EvidenceProf Blog

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

Saturday, June 28, 2008

Unsettling Decision: D.C. Court Finds Resolution Meeting Doesn't Trigger Rule 408 In IDEA Action

The recent opinion of the United States District Court for the District of Columbia in Friendship Edison Public Charter School Chamberlin Campus v. Smith, 2008 WL 2513900 (D.D.C. 2008), seems to me to contain a woefully misguided interpretation of Federal Rule of Evidence 408.  Here were the basic facts of Smith:

Friendship Edison Public Charter School ("FEPCS"), is a D.C. public charter school which elected to be its own Local Education Agency ("LEA") pursuant to the Individuals with Disabilities Education Act ("IDEA"), for special education issues.  Meanwhile, Ebony Smith is the legal guardian of L. S., her ten-year old son, who attended FEPCS during the 2004-05 and 2005-06 school years.  In January 2005, Smith submitted to FEPCS a written request to have L.S. evaluated for eligibility to receive special education services.  On July 15, 2005, Smith filed an Administrative Due Process Complaint alleging that, inter alia, FEPCS failed to timely evaluate L.S., and requested independent evaluations and compensatory education.

On July 28, 2005, FEPCS sent a letter to Smith requesting consent to evaluate L. S., but never received a response, and the parties later convened for a "resolution meeting" on August 2, 2005. It was undisputed that during the resolution meeting, FEPCS informed Smith that if she consented, the requested evaluations would be completed within thirty days and a Multi-disciplinary Team (“MDT”) eligibility meeting for L.S. would be conducted.  FEPCS also informed Defendants that if the evaluations were not completed by September 2, 2005, FEPCS would fund independent evaluations for L.S.  Smith, however, rejected the offer and continued to request independent testing for L.S., leading to a Due Process Hearing, where Smith's counsel moved to exclude documentary evidence regarding the resolution session and FEPCS' offer of settlement from the administrative record.

The Hearing Officer agreed and refused to allow into evidence the notes from the resolution meeting or any testimony regarding the resolution meeting, stating that the resolution session was a settlement discussion. The Hearing Officer thereafter found that FEPCS' "actions, or inactions...impeded the student's right to a [free appropriate public education]" and ordered FEPCS to fund independent evaluations.  Instead, FEPCS appealed to the United States District Court for the District of Columbia.

And that court relied upon its prior opinion in Davis v. District of Columbia, 2006 WL 3917779 (D.D.C. 2006), in finding that the Hearing Officer erred.  In Davis, the court found that:

Rule 408 does not apply in this case because the resolution meeting was not a settlement negotiation.  Section 1415 of IDEA states that the purpose of a resolution meeting is to resolve the complaint before the hearing; however, no provision of that statute suggests that the information disclosed during the meeting will be kept confidential....The Defendants never held the resolution meeting out as a settlement negotiation, and Plaintiff had no reasonable expectation that believe the resolution meeting would be confidential."

There is, however, a gaping hole in the court's logic.  And that hole is that Federal Rule of Evidence 408 never mentions the word "settlement negotiation."  Here is the entire text of Rule 408:

     "(a) Prohibited uses.—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 ; and

          (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

     Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution."

In other words, the court should have been focused on whether FEPCS offered or promised to furnish a valuable consideration in attempting to compromise Smith's claim.  And isn't that exactly what FEPCS did?  It offered to complete the requested evaluations by or certain date or fund independent evaluations.  And according to the court and Section 1415 of IDEA, the purpose of the "resolution meeting" was to resolve Smith's complaint. Thus, the court should have found that FEPCS' offer was inadmissible under Federal Rule of Evidence 408See, e.g., United States v. Arias, 431 F.3d 1327 (11th Cir. 2005).   

Furthermore, even if the court was correct in finding that Federal Rule of Evidence 408 applies solely to "settlement negotiations," its reasoning for why the "resolution meeting" was not a "settlement negotiation" would be unavailing.  It focused on the fact that there was no expectation of confidentiality in the meeting, but as I have noted, this factor is irrelevant to the Rule 408 calculus.


June 28, 2008 | Permalink | Comments (1) | TrackBack (0)

Friday, June 27, 2008

Mississippi Burning: Court Of Appeals Of Mississippi Makes Bizarre "Harmless Error" Ruling In Re-Cross-Examination Case

The recent opinion of the Court of Appeals of Mississippi in Ronald "Rudy" Moore a/k/a Ronald Moore v. State of Mississippi, 2008 WL 2498240 (Miss.App. 2008), contains both an interesting discussion about the different Constitutional footings of cross-examination and re-cross-examination and what I conclude as an indefensible "harmless error" ruling.

In Moore, when Julius Heard returned home in his car after getting some food from Sonic, he was approached by an individual who identified himself as "Rudy."  Rudy told Heard that he needed a ride to his house in Presidential Hills because he had just had a fight with his girlfriend, but Heard refused to give him a ride. Heard then exited his vehicle, but Rudy brandished a forty-five-caliber pistol and demanded that Heard take him to Presidential Hills.  Heard complied and drove Rudy to Presidential Hills, whereupon Rudy demanded that Heard turn the car onto James Garfield Circle. After Heard again complied, Rudy shot him in the face, with a portion of Heard's jaw landing in his lap. Heard tried to escape, but Rudy shot him in the "rear." Rudy then straddled Heard's back and rummaged through Heard's pockets. He eventually shot Heard three more times in the head and ran away with five hundred dollars of Heard's money.

Miraculously, Heard survived and dialed 911 on his cell phone, leading to officer Kenny Bryant's arrival at the scene. Bryant testified that Heard repeated the name "Rudy" several times before the paramedics took Heard to the hospital.  Detective Ford Hayman later arrived at the scene of the crime and was approached by an anonymous person, who told him "that the person responsible for the shooting was Rudy."  Detective Hayman thereafter used the police database to determine that "Rudy" was likely Ronald Moore.  He thus created a photo lineup to show to Heard, who identified Moore as his assailant.

Ronald Moore was thus charged with aggravated assault and armed robbery, and the state presented against him: (1) Heard's testimony, (2) Heard's identifications of Moore as his assailant to the detectives, (3) the anonymous person's statement to Hayman, and (4) evidence that a fingerprint lifted from the passenger-side rear fender of Heard's car belonged to Ronald Moore.  After Moore was convicted, he appealed to the Court of Appeals of Mississippi.

The Court correctly noted that the anonymous person's statement to Hayman was hearsay, but deemed its admission harmless error.  What this meant was that the only evidence indicating anything beyond the fact that Moore was in Heard's car were Heard's testimony and his statements to the detectives; in other words, the state's case hinged upon Heard's credibility.

And at trial, defense counsel attacked Heard's credibility, presenting evidence that he was smoking marijuana on the day of the shooting and impeaching him through evidence of a prior grand larceny conviction.  During redirect examination, the prosecutor asked Heard about drug testing, and Heard responded that he had never failed a drug test or violated his probation.  After redirect, defense counsel sought to re-cross-examine and impeach Heard with evidence that his probation was revoked for illegal drug use, but the trial court prevented such re-cross-examination

On appeal, Moore claimed that the trial court erred by denying him his Constitutional right to cross-examine Heard.  The Court of Appeals disagreed, finding that Article 3, Section 26 of the Mississippi Constitution of 1890 guarantees criminal defendants the right to cross-examine witnesses against them, but that re-cross-examination is not allowable as a matter of right, but only a matter of trial court discretion.  The court thus found that it was merely reviewing the trial court's order for abuse of discretion, and, indeed, it did find that the trial court abused its discretion.

Nonetheless, the Court of Appeals found that this was also "harmless error" because:

     "Here, Moore was allowed an extensive opportunity to impeach Heard regarding his drug use and criminal history. The jury also heard evidence that Heard was smoking marijuana on the day of the shooting. The principle of harmless error also applies to Heard's false statements. Moore had already impeached Heard with his prior conviction. Thus, Moore was allowed to present evidence to the jury that Heard's testimony might not be completely reliable. The defense had the opportunity to extensively impeach Heard, and any further impeachment on either issue would merely be cumulative."

Really?  As noted, the state's entire case hinged on Heard's credibility.  Put yourself in the jury's shoes.  You hear that the state's key witness had a prior grand larceny conviction.  You hear that he was smoking marijuana on the day that he was shot.  Undoubtedly, both of these facts are going to cause you to doubt his testimony.  But would either of these facts cause you to doubt his testimony as much as actual evidence that he blatantly lied on the witness stand?  Or, at the very least, would you be able to say that such evidence would add nothing to the table?  The Court of Appeals of Mississippi answered the latter question in the negative, and I see no way to defend its decision.


June 27, 2008 | Permalink | Comments (2) | TrackBack (0)

Forfeit Victory, Take 9: Ohio Supreme Court Denies McCarley's Appeal

In February, I did a post about the appeal of Willard McCarley, who successfully argued that the forfeiture by wrongdoing doctrine did not apply to statements made by his alleged murder victim.  Despite the fact that McCarley won this argument, he lost his appeal as the Court of Appeals of Ohio found that the trial court's error in admitting the victim's statements was harmless error.  Yesterday, I had the opportunity to revisit the McCarley case as an example of how the Supreme Court's opinion in Giles could be read to allow statements such as the statements of the victim in McCarley's case under the Court's seeming approval of a "transferred intent" theory of the forfeiture by wrongdoing doctrine

That post led me to wonder whether McCarley appealed this ruling, and, oddly enough, I found this story from yesterday, indicating that the Supreme Court of Ohio just denied McCarley's appeal, finding that the appeal did not raise any "substantial" points that would have caused a reason for approval of the review.


June 27, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2008

Forfeit Victory, Take 8: Interesting Interpretation of Giles Opinion At SCOTUSblog And My Second Take On The Opinion

Over at SCOTUSblog, Lyle Denniston has an interesting analysis of the Giles opinion.  Denniston notes that:

     "Justice Scalia, in comments that appeared to be made at least partly to hold two of the six votes (and thus majority prevailing over three dissents), said that state courts were free now to probe what Giles’ intent was in killing his former girlfriend. If there is proof of an 'abusive relationship' that ends in murder, Scalia said, that might support a finding that the crime represented an intent 'to isolate the victim and to stop her' from reporting the abuse or cooperating with a criminal investigation.

     He added: 'Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.'  That is the kind of potential evidence of intent that state courts may now examine, the opinion said.

     Justice David H. Souter, in a separate opinion joined by Justice Ruth Bader Ginsburg, gave special emphasis to the situation that might be present if a 'domestic abuser in the classic abusive relationship' sought to keep the victim from seeking help from law enforcement officers.  'If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger,' Souter wrote.

     Since their votes were essential parts of the majority, the added emphasis on a situation of domestic abuse (an emphasis that the three dissenters embraced, incidentally) could limit the impact on prosecutions that the Court’s decision might otherwise have."

These are all good points, but what I would draw from these statements when viewed of the context of the entirety of the opinions is that "evidence of ongoing criminal proceedings at which the victim would have been expected to testify" appears to be the sine qua non for application of the forfeiture by wrongdoing doctrine in this type of domestic violence case.  As I noted yesterday, Scalia indicated that the "intent" required for application of the doctrine is that it was the specific intent/purpose/design of the defendant to render the witness unavailable to testify against him.  With that being the case, I just don't see how "earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help" could meet that standard because the defendant's behavior wouldn't be specifically directed toward preventing the victim's testimony but instead would be directed toward preventing any type of help, whether it be legal, familial, or spiritual.  I would, however, love to be wrong on this front.

In this sense, Denniston's argument that the Giles opinion might be less harmful to domestic violence prosecutions than it appeared at first blush could be overstating the case.  At the same time, the passages cited by Denniston might signal a different way in which Giles could be less harmful to prosecutions in general than I first thought.  Sticking to my formulation of Scalia's majority opinion as requiring "specific intent," the passages cited by Denniston seem to indicate that Scalia also allows for application of the doctrine based upon "transferred intent."  In other words, if a husband is already facing domestic abuse charges against his wife and then murders her to prevent her from testifying against him in that case, obviously the specific intent/purpose/design of this act was not to prevent his wife from testifying against him at his subsequent murder trial because there could be no such trial under after he murdered his wife.  But according to the way I read the passages cited by Dennistion, the husband's intent to silence the wife in the domestic abuse trial would transfer to the murder trial and allow for application of the doctrine.

For an example of this scenario, let's look at the case of State v. McCarley, which I blogged about in February.  As I noted then: 

     "In McCarley Charlene Puffenbarger filed a paternity/child support suit in November 1991 naming Willard McCarley as the father of her two year old son.  On January 20, 1992, a neighbor came to Charlene's apartment and found her dead on a couch with several scalp lacerations, defensive wounds on her hands, and a leather strap wrapped twice around her neck.  After trial, McCarley was found guilty of aggravated murder after, inter alia, witnesses testified about statements Charlene made to them after she brought her paternity suit and before her murder, which were admitted pursuant to Ohio Rule of Evidence 804(b)(6), its version of the forfeiture by wrongdoing doctrine, which allows for the admission of "[a] statement offered against a party if the unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying.  The Court of Appeals of Ohio found that this evidentiary ruling was erroneous because "[i]t would be a very strange case indeed if a person murdered another for the purpose of preventing the other from testifying in their own murder trial."

Again, according to the way I read the passages cited by Dennistion, if Puffenbarger intended to prevent McCarley from testifying against him in the paternity/child support suit, his intent could transfer to the murder trial and allow for application of the doctrine.


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

No Emergency Exit: Florida Prosecutors Dismiss Animal Cruelty Case Based Upon Confrontation Clause

On Tuesday, Florida prosecutors dismissed the animal cruelty case against Josper Sanon, a decision that came two months after the 4th District Court of Appeal reversed his animal cruelty conviction and remanded for a new trial.  In October 2006, Sanon was convicted of animal cruelty after allegedly hurling his son's black Labrador puppy, Nikita, off of a fifth-floor balcony, killing the 8-week old puppy upon impact.  The problem with the conviction was that it was largely based upon the son's claim that Sanon killed the pooch, and the son did not testify at trial.  Instead, a police officer testified that he was driving on the day in question when he saw a boy talking on his cell phone, crying and flailing his arms.  According to the officer, when he asked the boy what had happened, the boy responded that his father had thrown his dog off of the balcony.  Despite receiving a subpoena, the son did not attend his father's trial.

Santon was halfway through serving his three-year prison sentence before the 4th District concluded that the son's failure to testify was fatal to the prosecution's case.    And it was fatal because it violated the Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 547 U.S. 813 (2006).  In Crawford, the Court essentially found that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.  The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."

In Davis, the Court tweaked that analysis, noted that context matters, and seemed to conclude that even statements meeting the above formulation of "testimonial" could be admissible if they were made during an "ongoing emergency."  According to the 4th District, however, the son's statements were not made as part of an "ongoing emergency."  Instead, the son's statements occurred 20 minutes after the incident, with the officer approaching the son rather than vice versa.  And while the state claimed that the son's statements were also admissible as excited utterances, the 4th District noted that excited utterances still must satisfy the Confrontation Clause.

The 4th District thus reversed for a new trial, and, realizing that it no longer had a case, the state finally threw in the towel on Tuesday and dismissed the charges against Sanon.  In my estimation, this is a very upsetting case, but a correctly decided one under the law.


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

Wednesday, June 25, 2008

Forfeit Victory, Take 7: Supreme Court Vacates Giles, With Key Analysis In a Footnote

The Supreme Court issued its opinion in Giles v. California today.  Justice Scalia wrote the majority opinion, which vacated and remanded the judgment of the Supreme Court of California.  In other words, the Court held that application of the forfeiture by wrongdoing doctrine requires a specific intent on the part of a criminal defendant to render a witness unavailable for trial (e.g., the witness tampering situation) and thus does not apply in a case where, for instance, a husband allegedly murders his wife and then stands trial for her murder. 

In my first pass through the opinion, it strikes me that the key holding in the majority opinion is buried in a footnote.  According to the majority opinion, the only way that it could have accepted the Supreme Court of California's non-specific intent formulation of the forfeiture by wrongdoing doctrine was if its formulation was a founding-era exception to the confrontation right.  Fair enough.  So, what was the founding-era exception?  According to the majority, it was the common law doctrine of "forfeiture by wrongdoing" derived from Lord Morley's Case, which allowed for the "introduction of statements of a witness who was 'detained' or 'kept away' by the 'means or procurement' of the defendant."  The majority opinion then notes that "[c]ases and treatises of the time indicate that a purpose-based definition of these terms governed" and cites two treatises and one case in alleged support.  The two treatises stated that the doctrine required that the defendant kept the witness away by the defendant's "means and contrivance" while the case required that the witness was "kept away by the contrivance of the opposite party."

There is, however, a large problem with this argument.  And that is that the case said nothing of the sort.  The case -- Drayton v. Wells, 10 S. C. L. 409, 411 (S.C. 1819) -- stated that there are "four cases only, in which the testimony of a witness who has been examined in a former trial, between the same parties, and where the point in issue was the same, may be given in evidence, on a second trial, from the mouths of other witnesses, who heard him give evidence:

1st. Where the witness was dead.
2nd. Where he was insane.
3rd. Where he was beyond seas; and
4th. Where the Court was satisfied that the witness had been kept away by the contrivance of the opposite party."

In other words, as far as I can tell, Drayton was at best tangentially related to the forfeiture by wrongdoing doctrine and, in fact, held that in some cases, the simple fact that the witness was dead allowed for the admission of his former testimony (case 1).  As for the treatises, I don't have access to them, so I can't tell you exactly what they state.

What I do know is that Morley itself said that the defendant merely needed to detain or keep away a witness by "means or procurement" and that, in the dissenting opinion, Justice Breyer cites to authorities such as Williams v. State, 19 Ga. 403 (Ga. 1856), in which courts/authors retained this "means or procurement" language.  According to the dissenting opinion, then, because the term "means" does not necessarily require a finding of specific intent and because Morley merely required "means or procurement[/contrivance]" and not "means and procurement[/contrivance]," the Supreme Court of California acted properly.

And you know what?  The majority opinion failed to disagree with this argument, at least in the body of the opinion.  In the body of its opinion, the majority acknowledges that "the term 'means' could sweep in all cases in which a defendant causes a witness to fail to appear," although "it can also connote that a defendant forfeits confrontation rights when he uses an intermediary for the purpose of making a witness absent."  So, where does the majority address the dissent's argument?  The answer can be found in footnote 1, where the majority notes the dissent's argument about the "means or procurement" language and states that "the authorities we cited resolve this ambiguity in favor of purpose by substituting for the 'means or procurement' of Lord Morley's Case either 'contrivance' or 'means and contrivance.'"

As I noted, though, the case cited by the majority certainly doesn't say this (does anyone have access to the other authorities?).  And I know from reading this article by my colleagues that many cases of the time also did not mean what Scalia thought they meant.  I'm sure that I will have more to say about this opinion in the coming days, but at this point, I firmly disagree with the majority's opinion.


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

For The Dogs: 11th Circuit Approves Circumscription Of Lay Witness Testimony On Dog Kennel Operation in Workers' Comp Case

Although the opinion itself is a bit elliptical, the 11th Circuit's recent decision in United States v. Lavigne, 2008 WL 2487917 (11th Cir. 2008), provides a nice opportunity to review what I regard as the completely ineffectual 2000 amendment to Federal Rule of Evidence 701.  While the opinion is not a model of clarity, here's what I believe transpired in Lavigne:

Barbara Lavigne applied for federal workers' compensation benefits on the ground that she was unable to work.  The feds, however, discovered that she was operating a dog kennel and thus charged her with using fraud to obtain federal workers' compensation benefits.  At trial, Lavigne called Vida Ellis and Deborah Howington, who presumably also owned or worked at dog kennels, to testify that her dog kennel operation constituted a hobby and not a business.  While the district court allowed these witness to provide some testimony, it also circumscribed their testimony in some manner.  I can't say in exactly what manner because the 11th Circuit did not describe their testimony to any degree in finding that the district court acted in within its discretion.  But you know what?  It really doesn't matter based upon the 2000 amendment to Federal Rule of Evidence 701, under which courts can basically do as they please.

Why do I say this?  Well let's look at Federal Rule of Evidence 701.  Before 2000, it read:

"If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue."

The problem with this iteration of the rule was that it allowed parties to sneak in expert witness testimony under this rule without the need to establish the witness as an expert witness.  So, the decision was made to amend the rule so that lay witness testimony under Federal Rule of Evidence 701 cannot be "based on scientific, technical, or other specialized knowledge within the scope of Rule 702

That certainly sounds like an admirable goal, but let's look at the Advisory Committee's Note to the rule to see why trial courts can now basically do what they want without abusing their discretion.  According to the Note, "[t]he amendment is not intended to affect the ''prototypical example(s) of the type of evidence contemplated by the adoption of Rule 701 relat(ing) to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences."

Okay, that sounds reasonable enough, so how did the Committee apply it to some specific factual scenarios?  Well, here are the two situations where the Committee drew permissible/impermissible dichotomies:

     -(1) "[C]ourts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established....Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson's personal knowledge. If, however, that witness were to describe how a narcotic was manufactured, or to describe the intricate workings of a narcotic distribution network, then the witness would have to qualify as an expert under Rule 702."

     -(2) "The court in Brown noted that a lay witness with experience could testify that a substance appeared to be blood, but that a witness would have to qualify as an expert before he could testify that bruising around the eyes is indicative of skull trauma. That is the kind of distinction made by the amendment to this Rule."

Is anyone else confused by what exactly is meant by "the kind of distinction made by the amendment to the rule?"  I sure am, and my sense is that courts are as well, which has basically resulted in courts doing as they please.  To wit, readers might recall another 11th Circuit case, where I posted that the court approved the district court's admission of a DEA agent's testimony that the defendant was conducting a "heat run" as lay witness testimony even though other circuits had found that such testimony could only be rendered by an expert witness.  I tend to side with the courts seeking expert qualification in a broader range of scenarios, but with the way that the rules are currently written, it's tough to assign fault to anyone.


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

Tuesday, June 24, 2008

Georgia Rule: Supreme Court of Goergia Hears Oral Arguments On Alleged "Secret Rule" By Magistrate Judges

As an Atlanta Journal and Constitution story correctly notes, courts don't often hear cases pitting a district attorney against a lower court, but that is exactly the scenario with which the Supreme Court of Georgia was presented yesterday in Magistrate Court DeKalb County et al. v. Fleming.  So, what led to the showdown?

Last year, a man stood accused of shooting at two police officers.  The man was unable to make bond and thus secure his release, but he was able to secure a preliminary hearing in the Magistrate Court of DeKalb County to determine whether there was probable cause to continue holding him.  At that hearing, which was held last May, DeKalb District Attorney Gwen Keyes Fleming called only the investigating detective to testify about what he had been told, rendering his testimony hearsay.  Presiding Magistrate Judge Kathy Dorough found that this "testimonial" hearsay was insufficient to continue holding the defendant but did offer to continue the hearing to a later time so that the prosecution could produce the testimony of the two officers who were shot at.  Fleming refused, claiming that she thought that the hearsay testimony was sufficient, and Dorough responded by dismissing the charges and freeing the defendant.

In response, Fleming sued the judges of the Magistrate Court of DeKalb County, claiming that Judge Dorough refused to give proper weight to the officer's testimony and that the judges as a whole have an improper policy prohibiting them from binding over a case on a finding of probable cause based solely on hearsay.  Fleming thereafter got the case transferred to a court in Rockdale County, which agreed with her.  This ruling then prompted the magistrate judges to appeal to the Georgia Supremes.  Here are the arguments of both sides:

According to Fleming, the "case is about power," with the judges' "self-created hearsay evidentiary rule" flying in the face of, inter alia, the Supreme Court of Georgia's opinion in Gresham v. Edwards, 644 S.E.2d 122 (Ga. 2007).  Fleming claimed that this self-created rule can be adduced from an interoffice memorandum from th e court and that it has a detrimental effect "on valid criminal charges, on victims, and on the community." 

Meanwhile, the judges denied that they had crafted a "self-created hearsay evidentiary rule."  Moreover, they claimed that the Rockdale court was wrong to rule that they lacked the discretion to require some non-hearsay evidence before binding the case over to superior court for trial.  They claimed that such a finding would prohibit them from doing their job, under which they have "not only the right, but the duty" to dismiss charges at the preliminary stage if in their "discretion and judgment, the burden of proof necessary to establish probable cause has not been met by admissible and credible evidence."

During oral arguments yesterday, it seemed that the Supreme Court Justices were weighing 3 options (in addition to the possibility that they would dismiss because Fleming lacked the authority to sue he judges).  They could:

     -order the magistrate judges to treat hearsay as legal evidence, which can be sufficient to continue holding a defendant unless the truthfulness of the testimony is in doubt;

     -tell Keyes Fleming the magistrate judges have the authority to treat hearsay testimony as they see fit; or

     -go further, as suggested in a friend-of-the-court brief from the DeKalb public defender's office, and prohibit all hearsay testimony in preliminary hearings (which is unlikely because DeKalb's magistrate court is the only one in Georgia to insist on more than hearsay testimony).

And my response is that whatever the justices decide will not be that big of a deal (unless they select the 3rd option, which seems very unlikely based upon no other Georgia court applying it).  Is Fleming right that Gresham v. Edwards held that the state can present "testimonial" hearsay at preliminary hearings?  Yes, but Judge Dorough allowed the police officer to render such "testimonial" hearsay, making this a non-issue.  Do the judges of the Magistrate Court of DeKalb County have a secret, improper policy prohibiting them from binding over a case on a finding of probable cause based solely on hearsay?  Maybe and maybe not, but if they do, it would seemingly express the belief by those judges that such evidence is indeed insufficient.  And if that's the case, and even if the Georgia Supremes strike down that policy, there's still nothing stopping those individual judges from applying that same "secret rule" to the facts of any specific case.   In other words, the justices could rule every which way but loose, and I think that things would still look pretty much the same as the status quo.


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

Monday, June 23, 2008

Call The Doctor: Arizona Court Finds Medical Malpractice Expert Witness Statute Violates Separation Of Powers

In Seisinger v. Siebel, 2008 WL 2426811 (Ariz.App. Div. 1 2008), the Court of Appeals of Arizona found that a state statute requiring an expert witness in a medical malpractice action to meet certain criteria was in direct conflict with a rule of evidence and was thus unconstitutional.  It's a decision with which I agree, but I also think that Arizona might have been on the right track with the statute.

In Siebel, Laura Seisinger filed a complaint against Scott Siebel, M.D., alleging that he committed medical malpractice when he administered a spinal epidural to her.  Seisinger thereafter disclosed Dr. J. Antonio Aldrete, M.D., as an expert witness, but Dr. Siebel moved in limine to preclude Dr. Aldrete's testimony because he did not meet the requirements of Arizona Revised Statute Section 12-2604, governing the qualifications necessary for expert witnesses in medical malpractice actions. Seisinger did not dispute that Dr. Aldrete could not satisfy the requirements set forth in Section 12-2604; instead, she argued that the statute was an unconstitutional violation of the separation of powers doctrine because it is in direct conflict with Arizona Rule of Evidence 702 and asked the trial court to declare it unconstitutional. The trial court, however, granted Dr. Siebel's motion and ultimately dismissed Seisinger's complaint, prompting her appeal to the Court of Appeals of Arizona.

The Court of Appeals first noted that the Arizona Constitution confers on the Arizona Supreme Court the exclusive power to make rules relative to all procedural matters in any court.  The court thus noted that the judiciary will recognize legislatively enacted procedural rules only if they are "reasonable and workable" and do not conflict with, or tend to engulf, the Arizona Rules of Evidence promulgated by the Arizona Supreme Court.

It then proceed to compare Arizona Rule of Evidence 702 with Section 12-2604.  Under Rule 702, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Under Section 12-2604(A):

     "A.  In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and the person meets the following criteria:

          1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty.

          2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person's professional time to either or both of the following:

               (a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty.

               (b) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant and, if the defendant is or claims to be a specialist, in an accredited health professional school or accredited residency or clinical research program in the same specialty or claimed specialty.

          3. If the defendant is a general practitioner, the witness has devoted a majority of the witness's professional time in the year preceding the occurrence giving rise to the lawsuit to either or both of the following:

               (a) Active clinical practice as a general practitioner.

               (b) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant."

The Court of Appeals found that while Rule 702 authorizes expert testimony on the basis of "knowledge, skill, experience, training, or education," Section 12-2604(A) precludes a witness who is otherwise qualified under Rule 702 from testifying in a medical malpractice case unless he or she meets the additional strict practicing and teaching requirements set forth in the statute.  The court thus rejected Dr. Siebel's argument that the statute merely supplemented the rule and instead found that it was in "direct conflict" with the rule and was unconstitutional as an infringement on the exclusive rule-making authority of the Arizona Supreme Court.  The court finally noted that while the legislature does have the power to enact statutes that establish substantive rights, Section 12-2604(A) was procedural and was thus not constitutional.

I agree with the court's ruling and find it to be consistent with similar cases across the country, including one cited by the court.  See McDougall v. Schanz, 597 N.W.2d 148, 153-54 (Mich. 1999).  But does the judiciary have something to learn from the legislature in these cases?  I've noted before that most courts are exceedingly liberal in finding witnesses to be qualified as experts under both Federal Rule of Evidence 702 and state counterparts.  That leaves the question of whether judges are properly acting as matadors in many of these cases.  With regard to the medical malpractice context, the question would be whether most or all physicians in a particular specialty such as podiatry, are qualified to render expert opinions on specialty-specific conditions, such as plantar fascitis ("flip-flop disease" or "dog's heel") or whether only those physicians with sufficient (continuing) qualifications can render such testimony.  I think that the Arizona legislature might have taken things too far with Section 12-2604(A), but I also think that Rule 702 is too toothless.  Maybe judiciaries and legislatures can meet somewhere in between.


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

Sunday, June 22, 2008

Masked And Anonymous: U.K. Law Lords Rule That Defendants Have A Right To Know The Identity Of Witnesses Testifying Against Them

On Wednesday, in a ruling which applies to criminal cases in England, Wales, and Northern Ireland, the Law Lords decided that have a defendants have a right to know the identity of witnesses testifying against them when they quashed a double murder conviction against Iain Davis.  According to a senior police officer, this was a "potentially disastrous" ruling which could result in "[a] lot of good work being undone" and up to 40 appeals by inmates convicted in trials in which anonymous testimony was rendered against them.  My response is that I can't believe such a ruling hadn't been rendered previously.

Davis was convicted of the New Year's Day 2002 killing of two men in flat in Hackney, east London, with seven witnesses against him being granted anonymity after claiming to be in fear for their lives if it became known that they had given evidence against Davis.  The terms of this anonymity were that the trial judge directed that:

     -(1) the witnesses would give evidence under pseudonyms;

     -(2) their personal identifying details would be withheld from the defendant and his advisers;

     -(3) Davis' counsel would not be permitted to ask any question from which they might be identified;

     -(4) they would give evidence screened from Davis; and

     -(5) their voices would be distorted to prevent him recognizing them.

In other words, it's sort of like the technique that the United States Supreme Court found violated the Confrontation Clause in Coy v. Iowa, 487 U.S. 1012 (1988), but taken to the nth degree.  The "across the pond" differences can be explained by the son surpassing the father.  In the wake of the abuses of the Star Chamber, an expeditious way for the Tudors and Stuarts to exorcize political and religious dissenters of the monarchy masquerading as a court conducting treason trials, England developed a common law tradition that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he might cross-examine them and challenge their evidence.  While us Yanks took the torch from this tradition and Constitutionally codified the right to confront witnesses under the Sixth Amendment, the English tradition remains just that, a tradition, subject to extreme exceptions such as those applied in Davis' trial.

That is, until the Law Lords ruled that the anonymity of the witnesses against Davis did not comport with his right to confront the witnesses against him and that a new trial was required because his conviction was dependent upon the testimony of three of these witnesses.  According to the Lords, the protective measures imposed hampered the conduct of the defense in a manner and to an extent which was unlawful and rendered the trial unfair.  I couldn't agree more. But what do readers think?  Are there cases where witness fear trumps the right of confrontation and justifies anonymity? 


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