May 10, 2008
Forfeit Victory, Take 6: Another Example To Reject The Dying Declaration Argument
Previously, I wrote about the erroneous argument raised in oral arguments in Giles v. California about how reading a specific intent requirement out of the forfeiture by wrongdoing doctrine would swallow up and render useless the dying declaration. As I noted in that post, there is at least one situation where the dying declaration exception would apply but a forfeiture by wrongdoing exception without a specific intent requirement would not. Well, a question by a student regarding my upcoming Evidence exam has raised another clear example. That question was whether the dying declaration exception can apply even if the declarant doesn't die. The answer is that the exception can still apply, at least in a civil case.
Let's say that the defendant, Dan, is alleged to have violently attacked the victim, Victoria. Victoria is seriously injured by the attack and thinks that she is on the verge of death (maybe an EMT even tells her that it doesn't look like she is going to make it). She informs a bystander or medical services provider that Dan or someone with his physical characteristics attacked her. Despite Victoria thinking that she was going to die, a doctor is able to perform his magic, and Victoria makes it.
A civil suit is filed by Victoria and/or her family against Dan, but Victoria is "unavailable" to testify at trial as defined under Federal Rule of Evidence 804(a) and state counterparts, with her unavailability not being caused by the assault. Maybe, for instance, she is later in a car accident and dies (Rule 804(a)(4)), or maybe she is senile and can no longer remember what happened (Rule 804(a)(3)).
In such a case, the forfeiture by wrongdoing doctrine, even without a specific intent requirement, would not apply because even if there were strong evidence that it was Dan who attacked Victoria, Dan would not have caused her unavailability to testify at trial, a requirement for application of the doctrine. On the other hand, the dying declaration exception under Federal Rule of Evidence 804(b)(2) (and state counterparts) states that "[i]n a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death" is admissible as an exception to the rule against hearsay as long as the declarant is "unavailable."
Here, we have a civil action and a statement made by Victoria while believing her death was imminent which concerned the cause or circumstances of what she believed to be her impending death. While Victoria did not actually die, this fact is irrelevant; all that is needed is for the declarant to be unavailable, whether as a result of the incident prompting the dying declaration or as the result of some later event.
Thus, as I noted before, there is absolutely no reason for the Supreme Court to find that the forfeiture by wrongdoing doctrine contains a specific intent requirement based upon the belief that ruling otherwise would render the dying declaration exception meaningless.
Recalculating: Tennessee Police Placed GPS Device On Jeep Of Alleged "Wooded Rapist" Without A Warrant
Tennessee authorities have apprehended Robert Jason Burdick, the man they suspect of being the "Wooded Rapist," who raped 13 women. The method of apprehending him, however, may jeopardize their case against him. The 38 year-old Burdick has been charged with four rapes and two attempted rapes and is suspected of committing 13 rapes between 1994 and 2008. Most of those crimes were committed in homes that were near wooded areas, leading to its perpetrator being dubbed the "Wooded Rapist."
Burdick first became a suspect in these crimes on April 28th after police received a report of a masked man in a subdivision and an officer saw Burdick walking through the neighborhood and getting into a Jeep. The officer questioned Burdick, but he refused a search of his vehicle. Subsequently, officers, who were conducting 24-hour surveillance of Burdick, placed a GPS tracking device on his Burdick's Jeep even though they did not have a warrant.
Using the device, the officers tracked Burdick for two days, during which they, inter alia, followed him to the restaurant Tee Gees, took silverware, a plate, and a cup he had used, and got samples of his DNA. Police Chief Ricky Watson has said that the DNA matched evidence discovered at the "Wooded Rapist" crime scenes.
According to Watson, police did not need a warrant to place the tracking device on Burdick's vehicle. He would not say when or where the GPS unit was hidden on the Jeep, but said he it was done in a public place. "It's absolutely legal to do it," Watson said. "You can't do it when it's on private property." Defense attorney David Raybin, however, countered this argument by saying that the police might have jeopardized their case by using the tracking device without a warrant, which could be construed as a violation of the Fourth Amendment. So, who is right?
Well, Watson has some support for his argument. A defendant seeking the suppression of evidence under the Fourth Amendment must demonstrate a legitimate expectation of privacy in the place or property searched. Several courts have held that police do not need a warrant before affixing a GPS to a person's automobile because a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. See, e.g., People v. Gant, 802 N.Y.S.2d 839, 846 (N.Y.Co.Ct. 2005). According to these courts, there is no unwarranted intrusion with a GPS device because the same result could be achieved through police officers conducting a visual surveillance of a defendant's vehicle as it travels on the public highways. See id.
On the other hand, I agree with those arguing that a warrant is required, a position eloquently defended by the Supreme Court of Washington in State v. Jackson, 76 P.3d 217 (Wash. 2003). In Jackson, the Court concluded:
"We do not agree that use of the GPS devices to monitor Mr. Jackson's travels merely equates to following him on public roads where he has voluntarily exposed himself to public view.It is true that an officer standing at a distance in a lawful place may use binoculars to bring into closer view what he sees, or an officer may use a flashlight at night to see what is plainly there to be seen by day. However, when a GPS device is attached to a vehicle, law enforcement officers do not in fact follow the vehicle. Thus, unlike binoculars or a flashlight, the GPS device does not merely augment the officers' senses, but rather provides a technological substitute for traditional visual tracking. Further, the devices in this case were in place for approximately two and one-half weeks. It is unlikely that the sheriff's department could have successfully maintained uninterrupted 24-hour surveillance throughout this time by following Jackson. Even longer tracking periods might be undertaken, depending upon the circumstances of a case. We perceive a difference between the kind of uninterrupted, 24-hour a day surveillance possible through use of a GPS device, which does not depend upon whether an officer could in fact have maintained visual contact over the tracking period, and an officer's use of binoculars or a flashlight to augment his or her senses." Id. at 223 (emphasis added).
The Court went on to note that:
"the intrusion into private affairs made possible with a GPS device is quite extensive as the information obtained can disclose a great deal about an individual's life. For example, the device can provide a detailed record of travel to doctors' offices, banks, gambling casinos, tanning salons, places of worship, political party meetings, bars, grocery stores, exercise gyms, places where children are dropped off for school, play, or day care, the upper scale restaurant and the fast food restaurant, the strip club, the opera, the baseball game, the 'wrong' side of town, the family planning clinic, the labor rally. In this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles. The GPS tracking devices record all of these travels, and thus can provide a detailed picture of one's life." Id. (emphasis added).
Furthermore, the Jackson opinion doesn't seem reliant on the public/private dichotomy invoked by Watson. See id. Unfortunately, I have not been able to locate any Tennessee cases on point, but maybe authority supporting Watson's argument is eluding me. What do readers think? Should police officers be required to get a warrant before putting a GPS device on a person's automobile?
[UPDATE: Apparently, police did not put the GPS device on Burdick's Jeep until after they collected his DNA at the restaurant]
May 9, 2008
Not In My Courtroom: Oklahoma Bill Requires Plaintiffs Claiming Professional Negligence To Attach Expert Affidavits
Oklahoma is trying to make it more difficult for potential plaintiffs to file lawsuits containing allegations of professional negligence. Pursuant to House Bill 2458, a potential plaintiff in a civil lawsuit for professional negligence (most often medical malpractice) must attach to his petition an expert affidavit attesting that a "reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant … constituted professional negligence." The affidavit must specifically indicate that the plaintiff has consulted a qualified expert who has reviewed the available records and other facts, and that the qualified expert has provided a written opinion stating that the facts support a finding that the defendant was professionally negligent.
The bill would provide for dismissal of the suit without prejudice if the affidavit is not attached and states that the affidavit would not be admissible in court. Ostensibly, the new bill is part of the state's continuing effort to prevent frivolous lawsuits from wasting court resources, an effort which was started back in 2004 when similar legislation only applying to medical malpractice was enacted (and was subsequently thrown out by the state supreme court for being too narrowly tailored). This new bill, however, covers all kinds of professional negligence and thus presumably covers, inter alia, attorney malpractice.
Now, some of you may be wondering why this new sine qua non of a professional negligence lawsuit -- the affidavit -- is itself inadmissible according to the bill. Well, presumably it is because, like its federal counterpart (Federal Rule of Evidence 704), 12 Okl.St.Ann. Section 2704 permits expert opinion evidence that embraces ultimate issues in a case but precludes expert opinion evidence that embraces ultimate legal conclusions. In other words, an expert could opine that a plaintiff was injured when a doctor operated on him too soon after he had eaten (an ultimate issue in a medical malpractice case) but could not testify that the doctor's actions constituted medical malpractice (an ultimate legal conclusion).
May 8, 2008
It's What You Did To Me: Supreme Judicial Court Of Maine Vacates Assault Conviction Based Upon Improperly Excluded Character Evidence
The Supreme Judicial Court of Maine has vacated the misdemeanor assault conviction of Michael R. Laferriere in State v. Laferriere, 2008 WL 1723709 (Me. 2008), based upon the conclusion that the trial judge improperly excluded evidence of past violent acts by the victim. In August 2006, Laferriere and the victim, his then girlfriend, engaged in a physical altercation in their shared residence. The Sheriff's Department was called, and the victim told the responding deputy sheriff that Laferriere initiated the confrontation by punching her while she was sitting on the couch. She also explained that she subsequently destroyed Laferriere's property with a knife sharpener so that Laferriere would allow her to leave.
At trial, however, the victim testified that Laferriere did not punch her until after she "went after" his property with a large knife. Meanwhile, Laferriere testified that the victim initiated the confrontation and that he physically struggled with her in defense of himself and his property. Laferriere then sought to testify to prior violent acts the victim allegedly committed against him in order to show the reasonableness of his fear of imminent harm, but the State objected. The trial court sustained the objection, explaining that it would not permit evidence of the victim's prior bad acts. After Laferriere was convicted, he appealed, and his appeal eventually reached the Supreme Judicial Court of Maine.
That Court first noted that generally under Maine Rule of Evidence 404, evidence of a person's prior bad acts are inadmissible to prove that the person has a propensity to act in a certain manner and thus that they likely acted in conformity with that propensity at the time in question. In other words, evidence of the victim's past violent acts would be inadmissible to prove that she had a propensity to be violent and thus that she likely was acting violently when Laferriere assaulted her.
The Court further noted, however, that while evidence of a victim's prior bad acts is not admissible to prove propensity/conformity, when an accused raises the defenses of self-defense or defense of property, evidence of the victim's prior bad acts which are proven to have been known to the accused before the event are admissible "for the purpose of showing his reasonable apprehension of immediate danger." The Court thus found that the trial judge erred in precluding Laferriere's proposed testimony and concluded that "because the court disbelieved Laferriere's version of the events due, in part, to its finding that the degree of force Laferriere exercised in purported self-defense 'far exceeded what was reasonable,' we cannot say that it is highly probable that the error did not affect the outcome of the trial." While some courts hold differently, most courts have a similar dichotomy with regard to character evidence, see, e.g., Harris v. United States, 618 A.2d 140, 144 (D.C. 1992), and I think that the majority of courts are correct, as long as limiting instructions are used.
May 7, 2008
London Calling, Take 4: New Zealand Convict Likely To Challenge Use Of Low Copy Number DNA
On three previous occasions (here, here, and here), I have written about the U.K.'s controversial use of low copy number DNA, which allows the genetic profiles of suspects, victims or witnesses to be "uncovered" even when there is only a tiny amount of biological material present, sometimes as small as a millionth of the size of a grain of salt). The U.K. first suspended use of low copy number DNA, but then controversially reinstated its use based upon a (politically motivated?) report finding it to be scientifically valid. That decision was controversial because low copy number DNA has been consistently doubted in the scientific community, leading to it only being used in the U.K., the Netherlands, and New Zealand.
Well, in the wake of the U.K. experience, it looks as if New Zealand is primed to hear a challenge to its use of low copy number DNA. Last August, Michael Scott Wallace was found guilty of the murder of German tourist Birgit Brauer in September 2005. Allegedly, on September 20, 2005, Wallace picked up the 28 year-old Brauer as she was hitchhiking and then drove her to Lucy's Gully, where he bludgeoned her with a metal bar and dragged her bleeding body into the bush. According to the State, Wallace then stamped on Brauer's neck and unbuttoned her jeans with sexual intent, but was spooked by a passing car and plunged a knife through Brauer's heart. Brauer's body was later found by a jogger who saw drag marks leading into the bush.
Among other evidence, there was a small amount of biological material found on a metal bar linked to Wallace's vehicle, which forensic scientists determined likely belonged to Brauer based upon the use of low copy number DNA. Wallace's lawyers now plan to appeal his guilty verdict, using the U.K.'s recent history with low copy number DNA to argue that this evidence should have been inadmissible at trial. Based upon the paucity of countries using low copy number DNA and the troubles that have arisen with its use, I think that they have a very good argument.
May 6, 2008
The Force Is Not Strong With This One: Judge Denies Motion To Suppress Grand Jury Testimony
Bradley Smith of Modesto, California, who is charged with making racist threats -- including a promise to burn a cross on a black man's lawn -- may not testify in his upcoming trial; nonetheless, the prosecutor will be allowed to introduce a transcript of incriminatory testimony that Smith gave to a grand jury last year, pursuant to a pre-trial ruling by U.S. District Judge Lawrence J. O'Neill. Smith was a neighbor of Alfred Henderson and his wife Ramona (both African-American) and allegedly:
-made racist comments about the Hendersons over a CB radio;
-hurled racial slurs at Alfred;
-threatened to sexually assault Ramona; and
-as noted, promised to burn a cross on the Henderson's lawn.
Subsequently, there was a grand jury hearing where Smith denied these allegations but did admit, inter alia, that he had an antagonistic relationship with Alfred and that he sometime adopted the aggressive persona of "Obie Won" when he talked on his citizens band radio. When he gave this testimony, Smith was neither notified of his right to an attorney nor represented by an attorney, but he also was not charged with anything, with the grand jury not handing up an indictment against Smith until months later. Smith now stands charged with interfering with Alfred's housing rights and making a false statement to an investigator.
Before trial, Smith's attorney moved to suppress his testimony before the grand jury on the ground that Smith was not notified of his right to an attorney. Judge O'Neill, however, denied this motion on the ground that Smith had not been charged with any crime at the time of his grand jury testimony. I believe that this ruling is proper because it is well established that the right to counsel does not attach until the presentment of an indictment by the grand jury. See, e.g., People v. Brown, 89 Cal.Rptr.2d 589, 601 (Cal. App. 1 Dist. 1999).
May 5, 2008
Mostly Harmless: New Jersey Court Finds Incorrect Admission Of Expert Testimony Was Harmless Error
The recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Schellinger, 2008 WL 1848300 (N.J. Super.A.D. 2008), contains an interesting application of the harmless error doctrine to the rules of expert evidence. In Schellinger, the defendant Arthur Schellinger and his co-defendant Tim McGeachy were charged with possession of cocaine based upon the following facts: On May 3, 2005, Police Officer James Armstrong was surveying an area of Atlantic City known for narcotics sales when he observed McGeachy suspiciously walking back and forth between two streets. Shortly thereafter, Armstrong saw Schellinger approach McGeachy, whereupon they talked and walked to the corner of the street and spoke again. Schellinger then handed McGeachy an undetermined amount of money, and McGeachy entered a nearby house before later returning. The men then went to the parking lot of a store and proceeded toward an alleyway. Armstrong, who had followed the men, then witnessed McGeachy hand Schellinger an item that Schellinger placed in the front right pocket of his pants.
Believing that the two men had engaged in a narcotics transaction, Armstrong exited his vehicle and instructed the men to stop and place their hands where he could see them. Schellinger then reached into his pocket, removed a small clear bag and threw it to the ground, whereupon Armstrong arrested both men. Upon searching Schellinger, Armstrong found two glass crack pipes and a copper "brillo pad." A search of McGeachy did not reveal anything of evidentiary value; however, Armstrong did not find this unusual because he believed that McGeachy was acting as a middleman to Schellinger's drug purchase. At trial, Armstrong was not qualified as an expert witness, but he testified to the events that transpired and explained that he had made over three-hundred arrests for drug-related crimes in that specific area, which is well known for drug sales because a drug rehabilitation clinic is located nearby. Armstrong further stated that he completed a one-month internship with the Atlantic County Prosecutor's Narcotics Strike Force, an eighty-hour course with the Drug Enforcement Agency. and an eighty-hour narcotics course run by the New Jersey Attorney General.
On appeal, Schellinger claimed, inter alia, that the court erred by permitting Armstrong to render these opinions because they went beyond the opinion of a lay witness, and yet Anderson was not qualified as an expert witness. The court disagreed, relying upon its previous opinion in State v. Kittrell, 279 N.J.Super. 225, 235 (App. Div. 1995). finding that while the trial court erred in allowing Anderson to testify, the error was harmless because "[a]lthough Armstrong was not tendered or qualified as an expert, enough evidence was presented at trial to qualify him as an expert."
It thus seems to me that New Jersey courts have created a per se rule that whenever a trial court permits a witness to render "expert" testimony despite not being qualified as an expert witness, any error will be deemed harmless as long as the expert could have been qualified as an expert witness. And something about that feels wrong to me, although I can't quite put it into words at this point. Do readers have any thoughts?
May 4, 2008
Nothing But The Truth: Ohio Court Finds Experts Improperly Opined On Victim's Credibility
The recent opinion of the Court of Appeals of Ohio in State v. Winterich, 2008 WL 1747433 (Ohio App. 8 Dist. 2008), illustrates how courts do not allow expert witnesses to opine on the credibility of victims (and, indeed, any witness). In Winterich, the victim gave the following testimony: She was the defendant's biological daughter and between the ages of five and six at the time of the incidents at issue. The first incident occurred when the victim was sleeping in bed with the defendant and her mother. When the mother fell asleep, the defendant inserted his fingers into the victim's "private," and she told defendant to stop but he refused. The second incident occurred at the defendant's house as well, when the victim's mother was home taking a nap. The defendant inserted his fingers into the victim's “private” again, and he told her that if she told anyone he would keep doing it. The victim, however, told her aunt and her sisters anyway because it hurt "bad."
The prosecution then called the victim's aunt and half-sister, who corroborated that the victim told them about these acts of abuse. The prosecution also called, inter alia,
-(1) Teriea Anderson, a social worker with the intake sex abuse unit at Children and Family Services, who testified that she interviewed the victim, the victim used her own language when reporting the abuse, seemed believable, and did not seem suggestible;
-(2) Dr. Beth Manning, an emergency room doctor at University Hospitals, who examined the victim and made a final of "presumed sexual assault" based solely upon the victim's statements; and
-(3) Lauren McAliley, a nurse practitioner at Rainbow Babies and Childrens' Hospital, who examined the victim and determined that the victim had “very possibly” been sexually abused based solely upon the victim's statements.
Based upon this testimony, the defendant was convicted of rape and gross sexual imposition. He thereafter appeals to the Court of Appeals of Ohio on the ground that these expert witnesses improperly opined on the credibility. The Court of Appeals agreed, noting that (as in courts across the country), experts may not comment on the credibility (or lack thereof) of a party/witness. The American proscription on this type of testimony comes from the belief that the jury is the lie detector and that experts should not be able to, in effect, tell jurors how to decide cases.
Now, of course, this meant that Anderson's testimony that the victim's testimony "seemed believable" was improperly admitted. But what about the testimony of Manning and McAliley, neither of whom explicitly commented on the victim's credibility? Well, the Court noted that "[p]ermitting the introduction of an expert's opinion, which relies solely on the child's statements, is tantamount to permitting the expert to testify as to the child's veracity." Thus, the opinions of Manning and McAliley, which were based solely on the statements of the victim, were improperly admitted as well, and the Court reversed the defendant's convictions?
So, what do readers think? Do you agree with the decision in this case and the American proscription of expert testimony on credibility? I recently read a compelling article which argues to the contrary, and I will be doing a post about it in the coming weeks.