EvidenceProf Blog

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

Saturday, July 19, 2008

Blood On The Tracks: Fifth Circuit Makes Seemingly Erroneous Subsequent Remedial Measure Ruling In Railroad Accident Appeal

The recent opinion of the Fifth Circuit in Baker v. Canadian National/Illinois Central R.R., 2008 WL 2747464 (5th Cir. 2008), contains what seems to me to be an incorrect application of Federal Rule of Evidence 407, which deals with the (in)admissibility of evidence of subsequent remedial measures.

In Baker, Illinois Central hired a contractor to remove vegetation, dirt, and other obstructions from the railroad's right of way at a public railroad crossing, and Charles Baker worked for the contractor as a dump truck driver.  While performing this excavation work in his dump truck, Baker was struck by one of Illinois Central's trains, causing him to be injured.  Baker thereafter sued Illinois Central and alleged that it was negligent for failing to provide flagmen or other protections and for not installing lights or gates at the crossing.  Instead, at the time, Illinois Central merely had stop signs and crossbucks at the site of the accident.  This would soon change, however, with Illinois Central installing lights and gates two years after Baker's accident.  The trial court, however, precluded Baker from presenting the evidence of these subsequent remedial measures, and the jury eventually entered a verdict in Illinois Central's favor.

Baker appealed, claiming, inter alia, that the trial court erred by precluding him from presenting the evidence of Illinois Central's subsequent remedial measures, and the Fifth Circuit noted that the issue was governed by Federal Rule of Evidence 407, which states that:

     "When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."

Thus, if Baker were merely using the evidence concerning the installation of lights and gates to prove that Illinois Central was negligent, the evidence would have been inadmissible under the Rule.  And the twin reasons for that Rule are that: (1) someone making something safer doesn't mean that it was unsafe before, and (2) we don't want to discourage people or companies from making instrumentalities safer after an accident.

However, the Rule cannot be used as a shield and a sword, meaning that a defendant can't prevent the introduction of evidence that it enacted a subsequent remedial measure while at the same time presenting testimony that such a measure was not feasible.  Instead, when a party controverts feasibility, the opposing party can present evidence of a subsequent remedial measure both as substantive evidence of feasibility and as impeachment evidence, i.e., evidence that the jury has a reason to distrust the testimony who controverted feasibility.

And indeed, this was Baker's argument for the admissibility of the evidence.  He noted that Illinois Central called the locomotive engineer on the train that struck Baker's truck and that he testified that "gates are probably not as safe as just a stop sign and crossbuck" and that any crossing design expert who believed otherwise "could come ride that train with me and they will see I'm right."  This seems like a compelling argument to me, but the Fifth Circuit was not convinced.  Why?

Well, it cited to its previous opinion in Muzyka v. Remington Arms, 774 F.2d 1309 (5th Cir. 1985), in which it found that a plaintiff suing a rifle manufacturer for the injuries she sustained when a magazine-fed bolt-action rifle discharged while her stepfather was attempting to unload it was allowed to present evidence of subsequent remedial measures after several of the defendant's expert witnesses testified that the rifle was the safest in the world.  The Fifth Circuit then concluded:  "We decline to analogize the analysis of Remington's numerous experts to the lone opinion of Illinois Central's locomotive engineer, a lay witness."  Instead, it found that "when the decision to admit or exclude evidence of a design change is a close call, a district court's decision to exclude the evidence is within its discretion."

To me, this argument seems akin to calling someone "a little pregnant."  Sure, having several witnesses call a rifle the safest in the world controverts feasibility more than one lay witness saying that stop signs and crossbucks were safer than gates.  But that's not the issue.  As long as the locomotive engineer's testimony could be construed as controverting feasibility, Baker should have been able to introduce the light and gate testimony.  So, what does prior Fifth Circuit precedent tell us about whether the trial court's decision to exclude the evidence was a "close call?"

Well, in Reese v. Mercury Marine Div. of Brunswick Corp., 793 F.2d 1416 (5th Cir. 1986), the defendant had one witness, who was not identified as an expert witness, testify that direct manufacturer warnings to consumers concerning a kill switch on an outboard motor were not likely to be successful.  The trial court found that the testimony meant that the defendant controverted feasibility, meaning that the plaintiff could present evidence that the defendant subsequently included direct manufacturer warnings in its operations manual.  The Fifth Circuit affirmed, holding that "[w]hether something is feasible relates not only to physical possibility, cost and convenience, but also to ultimate utility and success in intended performance....[The defendant]'s suggestion during trial that only the retailer could properly instruct the ultimate consumer regarding kill switch use clearly controverts the utility and likelihood of success of direct manufacturer warnings."

It seems clear to me that the locomotive engineer's testimony controverted the utility and likelihood of success of installing gates at the crossing, meaning that Illinois Central controverted feasibility and that Baker should have been able to present evidence of subsequent remedial measures.  What do readers think?


July 19, 2008 | Permalink | Comments (2) | TrackBack (0)

Friday, July 18, 2008

Wall Of Silence, Take 2: Spontaneous Nature Of Spector's Alleged Past Violence Makes Common Plan Doctrine Inapplicable

On Wednesday, I posted about the Phil Spector retrial for the alleged shooting murder of Lana Clarkson.  In the post, I noted that testimony concerning occasions on which  Spector allegedly threatened other women with guns but did not shoot or murder any of them was likely inadmissible under a common plan or scheme/modus operandi/signature crime theory.  As I noted, the theory behind such evidence is that it is being used, not to prove propensity.conformity, but to prove that nobody else besides the defendant could have committed the crime at issue.  I then noted that "even courts taking a more liberal approach would require substantial similarity among each of the crimes sought to be admitted."

Well, a reader e-mailed me and informed me that California courts are among those taking a more liberal approach.  Essentially, the Supreme Court of California adopted this approach in People v. Ewoldt, 867 P.2d 757, 770 (Cal. 1994), where it held that:

     "[t]o establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense."

This liberal approach had drawn the ire of many commentators, including UC Davis School of Law Professor Edward Imwinkelried, who referred to it as an "unlinked" plan theory of the common plan doctrine.  Personally, I agree and think that in such cases, courts are allowing for the admission of propensity/conformity evidence under the guise of using the common plan or scheme doctrine.

So, does this change my analysis at all?  I don't think so.  Even though California seemingly requires minimal similarity instead of substantial similarity, I still don't see how the court can find that alleged acts in which Spector threatened violence can be found similar enough to an alleged act in which he actually committed violence by shooting and killing Clarkson to form a common plan or scheme.  Moreover, my research reveals an even more fatal flaw in the prosecution's argument.

According to the prosecutor, the testimony from other women who were allegedly threatened by him with guns is admissible because it establishes that "when Spector is confronted with a certain set of stimuli, he reacts in the same way — he reaches for his gun."  Now, let's look at the opinion of a California appellate court in People v. Scheer, 68 Cal.App.4th 1009 (Cal.App. 2 Dist. 1998).  In Scheer, the defendant allegedly fled from the scene of a car accident, and the trial court allowed for the admission of evidence that he had previously fled from police after a traffic violation as evidence of a common plan.

The appellate court found that this was error because:

     "Although the prior flight offense and charged crime were committed in a similar manner, i.e., appellant drove through residential areas recklessly with flagrant disregard for the safety of others, and shared the same general purpose of avoiding capture and accountability for his misdeeds, such characteristics are insufficiently probative to constitute evidence of a common plan or design. Instead, the only reasonable inference is that the prior flight and the charged crime were spontaneous events....Neither flight was a planned event. Instead, each was a spur of the moment response to an unexpected event, i.e., the sudden appearance of the police in the prior instance and the attempt by volunteer bystanders to detain him after the accidental collision in the other."

As support, the court cited to a previous opinion by the Supreme Court of California in which it found in a defendant's murder trial in which he allegedly stomped the victim in the stomach that evidence of two prior spontaneous acts were inadmissible to prove common plan:  (1) evidence that he kicked a former girlfriend in the ribs, and (2) evidence that he kicked another person during a separate altercation. See People v. Sam, 454 P.2d 700 (Cal. 1969).

Here, by the prosecutor's own admission, Spector's threatened gun violence is a reaction to a certain set of stimuli, i.e., it is a spontaneous reaction rather than something he had planned ahead of time.  Spector thus seems to be in the exact same position as the man accused of stomping another man to death, and his alleged prior misdeeds should be held inadmissible for the same reason.


July 18, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2008

The Dark (Of) Night: Tennessee Court Finds Attorney Did Not Err In Failing To Object To Testimony About Defendant's Lack Of Church Attendance In Batman Related Case

In honor of the opening of Christopher Nolan's "The Dark Knight," (currently 92% fresh on Rotten Tomatoes), I thought I would do a Batman-related post (after all, they did a "Harvey Dent for District Attorney" demonstration outside of my law school).

In Webb v. State, 2007 WL 2570201 (Tenn.Crim.App. 2007), the Court of Criminal Appeals for Tennessee granted portions of Floyd "Butch" Webb's petition for post-trial relief and denied other portions.  Webb had been convicted of child sexual abuse and sexual assault charges in connection with alleged acts he committed against his stepdaughter.  The acts which the court gave details about consisted of:

     -Webb coming into his stepdaughter's room one night (ostensibly at 1:00 a.m.) after he got home from work, getting into her bed, and touching her breasts and vagina;

     -Webb again arriving home at 1:00 a.m., coming into his stepdaughter's bedroom, getting under her covers, and touching her breasts and vagina;

     -Webb coming into the victim's room wearing a Batman mask around Thanksgiving 2005, scaring her, coming back to apologize after she was consoled by her mom and aunt, and rubbing the victim's breasts and vagina; and

     -Webb getting his stepdaughter in a headlock around Christmas, 2005, acting like he was tickling her, and then rubbing her breasts and vagina.

After Webb was convicted, he petition for post-trial relief, claiming, inter alia, that he was not given the effective assistance of counsel.  Specifically, he claimed that his trial attorney was ineffective in failing to prevent the admission of testimony regarding the Webb's lack of church attendance and failure to work.  Webb argued on appeal that this evidence was unfairly prejudicial to him because it created the risk that the jury would infer that he was lazy and irreverent toward religion.  He thus contended that the testimony was inadmissible under Tennessee Rule of Evidence 403, which provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

His trial attorney countered that the testimony was admissible because it was relevant to show opportunity, i.e., that Webb had opportunities to be alone with his stepdaughter at home.  The Court of Criminal Appeals for Tennessee detemined that "[b]ecause this evidence was arguably admissible at trial, it was properly a matter of trial strategy for Counsel to refrain from objecting." Really?

Looking at the first two acts, they allegedly occurred after Webb returned home from work at 1:00 a.m.  I thus don't see how evidence that Webb had periods of time where he allegedly failed to work was relevant to prove opportunity in these instances because it was averred that he was working.  Furthermore, I'm not sure how lack of church attendance was relevant to prove opportunity when these acts allegedly occurred at 1:00 a.m.

Looking at the third act, it allegedly occurred when the stepdaughter's mom and aunt were home, so clearly testimony about Webb's lack of employment church attendance was not admissible to prove that he was he had the opportunity to be with his stepdaughter at home.  Also, based upon the proximity of the act to Thanksgiving, it's likely that Webb's lack of employment was irrelevant because he wouldn't have been working anyway.

Looking finally at the fourth act, the opinion doesn't reveal whether anyone else was home at the time of the alleged act, but again, based upon the proximity of the act to Christmas, it's likely that Webb's lack of employment was irrelevant because he wouldn't have been working anyway (and it's quite probable that other people were home).

Thus, I'm not sure that the testimony at issue had any probative value on the issue of opportunity, and I would contend that any such probative value was substantially outweighed by its unfairly prejudicial effect.  Tennessee Rule of Evidence 610 proscribes the introduction of "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced."  And while this Rule does not strictly prevent the type of testimony presented against Webb, I've noted before that any evidence concerning an individual's religious beliefs or lack thereof is highly prejudicial and should only be admissible if it has a direct bearing on a case.  Thus, while the court properly granted part of Webb's petition on other grounds, it should have also done so on the ground that his trial attorney improperly failed to object to this testimony.


July 17, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2008

Wall of Silence?: Defense Counsel In Phil Spector Retrial Moves To Exclude Testimony From Women About His Proclivity To Threaten Women With Guns

Six was apparently one too many for defense counsel in the upcoming retrial of Phil Spector for the murder of actress Lana Clarkson.  The first trial of Spector, who invented the Wall of Sound, worked with artists as varied as Ike and Tina Turner and the Ramones, and was married to one of my mom's favortes, Ronnie Spector, ended in a hung jury last year.  The reason for the indecision was apparently that jurors couldn't decide whether Spector shot Clarkson or whether the gunshot wound causing her death was self-inflicted.  This was despite the fact that Spector appeared in court with hair that would make Art Garfunkel blush and the testimony of five women who testified that Spector had a proclivity for threatening women with guns.

During the retrial, the prosecution might not have the benefit of either.  That's because earlier this week, prosecutors disclosed their intention to call a sixth woman to testify about Spector's alleged proclivity, prompting defense counsel the next day to move to exclude the testimony of all six women.  And, without having followed the specifics of the first trial too closely, my immediate reaction was to wonder why they didn't make a similar motion in the first trial.

Pursuant to California Code of Evidence Section 1101(a), "[e]xcept as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."  In other words, evidence that Spector threatened other women with guns would be inadmissible to prove that he had a propensity to threaten women with guns and that he likely acted in conformity with that propensity by threatening Clarkson with a gun.  Because the probative value of such evidence relies on the aphorism, "Once a criminal, always a criminal," California, like other states, proscribes its introduction into evidence.

California Code of Evidence Section 1101(b), however, indicates 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 section and the similar Federal Rule of Evidence 404(b) and state counterparts, courts allow for the admission of a pattern of prior crimes to prove modus operandi, common plan or scheme, or signature crime.  The theory behind such evidence is that it is being used, not to prove propensity.conformity, but to prove that nobody else besides the defendant could have committed the crime at issue. See, e.g., United States v. Powers, 59 F.3d 1460, 1474 n.2 (4th Cir. 1995).  So, for instance, evidence might indicate that two defendants had a pattern of crimes in which they stuffed towels in sinks and left them running after committing burglaries.  Or, a defendant might have a pattern of killing homeless individuals and tying red ribbons around the wrists.  Or, a defendant might have a pattern of killing victims, draining their bodies of blood, and neatly chopping their bodies into pieces.

All three of these examples would be the types of distinctive "patterns" that would allow for application of a modus operandi theory of admissibility, and even courts taking a more liberal approach would require substantial similarity among each of the crimes sought to be admitted.  And it seems to me that defense counsel has a compelling argument against admissibility beyond the fact that, unfortunately, threatening violence against women is not especially unique or distinctive.  And that is that with regard to the earlier incidents with other women, "None involved an act similar to the one that the state was attempting to prove here, i.e. that Spector fired a gun."

I simply don't see how the prosecution can argue that the allegations of the other women prove a modus operandi on the part of Spector when none of their allegations claimed that Spector committed the act at issue in his case:  shooting a gun and committing murder.  And, precedent from across the country also wouldn't seem to support admissibility either. See, e.g., Commonwealth v. Vedam, 502 A.2d 1383 (Pa. Super. 1985).


July 16, 2008 | Permalink | Comments (2) | TrackBack (0)

Tuesday, July 15, 2008

Evidence Laws Turned Upside Down Down Under?: Victorian Government Finally Introduces Evidence Bill, 2008

It's taken 4 years, but the Victorian government has finally introduced the Evidence Bill, 2008, which, if passed, would make Victoria the 4th Australian jurisdiction (after the Commonwealth, NSW, ACT, and Tasmania) to adopt the uniform evidence legislation.  The entire enterprise seems to me to be fairly significant and somewhat akin to when the Federal Rules of Evidence took effect here in 1975.  That's not to say that Australia previously lacked an evidence code, but that code -- Evidence Act, 1958 -- has been the subject of much derision, with an Australian Supreme Court judge lecturing on evidence to a Bar Readers Course saying that the rules within it are so ridiculous that only especially irritating middle class unrepresented litigants ever dare to raise them.

One of the main problems with the earlier code, as indicated by the Media Release accompanying the bill, was its rigid approach to hearsay evidence.  Indeed, my research on the matter led me to a law review article indicating that while "leading judges in Australia attempted to introduce a more flexible approach to hearsay," their efforts were met "with only modest success." Marc Rosenberg, The Contribution of Chief Justice Lamer to the Development of the Law of Hearsay, 5 Can. Crim. L. Rev. 115, 176 (2000).  The same isn't true for Evidence Bill, 2008, which has profligate hearsay exceptions built into its Chapter 3, which covers hearsay.

Speaking of the Media Release, the most interesting thing about it is that it touts with much ballyhoo that the "[n]ew evidence laws will cut red tape and potentially save Victorian businesses about $10 million a year."  I'm not sure that I've ever seen an evidentiary change linked to the economy before, and in looking at the reason cited by the Media Release, I'm troubled.  According to the Release, the reason for the financial savings is that:

     “The legislation removes the original document rule which, when combined with current statute law, is complex and unwieldy.  The rule has resulted in businesses, Government and not-for-profit organisations retaining documents in their original form as part of a prudent risk-management strategy for potential litigation. This places an unnecessary record-keeping burden on businesses.  The abolition of the original document rule will bring much-needed clarity to this area of the law....In fact we predict that we can save business $154 million per year by July 2009 and $256 million per year by July 2011 – just by cutting red tape."

Now, I know that many people feel that the Original Document Rule, or Best Evidence Rule, is archaic and no longer necessary in modern society.  I, however, feel the opposite, as I express in my forthcoming article, Even Better than the Real Thing.  I believe that because now nearly anyone can create a fairly convincing forgery fairly quickly, and because originals may possess physical characteristics of the highest importance which no copying process can produce, the Rule has continuing vitality and that the proposed change could cause acute damage.

There are, however, some more positive changes that Evidence Bill, 2008 would make such as:

    -Creating a specific exception to the hearsay rule to allow for evidence to be given of the existence or content of traditional laws and customs of an Aboriginal or Torres Strait Islander Group.

This seems to me to be similar to Federal Rule of Evidence 803(20), which allows for the admission, as an exception to the rule against hearsay, of "[r]eputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

     -Extending the courts' discretion to excuse a married person from testifying against their partner to de facto partners, including same sex partners.

This seems to be a very positive development and in line with what I recommended California adopt in the wake of the recent ruling of its Supreme Court.

     -Promoting uniformity in the evidentiary rules in Australia.

I will note, however, that some have claimed that there won't be complete uniformity, even if Evidence Bill, 2008 takes effect.

(Hat Tip to my colleague, Mark Wojcik, for sending me this story).

[EDIT:  Stephen Warne, whose post I hyperlinked in my post sent my an e-mail concerning some errors I made In my post.  Warne points out that:

     First, the Evidence Act, 1958 (Vic.) is a Victoria-specific statute, and so is not 'Australian'. There are other somewhat similar but nevertheless very different statutes in other statues which have not adopted the uniform evidence legislation. And it is just an Act which modifies the common law and so is certainly not a 'code' as we understand that term in relation to statutes in Victoria.  Secondly, our highest court is the High Court and the states each have an inferior Supreme Court at the top of their tree. The judge was a judge of the Supreme Court of Victoria. Thirdly, he did not say 'the rules within it' are so ridiculous, but rather that a couple of them were.]


July 15, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, July 14, 2008

Northwestern Colloquy Publishes Final Version of My Essay, Ordeal By Innocence

Today, the Northwestern Colloquy published my essay, Ordeal by Innocence: Why There Should Be a Wrongdul Incarceration/Execution Exception to Attorney-Client Confidentiality.  The editors at Northwestern did a great job of editing the piece, resulting in some very positive changes and additions to it since the version I previously posted on SSRN.  What I really like about the Colloquy format is that, like a blog, it allows for comments to the essay so that a dialogue about the essay can be continued beyond my initial thoughts.  So, if you have anything you would like to write about the essay after reading it, you can post a comment here, and I will be sure to respond promptly.

Once again, here is the abstract for the essay:

"In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession. Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan were given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit, being locked up (Logan in a prison cell; the affidavit in a lock box). Pained by pangs of guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

How does such an injustice occur? Until recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted. And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent reasonably certain death or substantial bodily harm, the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example. Conversely, Massachusetts Rule of Professional Responsibility 1.6(b)(1) permits attorneys to disclose client information to, inter alia, prevent the wrongful execution or incarceration of another. This article argues that the 25 states which have adopted some form of amended Model Rule 1.6(b)(1) can and should read a similar wrongful incarceration/execution exception into their existing Rules while the remaining 24 states (and the District of Columbia) which have not adopted some form of amended Model Rule 1.6(b)(1) should create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exceptions."


July 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Cross Bones: Court Of Appeals Of Ohio Finds No Prosecutorial Misconduct Despite Scathing Comments Attacking Kathy Reichs a/k/a Bones In Nun Murder Cold Case

On the Fox series "Bones" a point of humor is that while forensic anthropologist Temperance Brennan, a/k/a Bones, is brilliant at her profession, she is frequently less than brilliant as an expert witness.  One example can be found in the first season episode, "The Girl in the Fridge," with the following exchange occurring among Bones, Special Agent Seeley Booth, and jury consultant Joy Deaver:

     Deaver: Juries don’t like you.

     Bones: Excuse me?

     Deaver: I’ve seen you testify before Dr. Brennan.  You come off cold and aloof.  I want to make sure…

     Bones: Cold and aloof?

    Deaver: Try not interrupting, it makes you sound arrogant.  Also don’t front load your testimony with technical crap.

     Booth: Look, this really is not the best approach.

     Bones: I’m a technical witness.  I have testified in over thirty trials.

     Deaver: But most of the experts you’ve come up against are as dry and boring as you are.  Now I don’t know if you’ve seen their expert…

     Booth: She’s seen him, Ms. Deaver.

     Deaver:  Well then you understand my concern. Professor Stires is open, charming, great looking.  The jury’s going to love him.  I love him.

     Bones: This isn’t a personality contest.  It’s about data that we present to the jury.

     Deaver: You’re kidding, right?  The women on the jury aren’t going to be listening to a word that comes out of his mouth.  They’re going to be undressing him...  I don’t want the men on the jury to be putting more clothes on you.  Wear something blue it suggests truth, make eye contact with the jury, and loose the clunky necklace.

     Bones: Mary and Scott Costello murdered Maggie Schilling.  The forensic data I’ve complied proves that.  That should be enough.

     Deaver: But it isn’t enough.

     Booth: Okay that’s…that’s great. We’ll uh, take that under consideration, thanks.

Well, now it appears that Kathy Reichs, the inspiration for Bones, ran into the opposite problem while rendering expert testimony in a case in Ohio.  That case, State v. Robinsion, 2008 WL 2700002 (Ohio App. 6 Dist. 2008), sounds like it could form the basis for an episode of "Bones."  Here is a very brief version of the facts:

On April 5, 1980, the body of 71 year-old Sister Margaret Ann Pahl, a Catholic nun, was found in the sacristy of the chapel in Toledo, Ohio's Mercy Hospital. She was lying flat on her back, with her arms to her sides, her legs together and straight, her habit pulled neatly up to her breasts, and her underwear pulled down around her right ankle. Her assailant had strangled her to the verge of death and then stabbed her 31 times. Initially, she was stabbed nine times through an altar cloth that her assailant had placed over her body. The altar cloth was then removed and Sister Paul was stabbed 22 more times to her face, neck and chest

From there, there were a number of red herrings in the case, which explains why it became a cold case for over two decades:

     -detectives initially thought that Pahl was strangled to death and that the wounds were from a pair of sewing scissors normally kept in the sacristy;

     -detectives then thought that Pahl was manually strangled by someone with large hands, but later concluded that she was a victim of soft ligature strangulation, although the strangulation was not the cause of her death;

     -detectives soon dispelled the initial belief that Pahl was raped, although they concluded that a genital injury may have been inflicted to mislead investigators into thinking a rape had been committed;

     -a housekeeper at Mercy Hospital told police that Pahl had been upset because one of the priests had shortened Good Friday services, meaning that priests could be suspects; and

     -the nun's letter that brought the case to the attention of the cold case unit in December 2004 alleged that she had been victim of ritualistic sexual abuse performed by multiple individuals, although the eventual defendant was not one of those individuals.

Instead, the defendant was Gerald Robinson, the Senior Chaplain at Mercy Hospital and a former altar boy.  Robinson was a suspect back in 1980, at which point police interviewed him and recovered an eight-inch long sword-shaped letter opener from his residence.  Somehow, though, the notes from that interview were lost, and while a doctor determined that the letter opener was compatible with each of Pahl's wounds, its blade was sumptuously clean and appeared as if it had been polished.  Nonetheless, when treated by a senior criminologist with the chemical phenolphthalein, the letter opener tested presumptively positive for the presence of blood, but, because of the small amount of available material, the criminologist was unable to conduct a further test to confirm the presumptive test result.

Without the ability to conduct further tests, the case lay dormant for decades, until the nun's letter, with the nun later telling police that they should look for an upside down cross on Pahl's chest.  This led police to look again at Pahl's altar cloth and determine that the nine stab marks in it were precisely aligned stab marks marking the outline of an upside down cross.  They also determined, inter alia, that the puncture marks had an unusual Y-shape that was consistent with the size and shape of the letter opener's unique four-sided blade

This led to the exhumation of Pahl's body and the discovery by anthropologist Julie Saul that a piece of Pahl's mandible contained a small, diamond shaped defect.  Robinson was soon thereafter charged with her murder, and at his trial, forensic anthropologist Steven Symes and other testified that the mandible defect was created by a tool similar in size and shape to the letter opener.  The state's somewhat amorphous theory of the case was that Robinson was less than content working with the nuns at Mercy Hospital, wanted to be a military chaplain, and killed Pahl out of anger.  As the prosecutor summarized it during closing:

     "You listened to this evidence. You heard what took place in the sacristy. Is this some sort of satanic cult killing? No. Was this part of some ritualistic black mass? No. Sorry to disappoint. This case is about perhaps the most common scenario there is for a homicide. A man got very angry at a woman, and the woman died. The only thing different is the man wore a white collar, and the woman wore a habit."

And what of the upside down cross?  According to the prosecutor:

     "What do you do over the dead or dying? You perform last rites. And that's what he did. Oh, a bastardized version of last rights to be sure, but that is what happens. He covers her with that blessed altar cloth, and he marks her with the sign of the cross, but an upside down cross. Why? Father Grob told us why. To degrade her. To mock her. To humiliate her. To bring her down to the lowest point he possibly could. He marks her with an upside down cross in front of the Eucharist, the very person of Jesus Christ to whom she is wed. He carves that in her. Does that make him a Satanist? No. It she'd have been Jewish, he would have carved a Swastika in her chest. It was how he could humiliate her most."

So, how did Kathy Reichs come into play?  Well, defense counsel called her to rebut the claims of the state's expert regarding the mandible defect.  Reichs somewhat contradicted their testimony by concluding that the test fit of the letter opener into the mandible defect potentially could have done something to alter the bone defect, although she could not say with any degree of scientific certainty that the test fit did, in fact, alter the bone defect.  The prosecutor responded with a scathing attack on Reichs, showing the jury a chart that referred to her as a "hired gun" and describing her testimony as follows:

     "Then they called Kathy Reichs to testify. And her testimony was pretty poor. She talked about she had sort of two personalities. She had Katherine Reichs, Ph.D., that she's the forensic anthropologist, and when she's the novelist, she's Kathy Reichs. Well, I think we just heard the testimony of Kathy because she did absolutely no science. I think the telling point was what Dr. Barnett talked about, is that scientists do not presume, and that's exactly what she did. She never examined anything. She never did anything. They talk about trust. Would you go to a doctor that would not even look at you? She didn't look at the evidence. They talk about that they weren't at the exhumation. * * * They talk about they were not allowed to go to the exhumation. The evidence from the exhumation is still at the coroner's office. It's always been there available for review. She's refused to review the evidence. First and only time she's ever testified from photographs was in this court. Nowhere else. Clearly improper. Unethical. Never conferred with the experts who actually did the testing. She knows those people. She didn't say, well, how did you do this, what test did you conduct? I mean, she's not in a situation where they're adverse parties. We're here for a search for the truth and she could've explained a lot to you, but she decided not to be able to do that for you. And her opinion is based upon the term of could have. And she failed to follow her own replication and protocol. She did nothing. So I don't think she really adds anything to this particular case."

Robinson was later convicted of murder and appealed, claiming, among many other things, that the prosecutor's characterization of Reichs and her testimony was improper and constituted prosecutorial misconduct.  The Court of Appeals of Ohio curtly rejected this argument with one sentence:  "In referring to Reichs as a 'hired-gun,' the state did not act improperly, nor did it affect appellant's substantive rights. See State v. Smith, supra, at 14."

So, I went to State v. Smith, 14 Ohio.St.3d 13 (Ohio 1984), a case where the Supreme Court of Ohio held that "[t]he test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant."  The Court then proceeded to find that this test was satisfied, and a new trial was warranted, because the assistant prosecutor referred to defense evidence as "lies," “garbage," "garbage lies," "[a] smoke screen," and "a well conceived and well rehearsed lie." 

So, am I missing something?  How does Smith support the court's conclusion in Robinson?  Are we supposed to assume that a prosecutor calling a defense expert a "hired gun" and impugning her character and credibility clearly doesn't meet this test?  Such a holding would be inconsistent with precedent from across the country, such as Sipsas v. State, 716 P.2d 231, 234 (Nev. 1986), in which the Supreme Court of Nevada ordered a new trial after the prosecutor referred to the defendant's expert witness as "[t]he hired gun from Hot Tub Country. Have stethoscope, will travel."

Furthermore, it would seem to me that the holding is inconsistent with prior Ohio precedent.  For instance, in Dawson v. MetroHealth Ctr., 662 N.E.2d 1123, 1124 (Ohio Ap. 8 Dist 1995), the plaintiff claimed that defense counsel made the following improper statements about her expert witness:

     "And let's take a look at Dr. Charms as we are looking into the truth aspect of things. Let's see what Dr. Charms has to add to this case. He is a hired gun. He does 90 percent of his work for plaintiffs. Plaintiff attorneys say I've got a case for you. Here you go, Mrs. Dawson, go see Dr. Charms, he will treat you right, he will say you are injured. Just go there."

The court found that while these statements were objectionable, they did not form the basis for a new trial, contrasting the case with a prior case, Tsitouris v. WIlson, where an Ohio court granted a new trial when counsel made a more rambling diatribe about the opposing party's expert witnesses being "paid mercenaries" and "professional prostitutes."  In my mind, the prosecutor's statements in Robinson more closely resembled the rambling diatribe in Tsitouris than the prejudicial but concise statements of defense counsel in Dawson, especially when we keep in mind that "the jury is likely to believe a prosecutor's suggestion that defense counsel [and expert witnesses] are mere hired guns." Berger v. United States, 295 U.S. 78, 88 (1935).  And yet, the Court of Appeals of Ohio gives us nary a word explaining its decision.  Maybe the Ohio Supremes will spill more ink in what I imagine would be Robinson's impending appeal.

(For all of the other facts and legal issues in the case, you can read the whole Robinson opinion).


July 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 13, 2008

Double Exposure: 8th Circuit Makes Proper Juror Impeachment Ruling, Improper Photo Collage Ruling In Bank Robbery Appeal

The Eighth Circuit's recent opinion in United States v. McGhee, 2008 WL 2631357 (8th Cir. 2008), contains two interesting evidentiary rulings.  In McGhee, a jury convicted Robert Evans McGhee of armed bank robbery and brandishing a firearm in violation of 18 U.S.C. Section 924(c).  On appeal, McGhee raised several grounds for reversal, including 2 evidentiary issues.

His first claim was that the district court erred in not ordering a hearing when two jurors alleged intimidation by other jurors.  As I have noted on several previous occasions, however, pursuant to Federal Rule of Evidence 606(b), intimidation by other jurors is not a proper predicate for juror impeachment.  Pursuant to Rule 606(b),

     "Upon 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. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying."

In other words if someone besides another juror, such as a relative of a party, threatened a juror, the threatened juror could testify at a post-verdict hearing because such testimony would address "whether any outside influence was improperly brought to bear upon any juror."  When, however, the threat comes from another juror, there is merely an improper internal influence brought to bear on a juror, precluding juror impeachment. See, e.g., United States v. Lakhani, 480 F.3d 171, 184 (3rd Cir. 2007) ("[E]vidence of discussions among jurors, intimidation or harassment of one juror by another, and other intra-jury influences on the verdict is within the rule, rather than the exception, and is not competent to impeach a verdict.").

In other words, the legal system has decided that harassment of jurors by other jurors during deliberations is acceptable collateral damage to prevent post-trial harassment of jurors.  See Federal Rule of Evidence 606(b) Advisory Committee's Note. ("The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment.").  It's a Solomonic compromise with which I'm still not sure that I agree, but it was clearly correctly applied by the 8th Circuit.

I'm not as sure about the other ruling.  McGhee's second evidentiary objection was that the district court erred in allowing the prosecution during closing argument to a photographic collage.  Specifically, the collage was a photograph taken of the bank robber at the time of the bank robbery, with an image of McGhee in a similar pose superimposed on to the photo next to the bank robber.  The 8th Circuit found that the district court did not err based upon its previous opinion in United States v. Wainwright, 351 F.3d 816, 820 (8th Cir. 2003). 

In Wainwright, the defendant appealed from a jury verdict finding him guilty of interstate transportation of stolen property.  On appeal, the 8th Circuit, inter alia, rejected his argument on appeal that the district court abused its discretion in admitting a summary of his logging activities.  Its basis for the denial was that "[s]ummary exhibits that fairly summarize the evidence are authorized by Federal Rule of Evidence 1006," which states that:

     "The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court."

The 8th Circuit then noted that the prosecution complied with Rule 1006 because one of its witnesses "explained in detail how he developed the summary from the voluminous records of the various victims, mills, wood-receiving facilities, and wood dealers in Arkansas and Louisiana."

In McGhee, the court found that the same analysis applied and thus that the district court did not err, but I don't understand its reasoning.  There was no claim here that the prosecution had presented voluminous photographs and was presenting a "summary" of those photographs.  Instead, it was presenting a "doctored" photograph, with one image superimposed on another.  And the point of the collage was not merely to collect a lot of images on to one collage.  Instead, the point of the collage was clear:  to try to get the jurors to believe that the defendant was the bank robber.  Federal Rule of Evidence 1006 would thus be inapplicable, and the 8th Circuit needed to find another basis for admitting the collage.


July 13, 2008 | Permalink | Comments (0) | TrackBack (0)