EvidenceProf Blog

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

Saturday, July 12, 2008

Same Sex, Different Privilege?: How Will The Confidenitial Marital Communications Privilege Apply To Same Sex Marriages In California?

A recent article by the Ventura County Star raises an interesting evidentiary issue prompted by the California Supreme Court's recent decision to strike down the state's ban on same sex marriage:  Will married same sex couples' private conversations be considered privileged marital communications inadmissible at trial?  In order to answer this question, let's look at California Code of Evidence Section 980, which indicates that:

     "Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between
him and the other spouse while they were husband and wife."

In essence, then, when a married couple engages in private communications during the course of a marriage, either spouse can refuse to render testimony against the other spouse and/or prevent the other spouse from testifying against him or her when the testimony relates to the communication.  So, if Bob returns home one dark and stormy night and confesses to his wife Alice in the confines of their bedroom that he committed murder, Alice can refuse to testify concerning that confession at Bob's subsequent murder trial and/or Bob can prevent Alice from rendering such testimony.  But what if Alice is Alex, and Bob and he are in a same sex marriage?

Well, then, a seeming problem arises with the last 3 words of Section 980, which only extends this confidential marital communications privilege to communications made between a "husband and wife."  So, under a literal and narrow reading of the privilege, communications between Bob and Alex would not be protected, but what is the purpose of the statute?  Well, the purpose of the privilege is the same as the purpose behind the attorney-client privilege, the psychotherapist-patient privilege, and the clergy-penitent privilege:  to preserve a relationship that there is a societal interest in preserving by promoting the flee flow of information through alleviating any worries that the individuals might have that the secrets they share could later be aired out in a courtroom.

As the court in Hanger Orthopedic Group, Inc. v. McMurray, 181 F.R.D. 525, 528 (M.D. Fla. 1998), put it:

     "Society has a deeply-rooted interest in the preservation of the peace of families, and in the maintenance of the sacred institution of marriage; and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status. Therefore the law places the band of its prohibition upon any breach of the confidence between husband and wife, by declaring all confidential communications between them to be incompetent matter for either of them to expose of witnesses."

So, in order for a California court to extend the privilege to same sex marriages, it would need to find that society has a deeply-rooted interest in the maintenance of the sacred institution of same sex marriage.  The California Supreme Court striking down the ban on same sex marriage caused a significant uproar in certain quarters, but a California court putting its imprimatur on the institution of same sex marriage itself would seem to raise the stakes significantly.  As a strong supporter of the institution of same sex marriage and granting same sex couples the exact same rights as every married couple, I would welcome such a ruling, but I wonder whether such a ruling would be palatable to those whose support for same sex marriage is more attenuated.


July 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, July 11, 2008

Forfeit Victory, Take 10: Illinois Forfeiture Bill Unlikely To Have Impact On Stacy Peterson Case In Light Of Giles Opinion

The headline of a Chicago Tribune story posted late last night boldly proclaims, "Stacy Peterson allies buoyed by bill on hearsay testimony." The problem is that I don't think that the new bill helps them in any way in light of the Supreme Court's recent ruling in Giles v. California. Let's jump right to the text of the bill, Senate Bill 2718, which states:

Be it enacted by the People of the State of Illinois, represented by the General Assembly:

Section 5. The Code of Criminal Procedure of 1963 is amended by adding Section 115-10.6 as follows:

(725 ILCS 5/115-10.6 new)

Sec. 115-10.6. Hearsay exception regarding forfeiture by wrongdoing.

(a) A statement is not rendered inadmissible by the hearsay rule if it is 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.

(b) While intent to procure the unavailability of the witness is a necessary element for the introduction of the statement, it need not be the sole motivation behind the wrongdoing.

(c) The wrongdoing need not be based on conduct that can constitute a criminal offense. If the wrongdoing is based on conduct that constitutes a criminal offense, the conduct need not be the basis of the offense that is the subject of the trial at which the statement is being offered. If the wrongdoing is based on conduct that constitutes a criminal offense that is not the subject of the trial at which the

(d) The proponent of the statement shall give the adverse party reasonable written notice of its intention to offer the statement and the substance of the particulars of the statement. For purposes of this Section, identifying the location of the statement or statements in tendered discovery shall be sufficient to satisfy the substance of the particulars of the statement.

(e) The admissibility of the statement shall be determined by the court at a hearing outside of the presence of a jury. At the hearing, the proponent of the statement bears the burden of proving the wrongdoing by a preponderance of the evidence.

In other words, Senate Bill 2718 would create in Illinois a "forfeiture by wrongdoing" exception to the rule against hearsay which is similar to Federal Rule of Evidence 804(b)(6), which allows for the admission of "[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."

According to the Trib article, "friends and family of missing Bolingbrook woman Stacy Peterson rejoiced after state lawmakers Thursday sent to the governor's desk legislation that could affect the possible prosecution of the chief suspect in her disappearance, her husband, Drew. 'It's a good Stacy day today,' said her close friend Sharon Bychowski. 'Now Stacy's life has more meaning than it did.'" That same article notes that critics of the proposed legislation claim that it runs counter to criminal defendant's 6th Amendment right to confront witnesses against them, as recently interpreted by the Supreme Court in Giles v. California. So, what's it all about Alfie?

Well, it seems clear to me that the proposed legislation doesn't implicate the 6th Amendment but that it also isn't the panacea Stacy's Peterson's allies hope it will be. As I have previously noted, the Supreme Court in Giles found that the common law "forfeiture by wrongdoing" doctrine, which is either broader than or coextensive with the Rules-based "forfeiture by wrongdoing" doctrine, requires a specific intent on the part of a criminal defendant to render a prospective witness unavailable to testify against him at trial. In other words, the doctrine applies in the witness tampering situation where a defendant charged with murdering his wife kills a witness who planned to testify against him, but it would not apply to statements made by the wife herself in the husband's trial for her murder.

And, unfortunately for Stacy Peterson's allies, they would be trying to introduce Stacy's own statements against Drew at a potential trial, which would be an impermissible use of the "forfeiture by wrongdoing" doctrine pursuant to both Giles v. California and the wording of Senate Bill 2718. So, is there any support for Stacy's supporters?

Well, as I also noted in a previous post, some commentators have looked at language from Giles v. California and concluded that courts could use it to apply the "forfeiture by wrongdoing" doctrine in domestic abuse cases, so that, for instance, if there is proof of an abusive relationship that ends in murder, 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. As I noted in that post, however, I think that the opinions in Giles v. California make clear 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. And because there were no such ongoing proceedings in the Peterson saga at the time of her alleged murder, Senate Bill 2718 would seem inapplicable.


July 11, 2008 | Permalink | Comments (1) | TrackBack (0)

Thursday, July 10, 2008

Nothing Compares: Tenth Circuit Wrongfully Compares Permitted Purposes Under Rules 404(b) And 408

The Tenth Circuit's recent opinion in Orr v. City of Albuquerque, 2008 WL 2652711 (10th Cir. 2008), seems to me to contain a gross misapplication of Federal Rule of Evidence 408.  In Orr, Albuquerque police officers Cynthia Orr and Patricia Paiz claimed that the City of Albuquerque and Mary Beth Vigil, the Personnel Director for the Albuquerque Police Department (APD), discriminated against them on the basis of pregnancy, in violation of the Pregnancy Discrimination Act of Title VII.  Specifically, they alleged that when they took maternity leave, the defendants required them to do so in a manner that adversely affected their eligibility for early retirement, limited their ability to work overtime, and differed dramatically from how employees seeking time off for other medical purposes were treated.  The defendants responded that they were merely applying a uniform policy applicable to all employees.  The district court agreed with the defendants and granted summary judgment in their favor, but the Tenth Circuit reversed based in large part upon evidence that the district court had excluded pursuant to Rule 408.

That evidence was an affidavit by Detective Dita Dow, as well as two appended APD memoranda, suggesting that in 1997 Ms. Vigil treated eight other pregnant female police officers just as she treated plaintiffs in 2000, requiring them to use sick time for maternity leave.  Detective Dow indicated that these female officers, through counsel, asked the APD and her to review their cases, emphasizing that other employees were freely allowed to use compensatory and vacation time for FMLA leave.  The APD agreed to undertake such a review and, ultimately, seemingly acknowledged Vigil's disparate treatment by restoring all of the pregnant officers' sick leave.

The district court found that this evidence "seem[ed] to contradict statements by...Vigil that [she] interpreted [the APD policy]...to disallow use of compensatory time for parental leave [and] appear[ed] to suggest pregnancy/sex based discrimination by Defendant Vigil beginning at least as of 1997, and therefore evidence of pretext in this case," rather than mere mistake.  The district court also found, however, that Detective Dow's evidence implicated compromise discussions between the APD and herself and thus could not be considered under the terms of Federal Rule of Evidence 408, which states:

     Rule 408. Compromise and Offers to Compromise

          (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.

The Tenth Circuit disagreed.  It noted that in its previous decision in Bradbury v. Phillips Petroleum Co., 815 F.2d 1356 (10th Cir. 1987), it:

     emphasized that "Rule 408 does not completely bar the admission of compromise evidence....For example, in a list that is illustrative rather than exhaustive, the Rule states that evidence of other wrongs may be admitted to show ... the absence of mistake...; see also id. (finding that the 'purposes not prohibited' by Rule 408 parallels the 'other purposes' enumerated in Rule 404(b))." (emphasis added) From there, we proceeded to hold that evidence from prior settlements can be "probative on the issue whether the incident involving [the parties in the current dispute] was simply an isolated mistake or, rather, part of a series of incidents that might illustrate outrageous conduct on the part of [the defendant]...."We see no daylight between our ultimate holding in Bradbury and this case. Even if the evidence involving Detective Dow and the other pregnant women implicates compromise discussions to which Rule 408 applies, by its terms Rule 408 and our case law permit the use of such evidence to show not liability per se but the absence of mistake. And that is exactly what plaintiffs properly seek to show in this case-namely, that Ms. Vigil's treatment of Officers Orr and Paiz was not a random accident, as defendants claim, but part of a larger and deliberate pattern of treating pregnant women differently from other employees seeking FMLA leave.

So, why is the Orr opinion such a disaster?  Well, let's start with the portion of the opinion I bolded.  Contrary to the Tenth Circuit's contention, Federal Rule of Evidence 408 does not state that compromise evidence is admissible to prove "absence of mistake."  Maybe the court was confused because, as it later notes in the parenthetical, Federal Rule of Evidence 404(b) does contain such language.  But contrary to the Tenth Circuit's claim, the "purposes not prohibited" by Rule 408 do not parallel the "other purposes" enumerated in Rule 404(b).  Why?

Well, Federal Rule of Evidence 404(b) is an exception to the general propensity character ban.  Generally, evidence that someone who had trespassed on property on a past occasion would be inadmissible in his subsequent trial for trespassing because the probative value of the past act would depend on the aphorism, "Once a trespasser, always a trespasser."  In other words, it would only be useful to prove that the defendant had a propensity to trespass and that he thus likely acted in conformity with that propensity by trespassing at the time in question.

But let's say that Al trespassed on Brian's property on January 20th, at which time Brian told him that he was on private property.  And let's say that Al was later charged with trespassing on Brian's property on July 20th and that his defense was that he thought that he was on public property.  Al's prior act of trespassing would be admissible, not to prove propensity/conformity, but to prove the absence of mistake:  that the prior act proved that Al must have known that he was on Brian's private property.

But while Brian's prior act would not be offered in this scenario to prove propensity/conformity, it clearly would be offered to prove Brian's liability.  Namely, it would be offered to prove that Brian had the required state of mind, or mens rea, to be liable to Al for trespassing.  And this is where the comparison drawn by the Tenth Circuit falls apart.  The "other purposes" permitted by Federal Rule of Evidence 404(b) are permissible because they are not offered to prove propensity/conformity, but they can be offered to prove liability (or the lack thereof).  Conversely, the "other purposes" permitted by Federal Rule of Evidence 408 cannot, by the Rule's terms, be offered to prove liability (or the lack thereof).  Thus, the Tenth Circuit's opinion makes no sense, and its comparison of the purposes permitted by  Federal Rule of Evidence 404(b) and Federal Rule of Evidence 408 doesn't hold any water.   


July 10, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 9, 2008

Florida Judge Releases Breath Test From the Drunk Tank, Reverses Ruling On Admissibility Of Intoxilyzer 8000 Results

Back in May, I did a post about a ruling in which a City Court judge in Tucson, Arizona threw out results from the Intoxilyzer 8000 -- an alcohol breath test -- in 49 DUI cases, raising the prospect that judges statewide would do the same.  The basis for the judge's ruling was that CMI, the manufacturer of the machine, refused to release its source code, which made it impossible to determine whether Intoxilyzer 8000 results were reliable.

Well, a judge in Leon County, Florida had a different problem with the same machine, although that problem now appears to be resolved.  In August 2007, Leon County Judge Augustus Aikens threw out Intoxilyzer 8000 results in four DUI cases, ruling the tests were scientifically unreliable because of a lack of protocol for how long a person must blow into the device.  Aikens' fear was that drivers might be blowing into the machine too long, producing artificially inflated BACs, much like when you leave a tire pressure gauge on a tire for too long.  And, according to Aikens, there hadn't been an independent study on the Intoxilyzer 8000 to dispel his fear.

As a result of the ruling, more than 200 DUI cases in Leon County were put on hold, which of course prompted the State Attorney's to appeal Aikens' ruling.  And that appeal proved meritorious last week, with Charles Francis, chief judge for the 2nd Judicial Circuit, reversing Atkins' ruling.  Supporting this disposition was the testimony of the state's expert witness, who did not dispute that results could vary based on how long a person blows into the device, but who also said that BAC "would not be higher than what's circulating in (a person's body)."

State prosecutor Georgia Cappleman added that the breath-test result is always going to be lower than the actual blood-alcohol concentration in the person's body.  According to Cappleman, "You would need to get all the breath out of their lungs to (get an accurate reading), and you'd have to kill them to do that."

In the absence of evidence to the contrary, I'm willing to concede that the problem identified by Judge Aikens was illusory, but I still wonder why CMI hasn't released the source code unless it has something to hide.


July 9, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2008

Amores Perros: Indiana Firefigther Convicted of Running Pitbull-Fighting Operation Seeks Jury Impeachment Based Upon Unadmitted Photo

A firefighter from Gary, Indiana was convicted in April of promoting and running a pitbull-fighting operation, but was the conviction based upon admissible evidence?  According to defense counsel it was not, and he has sought permission to contact jurors to prove his case

Back in April, Carlton Davis, Jr. was convicted after trial of 22 counts related to dog-fighting and animal cruelty in connection with a pitbull-fighting operation that he allegedly promoted and ran.  At trial, the prosecution had several lay and expert witnesses describe the operation and introduced nearly 200 exhibits.  Defense counsel's bone of contention, however, is a photograph that somehow found its way to the jury room despite the fact that the prosecution did not mark or have it admitted at trial

Unfortunately, there is a gag order on the case, so I don't know the details about the photo, but defense counsel somehow learned about it and wants to interview jurors and ultimately have them testify about it and thus impeach their verdict.  His position is supported by Indiana Rule of Evidence 606(b), which states in relevant part that:

     "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror."

Obviously, an inadmissible photograph would constitute "extraneous prejudicial information," allowing for juror impeachment under Indiana Rule of Evidence 606(b).  But will such impeachment be enough to disturb the jury's verdict?  Not according to deputy prosecutor Mark Watson.  In response to defense counsel's motion, Watson has claimed that the photograph "merely provided the jury with a tangible visual of what was already described during trial testimony by the defendant's own expert witnesses." 

Again, because of the gag order, I don't know about the accuracy of this statement, but I do know that Watson is correct when he states that "[e]ven if jurors did see or consider the photograph, it's up to the judge to determine what, if any, prejudicial impact that evidence would have had on a verdict by evaluating it in the overall context of the trial."  As I noted in a post last week:

     "[Rule 606(b) strictly prevents a juror from testifying about 'the effect of anything on any juror's mind or emotions or mental processes.'  In other words, even if jurors could testify about the bailiff's comments because they constituted an improper outside influence on the jury, those jurors could not testify about the effect of those comments; that analysis is left for the court. See, e.g., Pyles v. Johnson, 136 F.3d 986, 992 (5th Cir. 1998)....What the Court of Appeals should have done was make an objective assessment of what effect the bailiff's comments would have had on the average juror and determine whether Medistar likely suffered "substantial prejudice" as a result of the jury's exposure to the extraneous information."

The same goes here.  Jurors can testify that they saw the photograph at issue, but they cannot testify about the effect that the photograph had on their deliberations.  Instead, the judge must look at the photograph in the context of the entire case and determine its likely effect.

One final thing that I want to note is that Indiana Rule of Evidence 606(b) allows for more jury impeachment than Federal Rule of Evidence 606(b).  As was made clear by the Supreme Court in Tanner v. United States, 483 U.S. 107 (1987), Federal Rule of Evidence 606(b) does not allow for jury impeachment through testimony about drug and/or alcohol use by jurors.  Conversely, Indiana Rule of Evidence 606(b) clearly allows for juror impeachment through testimony about "drug or alcohol use by any juror."       


July 8, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2008

That Other Blue Book: Maine Bankruptcy Court Rules That Kelley Blue Book Evidence Is Admissible under Rule 803(17)

The recent opinion of the United States Bankruptcy Court for the District of Maine in In re Young, 2008 WL 2619960 (D. Me. 2008), reveals that courts typically allow for the admission of evidence from the Kelley Blue Book pursuant to Federal Rule of Evidence 803(17).  In Young, Bradley and Denise Young had separate Chapter 13 cases pending under joint administration, and Camelot Homes, Inc. held an identical undisputed claim in each case secured by a judgment lien.  Camelot asserted that its claims were secured by certain real property, the debtors' residence, and four vehicles (a Honda, a Ford, a Dodge, and a BMW), while Bradley claimed that the vehicles were exempt property.

In support of his argument, Bradley claimed that his opinion of the "fair market value and replacement value" of each vehicle was:

     -Honda: $1,435.00

     -Ford: $2,665.00

     -Dodge: $5,235.00

     -BMW: $18,240.00

The court found that:

     "If Bradley's opinions are accepted as accurate reflections of replacement value, Camelot's claim will not be secured by the Honda and the Ford because the value of each of those vehicles would be consumed by an allowed exemption. The same will be true for the Dodge if the tools of trade exemption is allowed. Similarly, the BMW could be beyond the reach of Camelot's lien because the record shows a prior lien on that vehicle in the amount of $19,061.83."

The court then reserved its decision on this issue until it held a further evidentiary hearing.  It did, however, note that while Bradley's opinions on fair market value were based upon the Kelley Blue Book website, this fact did not render his testimony inadmissible hearsay because evidence from the Blue Book is admissible pursuant to Federal Rule of Evidence 803(17), which allows for the admission of   "[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations" as an exception to the rule against hearsay.  As support for this conclusion, the court cited to two bankruptcy cases reaching similar conclusions, and my own research indicates that other courts have reached similar conclusions even in non-bankruptcy cases. See, e.g., United States v. Meo, 1994 WL 12340 at *7 (9th Cir. 1994).

Looking at the Advisory Committee Note to Rule 803(17), this seems to me to be the correct ruling because the Committee indicated that "[t]he basis of trustworthiness" for such evidence "is general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate."  It seems clear that both the car buying public and car dealers/sellers rely upon the Blue Book, with its compiler motivated to be accurate lest such reliance be undermined.

That said, I wasn't sure that what I saw as subjective Blue Book valuations could be considered as reliable as objective compilations such as phone books or market reports.  In looking at the FAQ on Kelly's site, though, I see that, inter alia, the New Car Blue Book Value reflects a vehicle's actual selling price and is based on tens of thousands of recent real sales transactions from auto dealers across the United States. The New Car Blue Book Value is not calculated or based on a proprietary formula; instead it is derived from actual new vehicle sales and extensive knowledge of the marketplace."  That makes the valuations seem a bit more objective to me, but it still seems to me that there is enough subjectivity to render their admissibility under Federal Rule of Evidence 803(17) questionable.  Are there any readers/car experts who want to weigh in?


July 7, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 6, 2008

About Face: Defendant Accepts Plea Deal Despite Alleged Victim's Reluctance To Testify

In a jarring turn of events, an Arkansas man charged with raping a seven year old girl agreed to a plea bargain after the alleged victim broke down on the witness stand for the second time.  Sixty-two year-old Jerry Don Foster was charged with raping a seven year-old girl at the Searcy livestock auction.  The initial claim of Foster's attorney was that he was incompetent to stand trial, but the judge denied the motion on the basis of psychiatric evaluations performed on him.  The case then proceeded to a preliminary hearing in April, where the alleged victim began to render testimony against Foster; however, she was soon overcome by emotions and was unable to continue.

In another pretrial hearing this Tuesday, though, the prosecution apparently caught a break:  the judge ruled that a statement made by the alleged victim to a third party in the wake of the assault would be admissible at trial pursuant to Arkansas Rule of Evidence 803(2), the excited utterance exception to the rule against hearsay.  That ruling, however, was soon called into jeopardy when the alleged victim attempted to testify at the same hearing, but again was overcome by emotion.  Thereafter, Foster accepted a plea bargain under which he pleaded guilty to the lesser charge of sexual assault and was sentenced to 20 years incarceration.

At first, I thought that the plea bargain resulted from the prosecution realizing that it should offer Foster a deal because the alleged victim's reluctance to testify could have made it difficult to secure a verdict against Foster (and it could have invalidated the court's excited utterance ruling if the court deemed the statement "testimonial").  As it turns out, it was Foster who instigated the deal, with Deputy Prosecutor Phyllis Hendrix indicating that "[Foster] pleaded guilty to the reduced charge to save the family and the child the trauma of a jury trial."


July 6, 2008 | Permalink | Comments (0) | TrackBack (0)