Wednesday, August 13, 2008
After The Enactment: California Court Finds New Evidence Provision Doesn't Violate Ex Post Facto Clause
The recent opinion of the Court of Appeal of California in People v. Dallas, 2008 WL 2952782 (Cal.App. 4th Dist. 2008), contains what I regard as an unsatisfactory (non)application of the ex post facto clause of the Constitution. In Dallas, Thomas Avery Dallas was convicted of felony infliction of an injury on a child and felony child abuse because he allegedly struck his girlfriend's nine month old son. Because Dallas was charged with an offense involving child abuse, California Evidence Code Section 1109(a)(3) allowed for the admission of prior acts of child abuse by Dallas. Specifically, California Evidence Code Section 1109(a)(3) states that:
"Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant's commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101."
Accordingly, the prosecution admitted evidence of heinous acts that Dallas allegedly committed during a prior relationship with a woman named Crystal, who had a four year old son named J.S. Specifically, the state presented evidence that Dallas:
-scalded J.S.'s genitals;
-suffocated J.S. with a trash bag;
-held J.S. underwater;
-broke J.S.' arm; and
There was just one problem: California Evidence Code Section 1109(a)(3) was not enacted until after Dallas allegedly committed the subject crime. This potentially triggered the ex post facto clause of the Constitution. The court began by noting that in Calder v. Bull, 3 U.S. 386, 390 (1798), the Supreme Court found that the ex post facto clause proscribes the retroactive application of four types of laws:
"(1) laws which criminalize and authorize punishment for acts which were innocent when done; (2) laws which aggravate a crime or make it greater than when it was committed; (3) laws which inflict a greater punishment than the law annexed to the crime when committed; and (4) '[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'"
The Court then noted, however, that Dallas' appeal was unavailing based upon Supreme Court precedent, such as its opinion in Carmell v. Texas, 529 U.S. 513 (2000). In Carmell, the defendant was convicted of several sex-related crimes against his stepdaughter, who during some of the acts was 14 years-old or older. When these alleged acts occurred, the Texas statute criminzalizing them indicated that a defendant could not be convicted under the statute for sexual crimes against a minor 14 years-old or older solely based upon the testimony of the alleged victim; instead, there had to be some other evidence corroborating the alleged victim's testimony. Before the defendant's trial, however, Texas amended the controlling statute so that it no longer required corroboration.
After trial, the defendant was convicted despite the fact that the stepdaughter's testimony was not corroborated. The defendant's appeal eventually reached the United States Supreme Court, which held that application of the amended statute violated the ex post facto clause because it changed the quantum of evidence that was legally sufficient for a conviction. The Court then contrasted the Texas statute from the rules of evidence. It held that "[o]rdinary rules of evidence, for example, do not violate the Clause....Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case. More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption."
Conversely, the Court of Appeal of California found that California Evidence Code Section 1109(a)(3) was an "[o]rdinary rule of evidence" that "does not speak to the sufficiency of the evidence it renders admissible," making its application to Dallas permissible under the ex post facto clause. Of course, Dallas recognized a problem with this conclusion, which was that California Evidence Code Section 1109(a)(3) is not "evenhanded" and can only benefit the State by allowing it to admit evidence against the criminal defendant. The Court of Appeal of California acknowledged this point, but found that its decision was proper because the Supreme Court in Carmell considered it "more crucial[ ]" that the Texas amendment was, in effect, a rule regarding the sufficiency of the evidence, not the admissibility of evidence-it "subvert[ed] the presumption of innocence, because [it] concern[ed] whether the admissible evidence [wa]s sufficient to overcome the presumption."
As I have noted before, one of the biggest problems I have with Carmell and its progeny is that Texas' amendment of its criminal statute in Carmell did not alter a "legal rule of evidence" while amendments such as the creation of California Evidence Code Section 1109(a)(3) clearly altered a "legal rule of evidence." Indeed, I can't think of a single rule of evidence which is a rule regarding the sufficiency of evidence, meaning that, despite the fact that Calder v. Bull proscribed the retroactive application of altered rules of evidence, under current precedent no altered rule of evidence can ever violate the ex post facto clause. In my mind, this can't make sense, and let's look at the language of Calder v. Bull to see why.
In Calder v. Bull, the Supreme Court proscribed the retrospective application of "'[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'" So, the question then becomes whether California Evidence Code Section 1109(a)(3) altered the legal rules of evidence and received different testimony than the law required at the time of the commission of the alleged offense in order to convict Dallas. To me, the clear answer is that it did.
Before the enactment of California Evidence Code Section 1109(a)(3), Dallas could not have been convicted based in any part on evidence of past acts of child abuse. After its enactment, he could. Thus, California Evidence Code Section 1109(a)(3) allowed for the receipt of different testimony than the law required at the time of the commission of the alleged offense in order to convict Dallas.
Tuesday, August 12, 2008
All of a sudden, invited error doctrine cases abound. In its recent opinion in State v. Harp, 2008 WL 2853672 (Ohio App. 4 Dist. 2008), the Court of Appeals of Ohio addressed an evidentiary challenge, but it possibly should have been addressing (and might at some point address) an ineffective assistance of counsel claim. Why?
Well, in Harp, a jury found Mark A. Harp guilty of one count of felonious assault based upon a fight between Harp and John Bays. The verdict came after what essentially boiled down to the word of Harp against the word of Bays, with the former claiming that he fought Bays in self-defense after Bays threatened to shoot him and kicked him in the groin, and the latter claiming that Harp started the fight by attacking him with a broken pocketknife.
During Harp's testimony, he testified, inter alia, that Bays had a reputation for shooting people. The State thereafter "objected to testimony regarding Bays's reputation for shooting people, and Harp's lawyer represented to the court that he had instructed Harp not to discuss Bays's reputation for violence." Both the State and Harp's attorney then agreed that the court should strike that statement and give a corrective instruction, which the court did.
After Harp was convicted, he appealed, claiming, inter alia, that the court erred in striking his testimony. The Court of Appeals disagreed, finding that Harp's trial counsel himself indicated that he instructed Harp not to discuss Bays' reputation and agreed with the State that the court should strike the testimony and give a corrective instruction. It thus found that not only did Bays' trial counsel fail to argue that his testimony was admissible, but that he also "invited any error by moving that the testimony be stricken and that a curative instruction be given." The court then noted that "[u]nder the invited-error doctrine, a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make." It thus concluded that Harp could not complain that the trial court erred in excluding testimony regarding Bays' reputation for shooting people.
Furthermore, the Court of Appeals found that even if the invited error doctrine error doctrine were inapplicable, Harp's testimony still would have been inadmissible. According to the court, Harp's argument for admissibility was that he was aware of Bays' reputation for shooting people, meaning that he had a bona fide fear of Bays and was acting in self-defense. The Court of Appeals rejected this argument, finding that it was "not clear from the record that Harp was aware of Bays's reputation for violence before the fight."
It's tough to argue with any of the court's findings, but it seems to me that there was a strong possibility that Harp's trial counsel committed serious error. Let's take the Court of Appeals at face value and assume that there was not enough evidence that Harp was actually aware of Bays' supposed reputation so that his testimony was inadmissible to prove that he feared him. That still leaves another ground for admitting Harp's testimony.
While propensity character evidence -- evidence whose probative value relies on the aphorism, "Once a criminal, always a criminal" -- is generally inadmissible, pursuant to the "mercy rule" contained in Ohio Rule of Evidence 404(a)(2), "[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same" is admissible. In other words, Pandora's box is firmly in the defendant's hands. If he wants to inject the issue of character into his trial, he can do so by, inter alia, presenting reputation or opinion testimony concerning the victim's bad character for a pertinent character trait, which in turn opens the door for the prosecution presenting good character evidence about the victim. If, however, the defendant does not want character evidence to infect his trial, he merely needs to refrain from presenting any character evidence, and the prosecution will be precluded from introducing its own.
This both explains why Harp's trial counsel might have been correct or incorrect. Under the "mercy rule," Harp at least arguably could have testified to Bays reputation for violence to establish that Bays had a reputation for acting violently and thus likely acted in conformity with that propensity by starting the bar fight. And thus Harp's trial counsel could have been wrong in instructing him not to discuss Bays' reputation for violence. On the other hand, maybe Harps' trial counsel was aware that if Harp testified concerning Bays' reputation for violence, the prosecution had a "murderer's row" of witnesses itching to testify about Bays' reputation for peaceableness but who would be forever frozen in the on deck circle unless Harp's opened the door (My initial thought was that Harp's testimony about Bays' reputation for violence also would have opened the door for the prosecution presenting evidence concerning Harp's violent character, which would be allowed under Federal Rule of Evidence 404(a)(1). Ohio Rule of Evidence 404(a)(1), however, does not contain a similar provision).
Monday, August 11, 2008
Cocaine Cowboys: Eleventh Circuit Uses Invited Error Doctrine To Uphold Admission Of Cocaine Evidence
The recent opinion of the Eleventh CIrcuit in United States v. Villavicencio, 2008 WL 2894108 (11th Cir. 2008), gives me my first opportunity to address the invited error doctrine. In Villavicencio, Carlos Villavicencio was convicted of conspiracy to possess with intent to distribute a controlled substance. The prosecution's theory of the case was that Jose Terazon ran a methamphetamine ring, in which he would mail the drug to Scarlett Herrera and Natalie Gianella, who in turn would forward the drug to distributors in South Florida, including Villavicencio. In August 2005, Terazon sent a five-pound package to Sanchez-Reyes and Gianella, two to three pounds of which were allegedly earmarked for Villavicencio, but police intercepted the package, arrested Sanchez-Reyes and Gianella, and later charged Villavicencio.
At Villavicencio's trial, DEA Agent Todd Phillips testified about a search of Villavicencio's bedroom. During cross-examination, defense counsel asked Phillips if two grams of cocaine were found during the search, and he replied that they were. Later in the trial, the government introduced a stipulation of facts providing that two grams of cocaine were recovered from a search of Villavicencio's bedroom, and Villavicencio did not object to the admission of the stipulation. After Villavicencio was convicted, he appealed, claiming, inter alia, that the evidence concerning the two grams of cocaine recovered from his bedroom was inadmissible character evidence.
The Eleventh Circuit disagreed, finding that "[t]he doctrine of invited error is implicated when a party induces or invites the district court into making an error and where such error exists, we are precluded from reversing." Moreover, the court noted that "[w]e have held that where a defendant stipulates to admission of evidence he is later precluded from challenging such admission for constitutional error." In other words, Villavicencio was precluded from challenging the admission of this evidence because he invited the alleged error he subsequently challenged "on appeal by introducing the fact that cocaine was discovered at a search of his house to the jury when his counsel cross-examined Agent Phillips, and by agreeing to the government's stipulation of facts."
It seems to me that the Eleventh Circuit correctly applied the invited error doctrine, merely leaving the question of why Villavicencio's trial counsel introduced the fact that cocaine was discovered at Villavicencio's house. Without knowing the full facts of the case, my guess would be that defense counsel was trying to use the fact that cocaine was found at Villavicencio's house to prove that he used the cocaine himself and did not distribute it. If that wasn't the case, however, it would seem that the proper basis for Villavicencio's appeal would be that he received the ineffective assistance of counsel.
Sunday, August 10, 2008
Legislature Under The Influence: Kentucky Court Finds That Driver Lacks Standing To Raise Separation Of Powers Claim In DUI Case
The recent opinion of the Court of Appeals of Kentucky in Veltrop v. Commonwealth, 2008 WL 2940790 (Ky.App. 2008), found that a driver lacked standing to challenge a portion of a Kentucky drunk driving statute but also clearly implied that the contested provision was unconstitutional. In Veltrop, Melissa Kay Veltrop entered a conditional plea of guilty to driving under the influence in violation of Kentucky Revised Statutes Section 189.010. However, she reserved the issue of whether Section 189.010(2) of the statute is unconstitutional because it violates the separation of powers principle by unilaterally adopting amendments or additions to the Kentucky Rules of Evidence.
Section 189.010(2) states in relevant part that:
"With the exception of the results of the tests administered pursuant to KRS 189A.103(7), if the sample of the person's blood or breath that is used to determine the alcohol concentration thereof was obtained more than two (2) hours after cessation of operation or physical control of a motor vehicle, the results of the test or tests shall be inadmissible as evidence in a prosecution under subsection (1)(a) or (e) of this section."
Veltrop eventually appealed this issue to the Court of Appeals of Kentucky, which found an insurmountable problem with her argument: Veltrop's breath sample was obtained one hour and eleven minutes after her cessation of operation of her motor vehicle. Accordingly, Veltrop lacked standing to challenge Section 189.010(2) because even if she were to prevail in having the subsection held unconstitutional, it would have no bearing on her case with her breath sample having been obtained before the two hour mark. Indeed a judge in Veltrop noted in his concurring opinion, "[i[t would appear from a plain reading of KRS 189A.010(2), the only party which may have standing to challenge this subsection would be the County Attorney or Commonwealth Attorney should a trial court grant a motion to suppress results obtained from a test more than two hours after the driver is stopped."
I agree with the court's opinion(s) because Section 189.010(2) merely states that tests taken after the 2 hour mark are inadmissible; it never states that tests taken within the 2 hour mark are admissible. Thus, the only potential aggrieved party, and the only party with standing, would be the prosecution. And it also seems to me that the prosecution would have a winning argument in such a case because Section 189.010(2) clearly makes certain test results per se inadmissible when none of the Kentucky Rules of Evidence would do the same. Section 189.010(2) would thus be similar to the Arizona malpractice expert witness statute, which, as I noted in a previous post, the Court of Appeals of Arizona found violated the separation of powers. Indeed, the Supreme Court of Kentucky has already hinted that Section 189.010(2) is unconstitutional. See Lopez v. Commonwealth, 173 S.W.3d 905, 908 (Ky. 2005).
Saturday, August 9, 2008
Socialized Medicine: Connecticut Court Finds Medical Diagnosis/Treatment Exception Applies To Statements Made To Social Workers Acting Within Chain Of Medical Care
The recent opinion of the Appellate Court of Connecticut in State v. Juan V., 109 Conn.App. 431 (Conn.App. 2008), reveals that the medical diagnosis/treatment exception to the rule against hearsay applies to statements made to social workers "acting within the chain of medical care." In Juan V., the defendant was convicted of sexual assault in the first degree and risk of injury to a child in connection with sexual acts he allegedly committed against his four year-old granddaughter. At trial, "a significant amount of testimony was provided through the admission of [a] videotaped diagnostic and forensic interview that was conducted at the children's advocacy center at Saint Francis Hospital and Medical Center....after [the alleged victim] complained about the sexual assault."
On appeal, the defendant claimed that the trial court improperly admitted this videotape testimony pursuant to Section 8-3(5) of the Connecticut Code of Evidence, which contains an exception to the hearsay rule for "[a] statement made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical treatment or advice."
The Appellate Court of Connecticut disagreed, finding that the alleged victim's statements were made to a social worker, who thereafter made recommendations to the alleged victim's family concerning her future care and provided details of the interview for the examining pediatrician. Based upon this latter fact, the court found that the medical diagnosis/treatment exception applied because "the medical treatment exception is not limited to physicians and has been extended to include social workers, as long as the social worker is found to have been 'acting within the chain of medical care....'" I agree with the Court's ruling because a statement made to a social working who was acting in the chain of medical care was obviously "made for the purposes of obtaining medical treatment or advice...."
In fact, I would take it a step further and say that a statement made to a social worker (or someone equivalent) is admissible under the medical diagnosis/treatment exception as long as the declarant thinks that the social worker is acting within the chain of medical care. The medical diagnosis/ treatment exception looks at the purpose(s) of the declarant, and thus it would seem to me that as long as the declarant thinks that the social worker is acting within the chain of medical care, his statements should be admissible, even if the declarant is mistaken. I'm not sure, however, whether the courts would agree with me on this point.
Friday, August 8, 2008
Impulse Control: Seventh Circuit Finds That Psychologist Should Have Been Allowed To Testify In Internet Sex Sting Operation Case
The Seventh Circuit's recent opinion in United States v. Gladish , 2008 WL 2927127 (7th Cir. 2008), contains an interesting discussion of Federal Rule of Evidence 704(b). In Gladish, Brian E. Gladish was convicted of violating two federal statutes: 18 U.S.C. Section 1470, which prohibits knowingly transferring or attempting to transfer obscene material to a person under 16, and 18 U.S.C. Section 2422(b), which, as was relevant to Gladish's case, forbids knowingly attempting to persuade, induce, entice, or coerce a person under 18 to engage either in prostitution or in any sexual activity for which one could be charged with a criminal offense.
The facts of the case were as follows:
Gladish, a 35-year-old man, was caught in a sting operation in which a government agent impersonated a 14-year-old girl in an Internet chat room called "Indiana Regional Romance." Gladish visited the chat room and solicited "Abagail" (as the agent called herself) to have sex with him. Gladish lived in southern Indiana while "Abagail" purported to live in the northern part of the state. "Abigail" agreed to have sex with Gladish, and in a subsequent chat he discussed the possibility of traveling to meet her in a couple of weeks, but no arrangements were made. Gladish did, however, send "Abigail" a video of himself masturbating.
Based upon these facts, Gladish was convicted of violating the aforementioned statutes, and he acknowledged that he was guilty of violating 18 U.S.C. Section 1470 based upon sending the masturbation video to Abigail. However, he claimed that he was not guilty of violating 18 U.S.C. Section 2422(b) because he did not take a "substantial step" toward persuading/inducing/enticing/ coercing "Abigail" to engage in "prostitution or in any sexual activity for which one could be charged with a criminal offense." The Seventh Circuit agreed, finding that "[t]reating speech (even obscene speech) as the 'substantial step' would abolish any requirement of a substantial step."
It further resolved this "attempt" issue by noting that the trial court had erred by precluding Gladish from presenting the testimony of a psychologist. Specifically, that psychologist had examined Gladish and prepared a report which stated that Gladish sought sexual gratification in Internet chat rooms and in watching pornographic films because he has a "character pathology” that has produced “a pervasive interpersonal apprehensiveness with the expectation that others will reject and disparage him." According to the report, Gladish explained to the psychologist that he uses the Internet to gratify his sexual desires because "it's safer and less expensive-it's a cheap date and I don't have to worry about all the sexually transmitted diseases." In other words, Gladish wanted the psychologist to testify to these facts to prove that he would never engage in sexual activities with "Abigail" in real life, meaning that he could not be guilty of "attempt."
The trial court, however, circumscribed this avenue of defense, finding that the psychologist's proposed testimony was inadmissible under Federal Rule of Evidence 704(b), which states that "[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."
The Seventh Circuit rejected this conclusion, finding that Rule 704(b) itself (implicitly) states that experts can testify "with respect to the mental state or condition" of the defendant. Thus, while Rule 704(b) precluded the psychologist from testifying that Gladish did not intend to have sex with "Abagail," he could have testified that it was unlikely, given Gladish's psychology, that he would act on his intent. As the Seventh Circuit analogized, "You can sincerely intend to stop smoking, yet a psychologist might conclude that you had such poor impulse control that it was exceedingly unlikely that you would stop."
While it seems as if the Seventh Circuit was making a fine line distinction, I agree with its conclusion. The point of Rule 704(b) is to preclude expert witnesses from force feeding the jurors the disposition in a case. In other words, if a particular verdict is compelled if the jury accepts an expert's testimony, that testimony is improper. So, if the psychologist testified that Gladish did not intend to have sex with "Abigail," jurors would be forced to find Gladish "not guilty" if they accepted his testimony because he could not be guilty of "attempt." But if the psychologist merely testified that Gladish was unlikely to act upon his intent/desire, jurors could accept that such action was "unlikely" but still believe that Gladish planned to act upon his intent/desire in this case. Thus, the Seventh Circuit properly found that the psychologist should have been allowed to testify.
Thursday, August 7, 2008
On The Road To Sturgis: Eighth Circuit Properly Allows For Admission Of Supplemental Tax Returns, But Under Wrong Rule Of Evidence
The recent opinion of the Eighth Circuit in Gaillard v. Jim's Water Service, Inc., 2008 WL 2938843 (8th Cir. 2008), correctly affirmed the trial court's decision to allow for the admission of supplemental tax returns as impeachment evidence, but it did so based upon the wrong rule of evidence. In Gaillard, David Gaillard, a pastry chef from France, was struck and injured by a vehicle driven by Howard Hoyt and owned by Jim's Water Service, Inc. (JWS) while he attempted to repair a parked motorcycle on the shoulder of I-90 as he was heading to the Sturgis Motorcycle Rally. Gaillard thereafter sued Hoyt and JWS for negligence, claiming brain injury, chronic pain from leg injury, and loss of income. The first trial resulted in a mistrial because the jury verdict was not unanimous, but a second trial resulted in a verdict for the defendants
At the first trial, Gaillard submitted his supplemental tax returns to support his lost income claim. Before the second trial, however, he moved to exclude the tax returns, but the trial court denied his motion. Instead, the court permitted the defendants to use these returns to prove that Gaillard falsified his income tax returns and otherwise fabricated his lost income to inflate his damages. As noted by the court,
"Defendants also presented evidence at trial suggesting Gaillard exaggerated his injuries, falsified income tax returns and otherwise fabricated his lost income to inflate his damages. After the accident-and to inflate his lost income claim-he filed supplemental tax returns, which claimed additional income of as much as $120,000 per year for the previous few years derived from an alleged catering business he owned. The evidence at trial showed during the same years he was supposedly earning about $150,000, but declaring only around $30,000 per year, he failed to pay the IRS a debt of $11,000. The evidence also showed he was fraudulently receiving unemployment compensation for the two years before the accident, claiming to be unemployed while he in fact worked for a pest control business and allegedly made $118,000 a year as a self-employed caterer. Even Gaillard's expert on lost earnings stated he could not rely on Gaillard's tax returns because he could not 'trust them' and they might be 'pure fiction.'"
After the verdict was entered in favor of the defendants, Gaillard appealed to the Eighth Circuit, claiming, inter alia, that the trial court erred by permitting the defendants to introduce his supplemental tax returns as impeachment evidence. The Eighth Circuit disagreed, finding that "when Gaillard presented evidence to suggest he suffered a loss of income, he opened the door for Defendants to produce evidence to contradict his claims. It then cited to one of its previous rulings, in which it had found that tax returns may be treated as prior inconsistent statements. The Eighth Circuit then concluded that:
"The district court properly found the tax returns were admissible as impeachment evidence under Rule 608(b), which allows the 'court in its discretion to allow cross examination of witnesses regarding specific instances of a witness's own conduct if the past experiences are probative of a character of untruthfulness.'"
The Eighth Circuit's conclusion was correct, but its reasoning was not. The problem with the court's reasoning is that prior inconsistent statements not given under oath are governed by Federal Rule of Evidence 613, which renders them admissible as long as certain disclosure requirements are fulfilled, and which, pursuant to subsection (b), allows for the prior statements to be proven through extrinsic evidence.
"Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness...may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." (emphasis added).
So, let's say that Gaillard gave no testimony at trial about receiving any awards for his pastries. And let's say that defense counsel learned that Gaillard had gone around Sturges claiming that he won the 2007 Golden Scoop Award for his beignets when in fact he had won no such award. Defense counsel could ask Gaillard whether he lied to people at Sturges about winning the Golden Scoop Award, but if Gaillard denied making such claims, defense counsel could not introduce a list of 2007 Golden Scoop Award winners to prove that Gaillard was lying. Thus, Federal Rule of Evidence 608(b) did not support the admission of Gaillard's supplemental tax returns, but Federal Rule of Evidence 613 did.
Wednesday, August 6, 2008
Bad Motor Voter?: Eighth Circuit Affirms Hearsay Rulings In United States' Suit Against Missouri For Violating The Motor Voter Act
United States v. Missouri, 2008 WL 2889517 (8th Cir. 2008), is an interesting voting rights case involving a tripartite evidentiary issue. In Missouri, the United States filed suit against the State of Missouri (and the Missouri Secretary of State in her official capacity), alleging that Missouri was in violation of its obligations under the National Voter Registration Act of 1993 (the NVRA or "Motor Voter Act"). It soon became apparent that Missouri was indeed having difficulty complying with its obligations under the NVRA as, inter alia, throughout the litigation, the registered voters in numerous Missouri counties exceeded the number of eligible voters. But was Missouri's behavior unreasonable?
The trial court found that it was not and that Missouri had met its NVRA obligation to make a reasonable effort to conduct a general program of voter list maintenance. To the extent some NVRA violations existed, the court found those violations were the responsibility of individual local election agencies (LEAs) and that Missouri was not directly responsible for enforcement of the NVRA against the LEAs. The court thus granted summary judgment in favor of Missouri on "any claim by the United States which seeks to hold Missouri responsible for enforcement of the NVRA against local election authorities," but allowed additional discovery for the United States to make its case that Missouri's compliance was unreasonable.
The Eighth Circuit reversed and remanded based upon what it deemed the trial court's incorrect interpretation of the NVRA, but it affirmed an evidentiary ruling by the trial court that will make it difficult for the United States to prove its case. You see, under the NVRA, the Election Assistance Commission (EAC) makes reports to Congress in odd-numbered years, and, in 2005, the EAC sent survey forms to Missouri late. The EAC thereafter denied Missouri's request for an extension of time and told Missouri to do the best it could, which it did, with the bulk of its work falling on one person. Missouri compiled survey responses from the LEAs into one report, and sent the report to the EAC. Understandably, the survey responses revealed possible problems -- hence the registered voter vs. eligible voter problem -- but the trial court only allowed those responses to be admitted to demonstrate that Missouri had notice of possible problems, not that there actually were problems.
The Eighth Circuit affirmed, finding that these survey responses were hearsay and thus inadmissible to prove the truth of the matter asserted in them: the possible problems (although they were admissible to prove notice). In so doing, it found that the responses were inadmissible under three diffent rules of evidence.
First, it found that the responses were inadmissible under Federal Rule of Evidence 801(d)(1)(A) as admissions of a party opponent and/or Federal Rule of Evidence 801(d)(2)(C) as admissions of a party's agent. Its reasoning was that county election officials are independently elected officials, paid by and reporting to their respective county commissions. Indeed, the court noted that "[t]he United States ha[d] directly sued the local LEAs in the past, and [thus] arguably views the LEAs, at least to some extent, as independent entities." I thus agree with the Eighth Circuit's conclusion that, "Because this evidentiary question is certainly debatable, we cannot say the district court abused its considerable discretion."
Second, the court found that the survey responses did not qualify as adoptive admissions under Federal Rule of Evidence 801(d)(2)(B). It found that in making this determination, it had to examine "the surrounding circumstances to see whether those circumstances indicate approval of the statement." The court then noted that "Missouri merely passed the LEAs' survey responses along to the federal government, with no indication the state was adopting the truth of the responses." Indeed, the Eighth Circuit noted that "Missouri even indicated additional time was needed, thus demonstrating a lack of certainty in the accuracy of the responses." I thus again agree with the Eighth Circuit's conclusion that the trial court acted within its discretion in finding this Rule inapplicable.
Third, the Eighth Circuit found that the survey responses did not qualify as business records under Federal Rule of Evidence 803(6) and/or public records under Federal Rule of Evidence 803(8). According to the court, the problem with these Rules is that both indicate that they are inapplicable if "the sources of information or other circumstances indicate lack of trustworthiness." The court found that the survey results were indeed not trustworthy, noting: (1) that the information for the survey responses was hastily gathered, with Missouri requesting an extension of time, and (2) that declarations by numerous LEAs indicated the survey responses were inaccurate." Again, I agree wit the Eighth Circuit that teh trial court did not abuse its discretion in finding this Rule inapplicable.
Tuesday, August 5, 2008
Representative Republic: Supreme Court of Utah Finds That Trial Court Misapplied The Attorney-Client Privilege In Daughter Representation Case
The recent opinion of the Supreme Court of Utah in Moler v. CW Management Group, 2008 WL 2776775 (Utah 2008), contains an important discussion of Utah's attorney-client privilege. In Moler, Dennis and Marilynn Moler contracted to purchase a new home from Franklin Homes in a new gated community named Redfeath Estates. When the Molers first met with Redfeather Estates' real estate agent, Christopher McCandless, the homes in Redfeather Estates were burdened with covenants, conditions, and restrictions ("CC & Rs") that limited occupancy to households with at least one person 55 years of age or older. But before the Molers closed on their purchase, the sellers executed and recorded amended CC & Rs removing the age restriction. The Molers claimed that they learned of the restriction's removal only after they closed and sued McCandless, Franklin Homes, and other entities alleging several causes of action related to the sale of the property and the removal of the restriction.
Before filing suit, however, the Molers enlisted their daughter, Wendy Moler-Lewis, to help them with various aspects of the dispute. Although Moler-Lewis graduated from law school and was at one time a practicing attorney, she never represented the Molers in the lawsuit, but she did assist the Molers in identifying and retaining a law firm to represent them and was present and participated in some conversations between the Molers and McCandless. The question thus arose whether conversations between the plaintiffs and their daughter were protected by Utah's attorney-client privilege, with the trial court finding that the privilege did not extend to the plaintiffs because Moler-Lewis did not qualify as their representative.
The plaintiffs' appeal eventually reached the Utah Supremes, who started their analysis with the text of Utah Rule of Evidence 504(b), which states that:
"A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, and among the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, in any combination."
Meanwhile, Utah Rule of Evidence 504(a)(4) defines a "representative of the client" as
"one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client, or one specifically authorized to communicate with the lawyer concerning a legal matter."
The Supreme Court of Utah then noted that the trial court found that Moler-Lewis did not qualify as the plaintiffs' representative because she "was not retained to give legal advice and her services were not 'essential to [the Molers'] representation." The Utah Supremes found that in doing so, the trial court imposed requirements "not found in rule 504." Instead, the Supreme Court of Utah noted that to find that the attorney-client privilege applied, it needed "make only the following factual determination: Was Moler-Lewis 'one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client, or one specifically authorized to communicate with the lawyer concerning a legal matter'?" The Utah Supremes thus remanded to the trial court to resolve this matter one way or the other.
Looking at the facts of Moler, however, it seems clear that the trial court will find that the attorney-client privilege applies. The facts indicate that Moler-Lewis assisted her parents in identifying and retaining a law firm to represent them, which would strongly imply that she had authority to obtain professional legal services on their behalf. Therefore, Moler-Lewis was a "representative of the client," triggering the attorney-client privilege.
(In a separate part of the opinion, the Supreme Court of Utah rejected precedent from other courts stating that only corporate entities may have representatives, finding that it is "salutary that natural persons should be afforded the same level of protection when communicating with their representatives as corporations now enjoy.")
Monday, August 4, 2008
Rescue 911: Court Of Appeals Of Virginia Finds 911 Call Satisfies Excited Utterance Exception And Confrontation Clause
The Court of Appeals of Virginia's recent opinion in Caison v. Commonwealth, 2008 WL 2884089 (Va.App. 2008), seems to be directly in line with the opinion of the United State's Supreme Court in Davis v. Washington, 547 U.S. 813 (2006). In Caison, Donald Lee Caison, Jr. was convicted of manslaughter after evidence introduced at trial indicated that Caison stabbed William Green to death with a knife during an altercation. Some of this evidence consisted of evidence indicating that after the stabbing, Green's friend called 911 resulting in, inter alia, the following exchange:
-911 OPERATOR: Okay. Where is the guy that cut him?
-CALLER: He ran.
-911 OPERATOR: Okay. What does he look like?
-CALLER: A tall black male, about 6 foot, 6 foot 1.
-911 OPERATOR: Does anybody know who he is?
-CALLER: Yes. He's Donald Lee Caison.
After he was convicted, Caison appealed, claiming that the friend's statements were inadmissible hearsay and that their introduction violated his rights under the Confrontation Clause. In finding that the friend's statements were admissible as excited utterances, the court relied upon its previous opinion in Esser v. Commonwealth, 566 S.E.2d 876 (Va.App. 2002), which stated that:
"A statement comes within the excited utterance exception to the hearsay rule and is admissible to prove the truth of the matter stated, when the statement is spontaneous and impulsive, thus guaranteeing its reliability....The statement must be prompted by a startling event and be made at such time and under such circumstances as to preclude the presumption that it was made as the result of deliberation. In addition, the declarant must have firsthand knowledge of the startling event. The decision whether the statement qualifies as an excited utterance lies within the discretion of the trial court."
The court then found that the friend's statements were indeed prompted by a startling event -- the stabbing -- and made soon after the event, precluding any presumption of deliberation. It then acknowledged but rejected Caison's argument that the friend's statements could not constitute excited utterances because they were prompted by questions from the 911 operator. Instead, it cited to another previous opinion in which it had found that:
"To pivot the admissibility of a subsequent statement, however spontaneous, on the question[ ] of whether it was prompted by an equally spontaneous inquiry would serve no useful purpose. If the question or questioner suggested or influenced the response, then the declaration may lack the necessary reliability to be admitted."
I actually wrote the memorandum to the justices of the Supreme Court of Virginia in the Esser case on the issue of whether they should grant cert, and I can confirm that the court's ruling in Caison is consistent with Virginia law. But what about the Confrontation Clause issue?
Well, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that hearsay is inadmissible when it is "testimonial" unless certain conditions are met. And while the Court was far from clear in defining the term, it essentially said that a statement is "testimonial" when it was made with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution. So, if Crawford was the last word on the matter, the friend's statements in Caison would likely have been found inadmissible because the friend probably knew or should have known that her statements to the 911 operator would or could eventually be used in a criminal prosecution.
"[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."
The Court in Davis then found that the 911 call was nontestimonial because:
"(1) the caller was describing the events as they were happening; (2) the caller was facing an ongoing emergency; (3) the nature of what was asked and answered was necessary to resolve the present emergency rather than learn what happened in the past; and (4) the caller's answers were frantic[, provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe]."
In Caison, the Court of Appeals of Virginia applied this same logic to the friend's 911 call, finding that it was admissible because the friend:
"described the events as they were happening. She spoke of whether Green was conscious, bleeding, and breathing as the deteriorating condition was actually occurring. The operator responded to the trauma by directing [the friend] to apply pressure to the wounds with a clean towel to slow the bleeding and kept her on the phone 'to make sure [Green's] condition [did not] get worse.' Asked by the operator how Green was injured, who committed the stabbing, whether the perpetrator was armed, and where the perpetrator fled, [the friend] replied that appellant hit Green in the stomach with a beer bottle, she did not know if he was armed, and he fled 'towards Herndon Parkway.' In addition, the emergency was ongoing throughout the interrogation. The nature of what was asked and answered was necessary to enable the police to arrange for the arrival of the appropriate medical services to treat Green's injuries and to warn police that appellant, a dangerous and potentially armed man, ran at-large in the neighborhood. Because [the friend] rendered aid to a dying man while facing the threat of appellant's return to the scene, she was 'in an environment that was neither tranquil nor safe.'"
Sunday, August 3, 2008
The Eighth Circuit's recent opinion in United States v. Hughes, 2008 WL 2889723 (8th Cir. 2008), makes an interesting point about witness unavailability and raises an interesting question. In Hughes, John Hughes (not the John Hughes of "Sixteen Candles," "The Breakfast Club," and "Ferris Bueller's Day Off" fame), was convicted of five counts of purchasing furs in South Dakota without a non-resident fur dealer's license. According to Hughes' testimony at trial, however, he was not aware that his application to renew his license was rejected until after he returned from his South Dakota fur purchasing trip. Furthermore, he sought to call his friend and fellow fur trapper Rondent Wheaton to testify that Hughes told him that he did not know his application had been rejected until after his fur-buying trip to South Dakota. The district court excluded this testimony as hearsay, and after Hughes was convicted, he appealed to the Eighth Circuit.
The Eighth Circuit agreed with the district court. One ground for its agreement was that Wheaton's proposed testimony was inadmissible under Federal Rule of Evidence 807, the residual hearsay exception because, inter alia, it was not "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts." Indeed, Wheaton's proposed testimony was merely cumulative of Hughes' own testimony that he didn't receive his rejection until after his trip.
The Eighth Circuit also rejected Hughes' argument that Wheaton's proposed testimony should have been deemed admissible under Federal Rule of Evidence 804(b)(3), the statement against interest hearsay exception. Now, I'm not quite sure how Hughes' statement to Wheaton could be construed as a statement against interest, but this wasn't the basis for the Eighth Circuit's decision. Instead, it noted that Federal Rule of Evidence 804(b)(3) only applies if the declarant is "unavailable" to testify at trial. Thus, because "Hughes was available to and did, in fact, testify on his own behalf," he could not use the statement against interest exception.
The Eighth Circuit, however, noted that Hughes also contended "that enforcing the unavailability requirement of the exception would force him 'to deny himself his right to testify in order to make himself unavailable.''" The court rejected this argument, finding that “[w]hen the defendant invokes his Fifth Amendment privilege, he has made himself unavailable to any other party [pursuant to Federal Rule of Evidence 804(a)(1)], but he is not unavailable to himself." In other words, a defendant "may not create the condition of unavailability and then benefit therefrom."
This conclusion makes sense to me and seems consistent with the final sentence of Federal Rule of Evidence 804(a), which states that "[a] declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying."
It got me wondering, though, what would have happened if Hughes claimed that he didn't remember telling Wheaton that he received his rejection until after he returned from his trip? In that case, Hughes would be considered "unavailable" under Federal Rule of Evidence 804(a)(3) because he would have "testifie[d] to a lack of memory of the subject matter of the declarant's statement." Would this mean that he could thus take advantage of the Rule 804(b) hearsay exceptions because he wouldn't have created his own unavailability? Or would courts treat this situation the same as if Hughes exercised his Fifth Amendment privilege? I haven't found any precedent on the issue, but I would guess that courts would treat this situation differently, assuming that they would have believed Hughes.
Saturday, August 2, 2008
Judge, Jury, And Influencer: Court Allows For Jury Impeachment And Reversal Based Upon "12 Angry Men" Argument
The recent opinion of the Court of Appeals of Indiana in Henri v. Curto, 2008 WL 2929369 (Ind.App. 2008), is a case with an interesting Rule 606(b) ruling. In Curto, Susana Henry met Stephen Curto at a house party near Butler University in Indianapolis, where both were students. They hung out with other students, drank until they were both intoxicated, and eventually went back to Henri's dormitory room and engaged in a sexual encounter. Henri filed a civil suit alleging that Curto had raped her and reported to Butler University what had happened. The University thereafter held a hearing, with the judicial official concluding that Curto had violated University rules and suspending Curto for four years.
Curto was considerably more successful in the civil suit, where he filed a counterclaim alleging that Henri tortiously interfered with his contract with Butler University as a student enrolled in a degree program. After a day of deliberations, the jury returned a unanimous verdict finding that Curto had not raped Henri and that Henri tortiously interfered with Curto's contract with Butler University. But was the jury's verdict proper?
Henri didn't think so and submitted a juror's affidavit as part of a Motion to Correct Error and a Motion to Supplement the Record. There were various and sundry allegations in the affidavit, ranging from a juror fielding a call on her cell phone during deliberations to a juror noting that she wanted deliberations to end quickly because she was leaving for vacation soon. Despite the juror's affidavit, the trial court denied Henri's motions, and the Court of Appeals of Indiana found that most of the allegations in the affidavit either had no probable deletorious effect on jury deliberations or were inadmissible under Indiana 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 (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror."
The Court of Appeals, however, found that one of the allegations in the affidavit was admissible and required reversal. The allegation was that, twenty minutes into deliberations, the trial judge received a juror's question asking whether the verdict had to be unanimous. The trial judge then apparently told the bailiff to instruct the jury to "continue their deliberations." Unfortunately, in something that you might see in the game of telephone, the bailiff then told the jury that it "would have to keep deliberating until we could reach a unanimous verdict." As the Court of Appeals correctly found, this was "an incorrect statement of the law because jurors have the opportunity to cause a mistrial or hung jury."
According to the court, this allegation was admissible because it related to an improper outside influence being brought to bear upon the jury rather than improper behavior by the jurors during deliberations. This still left the question of whether this improper outside influence likely had a significant impact upon the verdict. The court then answered this question in the affirmative, finding that "the statement by the bailiff conveys that jurors in the minority would face the daunting task of swaying all the other jurors if they are to stick to their convictions, a task surmountable in less than two hours on the silver screen if you are Henry Fonda, but a task that could be overwhelming in real life for the average juror."
I agree with the court's ruling and note that even the Henry Fonda character in Sidney Lumet's classic film couldn't convince his fellow jurors without some improper behavior. Specifically, Fonda's character improperly visited the defendant's neighborhood and purchased a switchblade knife similar to the murder weapon at a pawnshop, which he showed to the other jurors, conduct which almost certainly constituted jury misconduct. See Charles D. Weisselberg, Good Film, Bad Jury, 82 Chi-Kent L. Rev. 717, 728 (2007).
Friday, August 1, 2008
Ten Years Have Got Behind You: Supreme Court Of Illinois Clarifies Ten Year Rule For Conviction-Based Impeachment
The recent opinion of the Supreme Court of Illinois in People v. Naylor, 2008 WL 2940572 (Ill. 2008), finally resolved a quandary that had plagued Illinois courts for decades: how to measure the ten year time limit on conviction-based impeachment. I refer to this as a "time limit" because Illinois does not have an equivalent state counterpart to Federal Rule of Evidence 609(b), which states in relevant part that a felony conviction or a conviction for a crime involving an act of dishonesty or false statement is:
"not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."
Illinois, however, which does not have codified rules of evidence, actually adopted a draft version of Federal Rule of Evidence 609(b) which stated that such "old" convictions are per se inadmissible for impeachment purposes, without an "interests of justice" exception. See People v. Montgomery, 268 N.E.2d 695 (Ill. 1971). After Montgomery, Rule 609(b) was amended to quell a debate that actually threatened the entire project of creating a Federal Rules of Evidence, but the Supreme Court of Illinois subsequently reaffirmed that it was sticking with the draft version of Rule 609(b), rather than the version that was enacted. See People v. Yost, 399 N.E.2d 1283 (Ill. 1980). So, how did this all come into play in Naylor?
Well, in Naylor, John Naylor was indicted on six counts relating to possession of heroin with intent to deliver and delivery of heroin, acts which he allegedly committed in March 2000. Naylor's trial finally commenced in August 2004, which is also when Naylor testified and when he was impeached by the prosecution through evidence of his December 1990 conviction for aggravated battery. After Naylor was convicted, he appealed to the Appellate Court of Illinois, which reversed his conviction, and the Supreme Court of Illinois subsequently affirmed the appellate court's opinion. Why?
Well, let's look at how the ten year clock works. The ten year clock begins ticking under Federal Rule of Evidence 609(b), in both its draft and enacted forms, with the date of the prior conviction or the date of release, whichever is later. So, if a witness was convicted of a crime more than ten years before the date when the clock stopped but was not released from confinement for that crime until ten years or less before the clock stopped, Rule 609(b) would cover the conviction, with the date of release being the determinative date. Conversely, if the witness was convicted of a crime and sentenced to time served or not sentenced to incarceration, the date of conviction would be the determinative date. So, what was the determinative date in Naylor?
Well, it turns out that it was December 2000 because the State did not present evidence of Naylor's release date, a mistake which could have been fatal. Why? Well, most courts hold that the ten year clock stops on the date on which the witness testifies. See, e.g., United States v. Watler, 461 F.3d 1005, 1008-09 (8th Cir. 2006). Because Naylor didn't testify until August 2004, more than ten years had elapsed since the date of his conviction, but more than ten years might not have elapsed since he was released from confinement (if he was incarcerated for about five years or more). So, why did the trial court allow for Naylor to be impeached?
Well, the court in Naylor noted that over the years, several Illinois courts found that the clock actually stopped on the date that the defendant allegedly committed the crime for which he was being tried. The court expressly disavowed these decisions based upon two grounds, only one of which makes sense to me. The ground that makes sense to me is that stopping the clock on the date of the alleged crime "presumes that the defendant must be guilty." I agree with the court's conclusion that, "To state this presumption is to reject it."
The court's second rationale, however, was that these courts were wrong because their determination of when the clock stops makes no sense when the individual to be impeached is merely a witness and not a testifying defendant. Furthermore, the court concluded that "[t]o the extent that the State proposes a separate rule for criminal defendants who testify on their own behalf, such a suggestion is not well-taken." This leads me to ask, "Why not?"
Looking at Federal Rule of Evidence 609(a)(1), we see that criminal defendants and other witnesses are treated differently, with a felony conviction being admissible for impeachment purposes against the former only if the state proves that its probative value outweighs its prejudicial effect but admissible against another witness as long as its probative value is not substantially outweighed by dangers such as the danger of unfair prejudice. Meanwhile, Federal Rule of Evidence 609(d) states that evidence of a juvenile adjudication is per se inadmissible against a criminal defendant but admissible against other witnesses in criminal cases under certain circumstances. Thus, it seems to me that there was no reason for the Supreme Court to reject a criminal defendant/other witness dichotomy out of hand.