April 19, 2008
Penn State Rape Case, Take 3: All Charges Dropped Against Austin Scott
I've written twice before (here and here) about Penn State running back Austin Scott, who is charged with raping a 22 year-old fellow student. In fact, just yesterday I wrote about the judge's decision to allow the alleged victim to be questioned about a prior false rape accusation, a decision I characterized as incorrect under rape shield law precedent. Well, as a result of that ruling, the Commonwealth of Pennsylvania withdrew all charges against Scott, with a press release indicating: "In light of the likely admission of evidence we believe is irrelevant, as officers of the court, it is our position that there is no reasonable likelihood the commonwealth can meet its burden of proof."
He Deserves A Break Today, Take 4: Judge Throws Out Alton Logan's Conviction After New Evidence Is Presented
I've written three times before (here, here, and here) about Alton Logan, the Illinois man who has been incarcerated for 26 years for a robbery/murder at a McDonald's restaurant despite another man, Andrew Wilson, confessing to the crime. The problem, however, was that the public defenders to whom Wilson confessed felt that they were bound by the attorney-client privilege not to disclose Wilson's confession until, as per Wilson's agreement, after his death. When Wilson recently died, the attorneys disclosed Wilson's confession, setting the stage for a legal battle over whether the confession would be admissible and whether Logan's conviction would be thrown out. That battle ended yesterday as I have claimed that it should: with Alton Logan being set free.
At a hearing at the Criminal Courts Building in Chicago, Wilson's confession was presented. Other evidence included:
-former McDonald's employee Gail Hilliard testifying that as she was about to make a milkshake for a drive-through customer on the night of the robbery-murder, she saw a shotgun-toting man enter the restaurant, whom she identified as Wilson from a photo (in 1999, Hilliard had previously identified the man as Wilson to an attorney but did not make a similar statement to police);
-Joseph Prendergast, a semi-retired teacher who tutored Wilson in prison for several months in 1982 and 1983, testified that Wilson told him at the time that he had shot a shotgun inside a McDonald's; and
-Alvin Thompson, a McDonald's security guard wounded the night of the shooting identified Logan as the gunman.
This evidence led Judge James Schreier to throw out Logan's conviction and order a new trial because this new evidence made it "a reasonable probability" that Logan would be acquitted if prosecutors try him again. The Illinois attorney general's office, which is prosecuting the case, will likely soon make the decision whether to go to trial again.
April 18, 2008
Penn State Rape Case, Take 2: Judge Rules That Prior False Rape Allegation Will Be Admissible In Austin Scott Trial
Previously, I posted an entry about Penn State running back Austin Scott, who is charged with raping a 22 year-old fellow student. As I noted, it was unearthed that Scott's accuser had made similar allegations against a student at Moravian College in Bethlehem, Pennsylvania in 2003; the student-defendant in that case was found "not guilty" of rape, and the jury deadlocked on lesser charges. I indicated at the time that Scott's attorney asserted that he would seek to use this prior allegation at Scott's trial to undermine the alleged victim's allegations, and I concluded, "I don't see how Scott's attorney could be correct."
Well, there was one key fact about the prior allegation about which I was unaware, which has led Center County Judge Thomas King Kistler to rule that Scott's accuser can be questioned about the prior allegations. And the fact was that the alleged victim actually admitted under oath that she lied about the 2003 incident and said that the encounter was "mostly consensual." But, you know what? I still don't think that it should have made the prior allegations admissible.
Rape shield laws were enacted because defense counsel in rape cases would typically call all of the victims' other sexual partners in an attempt to prove to jurors that the victim was promiscuous and thus likely consented to the sex at issue. Of course, this practice was pernicious, which led to the enactment of rape shield rules, which prevent defense counsel from inquiring into and/or proving other sexual acts by the victim. Pennsylvania's rape shield rule is contained in P.A. C.S. Section 3104. However, a per se rape shield rule could violate the constitutional rights of an accused, which is why there are exceptions to rape shield laws. One such exception, which is typically used when an alleged victim has made prior false rape accusations, allows for a defendant to prove sexual acts of an alleged victim if the evidence's exclusion would violate the accused's Constitutional rights. As I previously noted, Pennsylvania actually does not have such an exception, but it has crafted out such an exception in its case law.
This, however, leaves the question of whether this exception applies to the Scott case. I would argue that it does not. Let's look at the Pennsylvania case, Commonwealth v. Boyles, 595 A.2d1180 (Pa.Super. 1991). In Broyles, the court cited to a previous case, Commonwealth v. Black, 487 A.2d 396 (Pa.Super. 1995), and construed it as follows:
"In Black, the defendant's daughter accused him of raping her. The defendant offered testimony concerning his daughter's consensual sexual relationship with her brother who had left home and separated from the family after violent arguments with the defendant. The defendant offered this evidence to show bias on the part of the daughter against him and a motive to seek retribution by false accusation. Under those circumstances, the Court held that the Rape Shield Law could not be used to exclude relevant evidence showing a victim's bias or attacking his or her credibility." (emphases added)."
In other words, there is an exception the Pennsylvania rape shield rule when the alleged victim has made a prior false rape accusation which is relevant to prove a specific bias/motive to fabricate rape charges against an accused in a later case. What happens, however, when an alleged victim makes a prior false rape accusation which is unrelated to a later rape case? Does the Black exception apply there as well? According to the court in Broyles:
"Although the court in Black stated that evidence attacking the victim's credibility could not be excluded under the Rape Shield Law, the attack on the victim's credibility in that case was based on the victim's possible bias against and hostility toward the defendant and her motive to fabricate. In later cases, this Court has applied the holding of Black only where the victim's credibility was allegedly affected by bias against or hostility toward the defendant, or the victim had a motive to seek retribution....Moreover, this Court has determined that, under Section 3104(a) of the Rape Shield Law, testimony regarding the victim's claims of past sexual attacks is inadmissible."
In other words, evidence of prior false rape allegations is inadmissible in this "unrelated" situation, which is the situation presented by the Scott case. Thus, pursuant to the ruling in Broyles, which is consistent with other case law in Pennsylvania and across the country, the alleged victim's prior false allegation should have been inadmissible, and I'm not sure why Judge Kistler ruled otherwise. We will have to wait at least a few days to see whether the prosecution's appeal of the ruling is successful because the case has been delayed at least until next week, despite the claims of Scott's attorney that the delay will irreparably harm Scott in the upcoming NFL Draft
St. Lucie Sound, Take 2: Federal Prosecutors Claim 911 Call Unrelated to Quadruple Homicide
Previously, I blogged about the case against Ricardo Sanchez and Daniel Troya, who were charged with murder in connection with a quadruple homicide. That quadruple homicide consisted of the shooting deaths of Jose Escobedo, his wife, Yessica, and two young children in the predawn hours of October 13, 2006. As I noted, the prosecution had produced a toll ticket bearing the latent (finger)prints of Sanchez; the ticket was collected at the Okeechobee turnpike exit at 3:02 a.m. on October 13, 2006, with the exit being fifty miles from the scene of the crime. Defense counsel had claimed that the prosecution also had a tape of a 911 recording that was an actual recording of the murders as they happened at 3:10 A.M. As I noted, if this claim were true regarding the recording, it was clearly exculpatory, and the prosecution had an obligation to disclose it to defense counsel.
In a motion filed on Tuesday, however, federal prosecutors responded that this claim was not true and that they would not produce the recording. Instead, according to prosecutors, "no evidence links that call to this case." The prosecutors claim that the call, which came into the FHP Regional Communications Center in Lantana could have come from anywhere on the turnpike between Wildwood and Homestead. It will be interesting to see whether defense counsel responds with evidence that the call was in fact linked or whether the previous claims were the proverbial shot in the dark.
April 17, 2008
Life's A Beach, Take 2: Why The Transcript Of Barry Beach's Confession Possibly Should Have Been Inadmissible At His Murder Trial
Previously, I blogged about the case of Barry Beach, the Montana man convicted of the 1979 murder of eighteen year-old high school valedictorian Kim Nees on the Fort Peck Indian Reservation in Montana. Some readers may have seen the two hour Dateline NBC special on the case; those who missed it can watch it through a link provided on the Montanans For Justice website. My previous post contains a few factual details about the case, and I will now give a very brief recounting of the facts that are relevant to my point in this post, which is that it is questionable to me whether the centerpiece of the prosecution's case -- Barry's confession to Louisiana authorities -- should have been admissible against Beach. The facts are as follows:
-Nees was found dead in June 1979;
-On January 4, 1983, Barry Beach was arrested by Louisiana authorities for contributing to the delinquency of a minor;
-Louisiana authorities, including Detective Jay Via, thereafter interrogate Beach with regard to the abduction murders of three young Louisiana women;
-The authorities learn that Beach was from Montana, learn about the unsolved Nees case, and begin questioning Beach about Nees' death as well;
-Beach confesses to the murders of the three young Louisiana women and to the murder of Nees at the Ouachita Parish Sheriff's Department;
-The confession is tape recorded, and a secretary creates a typewritten copy of the confession, which Detective Via later reviews and corrects for accuracy;
-Louisiana authorities later determine that Beach did not commit the Louisiana murders, but they extradite him back to Montana to stand trial for the Nees murder;
-two to three months later, Lieutenant Alan Warren Nall, the custodian of records at the Ouachita Parish Sheriff's Department, erases the tapes of Beach's confession;
-because the tapes were erased, Montana prosecutors use the typewritten copy of Beach's confession as the primary evidence leading to his murder conviction;
-Beach launches several challenges to the verdict, the latest of which was rejected a few weeks ago, with more appeals to come.
Now, those supporting Beach might dispute some of these facts, and they have made many arguments in support of his case, some of which can be found here and here. On the other hand, the State of Montana has many arguments as to why Beach should have been convicted, some of which can be found here.
Let's, however, ignore those other arguments and any dispute about the above facts and instead ask: If the above facts are correct, should the typewritten copy of Beach's confession have been admissible at his trial (and will it be admissible if he is granted a new trial)? Well, pursuant to Montana Rule of Evidence 1002, "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by...these rules...." In other words, to prove the content of the recordings of Beach's confession, the original recordings were required, except as otherwise provided by the Montana Rules of Evidence.
Pursuant to Montana Rule of Evidence 1004(1), "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith." So, if Nall erased the recordings in "bad faith," the typewritten copy of Beach's confession was inadmissible; if he did not destroy it in "bad faith," the typewritten copy was admissible.
-Q. Okay. Now, could you tell me where these tapes are today?
-A. I disposed of them. I erased all tapes.
-Q. Okay, and would you explain to me the reason why you erased these tapes in this investigation?
-A. Originally, Barry Beach was arrested on a Fugitive from Justice warrant from Montana and in the process, in the process of our Court system [?] is then determined whether to be extradited back to Montana or be re-leased. Now, once it has gone through our Court system and a disposition is put on my complaint stating what the Court so ordered, and if it is so ordered then that he be returned to Montana or if he is ordered released, that is a disposition of clearing or final disposition of that complaint.
-Q. Okay, so it is my understanding that the tapes were erased after Barry Beach had been extradited back to the State of Montana? Is that correct?
-A. That is correct.
-Q. Okay. Were you aware of an investigation going on with Barry Allen Beach concerning a Contributing to the delinquency of a juvenile which pre-empted this particular investigation?
-A. No. Not to my knowledge. It's possible it could be.
Now, let's look at Via's testimony from Beach's clemency hearing (I'm not sure if there's a copy of this testimony publicly available, but I have a copy, and the relevant testimony is on pages 691-692):
-Q. What happened with the tape [of Beach's confession]?
-A. It was erased.
-Q. And did you erase the tape?
-A. Absolutely not. Liuetenant Alan Nall, who was the custodian of record -- when I went -- and it was notified we were having a motion to suppress in this case. I went upstairs to acquire not only the tapes of the recorded confession but of Carolyn Beach and those other people involved and couldn't find them. And I went to Lieutenant Nall and asked him where the tapes were, and he said he had erased them. And I went livid. I said, "What do you mean you erased these tapes?" He said, "I erased them." He said, "They weren't our tapes; they were another state's tapes. I needed the tapes." And he erased the tapes. And I'm serious, I went into a total -- I really, really got mad. As a matter of fact, that's one of the reasons he was subsequently removed as being custodian of record. The minute I learned that, I contacted Mr. Racicot, who was with the state attorney's office, to let him know that the tapes had been erased and that they were erased by our custodian of record."
So, that leaves the question: Was this bad faith? And my answer is that I'm not sure. I actually addressed this point in my recent article, Even Better than the Real Thing, where I noted that courts have made it difficult for the opponents of secondary evidence -- such as the transcript -- to prove that the proponent lost the original in bad faith. And two of the cases I cited lend support to the State of Montana. In Estate of Gryder v. C.I.R., 705 F.2d336, 338 (8th Cir. 1983), the court found that IRS employees who negligently destroyed original tax documents because they thought that all litigation involving them was completed did not act in "bad faith." And in United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996), the court found that an attorney who recorded over a tape recording in the ordinary course of business did not destroy the original in "bad faith."
Beach supporters, however, have a good argument that Beach's case is different from either of these two cases. Unlike in Gryder, Nall had no reason to believe that litigation involving Barry Beach was over; in fact, Nall's deposition indicates that he was not even aware of the Louisiana charges against Beach and was only aware of the Montana charges against Beach which led to his extradition. Thus, Nall seemingly had every reason to believe that the Montana case to which the recorded confession related was ongoing based upon his extradition. Furthermore, unlike in Workinger, Nall's destruction of the tapes was not done in the ordinary course of business (although Nall claims the contrary), but instead was a manifest error which led to Nall being removed from his position as custodian. Beach supporters could argue that his case is more similar to cases such as Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 128 (S.D. Fla. 1987), where the court found that an employee of the defendant destroyed original documents in "bad faith" when he wilfully destroyed them while knowing that litigation involving them was pending.
In other words, it's a close call how a court would rule on this issue, and it appears to me that it's an argument that Beach's attorneys never raised at his initial trial. In other words, if Beach is granted a new trial, it's an argument his team should definitely raise, and based upon the centrality of his confession to his conviction, a ruling excluding the transcript could very well be fatal to the State's case. It is important to note that Via could still testify about his recollection of Beach's confession because he had independent personal knowledge of the confession that was not dependent upon the recordings (he heard Beach confess); however, it seems to me that the typed transcript of the confession is much more compelling evidence, meaning that its exclusion would be very damaging to the State's case on possible re-trial. It will certainly be interesting to see if and how this and other issues play out for Beach
April 16, 2008
Article of Interest: Professor Andrea Dennis' Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence
University of Kentucky College of Law Professor Andrea Dennis recently published her fascinating article, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, in the Columbia Journal of Law & the Arts (31 Colum. J.L. & Arts 1 (2007)). In the article, Dennis notes that courts almost always allow for the admission of defendant-authored rap music lyrics as substantive criminal evidence. Dennis contends that such rubber stamped decisions are (1) problematic because they allow the government to obtain a stranglehold on such cases, and (2) fallacious because they presume that criminal defendant-lyricists are depicting true-life, self-referential stories in their lyrics. Dennis counters that the assessment of the admissibility and evidentiary utility of rap music lyrics requires awareness and understanding of the complexities of the art form and posits that the status quo can be ameliorated by having courts refocus their analytical perspective and allowing defendants to offer expert testimony concerning the composition of rap music lyrics to both judges and jurors.
In Part I, Dennis begins by citing a plethora of state and federal cases from across the country where courts have admitted defendant-authored rap music lyrics for a variety of purposes (cases include Bryant v. State, 802 N.E.2d 486 (Ind. Ct. App. 2004), United States v. Wilson, No. 05-13927, 2006 WL 3083968 (11th Cir. Oct. 31, 2006), and the Taquan Neblett music store murder trial). Dennis then proceeds to consider how judges find these lyrics admissible: (1) as admissions of party-opponents pursuant to Federal Rule of Evidence 801(d)(2)(A) and state counterparts; (2) as "relevant" under Federal Rule of Evidence 401 and state counterparts as confessions or direct evidence of intent/motive; (3) as "other act" character evidence under Federal Rule of Evidence 404(b) and state counterparts, and (4) as non-violative of the Rule 403 balancing test based upon finding that the lyrics are prejudicial but not unfairly prejudicial. Dennis then concludes Part I by arguing that such admissibility rulings are found upon three assumptions, all of which fail to treat rap lyrics as an art form: (1) that understanding and interpreting rap lyrics is not a matter requiring specialized knowledge/expert testimony; (2) that rap lyrics should be literally understood, and (3) that rap music lyricists depict accurate, truthful, and self-referential narratives.
In Part II, Dennis claims that there compelling reasons to distrust these assumptions. She begins by tracing the history of rap from its street roots to the current corporate boardroom commercialization. Dennis claims that this commercialization has had a double edged impact: On the one hand, it has resulted in artist images and lyrical narratives not necessarily being truthful, and on the other, the image that predominates rap music in the public eye is that of the stereotypical gangster, thug, outlaw, or criminal. She next notes that the rap tenet of "Keep It Real" forces artists to deny that their images/lyrics are manufactured rather than authentic. Dennis concludes Part II by indicating that, as with all art forms, rap lyrics rely on poetic/artistic devices which make it so that we should not understand them literally. These include the use of: (1) not only personal, but also collective, knowledge in crafting lyrics; (2) metaphors and boasts, and (3) narratives, which contain facets such as role playing.
Based upon these arguments, in Part III, Dennis calls for a reconsideration of the utility of rap music lyrics as criminal evidence. While courts treat defendant-authored rap music lyrics as inherently inculpatory, Dennis claims that when viewed in light of social constraints and artistic conventions, it is evident that rap music lyrics may falsely or inaccurately depict the occurrence of events. She contends that rap music lyricists are not in the category of non-fiction writers but instead are akin to fiction writers, such as novelists and screenwriters. Next, while courts treat such lyrics as permissible "other act" evidence under Federal Rule of Evidence 404(b), Dennis claims that prosecutors are impermissibly using them as propensity evidence and cites a passage from Prosecuting Gang Cases: What Local Prosecutors Need to Know, which is inculpatory. It exhorts prosecutors to show that "the real defendant is a criminal wearing a do-rag and throwing a gang sign. Gang evidence can take a prosecutor a long way toward introducing that jury to that person. Through photographs, letters, notes, and even music lyrics, prosecutors can invade and exploit the defendant's true personality." (my emphasis added). Dennis closes Part III by contending that defendant-authored rap music lyrics are unfairly prejudicial because they play on the biases of jurors against rap music.
In Part IV, Dennis concludes by presenting a two pronged approach. First, rather than reflexively admitting defendant-authored rap music lyrics as literal confessions, judges should begin their analysis from one or more viewpoints: (1) from the point-of-view that rap music lyrics are metaphorical rather than lyrical; (2) from the point-of-view that rap music lyrics are fictional, abstract, and entertaining representations of life rather than truthful or accurate, and/or (3) that the information revealed or events depicted in rap music lyrics are not self-referential. Dennis then advocates judges holding evidentiary hearings outside the presence of the jury where they determine whether such lyrics are relevant and admissible by resolving seven questions, ranging from whether the lyrics were written before or after the charged offense to whether the lyrics are internally consistent and coherent. The second prong involves allowing defendants to offer expert witness testimony on the composition of and societal response to rap music lyrics, which Dennis thinks is consistent with Federal Rule of Evidence 702 and state counterparts.
I highly recommend the article for both its readability and the nuanced manner in which it comprehensively addresses an interesting issue which judges to this point have failed to give due consideration. I asked Professor Dennis a couple of questions in response to the article, and she graciously provided the following responses:
What led you to write the article?
Broadly speaking, I am curious about the ways in which hip hop culture – including music, fashion, language, and persona – impact the criminal justice process. Why hip hop culture? Primarily because hip hop artists frequently reflect their experiences and perceptions of the criminal justice system in their music. Many hip hop artists – whether prominent or aspiring – come from over-policed communities ravaged by crime, violence, and mass incarceration. As well, a fair number of artists have experienced the criminal justice system themselves or through family, friends, and neighbors. Thus, I believe hip hop provides a contemporary cultural text allowing for examination of the authority, efficacy, and equality of the criminal justice process by those communities significantly affected by the criminal justice process.
Having been a trial attorney in an earlier life, I particularly focused my attention on the impact of hip hop culture on the prosecution of criminal cases. When I began researching, I hypothesized that I would find that prosecutors were using a defendant’s consumption or appreciation of rap music lyrics as criminal evidence. Such use would be akin to cases admitting evidence that a defendant watched the popular movie Natural Born Killers or listened to heavy metal music before engaging in violent crime, or that a defendant consumed child pornography before engaging in child sex crimes.
My research did reveal cases in which evidence of consumption of rap lyrics was used. What I also found unexpectedly, however, were cases in which defendant-authored rap music lyrics were used. As I indicate in the article, I did not find this use with other musical genres. Additionally, I did not unearth cases utilizing other defendant created art forms. The most closely related scenarios involved political speech or diary entries authored by defendants, and even those cases were rare.
By now, I felt like I was on to something.
Meanwhile, two rather serendipitous events occurred. First, when talking with a colleague, I learned of the then on-going Kentucky capital prosecution of Taquan Neblett in which the Commonwealth had sought to admit the defendant’s rap lyric writings. Second, I came across the federal capital prosecution in New York of Ronnell Wilson in which the prosecution also admitted defendant’s rap lyric writings. I talk about both prosecutions in the article.
Oddly enough, my research was foreshadowed years earlier. In the early 2000s, while working in the Maryland Federal Public Defender Office, I first became aware of this litigation tactic. Another attorney in the Office was representing a client charged with capital crimes. In discovery, the prosecution produced a CD that included rap songs that the client had written and produced. The CD could readily be labeled as gangsta’ rap. My expectation was that the government would use the evidence in the sentencing phase, if the case got that far. At the time, the strategy of using this type of evidence seemed isolated and legally tenuous.
At this point in my research, it was clear to me that the strategy was not isolated and was often successful. I was particularly concerned about this issue because it is linked to another area of research interest. That is, the way in which law enforcement officers are routinely permitted to opine in suppression hearings and trials about such topics as drug culture and terminology, life in high-crime communities, and gang culture. As with those topics, law enforcement officers often testify about what rap music lyrics mean and how they evidence criminal acts. Shouldn’t such testimony be closely regulated and, if admitted, how best can defendants rebut such evidence?
What are your plans for future scholarship?
In footnotes 3 and 11 of the article, I do raise a number of issues I think worthy of future exploration. As well, as I stated, I am interested in the issue of law enforcement “expert” testimony. At present I am researching the law enforcement and prosecution practice of using children as criminal informants (i.e., “snitches”). I expect to come back to the issue of hip hop culture and the criminal justice process, although I am not decided on the particular issue.
I Drink Your Milkshake!: Milkshake Murderer's Attorney Argues Hong Kong Court Improperly Allowed Hearsay Testimony
A strange case from Hong Kong reveals that the region is dealing with the same evidentiary issue set to be heard soon by the United States Supreme Court. In 2003, American housewife Nancy Kissel allegedly fixed her husband a strawberry milkshake laced with the "date-rape drug" Rohypnol in their luxury Hong Kong apartment. She then allegedly bashed in his head with a metal ornament, wrapped his dead body in a carpet, and ordered a maintenance crew to haul it away to a storage space. At her 2005 trial, Kissel claimed that she acted in self-defense, but the court disbelieved her, and she was convicted of murder and sentenced to life imprisonment. Part of the evidence used to convict Kissel consisted of the testimony of a witness who claimed that the husband told him soon before his death that he thought his wife was trying to kill him. Now, Kissel's attorney, Gerald McCoy, has claimed, inter alia, that the husband's statements were inadmissible hearsay and that the trial court thus erred in allowing the witness to testify about them, necessitating a reversal.
If all of this sounds somewhat familiar to some of you, it might be because you watched 48 Hours Mystery last night, which dealt with the Mark Jensen case, which I have blogged about before (here, here, and here). That case involved the death of Mark Jensen's wife and the question of whether a note that the wife gave to a neighbor indicating that Mark should be the first suspect if she died was admissible in his murder trial pursuant to the forfeiture by wrongdoing doctrine, an exception to the rule against hearsay. The Wisconsin court held that the letter was admissible, but other courts have construed the forfeiture by wrongdoing doctrine more narrowly, finding it inapplicable to the statements of a murder victim in the defendant's trial for that victim's murder. The United States Supreme Court is set to soon decide whether the doctrine can be given the broader reading when it hears Giles v. California.
It will be interesting to see whether the Hong Kong court finds that the husband's statements were inadmissible hearsay or whether they met an exception similar to the forfeiture by wrongdoing doctrine. I don't have much familiarity with Hong Kong law, but according to Anthony Upham, Hong Kong Evidence Casebook, 35 Hong Kong L.J. 529, 530 (2005), Hong Kong does have a rule against hearsay which, like the American rule against hearsay, is subject to several exceptions.
April 15, 2008
Declare The Pennies On Your Eyes: Tax Case Reveals Interplay Between Rule 803(6) And Rule 1006
While I am completely clueless about all matters tax-related (I thank my wife Zoe for handling all of these matters), I thought I would do a tax-related post in (dis)honor of everybody's last favorite holiday: Tax Day (I'm sad to report that Chipotle is not doing its annual Free Burrito on Tax Day promotion this year). A "preference action" is a suit by a bankruptcy debtor, seeking recovery from a creditor of value received from the debtor during the so-called “preference period” immediately preceding the debtor's bankruptcy filing. The plaintiff in In re Teligent, Inc., 2006 WL 1030417 (Bkrtcy.S.D.N.Y. 2006), brought such an action against the County of Fairfax, Virginia, but those wily Northern Virginians defeated the action by introducing the 2000 Assessment Record for Teligent, its 2000 tax bill, and its 2001 Assessment Record.
The plaintiff objected that these documents were inadmissible under Federal Rule of Evidence 1006, which allows for a party to prove the contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court through the use of charts, summaries, or calculations, but only if the originals, or duplicates, are made available for examination or copying, or both, by other parties at reasonable time and place. And according to the plaintiff, the County of Fairfax never produced the relevant documents underlying the assessments reflected in these three documents. According to the court, however, the plaintiff "confused Rule 1006 with the business records exception to the hearsay rule contained in FED.R.EVID. 803(6)."
Under Federal Rule of Evidence 803(6), inter alia, a data compilation of conditions made from information transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the data compilation, is admissible as an exception to the rule against hearsay if properly authenticated. And as the court in Teligent properly found, "[w]here the 'summary' is itself a business record, it is admissible without regard to the requirements of Rule 1006." In other words, because the County of Fairfax as part of its regular practice of business, created tax-related data compilations, it could get these compilations admitted without having to show the plaintiff the original tax documents from which these compilations were created.
Minneosta Girl, Take 4: Dominic Jones Not Guilty Of Rape, Guilty Of Unwanted Sexual Contact With A Physically Helpless Woman
Dominic Jones, the former University of Minnesota football player accused of sexually assaulting an intoxicated 18 year-old woman, has been found not guilty of rape, but guilty of unwanted sexual contact with a physically helpless woman. I have previously written about the Jones trial on three previous occasions (here, here, and here). As my third post indicated, the prosecution presented strong evidence that Jones had some sexual contact with the victim, but it failed to present evidence of "sexual penetration." which is likely why Jones was found not guilty of rape. Jones' attorney has vowed to appeal the verdict on the ground that the trial judge improperly excluded evidence of sexual contact that the victim had with other U Minn football players on the night of the alleged rape, but as I noted in my first post, the judge likely properly excluded this evidence pursuant to Minnesota's strict rape shield statute.
April 14, 2008
The Ice Pick Murderer: Ohio Court Finds Statements By Victim Admissible In Roommate Murder Trial
Jury selection is expected to begin today in the trial of an Ohio woman accused of stabbing her roommate in the head with an ice pick, and those jurors selected will likely hear testimony concerning the victim's statements identifying the defendant as her assailant. Fifty-four year old Sandra Matthews-Johnson is accused of stabbing her roommate, Ottie Marie Tomlinson, below the left ear with an ice pick while the two fought in the home that they shared. The ice pick broke off inside Tomlinson's head, so medics did not find the wound until after the victim was taken to an area hospital. Matthews-Johnson was initially charged with assaulting Tomlinson, but those charges were upgraded to murder after Tomlinson died from her injuries a month later. Before she died, however, Tomlinson told police investigators that Matthews-Johnson stabbed her and wrote "Sandy" on a piece of paper in response to questions by the investigators about who attacked her. Attorneys for Matthews-Johnson argued that these statements were inadmissible hearsay, but Judge J. Timothy Campbell overruled these objections, paving the way for their likely admission at trial. This ruling was potentially correct, but also very possibly incorrect.
First, Tomlinson's statements were both hearsay under Ohio Rule of Evidence 801(c) in that they were statements, other than those made by the declarant while testifying, offered to prove the truth of the matter asserted: that Matthews-Johnson stabbed Tomlinson. Thus, those statements were only admissible if they met some applicable hearsay exception. Second, pursuant to the Supreme Court's opinion in Crawford v. Washington, the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. While courts are split as to when a hearsay statement is "testimonial," most hold that a hearsay statement is "testimonial" when the statement was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial. I think it is safe to say that any court would deem Tomlinson's statements "testimonial."
Thus, for Tomlinson's statements to have been admissible, they would have needed to meet some hearsay exception which also obviated any Confrontation Clause concerns. First, Tomlinson's statements could have constituted "dying declarations," which the Supreme Court has implied are admissible without regard for the Confrontation Clause. See Crawford, 541 U.S. at 56 n.6. Under Ohio Rule of Evidence 804(B)(2), statements by an unavailable declarant are admissible in a homicide or civil case if they were made by the declarant while believing that her death was imminent, concerning the cause or circumstances of what the declarant believed to be her impending death. Obviously, the question would be whether Tomlinson believed her death was "imminent" when she spoke with the police investigators, but it would seem to me that the fact that she lived for at least a month after the attack would indicate that she did not think her death was "imminent" when she spoke with the investigators. Of course, if Tomlinson spoke with the investigators soon before her death, it is possible that her statements were "dying declarations."
Second, Tomlinson's statements could have been admissible under the "forfeiture by wrongdoing" docrtine contained in Ohio Rule of Evidence 804(B)(6). Under this doctrine, a declarant's hearsay statements are admissible without regard to the rule against hearsay and the Confrontation Clause when the defendant's wrongdoing prevents the declarant from testifying at trial. Some courts have found that this doctrine applies only in the witness tampering situation where a defendant kills or otherwise renders a prospective witness unavailable after she allegedly committed the subject crime while other courts find that it also applies when the prospective witness is the victim herself. The Supreme Court is set to decide whether the doctrine can apply in this latter scenario in Giles v. California. That case, however, should have no effect on Ohio, which has already limited the doctrine to the first scenario on its own volition.
The Staff Note to Ohio Rule of Evidence 804(B)(6) indicates that "the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...." Thus, in State v. McCarley, 2008 WL 375842 (Ohio App. 9 Dist. 2008), the Court of Appeals of Ohio found that the doctrine did not apply to statements made by a murder victim in the defendant's trial for her murder. Thus, the forfeiture by wrongdoing doctrine seemingly would not apply to Matthews-Johnson's case.
April 13, 2008
In Seattle: Jewish Federation Shooting Case Prompts Several Evidentiary Rulings
A number of evidentiary issues have been raised by the trial of Naveed Haq, who has been charged with one count of aggravated murder, five counts of attempted aggravated murder and numerous other crimes — including the state's hate-crime law — for the July 28, 2006, attack on the Belltown office of the Jewish Federation of Greater Seattle. Haq has pleaded not guilty by reason of insanity.
The first issue revolved around Haq's 55 minute interview/confession to police, in which he discussed planning the rampage, his problems with Jewish people, and his bipolar disorder. King County Superior Court Judge Paris Kallas found this confession to be inadmissible because Haq made it only after police detectives denied six requests that he made to talk to a lawyer. This ruling makes sense because it is well established that "[o]fficers must cease questioning the moment a suspect makes an unequivocal request for an attorney." State v. Aronhalt, 994 P.2d 248, 251 (Wash. App. Div. 3 2000).
Defense attorneys also argued that other evidence that may have derived from Haq's statement should be disallowed as well, including search warrants of Haq's two residences. Judge Kallas, however, said those searches were legal even though affidavits police swore to were "made with a reckless disregard for the truth." Detectives, she said, had obtained information about the addresses from sources other than Haq's statement. Thus, Judge Kallas determined that the evidence found pursuant to the warrant, which included gun receipts and Internet research into Jewish organizations, was admissible. The basis for Judge Kallas' ruling is not entirely clear from the article on the trial, but it seems to me that she relied on the "independent source" doctrine, under which "[a] search warrant based on an affidavit that contains illegally obtained information may be valid if the affidavit contains facts sufficient to establish probable cause independent of the illegally obtained information." State v. Link, 150 P.3d 610, 617 (Was. App. Div. 2 2007). In other words, while the police affidavits were invalid, there were independent sources justifying the searches.
The final issue is whether defense attorneys will be able to preclude the state's expert forensic psychologist from testifying about anything potentially incriminating that Haq told him during a court-ordered examination. Defense counsel has argued that because the examination was ordered and Haq could not invoke his Fifth Amendment right to silence, any self-incriminating statements made during doctor interviews should be inadmissible at trial. Judge Kallas has not yet ruled on this issue, but I think there is a good chance she will reject this argument. This is because "court-ordered examinations regarding insanity have generally been found not to violate the Fifth Amendment." United States v. Davis, 93 F.3d 1286, 1295 n.8 (6th Cir. 1996). There, are, however, several factors which can change this analysis, so I hesitate to come to any conclusions without knowing the full facts of how the examination occurred.