Saturday, June 14, 2008
Sunshine State Split: Recent Case Reveals Split Among Florida Courts Over "False Reporting Exception" To Impeachment Rule
The recent opinion of the District Court of Appeal of Florida, Fourth District, in Washington v. State, 2008 WL 2356672 (Fla.App. 4 Dist. 2008), reveals some interesting distinctions between impeachment under the Florida Rules of Evidence and the Federal Rules of Evidence. In Washington, Aaron Washington was convicted of carjacking with a firearm and aggravated battery with a deadly weapon. Testimony, including testimony by the alleged victim, revealed that the victim was a drug-dealer who entered into a drug deal with Washington. During that deal, Washington allegedly took the drugs without paying for them, struck the victim repeatedly with a firearm, and with the help of two accomplices extracted him from his automobile, and stole it. The alleged victim subsequently reported the crime, but omitted details about the drug deal. This wasn't the first time that the alleged victim had been less than forthcoming in dealing with the police. In an unrelated incident, the alleged victim lent his car to a friend, who became involved in a hit-and-run accident, prompting the alleged victim to file a false police report that the car had been stolen. The jury, however, never heard this evidence because the trial judge granted the prosecution's motion to exclude this evidence, and its exclusion prompted Washington's appeal.
The District Court of Appeal first noted a distinction between the Florida Rules of Evidence and the Federal Rules of Evidence. While Federal Rule of Evidence 608(b) allows a party to cross-examine a witness about specific acts of untruthfulness (although these acts can't be proven through extrinsic evidence), the Florida Rules of Evidence contain no similar provision. Instead, Florida merely has Section 90.610 of the Florida Statutes, which is a counterpart to Federal Rule of Evidence 609, and which allows for impeachment of witnesses through evidence of prior convictions (It should be noted, however, that these rules are quite different; for instance, Federal Rule of Evidence 609(d) allows for impeachment of witnesses through evidence of juvenile adjudications in some cases while Section 90.610(1)(b) per se prohibits such impeachment).
Because the alleged victim was not convicted of a crime in connection with the prior false police report, he thus could not be impeached under Section 90.610, which would have seemed to foreclose the appeal. But, as the District Court of Appeal noted, the District Court of Appeal of Florida, First District created a "false reporting exception" to Section 90.610, under which witnesses can be cross-examined about false reports notwithstanding the plain language of the Florida statutes based upon recognition of a long line of authority from Florida courts allowing for such impeachment. See, e.g., Jaggers v. State, 536 So.2d 321, 327 (Fla.App. 2 Dist. 1988). The Fourth Circuit in Washington, however, noted that the First Circuit rejected this exception and then indicated that it would join that court in "respectfully declining" to adopt the Second District's "false reporting exception."
My take on the situation is that the Florida courts are free to read their state's statutes as they see fit. However, I see a potential problem for the First and Fourth Districts based upon the United States Supreme Court's opinion in Chambers v. Mississippi, 410 U.S. 284 (1973), which held that a state cannot apply its evidence laws in a manner that denies a criminal defendant a fair trial in accord with traditional and fundamental standards of due process. In Chambers, one of the evidence laws applied in such a manner was, as in Washington, a law preventing the defendant from impeaching a witness. Because both the Federal Rules of Evidence and, as far as I know, most if not all state rules of evidence besides Florida's would have allowed Washington to impeach the alleged victim, I can see a solid argument under Chambers that Florida courts must adopt a "false reporting exception" in cases where a criminal defendant seeks to impeach a key prosecution witness through evidence of a false police report by that witness.
Friday, June 13, 2008
The long strange prosecution of R. Kelly finally ended today in a Chicago courtroom, with jurors finding the R&B superstar not guilty of all 14 counts of child pornography in connection with a sex tape he allegedly made of himself and a young girl who might have been as young as 14. I've written before about the problems with the prosecution's case, ranging from the alleged victim refusing to testify to the prosecution only having a copy of a copy of a copy of the videotape which, while admissible, was likely given little weight by the jury. As I learn more about the jury's reasoning, I will likely have more to report.
Former Charger's Trial Will Not Be Supercharged: Judge Find Character Evidence Inadmissible In Steve Foley's Suit Against Officer Who Shot Him
Pursuant to the ruling of Superior Court Judge Richard Strauss, jurors deciding the case between former San Diego Charger linebacker Steve Foley and the police officer who shot him will neither hear about two prior violations of state law by the officer, nor about two prior run-ins with the law by Foley. The facts of the case are as follows:
On Labor Day weekend, 2006, off-duty Coronado police officer Aaron Mansker trailed Foley's car to his Poway home based upon suspicion that Foley was driving while intoxicated and a threat to others. Officer Mansker claimed that upon arrival at Foley's home, Foley approached him and reached into his pants in a threatening manner, prompting Mansker to shoot him three times in self-defense. These gunshots prompted Lisa Maree Gaut, a passenger in Foley's car, to jump into the driver's seat of his Oldsmobile Cutlass and drive the car toward Mansker. Gaut claimed that she was simply trying to defend Foley, but a jury disagreed last April, convicting her of assault with a deadly weapon (the Oldsmobile) and drunken driving (Foley was acquitted of the more serious charge of assault on a peace officer).
Meanwhile, Foley pleaded guilty to drunk driving in connection with the incident, which ended his NFL career. At the same time, he claimed that he in no way threatened Mansker and thus sued the officer and the City of Coronado for excessive force and negligence. Different groups have different takes on the incident, with Mother's Against Drunk Driving honoring Mansker, in part for his actions in pursuing Foley, and the ACLU being outspoken in its criticism of the San Diego District Attorney's handling of the incident. Pursuant to the pre-trial ruling of Judge Strauss, however, the trial on Foley's allegations will not include evidence about these groups' positions, nor will it include the following evidence:
-the fact that Mansker's father was killed by a drunken driver when Mansker was a teenager living in Escondido;
-the fact that Masnker had violated state law and department policy at least twice by pursuing suspected drunken drivers while off duty; and
So, why was this evidence deemed inadmissible? The answer lies in California Code of Evidence Section 1100, which states that "[e]xcept as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person's conduct) is admissible to prove a person's character or a trait of his character." In other words, evidence of Mansker's past vigilante-style justice is inadmissible to prove that he had a "Temperance Wish," which he acted upon when he pursued and shot Foley. Meanwhile, evidence of Foley's prior encounters with the law is inadmissible to prove that he had a propensity to cause problems with the law enforcement officials while intoxicated and thus that he threatened Mansker while drunk.
Now, it's possible that both sides tried to admit this evidence under California Code of Evidence 1101(b), which states that "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Under this rule, Foley might have claimed, inter alia, that Mansker had a common plan or scheme of meting out vigilante style justice on drunk drivers, and Mansker might have clamed that Foley had a common plan or scheme of getting drunk and instigating the police. But it seems to me that neither had enough prior acts and that their prior acts were not similar enough to establish a distinctive enough pattern to allow for the admissibility of the evidence. Thus, I think that the judge's ruling was proper.
Thursday, June 12, 2008
The Eleventh Circuit's recent opinion in Preis v. Lexington Ins. Co., 2008 WL 2247140 (11th Cir. 2008), contains a discussion of the most fundamental, and yet sometimes overlooked, element of Federal Rule of Evidence 408. In Preis, the home of Richard and Victoria Preis on Mobile Bay, in Point Clear, Alabama, was severely damaged by Hurricane Katrina. According to Richard, the house had a replacement value in excess of $1,200,000 and the loss on personal property in the house was in excess of $750,000. Richard had two sets of insurance policies covering the house and its contents. First, he had a homeowner's policy ("the Lexington policy"), which was an all-risk policy that insured against any direct loss of personal or structural property of the home at issue, with certain exclusions, such as an exclusion for loss caused "directly or indirectly" by "water damage."
The second relevant set of insurance policies was for flood damage; Richard had a primary flood policy with Hartford Insurance Company, and an excess flood insurance policy with WNC Insurance Services. Following Hurricane Katrina, Richard submitted a claim to both Hartford Insurance and to WNC Insurance Services and received a total of $587,659.71 from them, the full policy limits of both policies. Richard also notified Lexington of the loss in order to recover for wind damage, prompting Lexington to retain an independent adjuster, Reid Jones McRorie & Williams, to investigate the claim. Reid Jones issued a final report several months later, indicating that the majority of the damage to the house was a result of "storm surge," and that the "[moderate] wind damage was primarily limited to the roof." Reid Jones estimated that Pries was due a payment in the amount of $72,155.96 for the damage that had not been caused by flood waters, leading Lexington to make Richard an unconditional tender for $53,135.97, which reflected Reid Jones' estimate less the policy's wind deductible of $19,020.00.
Richard rejected Lexington's tender and notified Lexington of his intent to file a lawsuit, whereupon Lexington retained the engineering services of Project Time & Cost ("PT & C"), which confirmed that the majority of the house was damaged as a result of storm surge, but that some damage was attributable to wind damage. Based on PT & C's report, Reid Jones readjusted Richard's estimated loss, and increased their unconditional tender by $11,031.90 to $64,167.86. Pries again rejected the loss amount and sued Lexington.
At trial, Lexington presented evidence concerning, inter alia, the insurance payments from Hartford and WNC to prove that the majority of damage was caused by flooding. At the end of the trial, the jury awarded Richard and Victoria $70,000 for damages to the structure attributable to wind, and they appealed to the 11th Circuit, claiming that the trial court erred in allowing the introduction of evidence about the insurance payments from Hartford and WNC. The Eleventh Circuit noted that Federal Rule of Evidence 408 provides in relevant part that:
"Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim."
In other words, if Hartford and/or WNC refused to pay the full policy limits on Richard's insurance policy, and the parties eventually reached a settlement regarding how much money would be paid, such as $400,000, the amount of the parties settlement would have been inadmissible to prove that flooding caused $400,000 of damage to the house. According to the court in Preis, however, the 11th Circuit has "specifically rejected the notion that 'the payment of a claim by an insurance company, where there is no evidence that the insurance company ever disputed the claim, qualifies as a compromise within the meaning of Rule 408.'...Since [Richard] submitted his claim to the flood insurers and received the full policy limits from both of them absent any dispute as to the validity of his claim, the district court did not abuse its discretion in finding that Rule 408 did not bar admissibility of the payments."
In other words, in such cases, there is no "claim that was disputed as to validity or amount, making Rule 408 inapplicable.
Wednesday, June 11, 2008
A federal judge in New York has refused to declare a mistrial despite a defense attorney violating Federal Rule of Evidence 609(b) by claiming in his opening statement that the plaintiff had a "felonious conviction." The case in which this ruling was rendered involves the lawsuit brought by businessman Ross Catalano against the town of Henrietta, former Supervisor James Breese, and former Fire Marshal Chris Roth for $30 million. Catalano used to run FunQuest (or Fun Quest), a recreation center which counted many African American teenagers among its patrons. After a March 2002 riot-like incident at FunQuest, the Town of Henrietta amended Catalano's special use permit for the center, a move that prohibited dancing at the facility. According to Catalano, this change in his permit forced him to close the facility and lose millions of dollars.
According to Catalano, the move was also racially motivated. Catalano claims that before the Henrietta town board told FunQuest it no longer could hold teen dances, town officials said that the reason was that too many "city kids," as opposed to Henrietta teens, came to the club's open dance parties. Rochester New York is 48.5% Caucasian and 38.5% African American while the neighboring suburb of Henrietta is 84% Caucasian and 7% African American. Meanwhile, Breese has denied these allegations.
The jury, however, almost never got to hear this evidence after defense counsel's inappropriate behavior, but now the case will proceed after potentially inappropriate behavior by the judge. As noted, defense counsel mentioned in his opening statement that Catalano had a "felonious conviction." And while defense counsel apparently did not mention the nature of that conviction, the articles on the case make it clear that it was more than 10 years old. Presumably, defense counsel planned to use this conviction to impeach Catalano's forthcoming testimony at trial, triggering Federal Rule of Evidence 609(b), which states that:
"Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence."
Catalano's attorney moved for a mistrial, claiming that defense counsel failed to give notice, and U.S. Magistrate Judge Jonathan Feldman found that defense counsel's mention of the conviction was error because he failed to give prior notice of his intent to use the conviction at trial. Nonetheless, Judge Feldman found that a mistrial was not the appropriate remedy on the ground that "it would be difficult to seat another jury because of media coverage of the trial." Instead, he told the jury that defense counsel's statement about the felony was inappropriate and not to be considered as evidence.
While it's difficult to second guess Judge Feldman without knowing all of the facts of the case, it seems to me that he made the wrong decision. Catalano's credibility and whether he made up the racial basis for the permit amendment seems to be a (the?) central issue in the case. Furthermore, the Federal Rules evince a clear intent to protect individuals from old convictions by requiring not only advanced notice by the party seeking to introduce them but also by requiring specific factual findings that their probative value substantially outweighs their prejudicial effect. Therefore, it's more likely than not that Catalano's conviction would have been deemed inadmissible even if notice were given. See Federal Rule of Evidence 609, advisory committee's note ("Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.").
It would be one thing if Judge Feldman thought that the trial could proceed without worry about the trial being tainted by the evidence, but it appears that he denied a mistrial because of the difficulty of seating a new jury based upon media coverage. But if that's a burden that Catalano was willing to bear, as is clear from his motion for a mistrial, I don't see how Judge Feldman could have denied the motion.
Tuesday, June 10, 2008
"Against The Defendant": Oklahoma Court To Address Whether Defendant's Wife Can Testify About Rejected Plea Deal
The trial of Oklahoma state auditor and inspector Jeff McMahan has raised an interesting issue under Federal Rule of Evidence 410. McMahan is currently standing trial in an Oklahoma federal district court, facing charges of accepting illegal campaign contributions, trips, and jewelry from a southeast Oklahoma businessman. Specifically, the federal grand jury indictment accused McMahan and his wife, Lori, of benefiting from trips, jewelry, and more than $100,000 in illegal contributions to the auditor's 2002 campaign from Oklahoma businessman Steve Phipps. The indictment claimed that Jeff then returned the favor, sometimes at his wife's urging, by giving special favors to Phipps' abstract companies, which the auditor's office regulated.
The prosecution recently rested its case against Jeff, which has raised the question of whether defense counsel can call Lori to testify that she rejected a plea deal with prosecutors under which she ostensibly would have testified against her husband. Defense counsel wants to use this evidence to establish that Lori had an "innocent state of mind," which obviously would benefit Jeff because it is alleged that Lori also participated in the illegal "you scratch my back, I'll scratch yours" behavior with which her husband is charged. Prosecutors have claimed that a federal rule of evidence prohibits such testimony while defense counsel has countered that appeals courts have allowed it. So, who's right?
Well, Federal Rule of Evidence 410 states, inter alia, that
"Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: * * *
(2) a plea of nolo contendere; * * *
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it." (emphasis added).
As I highlighted above, Rule 410 only prohibits the introduction of statements made during plea discussions against the defendant; it does not explicitly proscribe the introduction of such statements against the prosecution. Thus, Rule 410 should not, per se, preclude a defendant or defense witness from testifying that he or she rejected a plea bargain to prove an innocent state of mind. Indeed, this is exactly what the Second Circuit found in United States v. Biaggi, 909 F.2d 662, 690-91 (2nd Cir. 1990).
Of course, it's important to note that simply finding Rule 410 is inapplicable does not automatically make plea-related statements admissible. Such statements still have to be relevant under Federal Rule of Evidence 401 and pass the balancing test under Federal Rule of Evidence 403. And on that front, the court in Biaggi was equivocal. It noted that a witness rejected an offer of immunity in the case before it and found that rejection of an offer of immunity was clearly admissible as evidence of an innocent state of mind. The court then proceeded to find that "[r]ejection of an offer to plead guilty to reduced charges could also evidence an innocent state of mind, but the inference is not nearly so strong as rejection of an opportunity to preclude all exposure to a conviction and its consequences. A plea rejection might simply mean that the defendant prefers to take his chances on an acquittal by the jury, rather than accept the certainty of punishment after a guilty plea. We need not decide whether a defendant is entitled to have admitted a rejected plea bargain."
Since the Biaggi case, most courts have applied its analysis when confronted with rejected plea deals, but have come to different conclusions as to the ultimate question of admissibility, with many cases turning on their facts. At the same time, some courts, usually relying on the 8th Circuit's opinion in United States v. Verdoon, 528 F.2d 103 (8th Cir. 1976), have found that evidence of statements made during plea discussions are per se inadmissible, regardless of whether they are offered against the defendant or against the prosecution.
In my mind, these courts are reaching a nonsensical result. Why? Well, reconsider the exception from Rule 410 listed above, which allows for, inter alia, statements made during plea discussions to be admissible "against the defendant" if "another statement made in the course of the same plea or plea discussions has been introduced..." Clearly, this exception indicates that statements made during plea discussions are not per se inadmissible, and the Advisory Committee's Note to the 1979 amendment to Federal Rule of Criminal Procedure 11(e)(6) [which is now Rule 11(f) and has been "merged" with Federal Rule of Evidence 410] explains the reason for this exception thusly: "This change is necessary so that, when evidence of statements made in the course of or as a consequence of a certain plea or plea discussions are introduced under circumstances not prohibited by this rule (e.g., not 'against' the person who made the plea), other statements relating to the same plea or plea discussions may also be admitted when relevant to the matter at issue." (emphasis added). In other words, the Advisory Committee's Note clearly indicates that defendants are not categorically proscribed from presenting plea related statements against the prosecution.
My disagreement with this line of case notwithstanding, this still leaves the question of how federal courts in Oklahoma and the Tenth Circuit (which covers federal courts in Oklahoma) have dealt with the issue. Unfortunately, I found no cases where these courts dealt with this precise issue. What I do know, however, is that the Tenth Circuit construes the phrase "against the defendant" in Federal Rule of Evidence 410 in a (too) restructive manner in the context of nolo contendere pleas. A criminal defendant who pleads guilty in a criminal case can have his plea used against him in a subsequent civil or criminal case, and thus criminal defendants typically use nolo contendere pleas (or "no contest" pleas) so that their pleas can't be used against them in subsequent proceedings pursuant to Rule 410. Obviously, Rule 410 protects such criminal defendants when they remain defendants in subsequent criminal or civil trials, but what happens when a pleading criminal defendant becomes a civil plaintiff in a related proceeding? For example, what happens to a criminal defendant who pleads nolo contendere to arson and then brings a civil action against his insurance company for refusing to pay on his insurance policy covering the burned property?
In my mind, the answer is clearly that the plea should be inadmissible, an argument I made in my article, The Best Offense is a Good Defense. The Tenth Circuit, however, is among those courts coming to an opposite conclusion, and the way it achieved this result is through what I have dubbed "semantic gymnastics." According to the Tenth Circuit in Rose v. Uniroyal Goodrich Tire Co., 219 F.3d 1216, 1220 (10th Cir. 2000):
"This case does not present the kind of situation contemplated by Rule 410: the use of a nolo contendere plea against the pleader in a subsequent civil or criminal action in which he is the defendant. In this case,...the persons who entered prior no-contest pleas are now plaintiffs in a civil action. Accordingly, use of the no-contest plea...is not 'against the defendant' within the meaning of Fed.R.Evid. 410. This use would be more accurately characterized as 'for' the benefit of the 'new' civil defendants...." (qutoing Walker v. Schaeffer, 854 F.2d 138, 143 (6th Cir. 1988).
As I argued in my article, this alleged dichotomy is nonsensical, but that's a fight for a different day. What the Tenth Circuit's opinion tells us is that it only precludes pleas and plea related statements under Rule 410 in the one scenario where a criminal defendant makes a plea or a plea related statement and is now a defendant in a subsequent proceeding having the plea offered against him. Thus, the court in McMahan's trial should find the wife's rejection of the plea deal admissible.
Monday, June 9, 2008
Dr. Giggles?: California Appellate Court Finds Testimony About Prior Child Dental Abuse Was Improperly Admitted Character Evidence
One of my least favorite days of the year is my trip to the dentist's office, which is probably fueled by the fact that I had about 12 baby teeth pulled when I was a kid because those suckers just didn't want to come out. Well, according to a recent lawsuit in California, the child patients of Dr. Donald Ryan had a more legitimate reason to fear entering his dentist's chair, but according to the ruling of the Court of Appeal of California in Bowen v. Ryan, jurors on re-trial will not hear their testimony.
In Ryan, Dr. Ryan was a dentist in practice for about 28 years who had treated around 45,000 patients, with the vast majority of his patients being children, some of whom had been referred by other dentists because they were difficult to treat. One of those patients was 8 year-old D'Michael Bowen. In 2002, Bowen developed an infected tooth but refused to open his mouth when his mother took him to a first dentist. When Bowen's condition worsened, his mother took him to Dr. Ryan, who planned to do a pulpectomy (a procedure similar to a root canal) and applied a topical anesthetic prepatory to Bowen. It is at this point that Bowen's version of events and Dr. Ryan's version of events diverged.
According to Bowen, he began to cry when he saw Dr. Ryan take a syringe from the counter, said that he did not want a shot, and cried “no, no, no” over and over. Bowen began kicking his feet and he put his arms above his stomach, whereupon Dr. Ryan placed his arm on the right side of Bowen's neck and pushed hard, making it impossible for him to breathe. Bowen, however inconsistently described the amount of time that Dr. Ryan placed his arm on his neck, with his estimate ranging from 3 to 4 to 60 seconds. Bowen was consistent in alleging that Dr. Ryan finally let go when his assistant told him to stop. Bowen then used the bathroom, and when he returned, Dr. Ryan slammed him against a wall and held him there, angrily asking if there was going to be a problem and if Bowen would let him work on his teeth. Although Bowen was scared, he said he would cooperate, and Dr. Ryan completed the planned treatment. Bowen thus brought causes of action against Dr. Ryan sounding in assault, battery, and professional negligence.
Bowen's version of events was contradicted by Dr. Ryan (and his dental assistant). Dr. Ryan claimed that after applying the topical anesthetic, he approached the injection site with an unsheathed syringe, whereupon Bowen began kicking and grabbed Dr. Ryan's wrist with both of his hands. Concerned that the needle would hurt Bowen, his dental assistant, or himself, Dr. Ryan put his forearm on Bowen's chest to stabilize the syringe and repeatedly told Bowen to let go of his arm. Bowen then asked to go the bathroom, and Dr. Ryan allowed him to do so after he let go of his arm. Before Bowen left the room, however, Dr. Ryan put his hand on Bowen's chest; he did not push him, but instead explained that his job was to fix Bowen's teeth, and that they could either be fixed here or at the hospital. When Bowen later returned from the bathroom, Dr. Ryan continued the procedure without further incident.
At trial, Bowen presented testimony relating to 9 other incidents of alleged dental abuse of child patients by Dr. Ryan, which involved, inter alia, slapping children, placing a hand over a child's mouth so the child couldn't breathe, strapping down and hitting a child, and lifting a child by the arms. The jury ultimately returned a nine-to-three verdict in favor of plaintiff, awarding him $10,000 for negligent treatment, $10,000 for dental battery, and $70,000 for battery.
On Dr. Ryan's appeal, the Court of Appeal of California noted that the testimony relating to the 9 other incidents would be inadmissible under California Code of Evidence Section 1101(a) if it were simply introduced to prove that Dr. Ryan had a propensity to commit dental abuse against children and thus likely committed dental abuse against Bowen. It noted, however, that the testimony could have been admissible to prove common plan or design under California Evidence Code Section 1101(b).
The problem that the appellate court found with this latter rationale, though, was that the testimony
"did not demonstrate the existence of a common plan. Defendant was accused of putting his arm against plaintiff's throat when giving him an injection and then later shoving plaintiff against a wall. None of the witnesses described similar treatment. Some said they were hit, some said they were restrained, some said that defendant employed a hand-over-mouth technique. Neither the context of these other incidents nor the acts complained of shared the requisite common features with the incident plaintiff alleged to have happened."
Moreover, the court found that testimony about nine incidents was highly selective and could not be considered representative of Dr. Ryan's 28 year/45,000 patient career. The court thus reversed and remanded the case with instructions that this testimony be deemed inadmissible on re-trial
I agree with the court's decision. The Bowen incident and the 9 similar incidents weren't that similar at all, and while 9 events would normally seem like a lot of prior incidents, decreasing the amount of similarity needed (i.e., in the case of a serial killer), in the case of a dentist with 45,000 patients, 9 events over 28 years seems, as the court noted, unrepresentative of Dr. Ryan's career.
Sunday, June 8, 2008
Recalculating, Take 2: New York Appellate Court Finds Warrant Isn't Needed Before GPS Device Is Affixed To A Suspect's Vehicle
Last month, I wrote about a Tennessee case where police had, without a warrant, affixed a GPS tracking device on the Jeep of a man they suspected of being a serial rapist, whom they referred to as the "Wooded Rapist." In that post, I noted that there was a split of authority across the country as to whether police officers have to obtain warrants before attaching such devices to vehicles. The case I cited in support of the proposition that a warrant is not required was a case from a New York trial court: People v. Gant, 802 N.Y.S.2d 839, 846 (N.Y.Co.Ct. 2005). At that point in time, however, no appellate court in New York had ever addressed the issue of whether police can so affix a GPS tracking device without a warrant, but that all changed with the opinion of the New York Supreme Court, Appellate Division, Third Department in People v. Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), on Thursday.
In Weaver, a police officer, in the course of investigating a series of burglaries and acting without a warrant, attached a GPS device under the bumper of Scott Weaver's van while it was parked on a public street. Based upon the data retrieved from this device and other evidence, Weaver and a codefendant were arrested and charged with burglary in the third degree and grand larceny in the second degree in relation to a theft from a K-Mart Store, as well as burglary in the third degree and petit larceny in relation to a theft from a meat market six months earlier. After he was convicted of these crimes, Weaver appealed to the appellate division, claiming, inter alia, that the trial court erred in denying his motion to suppress all of the evidence obtained against him as a result of the warrantless placement of the GPS device on his van.
The Third Department began by noting that only two New York trial courts had addressed the issue and that they had come to different conclusions (In the aforementioned Gant case, the court found that no warrant was required; in People v. Lacey, 3 Misc.3d 1103(a) (County Ct Nassau County 2004), the court found that a warrant was required absent exigent circumstances). It then noted, however, that "[n]o appellate court in New York...has yet considered whether such electronic surveillance constitutes a violation of the vehicle owner's constitutionally protected reasonable expectation of privacy."
In addressing this issue, the Third Department indicated that it was guided by the well-settled principle that "where there is no legitimate expectation of privacy, there is no search or seizure" under the Fourth Amendment. It then found that pursuant to federal precedent, a defendant can neither reasonably expect privacy in the publicly accessible exterior of his or her vehicle, nor in the location of his or her vehicle on public streets. It thus found that the warrantless attachment of the GPS to Weaver's vehicle was legal because collecting information about the movement of a vehicle on public thoroughfares by means of an electronic device attached to a vehicle's undercarriage, which does not damage the vehicle or invade its interior, does not constitute a search or seizure in violation of the Fourth Amendment.
Moreover, the Third Department found that nothing in the Fourth Amendment prohibits the police from using science and technology to enhance or augment their ability to surveil that which is already public. Furthermore, the court concluded that "[i]nasmuch as constant visual surveillance by police officers of defendant's vehicle in plain view would have revealed the same information and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant's Fourth Amendment protections.
I still disagree with this final conclusion and refer readers back to my previous post, where I quoted the Supreme Court of Washington's opinion in State v. Jackson, 76 P.3d 217 (Wash. 2003), which found that a warrant was required, noting, inter alia, that it perceived "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...[T]he 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."
And apparently, Justice Stein, who dissented in Weaver, agreed, citing liberally to the Jackson opinion in concluding that a warrant was required before the GPS device was affixed. Now, Justice Stein actually found that the Fourth Amendment to the U.S. Constitution did not require a warrant, but he found that the New York Constitution did require a warrant because it affords a broader scope of protection than that accorded by the Federal Constitution in cases concerning individual rights and liberties. And, like the court in the Jackson case, Justice Stein defended his position with what I regard as quite elegant language:
"Specifically, I would reject the 'premise...that information legitimately available through one means may be obtained through any other means without engaging in a search....' Instead, I would adopt the principle that 'a privacy interest...is an interest in freedom from particular forms of scrutiny'...and would find that '[a]ny device that enables the police quickly to locate a person or object anywhere ... day or night, over a period of several days, is a significant limitation on freedom from scrutiny'...and upon a person's reasonable expectation of privacy, even if it occurs in a place where an expectation of privacy would not be considered reasonable under other circumstances. Stated otherwise, while the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause."
Do readers have an opinion on this issue? Do drivers shed their constitutional rights against warrantless searches at the garage door? Is affixing a GPS device to a vehicle the same level of intrusion as police surveillance? Are readers comfortable with the Third Department's ruling, or are there concerns about the level of surveillance that can take place with today's (and tomorrow's) technology?