EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, April 26, 2008

You're Getting Very Sleepy, Take 2: Baltovich Case Reveals Canada's Hostile Treatment Of Hypnotically Induced Evidence

Here on the EvidenceProf Blog, I've had a few opportunities to address how courts across this country treat hypnotically refreshed testimony.  In New York, hypnotically refreshed testimony is per se inadmissible.  Wisconsin uses a nine factor test in evaluating whether to admit hypnotically refreshed testimony.  South Dakota courts and courts in the Eighth Circuit Court of Appeals allow for the admission of hypnotically refreshed testimony as long as five procedural safeguards are satisfied.  And other courts across the country apply a variety of different tests in evaluating the admissibility of hypnotically refreshed testimony.

And what of our neighbors to the north?  This week's decision of a Crown prosecutor to concede the case against Robert Baltovich and not retry him provides an opportunity to address the issue.  In 1992, Baltovich was convicted of murder in the second degree in connection with his alleged killing of his girlfriend Elizabeth Bain.  In addition to other evidence, the testimony of two witnesses -- Marianne Perz and Suzanne Nadon -- helped lead to Baltovich's second degree murder conviction in 1992

Bain was last heard from at 4:00 P.M. on June 19, 1990, after telling her mother she was going to check the schedules at the tennis court at the Scarborough campus of the University of Toronto.  At trial, Perz testified that on the 19th, she saw Bain with a man at about 5:40 P.M. at picnic tables near the tennis courts. Three weeks after Bain disappeared, Perz agreed to be hypnotized.  At this point, Bain was already aware that Baltovich was a suspect and had seen his photo in a local newspaper.  After being hypnotized, Perz viewed a photo lineup and said the picture of Baltovich was the "closest" to looking like the man she saw at the picnic table.  Suzanne Nadon, who was also hypnotized, testified that she saw a couple arguing in the early morning hours of June 18th.  According to Nadon, the woman looked like Bain, and a car she saw was similar to a photo of the automobile Bain owned.

After Baltovich was convicted of murder in the second degree and served about eight years in jail, his lawyers appealed his conviction, and Baltovich was released on bail pending the outcome of his appeal.  Finally, on December 2, 2004, the Ontario Court of Appeal set aside Baltovich's conviction, delivering what news reporters called "a scathing attack" on the conduct of the original trial judge.  Baltovich was set to be re-tried, but, as I noted above, this week a Crown prosecutor to concede the case?  Why?

Well, the single worst blow to the prosecution was Canadian law's increasingly hostile treatment of evidence obtained through police-supervised hypnotism of prosecution witnesses.  Specifically, the Supreme Court of Canada adopted a hard line against prosecution hypno-evidence in their 2007 ruling in R. vs. Trochym, in which it adopted a new doctrine that such evidence should be generally excluded because of the potential for abuse.  In that case, the Court observed that "the officer who drove [a] witness to the hypnotist's office may have had a copy of the Toronto Sun on the seat of his cruiser. The front page of that edition had a large photo of the accused and identified him as the prime suspect in the murder. During the hypnosis session, the witness described the abused." This struck the Court hearing Stephen Trochym's appeal as powerful evidence that hitherto existing judicial safeguards, which were focused narrowly on what happens inside the hypnosis room, were not enough to ensure fairness to the accused.

Based upon this precedent, in pre-trial rulings in the Baltovich re-trial, the testimony of Perz and Nadon was ruled inadmissible because it was made after they were hypnotized, prompting the Crown prosecutor to drop the case.  While I don't know that much about hypnosis, I generally agree with the concern expressed in a Canadian article on the Baltovich case, which noted that "[a]ny stage hypnotist can tell you that hypnosis involves freeing the imagination and, above all, making the subject more suggestible. You don't need a doctorate in psychology to see why this might be a dangerous thing to do with a witness who is naturally eager to cooperate, play a heroic role and come up with the "right" answer the police are looking for.  Thus, I lean more toward the Canadian "hard line" approach to hypno-evidence than the American approach, which seems to freely admit the evidence as long as certain safeguards are satisfied.


April 26, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, April 25, 2008

What's The 411? Kentucky Court Finds Rule Of Evidence 411 Doesn't Cover Health Insurance

The Court of Appeals of Kentucky's recent opinion in Barkman v. Overstreet, 2008 WL 1052931 (Ky.App. 2008), contains an interesting discussion of Kentucky Rule of Evidence 411, which is identical to Federal Rule of Evidence 411.  Both indicate that "[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."  There are two main reasons for Rule 411.  The first reason is the belief that such evidence has low or no probative value on the issue of whether someone acted negligently/wrongfully.  According to the Advisory Committee Notes to Rule 411, "[a]t best the inference of fault from the fact of insurance coverage is a tenuous one, as is its converse."  In other words, in, say, a case where a guest is injured at a defendant's home, do we infer (1) that a person with homeowner's insurance is likely to keep his home less safe than someone without homeowner's insurance because he knows that he is covered in the event of an accident; or (2) that a person with homeowner's insurance is a person who desires safety and is thus likely to keep his home more safe than someone without homeowner's insurance?  According to the Advisory Committee, either inference is weak, making liability insurance inadmissible to prove/disprove negligence or otherwise wrongful conduct.

The second, "[m]ore important," concern according to the Advisory Committee Notes is the concern "that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds."  In other words, in the case mentioned above, jurors might ignore the absence of evidence of negligence on the homeowner's part if they know that he has homeowner's insurance  because they know that a judgment against him will not come directly out of his pocket.  Conversely, if the guest is seeking significant monetary damages, and the jurors know that the defendant has no homeowner's insurance, they might ignore significant evidence of negligence based upon the knowledge that a verdict against the defendant could put him in financial distress.

So, how does this all relate to the Overstreet case? Well, in Overstreet, while Tammy Barkman was driving her car, a large tree limb fell on her car, crushing the top of the vehicle and causing Barkman to lose control and wreck. She was thereafter transported to the emergency room at Ephraim McDowell Regional Medical Center, and upon admittance,  Barkman could move her arms and legs but was complaining of pain all over her body.  Barkman was initially examined and treated by Dr. John Heiss, who later contacted Dr. David Overstreet, her primary care physician.  Dr. Overstreet thereafter examined and treated Barkman.  However, despite receiving treatment, Barkman permanently suffered paralysis of all four limbs and filed a medical malpractice action against Ephraim McDowell Regional Medical Center, Heiss and Overstreet. 

At trial, Barkman's attorney asked Overstreet, "OK, so you are saying that you just made up this loss of consciousness?"  He responded, "I didn't make it up. I didn't make it up. But, uh, you know, the insurance companies and you guys are the ones that force us into these pigeon holes."  Barkman thereafter asked the trial court to declare a mistrial because Overstreet had intentionally mentioned insurance, but the trial court denied Barkman's request and also denied her request for an admonition regarding Overstreet's use of the word "insurance."  On appeal, the Court of Appeals of Kentucky affirmed, finding that:  "Placing Overstreet's remark into its proper context, it becomes apparent that Overstreet was referring to health insurance not liability insurance. Because KRE 411 applies only to liability insurance, we conclude the trial court did not abuse its discretion when it denied Barkman's motion for a mistrial and her request for an admonition."

So, did the court rule correctly?  I believe that it did.  Essentially, liability insurance is insurance that pays on behalf of the insured for certain types of injuries to others.  Health insurance does not seem to fall under that definition of liability insurance, so the Kentucky court's ruling seems correct and consistent with the rulings of courts in other states. See, e.g., Cervantes v. Rijlaardsam, 949 P.2d 56, 58 (Ariz.App. Div. 2 1997) ("Second, Evidence Rule 411 specifically applies to 'insurance against liability' and does not mention health insurance.").


April 25, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2008

OK Computer: Ninth Circuit Finds No Reasonable Suspicion Required For Search Of Laptop At Customs

On July 17, 2005, forty-three-year-old Michael Arnold arrived at Los Angeles International Airport after a flight from the Philippines.  Arnold proceeded to customs, where Officer Laura Peng selected him for secondary questioning. Upon questioning, Arnold stated that he was on vacation for three weeks visiting friends in the Philippines.  Peng then inspected Arnold's luggage, which included his laptop computer and related equipment.  When the computer had booted up, Peng and Officer John Roberts clicked on Kodak folders on the computer, opened the files within them, and viewed photos in the files, including one that depicted two nude women. Roberts called in supervisors, who in turn called in special agents with the United States Department of Homeland Security, Immigration and Customs Enforcement. These agents questioned Arnold about the contents of his computer, detained him for several hours, and examined his computer equipment and found numerous images depicting what they believed to be child pornography. The officers seized the computer and equipment but released Arnold. Two weeks later, federal agents obtained a warrant to search the computer and apparently found child pornography, leading to several child pornography-related charges being leveled against Arnold.  Arnold moved to suppress the images found of his computer on the ground that they were found through a search conducted without reasonable suspicion, and the district court granted his motion.  On appeal, however, the Ninth Circuit reversed.

Why did they do so?  Well, generally, "[t]he luggage carried by a traveler entering the country may be searched at random by a customs officer ... no matter how great the traveler's desire to conceal the contents may be." United States v. Ross, 456 U.S. 798, 823 (1982).  As the Ninth Circuit noted, though, Arnold raised three arguments as to why reasonable suspicion should be required before search of laptop computers at customs:

     -(1) a laptop computer is distinguishable from other containers of documents based on its ability to store greater amounts of information and its unique role in modern life;   

     -(2)  laptop computers are similar to "homes" and the "human mind" and fundamentally different from traditional closed containers; and

     -(3) the risk is high with a laptop search that expressive material will be exposed.

The Ninth Circuit characterized Arnold's first argument as the argument that the principle that "as a search becomes more intrusive, more suspicion is needed” in the context of a search of the human body should be applied as a sliding intrusiveness scale to determine when reasonable suspicion is needed to search property.  The Ninth Circuit then rejected this argument, finding that it had expressly repudiated this type of "least restrictive means test" in the border search context.  The court further found that neither the "exceptional damage to property" exception nor the "particularly offensive manner" exception to the government's broad border search powers applied to the search of the laptop.  With regard to the latter exception, the court found that case law did not support a finding that a search which occurs in an otherwise ordinary manner, is "particularly offensive" simply due to the storage capacity of the object being searched.

With regard to Arnold's second argument, the Ninth Circuit noted that in Carney v. California, 471 U.S. 386 (1985), the Supreme Court rejected the argument that evidence obtained from a warrantless search of a mobile home should be suppressed because it was  "capable of functioning as a home."  It noted that the Supreme Court refused to treat a mobile home differently from other vehicles because

     -(1) a mobile home is “readily movable;" and

     -(2) "the expectation [of privacy] with respect to one's automobile is significantly less than that relating to one's home or office."

     The Ninth Circuit then found that beyond the simple fact that one cannot live in a laptop, Carney militated against the proposition that a laptop is a home because

     -(1) a laptop goes with the person, and, therefore is "readily mobile;" and

     -(2) one's “expectation of privacy [at the border] ... is significantly less than that relating to one's home or office."

Third, the Ninth Circuit rejected Arnold's First Amendment argument and sided with the Fourth Circuit's opinion in United States v. Ickes, 393 F.3d 501, 502 (4th Cir. 2005), where that court upheld a search of a defendant's van as he was entering the U.S. from Canada and rejected the defendant's argument that the court should carve out a First Amendment exception to the border search doctrine because such a rule would:

     -(1) protect terrorist communications "which are inherently 'expressive';"

     -(2) create an unworkable standard for government agents who "would have to decide-on their feet-which expressive material is covered by the First Amendment;" and

     -(3) contravene the weight of Supreme Court precedent refusing to subject government action to greater scrutiny with respect to the Fourth Amendment when an alleged First Amendment interest is also at stake.

I'm not especially comfortable with the court's ruling, but it seems to me that the three arguments raised by Arnold were lacking in merit.


April 24, 2008 | Permalink | Comments (0) | TrackBack (0)

The Ice Pick Murderer, Take 2: Tomlinson Identified Her Assailant Shortly Before Being Placed In Induced Coma

Back on April 14th, I wrote a post about the trial of Sandra Matthews-Johnson, the Ohio woman accused of stabbing her roommate, Ottie Marie Tomlinson, below the left ear with an ice pick.  I noted that the trial judge permitted the prosecution to introduce into evidence oral and written statements made by Tomlinson identifying Matthews-Johnson as her assailant, likely as dying declarations.  The potential problem with this ruling that I identified was that for a statement to be admissible as a dying declaration, it must have been made while the speaker believed her death to be imminent, and Tomlinson lived for over a month after the stabbing.  I wrote then:  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."

It appears that this last statement was indeed true, making the trial judge's ruling proper.  Apparently, Tomlinson's written identification of Matthews-Johnson as her assailant to police officers was made  while she was intubated, and shortly thereafter, doctors placed her in an induced coma from which she never recovered.  Thus, it appears that Tomlinson likely did believe that he death was imminent when she identified Matthews-Johnson, making her identification admissible as an dying declaration.


April 24, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2008

Forfeit Victory, Take 5: Fallacious Dying Declaration Argument Raised In Giles Oral Arguments

Yesterday, the United States Supreme Court heard oral arguments in Giles v. California, the case raising the issue of whether the forfeiture by wrongdoing doctrine extends to cases where a party (usually the defendant) caused a prospective witness to be unavailable for trial but did not specifically intend to render the prospective witness unavailable (for example, it's tough to argue that a man who allegedly killed his ex-girlfriend had the specific intent of rendering her unavailable for his subsequent trial for murdering her).  So, how did things go?  Will, it looks to me like a mixed bag.  Chief Justice Roberts seemed somewhat skeptical of the argument of Giles' counsel for a more limited application of the forfeiture by wrongdoing doctrine, noting that under this reading of the doctrine, a murderer "gets a great benefit from murdering her. . . . Her testimony is not available. We usually, under our system, don't try to give benefits for murderers."  On the other hand, Justice Kennedy challenged the state's argument that specific intent is not required.  Kennedy responded to the state's argument by saying, "I think it's an astonishingly broad exception you're asking for."  According to Kennedy, it would allow the kind of secondhand "hearsay" testimony the court had barred in the 2004 ruling in Crawford v. Washington, 541 U.S. 36 (2004).

Richard Friedman, who attended the oral arguments, has some great posts about what transpired.  And according to him, Giles’ counsel (Marilyn Burkhardt) gained some traction with an historical argument that was emphasized especially in the amicus brief of the National Association of Criminal Defense Lawyers – that if forfeiture was as broad at the time of the framing of the Sixth Amendment as California contends, there would have been no need for a dying declaration that applied only when the victim believed death was imminent.  This leads me to repeat my argument that this position is nonsensical.  In other words, even if we apply a version of the forfeiture by wrongdoing doctrine that does not contain a specific intent requirement, the doctrine would not swallow up the dying declaration exception, as some judges have contended.  Why?

Well, let's say that a man allegedly murders his ex-girlfriend and her family subsequently sues him for wrongful death.  At trial, the plaintiffs' attorney seeks call an EMT to testify that he came upon the victim and informed her that her death was imminent, whereupon she told him that her ex-boyfriend shot her.  And let's say that the other evidence in the case does not yet support a finding that the defendant killed the victim.  Here, even under the version of the forfeiture by wrongdoing doctrine not requiring specific intent, the victim's statements will not be admissible against the defendant because it has not been established by a preponderance of the evidence that the defendant killed the victim and caused her unavailability.  However, the victim's statement would almost certainly qualify as a dying declaration under Federal Rule of Evidence 804(b)(2) and state counterparts because it would be a statement by the declarant about the cause or circumstances of her impending death while she believed her death was imminent.

As I've previously stated, I support a reading of the forfeiture by wrongdoing doctrine which does not contain a specific intent requirement, but I can certainly see the opposing argument, so I won't be upset if the Supreme Court goes in the other other direction.  But I will be upset if they base it upon the argument that  a version of the forfeiture by wrongdoing doctrine that does not contain a specific intent requirement swallows up the dying declaration exception because that conclusion doesn't hold water.


April 23, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 22, 2008

Blame Canada: Legal Experts Expect Supreme Court Of Canada To Get Rid Of Per Se Rule Excluding Illegally Obtained Evidence

Will the Supreme Court of Canada use the case of 18 year-old Donnohue Grant to rewrite the rules on when illegally obtained evidence is nonetheless admissible at trial?  Apparently, that's the consensus among the movers and shakers in Canadian legal circles.  One late autumn afternoon in 2003, Toronto Police officers grew suspicious as they watched Grant amble along a sidewalk in Toronto's east end, not far from several schools.  The officers observed Grant acting "nervous" and "twitchy" and thus stopped and questioned him for six minutes.  Whether acting out of fear, intimidation or simple honesty, Grant thereafter blurted out, "I have a firearm" and emptied his pockets, revealing a loaded gun and a bag of marijuana.  The Ontario Court of Appeal found that his rights were violated, yet it upheld the conviction and the 18-month sentence because of the seriousness of the evidence found by the officers.

On April 24th, the Supreme Court of Canada will hear Grant's appeal, with the main issue being that the Court of Appeal's decision rolled back rights that have been established since the Supreme Court of Canada's revolutionary 1997 ruling in R v. Stillman.  Before considering that case, let's look at how Canada handles illegally obtained evidence.  "A multi-factored test is used to determine whether illegally obtained evidence will be excluded in Canada: (1) whether the admission of the illegally obtained evidence affects the fairness of the trial; (2) the serious of the violation; and (3) whether the exclusion of the evidence calls the administration of justice into disrepute." Wesley MacNeil Oliver, Toward a Better Categorical Balance of the Costs and Benefits of the Exclusionary Rule, 9 Buff. Crim. L. Rev. 2001, 259 (2005).  So, what did R v. Stillman add to this framework?  It held that "[t]he admission of conscriptive evidence, evidence that emanates from the body of a person, is regarded to affect the fairness of the trial if the evidence is unlawfully gathered." Id.  In other words, illegally obtained conscriptive evidence is per se inadmissible pursuant to R v. Stillman.  And because "[c]onscriptive evidence includes confessions," id., Grant's confession that he had a firearm would be inadmissible.

So, why do Canadian legal experts think that the high court will circumscribe the ruling from R v. Stillman?  Well, Stillman was a product of Chief Justice Antonio Lamer's court, a bench which consistently stood up for the rights of the criminally accused.  Conversely, under the leadership of new Chief Justice Beverley McLachlin - who dissented in the Stillman decision - that willingness has been fading fast.    


April 22, 2008 | Permalink | Comments (0) | TrackBack (0)

Forfeit Victory, Take 4: Supreme Court To Hear Oral Arguments In Giles Case Today

I've written several previous entries (here, here, and here) about Giles v. California, the case in which the United States Supreme Court will decide the contours of the forfeiture by wrongdoing doctrine (I've also addressed the forfeiture by wrongdoing doctrine in a series of posts:  here, here, here, here, here, here, and here).  Well, today is the day that the Supreme Court will hear oral arguments in the case, with a decision expected by late June.  One of the main issues that the Court is expected to resolve is whether the party seeking to invoke the forfeiture by wrongdoing doctrine must establish that the opposing party specifically intended to prevent a prospective witness from testifying or merely that the opposing party caused a prospective witness to be unable to testify, irrespective of intent.

Put another way, "[i]n Crawford v. Washington, 541 U.S. 36, 62 (2004), this Court recognized that the forfeiture by wrongdoing rule “extinguishes confrontation claims on essentially equitable grounds.” The question presented by this case is:  Does a criminal defendant “forfeit” his or her Sixth Amendment Confrontation Clause claims upon a mere showing that the defendant has caused the unavailability of a witness, as some courts have held, or must there also be an additional showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?"

Personally, I agree with the position of my colleague Ralph Ruebner, who, along with law student Eugene Goryunov, argues that intent is not required in a forthcoming article.  It also bears repeating that an amicus brief has been filed calling for special treatment for statements made by children.  I will be following what transpires in the case and reporting, but the best coverage you're going to find is on Professor Richard Friedman's Confrontation Blog.


April 22, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, April 21, 2008

Misplaced Expertise: Indiana Court Makes Seemingly Erroneous Rule 703 Ruling

The Court of Appeals of Indiana's recent opinion in Newbill v. State, 2008 WL 1734897 (Ind.App. 2008), contains a seemingly disastrous oversight.  In Newbill, Lawrence E. Newbill was convicted of the rape of "H.R."  After the alleged rape, H.R. was taken to the hospital and subjected to a ninety-minute examination by Patricia Farrell, a trained and certified sexual assault nurse examiner (“SANE”).  At Newbill's trial, Farrell testified that she was not treating H.R. or obtaining a medical diagnosis, but instead was collecting evidence.  She also testified that, inter alia

   •H.R.'s vagina area was "extremely red ... and very irritated;"
   •The area where Farrell observed the irritation was "very painful and had been since" the  intercourse with Newbill, according to H.R.;
   •The area was "more red than normal" and might "very well" reflect "forced sex," sex without the "normal lubrication" of consensual sex;
   •The “whole” vaginal area was more red than normal; the labial area was “very reddened”; and the cervix was also red; and
   • The red and irritated areas indicated to Farrell that H.R. had suffered sexual trauma.

Defense counsel did not object to this testimony at trial, but on appeal he contended, inter alia, that H.R.'s statements to Farrell constituted inadmissible hearsay and that Farrell's testimony concerning those statements (such as in second passage listed above) was improperly admitted at trial.  The Court of Appeals of Indiana first noted that defense counsel was correct that H.R.'s statements did not qualify as admissible statements for the purposes of medical treatment/diagnosis under Indiana Rule of Evidence 803(4)  because of Farrell's admission that she was collecting evidence, not treating or diagnosing H.R.  Indeed, the court found that H.R.'s statements did not qualify for admission under any hearsay exception.

The court, however, found that Farrell testified as an expert witness and noted that under Indiana Rule of Evidence 703, an expert may rely on facts “made known to the expert” in reaching her expert opinion.  It then noted that Farrell relied upon H.R.'s statements in reaching her opinions and concluded that Farrell's testimony regarding H.R.'s account of the sexual act was properly admitted based upon Farrell's status as an expert witness.  So, what was the oversight?  One answer is that the court ignored the second, most important sentence of Indiana Rule of Evidence 703

The first sentence of Rule 703 does indicate that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing."  But the second sentence, which the court ignored, indicates that "[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field."  In other words, the prosecution needed to affirmatively establish that sexual assault nurse examiners reasonably rely upon the hearsay statements of alleged victims in reaching their conclusions. See, e.g., Mills v. Berrios, 851 N.E.2d 1066, 1073 (Ind.App. 2006).  The first problem with the court's opinion in Newbill is that the court never explained whether or how this requirement was met.  In the end, though, I don't think that this omission was a huge deal because I think a good argument could be made that such reliance is reasonable.

The second problem, however, does seem to be a big deal.  While Indiana Rule of Evidence 703 allows an expert to testify about her opinions "based on [inadmissible] material not before the trier of fact, it does not expressly provide a vehicle by which the trier of fact can learn of the underlying material." Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 95 (Ind.App. 2005).  In other words, while Farrell possibly could have testified about her opinions based upon what H.R. told her, she could not testify, as she did, about what H.R. actually told her. See id. ("M.M. correctly argues such hearsay cannot serve as substantive evidence to support an involuntary commitment.").  Thus, the opinion in Newbill seems to violate the Indiana Rules of Evidence.

(Readers should not that Indiana Rule of Evidence 703 is thus different from Federal Rule of Evidence 703, which provides that "[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.").


April 21, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 20, 2008

Another State Of Mind, Take 3: Jean Pierre Orlewicz Found Guilty Of First Degree Murder (And Another "Scarface" case)

I've written twice before (here and here) about the murder trial of Jean Pierre Orlewicz and Alexander Letkemann, who were accused of murdering and beheading Daniel Sorensen.  Well, that trial ended this week, with Letkemann pleading guilty to second degree murder and them testifying against Letkemann, who was found guilty of first degree murder.  There weren't any more interesting legal rulings in the case, but as I noted in my last post, the judge in the case made a pretrial ruling to exclude evidence such as images from "Scarface" that Sorensen posted on his MySpace page.  I noted that I thought that the ruling was correct because any probative value that the images had was substantially outweighed by their prejudicial effect, making them inadmissible under Michigan Rule of Evidence 403 (depending on how defense counsel planned to use the images, they could also have constituted impermissible character evidence).

Well, the First Circuit Court of Appeals recently affirmed a ruling of the United States District Court for the District of Massachusetts that came to the opposite conclusion.  In United States v. Marin, 2008 WL 1069800 (1st Cir. 2008), Antonio Marin was convicted by a jury of possessing a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. Section 924(c).  This conviction came after the DEA used a cooperating witness known as “Gijo” to make a series of cocaine purchases from Marin in the birthplace of basketball (and me), Springfield, Massachusetts.  Simultaneous with the arrest, other DEA agents executed a search warrant at Marin's apartment, where they found 770-775 grams of cocaine, a digital scale, packaging materials, and a loaded .38 caliber semiautomatic handgun with a defaced serial number and a spare clip loaded with .38 caliber ammunition.

The issue at trial, then, was whether Marin possessed the firearm "in furtherance of" his drug trafficking or whether his firearm possession was unrelated to his drug trafficking.  During his opening statement, defense counsel set forth the defense theory that Marin was simply "interested in guns" and that he had a "casual interest" in guns.  The prosecution sought to rebut this argument at trial by introducing something else found in Marin's apartment:  a "Scarface" shadowbox containing a picture of actor Al Pacino portraying a violent drug dealer, with a replica gun, cigar and money under the photo; and a poster of Pacino aiming a machine gun (I would guess it was this shadowbox).  Defense counsel did not object to this evidence at trial, but he claimed on appeal that the evidence was inadmissible, either as irrelevant under Federal Rule of Evidence 401 or because its probative value was substantially outweighed by its prejudicial effect under Federal Rule of Evidence 403

The First Circuit, however, found that there was no plain error by the district court in admitting the evidence.  Instead, it found that the government properly "used the evidence solely to rebut the 'casual interest' argument because of the reference made by the defense."  The First Circuit "agree[d] with the defendant to the extent that, in some circumstances, the government's reliance on the 'Scarface' evidence might be improper."  In Marin, however, the court found that "there was some probative value to the evidence, that of rebutting a defense theory which had been previewed to the jury in the opening statement, that relied on similar evidence."  The court finally found that "[i]n view of the evidence's legitimate use and in light of the other evidence in the case, [it could] not say that the danger of unfair prejudice substantially outweighed the probative value of the evidence."

Really?  If I were a judge and presented with a "Scarface" shadowbox found in a defendant's apartment, here's what I might think:  (1) the defendant is a fan of the movie (many are); (2) the defendant is a fan of director Brian De Palma (maybe, unlike me, he could have even sat through all of "Redacted"; (3) the defendant is a fan of actor Al Pacino (maybe if he weren't incarcerated, he would have been one of the brave few to check out the critically reviled "88 Minutes" this weekend); (4) the defendant is a fan of actress MIchelle Pfeiffer (maybe he would have even Netflixed the direct-to-DVD "I Could Never Be Your Woman"); (5) the defendant is a fan of screenwriter Oliver Stone (maybe he could have even tolerated "Alexander"); and/or (6) the defendant is a fan of gangsters/gangster movies in general (so, he would likely have checked out Michael Mann's forthcoming "Public Enemies," and he almost certainly would have caught De Palma's proposed "The Untouchables: Capone Rising"

And that's pretty much it.  Okay, if you twisted my arm, I might say that the shadowbox reveals that the defendant had a casual interest in guns, which was Marin's defense.  But does it reveal a more than a casual interest in guns, as the First Circuit concluded?  In the immortal words of John McEnroe, "You cannot be serious!"  And if you are, then the NRA should be recruiting much more actively on college campuses because there are thousands of students across the country with Tony Montana posters on their dorm walls just waiting to become the next Charlton Heston.


April 20, 2008 | Permalink | Comments (0) | TrackBack (0)