Monday, October 13, 2008
Lucky In Kentucky?: Murder Case Reveals Broadness And Narrowness Of Its Spousal Testimonial Privilege
An upcoming case in Kentucky reveals that Kentucky's spousal testimonial privilege is not in line with most state's spousal testimonial privileges in two regards. Deshon Marquese Ogburn is charged with murder, a second-degree persistent felony offender charge, and tampering with physical evidence in connection with the shooting death of Christopher Thomas Taylor. Taylor was the lover of Ogburn's wife, and Ogburn allegedly shot and killed him after discovering him in bed with his wife.
Now, one issue in the case is whether the wife's statements to police identifying her husband as the shooter when they first arrived at the scene of the crime will be admissible at Ogburn's trial. The Commonwealth Attorney contends that these statements are admissible as an exception to the rule against hearsay as excited utterances under Kentucky Rule of Evidence 803(2). Furthermore, in anticipation of the wife not testifying against Ogburn at trial, the Commonwealth Attorney has argued that the admission of her statements would not violate the Confrontation Clause because they were "made during the course of gathering information during an emergency." While I don't know enough of the facts of the case to be able to comment on this argument, it is obviously directed at satisfying the test set forth in Davis v. Washington, 547 U.S. 813 (2006), where the Supreme Court held that
"Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] 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."
But why wouldn't the wife testify? Well, according to an article of the case, Ogburn plans to use Kentucky Rule of Evidence 504(a), its spousal testimonial privilege, to prevent her from testifying against him. Under Rule 504(a), "[t]he spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage. A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage." Thus, if the wife didn't want to testify against Ogburn, she could refuse, and if Ogburn wanted to prevent his wife from testifying against her, he could prevent her from testifying; only if both spouses agreed that the wife would be allowed to testify could she render testimony under Rule 504(a).
So, how is Rule 504(a) in the minority? Well, according to the recently released 2nd edition of Fisher's "Evidence," most jurisdictions permit a spouse to refuse to testify against her defendant-spouse while a few jurisdictions find that control of the privilege lies with the defendant-spouse, who can decide whether his spouse will render testimony. Finally, according to the casebook, "[a] third, less common form of the spousal testimonial privilege bars spousal testimony against criminal defendants unless both spouses consent." Kentucky's spousal testimonial privilege thus falls into this third, smallest, category.
While Rule 504(a) thus in one sense makes it more difficult to receive the testimony of a spouse against a defendant-spouse than it is in most jurisdictions, the second way that Kentucky's privilege deviates from the spousal testimonial privilege in the majority of jurisdictions makes it easier to receive such testimony. Like most spousal testimonial privileges, Rule 504(a) has a crime-fraud exception, an exception when the spouses are adverse parties, and an exception when the defendant-spouse is charged with wrongful conduct against his spouse or their children.
Rule 504(a), however, also has three exceptions not contained in most spousal testimonial privileges. These are exceptions that apply
"[i]n any proceeding in which one (1) spouse is charged with wrongful conduct against the person or property of...[a]n individual residing in the household of either; or...[a] third person if the wrongful conduct is committed in the course of wrongful conduct against [the other spousal or their children]. The court may refuse to allow the privilege in any other proceeding if the interests of a minor child of either spouse may be adversely affected."
Thus, if the Ogburn and his wife were estranged and the victim were living with his wife, the privilege wouldn't apply. And if Ogburn's behavior could be construed as wrongful conduct against not only the victim, but also his wife, the privilege wouldn't apply, even if Ogburn were not charged with any crime against his wife. Finally, the privilege wouldn't apply if Ogburn and his wife had a minor child who would be adversely affected if the wife didn't testify. Now, my brief research into Kentucky case law did not uncover any cases where a court applied this last exception, but it seems to me that it could be applied in any case where a minor child is involved. To wit, if the wife's testimony would likely lead to Ogburn being convicted, wouldn't application of the privilege adversely affect their minor child because it would make it likely that the child's father, a probable murderer, would be set free and be able to visit the child and perhaps even have custody over him? I would certainly be interested to see how a Kentucky court might apply this last exception.
Sunday, October 12, 2008
Looking For Some (In)Consistency: Florida Case Perfectly Illustrates Differences Between Two Prior Inconsistent Statement Rules
Rarely do I find a case that perfectly illustrates the differences between the two prior inconsistent statement rules. The recent opinion of the District Court of Appeal of Florida in S.L. v. State, 2008 WL 4489253 (Fl.App. 4 Dist. 2008), however, fits the bill perfectly.
In S.L., "S.L. appeal[ed] her adjudication of delinquency for simple assault on the grounds that the trial court erred by allowing the state to prove its case exclusively through the mother's prior inconsistent statements." Specifically, on a September evening, S.L. and her mother engaged in a heated argument in their living room concerning S.L.'s purchase of a motor vehicle. Following the argument, S.L. stayed in the living room and her mother went to her bedroom, whereupon she heard a crash. The mother returned to the living room, where she discovered that S.L. was gone and the coffee table was broken. The mother called the police, and a deputy conducted an investigation, which resulted in S.L. being charged with criminal mischief and assault.
At S.L.'s ensuing trial, her mother testified that she called the police after she returned to the living room and discovered that S.L. was gone and the coffee table was broken. When the state inquired as to whether the argument got "a little bit more than just a little hostile between you and your daughter," the mother replied that it did not. The state then asked whether S.L. threatened her, and the mother responded, "No, she did not." Finally, the state asked the mother whether she told the officer that S.L. said, "You bitch, I'm going to kill you. I'm going to stab you," and the mother again responded, "No, I did not." The state then called the responding deputy as its next witness, and, over defense counsel's objection, the deputy testified that the mother told him that she called the police after S.L. became very aggressive and said, "Bitch, I'm going to kill you. I'm going to stab you."
At the conclusion of the state's evidence, S.L. moved for a judgment of dismissal on both charges, arguing that there was insufficient evidence of guilt and that the mother's prior inconsistent statements could not be used as substantive evidence. The trial court granted the motion as to the criminal mischief charge but denied the motion as to the simple assault charge and later found S.L. her guilty of simple assault based solely upon the deputy's testimony. This prompted S.L.'s appeal.
What the court didn't address was that the deputy's testimony was actually "hearsay within hearsay" under Florida Statute Section 90.805 because the deputy was testifying about what the mother told him about what her daughter told her. The court jumped to the issue of whether the mother's statement was hearsay, which actually is fine because the S.L.'s alleged statement was an admission of a party-opponent under Florida Statute Section 90.803(18)(a), meaning that the sole question the court needed to decide was whether the mother's statement was hearsay.
And the court found that it was hearsay because it did not qualify for admission as a prior inconsistent statement under Florida Statute Section 90.801(2)(a), which deems a statement nonhearsay "if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is...[i]nconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition." The problem for the state was that "the mother's statements to the deputy were not given under oath at a trial, hearing, or other proceeding or in a deposition." This was because the Florida Supreme Court has found (as it had to) that a statement given during a police investigation is not a statement given at an "other proceeding."
This is not to say that the deputy's testimony was inadmissible. It just means that because the mother's statement was hearsay, her statement could not be used to prove the truth of the matter asserted: that S.L. threatened her. Instead, under Florida Statute Section 90.614, it could only be used for impeachment, i.e., to call into question the credibility of the mother of a witness.
I always like to tell my students in contrasting these two prior inconsistent statement rules that the difference between the two is that when a prior consistent statement is admissible only for impeachment purposes and it is the only evidence of a defendant's guilt, the court must grant a motion for dismissal/directed verdict because there is no substantive evidence of the defendant's guilt. In other words, in S.L.' case, the only evidence of S.L.'s guilt was her mother's statement, but that statement was not admissible substantively to prove S.L.'s guilt; it was only admissible for impeachment purposes. Thus, the court correctly found that the trial court erred and reversed S.L.'s adjudication of delinquency on the simple assault charge.
Saturday, October 11, 2008
Cold Cases Become Cold Again: Illinois Prosecutors Recognize That Death Of Key Prosecution Witness Doesn't Trigger Former Testimony Exception
The death of a key witness for the prosecutors has led Kane County prosecutors to mull dropping charges in two "cold case" Aurora murders. Jamaal "Isaac" Delville Garcia was slated to testify against Jesse Lopez and Quentin Moore as part of the Aurora cold case operation, a joint FBI and local police venture dubbed First Degree Burn. Both of those cases, however, were jeopardized after Garcia was found murdered on September 23rd. His body was badly burned, and he had been shot multiple times, apparently after a dispute over a gun. Not only was Garcia to testify against Lopez and Moore, but his testimony was apparently essential to their prosecutions, with Kane County State's Attorney John Barsanti saying, "We cannot prove these cases without him."
An article on the case states that all of the cold case witnesses went before a grand jury. According to the article, however, the State's Attorney recognized that "[b]ecause a defense attorney wouldn't be able to question Garcia, any statements or grand jury testimony he provided are not admissible in a trial." This conclusion is correct, and it provides a nice platform for a discussion of the former testimony exception to the rule against hearsay.
Under Federal Rule of Evidence 804(b)(1), the "former testimony" exception to the rule against hearsay, if a declarant is "unavailable" to testify at trial, the following is admissible:
"Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."
Illinois doesn't have codified rules of evidence, but it has basically applied the same reasoning in its case law. See, e.g., People v. Rice, 651 N.E.2d 1083, 1086 (Ill. 1995) ("For an opportunity to cross-examine to be considered meaningful, and therefore adequate and effective, the motive and focus of the cross-examination at the time of the initial proceeding must be the same or similar to that which guides the cross-examination during the subsequent proceeding. (Cf. Fed.R.Evid. 804(b)(1).).").
In other words, if the party against whom former testimony is offered had an opportunity and similar motive to develop the declarant's testimony at a hearing/deposition, he can't complain when that declarant's testimony is offered against him at trial. See id. The problem for prosecutors in the Lopez and Moore cases is that neither the defendants nor defense counsel were present during Garcia's grand jury testimony, meaning that the defendants had no opportunity to develop Garcia's testimony. Thus, the "former testimony" exception is inapplicable, and it looks as if the prosecution will have to drop the charges against them.
(It's important to note that even if the defendants were present for Garcia's grand jury testimony, the "former testimony" exception might not have applied because some courts have recognized that, at least in some circumstances, litigants have different motives at grand jury proceedings than they have at trials in terms of developing testimony. See, e.g., United States v. DiNapoli, 8 F.3d 909, 915 (2nd CIr. 1993) ("These two circumstances dispel similarity of motive, and the absence of similar motive is not rebutted by the limited cross-examination undertaken by the prosecutor at the grand jury.").
Friday, October 10, 2008
The recent opinion of the Court of Appeals of Texas in Fort v. State, 2008 WL 4500318 (Tex.App.-Texarkana 2008), reveals how tight of a seal a defendant must keep on the evidentiary Pandora's box that is the "mercy rule" if he wants to ensure that propensity character evidence does not pervade his trial. More importantly, it is, at least in my view, a clearly erroneous decision.
The facts of Fort are brief:
"When Gilmer police executed a search warrant at 904 Warren Street, Jason Demarcus Fort was there with various men, but had not been there as long as had many of the others. Fort was in a back bedroom when police arrived and tried to break out a window to escape, cutting himself badly in the process. When officers corralled him and were in the process of taking him to an emergency medical vehicle for treatment, Fort made another effort to escape, running out the front door. This time, Fort was tackled and taken to the hospital. [Police recovered a set of digital scales with cocaine residue from Fort's pocket]. Several batches of crack cocaine were later found on the premises. Some of those present at the time protested that the cocaine did not belong to Fort. Fort appeal[ed] his resulting conviction for possession of a controlled substance with intent to deliver, within 1,000 feet of a school zone."
One of the grounds for Fort's appeal was that the trial court improperly allowed the prosecutor to question a defense witness about Fort's prior conviction for delivery of cocaine. Specifically, Fort called Ricky Moore, the owner of the house that was searched. Moore testified that Fort arrived at his house only about twenty to thirty minutes before officers arrived and executed the warrant. Based on this arrival time, Moore was sure none of the cocaine at the scene belonged to Fort because the other men and the cocaine were already at the house when Fort arrived. Furthermore,
"[w]hen asked about the scales found in Fort's pocket, Moore said he knew nothing about that. Moore, who has diabetes and a prosthetic leg, said Fort frequently helped him around the house and brought him groceries. Fort, said Moore, would help with the dishes, sweep the floors, or leave money for Moore. All that led to Moore's testimonial that Fort was 'a pretty good guy.'"
Thereafter, on cross-examination, and over Fort's objection, the prosecutor asked "Moore if he was aware that Fort had been convicted in March 2002 for delivery of cocaine. Moore said he knew of the conviction but thought it was for marihuana."
On appeal, Fort claimed that that this question elicited impermissible propensity character evidence, and if Moore had not rendered the indented testimony above, he would have been correct. Like its federal counterpart, Texas Rule of Evidence 404(a) states that "[e]vidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion."
Also like its federal counterpart, however, Texas has a "mercy rule" in Texas Rules of Evidence 404(a)(1) & (2), under which the defendant can open the door and present evidence concerning his good character for a pertinent character trait or the alleged victim's bad character for a pertinent character. Of course, doing so opens Pandora's box because the prosecutor can then respond in kind by presenting evidence concerning the defendant's bad character for a pertinent character trait and/or evidence concerning the alleged victim's good character for a pertinent character trait. Also, pursuant to Texas Rule of Evidence 405(a), if the defendant has presented a good character witness on his behalf, the prosecution can cross-examine that witness concerning relevant specific instances of conduct.
As support for its conclusion that Moore's testimony constituted evidence concerning Fort's good character for a pertinent character trait, thus permitting the prosecution to cross-examime Moore regarding Fort's cocaine conviction, the court relied upon the opinion of the Texas Court of Criminal Appeals in Harrison v. State, 241 S.W.3d 23 (Tex.Crim.App. 2007), a case where the defendant was alleged to have inflicted fatal, blunt force trauma to his eight year-old son and appealed from his convictions for manslaughter and injury to a child. According to the court in Fort,
"[t]he Texas Court of Criminal Appeals has reviewed a similar situation. See Harrison v. State, 241 S.W.3d 23 (Tex.Crim.App.2007). In Harrison, a defense witness said the defendant 'was a sweet person, he was a good person' and that he 'watched my kids and I don't have a problem with him....' Citing Rules 404 and 405 of the Texas Rules of Evidence, and stating that '[a]lthough Appellant did not intentionally elicit [the witness'] character testimony, the non-responsiveness of [the witness'] statement does not change the fact that it was character evidence offered by a defense witness....' The cross examination was allowed."
So, lesson #1 to take from Fort is to tread lightly if you are a criminal defense attorney and do not want propensity character evidence to infect your client's trial. As is clear from Harrison and Fort, even if you don't intentionally elicit character testimony from a witness, a court can still find that you opened Pandora's box and that the prosecution will thus be able to respond in kind and with damaging questions regarding prior bad acts on cross-examination. So, if your witness unexpectedly renders character evidence, ask for the court to strike the testimony.
Lesson #2 goes to judges, and hopefully the Texas Court of Criminal Appeals, which should hear Fort's inevitable appeal and find that the lower courts committed error. And that lesson is that the "mercy rule" is only triggered when a criminal defendant presents evidence concerning a pertinent character trait. And in Harrison, this is what clearly happened. The defendant was on trial for allegedly causing the death of his child, meaning that the pertinent character trait in his trial was his violence or peaceableness toward children. And the defense witness' testimony that he had no problem with the "sweet" and "good" defendant with whom he trusted his children was clearly evidence concerning the defendant's good character for this pertinent character trait.
Conversely, in Fort, the defendant was charged with possession of a controlled substance with intent to deliver, within 1,000 feet of a school zone." This means that there were likely a few pertinent character traits in this trial: Whether Fort was "clean" or addicted and whether he was the type of person who would deal, as opposed to merely use, drugs (and possibly some character traits dealing with his relationship with children). Moore's testimony, however, did not relate to any of these pertinent character traits; it was merely testimony about Fort being nice to a disabled/diabetic adult. In fact, the prosecutor likely could have objected that this testimony was irrelevant to any issue at trial. What he could not have done, however, was cross-examine Moore about Fort's prior cocaine conviction because Moore presented no testimony concerning any pertinent character trait, and I don't see how the lower Texas courts found otherwise.
Thursday, October 9, 2008
Day(s) Of Atonement: D.C. Case Reveals That Continuances Based Upon Yom Kippur Are Non-Excludable Under The Speedy Trial Act While Most Delays From Motions To Admit/Exclude Evidence Are Excludable
The recent opinion of the District Court for the District of Columbia in United States v. Ferguson, 565 F.Supp.2d 32 (D.D.C. 2008), reveals that delays resulting from motions to admit/exclude evidence which are subject to "prompt disposition" are excludable under the Speedy Trial Act while delays resulting from continuances granted as the result of (Jewish) holidays are not. In Ferguson, Darren A. Ferguson was indicted on February 5, 2004 on one count of conspiracy to import five kilograms or more of cocaine and one thousand kilograms or more of marijuana into the United States and to knowingly manufacture or distribute the same with the intent that they would be unlawfully imported into the United States. Because of a "long and convoluted procedural history," his trial did not commence until May 2008. On the eve of trial, Ferguson moved to dismiss the indictment, claiming that his rights had been violated under the Speedy Trial Act, 18 U.S.C. Section 3161.
The trial court took the motion under advisement but nonetheless proceeded with the trial, after which Ferguson was convicted. The government thereafter filed its opposition to Ferguson's motion to dismiss, and the court found that Ferguson's arguments carried the day. It found the there was a violation of the Speedy Trial Act, granted Ferguson's motion, and dismissed the indictment without prejudice, effectively undoing the results of the trial.
In affirming this conclusion, the District Court for the District of Columbia had to determine how many of the days in 2004-2008 were excludable from the Speedy Trial Act's clock. I will focus on just two of these determinations, but you can find the rest of them in the court's opinion.
First, the court noted that some of the delays in the case were the result of the court needing time to resolve the prosecution's multiple motions to admit evidence pursuant to Federal Rule of Evidence 404(b). The court found that these delays were excludable from the Speedy Trial Act's clock, concluding that:
"[D]elay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion” is properly excludable under the Act. 18 U.S.C. Section 3161(h)(1)(F). In calculating delay caused by the filing of pretrial motions, the Act distinguishes between motions which require a hearing and motions where no hearing is required and the motion is subject to 'prompt disposition....' In the latter situation, which is applicable here, the Act 'permits an exclusion of 30 days from the time a motion is actually 'under advisement' by the court."
Second, the court noted that Ferguson's trial was at one point scheduled for September 11, 2007. The court indicated, however, that on July 23, 2007, Ferguson moved to continue the September 11, 2007 trial date because trial would conflict with Rosh Hashanah and Yom Kippur, which was problematic for his attorney. The motion was unopposed by the prosecution and was granted by the court on August 7, 2007, when trial was rescheduled to begin on October 9, 2007. The court concluded, and the prosecution did not dispute, that the delay caused by this continuance was non-excludable because it failed to fit within any of the specific exclusions provided by the Speedy Trial Act. However, because the prosecution actually filed one of its motions to admit evidence under Rule 404(b) on September 18, 2007, the Rosh Hashanah/Yom Kippur continuance actually only caused 7 days of non-excludable delays, with the rest of the days up to October 9th being excludable.
In the end, however, this second ruling was unnecessary because the court merely needed to find that more than 70 non-excludable days passed between Ferguson's first court appearance and trial for there to be a Speedy Trial Act violation, and there were 112 such days, with only 7 of those days being the result of the Rosh Hashanah/Yom Kippur continuance.
Wednesday, October 8, 2008
We The Jury, Take 3: 7th Circuit Issues Report On ABA's Principles For Juries And Jury Trials, Including Jury Questioning Principle
An article in today's Daily Iowan notes that the 7th Circuit's Bar Jury Project Commission recently completed a three year test of seven of the American Bar Association's nineteen Principles for Juries and Jury Trials and issued a written report, the Seventh Circuit American Jury Project Final Report. The first principle explored in the report was the ABA's recommendation regarding jury questioning, which states that:
C. In civil cases, jurors should, ordinarily, be permitted to submit written questions for witnesses. In deciding whether to permit jurors to submit written questions in criminal cases, the court should take into consideration the historic reasons why courts in a number of jurisdictions have discouraged juror questions and the experience in those jurisdictions that have allowed it.
1. Jurors should be instructed at the beginning of the trial concerning their ability to submit written questions for witnesses.
2. Upon receipt of a written question, the court should make it part of the court record and disclose it to the parties outside the hearing of the jury. The parties should be given the opportunity, outside the hearing of the jury, to interpose objections and suggest modifications to the question.
3. After ruling that a question is appropriate, the court may pose the question to the witness, or permit a party to do so, at that time or later; in so deciding, the court should consider whether the parties prefer to ask, or to have the court ask, the question. The court should modify the question to eliminate any objectionable material.
4. After the question is answered, the parties should be given an opportunity to ask follow-up questions.
So, how did the Seventh Circuit test this principle and the other principles? Well, you can get the full methodology in the report, but, basically, one or more of the ABA's principles were tested in 50 jury trials, after which 434 jurors, 86 attorneys, and 22 federal trial judges completed questionnaires. And according to the report, "[t]he concepts tested by the Seventh Circuit Project were generally viewed by the participants as enhancing the jury trial process."
Specifically, with regard to the jury questioning principle, "Of the participating jurors in the test, 83 percent said the questions positively affected their understanding of the facts. In addition, 77 percent of participating judges and 65 percent of the attorneys were in favor of the procedure." And that's really just the tip of the iceberg. The report also contains a wealth of statistical data on issues such as how many questions were submitted by jurors, whether the judges/attorneys/jurors were satisfied with the number of juror questions asked, and how the number of questions asked varied based upon the educational background of the jurors." (Furthermore, the report contains similar detailed data for each of the 7 tested principles).
This data jives with the findings from the implementation of Florida's new rules, which mandated jury questioning in civil trials and made such questioning permissible in criminal trials (I have blogged the Florida experience about here and here). As I noted in my second post on Florida's new rules, Circuit Judge De Furia has been the only judge in Florida to allow juror questions in all of his trials,
"And according to both prosecutors and defense attorneys who have tried cases before De Furia, the process has improved the quality of the trials. Meanwhile, jurors in those cases have claimed that the process has clarified issues and made their decisions easier."
As I also noted then, "I still maintain that juror apathy/confusion is the biggest concern facing the American legal system, and I think that based upon these early returns, the Florida rules could indeed serve as a model for other states." I think that the results of this report corroborate this conclusion, and I hope that courts takes a long look at all of the findings of the Seventh Circuit's report in the years to come.
Tuesday, October 7, 2008
Formula 409: Fictional Superman Trial Illustrates General Inadmissibility Of Offers To Pay Medical Expenses
Matthew Nelson has had a couple of recent posts in the Examiner (here and here) about "Whine, Whine, Whine," a second season episode from the TV show, "Lois & Clark," in which a musician sues Superman after the Man of Steel allegedly breaks his arm while rescuing him (which amusingly leads, not to a "Watchmen"-esque ban on superheroes, but simply several citizens of Metropolis bringing bogus personal injury claims against Supes). During the ensuing trial, Superman testifies that he offered to pay the musician's medical expenses. According to Nelson,
"Although the federal rules of evidence state that such a statement cannot be considered an admission of guilt and a jury will be instructed as such, it is highly likely that a jury would interpret such a statement in this way. The logical conclusion is that most people would not offer to pay another person's medical expenses if the person who made that offer did not cause that harm."
Thus, Nelson concludes, "Much of this boils down to seeing that someone who is injured in your place of business gets that necessary medical treatment but also being sure to keep your mouth shut as much as possible and follow your attorney's advice to the letter."
While I agree with Nelson that it is usually a good (legal) idea to keep your mouth shut after an accident/injury, you really don't need to worry about offering to pay the victim's medical expenses. That is because, as Nelson alludes to, Federal Rule of Evidence 409 (as well as most state counterparts) indicates that: "Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury."
Furthermore, it is extremely unlikely that such offers to pay medical expenses will be admissible to prove any permissible purpose. One rare instance where an offer to pay medical expenses may be admissible would be if: (a) there is a three car pile-up between Bob, Carol, and Ted, and Bob offers to pay the medical expenses of Carol, who is Caucasian, but not Ted, who is African-American, and (b) Ted claims at trial that Bob intentionally struck his car because of his race and seeks to use Bob's offer to pay Carol's medical expenses, but not his, as evidence of his racial bias. But as I noted, these situations are exceedingly rare.
What this means is that if Superman were being tried in a real court of law, his attorney almost certainly would have instructed him not to mention that he offered to pay the musician's medical expenses and would have been able to object successfully to any attempt by the plaintiff's attorney to elicit testimony on the subject. What this means is that if someone gets injured and you think that you might be responsible, you should listen to your heart, damn the torpedoes, and offer to pay his or her medical expenses.
Monday, October 6, 2008
The Time Has Come Today: 3rd Circuit Becomes Latest Court To Find That A Criminal Defendant Can Waive The Substantive Protections Of Rule 410
Based upon its recent opinion in United States v. Hardwick, 2008 WL 4444294 (3rd Cir. 2008), the Third Circuit has become the latest court to find that a criminal defendant can waive the protections of Federal Rule of Evidence 410 to such an extent that his plea/statements can be used not only for impeachment purposes, but also substantively.
The opinion in Hardwick was based upon the following facts. The "Perez Organization" was led by Enrique "Ricky" Perez, a cooperating witness, and defendants Bernard "B-Nice" Murray and Allen "Tito Allen" Resto. Meanwhile, defendant Lorenzo "Fu Quan" Hardwick managed one of the drug corners controlled by the Perez Organization, and defendant Jose G. Rodriguez was one of the primary "baggers" for the gang, responsible for processing the drugs into individual bags for street sale. Various disputes erupted between members of the Perez Organization and competing drug dealers, resulting in three individuals being shot to death and several others being badly injured. A federal grand jury in Camden, New Jersey subsequently issued an eight count Superseding Indictment naming Murray, Resto, Hardwick, and Rodriguez as defendants.
During the investigation before trial, Murray entered into a proffer agreement (a/k/a a "queen for a day" agreement) with the government. Under this proffer agreement, Murray agreed to cooperate with the investigators by answering questions truthfully and completely, and the government agreed not to use these statements against him at trial in its case-in-chief. The proffer agreement provided for an exception, however, if the government needed "to rebut any evidence or arguments offered on [Murray's] behalf." When Murray was interviewed under this agreement, he admitted to planning and participating in the slaying of two individuals, Hiram "Chubby" Rosa and Kenneth "Smoochie" Allen.
At trial, Murray did not testify in his own behalf, but during cross-examination of witnesses for the prosecution, Murray's attorney raised questions that were designed to support the inference that Perez and possibly Mark Lee, the leader of another drug gang, were responsible for the murders of Rosa and Allen. Because these questions were also designed to support the inference that Murray was not responsible for these murders, they were also contrary to the statements Murray made under the proffer agreement. Accordingly, the trial court found that, pursuant to the terms of the proffer agreement, the prosecution could present Murray's admissions as substantive evidence of his guilt during its case-in-chief.
On appeal, Murray claimed that the prosecution improperly introduced his admissions, which led the Third Circuit, inter alia, to consider whether the waiver contained in the proffer agreement was enforceable. The Third Circuit began by recognizing that Murray's admission would ordinarily be inadmissible under Federal Rule of Evidence 410, which states in relevant part that:
"Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn."
But, the Third Circuit noted that in its landmark ruling in United States v. Mezzanatto, 513 U.S. 196, 210 (1995), the Supreme Court concluded that a criminal defendant can waive the protections of Federal Rule of Evidence 410 pursuant to a proffer agreement (a/k/a a "queen for a day" agreement) as long as there is no "affirmative indication that the agreement [to waive] was entered into unknowingly or involuntarily." Importantly, however, the Third Circuit also recognized that "the Mezzanatto Court only considered the enforceability of proffer waivers for impeachment purposes, and five justices expressed doubt as to whether a waiver could be used to admit the defendant's statement in the Government's case-in-chief."
Indeed, in their concurring opinion, Justices Ginsburg, O'Connor, and Breyer found that:
"The Court holds that a waiver allowing the Government to impeach with statements made during plea negotiations is compatible with Congress' intent to promote plea bargaining. It may be, however, that a waiver to use such statements in the case in chief would more severely undermine a defendant's incentive to negotiate, and thereby inhibit plea bargaining. As the Government has not sought such a waiver, we do not here explore this question."
Meanwhile, in their prophetic dissenting opinions, Justices Souter and Stevens argued that:
"The second consequence likely to emerge from today's decision is the practical certainty that the waiver demanded will in time come to function as a waiver of trial itself. It is true that many (if not all) of the waiver forms now employed go only to admissibility for impeachment. But although the erosion of the Rules has begun with this trickle, the majority's reasoning will provide no principled limit to it. The Rules draw no distinction between use of a statement for impeachment and use in the Government's case in chief. If objection can be waived for impeachment use, it can be waived for use as affirmative evidence, and if the Government can effectively demand waiver in the former instance, there is no reason to believe it will not do so just as successfully in the latter. When it does, there is nothing this Court will legitimately be able to do about it. The Court is construing a congressional Rule on the theory that Congress meant to permit its waiver. Once that point is passed, as it is today, there is no legitimate limit on admissibility of a defendant's plea negotiation statements beyond what the Constitution may independently impose or the traffic may bear."
And indeed, this is exactly what happened, with the Third Circuit recognizing that several other circuit courts had enforced proffer agreements under which criminal defendants authorized the admission of their incriminatory statements as substantive evidence during the prosecution's case-in-chief. And the Third Circuit decided to join these courts and thus affirmed the trial court's decision to allow the prosecution to introduce evidence of Murray's incriminatory statements as substantive evidence during its case-in-chief.
All of this leads me to think that it is time for the Supreme Court to grant cert in one of these cases. As noted, Mezzanatto did not answer the question of whether a criminal defendant's incriminatory statements can be used as substantive evidence based upon a proffer agreement, and five justices expressed doubt on the issue. This being the case, there seems to me to be a decent chance that the Supreme Court would find this practice unconstitutional, and it certainly seems to be an issue of such importance that the Court should resolve it.
Sunday, October 5, 2008
Throwing The Baby Out With The Bath Water?: Connecticut Court Finds No Reversible Violation Of Right To Present A Defense In Assault Case
The recent opinion of the Appellate Court of Connecticut in State v. Thomas, 2008 WL 4426789 (Conn.App. 2008), contains an interesting, and I would argue, correct, application of the "right to present a defense." In Thomas, Tania Thomas appealed from her convictions of assault in the first degree and assault in the third degree based on an altercation with Jessica Wilson. At trial, Thomas claimed self-defense and sought to prove this claim at least in part through a somewhat strange line of questioning during cross-examination of Wilson. Specifically, defense counsel inquired during cross-examination of Wilson whether she had any children. Wilson responded that she had one child who was six years old.
Later in the cross-examination, defense counsel asked her if she had custody of a child named Evelyn. The state objected on the ground that the question was beyond the scope of direct examination, and the court agreed. Defense counsel then asked Wilson if she had "ever heard of Isabelle Wilson," and Wilson responded that "[t]here is no Isabelle Wilson." The state again objected, and the court again sustained its objection. Immediately following the objection and outside of the presence of the jury, defense counsel argued that the line of inquiry was relevant to Wilson's credibility. He asserted that Wilson had lied under oath about how many children she had and that the defense had information to believe that one of Wilson's children may have been sold for drug money.
The court again sustained the state's objection, and later, during the defense case, defense counsel sought to recall Wilson as a witness. The state again objected, noting that defense counsel had a full and fair opportunity to interrogate Wilson on cross-examination. At this point, defense counsel shifted its theory of the evidence regarding Wilson allegedly selling her child for drug money. Defense counsel now argued that Thomas had evidence of Wilson selling a child for drug money, that she told Wilson she planned to expose her, and that this gave Wilson the motive to attack Thomas. Once again, the court sustained the state's objection and did not permit this line of questioning.
After Thomas was convicted, she appealed, claiming, inter alia, that these evidentiary rulings violated her right to present a defense. In addressing this argument, the Appellate Court of Connecticut presented a pretty nice explanation of the Constitutional right to present a defense under the Sixth Amendment's Compulsory Process Clause. According to the court,
"[a] defendant's right to present a defense does not include a right to present evidence that properly is excluded under the rules of evidence....The sixth amendment to the United States constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense....The defendant's sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence....Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense....A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant's right is not violated....The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion.... Even when a trial court's evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial....In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful." (emphasis added).
The problem for Thomas was that while the Appellate Court found that the trial court's decision to preclude inquiry into whether Wilson sold a child for drug money was wrong, it also found that this error was not (sufficiently) harmful. The Appellate Court
"conclude[d] that the [trial] court improperly excluded evidence relevant to Wilson's alleged motive to attack the defendant. Because the defendant raised the defense of self-defense at trial, the determination of whether Wilson or the defendant was the initial aggressor was material....Although the proffered evidence may have strained credulity, it tended to corroborate the defendant's assertion that Wilson initially attacked her because it tended to show that Wilson had a motive to attack the defendant."
Nonetheless, the Appellate Court found that this error could not support a new trial because Thomas was allowed to present significant other evidence that Wilson had a motive to attack her. According to the court,
"evidence was adduced that the two women were bitter rivals, that they had fought for the attentions of Moussay Ortiz and that they had been arrested several times for fighting with each other. Wilson acknowledged in her testimony that she previously had fought with the defendant and called her 'a black bitch.' Because the theory in question provided at most merely one more motivation to attack, its exclusion did not foreclose an entire defense theory and, therefore, did not rise to the level of a constitutional violation."
As I noted above, I think that the court applied the correct analysis. I'm currently researching an article on the right to present a defense, and the Appellate Court of Connecticut's ruling seems to be pretty consistent with precedent across the country finding that there can't be a violation of the right to present a defense sufficient to warrant a new trial when the defendant is precluded from presenting evidence supporting his theory of the case but is permitted to introduce (sufficient) other evidence supporting that theory. See, e.g., United States v. Deering, 179 F.3d 592 (8th Cir. 1999).
Saturday, October 4, 2008
Dampening The Flames: 2nd Circuit Finds Trial Court Made Incorrect Prior Consistent Statement Ruling During Cross-X Of CI Who Set Himself On Fire In Front Of The White House
After discussing the seemingly misguided application of the prior consistent statement rule by the Court of Criminal Appeals of Texas yesterday, I wanted to cleanse my palate with a court correctly applying the rule. And, as luck would have it, a helpful reader recently sent me a link to the Second Circuit's recent opinion in United States v. Al-Moayad, 2008 WL 4443841 (2nd Cir. 2008), which he told me had some great discussion of Federal Rule of Evidence 403. And he's right. The discussion of Rule 403 in the opinion is extensive and well reasoned, and I would direct readers wanting an in depth analysis of the rule to the opinion. Al-Moayad, however, also contains a well stated application of the prior consistent statement rule, which I will address in this post.
In Al-Moayad, Mohammed Ali Al-Moayad and Mohammed Mohsen Zayed appealed from judgments of conviction in the United States District Court for the Eastern District of New York (in my old stomping ground of Brooklyn). Both were convicted of conspiring to provide material support to designated terrorist organizations Hamas and Al-Qaeda, and attempting to provide material support to Hamas.
These charges were levied against Al-Moayad after an FBI investigation, which was aided to a great degree by a confidential informant named Mohammed Al-Anssi. Prompted by the events of September 11, 2001, Al-Anssi approached the FBI to offer information relating to terrorism. Al-Anssi claimed that he first met Al-Moayad in Yemen in 1995, where they were neighbors and Al-Moayad was the imam of a mosque and ran a bakery and a school. He further alleged that in 1996 or 1997, he learned from Al-Moayad that he was involved in supplying money, arms, and recruits to terrorist groups. After Al-Anssi relayed this information to FBI Special Agent Brian Murphy, Murphy enlisted Al-Anssi as his principal confidential informant and used him to help develop the government's case against Al-Moayad, and later Zayed.
As the Secnd Circuit noted, however, "Al-Anssi did not offer his assistance for free." Instead,
"he admitted that he was in difficult financial circumstances when he approached the FBI and that he sought compensation in exchange for information. Al-Anssi testified that in 2001, he was in the United States on a tourist visa. He was heavily in debt, looking for work, and in need of assistance for himself and his family. Al-Anssi initially asked the FBI for 5 million dollars in exchange for his assistance, 'hoping that it will go up, no problem.' He also requested United States citizenship and that his family be brought to the United States from Yemen. In describing his motive for seeking compensation, Al-Anssi testified, 'the issue was the truth, the whole issue, and after I chase the terrorists and to bring him here to America, I deserve even 10 million dollars.'
Al-Anssi stated that he was paid $100,000 by the FBI for his assistance. However, he believed that he deserved millions, '[a]nd I expect more than that.' Al-Anssi admitted that, because he was upset about his small payment from the FBI, he falsely told the Washington Post that the FBI promised to pay him 5 million dollars. He also testified that in November 2004, in an attempt to coerce the FBI into paying him more money, he set himself on fire in front of the White House. With regard to this incident, Al-Anssi testified that he did not intend to commit suicide, but that he 'wanted to put the government and the world on notice,' and that '[i]t is my right to get as much as I can from the FBI.'"
So, what did Al-Anssi do as a CI? Well, a big part of his job was to go to Yemen three times in 2002 and gather incriminatory statements from Al-Moayad. Later, In collaboration with German law enforcement agencies, the FBI arranged for Al-Moayad and Zayed to meet with Al-Anssi and another CI. These meetings were secretly recorded, and based upon how they are presented in the Second Circuit's opinion, they don't seem very incriminatory to me. For instance, at the first meeting, Al-Moayad expressed his desire to secure money for his charity projects, including his bakery, and no one explicitly mentioned funding terrorist activity. The government later contended, however, that the defendants' references to Al-Moayad's charitable endeavors were actually code for various forms of support for terrorism.
So, what happened at trial? Well, undoubtedly influenced by the fact that Al-Anssi set himself on fire in front of the White House, the prosecution didn't call him as a witness and instead tried to prove its case through the testimony of other witnesses and the recordings of the meetings. The defendants, meanwhile, called Al-Anssi as part of their case in chief, in which they alleged entrapment. And after calling Al-Anssi, they
"elicited significant impeachment testimony from him, including admissions of his heavy indebtedness, financial difficulties, and his attempts to obtain large sums of money from the FBI in exchange for information. Al-Anssi also conceded that he had a prior felony conviction, having pled guilty in the Eastern District of New York to bank fraud (specifically, writing bad checks). Al-Anssi further testified that he had purchased a dry cleaning business with a portion of the $100,000 he received from the FBI, but the business failed and he returned it to the seller in June 2004. A1-Anssi admitted that, after this failure, he had run out of money, leading to his attempt in November 2004 to get more money from the FBI by setting himself on fire at the White House."
During its subsequent cross-examination of Al-Anssi, the prosecution questioned him about his three meetings with Al-Moayad in Yemen, at which point he relayed some possibly incriminatory statements that Al-Moayad had made. The prosecution then moved to introduce into evidence handwritten notes Al-Anssi took during his three meetings with Al-Moayad, arguing that defense counsel had opened the door to their admission as prior consistent statements with his impeachment of Al-Anssi. The notes
"memorialized, among other things, the following information: Al-Moayad was 'the right hand' to Sheikh Abdul Majid Al-Zindani; at some point in the past, Al-Moayad was 'the main person choosing the volunteers' to send to fight in the conflicts in Chechnya, Afghanistan, and Bosnia; during Al-Anssi's first trip to Yemen, Al-Moayad provided him with information about foreign arms dealers; Al-Moayad asked Al-Anssi not to call him on the phone, and to refer only to medical treatment if he did so; Al-Moayad was aware while still in Yemen that Saeed (the other CI) intended to give a substantial sum of money ($2 million) specifically to support the armed mujahidin; Al-Moayad visited and supported Bin Laden in Afghanistan; he knew young volunteers who were ready for training in jihad; and he gave $3.5 million to Palestine and $20 million to Al-Qaeda 'during last few years and before the Sept. 11, 2001.'"
On appeal, Al-Moayad claimed, inter alia, that the trial court erred by admitting these notes into evidence as prior consistent statements under Federal Rule of Evidence 801(d)(1)(B), which indicates that "[a] statement 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...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive."
The problem for the prosecution, however, was that Rule 801(d)(1)(B) contains a "fundamental temporal requirement" in that the prior consistent statement "must have been made before the declarant developed [an] alleged motive to fabricate." And, according to the Second Circuit, Al-Anssi created the notes only after a significant motive to fabricate arose, "namely the large amount of money he expected and was paid to furnish information to the FBI." The Second Circuit then rejected the prosecution's weak argument that the notes were not offered as substantive evidence under Rule 801(d)(1)(B), found that this error and other errors were not harmless, and vacated andremanded for further proceedings. And based upon the temporal requirement of the Rule, I think that the Second Circuit's decision was absolutely correct.
Friday, October 3, 2008
We Are The Fabrication: Court Of Criminal Appeal Of Texas Makes Seemingly Erroneous Prior Consistent Statement Ruling
I am a bit baffled by the recent opinion of the Court of Criminal Appeals of Texas in Klein v. State, 2008 WL 4414498 (Tex.Crim.App. 2008), which I think contains a fundamental misunderstanding of the prior consistent statement rule. In Klein, Nicholas Klein was charged in an eight-count indictment with aggravated sexual assault of a child, his daughter.
Specifically, when she was ten years old, the complainant told a school counselor that Klein had sexually abused her. Very soon after this, the complainant repeated these accusations to a Child Protective Services investigator (Todd) and to a police investigator (Cook). The complainant, however, subsequently recanted these accusations against her father.
Thereafter, at trial, during the State's direct examination, the complainant reaffirmed her recantation and testified that her father did not sexually abuse her. The complainant, however, also testified on direct examination by the State that her father did sexually abuse her. Klein's lawyer claimed that the complainant's direct-examination testimony in which she claimed that he father did sexually abuse her was influenced by the State's trickery in questioning her. The trial court decided that this assertion allowed the State to introduce into evidence the complainant's prior out-of-court statements to Todd and Cook to show that the complainant said the same thing without any "trick" questions from the State. According to the trial court, these prior statements were admissible under Texas Rule of Evidence 801(e)(1)(B), which indicates that "[a] statement 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...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive."
On Klein's appeal, the Second Court of Appeals reversed, holding that:
"We see no caselaw, nor does the State direct us to any, that would justify our stretching rule 801(e)(1)(B) to hold that [the complainant's] disavowal of her testimony supporting [appellant's] guilt, taken alone, operated as an implicit charge that she was 'improperly influenced.' Similarly, nothing in defense counsel's cross-examination of [the complainant] implied that [the complainant] was lying when she testified that [appellant] had assaulted her or that she had been pressured to so testify. Defense counsel stayed completely away from the testimony that damaged [appellant's] case and emphasized [the complainant's] testimony that was favorable to [appellant]-[the complainant] had lied about the assault and had recanted consistently since soon after the outcry/ All the jury had before it was [the complainant's] conflicting testimony. We hold that conflicting evidence alone does not trigger rule 801(e)(1)(B)."
I'm skeptical of the Court of Appeals' conclusion that there was no charge that the complainant's testimony was improperly influenced. It seems that a claim that the prosecution "tricked" her into saying that her father sexually abused her could be construed as at least an implicit charge of improper influence, which would suggest that I would agree with the majority opinion of Court of Criminal Appeals of Texas in Klein v. State, which reversed the Court of Appeals' disposition. The problem is that the Court of Criminal Appeals of Texas made an even bigger error.
And its problem was that it did not find that defense counsel charged the complainant with being improperly influenced or having an improper motive; instead, it merely found that "[t]he record support[ed] a finding that these out-of-court statements were offered to rebut an implied charge of recent fabrication." In reaching this conclusion, the majority rejected the reasoning of Judge Cochran's dissenting opinion, which concluded "that the complainant's out-of-court statements to Todd and Cook 'could not possibly qualify as statements offered to rebut an explicit or implicit charge of recent fabrication' because no charge of recent fabrication 'for some improper reason' was made by the defense on cross-examination.
According to the majority opinion,
"Judge Cochran's dissenting opinion seems to change the language of the 'recent fabrication' element of rule 801(e)(1)(B) to require that a recent fabrication be due to an improper reason, usually an improper influence or motive. This element of rule 801(e)(1)(B), however, does not require that the recent fabrication be due to an improper reason. Rule 801(e)(1)(B) permits the admission of a prior consistent statement to rebut a charge of 'recent fabrication or improper influence or motive.'"
This reasoning is bizarre to me because it implies that you can have a recent fabrication due to a proper or at least benign reason. The word "fabricate" is generally defined as "to make up for the purpose of deception." Thus, if a party claims that a witness, like the complainant in Klein, rendered incorrect testimony because she was mistaken, her testimony would not be a fabrication because she would not have the purpose to deceive. And this seems to be the point Judge Cochran was making in his dissenting opinion when he concluded that Klein's:
"position in this case is not that the child was improperly influenced with a bribe, or threatened, or promised something if she testified in a certain way. It is that the prosecutor confused her with his questions on the witness stand. That position does not attack the witness; it attacks the cross-examiner."
Again, I think that defense counsel's position could be construed as an argument that the complainant was subject to an improper influence, but I don't see how it could be construed as an argument that the complainant's testimony was a recent fabrication that was somehow not based upon an improper influence or motive. Indeed, even the cases cited by the majority don't support its conclusion that "rule 801(e)(1)(B)...does not require that the recent fabrication be due to an improper reason." The court cited to its previous opinion in Hammons v. State, 239 S.W.3d 798 (Tex.Cr.App. 2007), for the proposition that, to be admissible under rule 801(e)(1)(B), the "prior consistent statement must be made prior to the time that the supposed motive to falsify arose." This holding states the obvious: There must be an improper reason for there to be a recent fabrication.
The court also cited the Supreme Court's opinion in United States v. Tome, 513 U.S. 150 (1995), as support for its argument. But, Tome compels the same conclusion as Hammons based upon passages such as these:
"McCormick and Wigmore stated the rule in a more categorical manner: '[T]he applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.'"
"A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive."
Thursday, October 2, 2008
They Know It When They See It: 10th Circuit Finds Trial Court Did Not Err In Allowing Testimony Regarding Gender Differences In Child Pornography
The recent opinion of the Tenth Circuit in United States v. Schene, 2008 WL 4379509 (10th Cir. 2008), reveals that courts don't need to be concerned with the reliability/admissibility of "expert" testimony under Federal Rule of Evidence 702 when such testimony is not offered to prove the truth of the matter asserted in the testimony. This situation is thus similar to the situation where courts don't need to be concerned with the reliability/admissibility of out-of-court statements under Federal Rule of Evidence 802 when such statements are not offered to prove the truth of the matter asserted in the statement, making them nonhearsay.
In Schene, Jay Martin Schene was convicted by a jury of five counts of knowingly possessing material that contained an image of child pornography that was produced using materials that had been mailed, shipped, or transported in interstate commerce, in violation of 18 U.S.C. Section 2252A(a)(5)(B). Here is an abbreviated version of the facts that led to these convictions:
The FBI executed a search warrant on the house of Donald Black and seized four computers. Black admitted trading child pornography with a number of individuals online, although he could not remember any of their names or screen names. The FBI thereafter performed a search of Black's computer, and one of the screen names that they uncovered was "outdoorguy104166." The FBI then served a subpoena on AOL, and AOL disclosed that the screen name corresponded to the account of Schene and that several other screen names were associated with his account, including "ccarlin317," "myebayshades," "ebayshades," and "okseecat."
FBI agent William Weaver then tracked down and interviewed Schene, who stated that he had never used, or heard of, outdoorguy. He admitted, however, that he used two of the other screen names: ccarlin317 okseecat. Schene stated that he worked as a financial advisor for Chase Bank, and that he was married to Cathy Carlin. Schene subsequently consented to a search of his home computer and told the agents that only he and his wife used the computer.
Computer forensics expert Bryan Carter conducted the search of the computer and found over 1900 images of child pornography, about half of which the user had attempted to delete. He discovered most of the images in emails associated with outdoorguy and ccarlin317, and he also found pornographic movies involving children, as well as a history of movies that had been "created" and viewed on the computer.
At trial, "Schene d[id] not contest that the computer contained the charged images of child pornography, or that the only people with access to the computer were Schene and his wife;" instead, his sole argument was that the child pornography could have belonged to his wife, not him. In furtherance of this argument, Schene got Weaver and other law enforcement officials to admit that they had not focused much, if any, attention on determining whether the child pornography could have belonged to Carlin, and instead focused mainly, if not exclusively, on Schene. For instance, Schene got Weaver to admit that he never attempted to interview Carlin and never searched her business computer.
The prosecution then had these officials testify as to why they focused mainly or exclusively on Schene, resulting in Q&A's such as the following:
[Prosecutor] Q: You never considered the possibility of a woman viewing these images, did you?
[Weaver] A: We tried to consider all people in the house. In this case, the images were of young boys, young mostly males, and generally you can consider men, but we try to consider both parties. * * *
Q: You just assumed that a man looked at these images?
A: Yes. * * *
Q: Has your training with the FBI taught you about the frequency with which women traffic in child pornography?
[Defense Counsel]: Your Honor, I'm going to object. Calls for speculation, and there's no foundation for this, and it's beyond Daubert and Kumho Tire.
THE COURT: Overruled.
Q: You may answer the question.
A: Yes. It's usually men.
On appeal, Schene claimed, inter alia, that the trial court erred by allowing this testimony because it was unreliable and failed to meet the standards established in Daubert, Kumho Tire, and Federal Rule of Evidence 702. The Tenth Circuit rejected this argument, determining that it didn't need to find this testimony to be reliable and/or admissible under Rule 702. As the Tenth Circuit noted with regard to the testimony of Weaver,
"Agent Weaver's testimony came on redirect examination after Schene had cross-examined him regarding his failure to investigate Carlin with respect to the images of child pornography. The clear purpose of the questioning on redirect was to explain why Agent Weaver had focused his attention on Schene. For that purpose, it was unnecessary to establish the 'scientific' basis for Agent Weaver's testimony. The point was not that the information he received in training was correct; it was that he was acting in accordance with his training."
This ruling seems correct to me. As long as the prosecution was solely using this testimony to establish why the officials did not investigate Carlin and not as substantive evidence that it is mostly men who traffic in child pornography (particularly when it involves young males), it was not offered to prove the truth of the matter asserted and did not need to qualify for admission under Rule 702.
Wednesday, October 1, 2008
I'm not sure how a key evidentiary issue will play out in the upcoming trial of former Orange County Sheriff Mike Carona, but I am certainly interested in finding out. Carona resigned from his prior post in January after being indicted on charges of receiving cash and gifts while a public official, and he also has been charged with two counts of obstruction of justice. Carona is being tried alongside Debra Hoffman, a Newport Beach attorney who has been described by prosecutors as his longtime mistress, and who is charged with conspiracy, public corruption and bankruptcy fraud. Carona's wife, Deborah, has also been charged in the case, but she will be tried separately, defusing the possibility of what might have otherwise been a theatre of the absurd.
So, what's the evidentiary issue? Well, the prosecution wants to introduce transcripts from several secretly recorded conversations between Carona and former Assistant Sheriff Don Haidl, who had pleaded guilty to tax evasion charges and agreed to tape the conversations. According to the prosecution, those conversations contain statements in which Carona admitted to getting cash and gifts. The problem for the state is that the conversations also allegedly contain what it characterizes as "self-serving, exculpatory statements" by Carona. So, the prosecution wants the transcripts of the tapes admitted, but it wants the judge to excise the portions in which Carona makes these exculpatory statements.
And under the hearsay rules, the prosecution would have a good argument. Under Federal Rule of Evidence 801(d)(2)(A), Carona's incriminatory statements would be admissible as admissions by a party-opponent, while under Federal Rule of Evidence 802, Carona's exculpatory statements would be inadmissible as hearsay. The potential fly in the ointment, however, is Federal Rule of Evidence 106, the so-called "rule of completeness." Under Rule 106,
"When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."
But, what does this rule mean? As I have noted before, there is a circuit split over how the rule of completeness should be applied, with some courts holding that it is merely a rule of timing and not a rule of admissibility. So, for instance, if the plaintiff in a breach of contract action wanted to introduce only a portion of the contract, which would be admissible in its entirety, the defendant would be able to get the entire contract seen by the trier of fact at the same time. An example might be a plaintiff introducing only page 6 of a contract and claiming that the term "bad faith" means one thing, which the defendant can rebut by simultaneously introducing the definitions page at the same time. But under this reading of the rule, when the prosecution admits portions of a recording containing incriminatory statements by a defendant, the defendant would not be able to introduce his exculpatory statements from the recording because they would still be inadmissible.
Meanwhile, the precedent in other circuits "unambiguously establishes that the rule of completeness may be invoked to facilitate the introduction of otherwise inadmissible evidence." Under this reading of the rule, which, as I have noted before, I wholeheartedly endorse, Carona's exculpatory statements should not be excised. So, how has the Ninth Circuit ruled?
Well, in United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996), the Ninth Circuit found that "Rule 106 does not compel admission of otherwise inadmissible hearsay evidence." That being the case, why did I say above that I'm not sure how the evidentiary ruling is going to play out? Well, this statement in Collicott was dicta, and in the few rulings in which the Ninth Circuit did not repeat this statement in dicta, it seemed to undercut its seeming absoluteness. For instance, in United States v. Lopez-Figueroa, 2008 WL 4185755 (9th Cir. 2008), the prosecution introduced a redacted version of the defendant's statement to a Customs and Border Protection Officer, and the defendant wanted the rest of the statement, which was allegedly exculpatory, to be introduced. The Ninth Circuit rejected this argument, citing the statement from Collicott, but it did not stop the analysis there and instead rejected the defendant's argument only after finding that "[t]he redacted parts of his statement were not necessary to explain those parts that were admitted."
And earlier this year, the United States District Court for the Central District of California, the court in which Carona's trial will be held, went even further in United States v. Castro-Cabrera, 534 F.Supp.2d 1156 (C.D. Cal. 2008). In Castro-Cabrera, the defendant was charged with illegal reentry to the United States following deportation. During the proceeding leading to his deportation, the defendant was asked:
"Q: Of what country are you a citizen? A: Hopefully United States through my mother. question: What country are you a citizen of now? A: I guess Mexico until my mother files a petition."
At the defendant's trial, the prosecution sought to introduce only this second Q&A while the defendant also wanted the first Q&A admitted under the rule of completeness. The court agreed with the defendant, concluding that:
"By itself, the answer 'I guess Mexico until my mother files a petition' suggests that Defendant believes he is currently a Mexican citizen. Read together, the answers are less conclusive. The two answers could alternatively mean that Defendant believes he has dual citizenship. On the other hand, the two answers could mean that Defendant was uncertain regarding his citizenship status. The point is that reading the statements in context results in one set of possible meanings, whereas reading the latter statement in isolation tends to create a different meaning. There is a serious risk that presentation of only the latter answer, separate and apart from the one before it, would distort, misrepresent, or confuse the meaning of the Defendant's statement."
The court was than careful in noting that it was not undermining the holding of Collicott. It noted:
"To be clear, the Court does not dispute the general rule against using the Rule of Completeness to obtain admission of inadmissible hearsay. In essence, as a general rule, the Rule of Completeness cannot be used to trump the normal rules concerning the admissibility of evidence. A defendant may, during the course of an interrogation, make an inculpatory statement and later make an exculpatory statement. The general rule precluding the Rule of Completeness from being the basis for admitting the exculpatory statement would apply. A defendant would then need to base admission of the exculpatory statement on some other rule of evidence, if such rule were applicable to the particular situation at hand....Thus, while the Rule of Completeness cannot be used in a general sense as an end run around the usual rules of admissibility, each analysis must be done on a case-by-case basis in order to avoid the injustice of having the meaning of a defendant's statement distorted by its lack of context."
So, where does that leave us? Well, without knowing the content of Carona's statements, I can't say whether this same analysis from Castro-Cabrera could apply to make his exculpatory statements admissible. And even if this analysis from Castro-Cabrera could apply, that still leaves the question of whether the Central District will again find that it can admit otherwise inadmissible exculpatory statements without violating Ninth Circuit precedent. As noted, I will be very interested in the outcome of this case and whether the Ninth Circuit ever steps in and approves or disapproves of this practice.