January 5, 2008
As I Lay Dying: Supreme Court Of Michigan Finds Children Can Have The Awareness Of Impending Death Necessary For Dying Declarations
In People v. Stamper, 2007 WL 4553540 (Mich. 2007), the Supreme Court of Michigan recently addressed an issue I had never seen raised before: can a young child have an awareness of impending death so as to satisfy the requirements of the dying declaration exception to the rule against hearsay? On September 8, 2004, Stamper gave his girlfriend's four year-old son a bath. The girlfriend heard her son crying during the bath. According to the girlfriend, after the bath, her son passed out, and Stamper put him in the bathtub to revive him. Later, the son lay down on a bed with the girlfriend, who asked him to open his eyes; he responded, "Mom, I can't. I'm dead." Stamper's daughter, who was also present, indicated that the girlfriend's son similarly told her, "don't bother me, I'm already dead." Eventually, the girlfriend called her father, who arrived and called 911.
The child was thereafter admitted to the hospital with bruises on his neck, arms, chest, abdomen, groin, testicles, and legs. When one nurse asked him how he got his bruises, he responded, "from 'Mike.'" Another nurse then asked who Mike was, and the child responded, "Mom's wife." Soon thereafter, the child died. Over the defendant's hearsay objections, the trial court allowed testimony about the child's statements on the ground that they constituted dying declarations, resulting in the defendant being convicted.
Pursuant to Michigan Rule of Evidence 804(b)(2), if the declarant is unavailable, his statements are admissible in a prosecution for homicide or in a civil action or proceeding if they were made while the declarant believed that his death was imminent and if they concerned the cause or circumstances of what the declarant believed to be his impending death. Clearly, in Stamper's case, the child was dead and thus unavailable, Stamper was being prosecuted for homicide, and the child's statements concerned the cause of his death. Stamper, however, claimed that a four year-old child lacks the capacity to be aware of his impending death.
The Supreme Court of Michigan upheld Stamper's convictions, rejecting the contention that a child's age should per se preclude the admission of his statements as dying declarations. Instead, the Court found that the issue of whether a child was aware of his impending death when making statements must be determined on a case-by-case basis. The Court then found that the child's statements that he was "dead" and "already dead" showed that he was aware of his impending death, making his statements admissible as dying declarations.
I agree with the Court's ruling and think that it is consistent with prior decisions, including Michigan decisions, dealing with the admissibility of children's statements offered pursuant to the medical treatment/diagnosis to the exception to the rule against hearsay. Pursuant to this exception, statements made for purposes of medical treatment or diagnosis are admissible in part because theorists believe that people would not lie in such circumstances because of the potentially dire consequences of mistreatment of misdiagnosis.
In many cases, defendants argued that this exception didn't apply when the declarant was a child because children don't understand the consequences of lying to doctors or nurses, but the Supreme Court of Michigan went with the general trend in People v. Moeeboer, 484 N.W.2d 621, 627 (Mich. 1992), by finding that children's statements to medical services providers can be admissible under the exception as long as their statements are found to be reliable when looking at the totality of the circumstances. The same analysis should apply to dying declarations, which is exactly what the Court did in Stamper's case.
Indeed, it seems clear that although the issue apparently wasn't raised in Stamper's case, the child's statements could have been admissible pursuant to the medical treatment/diagnosis exception contained in Michigan Rule of Evidence 803(4). Typically, the problem with this exception would be that while it allows for the admission of statements about the general source of the declarant's injuries (such as being punched), it does not allow for the admission of statements about the identity of the person causing the injuries (such as Stamper). Consistent with other courts, however, the Supreme Court of Michigan in Moeeboer found that statements about identity can be admissible when, inter alia, the declarant is a child who might be returned to the custody of his alleged assailant.
January 4, 2008
The Dangers Of Daubert: Tenth Circuit Reverses District Judge's Decision Excluding Expert Evidence In Case Against Whirlpool
On the evening of February 16, 2000, Lorray McCoy loaded her Whirlpool dishwasher before going to bed. As she was falling asleep, she smelled smoke and discovered a fire in her house, which she claimed emanated from the dishwasher. While she was able to escape, her daughter Shelley died in the fire, which also destroyed the McCoy residence. Lorray, her husband James, and their insurer, American National Property and Casualty Company, thereafter sued Whirlpool for wrongful death and property loss based upon a strict liability theory. While the first trial against Whirlpool resulted in a deadlocked jury, the second trial ended with the jury awarding the plaintiffs $1,712,914 in damages.
This verdict was in large part based upon the expert testimony provided by the plaintiffs' expert witness, James T. Martin, an electrical engineer with experience in investigating fires involving dishwashers. Martin testified that if the house fire originated in an electrical fire in the dishwasher's latch door switch assembly, then it was his opinion that the specific cause of the fire was excessive resistance heating occurring in the current flow path caused by a manufactiring defect in the connection between the flag terminal and either the conductor or microswitch.
Martin's testimony conflicted with the testimony of Whirlpool's expert witness, Ernest Grunewald, a Whirlpool engineer. Grunewald had testified that the fire could not have originated in the "connection area" because the black microswitches in the McCoy's dishwasher's door latch assembly would have acted as thermal fuses to cut off electrictity and thus halt excessive resistance heating in this area before a fire could ignite. Whirlpool claimed that Martin's testimony was unreliable and inadmissible under Federal Rule of Evidence 702 because he failed to adequately address Grunewald's testimony. The trial judge rejected this argument, finding that the scientific methodology utilized by Martin, such as relying upon electrical engineering principles, a review of thousands of Whirlpool documents, and the results of tests, was customary and generally accepted in the electrical engineering field.
After the jury entered its verdict, however, the trial judge reversed himself and found that Martin's testimony was not sufficiently reliable to be admitted under Rule 702. The plaintiffs then appealed to the Tenth Circuit Court of Appeals, which reversed the trial judge's opinion and laid bare the potential problems with the ambiguous test for reliability laid out in Federal Rule of Evidence 702.
For years, both federal and state court relied upon the opinion in Frye v. United States in determining whether expert evidence was admissible. This test, which some state courts still apply, asked judges to consider whether the proferred expert evidence was based upon a test or principle that had general acceptance in the relevant scientific community. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), however, the Supreme Court found that the Frye test was inapplicable in cases covered by the federal rules of evidence and instead adopted a test that has since been incorporated in Federal Rule of Evidence 702. The Supreme Court found that judges should act as "gatekeepers" and determine whether expert evidence is relevant and the product of a reliable technique or test. In Daubert, the Supreme Court laid out five "general observations" about how judges should determine whether a test or technique is reliable such as, not only whether the test has general acceptance in the relevant scientific community, but also whether it has been subjected to peer review or publication.
The Supreme Court, however, did not state that these "general observations" were definitive or exhaustive, which has led federal courts in subsequent cases to apply a variety of tests, promptong several commentators to claim that judges are being too proactive and excluding expert evidence despite lacking the sceintific/medical/ technical knowledge necessary to make such decisions. See, e.g., Susan Haack, An Epistemologist in the Bramble-Bush: At the Supreme Court with Mr. Joiner, 26 Journal of Health, Politics, Policy & Law 217 (2001). While I think that Daubert is more of a mixed bag, the trial judge's opinion in the Whirlpool case seems to be a case to fuel the fire of the critics.
If the trial judge were using the Frye test, he would have found Martin's testimony admissible because he found that the scientific methodology that Martin used was customary and generally accepted in the electrical engineering field. As the Tenth Circuit noted, however, after the jury's verdict, the trial judge retroactively determined that Martin's testimony was unreliable becuase he found Grunewald's testimony to be credible and persuasive and thus found that Martn's failure to rebut Grunewald's testimony rendered his expert testimony unreliable and inadmissible. Ciring to other cases, the Tenth Circuit concluded that the trial judge exceed his powers because judges are solely supposed to determine whether expert evidence is reliable, not to exclude expert evidence because it believes that one expert is more credible than another witness because such action would supplant the adversary system and the role of the jury. I agree with the Tenth CIrcuit's decision and worry that trial judges are too often putting on their amateur sceintists' hats and improperly deciding issues instead of regulating the flow of information to juries.
January 3, 2008
Big Brother Is Watching: Marine Corps Makes Contents Of All Military Computers Fair Game
In United States v. Long, 64 M.J. 57 (U.S. Armed Forces 2006), the United States Court of Appeals for the Armed Forces reversed a lance corporal's convictions for the use of ecstasy, ketamine, and marijuana. The basis for reversal was the fact that the government retrieved from the lance corporal's military computer e-mails where she detailed her drug use and how she planned to evade detection in a drug test. On appeal, she argued that the retrieval and admission of these e-mails violated her rights under the Fourth Amendment because she had a subjective expectation of privacy in these e-mails that was objectively reasonable. The Court of Appeals for the Armed Forces agreed, in part based upon its finding that the military had not adequately notified her that her military computer could be searched.
A fast forward to last month lets us see the military's Orwellian response to this opinion. For three weeks in December, the Marine Corps put warnings on military computers telling users that government agents can dig through and seize anything found on the machine. While these warnings have since been removed, their message appears to accurately reflect the present Marine Corps policy that anything done on a military computer is fair game for a search, which can be performed without even notifying the defendant or his attorney. This policy not only means that service men and women need to be wary of what they do on military computers, but also that the relationship between their military attorneys and them has been put at risk.
To wit, Stephen B. Tatum is currently facing trial on charges that he negligently killed Iraqis in the town of Haditha in 2005. Tatum has military defenswe attorneys assigned to represent him, and he also hired civilian defense attorney Jack Zimmerman to work in concert with them. Zimmerman argued before the military judge hearing Tatum's case, Lt. Col. Eugene Robinson, that the Marine Corps policy jeopardizes the attorney-client privilege central to a robust defense. Tatum painted a scenario where an NCIS agent could want to know what Tatum's attorneys were doing and, under the Marine Corps policy, would have every right to search the military defense attorneys' computers, and do so remotely, without the attorneys ever realizing it.
Robinson rejected this argument, finding that the defense attorneys didn't have to use computers and e-mails, but instead could rely on fax machines, phone calls, and snail mail. In response to the ruling, Lt. Col. Colby Vokey, the man in charge of all Marine Corps defense attorneys in the western United States, argued that Robinson's decision puts military defense attorneys on unequal grounds because they can't use modern assets.
I strongly disagree with Robinson's decision and agree with the arguments of Zimmerman and Volkey. A military accused has a right to the effective assistance of counsel under both the Sixth Amendment to the Constitution and Article 7, UCMJ, 10 U.S.C. Section 827. See United States v. Hicks, 47 M.J. 90, 92 (U.S. Armed Forces 2006). Under Marine Corps policy, however, military defense attorneys would seem to be hamstrung, precluding the effective assistance of counsel. Robinson's decision seemed only to touch the tip of the iceberg of the problem. Maybe, as Robinson notes, being forced to use faxes, phone calls and snail mail in lieu of e-mails is not horribly inconvenient (although I'm sure many would disagree).
But how are these attorneys supposed to do their research? Surely, they can't use online sites like Westlaw or Lexis because the government could track their searches. This would mean that they would have to rely solely on hardbound editions, putting them at a severe disadvantage vis a vis their adversaries. And how are these attorneys supposed to prepare their motions and briefs? Surely, they can't use Word or Word Perfect because the government could open these documents. This would presumably mean that these documents would need to be prepared in longhand or by typewriter, again disadvanting defense counsel and preventing the effective assistance of counsel. These and many other concerns, including the stated concerns about confidentiality, make the Marince Corps policy pernicious and likely unconstitutional.
January 2, 2008
I Confess: New York Judge Vacates Conviction Based Upon New Evidence And Questions About Defendant's Low IQ
In 2004, Dan Lackey was convicted of first degree sexual abuse and sentenced to eight years imprisonment based upon his alleged sexual assault of an unnamed victim on January 6, 2003 in New York. Based upon newly discovered evidence, however, Madison County Judge Biagio DiStephano vacated his conviction. The new evidence was the fact that the victim reported in November 2004 that she had been the victim of another sexual assault. Later, however, she admitted that she made up the November incident and spent 3 months in jail on charges of third-degree falsely reporting an incident and making a punishable false statement. According to her, she had been hearing voices and blacked out. She initially thought that she was attacked, but later realized she had caused her own injuries.
Judge DiStephano determined that this evidence was sufficient to vacate Lackey's conviction because of the overall weakness of the case against Lackey. Specifically, the victim was never able to identify Lackey as her assailant, there was no scientific evidence linking him to the crime, and while Lackey did give an admissible confession, there were questions about his ability to waive his Miranda rights based upon his IQ of 73.
Judge DiStephano's ruling appears correct to me, and it makes me wonder whether New York courts and courts across the country too rarely find that defendants lack the mental capacity to waive their Miranda rights. Like most states' courts, New York courts hold that "low intelligence is but one factor to be taken into account in the totality of circumstances of custodial interrogation, and that individuals with borderline or impaired intellectual functioning may be perfectly capable of knowingly, intelligently, and voluntarily waiving their Miranda rights." Matter of Kenneth C., 479 N.Y.S.2d 396, 403 (N.Y.Fam.Ct. 1984). Thus, for instance, New York courts have found knowing, intelligent, and voluntary waiver of Miranda rights by defendants with:
-a verbal IQ of 64 and a performance IQ of 86. See id. at 403;
-an "extremely low" intelligent quotient bespeaking some degree of mental retardation. People v. Kelly, 67 A.D.2d 1009 (N.Y.A.D. 2nd Dept. 1979);
-a score of 70 on an intelligence test, indicating a mental defect or mild mental retardation. See People v. Chaffee, 42 A.D.2d 172, 173 (N.Y.A.D. 3rd Dept. 1973);
-a score of 77 on an IQ test. See People v. Lux, 34 A.D.2d 662 (N.Y.A.D. 2nd Dept. 1970).
I don't have the background to be able to determine whether individuals in these IQ ranges can both understand the rights they possess and what it means to waive them. That said, when results like the vacating of Lackey's conviction occur, it makes me wonder both whether confessions by those with low IQs should be admissible and whether they have any probative value.
January 1, 2008
Stabbing Westward: Utah Court Finds That Proving Witness Fear Is A Permitted Purpose Under Rule 404(b) In New Year's Day Case
In State v. Johnson, 163 P.3d 695 (Utah App. 2007), the defendant Terry L. Johnson appealed his conviction for murder based upon the stabbing death of fourteen year-old Christopher Mosier. On December 30, 1993, Christopher was babysitting the defendant's baby at his mother's apartment. When his mother returned home, she discovered Christopher dead on the apartment floor with fifteen stab wounds.
Later, police contacted the defendant's wife, who told them that she was not afraid of the defendant and that she did not believe that he killed Christopher. The defendant's wife then called the defendant and told him that the police wanted to talk to him. The defendant promptly came home to talk with them about the murder. Later, on New Year's Day, the defendant went to the home of his friend, Madgy Hassan, and told Hassan that "he couldn't stab somebody 15 or 16 times, that he just couldn't do such a thing." The police, however, had not told the defendant how many times Christopher was stabbed, and this information had not been released to the press.
At the defendant's trial, the prosecution not only presented evidence such as the defendant's incriminating statement to Hassan and physical evidence, but also evidence of past domestic abuse committed by the defendant against his wife, which consisted of the defendant choking her and hitting her in her pregnant stomach to cause a miscarriage. At trial, the defendant's wife testified that the reason she told police that she was not afraid of the defendant and did not believe that he killed Christopher was because she "was saying what [she] needed to survive." The prosecution thus contended that the evidence of past domestic violence was admissible to prove that the wife was afraid of the defendant, explaining why she initially gave false information to the police.
The trial court admitted this evidence pursuant to Utah 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the nature of any such evidence it intends to introduce at trial."
On appeal, the defendant claimed that the trial court was in error because proving "fear" of a witness is not an enumerated purpose under Utah Rule of Evidence 404(b). The Utah Court of Appeals, however, correctly noted that the "other purposes" listed in Rule 404(b) are non-exhaustive and that character evidence can be used for any "legitimate purpose" as long as it does not involve proving propensity/conformity.
The court went on to note that despite the evidence satisfying Utah Rule of Evidence 404(b), the trial court still needed to find that the evidence's probative value was not substantially outweighed by dangers such as the danger of unfair prejudice under Utah Rule of Evidence 403. The court assumed that the domestic violence evidence would have failed this test, but found that any error by the trial court would have constituted harmless error based upon other substantial evidence in the record, such as his incriminating statement to Hassas, supporting his guilt.
I agree with the court's assumption that the evidence would have failed the balancing test in Rule 403 and think that trial courts should be very wary of admitting evidence of past crimes or wrongs of a defendant to prove a witness' fear. The only probative value of such evidence is that it helps give some explanation, beyond the witness' own testimony, for why a prosecution witness may have given conflicting or delayed accounts of the defendant's involvement in the crime at issue. For instance, in Johnson's case, his wife could have and did testify that she initially gave false information to the police because she was afraid of her husband. The domestic violence evidence merely corroborated this fear, giving it minimal probative value.
On the other hand, it is easy to see why the evidence was highly prejudicial to the defendant. The evidence easily could have led the jury to believe that he was a violent person with little regard for human life, making it likely that he killed Christopher.
December 31, 2007
Californication: Court Finds Section 1108 of California's Evidence Code Doesn't Violate Due Process In New Year's Eve Case
In Renella v. Adams, 2007 WL 963969 (N.D. Cal. 2007), the District Court for the Northern District of California faced an issue of first impression: whether Section 1108 of the California Evidence Code is constitutional. Naish Nick Renella was convicted of four counts of sexual abuse. See id. at *1. One of these convictions was based upon, inter alia, Renella allegedly touching the chest and genitalia area of a sleeping twelve year-old boy at a New Year's Eve party at the Hyatt House Hotel. See id.
Some of the evidence used to convict Renella at trial consisted of uncharged prior sex acts that were admitted under Section 1108, which states that "[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Section 1108 is thus similar to Federal Rule of Evidence 414.
Section 1101 of California's Evidence Code is similar to Federal Rule of Evidence 404 and states the general rule that character evidence is inadmissible to prove that an individual has a propensity to act in a certain manner and that he acted in conformity with that propensity at the time of the alleged crime. Like Federal Rule of Evidence 403, Section 352 of California's Evidence Code indicates that although evidence is relevant, a court may exclude it if its probative value is substantially outweighed by dangers such as the danger of unfair prejudice.
After Renella's convictions, he brought a pro se habeas corpus case, claiming that the court's admission of uncharged prior sex acts under Section 1108 violated his right to due process. See id. The court noted that no court in a published opinion had ever addressed the constitutionality of Section 1108, but it noted that many courts, including the Ninth Circuit, have found that the similar Federal Rule of Evidence 414 does not violate defendants' rights to due process. See id. (citing United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001). These courts have done so because even when courts find that evidence is admissible under Federal Rule of Evidence 414, they still must determine whether it passes Rule 403's balancing test. Because Section 1108 explicitly tells courts to exclude evidence that fails the balancing test of Section 352 of California's Evidence Code, the court found that Section 1108 is similarly not violative of due process. Although I agree with Professor Rosanna Cavallaro's concerns about how courts apply Rule 403 in sex crimes cases, it seems to me that the court acted properly in treating Section 1108 in the same manner that courts treat Federal Rule of Evidence 414.
December 30, 2007
Narcissus & Echo: Ninth Circuit Reverses District Court And Finds Narcissistic Personality Disorder Diagnosis Evidence Admissible
Irwin Schiff is a well-known recidivist tax protestor, who was last released from prison for income tax evasion in 1991. Now, pursuant to the opinion of the Ninth Circuit Court of Appeals in United States v. Cohen, 2007 WL 4485629 (9th Cir. 2007), his acolyte, Lawrence Cohen, might avoid a similar fate. Cohen and others were convicted in connection with filing "zero returns," federal individual income tax returns containing a zero on every line related to income and expenses. Cohen's convictions, however, came only after, inter alia, the district court prevented him from presenting expert psychiatric evidence, leading the Ninth Circuit Court of Appeals to reverse his convictions and order a new trial.
The evidence that Cohen sought to present was a report prepared by psychiatrist Dr. Norton A. Roitman, who had met with Cohen twice. In the report, Dr. Roitman diagnosed Cohen as suffering from a narcissistic personality disorder and concluded that Cohen did not intend to violate the law, as would be the case with a criminal who acted out of a desire for personal gain. The report contended that Cohen did not intend to violate the law and that his behavior was driven by a mental disorder as opposed to criminal motivation. It noted that Cohen was irrational to the point of dysfunction, demonstrated by his stubborn adherence in the face of overwhelming contradictions and knowlege of substantial penalty.
The Ninth Circuit first found that this report was admissible under Federal Rule of Evidence 702, which states that expert opinion evidence is admissible if, inter alia, "[s]cientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." The Ninth Circuit found that Dr. Roitman's report would be helpful to the jurors in determining whether Cohen intended to commit the fraudulent tax-related acts with which he was charged, and its decision seems both correct to me and consistent with prior precedent. Indeed, the Ninth Circuit cited to its prior decision in United States v. FInley, 301 F.3d 1000 (9th Cir. 2002), where it found that expert evidence about a defendant's delusional disorder was admissible in his trial for tax-related crimes.
The more difficult question faced by the Ninth Circuit was whether the report was admissible under Federal Rule of Evidence 704(b), which states that "[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."
The Ninth Circuit first cited to its prior decision in United States v. Morales, 108 F.3d 1031 (9th Cir. 1997), where the defendant was charged with willfully making false entries in a union ledger, and the Ninth Circuit found that a certified public accountant could provide expert testimony that Morales had a weak grasp of bookkeeping principles. The Ninth Circuit came to this conclusion because the jurors could believe the expert's testimony about Morales' weak grasp of bookkeeping principles and still decide that Morales willfully made false entries.
The Ninth Circuit next cited again to the Finley case, where it had found that expert opinions are only excluded under Rule 704(b) if they "necessarily compel" a conclusion about the defendant's mens rea. 301 F.3d at 1015. In Finley, the Ninth Circuit also cited to Morales as well as to United States v. Rahm, 993 F.2d 1405 (9th Cir. 1993). In Rahm, the defendant was charged with, inter alia, possession of counterfeit currency, and the Ninth Circuit found that a psychologist could provide expert testimony about the defendant's poor visual perception because the jurors could believe this testimony and still decide that Rahm knew that he possessed counterfeit currency. In Finley, the Ninth Circuit analogized Finely's case to to the Morales/Rahm line of cases and found that the jurors could have believed that Finely was delusional and had a rigid belief system and yet still have concluded that he acted fraudulently.
In the Cohen case, the Ninth Circuit extended this logic from Finley and concluded that while some of the opinions contained in Dr. Roitman's report would likely have violated Rule 704(b), the jurors could have accepted other opinions relating to the narcissistic personality disorder diagnosis and still have found that Cohen had the requisite mens rea.
I'm not sure that I agree with the Ninth Circuit's decisions in Finley and Cohen. At the very least, it seems to me that the diagnoses in those cases do more to compel a conclusion about mens rea then did the testimony about lack of bookkeeping knowledge and poor visual perception on Morales and Rahm. Beyond that, if we actually look at the opinions in Dr. Roitman's report, it seems clear to me that the central thesis of his narcissistic personality disorder diagnosis was that Cohen lacked the necessary criminal intent. While the Ninth Circuit is correct that, for instance, any reference to the word "intent" could be removed from the report, the very nature of the diagnosis and every cited statement in Dr. Roitman's report seems to compel a finding that Cohen lacked the necessary mens rea.