Saturday, May 3, 2008
R & B superstar R. Kelly was dealt a serious blow in his upcoming child pornography trial after a pre-trial ruling by Judge Vincent Gaughan. As I noted in a previous post, the singer will soon go to trial to face charges stemming from allegedly taping himself having sex with a girl who may have been as young as 13 years-old at the time of the act. During closed pre-trial hearings, the prosecutors moved to present testimony at trial by a woman who allegedly will claim that she had a three-way sexual encounter with Kelly and the allegedly underage girl shown in the video. After hearing arguments from both sides, Gaughan ruled in favor of the prosecution and said testimony about the three-way would be admissible at trial.
While I don't have access to a transcript of the arguments because the hearings were closed, the ruling appears correct based upon one of two theories. First, while evidence of prior bad acts is inadmissible to prove that a person has a propensity to act in a certain manner and that the person thus acted in conformity with that manner at the time of the alleged crime, evidence of prior bad acts is admissible for other purposes, such as proving identity. See, e.g., People v. Contreras, 615 N.E.2d 1261 (Ill. App. 2 Dist. 1993). Thus, for instance, in Contreras, the Appellate Court of Illinois found that evidence that a defendant committed an incident of burglary and rape of certain victims was relevant and admissible to prove the identity of the defendant as the offender in earlier incident involving the same victims. See id. Similarly, in the R. Kelly case, probably the biggest issue is whether R. Kelly is actually the man in the video. The fact that R. Kelly allegedly previously had sexual relations with the same girl allegedly in the video helps to prove his identity as the man in the video, making testimony about the prior sexual relations admissible.
The second possible theory is that the evidence is admissible under 725 ILCS/115-7.3, which provides that defendants accused of crimes such as predatory criminal sexual assault of a child, aggravated criminal sexual assault, and criminal sexual assault can have evidence of the commission of similar acts introduced against them. Now the question is whether 725 ILCS/115-7.3 applies to defendants accused of crimes of child pornography, but I have found no cases applying it to such cases (or finding that it doesn't apply to such cases). I would guess that a court would find that 725 ILCS/115-7.3 does apply to child pornography cases, but based about the "identity" theory of admissibility mentioned above, Judge Gaughan likely didn't need to resolve this issue.
Friday, May 2, 2008
The recent Court of Appeals of Massachusetts opinion in Commonwealth v. McCarthy, 2008 WL 1810291 (Mass.App.Ct. 2008), contains what I feel is a correct application of the "emergency exception" to the warrant requirement. The facts of McCarthy were as follows: In May, 2006, Officer McGinnis was dispatched to the “Something Different” restaurant on a report of an unconscious woman. Upon arrival, he observed Linda M. McCarthy “thrashing” about on the floor. McCarthy was slurring her words and unable to communicate effectively, but McGinnis was able to discern that the she wanted help getting up and into a chair. McGinnis called for EMTs, who arrived and were able to move McCarthy to a sitting position in a chair. McCarthy's condition slightly improved, and the EMTs told McGinnis that they believed that McCarthy was suffering from a drug overdose. They then inquired whether McGinnis knew what McCarthy had taken, and McGinnis responded that he didn't know.
McGinnis then observed an open woman's handbag several feet from McCarthy and searched the handbag for drugs, the identity of which, if known, could assist the EMTs in treating McCarthy. Inside the handbag, he found two marijuana cigarettes and two amber colored vials that appeared to hold cocaine. McGinnis showed the drugs to the EMTs and seized the bag and its contents. McCarthy was then transported to the hospital by the EMTs. After the defendant was transported to the hospital, McGinnis had the vials “field tested,” and the test confirmed that the powder was in fact cocaine.
McCarthy was thereafter charged based upon her drug possession and moved to suppress the drugs obtained from the handbag on the ground that they were obtained without a warrant. The trial judge granted her motion, and the Commonwealth took an interlocutory appeal to the Court of Appeals of Massachusetts.
The Court noted that it was undisputed that the search of McCarthy's handbag was undertaken without probable cause, which under normal circumstances would have been considered an invalid warrantless search and seizure. It continued, however, that there is an "emergency exception" to the warrant requirement under which a warrant is not required when the purpose of a police search/seizure is not to gather evidence of criminal activity but rather to respond to an immediate need for assistance for the protection of life or property because of an emergency. The Court then noted that “[f]or the [emergency] exception to apply, the burden of proof is on the Commonwealth to show that the warrantless entry falls within the exception and that there were reasonable grounds for the ... police to believe (an objective standard) that an emergency existed."
The Court found that the first requirement was fulfilled because the purpose of the search was to assist the EMTs in treating McCarthy and "not to gather evidence of criminal activity." With regard to the second requirement, the Court found that there were "objectively reasonable grounds for McGinnis to believe that an emergency existed." It found so because "[i]n such medical emergencies, time is of the essence, requiring swift action." Specifically, there was no indication from the EMTs that McCarthy "was no longer in imminent and substantial danger. Despite the fact that [McCarthy] had slightly improved, at least to the point where the EMTs were able to place her in a chair, there still existed a real emergency that required immediate assistance for the protection of the [McCarthy's] life. In fact, the EMTs ultimately concluded that the situation was serious enough to warrant sending [McCarthy], by emergency transport, to the hospital for treatment."
Thursday, May 1, 2008
The conviction of Edwin Paredes for child endangerment resulting in serious injury has been upheld by the Iowa Court of Appeals in State v. Paredes. Paredes and his sixteen year-old girlfriend, Cassidy, were the parents of J.M. When J.M. was two months old, her parents noticed that the child was "twitching." Paramedics later determined that J.M. was having a seizure, and he was taken to a hospital emergency room. There, a pediatric intensive care physician diagnosed J.M. with "[s]haken baby syndrome, inflicted trauma." The physician predicted that the baby would have a very strong chance to be deaf, blind, and have significant motor delay if he was able to walk again as well as having continued problems with seizures later.
The hospital thereafter notified the Department of Human Services, and Edwin eventually confessed to shaking J.M., and he later affirmed his confession, albeit with some equivocation. Meanwhile, Cassidy contacted a Department social worker and stated that Edwin was not responsible for the child's injuries. She also stated that she was afraid that she might go to prison when she was eighteen if she said that she shook the baby. The social worker thereafter memorialized the conversation in an e-mail and transmitted it to a detective at the local police department.
Edwin was thereafter charged with child endangerment resulting in serious injury and attempted to introduce evidence about Cassidy's statements to the social worker. The trial court, however, found these statements were inadmissible hearsay which were not covered by the statement against interest exception to the rule against hearsay. On appeal, Edwin argued that the trial court improperly excluded evidence about Cassidy's statements.
The Iowa Court of Appeals noted that for Iowa Rule of Evidence 5.804b(3), the statement against interest exception, to apply, Edwin first had to establish that Cassidy was "unavailable" under Iowa Rule of Evidence 5.804a(1)-(5). The court noted that the only potentially applicable under which Cassidy could have been considered "unavailable" was Iowa Rule of Evidence 5-804(a)(5) under which a declarant is unavailable if she "[i]s absent from the trial or hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means." The court then found that Edwin did not satisfy this test.
It noted that after J.M.'s condition came to light, Cassidy, a minor, was placed in foster care. Edwin then moved to compel the State to provide him with Cassidy's address. The trial court then ordered the State to make Cassidy available to receive a subpoena, and Edwin subpoeanaed her for his original trial. That trial, however, was rescheduled, and the Iowa Court of Appeals noted that there was no indication that Edwin attempted to subpoena Cassidy again before this second trial. Thus, the court found that Edwin failed to establish that he took reasonable means to procure Cassidy's attendance.
It seems to me that the court held Edwin to an excessively high standard, which seems confirmed by the dissenting opinion. According to the dissenting judge, the trial judge actually found Cassidy "unavailable" and excluded evidence of her statement because it failed to meet the requirements of the statement against interest exception, not because Edwin failed to prove that she was unavailable. The majority opinion never explained why it went against this ruling, and without such a ruling, the majority opinion seems lacking.
Wednesday, April 30, 2008
The Michigan Supreme Court's recent opinion in People v. Barrett, 2008 WL 1701889 (Mich. 2008), contains an important discussion of what factual predicate must be established before a hearsay exception is applied. In Barrett, Suzanne Bartel, the longtime, live-in girlfriend of the defendant, David Carl Barrett, pounded on her neighbors' door, said that Barrett was chasing her with an ax, and asked to use their phone. Bartel was hysterical and crying, and her hysteria continued as she reported to the 911 operator that defendant had kicked the door in, beaten her, tried to strangle her, and brandished a hatchet.
When the first responding officer arrived, Bartel similarly told him that Barrett had punched a hole in the bedroom door, pinned her to the bed, began hitting her face, picked up a hatchet, grabbed her around the neck, raised the hatchet, and said he was going to kill her. The officer observed that Bartel was so agitated that she could not sit down and that it was apparent that Bartel had been crying. When he and other officers searched Bartel's house, they found the hatchet in the house and a 12-inch hole in one of the doors. The officers observed marks on Bartel's shoulders and one arm and a cut on the inside of her mouth.
Barrett was charged with domestic assault and felonious assault, but at the preliminary examination, Bartel refused to testify. Faced with the prospect of a dismissal of the charges because of insufficient proof, the prosecuting attorney attempted to have the statements Bartel made to the 911 operator, one of the neighbors, and the police officer admitted as excited utterances under Michigan Rule of Evidence 803(2). This rule is an exception to the rule against hearsay and allows for the admission of statements relating to startling events and conditions made while the declarant was under the stress of the startling event or condition.
According to defense counsel, however, the triggering startling event must be established by evidence solely apart from an excited utterance before the excited utterance can be admitted. The examining magistrate agreed with defense counsel and found that sufficient independent evidence of the alleged assault had not been presented and thus dismissed the charges against Barrett. The prosecution's appeal eventually reached the Michigan Supreme Court, which found that the question of whether the elements of the excited utterance exception have been established is a preliminary question of fact to be resolved under Michigan Rule of Evidence 104(a).
The Michigan Supreme Court noted that older Michigan cases indeed held that an alleged excited utterance itself could not be used as evidence that a startling event or condition occurred. The Court, however, noted that this was all changed by the United States Supreme Court's decision in United States v. Bourjaily, 483 U.S. 171 (1987), where it was determined in the context of co-conspirator's admissions that the alleged admission itself could be used as evidence that the person making the admission was in fact a co-conspirator of the defendant. The Michigan Supreme Court found that this same analysis applies to excited utterances and thus should have allowed for the admission of Bartel's statements as excited utterances, a decision which I think is proper and consistent with precedent from across the country.
Tuesday, April 29, 2008
Power Of The Press: 7th Circuit Finds Subsequent Remedial Measure Evidence Inadmissible In Class Action Suit Against the Trib
The Seventh Circuit's recent opinion in Pugh v. Tribune Co., 2008 WL 867739 (7th Cir. 2008), provides a nice illustration of the rule precluding the use of subsequent remedial measures to prove, inter alia, negligence or culpable conduct. In Pugh, shareholders of the newspaper publishing company the Tribune Company brought a securities class action against it, four of its executive officers, and five employees of its subsidiary, arising from fraudulent boosting of newspaper circulation figures at subsidiary in effort to increase advertising revenue. One of the plaintiffs' allegations was that the Tribune and the other defendants "intentionally or recklessly created weak circulation controls."
The plaintiffs attempted to prove a specific control deficiency by arguing that, unlike other publishers, the Tribune Company had not required that its circulation figures be certified before they were submitted to the Audit Bureau of Circulations. This allegation seized upon the Tribune Company's disclosure, at the end of an internal investigation, that in the future it would require certain executives to certify the accuracy of their newspaper's circulation figures. The Seventh Circuit, however, found that this evidence was inadmissible under Federal Rule of Evidence 407, which states in relevant part: "When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence [or] culpable conduct."
The reasoning behind this rule is that (1) the fact that a defendant adopts a subsequent remedial measure does not necessarily mean that prior measures were insufficient, and (2) we don't want to discourage defendants from making things safer. As the Seventh Circuit stated with regard to the Pugh case, "adding a certification requirement does not show that Tribune's existing controls were insufficient, much less that any individual defendant knew of or was recklessly indifferent to an actual, ongoing fraud."
Monday, April 28, 2008
Person Of Interest?: Eleventh Circuit Incorrectly Applies Statement Against Interest Hearsay Exception
The Eleventh Circuit's recent opinion in United States v. Westry, 2008 WL 1735384 (11th Cir. 2008), seems to me to apply the statement against interest exception correctly in one regard but incorrectly in another. In Westry, several defendants, including Willie Earl Crater Jr., were convicted of conspiracy to distribute controlled substances (and various substantive offenses), and had their sentences enhanced, inter alia, based upon the death of Jasen Johns while using drugs allegedly supplied by members of the conspiracy. The prosecution proved that Johns died while using drugs allegedly supplied by members of the conspiracy in part through hearsay statements made by Johns. Specifically, after establishing that Carter's nickname was "Bip," the prosecutor asked Johns' cousin, Michael Carpenter, about the events surrounding Johns' death, and the following exchange took place:
-Q. And when you left, what was going on there at the house?
-Q. And do you know who? * * *
-Q. Do you know who he was waiting on?
-Q. And when you left, had Bip arrived?
-A. Yeah. He was just coming in, and they went to the back.
At trial, Carpenter's attorney objected that Johns' statements were inadmissible hearsay, but the trial judge overruled his objection. On appeal, the Eleventh Circuit found that Johns' statements were admissible under Federal Rule of Evidence 804(b)(3), which allows for the admission of a statement by an unavailable declarant, "which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."
The Eleventh Circuit got one part of the analysis correct. It noted that Carpenter was claiming on appeal that Johns' statements (about drug purchasing/use) were not against his interest and did not expose him to criminal liability because they were made to his cousin, whom Johns had no reason to believe would implicate him. The Eleventh Circuit rejected this argument, claiming that it is unnecessary that the declarant know he was speaking to a person who could cause his prosecution. I agree with this analysis. The point of the statement against interest exception is not that the speaker believes his statement will actually expose him to criminal liability. The point is that there's good reason to believe a person when he makes statements admitting to blameworthy conduct.
On the other hand, the Eleventh Circuit got another part of the analysis very wrong. In Williamson v. United States, 512 U.S. 594 (1994), the Supreme Court made very clear that in applying the statement against interest exception, courts need to be very careful in parsing the declarant's statements and only admitting those statements that implicate the declarant while excluding those statements which implicate others. Looking back at Johns' statements, we see that his first statement is self-inculpatory because he admits that he's waiting to get drugs. His second statement, however, merely indicates that he was waiting for "Bip"/Carpenter. This statement in no way implicates Johns, but it does implicate Carpenter. Thus, the statement should have been deemed inadmissible.
Sunday, April 27, 2008
The Court of Appeals of Texas' recent opinion in Pitts v. State, 2008 WL 1747664 (Tex.App.-Houston 2008), provides a nice illustration of the "language conduit" rule. The facts of the case were as follows. In 2005, Antonio Morales was a passenger in the car of his cousin, the complainant, when they stopped at a red light. Lakeisha Ball, the former girlfriend of the defendant, approached the passenger side of the car and spoke to the complainant, who turned off the ignition and told Morales that they would leave in a minute. The defendant, however, suddenly appeared, placed a gun to Morales's head, and demanded the complainant's keys. The defendant and Ball then entered the back seat of the car, and the defendant gave the keys back to the complainant and told him to drive.
As they were driving, the complainant "apparently volunteered to interpret" and told Morales, who spoke no English, that the defendant said for Morales to give the defendant his money. Morales initially gave the defendant his money and then gave the defendant his wallet when the complainant told Morales that the defendant was demanding it, too. When they later stopped in a vacant lot, the complainant told Morales that the defendant said for Morales to get out of the car and to kneel down. Morales did so, thinking that the defendant was going to shoot him; instead, the defendant shot the complainant, who died from a single gunshot to the back of the chest. At trial, Morales testified about the statements the complainant translated from the defendant to him, and the defendant was convicted of capital murder.
On appeal, the defendant alleged, inter alia, that the trial court erred by permitting Morales to testify about the hearsay statements made by the complainant. The Court of Appeals of Texas, however, found that the statements were admissible pursuant to Texas Rule of Evidence 801(e)(2)(D), which allows for the admission of "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Traditionally, this Rule applies when an employee makes a confession which binds his employer, but it also allows for the admission of statements made under the "language conduit" rule, "whereby a translated statement of a defendant is admissible on the theory that the interpreter serves as an agent of, or a language conduit for, the declarant-defendant, thus rendering the statement the defendant's own admission."
The Court of Appeals then noted that Texas courts determine whether the "language conduit" rule applies based upon four factors: (1) which party supplied the interpreter; (2) whether the interpreter had any motive to mislead or to distort; (3) the interpreter's qualifications and language skill; and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated. The court then found most of the complainant's statements admissible based upon these factors (the subsequent actions were consistent, and the complainant had fluency in both languages and no motive to mislead).
Texas' application of the "language conduit" rule is consistent with case law in other states and several federal circuits, but not all courts gave adopted such a rule. See, e.g., State v. Rodriguez-Castillo, 151 P.3d 931, 937 (Or.App. 2007). I think, however, that as long as courts such as Texas courts can be diligent in ensuring that translated statements are reliable before admitting them, there is good reason for the universal adoption of such a rule.