April 12, 2008
The Happiest Place On Earth?: Grandmother Convicted Of Battery In Mad Party Tea Ride Line At Disneyworld
Alabama grandmother Victoria Walker has been convicted of misdemeanor battery in connection with an attack on another woman, Aimee Krause, at Disney World. Prosecutors alleged that Walker got angry when Krause's kids cut in front of her at the Mad Party Tea Ride and thus elbowed Krause and jerked her head backward by the hair. Expert witnesses testified that Krause suffered permanent brain damage from a concussion she suffered from the attack and also injured both of her knees. Walker could have been convicted of aggravated battery and sentenced to up to 15 years imprisonment for the beating, but the jury instead found her guilty of misdemeanor battery, which is punishable by up to one year imprisonment in county jail.
Did the judge, however, improperly preclude jurors from hearing evidence which supported Walker's contention that Krause attacked her first? Walker sought to have Cynthia Kinat and Tricia Murphy, the principal and assistant principal at Pine Ridge Elementary in Clermont, where Krause's two children are students, testify on her behalf. Walker's attorney hoped that the women would be able to testify about Krause's reputation for truthfulness in her community, but, after Judge Jose Rodriguez heard the information that they had to offer, he refused to allow them to appear before the jury, saying that the women did not know enough people who interact with Krause to be able to comment on the opinions of a "community." Murphy also told Rodriguez that Krause had behaved aggressively on Pine Ridge's campus, but Rodriguez found that since Murphy could only point to examples of Krause's verbal aggression, her testimony wasn't relevant in Walker's case. Both of these rulings seem correct to me.
First, with regard to Murphy's proposed testimony about Krause's aggressive behavior, Florida Evidence Code Section 90.404(1)(b) allows a criminal accused to offer evidence of a pertinent character trait of an accused, but Florida Evidence Code Section 90.405(1) limits the method of proof to reputation evidence. Murphy's proposed testimony thus had two flaws: (1) it was specific act evidence, not reputation evidence, and (2) as Judge Rodriguez noted, it went to a non-pertinent character trait: verbal, rather than physical, aggression.
Second, with regard to the testimony about truthfulness, Florida Evidence Code Section 90.609, witnesses can impeach the testimony of a witness by indicating that the witness has a reputation for being untruthful. Before such testimony can be rendered, however, it must be established that these witnesses now enough people who interact with the witness to be impeached to know their reputation. See, e.g., Morrison v. State, 818 So.2d 432, 449 (Fl. 2002). Here, Judge Rodriguez found the prospective witnesses lacked this knowledge and thus properly excluded their testimony.
April 11, 2008
London Calling, Take 3: Report Finds Low Copy DNA To Be Scientifically Sound
I've written twice before (here and here) about how the United Kingdom suspended its use of "low copy number" DNA. As I noted, low copy number DNA allows the genetic profiles of suspects, victims or witnesses to be "uncovered" even when there is only a tiny amount of biological material present, sometimes as small as a millionth of the size of a grain of salt. The technique amplifies these tiny DNA fragments when it is believed that a suspect may have transferred DNA through touch, like the residue believed to have come from cells such as skin or sweat left in a fingerprint.
In the wake of the disastrous Sean Hoey case, however, the Crown Prosecution Service ordered a re-examination of current cases relying on low copy number DNA evidence, and the Association of Chief Police Officers suspended its use of it (although its use was subsequently reinstated). Well, that re-examination led to a report by scientists at the University of Strathclyde. The report found the technique to be scientifically sound and Professor Brian Caddy, who carried out the review, said it should not cause wrongful convictions. If the review had found problems with the science it could have triggered the re-examination of scores of criminal cases.
The review's authors did call for improvements in the collection of DNA from crime scenes and in its analysis to avoid the evidence becoming unusable. Specifically, Caddy made 21 recommendations to standardize procedures, including (1) ensuring that police evidence-gathering kits are "DNA-clean" to avoid contamination with someone else's genetic profile, (2) a national agreement on how to interpret the results from low-template DNA, and (3) clear guidance on how courts should interpret the evidence. The report's authors also voiced concern at the quality of forensic science conducted by police laboratories, which often analyze low-template DNA first.
As I noted before, low copy number DNA has been consistently doubted in the scientific community, and it has thus only been used in the U.K., the Netherlands, and New Zealand, which makes me wonder, as with the New Jersey report on the Alcotest 7110, whether this was a "politically motivated" report based upon the consequences that would have occurred had low copy DNA been found unreliable.
Let Us Live And Strive For Freedom: South African Supreme Court Finds Evidence Obtained By Torture Inadmissible
In what is being described as the first case of its kind since the advent of the Constitution of the Republic of South Africa in 1996, the Supreme Court of Appeal of South Africa has held that evidence obtained through the use of police torture is inadmissible. According to Judge Azhar Cachalia in his judgment, "[i]n the pre-constitutional era the courts generally admitted all evidence, irrespective of how it was obtained, if it was relevant." Judge Cachalia, however, found that all of this changed with the adoption of Section 35(5) of the Constitution, which provides that "[e]vidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice." Cachalia determined that a plain reading of this section suggested that it required the exclusion of evidence improperly obtained from any person, not only from an accused.
This broad reading of Section 35(5) was essential to the case being heard by the Supreme Court because it involved a defendant being convicted based upon evidence obtained by the torturing of an accomplice. Taxi operator and former policeman Bongani Mthembu was sentenced by the Verulam Regional Court to 23 years for stealing two vehicles and for an armed robbery of a post office 10 years ago. Mthembu allegedly committed the crime with Sudesh Ramseroop, and Ramseroop incriminated Mthembu only after he was "assaulted severely" by his interrogators, with the assaults including electric shock treatment. Two other witnesses against Mthembu were also allegedly tortured.
The magistrate and trial judge in Mthembu's case found that the assault and torture did not render Ramseroop's testimony unreliable, but Judge Cachalia reversed them with an eloquent denunciation of torture: "The absolute prohibition on the use of torture in both our law and in international law therefore demands that 'any evidence' which is obtained as a result of torture must be excluded 'in any proceedings.'" My first thought on hearing this news was that Lowell Weicker, my former professor at UVA who played a large role in ending apartheid in South Africa, will be extreemly pleased with this result.
April 10, 2008
Taxicab Confession: New York Appellate Court Finds Trial Court Erred in Admitting Hospital Record Without Redaction
My old court, the New York Supreme Court, Appellate Division, Second Judicial Department has rendered an interesting opinion in a case implicating the medical treatment/diagnosis exception to the rule against hearsay. In Zito v. City of New York, 2008 WL 798033 (N.Y.A.D. 2 Dept. 2008), the plaintiff, Michael Zito, sustained injuries when he was shot by the defendant Hubert Desmangles, an off-duty New York City Corrections Officer. Zito then sued Desmangles and the City of New York alleging, inter alia, negligence and civil rights violations.
At trial, Zito testified that on the night in question, he asked to purchase a cigarette from a cab driver but was rebuffed. Zito claimed, however, that later that night, the cab returned and a passenger -- Desmangles -- exited the vehicle and shot him in the back. Two friends of the plaintiff who were present for the shooting corroborated Zito's testimony that he was shot in the back.
Desmangles provided a quite different account of the shooting. He testified that Zito approached a cab in which he was a passenger and stated, "Give me your money or me and my boys will shoot you," whereupon the cab fled. Desmangles claimed that he thereafter ordered the driver to return to the scene, which he did, and Desmangles exited the cab to use a nearby pay phone when he saw four or five males, including the Zito, walk toward him. Desmangles testified that one of the men said, "Let's get him," whereupon the group accelerated its pace toward him. Desmangles claimed that at this point, he drew his gun and fired at the Zito, with the bullet hitting him in the stomach when he was about eight feet away.
At the close of the evidence, the jury found both Desmangles and Zito to be negligent and found Desmangles 15% at fault and Zito 85% at fault in the happening of the incident. The jury awarded the plaintiff the sum of $450,000 for past pain and suffering, and $74,000 for past medical expenses, but no damages for future pain and suffering.
Zito appealed, claiming, inter alia, that the trial court erred in failing to redact a statement, contained in the history portion of Zito's hospital records, that the bullet entered through the front of his body. The Appellate Division agreed and remitted the matter for a new trial, finding that "[i]nasmuch as the record does not establish whether the statement was germane to either diagnosis or treatment, it constituted hearsay and should have been redacted from the record." As support for this proposition, the court cited to a previous opinion, People v. Townsley, 240 A.D.2d 955, 957 (N.Y.A.D. 1997), in which another New York appellate court had received testimony from a treating physician that the manner in which a person sustained his gunshot wounds was not relevant to his treatment or diagnosis.
This portion of the ruling makes sense because Federal Rule of Evidence 803(4) (which New York has adopted in its case law) provides 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 [only] insofar as reasonably pertinent to diagnosis or treatment." If the doctor is Townsley is right that the manner in which a person sustains a gunshot wound is not relevant to treatment/diagnosis, statements about how a gunshot wound occurred are inadmissible under Rule 803(4).
But, there seems to me to be a larger problem with the opinion, and maybe it's just a matter of the opinion not providing enough details (the Second Department has long received criticism for its bare bones opinions). Presumably, the statement in the hospital record about where the bullet entered came from Zito. And Zito was the civil plaintiff, with the
prosecution [EDIT: defense] offering the hospital record against him. Thus, the statement should have constituted the admission of a party opponent and been admissible against Zito at trial. See, e.g., People v. Mitchell, 626 N.E.2d 630, 633 (N.Y. 1993). Now, maybe the statements didn't come for Zito, explaining the court's ruling, but if the statement did come from Zito, I don't see why the statement should have been redacted.
April 9, 2008
Article of Interest: Professor Sandra Guerra Thompson's Beyond a Reasonable Doubt?: Reconsidering Uncorroborated Eyewitness Identification Testimony
I highly recommend Beyond a Reasonable Doubt?: Reconsidering Uncorroborated Eyewitness Identification Testimony, the new article by University of Houston Law Center Professor Sandra Guerra Thompson, which will be published in an upcoming issue of the UC Davis Law Review. The article's argument is that there should be a corroborating evidence requirement for eyewitness identifications.
In Part I, Professor Thompson notes that countless psychological experiments and field studies have concluded that eyewitnesses inevitably err in their recollections of events and persons. There are two categories of variables that contribute to this likelihood of error: estimator variables and system variables. Estimator variables are variables that cannot be addressed by the legal system. They include the lighting conditions at the time the event or person was percieved, whether the identification is cross-racial (which decreases the accuracy of IDs), whether the event perceived was violent (which also decreases accuracy), and unconscious transference (when a person seen in one situation is mistakenly remembered by a witness as being seen in a different situation). Meanwhile, the two principal system variables are: (1) the possibility that police investigators can use conscious or unconscious suggestion to encourage eyewitnesses to choose the suspect arrested by police, and (2) the possibility that an eyewitness makes an identification based upon "relative judgment," a psychological process which causes a witness to select the person in a line-up who best fits the limited contours of the witness's memory, rather than choosing solely on the basis of independent memory.
In Part II, Professor Thompson argues that these problems have contributed to many individuals being wrongfully convicted based upon eyewitness testimony and that none of the remedies implemented to address these problems has even the potential to counteract the frequent inaccuracy introduced by eyewitness identification testimony. The first is the right to counsel at police line-ups, which is underutilized because it is limited to line-ups conducted after the initiation of formal proceedings against the accused and because it does not apply at all to IDs from photo spreads. The second is the exclusion of IDs made under "unduly suggestive" circumstances, which is inefficacious because it requires police misconduct and fails to address estimator variables. The third is the use of expert testimony and special jury instructions designed to educate the jury on the scientific knowledge on the effect of certain factors on identification accuracy; however, for decades, judges had precluded the use of such testimony and instructions. The fourth is the proposed use of "blind" line-ups and photo-arrays, in which the police investigator does not know the identity of the suspect arrested by the police, and the sequential line-up, in which individuals are presented one at a time. The problem with these techniques is that there is little reason to expect that they will be adopted on a wide-scale basis and, once again, they only address system variables, not estimator variables. And as Professor Thompson notes, there is little scientific basis for believing that system variables account for the lion's share of inaccuracies.
Because Professor Thompson finds these remedies inadequate, she argues in Part III that the American justice system should not allow for a defendant to be convicted based solely on the identification testimony of one eyewitness and that instead there should be a requirement of some additional identifying evidence. She first argues that such a bright-line rule is necessary because we cannot expect to safeguard the innocent from wrongful convictions by means of trial or appellate remedies that require courts to exercise their discretion. She next contends that such a rule has advantanes for both police and prosecutors, specifically relieving the latter from having to resolve the moral dilemma of whether to try a defendant based upon the eyewitness testimony of a sole witness. She then notes that her recommendation has historical support as corroboration requirements have perhaps the longest lineage of all evidentiary rules.
Professor Thompson concludes by arguing that her proposed rule could be adopted as a rule of criminal procedure, either by legislative initiative, by state high court decisions interpreting state constitutional law, or by the U.S. Supreme Court as a matter of federal constitutional law. She then notes that there should be exception to the rule where the eyewitness had a pre-existing relationship with the defendant and addresses some potential criticisms to the proposal.
I have read numerous studies on the unreliable of eyewitness identifications and recommend the many studies cited in Professor Thompson's article. And based upon those studies, I strongly agree with the recommendation made in Professor Thompson's article and think she does a tremendous job of advocating for the new rule in an even handed manner. I e-mailed Professor Thompson about what led her to write the article, and she responded:
"In my criminal procedure class one day, we studied some of the psychology literature outlining the inherent failings of witnesses' perception and memory that often lead to erroneous eyewitness identifications. We noted that the circumstances under which we usually ask witness to make identifications--after being victims of violent crimes--are those in which perception and memory are least likely to function accurately. The discussion led one of my students to ask afterward how a jury could be allowed to convict "beyond a reasonable doubt" based only on such unreliable evidence. I realized immediately that the student was right, no conviction should be allowed to rest solely on uncorroborated eyewitness identification testimony unless the witness and victim have a prior relationship. Otherwise, the evidence should be viewed by law to be too unreliable to alone support a
So I set out to learn more about the psychological literature that focuses on the powers of perception and memory, in addition to the influences that can be brought to bear by police investigators. My piece fills a gap in the list of remedies currently proposed by Innocence Commissions and activist organizations around the country. Most proposed reforms in the area of eyewitness identification have focused, quite naturally, on the conditions that the legal system can try to improve, namely the procedures followed by police investigators. My article focuses on preventing wrongful convictions by legally recognizing the inherent fallibility of crime victims' powers of perception and memory and simply requiring additional proof for conviction. I delve deeply into the history of corroborating evidence requirements in making my case. Corroborating evidence requirements have a bad reputation because of their past notorious use in rape trials. Overall, however, the history of such requirements put them on par with exclusionary rules as a means of preventing miscarriages of justice based on unreliable evidence. This historical analysis of corroborating evidence rules is a feature of the piece that I believe
makes a new contribution to the evidence literature."
Attempted Suicide By Cop: Pennsylvania Man's Defense Opens The Door To Admission Of Character Evidence
A Pennsylvania man's "attempted suicide by cop" defense opened the door for the prosecution to present otherwise inadmissible character evidence in the man's trial for attempted homicide and aggravated assault. In 2006, David Charles Kling of Airville, Pennsylvania and Cynthia Testerman had been living together, but in December 2006, Testerman asked Kling to move out. In the early morning hours of December 17, 2006, Testerman allegedly received threatening and harassing phone messages from Kling and called the police and her father. Before the police arrived, Kling twice got gas cans and approached the mobile home in which Testerman and her mother had locked themselves. Both times, however, Testerman's father allegedly stopped Kling from taking further action. Eventually, the police arrived, and Kling used his pickup to chase troopers who were on foot and in patrol cars, and he pointed a shotgun at the police. After a standoff that lasted about an hour, the police apprehended Kling after firing shots into his pickup truck.
Kling's defense at trial is that he never intended to set fire to the mobile home or harm the cops. He testified that he planned to use the gas cans to set fire to himself and that his actions toward the police were attempts to get the officers to shoot him. He claimed that his behavior was prompted by the fact that he had bipolar disorder and had not taken his medication in two weeks.
This strategy, however, allowed First Deputy Prosecutor Jeffrey Boyles to call Kling's ex-wife to the stand. Near tears, Kathleen Elizabeth Holmes told the jury that, in 1995, Kling put a shotgun to her head, poured gasoline around her feet and threatened to kill her during a standoff with Harford County, Md., sheriff's deputies. Assistant public defender James Rader argued strongly against allowing Holmes to testify to the 13-year-old crime, but Common Pleas Court Judge Thomas H. Kelley said her testimony was admissible because the defense had "raised the specter of intent." I disagree with this conclusion.
Pursuant to Pennsylvania Rule of Evidence 404(a), "[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." In other words, evidence the prior incident between Kling, his ex-wife, and the police would be inadmissible to prove that Kling was a violent person and that he thus acted violently on December 17, 2006. Pursuant to Pennsylvania Rule of Evidence 404(b), however, "[e]vidence of other crimes, wrongs, or acts may be admitted for other purposes, such as....intent."
Thus, for instance, if Kling were charged with assaulting Testerman by punching and kicking her, his defense might be that the two were just playing around and that her injuries were accidental. This would allow Testerman to testify about prior acts of abuse by Kling in the previous weeks or months to prove that Kling intentionally injured her at the time in question and that her injuries were not accidental. But that is not the case at hand.
The prosecution alleges that Kling intended to set fire to the trailer to injure or kill Testerman and her mother and that he intended to attack and injure police officers. Kling counters that he was suicidal based upon his failure to take his meds, that he planned to set fire to himself, and that his only intent with regard to the police was to get them to shoot him. I don't see how an 13 year-old incident has any relevance in determining whether Kling was suicidal. Sure, the events are similar, but I just don't see how an attack upon his wife 13 years ago establishes that Kling was not suicidal and instead had the intent 13 years later to attack another woman.
April 8, 2008
Mississippi Masala, Take 2: Judge To Consider Character Evidence Exception In Murder By Oil Case
Under Federal Rule of Evidence 404(a)(2) and most state counterparts, criminal defendants seeking to prove a claim of self-defense can introduce evidence indicating that the alleged victim was a violent person. However, under Federal Rule of Evidence 405(a), they are generally limited to introducing opinion and/or reputation evidence (A witness could testify that that in his opinion, the alleged victim was violent or that he was the alleged victim's neighbor/co-worker/etc. and that the alleged victim had a reputation for being violent). Conversely, most criminal defendants would not be able to introduce evidence of specific acts of violence by the alleged victim (A witness couldn't testify that he saw the alleged victim attack another dad at a youth baseball game). As I have written before, however, Mississippi has a unique interpretation of its version of Federal Rule of Evidence 405(b) under which the character of the victim becomes an "essential" element of the defense of self-defense when there is evidence of an overt act by the alleged victim against the defendant. See, e.g., Hester v. State, 841 So.2d 158, 163 (Miss.App. 2002). In such cases, the defendant can therefore introduce into evidence specific acts of violence by the alleged victim to prove that he was a violent person.
Previously, I wrote about how a Mississippi court applied this rule in a Thanksgiving dinner stabbing case. Now, another Mississippi court might apply it in what has been described as one of the most sensational local murder cases in recent history. Edna Mae Sanders has been charged with killing her husband, Sherman Sanders, by dousing him with scalding cooking oil while he slept; Sanders died about a week later at a hospital. Defense attorney Brian Alexander is arguing a case of self-defense for Sanders and filed a court motion last Friday, which indicated that Sherman Sanders had a history of violence and that he "either openly demonstrated" to others or had told other people he had committed violent acts. According to Alexander, those reports are admissible because they led Edna Mae Sanders to defend herself. Judge Steve Simpson will hear arguments on the motion today.
Without knowing the full facts of the case, it is difficult to say how the court will rule. Based upon what I have read, however, it seems unlikely that the judge will grant the motion because, as I noted, past acts of violence by the alleged victim are only admissible under the Mississippi rule when there is evidence of an overt act by the alleged victim against the defendant. For instance, in the Thanksgiving dinner case, there was evidence that the alleged victim brandished a knife against the defendant before she stabbed him. Here, however, the evidence seems to indicate that Sherman Sanders was sleeping when he was doused with oil, precluding a finding that he committed an overt act against the defendant.
April 7, 2008
It's My Space. That's Why They Call It MySpace, Take 2: Judge Finds MySpace Photos Inadmissible In Murder Trial
The trial for two teenagers, Jean Pierre Orlewicz and Alexander Letkemann, for the gruesome murder of twenty-six year old Daniel Sorensen will begin this week, but without evidence that defense counsel wanted to introduce about the victim. I've written about this case before, and the brief facts are that Orlewicz and Letkemann are charged with first-degree premeditated murder, disinterment and mutilation of a corpse based upon the allegation that they lured Sorensen into a death trap where he was stabbed, beheaded and burned. Specifically, authorities say that Orlewicz arranged for Sorensen to meet him in his grandfather's garage in Canton Township, where the floor had been covered with a tarp, the windows draped, and knives, a saw and cleaning materials were waiting. Orlewicz and Letkemann allegedly then murdered Sorensen, with the only known motive being that the murder was a "thrill killing."
Orlewicz's defense lawyers sought to prove that Sorensen had a violent past and that Orlewicz may have killed him in self-defense. They sought to prove this past through four personal protection orders taken out against Sorensen since 2000 by people in Illinois and Michigan who claimed to fear him and through pictures of weapons, illegal drugs and images from the movie "Scarface" that Sorensen posted on his MySpace page. The judge, however, found that the statements used to obtain the protective orders were unchallenged opinions, not facts, and that the orders were thus inadmissible. The judge also relied upon the fact that the defendants were unaware of the orders before Sorensen's death. With regard to the MySpace photos, the judge found that "would tend to move the jury to decide the matter on an improper basis such as inflamed passions and emotions."
The protective order ruling clearly makes sense to me, and it seems like the judge's ruling on the MySpace photos was correct as well as any probative value that these photos had (if they had any) was likely substantially outweighed by their unfairly prejudicial effect and thus inadmissible under Michigan Rule of Evidence 403. Moreover, if the judge had ruled otherwise, college students across the country could have their Tony Montana or A Clockwork Orange posters admissible if they became involved in court cases to prove...what, exactly? I'm not sure that's the result we want. Meanwhile, this is the second recent case to find evidence from a person's MySpace page to be inamdissible. It will be interesting to see if subsequent cases find similarly.
Bullet In The Head: Illinois Judge Makes Seemingly Erroneous [EDIT: Correct] Hearsay Ruling In Attempted Murder Case
An Illinois judge has made a seemingly strange [EDIT: correct] hearsay ruling, which appears to have played a large role in a defendant being acquitted of the most serious charges against him. Last week, Scott Guidotti was on trial, facing charges of attempted murder with a firearm, home invasion, and aggravated battery with a firearm (all Class X felonies), as well as aggravated discharge of a firearm (a Class 1 felony) in connection with an incident in Tazewell County, Illinois in 2006.
That incident occurred on July 19, 2006, when officers responded to a report of shots fired at 1501 Highland Avenue. After their arrival, officers found that three men had been in the house when the shooting began. According to court records, police discovered that 31-year-old Scott Roberts of Pekin had a bullet wound to the back of his head.
Roberts testified that he was in the kitchen of the house at 1501 Highland Avenue preparing alcoholic beverages when bullets began flying through the front of the house on the night in question. Roberts claimed that he thereafter ran out of the back door and around the house where he met Guidotti, who was allegedly holding a semi-automatic handgun. Roberts then claimed to have tackled Guidotti in the driveway of the home, where a fist fight began. Roberts claimed that after several seconds of fighting with Guidotti, he heard the gun fire twice, striking him in the head once.
In his defense, Guidotti testified that on the night in question, he began getting obscene phone calls from someone at 1501 Highland Ave., where his cousin resides. He said that he went to the house, whereupon Roberts came outside laughing and pointed a gun at him. According to Guidotti, after Roberts fired a round at Guidotti's truck, the two men began fighting, and, during the fight, a bullet was fired into the house. Guidotti told jurors that next, Roberts rushed through a wooden fence and fell to the ground, resulting in a third bullet being fired. Guidotti said he jumped on Roberts in an attempt to control the gun and that while the two wrestled in the driveway, two more rounds were fired. Guidotti said he never noticed that Roberts had been shot.
There were several other witnesses in the case, but I will only focus on the testimony of Eric Guidotti, the defendant's brother. Eric testified that at about 10:00 P.M. on the night of the incident, the defendant knocked on his front door. “He looked like he had been run over by a truck,” Eric said, as he described his brother's wounds. Eric then proceeded to detail events that followed and eventually began testifying about what the defendant told him about the incident However, before Eric could relay to the jury what his brother said had happened, Tazewell County Assistant State's Attorney Michael Green objected to the brother's comments, citing it as "hearsay" testimony. After a short recess, Judge James Stewart of the Ninth Judicial Circuit Court agreed with Green and only allowed Eric to testify about his own actions that night. Scott was thereafter acquitted on the Class X felony charges and only convicted of the Class 1 felony of aggravated discharge of a firearm
If these facts are accurate. the judge's ruling does not make sense [EDIT: It makes sense]. It is well established in Illinois case law that "extrajudicial statements made by a party opponent are not excludable as hearsay." People v. Simpson, 369 N.E.2d 1248, 1252 (Ill. 1977). Thus, Scott's statements to his brother should have been admissible as part of the prosecution's case as admissions of a party opponent -- the criminal defendant.
EDIT: However, as the commenter below notes, the objection was made by Tazewell County Assistant State's Attorney Michael Green, which presumably means that Eric was going to testify about statements that Scott made which helped his case. Thus, it appears that the statements were not offered by the prosecution against a party opponent but instead by the defendant in support of his case. Thus, Scott's alleged statements were hearsay, and the judge correctly precluded testimony about them. I misread the articles on the testimony and apologize for the error.
April 6, 2008
Minnesota Girl, Take 3: Judge In Dominic Jones Trial Curtails Impeachment Of Prosecution Witness
I've written twice before (here and here) about the sexual assault trial of former University of Minnesota football player Dominic Jones. The case has already raised a number of interesting evidentiary issues, including (1) whether Jones could introduce evidence that the alleged victim had sex with three other U Minn. football players before coming into contact with Jones on the night of the alleged assault, (2) whether a cell phone video recording of the alleged assault would be admissible, and (3) whether Jones could introduce testimony by a "sexologist" about what it means to ejaculate on another person.
Now, the judge hearing the case, Hennepin County District Judge Marilyn B. Rosenbaum, has made a fourth evidentiary ruling, which could result in a reversal should Jones be convicted. One of the witnesses called by the prosecution in Jones' case was Robert McField, a former U Minn. defensive end. McField testified that on the night of the alleged assault, he saw Jones on top of a nineteen year old girl, making a "sexual motion." On cross-examination, however, Jones' defense counsel Earl Gray, was able to get McField to admit that he did not see any penetration. The distinction is important to Jones because one of the elements of the charge against him is that he "engaged in sexual penetration" with the alleged victim. And while the jury has seen the aforementioned cell phone video of the incident, the recording does not show any penetration.
Gray, however, was partially foreclosed by Judge Rosenbaum in another attempt to undermine McField's testimony. You see, McDaniel is currently serving a twelve year sentence in Missouri based upon a felony armed robbery conviction. Gray wanted to impeach McDaniel through this conviction, but Judge Rosenbaum merely allowed McDaniel to testify that he had a conviction and precluded any testimony about the nature of the conviction. Was this proper?
Well, under Minnesota Rule of Evidence 609(a)(1), "[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted...if...the crime...was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect." Apparently, Judge Rosenbaum felt it was a close call whether the probative value of McField's conviction outweighed its prejudicial effect, which is why she allowed testimony that he had "a conviction" but no testimony about the type of conviction.
Now, it's impossible for me to tell the exact probative value of the conviction and its exact prejudicial effect without knowing the full facts of the case, but if McDaniel's act of armed robbery was merely a crime of violence without any deception, his conviction likely would not have a very high probative value on the issue of veraicty. Even if that's the case, though, is it enough to justify Judge Rosenbaum's ruling?
As a disclaimer, Federal Rule of Evidence 609(a)(1) is slightly different from Minnesota Rule of Evidence 609(a)(1), but I think that the purposes behind the two Rules are the same: the Rules' drafters wanted convictions to be used as impeachment evidence but did not want them used as character evidence. Thus, for instance, if a defendant testifies in his trial for armed robbery, a judge would almost certainly preclude the prosecution from impeaching him through a prior armed robbery conviction for fear that the jurors would use the conviction not merely to doubt his testimony but also as evidence that the defendant had a propensity to commit violent robberies and that he likely acted in conformity with that propensity at the time in question.
When, however, should a judge preclude defense counsel from impeaching a prosecution witness or limit such impeachment? According to the Advisory Committee Note to Rule 609, the answer is not very often. The Note indicates that "[t]he probability that prior convictions of an ordinary government witness will be unduly prejudicial is low in most criminal cases. Since the behavior of the witness is not the issue in dispute in most cases, there is little chance that the trier of fact will misuse the convictions offered as impeachment evidence as propensity evidence. Thus, trial courts will be skeptical when the government objects to impeachment of its witnesses with prior convictions."
Here, McDaniel was not an alleged participant in the sexual assault but was instead a mere bystander. Thus, his behavior was not at issue, making it likely that Judge Rosenbaum should have allowed defense counsel to impeach him fully.