March 29, 2008
One Man In A Duffel Bag?: Illinois Court Throws Out Explosives Evidence Found In Duffel Bag Search
A man in Schaumburg, Illinois won a key legal victory after a Cook County judge found that the prosecution cannot use small explosive devices found at a Schaumburg home in which he rented a room in his trial for unlawful possession of explosives and unlawful use of a weapon. Back in 2006, Dominic Bender was arrested after authorities found explosives at, inter alia, the Schaumburg home. The problem was that those authorities went to the home not based upon any suspicion that Bender had explosive devices, but because he allegedly made harassing calls to his estranged wife. They thus weren't equipped with a search warrant for explosive devices; instead, they were seeking to serve an order of protection and an arrest warrant charging him with making harassing calls to his wife.
Upon arrival, the authorities looked for Bender throughout the house, including in a bedroom closet. Eventually, however, they looked through a duffel bag in which they discovered about 200 M-80 type fireworks devices. Circuit Judge John Scotillo found that this search of the duffel bag violated Bender's Constitutional rights and that the explosive devices were inadmissible. Judge Scotillo found that while it was reasonable for the authorities to seek to enforce the arrest warrant by looking in the closet because a person could hide there, the authorities exceeded their authority by ostensibly looking for Bender in the duffel bag.
This ruling makes sense based upon well established Supreme Court precedent. As the Supreme Court found in Steagald v. United States, 451 U.S. 204, 226 (1981), an "arrest warrant also limits the scope of the search, specifying what the police may search for- i. e., the subject of the arrest warrant. No general search is permitted, but only a search of those areas in which the object of the search might hide." Obviously, it would be physically impossible for most men to fit in most duffel bags, so there was no justification for the authroities to search inside the bag for Bender.
March 28, 2008
The Accidental Expert: Missouri Court Finds Accident Reconstruction Report Partially Based Upon Hearsay To Be Inadmissible
According to the Court of Appeals of Missouri's recent opinion in State v. Bybee, 2008 WL 762224 (Mo.App. W.D. 2008), an accident reconstructionist cannot base a report or testimony upon the statements of eyewitnesses. In Bybee, Steven Bybee was convicted of involuntary manslaughter and two counts of assault in the second degree. These convictions were based upon a 2004 single car crash in which the then 16 year-old Bybee was allegedly the driver and one passenger was killed while Bybee and two other passengers were seriously injured. After the accident, Bybee denied being the driver of the car, but Bybee was given a blood sample, and testing indicated that he had a blood alcohol level of .079%.
Sergeant Brown of the Missouri Highway Patrol later conducted an accident reconstruction analysis of the crash. He determined that the car had been traveling at a minimum of 100 miles per hour when the right tires briefly went off the side of the road, the driver steered abruptly left and then overcorrected to the right, the car began to spin off the right side of the road until it hit a driveway embankment, the car went airborne at 91 miles per hour, and the car then rolled over 300 feet. In his report, Brown repeatedly referred to Bybee as the driver of the car.
On appeal, Bybee claimed that the trial court erred in admitting this reconstruction analysis into evidence because Brown's conclusion that Bybee was the driver of the car was based solely upon the hearsay statements of the other passengers. The Court of Appeals of Missouri agreed, finding that, with rare exception, an expert may not give an opinion based on hearsay. The court did note that Missouri law allows for experts to testify based upon inadmissible evidence such as hearsay if it is of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and otherwise reasonably reliable. The court, however, cited to previous cases such as Edgell v. Leighty, 825 S.W.2d 325, 328-29 (Mo. App. S.D. 2004), where Missouri courts had found that eyewitness hearsay testimony did not provide a foundation sufficiently reliable to support the admissibility of accident reconstruction reports.
The court found further support in the Advisory Committee Note to Federal Rule of Evidence 703, which, like Missouri law, allows expert opinions and reports to be admissible if they are based upon inadmissible evidence if that evidence is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." The Advisory Committee Note to Rule 703, however, indicates that this "language would not warrant admitting in evidence the opinion of an 'accidentologist' as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied." Based upon this Note and previous Missouri case law, it seems to me that the Court of Appeals of Missouri reached the correct decision.
March 27, 2008
Albany River Rat?: Kay Song Trial Raises Best Evidence Issue
Kay Song, a science teacher at Albany Middle School in upstate New York, stands charged of two felony counts of oral copulation of a person younger than 16 and two counts of sexual penetration with a foreign object in connection with alleged sexual acts with one of her former female students in 1990. If Song has her way, however, testimony about the contents of letters that Song may have written to the alleged victim will be deemed inadmissible, striking a potentially fatal blow to the prosecution's case. You see, the alleged victim did not contact authorities concerning the Song's alleged acts until last year, by which point the statute of limitations had run out, which means that there must be corroborating evidence about Song's alleged crimes beyond the victim's testimony.
The prosecution seeks to provide that evidence through testimony about the contents of letters that Song allegedly wrote to the victim around the time of the alleged sexual abuse. The prosecution seeks to prove their contents through testimony because the letters have since been destroyed. Defense counsel has argued that oral testimony about the contents of these letters would be "absolutely, not remotely admissible as evidence." There's a good chance, however, that this argument is without merit.
Pursuant to the Best Evidence Rule, "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress." At the same time, pursuant to Federal Rule of Evidence 1004, which New York has applied in its case law, see Schozer v. William Penn Life Ins. Co. of New York, 644 N.E.2d 1353, 1355 (N.Y. 1994), "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if [inter alia]
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith."
Furthermore, as I note in my new article, Even Better than the Real Thing, (look at pages 21-22) courts rarely find that originals have been lost in bad faith and have found that even negligently destroyed documents were not destroyed in bad faith. Thus, it is unlikely that the New York court will find that the letters were destroyed in bad faith, which means that it will allow testimony about their contents. If, however, the court makes such a finding, any testimony about the contents of the letters will be inadmissible under the Best Evidence Rule, and charges against Song will likely be dropped.
March 26, 2008
Contempt, Take 2: California Senate Subcomittee Forwards Domestic Violence Contempt Bill
Earlier, I wrote about a proposed California state shield law, under which judges would not be able to hold domsetic violence victims in contempt for refusal to testify against their alleged attackers. Well, after a 3-2 partisan vote by the Senate Public Safety Committee, the bill is being forwarded and must pass the full Senate and Assembly. The vote is considered a major step toward the passage of the bill, and was reportedly based in large part on the testimony of Katina Britt, the woman was threatened with jail for not cooperating with the prosecution of her ex-boyfriend and whose case provoked the bill.
They Call Me Bruce?: Man Mistakenly Presents Res Ipsa Loquitur Argument In Case Based Upon Grocery Store Assault
If an article on a man's lawsuit against a grocery store is accurate, the man's attorney was inaccurate in seeking to recover against the store under the doctrine of res ipsa loquitur. Carlton J. Ford has claimed that while he was leaving a Bruce's Market Basket in Texas, he was thrown to the ground by an employee and falsely imprisoned. His attorney has claimed that, "Defendant's assault...was negligent...and was a proximate...cause of his injuries." The article also indicates that Ford is claiming that Bruce's Market Basket is liable to him under the doctrine of res ipsa loquitur.
The essential elements of false imprisonment are "(1) willful detention; (2) without consent; and (3) without authority of law." Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Obviously, a detention cannot be both negligent and willful, so Johnson's claims of negligence and res ipsa loquitur, which is a way of proving negligence, cannot support his claim for false imprisonment. Maybe, however, Ford is pleading in the alternative and claiming that the grocery store employee either intentionally falsely imprisoned him or that the employee and the store negligently restricted his movement.
Even in this latter case, however, the doctrine of res ipsa loquitur would be inapplicable. Res ipsa loquitur (Latin for "the thing speaks for itself") is an evidentiary rule that a plaintiff can use when he has evidence that the defendant very likely injured him but cannot prove the particular manner in which the accident was caused. See Hector v. Christus Health Gulf Coast, 175 S.W.3d 832, 837 (Tex.App.-Houston 2005). Res ipsa loquitur is applicable only when: "(1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant." Id. Thus, for instance, a shopper at a grocery store who is injured when boxes stocked on the top of a 9 foot shelf fall on his head could use res ipsa loquitur to get the question of negligence to the jury even if he couldn't sepcifically prove that the boxes fell because they were stocked improperly, the shelving was improperly installed, etc. This would be the case because he could likely prove that boxes don't fall from grocery store shelves in the absence of negligence and that based upon the placement of the boxes only grocery store employees were the only people with acces to the boxes. Res ipsa loquitur, however, would seemingly have no application to a case where the plaintiff is claiming that a grocery store employee restrained him, either intentionally or negligently.
March 25, 2008
Sex, Lies, And Texting, Take 2: Kwame Kilpatrick's Attorney Might Raise Authentication Challenge To Text Messages
Earlier, I posted about the Kwame Kilpatrick sex/perjury scandal. As I noted, Kilpatrick, the married mayor of Detroit, and Christine Beatty, his then married chief of staff, testified last summer in a police whistleblower lawsuit that they had no sexual or romantic ties in 2002 and 2003. The Detroit Free Press, however, got its hands on approximately 14,000 text messages on Beatty's city-issued pager for those years and found many examples of such ties.
Well, Kilpatrick has now been charged with perjury and obstruction of justice, but if his attorney has his way, the text messages will be ruled inadmissible. As I noted in my earlier post, there are privacy and statutory issues at play with the text messages, which Kilpatrick's attorney, Dan K. Webb, plans to include in a motion to suppress the text messages. If this motion is unsuccessful, however, Webb had intimated that he may challenge their authenticity. According to Webb, "Technically, they are hearsay -- out of court statements." "You have to prove they were sent by the mayor and sent by his chief of staff."
Based upon the liberal standard for authentication, such an argument would almost certainly fail. Pursuant to Federal Rule of Evidence 901(a) and state counterparts such as Michigan Rule of Evidence 901(a), "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." As I noted in a previous post, courts have been very liberal in finding that proponents have authenticated communications sent through modern technologies.
For instance, "[e]-mail communications may be authenticated as being from the purported author based on an affidavit of the recipient; the e-mail address from which it originated; comparison of the content to other evidence; and/or statements or other communications from the purported author acknowledging the e-mail communication that is being authenticated." The same rules apply for text messages: As long as the proponent can prove that a text message was sent by a device owned/used by the alleged sender of the message, the authentication requirement is satisfied. See, e.g., Dickens v. State, 927 A.2d 32, 37 (Md.App. 2007). So, assuming that the prosecution can prove that the text messages at issue came from devices owned/used by Kilpatrick and Beatty, the messages can be authenticated, and any arguments that Kilpatrick might have about somebody else sending the messages would go to the weight of the evidence, not its admissibility.
Miami State of Mind: Eleventh Circuit Finds Doctor's Statements About Past Fraud Inadmissible Under Rule 803(3)
The Eleventh Circuit's recent opinion in United States v. Nosovsky, 2008 WL 696595 (11th Cir. 2008), provides a nice clarification of the dichotomy created by Federal Rule of Evidence 803(3). In Nosovsky, from November 2004 until mid-April 2005, Rosa Walled, her brother Rafael Walled, and Gregory Delatour owned an HIV AIDS clinic in Miami, Florida. The plan of the clinic, according to Walled, "was trying to get patients and bill Medicare and make some money." The Walleds and Delatour planned to “recruit” patients, pay the patients from $100 to $200 per visit to their clinic, “alter” their blood work to make the patients eligible for “expensive [HIV/AIDS] medications,” and bill Medicare even though the patients, in fact, would neither receive the medications nor be treated by a physician. The Walleds and Delatour needed a physician to be associated with their clinic, as a medical director, so that they could utilize his “provider number” to bill Medicare for reimbursement. The physician they contacted was the defendant, Dr. Isaac Nosovsky, with the question being whether they informed him of this scheme.
After being approached by the government, Rosa agreed to wear a wire and record a conversation with Nosovsky. The government anticipated that Nosovsky would make admissions or statements in furtherance of conspiracy, but when Rosa broached the subject of the fraud, Nosovsky responded with surprise and shock at Rosa's declaration that there had been fraud at the clinic and that documents he had signed had been used to further that fraud. Nosovsky repeatedly denied having known about the fraud. Of course, the government did not want to introduce the recording of Nosovsky's statements at trial, but defense counsel sought to introduce them pursuant to Federal Rule of Evidence 803(3), the state of mind exception to the rule against hearsay. The trial judge, however, ruled the recording inadmissible, and Nosovsky was subsequently convicted of one count of conspiracy to defraud the United States and to commit health care fraud and six counts of health care fraud.
On appeal to the Eleventh CIrcuit, Nosovsky claimed that the trial judge's evidetiary ruling was erroneous because Federal Rule of Evidence 803(3) allows for the admission of statements of the declarant's then existing state of mind and his statements to Rosa evinced an innocent state of mind. The problem with this argument, however, is that while Federal Rule of Evidence 803(3) allows for the admission of statements of the declarant's then existing state of mind, its specifically excludes statements of memory or belief to prove the fact remembered or believed. Thus, the Eleventh Circuit found that Nosovsky's statements to Rosa were inadmissible because they were statements of memory to prove facts remembered. Now, if Rosa instead proposed that a fraud be committed in the future and Nosvsky balked at the idea, his statements would have been admissible because they would have referred to proposed future actions, not alleged past actions.
March 24, 2008
Minnesota Girl, Take 2: Former Minnesota Football Player Tries To Present Sexologist's Testimony In Sexual Assault Trial
Earlier I wrote about the sexual assault trial of former University of Minnesota football player Dominic Jones. As I noted, Jones is accused of engaging in sexual acts with a woman when she was too inebriated to consent, and the prosecution sought to prove these acts in part through a cell phone recording taken by another player. I further noted that the defense sought to have the recording excluded but that the judge overruled that objection and allowed the recording to be entered into evidence.
Well, according to an article on the case, the recording purportedly showed Jones ejaculating on the woman. Now, the defense wants to present the expert testimony of a "sexologist," who would testify that some people view ejaculating on another person as playful sex. According to court papers, the sexologist would testify that while some people view ejaculation as an act of hostility or aggression, others see it as "a symbol of closeness, sexual bonding or sexual competence." The court papers indicate that this sexologist is Marty Klein, who says he has a doctorate from the Institute for Advanced Study of Human Sexuality in San Francisco. The institute's Web site says it is "the only graduate school in the United States, and one of the few in the world, approved to train sexologists." It is not, however, an accredited educational institution. The prosecution has countered that this evidence is inadmissible and irrelevant because Jones sexually assaulted the woman knowing that she was physically helpless.
Now, without knowing the full factual context of the case, I can't say whether this sexologist's testimony is relevant, but the test for whether this sexologist can be qualified as an expert witness is the Frye test, which looks at whether the technique or theory upon which the witness' testimony is based is generally accepted in the relevant scientific community. This means that the judge would need to see whether Klein's ejaculation theory is generally accepted in the sexologist. So, who could be called to provide such testimony? Dr. Ruth? Dr. Drew?
It's tough to say how the court will rule because a Westlaw search reveals only a handful of cases where sexologists testified, and only one case, Artrip v. State, 2002 WL 242532 (Tex.App.-Amarillo 2002), has dealt with whether a sexologist can provide expert testimony. In Artrip, a fellow of the American Academy of Criminal Sexologists testified concerning the controversial STATIC-99 actuarial risk prediction instrument, and an appellate court found that the defendant's counsel did not provide the ineffective assistance of counsel by failing to object to his testimony because it was properly rendered expert testimony.
March 23, 2008
Go %$#! Yourself, San Diego: Court Finds "Relevant" Means Different Things Under FRCP, FRE in Mt. Soledad (Easter) Cross Case
The current Mt. Soledad cross in San Diego was constructed by the Mt. Soledad Memorial Association and was dedicated to the veterans of World Wars I and II and the Korean War on Easter Sunday in 1954. Since that time, the cross has been the setting for annual Easter Sunday services, as well as weddings and baptisms. At least one local map formerly referred to the location as the Mt. Soledad Easter Cross.
The cross has led to a myriad of legal challenges under the First Amendment Establishment Clause and the California Constitution "No Preference" Clause. Eventually, the California district judge who had overseen seventeen years of federal litigation on the cross entered an order in May of 2006 enforcing a permanent injunction, such that the City of San Diego had to remove the cross from public land within ninety days or face fines of $5,000 per day. After the Ninth Circuit denied a request for a stay, the City sought relief in the U.S. Supreme Court, which, granted the stay.
Rather than allowing the courts to decide the issue, within a week of the district court's order, Congressman Duncan Hunter (yes, the guy you kept seeing at the bottom of the Republican primary result tallies) asked President Bush to invoke the authority conferred by a federal statute, 40 U.S.C. Section 3113, to take immediate possession of the Mt. Soleded Cross. Subsequently, in late June of 2006, Hunter introduced a bill designed to transfer the Mt. Soledad Veterans Memorial to federal control effective immediately. The bill passed both houses of Congress by early August of 2006, and the President signed it into law on August 14, 2006.
The Jewish War Veterans of the United States of America (JWV) thereafter filed a complaint challenging the Act and the presence of the cross on public land. During discovery, JWV served subpoenas on several individuals including Hunter, seeking nine categories of data, and the parties quibbled about whether all of the categories of data were relevant and/or protected by the Speech and Debate Clause. In considering this dispute in Jewish War Veterans of the United States of America v. Gates, 506 F.Supp.2d 30 (D.D.C. 2007), the District Court for the District of Columbia noted that under Federal Rule of Civil Procedure 26(b)(1), litigants "may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party...." (emphasis added).
The court then noted that under the Rule, "[i]nformation sought may be 'relevant' even if it is not admissible at the merits stage, so long as 'the discovery appears reasonably calculated to lead to the discovery of admissible evidence.'" According to the court, put differently, "a party may discover information which is not admissible at trial if such information will have some probable effect on the organization and presentation of the moving party's case." The court then cited to several cases for the proposition that "[t]he term 'relevant' thus has a different meaning-and a broader scope-under Federal Rule of Civil Procedure 26(b)(1) than it does under Rule 401 of the Federal Rules of Evidence.
In my mind, this holding makes no sense, and in looking at the cases cited by the court, I think I can see where courts went wrong. In looking at these cases, the first case I found using similar language was Hofer v. Mack Trucks, Inc., 981 F.2d 377 (8th Cir. 1992). In that case, the Eighth Circuit opined that "the standard of relevance in the context of discovery is broader than in the context of admissibility." The problem with the D.C. Court's opinion, however, is that Federal Rule of Evidence 401 is not a rule of admissibility. Instead, Rule 401 is merely definitional: It defines "relevant evidence" as "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."
Federal Rule of Evidence 402 indicates, inter alia, that "relevant" evidence can still be inadmissible as "provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority." Thus, even "relevant" evidence must typically pass the balancing test imposed by Federal Rule of Evidence 403, which indicates that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." And while, inter alia, character evidence, hearsay testimony, and conviction evidence are usually "relevant" under Rule 401, they are frequently deemed inadmissible under Rules such as Rule 404, Rule 802, and Rule 609, respectively. Thus, courts such as the D.C. court in JWV have failed to provide a satisfactory reason for treating the term "relevant" disparately in these two contexts, and they should either eliminate the dichotomy or provide sensical reasons for their distinctions.
Finally, while I am not a Constitutional law scholar, in looking through the facts of the JWV case, it seems clear to me that the placement of the cross is unconstitutional, and it seems reprehensible to me that the City of San Diego, Hunter, and others transferred possession of the cross to the federal government after the district court had ruled against them. It will certainly be interesting to see how how things shake out when the dispute is finally resolved.
Sympathy For The Devil: Fifth Circuit Upholds Defendant's Drug Convictions In Easter Case
The Fifth Circuit's recent opinion in United States v. Whittington, 2008 WL 659150 (5th Cir. 2008), seems to me to underplay the prejudicial effect of comments made by a prosecutor during opening and closing statements. In Whittington, Jasinda Whittington, Jose Cardona, and others were convicted of various drug related crimes. At trial, three witnesses, Fuentes, Benevides, and Guerra, who had been incarcerated with Cardona, testified pursuant to plea agreements. All three testified that Cardona was a member of the Mexican Mafia. They also testified that Cardona had told them details of his drug-trafficking and that Cardona also gave them names of other individuals involved in his trafficking. One testified that Cardona used the term “chickens” as code for drugs. Conversations between Cardona and his wife that were recorded while Cardona was incarcerated indicated that they used the term “chickens” regularly in discussing various transactions.
On appeal, Cardona argued, inter alia, that he deserved a new trial based upon improper comments made by the prosecutor during opening and closing statements. During opening statements, the prosecutor told the jury that it would hear what some witnesses would expect the government to do in return for their truthful testimony. The prosecutor concluded: "Throughout the trial you won't hear the United States apologizing for having to make those deals with the sinners who are paying their penance so that we can convict the person that we believe to be the devil here today." (emphasis added). During its rebuttal at closing arguments, the prosecutor stated, "When I began this trial, I told you I wouldn't make any apologies for making the deals with sinners that i made on behalf of the United States to convict that man, the devil." (emphasis added). Cardona did not object to these statements at trial, but he argued that they were unfairly prejudicial on appeal, and the Fifth Circuit correctly noted that in deciding whether Cardona was entitled to a new trial, it had to consider "(1) the magnitude of the statement's prejudice, (2) the effect of any cautionary instructions given, and (3) the strength of the evidence of the defendant's guilt."
The court then found that the prosecutor's remarks could be characterized as simply a colloquialism because he appeared to be referring to Cardona in each statement. The Fifth Circuit then "assume[d] without deciding that referring to a defendant as 'the devil' [wa]s improper." It found, however, that such references did not affect Cardona's substantial rights because "[a]lthough such a statement, made during Easter week...would negatively impact the jury, the specific wording of the statement was designed to explain the plea agreements that the government made with unsavory characters that testified against Cardona." The court found that the "statements were minimized by the context in which they were made and would be of little prejudice." Finally, the court noted that while no cautionary instruction was given, Cardona did not object to the statements, and there was significant other evidence of his guilt.
Leaving aside the issue of the oddness of the court apparently finding that referring to the defendant as "the devil" would be more prejudicial during Easter week than at other times during the year, and leaving aside factors (2) and (3), I don't see how the court's consideration of the magnitude of the statements' prejudice makes any sense. In effect, the court is saying that if the prosecutor merely said that the jurors should consider the evidence closely because the defendant was the devil, his statement would have been unequivocally prejudicial. According to the court, however, because the prosecutor said that he wasn't going to apologize for making deals with sinners because he was doing so to prosecute "the devil" was less prejudicial based upon its context.
This makes no sense. In the first case, it seems to me that jurors could just think that the prosecutor was using hyperbole and telling them to look closely at the evidence because the defendant was guilty. In the second case, however, it seems to me that the jurors were unequivocally told one thing: sure, these state's witnesses are somewhat bad guys, but they're merely going to one of the upper circles of hell, but the defendant is so evil that he's actually the guy running the place. You must concvict him.