January 12, 2008
We The Jury: Supreme Court Of Florida Mandates Juror Questioning In Civil Cases, Allows It In Criminal Cases
Pursuant to landmark new rules by the Supreme Court of Florida, (a) judges in civil cases must allow jurors to submit questions for witnesses, and (b) judges in criminal cases have the discretion to allow jurors to pose questions for witnesses. Under these rules, jurors don't ask these questions to the witnesses themselves; instead, they submit written questions to the judge, who consults with the attorneys about their propriety and determines whether they are relevant and legally permissible. According to the Court, these new rules are part of the "most comprehensive review and thorough evaluation of Florida's jury system in the history of this state."
Advocates of the new rules include the American Judicature Society, which has stated that the rules are "based on common sense. Since the trial is a search for truth, and the jurors have to ultimately decide the case, the truth-seeking process is advanced if jurors are able to ask questions about a point that is unclear to them." "Allowing jurors to actively engage may increase their attentiveness. The questions may signal to the lawyers important information about how the jurors are thinking about the case, which may allow the lawyers to present their cases better."
Other have complained that the new rules:
-will grind the system to a halt as judges and lawyers have to sift through a multitude of both permissible and impermissible questions;
-create too much of opportunity for mistrials and confusion; and
-impropely expand upon the juror's role, which is to sit and listen to the evidence and not to participate.
According to judges who have experminted with allowing juror questioning, however, jurors either didn't ask questions when given the chance or submitted few questions. Based upon this limited data, I would guess that many of the fears expressed about the new rules will not materialize. At the same time, it seems that the dream that these changes will make the jurors more proactice and attentive may not come to fruition. That said, I think that with proper educational initiatives, regular application of the rules, and proper oversight, the Florida system might result in a more proactive jury and serve as a model for other states. I will certainly be looking forward to the results.
Forfeit Victory?: Supreme Court Grants Cert in Giles v. California
As Professor Richard D. Friedman posts over at The Confrontation Blog, the Supreme Court has granted certiorari in Giles v. California, a case that addresses the issue of whether the forfeiture by wrongdoing doctrine applies even when the prosecution cannot prove a specific intent on the part of a defendant to render a prospective witness unavailable to testify at trial. Giles will likely be argued in April and decided by the end of the term. I recently posted my thoughts on the narrow vs. broad interpretation of the forfeiture by wrongdoing doctrine in connection with the Mark D. Jensen trial, and it will certainly be interesting to see which way the Supreme Court Rules.
January 11, 2008
The Judge Believes Him: Judge Finds Matt Roloff Not Guilty After Bizarre HGN Ruling
Yesterday, "Little People, Big World" star Matt Roloff was acquitted in his DUII trial (Oregon's version of a DUI) after a bizarre turn of events. According to Circuit Judge Donald R. Letourneau, who was hearing the case, jurors disobeyed his order to not look up anything about the case and instead looked up legal definitions for the terms "implied consent" and "beyond a reasonable doubt;" one juror also looked into the accuracy of the Horizontal Gaze Nystagmus (HGN) test.
As I noted before, the HGN test is the field sobriety test where a police officer places a pen about 10 inches in front of the driver's eyes, tells the driver to follow the pen with his eyes, and moves it from side to side. The officer then determines whether the driver was under the influence based upon six "clues" or "indications," such as whether the driver's pupils are unusually jerky. Generally, a driver exhibiting at least four of the indications is deemed to be intoxicated; Pastori determined that Roloff exhibited all six.
Speaking about the juror misconduct, Letourneau said, "In my mind, it was like somebody threw a stick of dynamite into the courtroom." However, instead of Roloff's lawyer moving for a mistrial after these shenanigans, he asked for the jury to be removed and for the judge to render a verdict. The judge thereafter found Roloff not guilty because the HGN test only has 77% accuracy, which was insufficient to find him guilty beyond a reasonable doubt. This decision leads me to believe that Judge Letourneau was the only one in the courtroom who heeded his own advice about not doing research on the case.
I am aware of the study ostensibly relied upon by Judge Letourneau. In 1983, the National Highway Traffic Safety Administration conducted a study which determined that the HGN test is 77% accurate in detecting whether an individual's BAC was .10 percent or higher. However, under Oregon's DUII statute, a person is guilty of driving under the influence if he drives a vehicle and
(a) has a .08 percent or higher BAC as shown by chemical analysis of the breath or blood of the person;
(b) is under the influence of intoxicating liquor, a controlled substance or an inhalant; or
(c) is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.
I'm not sure of Judge Letourneau's point because Oregon courts (like most courts) have never allowed HGN test results to prove a certain BAC level and thus DUII under subsection (a). State v. O'Key, 899 P.2d 663 (Or. 1995). Instead, they use the HGN test to prove DUII under subsection (b), as evidence that the driver was under the influence of intoxicating liquor, a controlled substance or an inhalant.
Furthermore, even if the HGN test results were used in Oregon to prove a certain BAC level, that level is .08 percent, not the .10 percent used in the NHTSA study, almost certainly meaning that the HGN test would be more than 77% accurate. Moreover, the 77% accuracy rate is only for people showing at least four of the HGN indications. When a person, like Roloff, exhibits all six, studies show that the accuracy rate is much higher, with some claiming it is 99% accurate. To me, then, the judge's decision was terribly misguided.
(It should be noted that Roloff was found guilty of refusing to take the breath test and not staying in his lane of travel and was fined $742 for the violations and charged $103 in court fees. Furthermore, based upon his refusal to take the breath test and his prior DUII-related incident, Roloff's license was suspended for three years.).
This Has Been The Reverend Signin Off: Florida Court Finds Reverend Had Reasonable Expectation Of Privacy In His Office Computer
Two years ago, Reverend Eric Michael Young of the Fort Caroline Methodist Church in Jacksonville, Florida was charged with viewing child pornography on his church-owned computer. These charges came after BellSouth notified the church about a problem with its computers, resulting in the church's administrator unlocking and opening the door to Young's church office and discovering child pornography on his computer. A church offical then called the police and gave them consent to conduct a warrantless search Young's office, which resulted in them finding child pornography on the computer. At trial, however, Young's attorneys persuaded the judge to exclude the evidence on the ground that he had a "reasonable expectation of privacy" on his office computer absent any church policies on computer use, rendering the incriminating evidence found on his computer inadmissible pursuant to the Fourth Amendment. Recently, a Florida appellate court affirmed the trial court's decision.
As law professors contacted in connection with the case have noted, there is a sharp split among courts as to whether employees have a "reasonable expectation of privacy" in the contents of their office computers, with the majority of courts finding that no such expectation exists, making the Fourth Amendment inapplicable. See, e.g., United States v. Angevine, 281 F.3d 1130 (10th Cir. 2002) (finding that a university professor didn't have a reasonable expectation of privacy in his office computer, but noting that the issue should be resolved on a case-by-case basis) A substantial minority of courts, however, have found that employees have such an expectation of privacy in office computers, particularly where, as in the Young case, employers had no policies warning their employees that office computers were subject to searches and seizures. See, e.g., Leventhal v. Knapek, 266 F.3d 64, 73 (2nd Cir. 2001) ("Leventhal had a reasonable expectation of privacy in the contents of his office computer.").
I think I fall into the Angevine camp, with Fourth Amendment determinations on office computers being decided on a case-by-case basis, with employer policies being an important, but not a dispositive, part of the analysis. Of course, I still strongly disagree with a restrictive reading of Fourth Amendment rights when such a reading would interfere with the right to counsel, such as under the recent Marine Corps policy.
January 10, 2008
Blinded Me With Science, Take 2: New York Justice Finds Expert Evidence Against Merck Unreliable And Inadmissible
Earlier, I blogged about the lawsuit by thousands of individuals who suffered heart attacks, strokes, or other adverse cardiovascular events (or who had relatives suffer the same) against Celebrex-maker Phizer and Vioxx-maker Merck. As I noted, the plaintiffs' claims against Pfizer were subsequently consolidated in the United States District Court of the Northern District of California in San Francisco, which caused devastating damage to their cases by excluding certain expert evidence that they sought to introduce because it failed to meet the test for reliability laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Well, the plaintiffs' claims against Merck were consolidated in state court in New York, and yesterday Justice Shirley Kornreich similarly determined that much of the plaintiff's expert evidence was inadmissible because it was unreliable. It should be noted, though, that New York courts have refused to adopt the test for reliability laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc. and that Justice Kornreich's decision was thus based upon the Frye test, under which expert evidence is reliable and thus admissible only if it has general acceptance in the relevant scientific community. I haven't gotten my hands on Justice Kornreich's decision yet, but I will likely have more comments on it once I do.
Retroactive Justice?: Virginia Court Finds Application of Amended Privilege Doesn't Violate The Ex Post Facto Clause
The recent decision of the Court of Appeals of Virginia in Carpenter v. Commonwealth, 2007 WL 4523104 (Va.App. 2007), addressed the intriguing issue of whether a court's retroactive application of a new or amended rule of evidence violates the ex post facto clause of the Constitution. In Carpenter, John Welford Carpenter, Jr. was convicted of rape and forcible sodomy after a bench trial in 2006 based upon alleged sexual acts that he committed with his then teenage stepdaughter in 1992 and 1993. Allegedly, after these acts, Carpenter told his stepdaughter that if she told anyone about what had transpired, he would kill her mother, Helen, who was also Carpenter's wife.
In 2004, after discovering a suspicious check written by Carpenter to his stepdaughter, Helen confronted her daughter, who revealed that Carpenter raped her when she was a teenager. Helen then confronted Carpenter, who started crying and told her that it had not been easy to live with what happened. Thereafter, Helen went to the police, who told her to purchase a tape recorder and record a confession by Carpenter. Subsequently, Helen purchased a tape recorder and secretly recorded a conversation with Carpenter in which he said, "Lord, please forgive me for raping [the victim]" and "Helen, please forgive me."
At the time that Helen recorded the conversation, Virginia had a private marital communications privilege wherein a spouse could refuse to disclose or prevent someone else from disclosing private marital communications unless the spouse seeking to testify had a right of action against the other spouse. In other words, a husband could not prevent his wife from testifying about a private conversation between the two where he discussed beating her or stealing money from her, but he could prevent his wife from testifying about a private conversation between the two where he discussed beating or defrauding a friend, stranger, or even the couple's child.
After Helen recorded the conversation, but before Carpenter's trial, Virginia amended its private marital communications privilege, Virginia Code Section 8.01-398, so that it is inapplicable not only when the spouse seeking to testify has a right to relief against the other spouse, but also when the other spouse is charged with a crime or tort "against the minor child of either spouse." At Carpenter's trial, the prosecution sought to introduce the tape recording of Carpenter's confession pursuant to Virginia Code Section 8.01-398, but Carpenter countered that application of this amended version of the privilege would violate the ex post facto clauses of both the Virginia and U.S. Constitutions. The trial court overruled Carpenter's objections, and the Court of Appeals of Virginia affirmed that decision.
The Court of Appeals noted that pursuant to the Supreme Court's opinion in Calder v. Bull, 3 U.S. 386, 390 (1798), the ex post facto clause of the U.S. Constitution proscribes the retroactive application of four types of laws: (1) laws which criminalize and authorize punishment for acts which were innocent when done; (2) laws which aggravate a crime or make it greater than when it was committed; (3) laws which inflict a greater punishment than the law annexed to the crime when committed; and (4) "[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."
At first blush, the amended Virginia Code Section 8.01-398 might seem to constitute the fourth type of law. As the Court of Appels noted, however, the Supreme Court explicity foreclosed such a reading in its 2000 decision in Carmell v. Texas, 529 U.S. 513 (2000). In Carmell, the defendant was convicted of several sex-related crimes against his stepdaughter, who during some of the acts was 14 years-old or older. When these alleged acts occurred, the Texas statute criminzalizing them indicated that a defendant could not be convicted under the statute for sexual crimes against a minor 14 years-old or older solely based upon the testimony of the alleged victim; instead, there had to be some other evidence corroborating the alleged victim's testimony. Before the defendant's trial, however, Texas amended the controlling statute so that it no longer required corroboration.
After trial, the defendant was convicted despite the fact that the stepdaughter's testimony was not corroborated. The defendant's appeal eventually reached the United States Supreme Court, which held that application of the amended statute violated the ex post facto clause because it changed the quantum of evidence that was legally sufficient for a conviction. The Court then contrasted the Texas statute from the rules of evidence. It held that "[o]rdinary rules of evidence, for example, do not violate the Clause....[S]uch rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption.
The Court of Appeals for Virginia thus found that its amended private marital communications privilege, as an ordinary rule of evidence, did not violate the ex post facto clauses of the U.S. and Virginia Constitutions. As further support, the Court cited to other courts which had come to similar conclusions in the wake of Carmell. See, e.g., People v. Dolph-Hostetter, 664 N.W.2d 254 (Mich.Ct.App. 2003).
With respect to the United States Supreme Court, I strongly disagree with its decision in Carmell. My first reason is based upon a plain reading of Calder v. Bull The Court in Carmell found that a Texas criminal statute constituted the fourth type of law listed in Calder v. Bull while the ordinary rules of evidence do not. The fourth category of laws listed in Calder v. Bull, however, are laws that alter the legal rules of evidence. Clearly, the amended Virginia Code Section 8.01-398 altered a "legal rule of evidence" while Texas' amendment of its criminal statute did not alter a "legal rule of evidence." The Court's decision in Carmell thus makes no sense to me.
Second, I find the Court's dichotomy nonsensical. The Court in Carmell found that changes in rules of evidence do not at all subvert the presumption of innocence because they do not concern whether the admissible evidence is sufficient to overcome the presumption; conversely, changes to criminal statutes such as the Texas statute do subvert the presumption of innocence because they do concern whether the admissible evidence is sufficient to overcome the presumption. Is this in fact true?
Let's take the fact pattern from Carmell. There, the defendant was presumed innocent until found guilty beyond a reasonable doubt. Before the Texas statute was amended, that presumption could not be overcome, and he could not be convicted, solely based upon the testimony of his alleged victim; after the amendment, such testimony might be sufficient to convict him. So, if the only evidence against him was his alleged victim's testimony, the amendment to the statute subverted the presumption of innocence by making a conviction possible.
But, let's say that the statute was amended before the defendant's alleged crimes. And let's say that his alleged victim did not want to testify at trial but that she told a friend or family member that she was raped by the defendant. Finally, let's say that the alleged victim's statements constituted hearsay at the time they were made but that Texas added an exception to the rules against hearsay before trial, which allowed for her statements to be admitted. Before the Texas Rules of Evidence were amended, the defendant's presumption of innocence could not be overcome, and he could not be convicted, solely based upon the statements of the alleged victim (indeed, those statements would not even be admissible); after the amendment, those statements might be sufficient to convict him. So, if the only evidence against him was his alleged victim's statements, the amendment to the rules of evidence subverted the presumption of innocence by making a conviction possible. To me, there is no practical difference between these two situations.
January 9, 2008
Some People Don't Believe Him: Reality Star Matt Roloff's DUII Trial Begins In Oregon
Yesterday, the drunken driving trial for "Little People, Big World" patriarch Matt Roloff began in an Oregon courtroom. On June 19, Deputy Allen Pastori pulled over a white van being driven by Roloff after Roloff made a wide turn while leaving the Rock Creek Cafe and Pub and proceeded to drift over the double yellow lines and fog lines several times in the next couple miles. After Roloff exited the vehicle, Pastori smelled a "moderate odor of alcohol" and saw that Roloff's eyes were glassy and watery. Because Roloff uses crutches, Pastori did not make him walk in a straight line, but he did administer a horizontal gaze nystagmus (HGN) test to the reality star. In this test, the police officer places a pen about 10 inches in front of the driver's eyes, tells the driver to follow the pen with his eyes, and moves it from side to side. The officer then determines whether the driver was under the influence based upon six "clues" or "indications, such as whether the driver's pupils are unusually jerky. Generally, a driver exhibiting at least four of the indications is deemed to be intoxicated; Pastori determined that Roloff exhibited all six.
Nonethless, when Pastori proceeded to drive Roloff to jail, Roloff boasted, "I can't wait to give you a breath sample so I can publicly humiliate you." Once at the jail, however, the braggadocio dissipated, and Roloff refused to let Pastori administer the Breathalyzer test. Roloff claimed that he didn't trust Pastori and admitted to having one beer, but claimed that his erratic driving was not based on the alcohol but instead based upon inexperience using the pedal extensions in his wife's van. Nonethless, Roloff, who previously had a Driving Under the Influence of Intoxicants (DUII) charge dismissed after completing an alcohol diversion program in 2003, was again charged with DUII (Oregon's version of a DUI). Under Oregon's DUII statute, a person is guilty of driving under the influence if he drives a vehicle and
(a) has a .08 percent or higher BAC as shown by chemical analysis of the breath or blood of the person;
(b) is under the influence of intoxicating liquor, a controlled substance or an inhalant; or
(c) is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.
Of course, Roloff's refusal to take the Breathalyzer test can be used against him in his trial, but because some courts, such as the Supreme Court of Illinois have recently called into question the reliability and admissibility of HGN test results, I wondered where Oregon courts stood on the test. As it turns out, in its 1995 opinion in State v. O'Key, 899 P.2d 663 (Or. 1995), the Supreme Court of Oregon found that "HGN test evidence is admissible in a prosecution for DUII to establish that a person was under the influence of intoxicating liquor, but is not admissible...to establish a person's BAC, i.e., that a person was driving while having a BAC of .08 percent or more." This dichotomy appears to be consistent with the precedent in most other states allowing for the admission of HGN test evidence. See, e.g., State v. Cochrane, 897 A.2d 952, 955 (N.H. 2006). Nonethless, some courts have held that HGN test evidence is admissible to establish that the defendant had at least a certain BAC level. For instance, several Ohio courts have held that a driver exhbiting at least four out of the six HGN indications "indicates a BAC level above .10 percent." See, e.g., State v. Marshall, 2001 WL 1658096 (Ohio App. 2 Dist. 2001).
Based upon my brief review of the literature on the HGN test, I don't believe that courts such as the Supreme Court of Illinois will find the test to be scientifically unreliable and thus inadmissible. I do think, however, that the evidence criticizing the test provides support for those who might want to challenge courts finding that HGN test results are admissible not only to prove intoxication generally, but also to prove a certain BAC level.
January 8, 2008
Judiciary Under The Influence?: New Jersey Supreme Court Hears Arguments On Reliability of Breathalyzer Alternative
The Alcotest 7110 MK III-C is a breath alcohol testing technology which uses both infrared and electromechanical analysis as a dual system of chemical breath testing. According to its maker, Drager, the Alcotest 7110 offers indisputably the most advanced Evidential Breath alcohol testing available today. Indeed, Drager boasts that this and similar Drager technologies have been accepted in the courts of many countries. Increasingly, the United States has become one of those countries, with dozens of states now using Drager technology, sometimes replacing the use of the Breathalyzer test, which was invented in 1954. New Jersey first started using the Alcotest 7110 in a few counties in 2001, and it later became the first state to have hearings about the reliability of the technology.
In the 2003 case, State v. Foley, 851 A.2d 123 (N.J. Super. 2003), New Jersey Superior Court Judge Francis J. Orlando Jr. found that results obtained from the Alcotest 7110 were admissible because they were generally accepted in the relevant scientific community, satisfying the test for admissibility laid out in Frye v. United States, which New Jersey courts still apply, even though it has been replaced in federal courts and most state courts by the test laid out in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Since the Foley opinion, New Jersey extended its use of the Alcotest 7110 to 17 of its 21 counties.
Nonetheless, New Jeresy continued to have doubts about the reliability of the technology, and the New Jersey Supreme Court eventually appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings to it. Pending that investigation, New Jersey froze hundreds or thousands of drunken driver prosecutions which relied upon Alcotest 7110 test results.
In February, King issued an initial, 268 page report, which seemed to indicate that the technology was unreliable. Specifically, King noted that the Alcotest machines were not equipped with breath temperature sensors and that until they were so equipped, all readings should be reduced by 6.58%, meaning that defendants with readings as high as .085 percent should be found not guilty of driving under the influence despite New Jersey's legal BAC limit of .08 percent. In November, however, King seemingly reversed himself, releasing a new, 108 page report, which stated that despite the "minor defects" with the technology, it was actually more reliable than the Breathalyzer test.
Yesterday, these results and other evidence both supporting and challenging the reliability of the technology were presented to the New Jersey Supreme Court. At stake is not only the future admissibility of Alcotest 7110 test results in New Jersey and perhaps other states, but also, whether the frozen drunk driving prosecutions in New Jersey will be thawed. This latter stake has led critics of the technology to contend that King's about face was not a legitimate change of heart, but instead "a political determination that save face for the Attorney General's Office and the courts." Without having read the entirety of both of King's reports, I can't say whether the Alcotest 7110 is reliable, but in the absence of a legitimate explanation for King's change of heart, I'm not sure that the reports themselves are reliable.
January 7, 2008
Open In Case Of My Death: Wisconsin Court To Apply Controversial Version Of Forfeiture By Wrongdoing Doctrine in Mark D. Jensen Trial
The murder trial of Mark D. Jensen in Wisconsin is a trial which national media outlets think will make good TV; it also appears to be a trial that will be decided based upon an unprecedented evidenty ruling. Jensen has been charged with murdering his wife, Julie, with prosecutors claiming that he poisoned her with two doses of ethylene glycol, commonly known as antifreeze, so that he could be with his new girlfriend, now his wife. The prosecution has supported this theory with, inter alia, evidence of alleged web searches on the topic of poisoning discovered on the Jensen's computer. Defense counsel has countered that Julie was depressed and disturbed and conducted the web searches so that she could kill herself and frame her cheating husband. CourtTV's successor, TruTV, is broadcasting the entire trial live, and CBS will air a story on the trial on "48 Hours Mystery" weeks after it ends.
The evidentiary issue revolves around the fact that, before her death, Julie gave her neighbor a note that said that Jensen should be the first suspect if she died. After a complicated pretrial history, Jensen was eventually able to secure an evidentiary ruling which, inter alia, deemed the letter inadmissible because its admission into evidence would violate his rights under the Confrontation Clause pursuant to the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004).
This ruling came from the Circuit Court judge hearing the case after he rejected the prosecution's argument that Jensen had waived his Confontation Clause argument pursuant to the forfeiture by wrongdoing doctrine. This doctrine, which exists under Federal Rule of Evidence 804(b)(6) and several state evidentiary codes, indicates that "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness" is admissible, in effect waiving the party's hearsay and Confrontation Clause exceptions. Typically, it must be proven that the party procured the prospective witness' unavailability by a prepondernace of the evidence for the doctrine to apply. There is, however, no statutory forfeiture by wrongdoing doctrine in Wisconsin, and, before the Jensen case, no Wisconsin court had applied it.
This all changed when the prosecution appealed the Circuit Court judge's decision to the Supreme Court of Wisconsin. In its decision in State v. Jensen, 727 N.W.2d 518, 521 (Wis. 2007), the Court not only adopted the forfeiture by wrongdoing doctrine, but also applied in a more expansive manner than any previous court.
Typically, the forfeiture by wrongdoing doctrine applies in one scenario: a defendant commits some crime and then kills or otherwise makes unavailable some witness who could have been called to testify against him at trial. See United States v. Lentz, 282 F.Supp.2d 399, 426 (E.D. Va. 2002). If that prospective witness made statements before the defendant procured his unavailability, it is irrelevant (1) that the defendant cannot confront him at trial, and (2) that the statements might have constituted inadmissible hearsay. See id. The forfeiture by wrongdoing doctrine deems the statements admissible to ensure that the defendant does not benefit from his wrongdoing by .
Conversely, before the Jensen case, courts categorically had found that the doctrine did not apply in the situation presented to the Supreme Court of Wisconsin: the prosecution trying to introduce a murder victim's statements against her alleged murderer on the ground that the murderer procured the victim's unavailability by killing him. See id. Courts have raised three potential problems with applying the doctrine to this fact pattern:
(1) Doing so "asks the Court to find Defendant guilty of [the subject] killing...by a preponderance of the evidence in order to allow the evidence to be admitted to prove Defendant [committed the subject] kill[ing] beyond a reasonable doubt." To so apply the doctrine "would be to deprive a defendant of his right to a jury trial and allow for a judge to preliminarily convict a defendant of the crime on which he was charged." Id.
(2) Doing so swallows up the narrowly drawn traditional dying declaration hearsay exception. See People v. Maher, 677 N.E.2d 728, 731 (N.Y. 1997).
(3) Application of the doctrine requires the specific intent by the party to prevent the prosepctive witness from testifying, and such intent cannot exist when the act procuring the witness' unavailability is the same act for which the party was charged. See State v. Romero, 156 P.3d 694 (N.M. 2007).
In Jensen, however, the Court sided with those courts which have found that specific intent is not required for the doctrine to apply. More importantly, the Court also adopted the "reflexive forfeiture principle" created by Professor Richard D. Friedman, which states that the doctrine should apply in this latter scenario. According to Friedman, "[a] court should not decline to decide the predicate question, for evidentiary purposes, simply because the same question must also be decided in making the bottom-line determination of guilt."
This is the wrong forum to address all of these issues or lay out Friedman's analysis in full, but I can briefly touch upon the dying declaration argument. Under Federal Rule of Evidence 804(b)(2), "[i]n a prosecution for homicide or in a civil action or proceeding, a statement made by a [now unavailable] 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 a dying declartion. In order for this exception to apply, the prosecution must preliminarily prove the elements of the exception, typically by a preponderance of the evidence. The reason why some courts believe that application of the "reflexive forfeiture principle" swallows up the dying declaration exception is that allows any murder victim's statements to be admissible, regardless of whether the statements were made while the victim believed that his death was imminent.
These courts, however, are wrong. A court can only apply the forfeiture by wrongdoing doctrine if it can prove that the defendant killed the prospective victim by a preponderance of the evidence. Let's take a case where the defendant, John, allegedly murders the victim, and there is scant evidence of John's guilt besides the victim's statements to EMTs as he is dying that John shot him in the stomach. The prosecution might not be able to prove John's guilt by a preponderance of the evidence, making the forfeiture by wrongdoing doctrine inapplicable, but they may be able to prove that the victim thought that his death was imminent and that his statement concerned the cause of his death, making his statement admissible as a dying declaration.
Some might say that a finding that a statement concerns the "cause or circumstances" of the victim's death is akin to finding that the defendant was guilty. In other words, some might say that a court's finding that the victim's statement that John killed him was a statement about the cause of his death would be akin to saying that John was guilty. I disagree and think that such a finding merely means that the court finds that the victim believed the defendant killed him. If I am wrong in this analysis, however, such reasoning disposes of the first concern listed by courts opposing the "reflexive forfeiture principle" because courts already preliminarily find defendants guilty in admitting dying declarations.
In any event, I would say that the first concern is inapposite because when defendants are charged with conspiracy, courts freuqently preliminarily decide the issue of whether the defendants are guilty of conspiracy in deciding whether their statements are admissible as co-conspirator admissions pursuant to Federal Rule of Evidence 801(d)(1)(E) and state counterparts.
January 6, 2008
Rise, All Loyal Cougars: Utah Courts Find Rule 803(4) Partially Repealed Prior Statute
In April 2004, Linda Fox fell while she descended a stairway on the BYU campus, leaving her unable to stand or use her right leg. Eventually, volunteer EMTs for the Emergency Medical Services team at BYU arrived and examined Mrs. Fox. They noted that there was swelling on her right knee and deformity on both sides of her leg, but they observed no external trauma to her leg or knee, such as scrapes or scuff marks.
According to the EMTs, Mrs. Fox told them that she only fell down one stair, that she had previously been diagnosed with osteoarthritis in her right knee, and that there was some missing cartilage in that knee. They claimed that Mrs. Fox told them that she did not hold BYU responsible, although she had always felt that the stairs were too narrow and dangerous. Mrs. Fox was later diagnosed with a broken right leg. Several days after Mrs. Fox's fall, her husband examined the stairs, noted that there was some cracking in the stairs' cement and that some of the metal nosings on the stairs were loose, and took pictures of them.
The Foxes thereafter sued BYU, claiming that it negligently maintained the stairs, resulting in Mrs. Fox's fall and broken right leg. BYU responded with a motion in limine, which the trial court granted after it converted it to a motion to dismiss. BYU supported its motion in part through the report by the EMTs, which included Mrs. Fox's statements. The Foxes claimed that this evidence constituted inadmissible hearsay and contended that BYU had failed to comply with the procedures set forth in Utah Code Section 78-27-33. Under this section, which was enacted in 1973, a statement "obtained from an injured person within 15 days of an occurrence...by a person whose interest is adverse or may become adverse to the injured person" is not admissible evidence unless the adverse person leaves a "written verbatim copy of the statement...with the injured party at the time the statement was taken," and the injured party does not disavow the statement "in writing" within a specified time.
The Foxes contended that the BYU EMTs were people whose interests were adverse to Mrs. Fox, the injured person, because they were agents of BYU. They further contended that the EMTs and BYU had failed to comply with with the procedures set forth in Utah Code Section 78-27-33. The trial court did not reject these contentions, but it determined, and the Utah Court of Appeals agreed, that Utah Rule of Evidence 803(4) partially repealed or limited the applicability of Utah Code Section 78-27-33. Utah Rule of Evidence 803(4), passed in 1985, allows for the admission into evidence of statements made for the purposes of medical treatment or diagnosis as an exception to the rule against hearsay. Rule 803(4) lists neither of the procedures set forth in Utah Code Section 78-27-33. The trial court and the Utah Court of Appeals thus determined that when an injured person makes statements to a person whose interest is adverse and who is also a medical services provider (such as the BYU EMTs), those statements are admissible if they were made for the purposes of medical treatment or diagnosis, regardless of whether the adverse party complied with the procedures set forth in Utah Code Section 78-27-33.
I strongly disagree with the courts' opinions. It is well established that for a subsequent statute or rule to impliedly repeal a prior statute, there must be an irreconcilable conflict between the two or it must be clear that the latter act or rule covers the whole subject of the earlier one and is clearly intended as a substitute. See National Ass'n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2332 (2007). First, there doesn't appear to be an irreconcilable conflict between the two. Utah Rule of Evidence 803(4) does not list either of the procedures set forth in Utah Code Section 78-27-33, but nothing in the Rule precludes the possibility of other procedures being applicable when the medical services provider is also a person with an adverse interest. Second, it is clear that Utah Rule of Evidence 803(4) does not cover the whole subject of Utah Code Section 78-27-33; indeed, the courts noted that Rule 803(4) only repealed Utah Code Section 78-27-33 when the adverse person was also a medical services provider and had no effect on it otherwise.