Saturday, March 15, 2008
D.C. Follies: District Court For The District of Columbia Misapplies Brady Doctrine In Drug Bust Case
The D.C. Circuit's recent opinion in United States v. Johnson, 2008 WL 638614 (D.C. Cir. 2008), lays bare another district court's failure to properly apply the Brady doctrine, derived from Brady v. Maryland, 373 U.S. 83 (1963). In Johnson, an undercover officer radioed to inform Officers Jason Pearce and Steven Franchak, Investigator Steven Manley, and Detective David Dessin that a Blue Buick was "driving crazy" and heading toward them. These men then saw Johnson pull up in the Buick, double-park, get out of the car while leaving it idling, and approach an unoccupied green Chrysler that was parked on the other side of the street.
They then saw Johnson get into the Chrysler's driver's seat, lean over, and begin examining something in the vicinity of the passenger's seat. When they got out of their car, Johnson looked up and noticed them. His eyes then "widen[ed] and his mouth kind of f[ell] half open and he start[ed] fumbling with the driver's side door." He "looked very shocked and ... it took him several spastic actions to get the door open and he darted up out of the car." Pearce then directed Johnson to sit back down in the car, and Johnson did, but began reaching quickly around his waist area. Concerned, Pearce asked him to step out of the car, and when he did, Pearce smelled alcohol on his breath. Manley then saw an open container of alcohol inside the blue Buick. Pearce then handcuffed Johnson and told him that he was being arrested for possession of an open container of alcohol in an automobile. While arresting Johnson, Pearce found either on Johnson or in his car a semiautomatic handgun, two ziplock bags containing a "green plantlike substance," $1883 in cash, and several ziplock bags containing "white chunks of rocklike substance."
Johnson was subsequently charged with and convicted of (1) possession of a firearm by a convicted felon; (2) possession with intent to distribute five grams or more of cocaine base; (3) using, carrying, and possession a firearm in relation to a drug trafficking offense; and (4) simple possession of marijuana. These convictions came after the district court denied Johnson's motion to suppress the gun and drug evidence on the ground that it was the fruit on an unlawful detention. After Johnson was convicted, he moved for a new trial before the district court, claiming, inter alia, that the government failed to disclose Brady material that could have been used to impeach Officer Franchak's testimony. The alleged Brady material was an official MPD reprimand of Franchak, based on the results of an Office of Citizen Complaint Review investigation, for conducting an unexplained traffic stop and harassing the driver in 2001. The district court rejected this argument, finding that the reprimand would not have been admissible at trial, and hence was not favorable to Johnson, because it would have been barred by Federal Rule of Evidence 608(b).
On appeal, Johnson again made his suppression argument, and the D.C. Circuit rejected it. Johnson also re-raised his Brady argument, and the D.C. Circuit noted that Brady compels a new trial when the prosecution fails to timely disclose evidence favorable to an accused where the evidence is "material" either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution; evidence is "material" when there is a reasonable probability that, had the evidence been timely disclosed to the defense, the result of the proceeding would have been different. The D.C. Circuit then found that it did not need to decide whether the district court properly found that Franchak's reprimand was admissible because even if it were, it was not material. The court came to this conclusion because Franchak did not testify at the suppression hearing and was only one of several arresting officers who testified about the circumstances of Johnson's arrest.
In dicta, however, the D.C. Circuit properly suggested that the district court's Brady ruling with regard to admissibility was wrong. The D.C. Circuit noted that while the district court was correct that extrinsic evidence of Franchak's reprimand would have been inadmissible under Federal Rule of Evidence 608(b), that rule also provides that the reprimand could have been used to impeach his credibility at trial. The D.C. also correctly noted that the Supreme Court has found that the prosecution's failure timely disclose either material exculpatory or impeachment evidence can form the basis for a Brady violation. Thus, in my mind, the district court clearly misapplied the Brady doctrine.
(Of course, another aspect on the district court's decision which I think was wrong was its implicit holding that only a prosecution's failure to disclose admissible, as opposed to inadmissible, evidence can form the basis for a Brady violation. As I've argued before, I am opposed to such a per se rule, but the District Court for the District of Columbia clearly disagrees. See United States v. Edelin, 128 F.Supp.2d 23, 41 (D.D.C. 2001).
Friday, March 14, 2008
Anne Arundel Circuit Judge Paul Hackner has ruled that a rape victim's prior identifications of her assailant will be admissible at his upcoming trial. The victim was allegedly raped at a Linthicum, Maryland light rail station while waiting for a train in October 2007. At a pre-trial hearing, the victim testified that she was upset as she escorted police to where she had been raped moments earlier and saw Waller come out of the woods. According to the victim, upon seeing Waller, she began screaming, "That's him!" The victim testified, "I saw the man that I had described to police....I was very persistent to police that it was him." Police then chased and caught Waller, and the victim identified him a second time. Over defense counsel's objections, Judge Hackner deemed these identifications admissible at Waller's first degree rape trial, scheduled for April 15th.
While the article on the case does not explain why the judge found the prior identifications admissible, he could have done so on a few grounds. First, under Maryland Rule of Evidence 5-802.1(c), if a witness testifies at a trial or hearing and is subject to cross-examination, her "statement that is one of identification of a person made after perceiving the person" is not excluded by the hearsay rule. This provides the clearest rule under which both identifications were admissible.
Furthermore, under Maryland Rule of Evidence 5-803(b)(1), "[a] statement describing an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter" is admissible under the present sense impression exception to the rule against hearsay. Here, the victim identified her assailant "moments" after being raped, making it possible that she made first identification "immediately after" the event, allowing for the statement's admissibility.
Finally, under Maryland Rule of Evidence 5-803(b)(2), "[a] statement relating to a startling event or condition made while declarant was under the stress of excitement caused by the event or condition" is admissible under the excited utterance exception to the rule against hearsay. Here, rape would constitute a startling event, and the victim indicated that she was "upset" when she identified her assailant by screaming, making it likely that her first identification was an excited utterance.
Thursday, March 13, 2008
Article of Interest: Ralph Ruebner and Eugene Goryunov's "Loss of Sixth Amendment Confrontation Rights: Forfeiture By Voluntary Wrongful Conduct"
It's hard to imagine a more topical article than "Loss of Sixth Amendment Confrontation Rights: Forfeiture Triggered By Voluntary Wrongful Conduct," the new article by my colleague Ralph Ruebner and law student Eugene Goryunov. The Supreme Court has granted certiorari in Giles v. California, a case that addresses the following issue: Does a defendant forfeit his Confrontation Clause objection to the introduction of a prospective witness' hearsay statements when the defendant rendered the witness unavailable to testify at trial, but the prosecution cannot prove that the defendant specifically intended to render the witness unavailable? Ruebner and Goryunov's article addresses that same question and argues "that a showing of intent to prevent the testimony of an unavailable out-of-court declarant is not constitutionally required in determining whether the accused has forfeited his or her Sixth Amendment right to confrontation."
(For an illustration of how forfeiture by wrongdoing cases work with and without the intent requirement, you can see my posts onthe Willard McCarley murder trial in Ohio and the Mark D. Jensen murder trial in Wisconsin).
In Section II, the article notes that neither the English nor the American common law forfeiture by wrongdoing doctrine recognized an intent requirement. After reviewing a number of cases applying this doctrine, the authors conclude that "[t]hese common law cases clearly demonstrate that the standard for admissibility of evidence by application of the forfeiture rule focused exclusively on the voluntary wrongful conduct of the accused in causing the unavailability of the live in-court testimony of the out-of court declarant." They contend that these cases merely focused on the causal link between the accused's actions and the declarant's unavailability, not upon the intent of the accused.
In Section III, the authors start by arguing that while some have contended that when the Supreme Court first recognized the forfeiture by wrongdoing doctrine in Reynolds v. United States, 98 U.S. 145 (1878), it incorporated an intent requirement, the Court in fact incorporated no such requirement and instead adhered to common law precedent. They next point out that some have mistakenly included an intent requirement in the forfeiture by wrongdoing doctrine by conflating the concepts of "waiver" and "forfeiture," even though they are two distinct concepts. Finally, they assert that the Supreme Court has recently re-affirmed the common law conceptualization of the forfeiture by wrongdoing doctrine in its recent opinions in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006).
In Section IV, they note the split among courts which caused the Supreme Court to grant cert in Giles. While some courts, such as the Supreme Court of California in Giles, have found that no intent is required for application of the forfeiture by wrongdoing doctrine, other courts, such as the Supreme Court of Illinois, have made intent the sine qua non for its application. In Section V, they authors argue there are two distinct forfeiture by wrongdoing doctrines: (1) the more limited statutory doctrine contained in Federal Rule of Evidence 804(b)(6), which contains an intent requirement, and (2) the Sixth Amendment Forfiture doctrine developed from the common law, which does not contain an intent requirement. Ruebner and Goryunov conclude that courts requiring a showing of intent for application of the Sixth Amendment doctrine are improperly conflating the two doctrines and thus argue that the Supreme ourt should affirm the opinion on the Supreme Court of California in Giles.
I Said , "M-I-S-T-R-I-A-L," Mistrial: Pennsylvania Judge Declares Mistrial After "Hearsay" Testimony About Voice Mail
Here's a strange ruling from a Pennsylvania case. After Leslie Kerstetter's husband died of cancer, her alcohol and drug problems became severe enough to lead her to seek help through the Dauphin County Drug and Alcohol Services office. There, Kerstetter met Christopher W. Shenk, a recovering alcoholic who worked as a counselor for the county. The two started dating, and Leslie was subsequently found dead in the couple's home on March 28th after Shenk called for an ambulance. Shenk was subsequently charged with Leslie's murder.
This week, at Shenk's trial, the prosecution and defense counsel both agreed that on March 26th, the couple was arguing about Leslie's drinking, with Leslie repeatedly taking taxis to the liquor store after Shenk had dumped her bottles of liquor. Both sides also agreed that the argument got physical, but defense counsel claimed that while Shenk shoved Leslie during the argument, he did nothing to intentionally harm her. The prosecution countered that Shenk beat Leslie to death.
As part of its case, the prosecution called Leslie's adult daughter Ashley to testify concerning a voice mail message that her mother left on her phone on March 26th. Both the prosecution and defense counsel expected that Ashley was only going to testify that the voice mail made her believe that Shenk was beating her mother, not that she was going to relay her mother's statements on the voice mail. Instead, Ashley surprised both sides by testifying that on the voice mail, her mother said, "Chris is beating me. I'm scared, I'm scared. Get off me, get off me." The judge agreed with defense counsel's argument that this testimony was barred as hearsay and thus granted a mistrial. Deputy District Attorney Christopher Dreisbach said he plans to argue on appeal that the same testimony by Ashley should be allowed on re-trial because the mother's statements constituted a present sense impression.
It's unclear from the article on the case exactly what happened, but it seems clear that either the judge or the DA is deserving of a, "What was he thinking?" In other words, if the DA raised the present sense impression argument, why did the judge declare a mistrial? And if the DA did not raise the argument at trial, why did he not raise it?
Clearly Leslie's voice mail message was hearsay under Pennsylvania Rule of Evidence 801(c) in that it was 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 -- that Shenk was in fact beating Leslie. Thus, Ashley's testimony about the contents of the voice mail was inadmissible unless a hearsay exception applied. And I would say two clearly applied.
First, as the DA noted (but did he do so at trial?), Leslie's statement was a present sense impression under Pennsylvania Rule of Evidence 803(1) because it was "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Here, Leslie's statement that Shenk was beating her, and her statement, "Get off, get off" clearly indicate that Leslie was relaying an event that was presently occurring, making the exception applicable.
Second, Leslie's statement was an excited utterance under Pennsylvania Rule of Evidence 803(2) because it was "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Leslie's statement related to a startling event -- being beaten -- and her statement that she was "scared" indicated that she was under the stress of that event when she sent the voice mail. See, e.g., Commonwealth v. Watson, 627 A.2d 785, 788 (Pa. Super. 1993).
Thus, regardless of who committed the error in this first (mis) trial, I believe that Ashley's testimony will be allowed on re-trial.
Wednesday, March 12, 2008
Attorneys for Cesar Rodriguez abruptly rested their case after a jailhouse witness provided surprising testimony against their client and the judge hearing his case struck down their attempts to introduce testimony by a psychiatrist. Rodriguez is on trial in Brooklyn, facing charges of second degree murder for the alleged beating death of his 7 year-old stepdaughter, Nixzmary Brown. The defense theory of the case is that Nixzmary's mother, Nixzaliz Santiago, committed the murder, and defense counsel sought to prove this theory by calling a jailhouse acquaintance of Brown to testify that Santiago confessed to the murder (Santiago is currently incarcerated, with his own trial for the murder upcoming). However, this jailhouse witness surprised defense counsel by testifying that Santiago confessed to her that both Rodriguez and she murdered the girl and that Rodriguez had sexually abused Brown.
Defense counsel attempted to counter this allegation by calling a psychiatrist (some sources refer to the proposed witness as a psychologist) who examined Santiago. The judge, however, ruled that this psychiatrist could only offer hearsay evidence and thus could not testify, leading to Rodriguez's attorneys resting their case.
Depending on the facts of the case, this could have been a proper or an improper decision. Undoubtedly, if Santiago made statements to the psychiatrist, and defense counsel wanted the psychiatrist to testify about those statements, the testimony would have been hearsay because defense counsel would have been seeking to prove the truth of the matter asserted in Santiago's statements. Under Federal Rule of Evidence 803(4), however, there is an exception to the rule against hearsay for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." And while New York doesn't have a statutory counterpart to this federal rule, it has adopted a similar exception in its case law. See, e.g., People v. Denne, 291 A.D.2d 888, 889 (N.Y.A.D. 4 Dept. 2002).
Furthermore, while I was not able to find any New York cases on point, most courts have recognized that statements to psychiatrists and psychologists can qualify under this hearsay exception. See, e.g., Morgan v. Foretich, 846 F.2d 941, 949 n.17 ("Statements to psychiatrists or psychologists are admissible under 803(4) the same extent as statements to physicians."). Of course, the question which I can't answer from the articles is whether Santiago's statements which defense counsel sought to admit through the psychiatrist's testimony were made for the purposes of medical treatment or diagnosis, which is why I can't say whether the judge acted correctly or incorrectly.
Of course, it should be noted that even if Santiago's statements were admissible under this exception, they still could have been deemed inadmissible under other laws/rules, such as through Santiago's assertion of the psychotherapist/patient privilege. See Velez v. Daar, 41 A.D.3d 164, 165 (N.Y.A.D. 1 Dept. 2007).
Tuesday, March 11, 2008
No Sex In The Interrogation Room: Prosecution Seeks To Introduce Oral Sex Evidence In Trial Of Man Who Microwaved His Infant Daughter
The sad and bizarre case of Joshua Mauldin has taken another strange turn. Last year, after allegedly being called by the lord to be a preacher, Mauldin came to Galveston, Arkansas with his mother, wife, and infant daughter. Upon being left alone with his daughter in a hotel room, however, Mauldin became "agitated," punched her in the groin and threw her from one bed onto another. He then placed her in the hotel room safe, before taking her out and placing the child in the room’s refrigerator, according to police reports. He then took the child out of the refrigerator, placed her in the microwave oven and turned on the oven, according to police. A police report indicates that Mauldin told detectives he took the child out after 10 to 20 seconds. Mauldin's daughter was left with third degree burns and lost her left ear. Mauldin has been charged with injury to a child causing serious bodily injury, which carries a possible prison term of 5 to 99 years and a fine of up to $10,000.
Mauldin has pleaded not guilty by reason of insanity. He will try to convince the jury that his acts were the result of hallucinations, which he has suffered from since he was 10 years old. The prosecution seeks to rebut that claim with evidence concerning the interrogation of Mauldin and its aftermath. You see, days after the alleged criminal act, police questioned Mauldin in an interrogation room, and his wife thereafter asked for a few minutes alone with her husband. The police officers granted the request but continued to watch and listen to the pair. And, according to the officers, the Mauldins did not discuss the incident or their child's condition; instead, Mauldin's wife gave him oral sex. Mauldin has denied that this act occurred, but the prosecution wants to introduce this evidence and claims that it is relevant. According to the prosecution, "In a way it supports our case"...because the video shows a moment of lucidity that can be compared with the period of insanity at the time of the alleged incident. Defense counsel has countered that this evidence is irrelevant and that the prosecution is merely trying to demonize Mauldin.
If the oral sex occurred and a discussion of the child's condition did not, I would call it strange and callous, but I don't really see how it would be relevant to Mauldin's case. Under Arkansas Rule of Evidence 401, "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Under Arkansas Rule of Evidence 402, irrelevant evidence is generally inadmissible. Now, if defense counsel's argument was that the defendant was catatonic and never lucid, this evidence could potentially be relevant. But defense counsel's claim seems to be that the defendant was usually lucid but that he suffered from occasional hallucinations, one of which allegedly occurred when he injured his daughter. I don't see how proving that the defendant was lucid days later when he allegedly had oral sex with his wife, however, is relevant to whether he was hallucinating when he injured his daughter.
Similarly, if defense counsel's argument were somehow that Mauldin was negligent and did not intend to injure his daughter, the oral sex and non-discussion might be relevant to prove intent. But again, this is not an intent-negligence dispute, but an intent-insanity dispute. I thus don't see how the evidence could be seen as relevant. Furthermore, even if the judge found the evidence relevant, he could still exclude it under Arkansas Rule of Evidence 403 if he found that its probative value was substantially outweighed by, inter alia, the danger of unfair prejudice.
Disturbing Behavior: Court of Appeals of Kansas Finds Trial Court Failed To Apply Constitutional Exception To Rape Shield Rule
The Court of Appeals of Kansas' recent opinion in State v. Jackson, 2008 WL 538948 (Kan.App. 2008), contains an interesting application of the rape shield rule. In Jackson, Darrell Jackson was a family friend who babysat for A.C., a girl who was between ten and twelve years old between 1999 and 2002. According to A.C., during this time period, Jackson sexually assaulted her more than 50 times. During this period of time, A.C. was twice placed into the custody of the Kansas Department of Social and Rehabilitation Services (SRS). At trial, the prosecution:
"emphasized-from opening statement to closing argument-that A.C.'s behavior had deteriorated in significant ways starting about the time of the alleged offenses by Jackson and continuing up until the time of trial. In opening statements, the prosecutor said that A.C.'s mother had noticed changes beginning in summer 1999; A.C. was 'acting out, a lot more argumentative, a lot more disagreeable, ... and really behaving badly.' Later in opening, the prosecutor said that after A.C. went into foster placement in 2002, her mother found out 'why [A.C.] has been acting up and behaving so badly between 1999 and her final entry into SRS custody, 2002'-that she had been abused by Jackson. A.C.'s mother testified as forecast in the opening statement, saying that A.C.'s behavior had changed from 1999 until early 2002, during which time she had been 'real hateful to people.'"
The prosecution also argued that A.C. was fearful of returning home from SRS custody because she feared being placed in close proximity to Jackson.
Meanwhile, Jackson attempted to introduce evidence of other sexual assaults reported by A.C. between 1999 and 2002. These consisted of:
-claims that two other juveniles, Joseph H. and Travis S., sexually assaulted her in 2000 and 2001; both admitted to these acts and were adjudicated as juvenile offenders;
-the claim that her stepbrother attempted to have sex with her and engaged in oral sex with her in 2001; SRS substantiated these allegation, but no charges were brought against the stepbrother; and
-the claim that an employee at a facility in which SRS placed her sexually assaulted her; A.C. later recanted this claim.
So, how did the trial court rule on this evidence? Well, Kansas has a rape shield law, KSA 21-3525, which is functionally the same as the rape shield rule contained in Federal Rule of Evidence 412. Under the rape shield law, in a case involving alleged sexual misconduct inter alia, evidence of past sexual acts by the victim is inadmissible to "prove" that the victim consented to the sexual act at issue. In a criminal case, however, there is an exception for "evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence" and an exception when exclusion of evidence of other sexual behavior by the victim would violate the defendant's Constitutional rights.
So, looking at the recanted allegation of sexual abuse, the trial court found that this evidence was admissible because it did not actually involve a sexual act, making the rape shield law inapplicable. The trial court, however, found that the evidence of sexual abuse by the stepbrother was admissible as its exclusion would have violated the defendant's Constitutional rights because it was necessary to rebut the prosecution's claim that A.C. was fearful of returning home from SRS custody because she feared being placed in close proximity to Jackson, making it likely that Jackson indeed sexually abused her. On the other hand, the trial court found that the evidence of sexual abuse by two other juveniles was inadmissible.
On appeal, the Court of Appeals of Kansas reversed based upon this last evidentiary ruling. As noted, the prosecution argued that A.C.'s behavior deteriorated based upon the alleged sexual assaults by Jackson, and the court thus found that the evidence of the sexual assaults by the juveniles was necessary to rebut the claim that the deterioration in A.C.'s behavior was (solely) attributable to Jackson, making it likely that Jackson indeed sexually abused her.
The Jackson case, then, besides being very depressing, seems to create a clear category of sexual behavior evidence that falls under the Constitutional exception: evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of behavior deterioration. This makes sense to me because, as noted, when an alleged sexual assault victim claims that her pregnancy, bruises, etc. were caused by a sexual assault by the defendant, the defendant is entitled to prove that the pregnancy, bruises, etc. were caused by another sexual act close in time to the alleged sexual assault.
Monday, March 10, 2008
Night At The Museum, Take 2: Tenth Circuit Finds Appellate Courts Should Be Especially Deferential To Hearsay Rulings
Yesterday, I wrote about the Tenth Circuit's recent opinion in United States v. Ary, 2008 WL 565437 (10th Cir. 2008). Today, I want to address another aspect of that case. In upholding the district court's admission of hearsay under the business records exception to the rule against hearsay, the court noted that it "reviews the district court's receipt of evidence for an abuse of discretion." The Tenth Circuit then indicated that "'[w]e are 'especially deferential with respect to rulings on the admission of hearsay evidence.'" (quoting Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1017 (10th Cir. 2004)). I had never previously seen an appellate court taking an especially deferential posture toward hearsay evidence admitted by the trial court, which led me to do some research.
While my research may be incomplete, I found several Tenth Circuit opinions with similar language but no opinions from other circuits treating admitted hearsay evidence differently from any other category of admitted evidence. So, what is the basis of the Tenth Circuit's reasoning? Well, I traced it back to United States v. Rodriguez-Pando, 841 F.2d 1014, 1018 (10th Cir. 1988), where the Tenth Circuit indicated, "[i]n a review of the evidentiary rulings of a trial court, this court may not reverse in the absence of an abuse of discretion....The need for deference to a trial court ruling on a hearsay objection is particularly great because the determination of whether certain evidence is hearsay rests heavily upon the facts of a particular case."
Simply put, I don't understand the Tenth Circuit's point. Almost every evidentiary ruling depends on the facts of a particular case, and I don't see how hearsay evidence is unique. For instance, courts have found that (1) determining whether the proponent of secondary evidence has established that he made a reasonable and diligent for the original under Federal Rule of Evidence 1004 "depends on the particular facts and circumstances of each case" Rosenberg v. Neubeck, 1997 WL 33014 at *2 (N.D. Cal. 1997); (2) determining whether facts are subject to judicial notice under Federal Rule of Evidence 201(a) depends on the facts that the proponent seeks to establish" Janoe v. Garcia, 2007 WL 110914 at *5 (S.D. Cal. 2007); (3) determining the reasonableness of the timing of a request or disclosure under Federal Rule of Evidence 404(b) "depends on the facts of each case" United States v. Plaskett, 2008 WL 441930 at *2 (D. Virgin Islands 2008); (4) determining whether evidence passes the balancing test laid out in Federal Rule of Evidence 403 "depends on the specific facts adduced at trial and upon the context of those facts at trial" Gardetto v. Mason, 201 F.3d 447 (10th Cir. 1999); and (5) determining whether expert evidence is admissible under Federal Rule of Evidence 702 depends on whether the expert's reasoning or methodology properly can be applied to the facts in issue" United States v. White Horse, 316 F.3d 769, 775 (8th Cir. 2003).
In fact, I would be hard pressed to think of a situation where the admissibility of a piece of evidence did not depend on the facts of the particular case. The Tenth Circuit's hearsay theory thus does not seem reasonable.
I thought yesterday's 60 Minutes piece about the Alton Logan case was pretty interesting although the story left out significant pieces of the narrative, such as the government's failure to act upon evidence linking Andrew Wilson to the McDonald's robbery/shooting back in the 1980s. The most fascinating/upsetting/ironic part of the story to me was that after Logabn was convicted, 10 jurors were in favor of imposing the death penalty, but Logan was given "merely" life imprisonment based upon two holdouts. In one sense, these holdouts saved Logan's life, but in another, they surprusingly led to his continued confinement because Wilson's public defenders said that they would have come forward with his confession if Logan were given the death penalty.
According to the 60 Minutes piece, Logan will be in a courtroon here in Chicago today to argue that he deserves a new trial, and I have already written about why he should at the least be given a new trial if not exonerated entirely.
Sunday, March 9, 2008
The Tenth Circuit's recent opinion in United States v. Ary, 2008 WL 565437 (10th Cir. 2008), contains a combined application of the business records exception to the rule against hearsay and the rule regarding hearsay within hearsay. In Ary, Max L. Ary was the President and Chief Executive Officer of the Kansas Cosmosphere and Space Center, a space museum in Kansas, from 1976 until his resignation in 2002. After Ary's departure, it was discovered that several artifacts from the museum were missing and that they were sold at an auction. Prosecutors believed that they could trace those sales back to Ary, which led to him being charged with wire fraud, theft of government property, transportation of stolen property, and money laundering.
After trial, Ary was convicted, based in part upon Cosmosphere's computer and paper inventory records. Ary subsequently appealed, claiming, inter alia, that these records constituted inadmissible hearsay. The prosecution countered that these records were admissible under Federal Rule of Evidence 803(6), which states, inter alia, that records kept in the course of regularly conducted business activity are admissible if certain conditions are "shown by the testimony of the custodian or other qualified witness...unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."
The Tenth Circuit agreed with the prosecution. It noted that "[t]he government presented the testimony of Stephen Garner, Sharon Olson-Womack, and James Remar who all served as curators at the Cosmosphere....These witnesses established that the inventory records were prepared in the normal course of business." The problem, however, was that these curators did not create these records solely from information at the musem; instead, they sometimes had to track down invoices and documentation that came with artifacts when they were purchased.
The Tenth Circuit was thus presented with "hearsay within hearsay" under Federal Rule of Evidence 805 because the museum records and the invoices each constituted a layer of hearsay. The court, however, found that the invoices also constituted business records under Federal Rule of Evidence 803(6) because "[o]ne who provides a sales invoice is under a business duty to provide accurate information....Therefore no link in the trustworthiness chain was broken. Both the records created by the curators, and the documents upon which they relied, f[e]ll into the business records exception to the hearsay rule."
I think that the court's decision was correct as it was presented with the rare scenario where hearsay within hearsay was admissible because both layers met applicable exceptions.