payments or right to ownership.
The owners disagreed, claiming that they were assured that they would be able to buy back their land after the war. Indeed, they claimed that they specifically negotiated this buy back provision because they knew that there was a possibility for minerals on the land (some had even sold drilling leases already) when they negotiated the deals. The only problems with these claims were that: (1) none of the landowners got anything in writing; and (2) only one of the original owners is still alive, with the case somehow still proceeding today despite the fact that it was initially brought in 1960.
Nonetheless, in April, Judge Susan Braden recommended awarding the families $34.3 million, roughly the profits the government made from selling the mineral rights to the land in the 1960s. And yesterday, as a three-judge panel considered whether her recommendation should stand, it received testimony from many of the owners' heirs despite the government's claim that this testimony was hearsay. So, how was it admissible?
Well, Federal Rule of Evidence 803(20) states that there is an exception to the rule against hearsay for statements concerning "[r]eputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located." According to the Advisory Committee's Note to the Rule, "[t]rustworthiness in reputation evidence is found 'when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community; and thus the community's conclusion, if any has been formed, is likely to be a trustworthy one.'"
Considering the fact that this land lawsuit has been around since the 1960s, and considering the fact that it involves millions of dollars, it is easy to see why the land transfer was important to the community and likely to have been discussed in the community, making the heirs' testimony admissible and their claim likely to succeed.
Tuesday, August 19, 2008
(It's The) Story Of My Life: Judge Finds Biographical Screenplay Inadmissible In Dinnertime bandit Case
This April, I posted about University of Kentucky College of Law Professor Andrea Dennis' fascinating article, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1 (2007). I noted that in the article, Dennis contended that courts almost always allow for the admission of defendant-authored rap music lyrics as substantive criminal evidence. I also noted that one of her arguments against the standard thinking was that rap music lyricists are not in the category of non-fiction writers but instead are akin to fiction writers, such as novelists and screenwriters. I agreed with this argument, and now a current Connecticut case reveals the reluctance of courts to admit screenplays into evidence, even when they are (auto)biographical.
Alan Golder, also known as the "Dinnertime Bandit", is allegedly an American burglar who specialized in stealing jewelry from mansions, while their owners were inside their residences eating dinner. On November 21, 2007, after nine years on the run in Europe, Golder was escorted from Antwerp Prison to Brussels, where he was formally taken into custody by a Greenwich Connecticut Detective and two U.S. Marshals and charged with 38 felony counts and one misdemeanor, including burglary, larceny, robbery and kidnapping.
All of this sounds like it could form the basis for an interesting movie (maybe it could star John Malokovich). And indeed, William Knoedelseder has written a screenplay about Golder's life, based at least in part on Golder's input. And that screenplay could have been extremely damaging in Golder's trial on the aforementioned charges because it recounts both his burglary prowess and history of late day break-ins.
Golder's public defender Howard Ehring, however, argued that the screenplay was inadmissible because Golder's level of involvement in its creation was questionable and that it was unduly prejudicial because it was at least partially fictionalized, And apparently, the Connecticut judge hearing Golder's case agreed, ruling that the screenplay was not admissible evidence. I agree with the judge's ruling and believe that judges in cases with defendant-authored rap lyrics should reach similar conclusions.
Monday, August 18, 2008
OxyContin Blues: Seventh Circuit Finds Expert Testimony On Medical Purposes Doesn't Violate Rule 704(b)
The Seventh Circuit's recent opinion in United States v. Chube, 2008 WL 3562641 (7th Cir. 2008), contains an interesting Rule 704 ruling. Chube dealt with the DEA's launching of the "OxyContin Action Plan" to ferret out unlawful uses of the drug. Dr. David Demaret Chube II (Dr. David) and his brother Dr. Charles Randall Chube (Dr. Randy) were two of the hundreds of physicians investigated by the DEA for possible illegitimate prescribing of the drug. And that investigation yielded a conviction of Dr. Randy on one count of unlawful distribution and a conviction of Dr. David on four counts of unlawful distribution and two counts of defrauding a health benefit program.
The testimony of Dr. Theodore Parran and Dr. Robert Barkin, which was allowed only after the trial court denied the defendants' pre-trial motion in limine, was instrumental in securing these convictions. Dr. Parran evaluated 98 of the defendants' patient files and concluded that the prescribing "was not done consistent with the usual standards of medical practice" and thus was not done with a "legitimate medical purpose." Meanwhile, Dr. Barkin reviewed a smaller number of the patient files and also concluded that the prescriptions were issued "[o]utside the scope of medical practice, not for legitimate purposes." The defendants did not renew their objection to this testimony at trial, but they raised it again when appealing their convictions to the Seventh Circuit.
The Seventh Circuit first had to decided whether the defendants preserved this issue for appeal because they did not renew their objection to the testimony at trial. And the court found that they did, concluding that the trial court did not signal any willingness to reconsider its ruling during the trial. The Seventh Circuit then considered the applicable rules of evidence.
Federal Rule of Evidence 704(a) states that:
"Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."
Meanwhile, Federal Rule of Evidence 704(b) states that:
"No 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."
The Seventh Circuit noted that the government's argument was "that neither Dr. Parran nor Dr. Barkin ever claimed to know the defendants' intent, and so the opinions that they offered were not barred by Rule 704(b)." It then found that "[p]articularly since the defense raised no contemporaneous objection, we agree with this position, though we note that portions of Dr. Parran's testimony come close to a statement about the Doctors' mental state."
This finding seems unfair to me. The court acknowledged that the issue was a close call and yet decided against the defendants in large part because they failed to raise a contemporaneous objection. And yet, earlier in the opinion, the Seventh Circuit noted that the trial court denied their motion in limine and then did not signal any willingness to reconsider its ruling during the trial. I don't see the justice in finding against the defendants on a borderline issue based upon their failure to renew their objection when the court itself acknowledged that there was no reason for the defendants to renew their objection.
Furthermore, I don't think that the cases cited by the Seventh Circuit support its opinion. It first cited to United States v. Katz, 445 F.3d 1023 (8th Cir. 2006), in which the Eighth Circuit found that testimony by the same doctor who testified in Chube -- Doctor Parran -- did not violate Rule 704(b). The Seventh Circuit noted that the court in Katz was "satisfied that 'Dr. Parran did not testify regarding the subjective mental state of Dr. Katz upon writing the prescriptions charged in the indictment.'"
My response is that of course it was satisfied. As the court noted in Katz, "during cross-examination of Dr. Parran, defense counsel asked Dr. Parran on three occasions whether he was purporting to express an opinion as to what Dr. Katz might have had in his mind at the time that he wrote the prescriptions at issue in the indictment. Each time that he was asked, Dr. Parran denied doing so." As far as I can tell, however, Dr. Parran gave no similar testimony in Chube.
The other main case cited by the Seventh Circuit was its own previous opinion in United States v. Glover, 479 F.3d 511 (7th Cir. 2007). In Glover, the defendant was apprehended with a small quantity of drugs on him, and a DEA task force officer testified "that street level drug dealers typically sell very small quantities of cocaine and heroin, which can be packaged in capsules, bottle caps, corner cut baggies, or foils. [He] also observed that even small amounts of drugs, as in Glover's case, can be distributed if packaged in small enough quantities. He explained that street dealers often maintain small stashes of drugs nearby for resupply, rather than carrying all of their drugs with them. Finally, Coleman testified that firearms are common 'tools of the trade' for drug dealers."
The Seventh Circuit found that this testimony did not violate Rule 704(b), finding that:
"[W]hen a law enforcement official states an opinion about the criminal nature of a defendant's activities, such testimony should not be excluded under Rule 704(b) as long as it is made clear, either by the court expressly or in the nature of the examination, that the opinion is based on the expert's knowledge of common criminal practices, and not on some special knowledge of defendant's mental processes. Relevant in this regard, though not determinative, is the degree to which the expert refers specifically to the 'intent' of the defendant."
Again, I don't see how this case is analogous. The DEA task force officer in Glover merely testified that the defendant's possession of a small quantity of drugs could be consistent with the common practices of street level drug dealers. Conversely, the state's witnesses in Chube looked at the doctors' mental processes by considering their patient files and concluded that their prescriptions were not given for legitimate medical purposes; they did not merely claim that their prescription pattern could be consistent with a common criminal practice.
In conclusion, I'm not sure whether the Seventh Circuit's conclusion in Chube, but I am sure that I don't like the way it got to that conclusion.
Sunday, August 17, 2008
In A Barbie World: Court Denies Motion For Mistrial In Bratz Lawsuit After Horribly Misguided Rule 606(b) Ruling
The lawsuit between Mattel and MGA Entertainment over the Bratz doll line has produced an interesting and horribly misguided Rule 606(b) ruling. The main issue in the trial was whether Carter Bryant, the creator of the multi-ethnic, big-headed dolls, had created the doll's characters and the name Bratz while he was under contract as a Barbie designer at Mattel. The jury found in favor of Mattel on the issue as well as on almost all of the issues in the trial, handing MGA Entertainment a defeat on par with the box office disaster that was the "Bratz" movie. The verdict has to be considered a huge victory for Mattel because the $1 billion-plus Bratz doll line franchise is the main rival to Mattel's Barbie doll line. As the case now proceeds to the damages phase of trial, we will have to see whether Mattel will win the large damages award it is seeking and/or whether MGA will be enjoined from selling Bratz dolls.
And the case is proceeding to the damages phase because the United States District Court for the Central District of California denied MGA's motion for a mistrial in Bryant v. Mattel, Inc., 2008 WL 3367605 (C.D. Cal. 2008). One of MGA's main contentions in that motion for a mistrial was that the jury's verdict was based upon prejudice rather than evidence. You see, MGA's CEO is Iranian-born Isaac Larian, and post-trial jury interviews indicated that Juror No. 8 made comments regarding Larian's ethnicity and/or national origin during deliberations. Specifically, other jurors claimed that Juror No. 8 said with regard to Persians and/or Iranians that they were "stubborn," "stole ideas," "lie," and are "rude."
Readers of this blog might wonder whether the denial of MGA's motion was based upon Federal Rule of Evidence 606(b), which states in relevant part that:
"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."
In fact, Rule 606(b) did not prevent the court from considering this jury impeachment because Juror No. 8 admitted that the statements she made were based upon statements that her husband made to her during the trial, rendering them "extraneous prejudicial information."
So, why did the district court deny MGA's motion? The answer is that it did so based upon a misapplication of Rule 606(b). According to the court, when jurors receive extraneous prejudicial information, "the Ninth Circuit directs the trial court to consider the following factors to determine whether a new trial is warranted:
(1) [W]hether the material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the juror discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict.
The district court then found that a mistrial was not warranted because, inter alia, (1) the second and fourth factors supported the verdict because Juror No. 8's "remarks were made after agreement had been reached on all subjects upon which the jury ultimately reached a verdict;" and (2) the third factor supported the verdict because "there was no discussion or consideration of the substance of Juror No. 8's remarks."
Readers of this blog will note why the district court (and the Ninth Circuit) misapplied Rule 606(b). As I noted in a prior post in which a bailiff made improper comments to jurors in a case involving the San Antonio Spurs,
"[Rule 606(b)] strictly prevents a juror from testifying about 'the effect of anything on any juror's mind or emotions or mental processes.' In other words, even if jurors could testify about the bailiff's comments because they constituted an improper outside influence on the jury, those jurors could not testify about the effect of those comments; that analysis is left for the court. See, e.g., Pyles v. Johnson, 136 F.3d 986, 992 (5th Cir. 1998)....What the Court of Appeals should have done was make an objective assessment of what effect the bailiff's comments would have had on the average juror and determine whether Medistar likely suffered "substantial prejudice" as a result of the jury's exposure to the extraneous information."
The same goes here. And it seems clear to me that comments disparaging Iranians when the CEO for the losing party is Iranian likely caused that party "substantial prejudice."
Furthermore, even if the court was right to consider the effect of the extraneous prejudicial information on the jury, it should have declared a mistrial. Where did the court go wrong on this count? The court considered the effect of Juror No. 8's comments on the other jurors. But what it failed to do was consider the effect of the statements made by Juror No. 8's husband on Juror No. 8. It seems clear to me that the fact that Juror No. 8 felt the need to repeat her husband's statements to the other jurors indicates that she was improperly influence by his statements, causing MGA Entertainment "substantial prejudice."
What do readers think?
Saturday, August 16, 2008
Fargo: North Dakota Case Reveals That Few Identifications Are Deemed Unnecessarily Or Impermissibly Suggestive
A case from North Dakota reveals that its courts do not necessarily deem eyewitness identifications inadmissible even when they are made while the defendant is handcuffed and surrounded by uniformed officers. Fargo resident Elijah Addai is currently standing trial for the fatal stabbing of David Delonais. Soon after the stabbing, Addai was stopped in a vehicle near the crime scene, whereupon he was handcuffed and surrounded by uniformed officers. At this time, two women who allegedly witnessed the crime identified him as the murderer.
The prosecution sought to (a) have these two women identify Addai at trial, and (b) admit evidence of these identifications during Addai's trial. And indeed, there would be no problem with this testimony/evidence under North Dakota Rule of Evidence 801(d)(1)(iii), which indicates that "[a] statment is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person."
Addai's attorney, however, moved to preclude these identifications, ostensibly because the identifications were unnecessarily or impermissibly suggestive. District Court Judge Cynthia Rothe-Seeger denied this motion, and a review of North Dakota precedent backs her up.
In State v. Norrid, 611 N.W.2d 866 (N.D. 2000), the Supreme Court of North Dakota affirmed a lower court's decision to admit an eyewitness identification, finding that:
"Although Norrid claims it is not entirely clear the trial court applied the correct analysis in deciding whether this showup was suggestive, the court's decision states 'it does seem to me that the setting was suggestive in that the defendant was in handcuffs and he was surrounded by police and there was a spotlight shining on him and no other options were presented' to the victim. The court effectively decided this showup was suggestive. However, that decision does not end the inquiry, which then turns to whether the identification was 'unnecessarily or impermissibly' suggestive. The trial court examined the reasons why the identification was conducted in this manner, citing law enforcement concerns about apprehending the right person as quickly as possible so, if there was a perpetrator still at large, Norrid could be released and law enforcement could pursue the perpetrator. Similar reasons have generally sufficed to support a decision an identification was not unnecessarily suggestive."
So, Judge Rothe-Seeger's conclusion is in line with past precedent, but is that precedent correct? Don't the concerns cited by the North Dakota Supremes apply in all cases? Don't police officers always want to apprehend the right perpetrator as quickly as possible? Don't they always want to be able to dismiss false suspects quickly so that they can move on to other suspects? It seems to me that an identification of a handcuffed and officer-surrounded suspect is either proper or improper (I would claim the latter), and I don't see how the concerns cited by the court change the analysis.
Friday, August 15, 2008
Five Finger Discount: Seventh Circuit Notes That Retail Theft Is Generally Not Covered Under Fed. R. Evid. 609(a)(2), Despite Illinois Precedent
The Seventh Circuit's recent opinion in Kunz v. DeFelice, 2008 WL 3483442 (7th Cir. 2008), reveals that the court does not generally consider retail theft to be a crime involving falsehood under Federal Rule of Evidence 609(a)(2) but that Illinois state courts have reached the opposite conclusion. Here is a very brief recounting of the facts in Kunz:
In March 1999, Jeremy Kunz spent the afternoon and evening in a bar watching March Madness and consuming a few Guinnesses. As the night wore on, he asked a fellow he knew from the bar, Erik, if he could borrow Erik's SUV for an errand, and Erik lent him the SUV. As Kunz left in the SUV, he grazed a parked car, prompting a 911 call from a bystander. Officer Richard DeFelice and his partner thereafter responded, but despite the flashing lights on their police car, Kunz kept driving, with the police in pursuit. During the chase, DeFelice discovered, after running the SUV's plates, that it had been reported stolen.
Eventually, Kunz stopped the SUV, got out and tried to flee on foot. He ran, though, not because he knew that the SUV was stolen (he lacked this knowledge) but because his errand turned out to be delivering drugs. The chase on foot finally ended with Kunz scaling a chain-link fence and being cornered. As he was being handcuffed, multiple police officers kicked Kunz, eventually causing a sharp pain later diagnosed as a broken rib. The police then dragged the injured and restrained Kunz to their squad car and took him back to the station, where they placed him in a room on a stool, still cuffed and facing DeFelice. DeFelice repeatedly punched Kunz in the face hard enough to make him pass out several times before he finally falsely confessed that he knew that the SUV he was driving was stolen.
Kunz thereafter brought a Section 1983 action against the City of Chicago, DeFelice, and others, alleging, inter alia, excessive force. The trial court entered a mixed verdict that gave Kunz some, but not all, of the amount he sought to recover from the defendants. This mixed verdict led to cross-appeals from both sides, with DeFelice claiming, inter alia, that the trial court erred by precluding the impeachment of Kunz through evidence of his 2005 conviction for retail theft.
The Seventh Circuit disagreed, finding that the conviction was covered by Federal Rule of Evidence 609(a)(1) as a garden variety felony conviction and was thus excludable under the balancing test set forth in Federal Rule of Evidence 403. As part of this analysis, it rejected DeFelice's argument that the conviction was covered by Federal Rule of Evidence 609(a)(2), which states that:
"evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment [and without regard for Federal Rule of Evidence 403], if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
The Seventh Circuit noted that under Illinois law, retail theft is generally considered a crime of dishonesty/false statement for felony impeachment purposes. It found, however, that the case before it was being decided under the Federal Rules of Evidence and not Illinois law. It then noted that under its prior precedent, which is consistent with precedent from across the country on Federal Rule of Evidence 609(a)(2), retail theft is generally not considered a crime of dishonesty/false statement for felony impeachment purposes.
"[b]y the phrase 'dishonesty and false statement,' the Conference means crimes such as perjury, subordination of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully."
In other words, it is the rare crime that generally qualifies as a crime of dishonesty/false statement. Most crimes, like retail theft, are generally not covered by Federal Rule of Evidence 609(a)(2).
Thursday, August 14, 2008
Damages: Vermont Judge Finds Subsequent Remedial Measure Evidence Inadmissible To Mitigate Punitive Damages
A child-sex case involving Vermont's Catholic Church reveals an interesting split among courts as to whether evidence of subsequent remedial measures is admissible to determine liability for punitive damages. Now 40 year-old former altar boy Thomas Murray has sued the church, claiming that that former priest Edward Paquette repeatedly molested him three decades ago. According to Murray's attorney, the alleged abuse caused the then 9 year-old fourth-grader to have nightmares, avoid religion, and turn to alcohol and drugs. Furthermore, it is alleged that these effects did not dissipate with his transition to adulthood but instead has caused him to suffer from anxiety, post-traumatic stress disorder, and problems with physical intimacy, leading to a divorce with the mother of his child
Murray's lawsuit is not unique; instead, the state's largest religious denomination was socked in May by a record $8.7 million verdict of negligence in connection with its 1970s hiring and supervision of Paquette, and Murray's lawsuit is one of 20 containing allegations against the retired clergyman. Looking to avoid paying such a steep price in Murray's case, the church moved to prevent the court from assessing punitive damages against it based upon measures it has since taken to prevent clergy sexual abuse, but Judge Matthew Katz denied the motion, concluding that "the case law around the country is that post-wrongdoing remedies by the defendant are not admissible to mitigate punitive damages." The reality is much more complicated and involves two rules of evidence.
Vermont Rule of Evidence 407, like Federal Rule of Evidence 407, states that:
"When[ever], after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."
Thus, evidence of the church's post-abuse measures would be inadmissible to prove that its pre-abuse measures were insufficient and that it thus acted negligently or otherwise culpably at the time of Murray's abuse. Similarly, if a child choked on a kid's toy at a fast food restaurant, his attorney couldn't introduce evidence about changes made to the toy or its instructions after the accident because such evidence would be used to prove "a defect in a product, a defect in a product's design, or a need for a warning or instruction."
Rule 407, however, clearly allows for the admission of evidence of subsequent remedial measures "when offered for another purpose," and it seems to me that mitigation of punitive damages would fall into this category and would not constitute a proscribed purpose. Essentially punitive damages are damages issued to punish a defendant and to deter the defendant and others from committing acts similar to the act at issue. Evidence of a subsequent remedial measure seems to me to be relevant to prove that such deterrence is unnecessary, which would render such evidence admissible, pending application of Rule 403, which states that:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
On this count, I'm much less sure and need to do some more thinking before coming to a final conclusion of how probative value weighs against these dangers in a typical punitive damages case. What I do know, however, is that Judge Katz's sweeping statement was incorrect. For proof of this, let's look at Swinton v. Potomac Corp., 270 F.3d 794, 813 (9th Cir. 2001), where the Ninth Circuit concluded that:
"A review of case law from other jurisdictions and academic commentary on this subject reveals no consistent rule on the admissibility of such evidence....Some courts have taken the view that such evidence is almost never relevant in assessing punitive damages....Other courts, however, permit the introduction of post-occurrence remediation evidence by the defendant as a shield against punitive damages."
In reviewing the opinions cited by the Ninth Circuit, I'm not quite sure who has the better of the argument, but what I do know is that there is an argument on the issue.