Sunday, November 30, 2008
How Different Is Death?: Fifth Circuit Precludes Jury Impeachment Based Upon Misunderstood Jury Instructions In Capital Case
Probably the rule of evidence that most interests me is Federal Rule of Evidence 606(b), the anti-jury impeachment rule, which states that:
"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying."
Now, there are certainly several good reasons to have such a rule, with the main 3 being: (1) it secures the finality of verdicts, (2) it allows jurors to deliberate without the fear that their deliberations will be put under the microscope after trial, and (3) it protects jurors from harassment by losing parties after trial. And while I am somewhat uncomfortable with the Solomonic compromise that has been drawn with this rule, I find it pretty hard to argue with that compromise, despite it meaning that some "unjust" verdicts remain on the books.
But, when the proposed jury impeachment relates to racial, religious, or other bias by jurors, I think that the anti-jury impeachment rule must give way, and I will have my article on the issue completed early next year. A second situation where I think that application of Rule 606(b) doesn't make sense is when the proposed juror misconduct occurred during a trial which resulted in the defendant being sentenced to capital punishment.
This was the circumstance addressed by the recent opinion of the Fifth Circuit in United States v. Jackson, 2008 WL 4901375 (5th Cir. 2008). In Jackson, a jury found David Jackson guilty of murder and sentenced to him death based upon the killing of another inmate during a prison fight.
Jackson thereafter moved for a new trial, alleging, inter alia, that the jury erroneously believed that even if Jackson were sentenced to life without parole, it was still possible he could be released before the end of his life, despite the district court's explicit instruction to the contrary." In support of this contention, he proffered an affidavit of an investigator who contacted jurors after the trial. The affidavit stated that a number of jurors believed that Jackson could be released early, as had happened with a cooperating witness who testified at trial.
The Fifth Circuit denied Jackson's motion, finding that the jurors could not impeach their verdict through evidence of a misunderstood jury instruction. Instead, it found that
In United States v. Jones, 132 F.3d 232, 245-46 (5th Cir.1998), a death penalty case like Jackson's, we unambiguously stated that "[r]ule 606(b) has consistently been used to bar testimony when the jury misunderstood instructions" and that "'outside influence' refers to a factor originating outside of normal courtroom proceedings which influences jury deliberations, such as a statement made by a bailiff to the jury or a threat against a juror."
The question that this raised for me was: Isn't death different, as the Supreme Court has recognized in other contexts? Aren't there good reasons to believe that we shut put aside the anti-jury impeachment rule when there is evidence that jurors might merely have sentenced the defendant to life imprisonment but for a misunderstood jury instruction?
Well, it turns out that the Fifth Circuit addressed this issue in Jones but with a seemingly disastrous results. In Jones, the Fifth Circuit was faced with a similar factual context and rejected the defendant's Eighth Amendment challenge to the court's application of Rule 606(b). According to the court,
"Noting that the Eighth Amendment requires a 'greater degree of reliability when the death sentence is imposed,' we are convinced that Rule 606(b) does not harm but helps guarantee the reliability of jury determinations in death penalty cases....Jury deliberations entail delicate negotiations where majority jurors try to sway dissenting jurors in order to reach certain verdicts or sentences. An individual juror no longer exposed to the dynamic offered by jury deliberations often may question his vote once the jury has been dismissed. Such self-doubt would be expected once extrinsic influences bear down on the former jurors, especially in decisions of life and death. When polled, each juror affirmatively indicated that he had voted for the death penalty. We will not allow a juror to change his mind after the jury has rendered a verdict. In this situation, the outcome could just as easily have turned out the other way with the jurors not supporting the death sentence convincing the death-prone jurors to impose life without the possibility of release. If the jury truly feared that the district court would impose some lesser sentence in the absence of a unanimous recommendation, then the jury had the option of imposing life without the possibility of release. Furthermore, the jury never sought a clarifying instruction to remedy the alleged confusion. Consequently, the affidavits do not convince us that the instructions given by the district court could lead a reasonable jury to believe that the failure to reach a unanimous decision would result in the imposition of a lesser sentence."
Really? I could understand applying Rule 606(b) if a juror came forward and said that he actually was unsure whether the defendant was guilty beyond a reasonable doubt or said that he imposed the death penalty because he thought that holding out would be futile. In those situations, there would be no way to corroborate the juror's claim. But the situation seems different when a juror comes forward and claims that jurors misunderstood jury instructions. Now, sure, in this latter situation, this claimed confusion could merely be pretext for second-guessing, but it seems like this possible pretext could be probed by seeing whether other jurors corroborated the claim. As I said above, there might be enough reason to apply Rule 606(b) when misunderstood jury instructions allegedly led jurors to, say, impose a 4 year term of incarceration instead of a 2 year term of incarceration. But again, isn't death different? When a person's life is at stake, don't the protections of the Rule have to give way?
Besides, the "greater degree of reliability" analysis under the Eighth Amendment is all about making sure that the death sentence is not mandatory and that jurors instead look at the "relevant facets of the character and record of the individual offender or the circumstances of the particular offense." Shouldn't the same apply to jury deliberations? Otherwise, aren't we dealing with the mechanistic application of a rule of evidence in a manner that would violate the Compulsory Process Clause/right to present a defense?
Saturday, November 29, 2008
Hypothetically Speaking: Court Of Appeals Confirms Convictions Because Trial Judge Supplemented Incomplete Expert Hypothetical
The recent opinion of the Court of Appeals of Mississippi in Teston v. State, 2008 WL 4914960 (Miss.App. 2008), gives me my first opportunity on this blog to address an issue I recently taught in my Evidence class: the posing of hypotheticals to expert witnesses. And what the case shows is the critical role the trial judge can play in ensuring that their use does not result in a verdict that can be challenged on appeal.
In Teston, Krystal Marie Teston was convicted of three counts of driving under the influence and negligently causing death to another and one count of driving under the influence and negligently causing serious injury to another. The facts giving rise to the case against Teston were as follows:
"On September 10, 2004, five college students in an SUV were traveling east on Interstate 10 in Biloxi, Mississippi. The driver of a black Honda, who was later identified as Teston, was also traveling east on I-10. [Teston] swerved into the path of the SUV. When the black Honda veered in front of the SUV, the driver of the SUV lost control of the vehicle, which crashed into the concrete median and flipped over....Three of the passengers-Lindsay Miller, Maksim Sisoev, and Beth Finch-were killed in the accident. Joshua Miller, the fourth passenger, was severely injured, and Nicole Thurman, the fifth passenger, received minor injuries."
Thereafter, Officer Wesley Brantley of the Biloxi Police Department arrived at the scene of the accident and spoke to Teston. At Teston's trial, Officer Brantley testified that his initial contact with Teston was very brief and that she did not appear to be impaired. According to Brantley, during this first contact, Teston identified herself as the driver of the black Honda and told Officer Brantley that she witnessed the accident, but she did not mention her involvement in the accident.
Brantely also claimed at trial, however, that he went to speak to Teston for a second time about 60 minutes later and noticed that her speech was slurred, she was mumbling and confused, and her eyes were dilated and glassy. Brantley testified that he believed that Teston was impaired but that he did not smell any alcohol on her breath.
Based upon the testimony of Brantley and other witnesses, the prosecution posed a hypothetical to Dr. Barbieri, its State's expert witness, which led Dr. Barbieri to conclude that Teston was impaired at the time of the accident. So, how does a party use an expert hypothetical at trial? Well, basically, at trial, an attorney tells the expert witness to assume certain facts and asks for his opinion based upon those assumptions.
Now, unfortunately, the Teston opinion does not mention the facts that the prosecutor asked Dr. Barbieri to assume, but it is clear that he failed to ask him to assume that Brantley did not not any signs of Teston being intoxicated when he first talked to her. Luckily for the prosecution, the court stepped in after Dr. Barbieri gave his initial conclusion, leading to the following exchange:
THE COURT: Dr. Barbieri, assuming in addition to those characteristics [the State] gave to you as part of this hypothetical, you also considered that within minutes of the accident one of the officers identified Ms. Teston as a potential witness, had a conversation with her about whether or not she observed the accident and has testified that he did not at that time observe any of the impaired conditions which he observed some 50 minutes later, being slurred speech, mumbling, confusion, etc., would that change your opinion?
DR. BARBIERI: Well, that would tend to indicate that either he misrepresented or misobserved [sic] the first time or something happened in that interval.
THE COURT: Would it change your opinion?
DR. BARBIERI: It would only-it would not change my opinion
THE COURT: All right. Subject to that objection, [defense counsel], I'm going to allow the testimony."
If an expert hypothetical is not complete and accurate, it can lead to reversal, so Teston teaches us two important lessons. First, if you are going to use expert hypotheticals, make sure that they are complete and accurate. And second, you need to hope that you have a trial judge as alert as the judge in Teston, who will fill in the blanks.
Friday, November 28, 2008
In Need Of A Refresher: Seventh Circuit Confuses Recorded Recollection Rule With Refreshing Recollection Rule
The recent opinion of the Seventh Circuit in United States v. Tatum, 2008 WL 4964796 (7th Cir. 2008), is the latest illustration of a court confusing the recorded recollection exception to the rule against hearsay and the rule governing the use of writings to refresh a witness' recollection.
In Tatum, Exie Tatum was convicted of various drug and weapons charges. And part of the evidence used to convict him was the foundation testimony of Milwaukee Police Department (MPD) Officer Michael Capati, which the prosecution used to admit evidence of baggies of cocaine recovered from Tatum. Capati testified that he was the booking officer at the MPD's downtown administration building on the night of Tatum's arrest and that he was in charge of searching male prisoners and "bagging" property recovered from them.
Capati testified that he recovered from Tatum's left pajama pocket a clear plastic baggie, which he passed off to the detective or officer responsible for the arrest (it was later determined that the baggie contained cocaine). However, on cross-examination, Capati admitted that he reviewed another officer's report prior to testifying and, while he recalled that Tatum was wearing pajamas underneath his pants, he had no independent recollection of recovering the drugs from Tatum.
After Tatum was convicted, he appealed, claiming that the prosecution failed to lay a proper foundation for admission of the baggies of cocaine because, inter alia, Capati needed to review the other officer's report and had no independent recollection of recovering the drugs from Tatum. The Seventh Circuit, however, found that this argument was without merit because "the government was entitled to refresh his recollection during his testimony with the inventory sheet that he prepared at the time of the incident. See Fed.R.Evid. 803(5)."
While the Seventh Circuit's decision correct, its reasoning was faulty. Federal Rule of Evidence 803(5), the recorded recollection exception to the rule against hearsay, states that:
"A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party."
The facts of Tatum clearly indicate that Capati "reviewed another officer's report," so Rule 803(5) could not have applied because presumably Capati didn't make or adopt the other officer's report. But, as is also clear from Tatum, the prosecution did not have Capati read the report into evidence, meaning that neither hearsay nor Rule 803(5) were in issue. Instead, it merely used the report to refresh his recollection and then independently testify, which is perfectly permissible under Federal Rule of Evidence 612.
Thursday, November 27, 2008
Extrasensory Impression: Court Finds That Student Complaints About Thanksgiving/Christmas/St. Patrick's Day Posters Were Inadmissible Hearsay
The recent opinion of the United States District Court for the Southern District of New York in Menes v. City University of New York Hunter College, 2008 WL 4349439 (S.D.N.Y. 2008), contains a nice description of the limitations of the present sense impression exception to the rule against hearsay. In Menes, college accountant Herman Menes brought an action against his employer, Hunter College, and six individuals also employed by Hunter College, alleging, inter alia, that various "religious displays" in the college's bursar's office constituted a governmental endorsement of religion in violation of the Establishment Clause of the First Amendment.
Specifically, Menes claimed among other things that his former supervisor, Tom Crowfis,
"hung up 'religious posters' 'all over' the area immediately outside the Bursar's Office....These posters were allegedly displayed around St. Patrick's Day, Thanksgiving, and Christmas....While [Menes] provide[d] almost no details about these posters, he recall[ed] that they included 'images' and 'writing...,' that they had a 'Christian religious tone and message...,' and that there was 'no doubt that they were Christian religious displays.'"
(As I side note, I wonder how the Thanksgiving posters had a Christian religious tone and message. I know that the Pilgrims were Christians, but I don't really think of Thanksgiving as a Christian holiday. Maybe the posters praised Jesus like a poster addressed by the Third Circuit when Alito was a judge).
Menes also claimed that Crowfis improperly displayed religious figurines and Christmas trees. The court, however, granted Hunter College's motion for summary judgment dismissing the complaint after refusing to allow Menes to present evidence concerning students who allegedly "complained about the figurines as they walked past the office window, then entered the Bursar's Office and complained about the figurines, the posters, and the Christmas tree." Menes had claimed that these students said that they were Jewish and asked "Where are the Jewish displays?"
Hunter College, however, successfully argued that these complaints were inadmissible hearsay. In accepting this argument, the court noted that Menes had contended that the students' statements were admissible as present sense impressions" under Federal Rule of Evidence 803(1), which provides an exception to the rule against hearsay for "statement[s] describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."
The court, however, rejection this contention, concluding that:
"This exception 'applies only to reports of what the declarant has actually observed through the senses....' A student's opinion that the displays at issue constituted an endorsement of Christianity does not report a sensory perception or observation but rather the student's own interpretation of these observations."
I agree with the analysis behind this conclusion and also think that it explains why the complaints would have been inadmissible under the state of mind exception to the rule against hearsay, which "is essentially a specialized application of [the present sense impression exception], presented separately to enhance its usefulness and accessibility."
Wednesday, November 26, 2008
Last month, I wrote a post about a California trial involving two defendants with some evidence only being admissible against one defendant and other evidence only being admissible against the other defendant. And the way in which the court solved this logistical problem was to have separate juries for each defendant and to rotate jury 1 out when evidence was presented that was inadmissible against its defendant and rotate jury 2 out when evidence was presented that was inadmissible against its defendant. As I noted in that post, the benefit of such a technique is that it leads to efficiency for the court , the litigants, and the witnesses.
The problem, as I noted to my Evidence students when they asked why the technique is not used more, is that the logistical solution can turn into a logistical nightmare, and there is the ever-present danger than an attorney or witness will reference previous evidence/testimony from trial that was only heard by one jury when both juries are present.
Not having any personal experience with this type of two jury trial, it would be my guess that the benefits outweigh the burdens, but I'm not sure that the same applies when you have 3 defendant and 3 juries. That's the situation currently faced by a court in Brooklyn.
Prosecutors in Brooklyn charged Dexter Bostic, 36, Lee Woods, 30, and Robert Ellis, 35, with murder in the first degree in the death of 23-year-old police officer Russel Timoshenko, on the theory that the trio worked as a team when they killed Timoshenko. The prosecution's theory is that Woods was driving a stolen SUV with Bostic and Ellis when he was pulled over by Timoshenko and his partner. According to the prosecution, Bostic then shot Timoshenko, and Ellis shot Timoshenko’s partner, who was hit in the chest and survived thanks to a bullet-resistant vest.
Conversely, Ellis’ attorney has contended that Ellis was the driver and argued that DNA tests on pieces of fried chicken left on the driver’s side in the front seat would prove Ellis had been driving. Unfortunately, this chicken, which appeared in crime scene photos, was apparently not collected as evidence.
Meanwhile, a recent witness for the prosecution, an acquaintance of the trio, said she was present during their conversations and that Woods had said he did not shoot anyone. But, Ellis' attorney claimed that the witness, whose aunt had been romantically involved with Woods, was lying to protect him.
If that allegation is true, the witness apparently wouldn't be the first person to fall under Woods' spell. Woods has been described as a "charismatic" figure, especially after two Rikers Island guards were fired for providing him with marijuana and alcohol, the day after Woods set off a metal detector for allegedly swallowing a handcuff key. Moreover, a female prison guard was transferred after surveillance footage showed her taking Woods out of his cell and into the showers, where they allegedly had sex.
Yes, this trial seems to have everything, that is, except for any "direct testimony or surveillance footage that can confirm who was sitting in the vehicle and who pulled the triggers on the two guns." And that everything includes 3 separate juries, with "[a] fair amount of time in the courtroom [being] spent shuffling the juries back and forth into the back rooms." I would like to think that the trial will end well, but it seems to me that hung juries or mistrials are likelier than final verdicts.
Tuesday, November 25, 2008
The Giant(s) Of Illinois: Supreme Court Of Illinois Forms Special Committee To Create Illinois Rules Of Evidence
As I have noted on a few occasions (here, here, and here), Illinois does not currently have codified rules of evidence, which has created serious problems because case law is inconsistent, rendering judges uncertain about how to make evidentiary rulings. As I noted this summer, in a post about an Illinois case dealing with the statement against interest exception to the rule against hearsay,
"the state of the law is so unsettled that litigants can't really know what to expect in cases where they seek to admit or exclude statements against interest. All of which makes incoming Illinois Supreme Court Chief Justice Thomas R. Fitzgerald's claim that he is going to 'try to do something with possibly codifying the law of evidence in Illinois' of supreme importance."
Yesterday, Chief Justice Fitzgerald took a giant step toward fulfilling that promise when the Illinois Supreme Court announced the formation of a Special Committee on Illinois Evidence with the aim of codifying existing evidentiary law so that it is available in a single source. The Special Committee, appointed by the Supreme Court, is composed of a blue ribbon roster of judges, practitioners, law professors and state legislators.
I don't know any of the judges, practitioners, or state legislators well enough to be able to say what they will be able to bring to the table. Conversely, one of the Special Committee members is my colleague, Ralph Ruebner, who will also serve as Reporter, and whom I am sure will do a bang up job based upon his expertise in evidence law. Also, University of Miami School of Law Professor Michael Graham will serve as an advisor to the Special Committee, and, while I don't know him personally, I have read a good deal of his scholarship, and it is clear to me that he is one of the most knowledgeable evidence authorities in the country (he has also served as the author of Cleary & Graham’s "The Handbook of Illinois Evidence.").
According to Chief Justice Fitzgerald, "The function of this project is to codify existing law, which is presently contained in state statutes, Supreme Court rules and the common law....Having the rules of evidence in a single location would be of enormous value to the practitioner." It is a worthy goal, and one which I expect to be achieved with flying colors based upon the talent involved.
(Hat tip to my colleague Mark Wojcik)
Monday, November 24, 2008
Available For A Limited Time: Court Of Appeals Of Texas Finds Trial Court Made Erroneous Former Testimony Ruling
The recent opinion of the Court of Appeals of Texas in Loun v. State, 2008 WL 4937833 (Tex.App.-Texarkana 2008), provides a nice explanation of when a declarant is "available" for hearsay purposes.
In Loun, Michael Alan Loun appealed from his conviction for murder while under the immediate influence of sudden passion. The victim, Jack Edward LaPelley, III, knocked on the door of the apartment of Loun's girlfriend, Jodi Clark, and demanded entry. Five persons were present in the apartment including Loun, Rashaan Roberson, and Miranda Fancher, LaPelley's girlfriend. LaPelley, who was intoxicated, wanted to talk with Fancher, and because LaPelley had a history of physically abusing Fancher, Clark assumed Fancher would not want to talk with him.
After telling LaPelley to leave through the closed and locked door, Clark then opened the door a crack and LaPelley forced his way into the apartment. Loun ordered LaPelley to leave, but LaPelley refused, and Loun pointed a gun at him and demanded that he leave. LaPelley responded by unsuccessfully attempting to slap the gun out of Loun's hand. When Loun recovered his balance, he shot LaPelley three times, leading to him being indicted for murder.
While Loun's first trial resulted in a hung jury, his second trial resulted in a unanimous verdict finding Loun guilty, but the jurors were unable to agree on punishment. The trial court thus declared a mistrial on punishment only, and, after a third trial, the jury found Loun acted under the immediate influence of sudden passion and assessed a sentence of ten years.
During that third trial, the prosecution presented the recorded testimony of Roberson, who had testified before the third trial, inter alia, that he did not believe LaPelley was a threat to anyone in the apartment. Roberson was a sailor from Maine, and the prosecution presented his recorded testimony under Texas Rule of Evidence 804(b)(1), the former testimony exception to the rule against hearsay.
The third trial's transcript reveals that his testimony was introduced as follows:
"[Defense Counsel]: Your Honor, under 804 hearsay exceptions, without them bringing a witness they have to prove that declarant is unavailable which has not been proven in this case. That is why we are saying the testimony be excluded based on hearsay.
[Prosecutor Biggs]: Your Honor, the witness is unavailable. County can't pay for him to come back down here from Maine again. He's got prior recorded testimony.
THE COURT: Oh, this is the sailor?
[Prosecutor Atkinson]: This is Rashaan Roberson.
[Defense Counsel]: That is not one of the reasons that the county cannot pay for.
[Prosecutor Atkinson]: I don't think that prior recorded testimony requires unavailability of the declarant.
[Defense Counsel]: Rule of evidence 804B.
THE COURT: Kind of an unusual situation is that witness has testified, has been subject to cross-examination of this case. The trouble is he wasn't subject to physical appearance before this jury. Objection is going to be overruled. I sure hope the State thinks it's on safe ground."
Unfortunately for the judge, his ruling was more of a bridge over troubled water, resulting in Loun's appeal. Defense counsel was correct that for testimony to be admitted under a Rule 804(b) hearsay exception, the proponent must first prove that the declarant is "unavailable" under Rule 804(a). And the only way that Roberson might have been deemed "unavailable" was under Texas Rule of Evidence 804(a)(5), which states that a declarant is "unavailable" when he "is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means."
The problem for the State was that to establish unavailability under this Rule, it had to:
"make some good-faith efforts to produce the witness at trial or to show any efforts would be futile. The State's only explanations in this case were 1) it would be too expensive and 2) the incorrect legal conclusion the State had 'no way to procure his attendance.' The State argues, even though there is no evidence it attempted to subpoena Roberson, it should not be required to perform a useless act because, according to the State, a subpoena does not reach across state lines. We note the State 'is not required to engage in clearly futile activities before a trial court can, in its discretion, determine that the State made good-faith efforts to produce a witness at trial....' Compulsory process for a witness located outside of Texas can be obtained under the 'Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings....' The record does not contain any evidence that attempting compulsory process in this case would be futile. Because there is no evidence of any good-faith efforts, the State failed to show it made good-faith efforts to secure Roberson's presence."
Sunday, November 23, 2008
Nobody's Perfect: Judge Finds Newspaper Article Mentioning Inadmissible Evidence Is Insufficient To Award New Trial In Real Estate Killing
Like the protagonist in Nathaniel Hawthorne's "The Birthmark," the American justice system is ill-advised to demand perfection. I would say, however, that a recent trial in California was closer to a perfect storm than perfection.
In that case, Michael Ray Jennison was convicted of second-degree murder in the death of James Magot, a real estate agent. There was no dispute at trial that Jennison shot Magot twice in the head during an argument about the sale of a condominium that Jennison had inherited from his grandmother. Instead, Jennison's argument was that he should only be convicted of voluntary manslaughter because he had psychological issues that rendered him incapable of handling stressful real estate negotiations.
Pursuant to California Penal Code Section 192, "[m]anslaughter is the unlawful killing of a human being without malice," and one time of manslaughter is voluntary manslaughter, which is a killing based "upon a sudden quarrel or heat of passion." So, Jennison's theory of the case was that his quarrel with Magot caused him to snap and shoot him, which should have resulted in a voluntary manslaughter conviction, not a second-degree murder conviction.
Jurors disagreed with his theory, and a juror who came forward after trial provided at least a partial explanation. According to that juror, "several hours before they convicted his client, jurors read an article in the San Diego Union-Tribune that said the defendant had guns, ammunition and cash in his car when he was arrested in Arizona." This evidence, however, had been declared inadmissible at trial."
Jennison's attorney thus moved for a new trial. Now if this case were heard under the Federal Rules of Evidence or most state counterparts, the juror's statements would have been admissible despite the general proscription on jury impeachment because the news story was extraneous prejudicial information. California Evidence Code Section 1150, however, generally allows juror impeachment, so there was certainly nothing preventing jury impeachment.
The problem, though, was that Judge Allan Preckel denied the motion for a new trial, concluding that while he wished the newspaper article had never found its way into the hands of jurors, the law merely calls for trials with "fundamental fairness" instead of "perfection."
So, what do readers think? It seems to me that the newspaper article could have been fatal to Jennison's argument that he was merely guilty of voluntary manslaughter and that, at a minimum, he likely suffered "substantial prejudice" as a result of the jury's exposure to the extraneous information."
Saturday, November 22, 2008
The recent opinion of the Court of Appeals of Texas in In re S.N.A., 2008 WL 4938108 (Tex.App.-Fort Worth 2008), reveals that Texas has a pre-trial notice requirement for parties seeking to raise an issue concerning foreign law at trial.
In S.N.A., Canadian residents A.N.A. and B.B.P. were divorced in a Canadian court. The court awarded B.B.P. custody of the minor child of the marriage and ordered A.N.A. to pay child support. When B.B.P. and S.N.A. later moved to Texas, B.B.P. filed a petition to register the Canadian judgment.
B.B.P. initially alleged that A.N.A. owed past due child support totaling "at least $105,300 without interest" and thereafter filed a petition to modify child support and reduce the unpaid child support to judgment. Specifically, she alleged that A.N.A. had "failed and refused to make child support payments pursuant to the foreign order" and requested that the trial court issue an order establishing child support in accordance with Texas child support guideline.
In response, A.N.A. filed a general denial and asserted that he had paid B.B.P. "substantial sums of money" and was not indebted to her. After conducting a final hearing, the trial court rendered judgment against A.N.A. for (1) $134,039.27 in past due child support and interest, and (2) $8,900.00 in attorney's fees and costs of trial.
A.N.A. subsequently appealed, claiming, inter alia, that the trial court erred in calculating the amount of interest that had accrued on the arrearage he owed under the Canadian order based on Texas law and not Canadian law. The court, however, found that A.N.A. had waived this argument because Texas Rule of Evidence 203 states that
"a party intending to raise an issue concerning foreign law must give notice in the pleadings or 'other reasonable written notice,' and at least thirty days before trial furnish to all parties copies of any written materials or sources that the party intends to use as proof of the foreign law."
And the problem for A.N.A., according to the court, was that while he
"attached a copy of the Canadian order to his pleadings, he provided no notice in the pleadings or other written notice that he intended to assert that Canadian law be applied. Nor did he provide to B.B.P. or the trial court any materials proving Canadian law governing interest rates in arrearages."
I have never seen a rule of evidence similar to Texas Rule of Evidence 203, but it seems like something that certain Supreme Court Justices not named Breyer might enjoy.
Friday, November 21, 2008
The collateral source rule is a well established evidentiary rule which states that a defendant cannot present evidence that the plaintiff was already compensated partially or completely by a collateral source (such as an insurance company) for his injuries. The reasoning behind the rule is that the trier of fact might improperly use this evidence to undercompensate the plaintiff for his injuries. As was correctly noted by the Court of Appeals of North Carolina in its recent opinion in Kor Xiong v. Marks, 2008 WL 4906384 (N.C. App. 2008), however, there is no "reverse collateral source rule."
In Marks, June 2005 Kor Xiong was riding in the back seat of a motor vehicle operated by his nephew. While the nephew's car was stopped to wait for traffic to pass before making a left turn, a vehicle operated by Ingrid Diane Marks struck the nephew's vehicle from behind. Nearly a month after the accident, Kor Xiong sought medical treatment at Stanly Memorial Hospital, and the treating physician at the hospital diagnosed him as having "facial nerve palsy" and "neck and back pain secondary to trauma." The next day, Kor Xiong was seen by Dr. John Kilde, who confirmed the earlier diagnosis of facial nerve palsy and prescribed prednisone and eye ointment.
Kor Xiong thereafter sued Marks, alleging personal injury resulting from the collision, and Marks actually admitted that she failed to reduce her speed and conceded that she was "careless in the operation of her vehicle." She alleged, however, that the accident was not the proximate cause of Kor Xiong's injuries.
During Kor Xiong's case, his counsel elicited answers from him about his age, marital status, and wages at the time of the accident. Defense counsel thereafter requested a bench conference to discuss the admissibility of further evidence of Kor Xiong's financial condition. During this conference,
"Plaintiff argued that the jury needed to understand that plaintiff was young, married and made only $8.50 per hour. Plaintiff argued to Judge Craig that this was very relevant evidence as it explains why plaintiff waited for several weeks before seeking medical attention despite his symptoms. Defendant argued that...evidence of plaintiff's ability to pay medical bills [was prohibited by] the 'reverse collateral source' [rule]."
After the conference, Judge Craig instructed Kor Xiong's counsel not to ask further questions regarding his financial status. After the jury rendered a verdict for Marks, Kor Xiong appealed, claiming, inter alia, that this ruling was erroneous.
The court rejected this challenge, noting that, "[i]n a civil case, appellate review is limited to questions actually presented to and ruled on by the trial court." And, according to North Carolina Rule of Evidence 103(a)(2),
"Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked."
The problem for Kor Xiong was that "[t]he record contain[ed] no indication that [he] made an offer of proof as to any evidence of [his] financial condition beyond" the answers he gave to his counsel's initial questions.
The court noted in dicta, however,
"We wish to emphasize that our ruling in defendant's favor sub judice does not imply recognition of a 'reverse collateral source rule' in any way. As far as we can tell, no such rule exists. While the well-established 'collateral source rule' excludes evidence that the plaintiff's injury was compensated from another source,...we are not aware of a 'reverse collateral source rule' which categorically excludes evidence of a plaintiff's overall financial condition or lack of another source for compensation for his injuries."
Of course, even there is no explicit "reverse collateral source rule," courts usually preclude evidence of the financial status, good or bad, of any party. As a Texas court concluded in a case I recently posted about, "[n]either a plaintiff's poverty nor a defendant's wealth can help a jury decide whose negligence caused an accident."
Thursday, November 20, 2008
The Chunking Express: Court Finds Evidence Of Prisoner's "Chunkings" Admissible To Prove Motive/Common Plan
I remember the technique of chunking from my days of taking psychology in college. Essentially, chunking is based on the idea that short-term memory is limited in the number of things that can be remembered, with a common rule being that a person (but not Guy Pearce's character from "Memento") can remember 7 (plus or minus 2) "items" in short-term memory. A person uses chunking to remember more by increasing the size of each item, thus decreasing the number of items he holds in memory. For instance, in remembering the number string 64831996, you could try thinking about the string as 64 83 19 96 rather than as 8 individual numbers.
Well, unfortunately for squeamish readers, that is not that type of chunking dealt with in the recent opinion of the Court of Appeals of Texas in Cantu v. State, 2008 WL 4890035 (Tex.App.-Hous. 2008). In Cantu, Victor Cantu was convicted on two counts of harassment by a person in correctional facilities based upon the following facts as relayed by witnesses for the prosecution:
Texas Correctional Officer Calvin Woods was on duty in the administrative segregation area of a maximum security correctional facility. While passing out necessities, Woods came into contact with Cantu and asked him if he needed any necessities, but Cantu declined. Woods continued on to the next cell when Cantu threw out a brown liquid which "smelled like feces and urine" and which struck Woods and inmate Jeffery Williams, who was helping Officer Woods hand out necessities. Tests later confirmed that the substance was feces.
At trial, the prosecution sought to admit 18 separate extraneous offenses in which appellant had "chunked" (i.e., thrown feces) on other inmates who had passed in front of his cell. The trial court found that this "chunking" evidence was admissible but limited testimony to four or five other chunking incidents. After he was convicted, Cantu claimed, inter alia, that the "evidence offered at trial of extraneous incidents of [his] 'chunking' was admitted in error."
Now, if the prosecution were using this evidence to prove "Once a chunker, always a chunker" or that Cantu had a propensity to throw feces and that he likely acted in conformity with that propensity at the time in question, the evidence indeed would have been admitted in error because it would have violated the first part of Texas Rule of Evidence 404(b), which states that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith."
The second part of Rule 404(b), however, states in relevant part that such evidence may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, [common] plan [or scheme], knowledge, identity, or absence of mistake or accident."
And the court found that two these permissible purposes applied. First, the prior "chunkings" gave rise to possible retaliation by other inmates, giving Cantu a motive to try to keep himself in administrative segregation by committing additional "chunkings." (Cantu himself admitted that he had repeatedly asked to be transferred to a different unit or population). And, indeed, as is clear from the alleged 18 extraneous offenses of "chunking," fecal matter was Cantu's weapon of choice, and he flung it "under almost the same type of facts" in each of the alleged offenses, revealing a common plan or scheme for ensuring his administrative segregation. Based upon these findings, the court's ruling seems correct to me.
Wednesday, November 19, 2008
Competent Opinion: Court Properly Finds That Mental Incompetence Ruling Didn't Render Witness Incompetent To Testify At Trial
The recent opinion of the United States District Court for the Western District of North Carolina in Witherspoon v. United States, 2008 WL 4891117 (W.D.N.C. 2008), is further evidence that courts deem almost any witness competent to testify under Federal Rule of Evidence 601. In Witherspoon, Marvin Harold Witherspoon pled guilty to aiding and abetting the inducement of a person under the age of 18 to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, which visual depictions were produced using materials that had been transported in interstate commerce, in violation of 18 U.S.C. Sections 2251(a) and 2
Witherspoon thereafter moved to vacate, alleging, inter alia, that the government committed prosecutorial misconduct and created a Brady error by not disclosing that the alleged victim was found to be mentally incompetent prior to Witherspoon's guilty plea. Specifically, the alleged victim was deemed incompetent as a result of his parents seeking a guardian for him because of his substance abuse, an unspecified learning disability, and moderately severe bipolar disorder, requiring long-term residential care.
Witherspoon claimed that evidence of the alleged victim being declared mentally incompetent was exculpatory, thus triggering Brady, because it would have meant that he was incompetent to testify against Witherspoon. The court, however, disagreed, finding that the alleged victim was competent to testify under Federal Rule of Evidence 601, which states that:
"Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law."
As I have noted before, very few witnesses are deemed incompetent to testify under Rule 601, and according to the court, the alleged victim would not have been one of them. Instead, the court noted that the Fourth Circuit has found that "all witnesses are presumed competent to testify and may only be disqualified if the witness does not have knowledge of the matters about which he is to testify, lacks the capacity to recall the events about which he is to testify, or does not understand the duty to testify truthfully." The court then concluded that "while the Clerk of Superior Court in Caldwell County found the minor to be unable to manage his own affairs, none of the assertions made by the victim's parents in seeking the guardianship and none of the Clerk's findings suggest that the victim was unable to recall the events about which he was to testify or appreciate his duty to testify truthfully."
(In addition, the court found that "contrary to [Witherspoon]'s assertions that the fact of the victim's incompetency would have helped his case, former Assistant United States Attorney...Brian Cromwell makes clear in his affidavit that [Witherspoon] may have been exposed to a higher range of imprisonment had Mr. Cromwell been aware of the victim's incompetency, because the Government would have considered an offense level enhancement based on the victim's incompetency.").
Tuesday, November 18, 2008
Smuggler's Blues: Eleventh Circuit Finds Expert Testimony Was Properly Received In Traffic Stop Drug Search Case
Like the Lopez opinion that I blogged about last Friday, the recent opinion of the Eleventh Circuit in United States v. Steed, 2008 WL 4831413 (11th Cir. 2008), helps define the limited reach of Federal Rule of Evidence 704(b). It also addresses one of the most clearly defined situations covered by Federal Rule of Evidence 703.
In Steed, Harold Orven Osgood appealed from his conviction for possession with intent to distribute 100 kilograms or more of marijuana. That marijuana was discovered in a tractor-trailer being driven by Osgood's co-defendant Antwan Lamount Steed, with Osgood as a passenger. According to law enforcement officer Alejandro Gonzalez, he pulled over the tractor-trailer because it was following another vehicle too closely and then decided to search the vehicle (with a canine unit) because, during the traffic stop, Osgood's hands were visibly shaking, he had sweat on his forehead even though the air conditioner had been on, and he avoided making eye contact when speaking.
When asked about the basis for this and other testimony, Gonzalez made "general references to conversations that he had with other law enforcement officers over the course of his career, his history of participation in unrelated searches and arrests of criminal suspects, and literature published by EPIC and NDIC keeping him apprised of trends in drug trafficking."
This testimony was instrumental to the denial of the motion to suppress the marijuana and the conviction of Osgood, and, understandably, formed one of the bases for his appeal.
One of the grounds of Osgood's appeal was that Gonzalez's testimony violated Federal Rule of Evidence 703, which states in relevant part that:
"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted."
Osgood claimed that the conversations, arrests, and literature upon which Gonzalez based his opinion were inadmissible hearsay. As the Eleventh Circuit correctly noted, however, the problem with this argument was that "Osgood d[id] not dispute that general training and experience, discussions with other law enforcement officers, participation in searches and arrests of criminal suspects, and literature about trends in law enforcement are reasonably relied upon by experts in the law enforcement field." Moreover, the court found that "we have previously determined similar sources to be reasonably reliable for purposes of Rule 703."
Another of the grounds for Osgood's appeal was that Gonzalez's testimony violated 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 Eleventh Circuit disagreed, concluding that while Gonzalez's testimony "gave rise to an inference that Osgood knew that he was transporting contraband, Gonzalez did not expressly state this inference. Instead, he let the jury draw its own conclusions from this testimony. Thus, Gonzalez's testimony did not violate Rule 704(b)."
I agree. As I noted in a recent post, "[e]xpert testimony is admissible if it merely supports an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony."
Monday, November 17, 2008
Driving That Train: Supreme Court Of Tennessee Denies Plaintiffs' Attempt To Get Around Rule 407 In Train Crossing Accident Case
I have seen plaintiffs make some squirrely arguments to try to get around Federal Rule of Evidence 407 and state counterparts, but the plaintiiff's attempt to do so in Tennie Martin et al. v. Norfolk Southern Railway Company et al., 2008 WL 4890252 (Tenn. 2008), has to take the cake.
Norfolk Southern arose out of the tragic death of Kathryn Martin, who was killed when her vehicle was hit by a train. Thereafter, various surviving family members sued Norfolk Southern (and its engineer), claiming that it permitted vegetation at the crossing to block Mrs. Martin's view of the approaching train. The defendants moved for summary judgment dismissing the complaint, and the trial judge granted the motion, prompting the plaintiffs' appeal, which eventually reached the Supreme Court of Tennessee.
And while the court found several genuine issues of material fact rendered the trial court's entry of summary judgment erroneous, it also found that the plaintiffs would not be able to present evidence at trial of a subsequent remedial measure taken by Norfolk Southern.
Specifically, Norfolk Southern cleared the vegetation at the crossing thirty-one months after Mrs. Martin's death. The trial judge made a pre-trial evidentiary ruling that this evidence would be inadmissible during the compensatory damages stage of the trial pursuant to Tennessee Rule of Evidence 407, which states that:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove strict liability, negligence, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving controverted ownership, control, or feasibility of precautionary measures, or impeachment."
On appeal, the plaintiffs did not claim that the evidence that Norfolk Southern cleared the vegetation was admissible for one of the permissible purposes listed in Rule 407; instead, they claimed that the clearing of the vegetation was not a subsequent remedial measure. Specifically, the plaintiffs
"contend[ed] that the clearing was not subsequent because it was separated by too great a period of time. Furthermore, they argue[d] that the clearing was not remedial because it was carried out in accordance with Norfolk's internal policies rather than with the intent of remedying the condition that allegedly lead to Mrs. Martin's death."
I think that anyone looking at the text of Rule 407 can see that these arguments don't hold any water, and that is exactly what the Supreme Court of Tennessee found,
"conclud[ing] that these arguments [we]re without merit. The clearing [wa]s remedial because it corrected an allegedly dangerous condition and made the crossing safer for future motorists....That the clearing was carried out pursuant to corporate policy does not undermine the remedial nature of the action. In addition, the clearing of the vegetation undisputedly followed the accident giving rise to this action....That it occurred over two years later does not make the event any less subsequent."
Sunday, November 16, 2008
Tortious Interference Gives You Wings: Court Finds Expert Testimony Admissible On Only 1/3 Of Counts In Case Against Red Bull
The recent opinion of the United States District Court for the Western District of Kentucky in Western Kentucky Coca-Cola Bottling Co., Inc. v. Red Bull North America, 2008 WL 4876520 (W.D.Ky. 2008), reveals that, to be admissible under Federal Rule of Evidence 702, expert testimony must be both reliable and relevant.
Red Bull was based upon the termination of a distributorship agreement between Western Kentucky Coca-Cola Bottling Company, Inc. (“WKCC”) and Red Bull. Under that agreement, WKCC became a distributor within Kentucky of beverage products produced by Red Bull. WKCC alleged, however, that Red Bull (1) wrongfully terminated the agreement because it did not provide WKCC with reasonable notice of termination; (2) was unjustly enriched by WKCC's services in connection with the agreement; and/or (3) tortiously interfered with the agreement when it began distributing Red Bull Products.
WKCC sought to have expert witness Robert Taylor testify that Red Bull's actions caused WKCC $8,968,784 in lost profits, but Red Bull moved to strike Taylor because his testimony was irrelevant. And as Meatloaf warbled, "Two out of three ain't bad."
You see, WKCC correctly argued that lost profit damages are not allowed in Kentucky in either a reasonable notice action or an unjust enrichment claim. Therefore, because Taylor's testimony did not "hav[e] any tendency to make the existence of any fact that [wa]s of consequence to the determination of the action more probable or less probable than it would be without the evidence," the court properly found Taylor's testimony on these claims irrelevant and inadmissible under Rule 401/Rule 702. Conversely, the court found that lost profit damages are allowed in Kentucky for tortious interference claims, meaning that Taylor's testimony was relevant, at least for that claim.
Saturday, November 15, 2008
Law & Order, Criminal Intent?: Second Circuit Finds Expert Drug Testimony Doesn't Violate Rule 704(b)
Recently, I wrote a post about what I regarded as an incorrect evidentiary ruling under Federal Rule of Evidence 704(b) by the Third Circuit in United States v. Farrish, 2008 WL 4672128 (3rd Cir. 2008). Federal Rule of Evidence 704(b) states that:
"No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."
And in Farrish, the Third Circuit correctly noted that, notwithstanding Rule 704(b), "[i]t is well established that experts may describe, in general and factual terms, the common practices of drug dealers." I thought, however that the Third Circuit went too far in finding that an expert was not testifying about the defendant's intent and was merely testifying about the common practices of drugs dealers when he concluded that "the facts and circumstances surrounding [the defendant's] behavior were 'indicative' of someone who had the intent to deliver drugs."
Conversely, I think that the Second Circuit correctly found that such "common practice" testimony was properly admitted in its recent opinion in United States v. Lopez, 2008 WL 4831638 (2nd Cir. 2008). In Lopez, Ricardo Lopez appealed from a judgment convicting him of possession of cocaine with intent to distribute and possession of two firearms in furtherance of a drug trafficking crime.
Central to Lopez's convictions was a green bag found in the driver's side trunk of his car. The bag contained "thirteen glassines of cocaine, as well as cocaine-related paraphernalia: a scale, a strainer with cocaine residue, a wooden masher with cocaine residue, two spoons with cocaine residue, more than one hundred empty glassines, and a jar of a white powdery substance that looked like cocaine."
At trial, over Lopez's objection, the court admitted the expert testimony of Billy Ralat, an investigator at the United States Attorney's Office. According to Ralat,
"the items found in Lopez's green bag constituted 'basically a small distribution kit,' explaining that 'you have everything that you need to basically break [cocaine] down, cut it, and then rebag it for resale.' He concluded that the items were more consistent with drug distribution than personal use."
"Ralat did not testify as to Lopez's intent. Rather, he merely stated that, based on his experience as a drug investigator, the drugs and paraphernalia found in Lopez's car were more consistent with distribution than personal use. The question-whether Lopez had the requisite intent to distribute-was clearly left to Judge Stein as the trier of fact. Thus, contrary to Lopez's argument, Ralat's testimony did not run afoul of Rule 704(b)."
As I said above, I agree. Ralat's testimony was merely testimony regarding the common practices of drug dealers" while the testimony in Farrish was testimony regarding criminal intent.
Friday, November 14, 2008
The Lone Ranger and Tonto Fistfight in Heaven, Take 3: Tenth Circuit Finds Evidence Of Racial Bias During Deliberations Inadmissible
I've written two previous posts (here and here) about Kerry Dean Benally, a Native American man who was convicted of assault on a federal officer. After Benally was convicted, however, juror Karen Cano
came forward after the verdict and told the court that the jury foreman told the other jurors that he had lived on or near a reservation and that he told the other jurors, "When Indians get alcohol, they all get drunk" and that 'when they do get drunk, they get wild or violent." According to Cano, a female juror then seemed to agree with the foreman, saying something about what happens when "they get drunk." Cano also claimed that two other jurors talked about a need to send a message to the reservation.
In what I characterized as a landmark ruling and the first of its kind by a court in the Tenth Circuit, the United States District Court for the District of Utah ordered a new trial because it found that Cano's allegations sufficiently established that "jurors had failed to answer honestly when asked about whether they had any preconceived notions about Native Americans."
My second post on the case indicated that a three judge panel of the Tenth Circuit heard the prosecution's appeal, and yesterday, the panel unfortunately reversed the district court's ruling in United States v. Benally, 2008 WL 4866618 (10th Cir. 2008). So, what was the court's reasoning?
Well, first, let's look at Federal Rule of Evidence 606(b), which states in relevant part that:
"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."
Now, Benally argued that the jurors' racist statements constituted extraneous prejudicial information and/or an outside improper influence, but the Tenth Circuit properly rejected those arguments. As the court noted, the exceptions in (1) and (2) cover external evidence (such as a newspaper article about a failed polygraph test finding its way to the jury) and external influences (such as the relative of a party threatening a juror); however, they do not cover "a juror who brings his own personal experiences to bear on the matter at hand."
Benally also claimed that the Tenth Circuit should imply an exception to Rule 606(b) for evidence touching on racial bias because, as the Ninth Circuit stated in dicta in United States v. Henley, 238 F.3d 1111, 1120 (9th Cir. 2001), such an exception would be "'consistent with the text of the rule, as well as with the broad goal of eliminating racial prejudice from the judicial system, to hold that evidence of racial bias is generally not subject to Rule 606(b)'s prohibitions against juror testimony." And, to the extent, that we are just focusing on the evidentiary issue and not its constitutional dimensions, I would also agree with the Tenth Circuit's rejection of this argument because "a court in a particular case is not the proper forum for making or enlarging exceptions to the rules of evidence."
So, why do I disagree with the Tenth Circuit? Well, let's start with the fact that, as noted above, the district court found that Cano's statements were admissible to prove that jurors lied on voir dire when they said that they had no preconceptions about Native Americans. Is such juror testimony proscribed by Federal Rule of Evidence 606(b)?
According to the Tenth Circuit, "[t]here is a split in the Circuits on this point;" however, the only case cited by the Tenth Circuit for the proposition that jury testimony is inadmissible when introduced for this purpose was the Third Circuit's opinion in Williams v. Price, 343 F.3d 223 (3rd Cir. 2003), written by now-Supreme Court Justice Samuel Alito. But Price actually didn't come to this conclusion. In Price, the defendant sought federal habeas relief, which Alito found that he could only deliver if the lower courts' decision to preclude him from introducing jury testimony to prove that jurors lied on voir dire was contrary to clearly established federal law. And because Alito found no such clearly established federal law, he could not afford the defendant relief (although, as will be noted later, he afforded the defendant relief on different grounds).
Thus, Price itself didn't reach the conclusion alleged by the Tenth Circuit, so what cases led to Justice Alito failing to find no clearly established federal law on the issue? My answer is that I have no idea. As I have indicated before on this blog, my next article addresses the very issues raised by Benally, and I have been researching the voir dire issue. And while a few state court cases such as the one leading to Williams v. Price have come to the opposite conclusion, my research has otherwise led me to agree with the conclusion of the Supreme Court of North Dakota that "[c]ourts have universally held that provisions similar to N.D.R.Ev. 606(b) also do not preclude evidence to show that a juror lied during voir dire." At the federal level, the Tenth Circuit would now be the one aberration.
So, why did the Tenth Circuit side with the position it attributed to the Third Circuit? Well, even though it found that Benally would not be using Cano's statements directly to inquire into the validity of the verdict, which is proscribed under Rule 606(b). the indirect purpose of using Cano's statements to prove that jurors lied on voir dire "was to support a motion to vacate the verdict, and for a new trial. That is a challenge to the validity of the verdict." The court then contrasted this situation with a contempt proceeding against a dishonest juror, in which the juror's statements during jury deliberations are admissible, notwithstanding Rule 606(b).
So, where does that leave things? Well, as I have noted before, the argument of my forthcoming article is that application of Rule 606(b) to allegations of racial/religious/other prejudice violates a criminal defendant's right to present a defense/Compulsory Process. And whether you take the broader perspective of basically all other courts or the narrower approach of the Tenth Circuit, it is clear that evidence of bias during jury deliberations is admissible in at least certain circumstances.
Significantly, the first Supreme Court case to apply the Compulsory Process Clause to a rule of evidence was Washington v. Texas, 388 U.S. 14 (1967). In that case, two Texas statutes prohibited a charged coparticipant in a crime from providing exculpatory testimony on the behalf of another coparticipant. The Supreme Court first found that these statutes violated the defendant's rights under the Compulsory Process Clause because they "prevent[ed] whole categories of defense witnesses from testifying...." Obviously, this has some resonance with Rule 606(b), which prevents a whole category of defense witnesses -- jurors -- from impeaching their verdicts through evidence of anything internal to the jury deliberation process.
As I will note in my article, however, this analogy is not perfect, but it is made more perfect by the second part of the Court's ruling, which was that "[t]he rule disqualifying an alleged accomplice from testifying on behalf of the defendant cannot even be defended on the ground that it rationally sets apart a group of persons...." Instead, Texas allowed acquitted coparticpants to testify on behalf of other coparticipants and allowed charged or convicted coparticipants to provide testimony for the state that incriminated other coparticipants. It seems to me that court decisions allowing jurors to disclose biased statements to prove that a juror lied during voir dire to establish contempt and, according to most courts, to achieve a new trial, means that courts can't rationally draw a line and prevent those statements from being used directly to challenge the validity of a verdict.
And, why is such a Compulsory Process Clause/right to present a defense challenge so important? Benally also argued that application of Rule 606(b) to allegations of racial bias violated his Sixth Amendment right to an impartial jury. The roadblock faced Benally on this argument was that the Supreme Court found in Tanner v. United States that application of Rule 606(b) to allegations of, inter alia, juror alcohol and drug use during trial did not violate the defendant's Sixth Amendment right to a competent jury. And while Benally argued that application of Rule 606(b) to allegations of racial bias violated his Sixth Amendment right to an impartial jury, and involved "a more serious and fundamental danger to the justice system than intoxicated jurors, the Tenth Circuit rejected the argument, and I think that many courts would do the same based on Tanner (even though I disagree).
So, why might the Compulsory Process Clause compel a different result? Well, like many courts rendering similar decisions, but without allegations of jurors lying on voir dire, the Tenth Circuit applied Rule 606(b) despite finding that "[i]t may well be true that racial prejudice is an especially odious, and especially common form of Sixth Amendment violation." As I said before, if we are looking strictly at the evidentiary issue and not its constitutional dimensions, the Tenth Circuit acted properly in strictly and technically applying the language of Rule 606(b) to preclude jury impeachment through evidence of racial bias. But, with all of these courts recognizing the elephant in the room, doesn't this seem to be a situation where courts are applying a rule of evidence "mechanistically to defeat the ends of justice," which the Court found unconstitutional in Chambers v. Mississippi, 410 U.S. 284 (1973)?
Now, when I presented my Compulsory Process Clause/right to present a defense argument at my school, my colleague Tim O'Neill asked whether a court would accept the argument because the classic Compulsory Process Clause/right to present case relates to evidence of the crime itself, not evidence of juror misconduct. This is true, but it looks to me like Williams v. Price provides the answer.
In that case, while Justice Alito awarded no federal habeas relief to the defendant based upon the lower courts' exclusion of evidence of racial bias exhibited during jury deliberations, he awarded him relief based upon the lower courts' exclusion of evidence that:
"Subsequent to the proceedings in this case...[an acquiantance of the defendant] ran into Juror Number Two (2) in the lobby of the Courthouse....Upon seeing me he stated 'All niggers do is cause trouble' I am not sure whether this was stated directly to me but it was stated for my benefit and loudly enough for me to hear and to get a rise out of me. During our confrontation he also stated 'I should go back where I came from.'"
The basis for awarding this relief was the Compulsory Process Clause/right to present a defense. And Alito did so despite finding that "[n]one of these cases [such as Washington v. Texas and Chambers v. Mississippi] clearly establishes just how far a jurisdiction may go in excluding evidence of juror misconduct." Thus, courts should be able to apply the Compulsory Process Clause/right to present a defense to cases of jury misconduct, and I think that I can prove that they should apply them to allegations of racial/religious/other bias by jurors during deliberations.
Thursday, November 13, 2008
Crack House Crackdown: Federal Judge Finds Officials' Statements To Be Nonhearsay In Case Against "The Worst Mayor In America"
Some people (no, not Keith Olbermann) have referred to Mississippi Mayor Frank Melton as "The Worst Mayor in America." And now, pursuant to a ruling by a federal court judge, he may have to pay for some of his misdeeds.
Prosecutors allege that Melton and a group of young men, some with criminal records, used sledgehammers and a large stick to break apart a duplex Melton has since said was a crack house. Consequently, they charged Melton and others with violating the constitutional right against unreasonable search and seizure for Evans Welch, who was living in the duplex, and Jennifer Sutton, who owns the structure. Prosecutors also charged the men with violating those civil rights "under color of law" and committing a violent crime while possessing a handgun.
So, what was the hearsay ruling at issue? Well, apparently, prior to the crack house crackdown, Attorney General Jim Hood and Jackson Police Department officers had warned the mayor against unconstitutional searches and seizures. And while Melton’s motion called those warnings inadmissible hearsay, Judge Daniel Jordan ruled them admissible, which was very damaging to Melton because the prosecution has to show that Melton knew his actions were illegal.
So, why did Judge Jordan rule these statements admissible? Well, I would guess that he found that the statements were nonhearsay. Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." In this case, however, the prosecution was seeking to use the warnings not to prove the truth of the matter asserted therein, but simply to prove that Melton was put on notice and given a duty to investigate the constitutionality of his actions. As I wrote in a recent case in which Fire Department Officials told bar patrons that their practice of setting fire to alcohol poured on the bar could seriously injure someone:
"the prosecution does not need to offer these statements to prove their substance. Instead, the prosecutor can introduce those statements merely to prove that they put Ward on notice, such that he had a duty to investigate and potentially end his bar's dangerous practice. See, e.g., Sadowsky v. Anchor Packing Co., 1996 WL 191634 at *3 (Wis.App. 1996) ("Because the exhibit was offered to show notice to Garlock, it was not shown for the truth of the matter stated within, but rather for the effect of the information on Garlock. Offered for that purpose, the exhibit would not have been hearsay."). been hearsay.").
Wednesday, November 12, 2008
Hard Cases Make (Not So) Bad Law: Vermont Senators Remove Controversial Recommendations From Sex Offender Plan
It is often said that hard cases make bad law, but it appears that Vermont state senators avoided this aphorism by failing to include 5 controversial recommendations in a plan that was prompted by such a hard case. 43 year-old Michael Jacques is charged with the rape and killing of 12-year-old Brooke Bennett, his niece. And while he had been indicted by a federal grand jury and could face the death penalty, "[m]any Vermonters, including Gov. James Douglas and Lt. Gov. Brian Dubie, clamored for the Legislature to pass additional measures to protect children from sexual predators following Bennett's death."
This clamor led the Senate Judiciary Committee to draft a 34-point plan, which it will hand over to Senate President Pro Tem Peter Shumlin in Montpelier today. Among the points in the plan is a new charge — aggravated sexual assault on a child under 16 — that would allow prosecutors to seek a mandatory 25-year minimum sentence at their discretion.
Among the points not included, however, are 5 controversial recommendations:
-reinstating the death penalty, which was proscribed in the Vermont in 1964;
-requiring civil commitments for violent sex offenders at the end of their prison sentences;
-an enhanced judicial accountability measure that would allow the General Assembly to vote by roll call when voting to retain judges;
-complying with the Adam Walsh Act of 2005; and
-allowing a defendant's prior bad acts to be accessible to law enforcement and admissible in court.
My colleague Corey Yung is better suited to address these first 4 points over at Sex Crimes, but I will address the last point. At least with regard to the admissibility of evidence of a defendant's prior bad acts, the point that was not included would have brought Vermont in line with the much despised Federal Rules of Evidence 413-415.
Basically, for every other type of accused, we don't allow evidence of their prior bad acts to prove that they have a propensity to act in a certain matter and that they likely acted in conformity with that propensity by committing the subject crime. Thus, evidence that a man charged with robbing a bank previously robbed another bank would be inadmissible because its probative value relies on the aphorism, "Once a bank robber, always a bank robber."
Enacted in the 1990s, however, to increase the likelihood of sexual offense convictions, Federal Rules of Evidence 413-415 remove this propensity character evidence proscription for sex offenders and allow bad act evidence to prove, "Once a sex offender, always a sex offender." As, I said above, hard cases make bad law, but is nice to see that, at least for now, Vermont senators avoided the same trap that caught their D.C. counterparts.
Tuesday, November 11, 2008
Last December, I posted an entry about a case in which a jury convicted Douglas Oliver Kelly of the first degree murder of Sara Weir under the special circumstances of robbery, rape, and with personal use of a deadly weapon. And during the penalty phase of Kelly's trial, after which he was sentenced to death, the court allowed the prosecution to play a 20-minute videotaped victim impact statement with a montage of photographs of Sara Weir's life, narrated by her mother. On appeal to the Supreme Court of California, Kelly claimed that the videotape was unfairly prejudicial.
One of the grounds for his appeal was that the videotape should have been excluded because it was accompanied by Enya music. The Supreme Court of California attempted to distinguish previous cases where courts had found that videotaped victim impact statements accompanied by music from the Beatles, James Taylor, and Celine Dion were or should have been deemed inadmissible. According to the Court, a rational line could be drawn because Beatles and James Taylor music is "stirring" and could go "beyond what the jury might experience by viewing still photographs of the victim or listening to the victim's bereaved parents" while the Enya music in the video in Kelly's case was "generally soft, not stirring," with most of the words unrecognizable.
Then, this September, I posted a second entry, this one about Kelly filing a petition for writ of certiorari to the Supreme Court. As I noted,
In that petition, he has claimed that "courts have 'held the line' against the introduction of tapes containing both background music and extensive video footage or collections of photographs....The petition also contends the inclusion of background music serves no purpose beyond heightening the emotional experience of the viewer. Kelly’s attorney cites a 1940 essay in the New York Times in which composer Aaron Copland discussed his score for the movie, Of Mice and Men. 'The quickest way to a person’s brain is through his eye,' Copland wrote, 'but even in the movies the quickest way to his heart and feelings is still through the ear.' The petition argues that just as background music could not be played during in-court testimony, nor should it be allowed to accompany evidence on videotape."
Well, yesterday, the Supreme Court denied cert in Kelly's case, Kelly v. California, as well as in the similar case, Zamudio v. California. While four justices were needed, only three, Breyer, Souter, and Stevens, favored review.
Stevens issued a dissent, which was unsurprising because he had previously dissented in Payne v. Tennessee, 501 U.S. 808 (1991), the case which overruled Booth v. Maryland, 492 U.S. 496 (1987). According to Booth, victim impact statements were per se inadmissible; according to Payne, the Eighth Amendment does not place a per se bar on admitting victim impact statements in the sentencing phase of capital murder trials, but, "[i]f, in a particular case, a witness' testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment."
In his dissent to the denial of cert, Stevens noted:
"I remain convimced that the views expressed in my dissent in Payne are sound, and that the per se rule announced in Booth is both wiser and more faithful to the rule of law than the untethered jurisprudence that has emerged over the past two decades."
Furthermore, Stevens found that:
"even under the rule announced in Payne, the prosecution's ability to admit such powerful and prejudicial evidence is not boundless. These videos are a far cry from the written victim impact evidence at issue in Booth and the brief oral testimony condoned in Payne. In their form, length, and scope, they vastly exceed the 'quick glimpse' the Court's majority contemplated when it overruled Booth in 1991. At the very least, the petitions now before us invite the Court to apply the standard announced in Payne, and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence. Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor's side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use."
Breyer largely agreed with this last portion of Stevens' opinion, finding that:
"the film's personal, emotional, and artistic attributes themselves create the legal problem. They render the film's purely emotional impact strong, perhaps unusually so. That emotional impact is driven in part by the music, the mother's voiceover, and the use of scenes without victim or family (for example, the film concludes with a clip of wild horses running free)....I understand the difficulty of drawing a line between what is, and is not, constitutionally admissible in this area. And in my view, the Court should grant certiorari and consider these cases in an effort to do so."
I have to agree with Breyer and at least the latter part of Stevens' dissent (I'm not sure about Booth's per se rule). Right now, there is almost no guidance given to judges in deciding whether victim impact statements violate the Due Process Clause. Instead, what we are left with is judge as music critic, with the judge in Kelly's case somehow being able to conclude that a victim impact statement accompanied by Enya music is permissible even where those accompanied by the music of Celine Dion, the Beatles, and James Taylor were not. So, what do readers think? And in reaching a conclusion, you might want to view the victim impact statement from Kelly's case, which the Supreme Court has posted here.