January 19, 2008
Never Get Involved In A Land War In Utah: Utah Judge to Establish Boundaries On Utah Lake
In 1997, a landowner began to dredge a section of the Utah Lake, sparking action by state officials and leading to a legal battle which is finally coming to a head. This battle, however, involves not only private landowners and the state; environmental groups subsequently joined the fray and contended that the Utah Lake's shore's wetlands are host to wildlife, including more than 40,000 migratory birds. All of this has led to a case being heard in the United States District Court for the District of Utah, where Judge Dale Kimball will establish the property boundaries along the shores of the lake. Judge Kimball has assigned a special master, BYU Law Professor Michael Goldsmith, who will hold a series of hearings and submit a report of proposed boundaries, which the judge is expected to adopt.
As part of their case, families who have farmed the land for generations submitted affidavits recalling uncontested use of the land from personal observation and knowledge from their ancestors. The state has objected to these "anecdotal stories" of ancestors as hearsay and inadmissible in court. Goldsmith seemed preliminarily to agree with the state, noting that any evidence of land use must be documented or come from personal knowledge. Goldsmith noted that "[f]amily lore is not going to cut it as admissible evidence."
Professor Goldsmith may very well be right, but the first thing that jumped to my mind upon hearing about this case was Rule 803(20). Utah Rule of Evidence 803(20), like its federal counterpart, indicates in relevant part that "[r]eputation in a community arising before the controversy, as to boundaries of or customs affecting lands in the community" is admissible as an exception to the rule against hearsay. Now, what exactly does this rule mean? I must admit that I do not know as it is one of the more obscure hearsay exceptions on the books. A quick Westlaw search reveals that the federal version has only been cited 12 times, and a quick glance at those cases reveals that in many of those cases it was simply cited in passing. See, e.g., Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 568 (D. Md. 2007). Meanwhile, courts have cited state counterparts of this rule in only 34 cases.
A look at how some courts have applied their versions of Rule 803(20) reveals that there may be some merit to the argument that the family members' affidavits should be admissible. For instance, in Wells v. Sanor, 151 S.W.3d 819 (Ky.App. 2004), Nevard Wells claimed that he had the right to exclusive use of a bridge, and the Sanor family, which had purchased property from the heirs of George Delong, claimed that they had an easement over the bridge. The court found that testimony from George Delong's sons about his statements concerning the creation of the bridge were admissible pursuant to Kentucky Rule of Evidence 803(20). See id. at 824 n.3.
Conversely, in Roberts v. Allison, 836 S.W.2d 185 (Tex.App.-Tyler 1992), the court refused to allow a party to testify concerning an alleged oral agreement between his grandfather and the appellee's predecessor in title, which allegedly gave the former an easement. The court found that this testimony was inadmissible under Texas Rule of Evidence 803(20) because the "proposed testimony pertain[ed] to an individual family's assertion of an easement; there [wa]s no contention of the community's interest in or the community's knowledge of the Roberts family's claim to access Appellee's property." Id. at 191.
I only found one case where Utah has applied its version of Rule 803(20) -- Clair W. and Gladys Judd Family Ltd. Partnership v. Hutchings, 797 P.2d 1088 (Utah 1990). In Hutchings, a plaintiff/property owner brought an action, inter alia, to relocate a fence line, giving him more property and reducing the property of his neighbor, the defendant. See id. The trial court refused to allow the plaintiff to introduce into evidence statements allegedly made by a former owner of the defendant's property that he did not think that the fence line was on the true boundary between the two parties. Id. at 1090. The Supreme Court of Utah affirmed this ruling, finding that the statements were not admissible under Rule 803(20) because the "plaintiff's proffered testimony did not consist of reputation in the community as to a boundary. The statements were simply the subjective opinion of a former owner." Id. at 1091.
The ruling in Hutchings thus seems more in line with the ruling in Allison than the ruling in Sanor, making it possible that the affidavits in the Utah Lake case should be considered inadmissible hearsay. That said, the proferred testimony in Hutchings and Allison was solely the testimony of one prior landowner. While it is difficult to say exactly what was in the affidavits without seeing them, it appears to me that they consist of several people discussing alleged historical, uncontested land use across generations. This seems more like testimony that should be admissible under Rule 803(20), but it is difficult to draw any conclusions without seeing the affidavits and more research into Rule 803(20).
January 18, 2008
Rocky Mountain High: Special Prosecutor Recommends Freeing Tim Masters After DNA Evidence Discovery
A special prosecutor recommended today that the murder conviction of Tim Masters be thrown out and that he be granted a new trial after learning that DNA found on Peggy Hettrick's clothing was not a match for Masters' DNA. If Masters' attorney has his way, Masters will be out of prison by this weekend. I blogged before about the various and sundry improprieties committed by the state in reaching the conclusion that Masters killed Hettrick, and this DNA evidence seems to bear out the argument that if anyone was crazy, it was those who leaped to the conclusion that Masters was a psycho killer, not Masters himself.
The Doors Of Perception: Supreme Court of Kansas Case Shows Why a Federal "Recent Perception" Exception Might Make Sense After Crawford
The Supreme Court of Kansas has affirmed the first degree murder conviction of former Kansas State University Professor Thomas E. Murray in a case that reveals that Kansas has an exception to the rule against hearsay which perhaps should be incorporated into the Federal Rules of Evidence in the wake of the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004). In the spring of 2003, Murray and his wife Carmin divorced. By November 2003, the former spouses were in a custody battle over their 4 year-old daughter, Ciara. On November 14, 2003, Carmin was found dead; an autopsy revealed that she had suffered 11 lacerations due to blunt force injury, followed by 12 stabs in the neck with a knife, as well as several defensive wounds on her arms.
Murry was later convicted of first degree murder in connection with Carmin's death in a case built entirely on circumstantial evidence. Some of this circumstantial evidence consisted of (1) the testimony of Carmin's mother about conversations between Carmin and she in 2003, and (2) attorney Anne Miller reading e-mails Camin had sent her regarding the custody battle over Ciara. In one of these e-mails, Carmin wrote that she had become much more forceful in her position of obtaining primary residential custody of Ciara. Over Murray's objections, the court permitted this testimony, finding that it demonstrated "the deterioration of the relationship" between Murray and Carmin.
On appeal, the Supreme Court of Kansas noted, inter alia, that K.S.A. 60-460(d)(3) provides an exception to the rule against hearsay, allowing for the admission of statements made by unavailable declarants "at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort." The Court then found that Carmin's statements to her mother and her e-mails to the attorney fell under this exception, allowing for the admission of the testimony by her mother and the attorney.
This so-called "recent perception" exception to the rule against hearsay is in effect in a few states. While I am unsure of how many states currently have the exception, a law review article from 1985 placed the number at five. See Kenneth E. Kraus, Comment The recent Perception Exception to the Hearsay Rule: A Justifiable Track Record, 1986 Wis. L. Rev. 1525, 1527 n.16 (1985). The Supreme Court approved a similar exception for the Federal Rules of Evidence in the early 1970s, "but Congress declined to incorporate the exception in the Federal Rules of Evidence." Tom Lininger, Reconceptualizing Confrontation After Davis, 85 Tex. L. Rev. 271, 320 (2006).
So, why might such an addition be important now? Well, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that 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. Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.
Since Crawford, the prosecution of several crimes has gotten much more difficult, with the most significant casualty being domestic violence prosecutions. A federal "recent perception" exception could thus be useful because the few states that have one "have found it useful in a wide range of cases, including prosecutions of violent crime. [Furthermore], the exception seems particularly well-suited for the Supreme Court's new confrontation jurisprudence because the rule explicitly bars statements when the declarant was contemplating litigation or when the declarant was responding to investigators." Linger, supra, at 320-321. I don't know enough about this exception and why Congress rejected it, so I can't say definitively whether such an exception should be added. But it is certainly an exception whcih merits further investigation.
Minority Report: Minnesota Judge Makes Odd Best Evidence Ruling
A judge in Minnesota has made a Best Evidence ruling which is at odds with prior precedent in the trial of a man accused of making terroristic threats to a county prosecutor. In February 2002, Mohammed Masood was in county jail pending charges of attempted murder based upon his alleged attack on a police informant with a pickaxe when he allegedly made terroristic threats in phone calls to a county prosecutor. The police allegedly recorded those phone calls but then "inadvertently" destroyed them as part of regular police procedure because the police did not know that charges were pending against Masood.
The prosecution planned to introduce transcripts of the phone calls at trial, but Masood's public defender claimed that the transcripts were inadmissible because they could not be compared against the original recordings. Judge Mary Leahy granted defense counsel's motion and deemed the transcripts inadmissible, although she found that they could be used non-substantively to refresh witness' recollections pursuant to Minnesota Rule of Evidence 612.
Unless, Judge Leahy disbelieved the police's inadvertent destruction claim, her decision seems inconsistent with prior precedent. Minnesota Rule of Evidence 1002, its version of the Best Evidence Rule, states that [t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules...." Minnesota Rule of Evidence 1004(1), however, states that "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith."
Courts very rarely find that the proponents of secondary evidence, such as transcripts of tapes, lost the original in bad faith. Thus, for instance, in Estate of Gryder v. C.I.R., 705 F.2d 336 (8th Cir. 1983), the Eighth Circuit affirmed at a Tax Court ruling allowing the Commissioner of Internal Revenue to introduce secondary evidence of corporate records based upon the finding that IRS employees destroyed the originals "negligently but not in bad faith." Courts have also frequently allowed for the admission of secondary evidence where propnents destroyed the originals in the ordinary course of business. See, e.g., United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996). As I argue in an upcoming article, there is good reason to question these decisions, but, unless Judge Leahy rejected the police's contentions about the destruction of the recordings, her decision was against current precedent.
January 17, 2008
The Rape Sieve Law?: Supreme Court Of Maine Hears Strange Rape Shield Law Appeal
In 2006, Brandon Drewry was convicted of brutally raping and attacking a married woman in Portland, Maine, based in part on a seemingly incorrect evidentiary ruling. The alleged victim called police on the morning of August 30, 2004 and said she met a stranger on Portland Street and went on a walk with him to smoke marijuana. She told police, and later testified, that the stranger dragged her down an alley with tall weeds and broken glass, choked her, causing her to pass out twice, punched her, forced her to have oral sex, and penetrated her with his fingers, but did not rape her vaginally. Relying upon the description that she gave them, police apprehended Drewry at a nearby shelter. Police recovered a hooded jacket in Drewry's backpack, which the alleged victim said belonged to her; she also identified Drewry as her assailant. The alleged victim admitted that she was a crack cocaine user, was receiving treatment for medical health issues, and was on the street looking for drugs when she was attacked.
DNA was later recovered from a semen sample taken from her vagina, and it did not match Drewry's DNA. Pursuant to Maine's rape shield law, Maine Rule of Evidence 412, evidence of a victim's past sexual behavior is generally inadmissible at a trial because of the fear that the jury will deem her promiscuous and believe that she is making a false accusation. Evidence of such past sexual behavior, however, is admissible "upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury." Accordingly, the judge hearing Drewry's case allowed him to present evidence that the DNA collected from the alleged victim was not a match for his DNA.
The judge, however, refused to allow the jury to hear that the DNA also did not match the victim's husband's DNA (and that it did not match the DNA of another man she was allegedly sleeping with). Instead, the trial judge accepted the prosecution's argument that the actual source of the semen was irrelevant because the victim never claimed she was sexually assaulted vaginally by Drewry. Drewry is presently arguing his appeal before the Supreme Court of Maine.
To me, the trial court's decision makes no sense. If the source of the semen was irrelevant, why did it allow for testimony that the recovered DNA was not a match for Drewry's DNA? If there was no question as to whether Drewry was the source of the semen recovered from the alleged victim's vagina, this testimony should have been precluded under the rape shield law. However, once that testimony was allowed, I see no principled reason for the court to have excluded other information relating to the source of the semen.
Furthermore, while it is difficult to reach any conclusions about the case without viewing the record, it seems to me that there was clearly a question about the source of the DNA. Sure, the alleged victim claimed that her assailant did not vaginally rape her, but she also testified that she passed out twice during the assault and that the assailant penetrated her with his fingers. It seems plausible that the assailant's semen could have been transferred to the victim's vagina via his fingers or while she was passed out, a plausibility that seems borne out by the decision to take the vaginal semen sample. If there was a decent possibility that it could have been the assailant's semen recovered from the victim, the source of the semen would be highly relevant, invalidating the trial judge's decision. It will be interesting to find out more about the case when the Supreme Court of Maine renders its opinion.
Trial And Error: Judge Declares Mistrial After Defense Attorney Asks Prosecution Witness About Polygraph Results
Judge Kelly Cottrill declared a mistrial and assessed all court costs to attorney Michael Bryan in the trial of Randy Dillon after Bryan committed one of the biggest courtroom errors a lawyer can commit: asking a witness whether she failed a polygraph test. Dillon was on trial for attempted murder, rape, kidnapping, burglary, and gross sexual imposition in connection with the abduction of then 14 month-old Miah Beatty. On direct examination, Miah's mother had testified, inter alia, that she put her baby girl to bed only to discover her missing around 4:00 A.M. the next morning. During cross-examination, Bryan, a partner in the Ohio law firm Stubbins, Watson & Erhard, attempted to discredit her testimony by asking, "Isn't it true you flunked a lie detector test?"
Assistant Prosecutor Ron Welch immediately shot from his seat and loudly objected to the question. The judge sustained the objection and the prosecution's subsequent motion for a mistrial, noting that it would be impossible to "unring the bell." Furthermore, Cottrill chimed that it was beyind his comprehension how Bryan could have been unaware that his question was impermissible. As Prosecutor Michael Haddox noted, polygraph results are only admissible when both parties have agreed prior to the polygraph being given that the results will be entered into a trial. See, e.g., State v. Sharma, 875 N.E.2d 1002 (Ohio Com.Pl. 2007).
I'm unaware of any empirical studies on the results of these joint stipulation polygraph cases, and I think that the results would be fascinating. Obviously, when both sides agree before the polygraph is taken that its results will be admissible, they each feel somewhat confident in the outcome. So, whose confidence is more often misplaced? In the majority of cases, is the prosecution burned by a string of answers deemed to be truthful, or are defendants shocked when their responses display indications of deception/stress?
I'm also curious as to how the public perception of the polygraph test might be altered in the wake of Fox's new, endlessly promoted game show "The Moment of Truth." I also wonder whether the show might actually lead to any criminal prosecutions. The show is apparently derived from a similar Columbian game show, which was canceled after one contestant admitted to hiring a hit man to kill her husband.
January 16, 2008
Seattle's Best?: Charges Dropped Against Richard McIver After Judge Finds Wife's Statements Aren't Excited Utterances
The domestic violence charges against Seattle City Councilman Richard McIver have been dropped on the eve of trial after the judge's evidentiary ruling excluding his wife's statements as excited utterances. McIver's wife, Marlaina Kiner-McIver, called 911 sometime after midnight on October 10 but then hung up immediately. A 911 dispatcher thereafter called her back and left a message. Malaina then called 911 again and told a dispatcher that while she had a fight with her husband, it was purely verbal and not physical. Domestic violence calls, however, cannot be undone, and police officers thus visited the McIver home, whereupon Marlaina claimed that McIver had been drunk, launched into a profanity laced tirade against her, and grabbed her arms and neck.
She later retracted this claim to police, but prosecutors were set to admit both sets of statements pursuant to Washington Rule of Evidence 803(a)(2), Washington's version of the excited utterance exception to the rules against hearsay. While out of court statements are generally inadmissible to prove the truth of the matter asserted in the statement, the excited utterance exception indicates that "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is admissible as an exception to the rule against hearsay. The oft criticized theory behind this exception is that people instinctively tell the truth; thus, when they are startled by an event or condition (such as an altercation) and have insufficient time to reflect upon it, their statements are likely to be truthful.
The judge in McIver's case, however, found that this exception was inapplicable to Marlaina's statements "based, in large part, on [her] demeanor when she spoke with police and [the] 911 dispatcher." According to the judge, because Marlaina appeared to be calm and had time to reflect before making her comments, her statements to the 911 dispatcher and the police were inadmissible hearsay and not admissible excited utterances. This decision came over the prosecution's objection that "[y]ou don't have to be crying or hysterical to be under the stress of the incident." After the judge rejected this argument and deemed the statements inadmissible, the prosecutors realized that they had insufficient evidence to convict McIver and thus dismissed all charges.
While the proscutor is correct that the declarant does not necessarily have to be crying or hysterical for the excited utterance exception to apply, when declarants are described as "calm," their statements are almost never considered excited utterances. See, e.g., State v. Doe, 719 P.2d 554, 556 (Wash. 1986). Furthermore, while domestic violence is undoubtedly startling, the few cases where courts have found that statements by "calm" declarants constitute excited utterances involve startling events of the most shocking variety. See, e.g, State v. Jennings, 677 N.W.2d 733 (Wis.App. 2004) (finding that statements by four-year old that she was sexually assaulted were excited utterances despite the fact that she appeared "calm" when making the statements). It should be noted that in the United States' Supreme Court's recent decision in Davis v. Washington, 126 S. Ct. 2266 (2006), the Supreme Court found that a wife's statements to a 911 dispatcher concerning a domestic disturbance, made after she initially called 911 and hung up, were deemed to be admissible excited utterance, but there was evidence in that case that the declarant was startled rather than calm.
Hawaii Five-O: Officials To Push For State Constitutional Amendment To Impeachment Rule
Pursuant to Federal Rule of Evidence 609, witnesses, including parties, in both criminal and civil cases can be impeached by prior felony convictions and convictions for crimes involving dishonesty or false statement. As I have noted, however, Federal Rule of Evidence 609 is a confusing rule which courts often misapply because it makes changes to the Rule 403 balancing test depending on whether the prior conviction/date of release is more than 10 years-old and whether the prior conviction was a conviction of the criminal accused or a conviction of some other witness/party.
By contrast, Hawaii's version of Rule 609 states that "[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is inadmissible except when the crime is one involving dishonesty. However, in a criminal case where the defendant takes the stand, the defendant shall not be questioned or evidence introduced as to whether the defendant has been convicted of a crime, for the sole purpose of attacking credibility, unless the defendant has oneself introduced testimony for the purpose of establishing the defendant's credibility as a witness, in which case the defendant shall be treated as any other witness as provided in this rule."
A comparison reveals that Hawaii's version is different because (1) it does not allow impeachment based upon felony convictions, unless they involve dishonesty, and (2) it does not allow impeachment of criminal defendants unless the criminal defendant first presents testimony bolstering his credibility (such as a witness testifying that the defendant is trustoworthy to show that his testimony can be trusted). To a large degree, then, the current Hawaii rule mirrors the treatment of character evidence under Federal Rule of Evidence 404(a)(1) (and state counterparts), which states that the prosecution can't introduce bad character evidence against a criminal defendant until the defendant first presents good character evidence (such as a witness in a murder trial testifying that the defendant has a reputation for being non-violent to show that he likely didn't commit the murder at issue). The commentary to Hawaii Rule of Evidence 609 states several reasons why Hawaii has not adopted the federal rule, including the claim that the federal rule "is confusing, ambiguous, and awkwardly worded."
If top law enforcement officials in Hawaii have their way, however, Hawaii will soon amend its rule so that the second difference with the federal rules is eliminated. With a mind toward improving public safety, these officials want a state constitutional amendment that will allow criminal defendants who take the stand to be impeached by prior conviction, whether or not they first present good character evidence. It will be interesting to see whether such an amendment indeed gets passed and whether Hawaii takes heed of the criticism of the federal rule in its commentary and alters its rule in a way that produces a less confusing result.
January 15, 2008
Imagine John Lennon Is Dead: How The Beatle's Murder Changed Evidence Law Forever
The recent release of the movie "The Killing of John Lennon" and the forthcoming "Chapter 27" bring to mind just how much the actions of Mark David Chapman altered not only music history, but also the rules of evidence. At the time that Chapman's alleged obsession with "The Catcher in the Rye" led him to shoot and kill the former Beatle, Federal Rule of Evidence 704 stated "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Thus, Chapman's attorney was able to present expert testimony that Chapman was "insane," even though such testimony embraced an ultimate issue to be decided by the jury.
However, after the public outrage that resulted from Chapman's insanity defense and John Hinckley, Jr.'s insanity defense in his alleged "Taxi Diver" inspired attempt on the life of Ronald Reagan, Congress decided to pass the Insanity Defense Act of 1984. See United States v. Gastiaburo, 16 F.3d 582, 588 (4th Cir. 1994). As a result of this Act, Rule 704(b) was added to the Federal Rules of Evidence. According to Rule 704(b), "[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone." After this amendment, defense experts in cases governed by the federal rules of evidence can no longer testify that the defendant is "insane," although they can give a diagnosis of a patient and testify as to the characteristics of the diagnosed disease. See, e.g., United States v. Childress, 58 F.3d 693, 728 (D.C. Cir. 1995). Most states have followed suit, as is evidenced by the recent decision of the Court of Criminal Appeals of Tennesse in State v. Jones, 2008 WL 65322 (Tenn.Crim.App. 2008).
Although this rule was "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," courts have since found that it "applies to all instances in which expert testimony is offered as to the mental state or condition constituting an element of the crime charged or defense thereto," often to the detriment of prosecutors. United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995). Thus, for instance, in a trial for first degree murder, an expert could not testify that based upon his interview with the defendant, he believed that the defendant acted with premeditation. See United States v. DiDomenico, 985 F.2d 1159, 1173 (2nd Cir. 2003). And then there's the crazy recent Nebraska sexual assault case which prosecutors recently abandoned after the judge banned the use of the word "rape" pursuant to Nebraska's version of the rule. Conversely, under the rule, a defendant would not be able to establish his defense of self-defense through an expert's opinion testimony that the defendant had an actual belief that he needed to use self-defense at the time of his alleged crime. See, e.g., Angelo v. Henry, 2007 WL 1731118 (9th Cir. 2007).
All of this makes me wonder whether Congress should revisit its decision. I understand the concern that jurors can unduly defer to the conclusions of expert witnesses, shifting decisionmaking authority. However, does that mean that the solution should be that we ban these conclusions or that we allow experts on both sides to reach disparate conclusions and leave it to jurors to decide which one to believe? With cases such as the Nebraska case taking the Rule to its extreme, I'm starting to think we should move toward the latter.
January 14, 2008
Died In South Dakota: David Lykken Murder Trial Raises Interesting Evidentiary Issues
The upcoming murder trial in South Dakota for David Lykken has already proven to be chock full of interesting evidentiary issues. Lykken's trial for allegedly killing two Vermillion girls in 1971 is scheduled to finally start in March, but there remain several questions about what evidence can be admitted at trial. Here are some of the key pieces of evidence and my thoughts on them:
-A prosecution witness wants to testify that Lykken's sister-in-law told him that her father, Lykken's brother, and Lykken's father all helped cover up the crime after David Lykken killed the girls. The sister-in-law has denied making such statements.
My conclusion is that the prosecution witness cannot testify about the sister-in-law's alleged statement because it is hearsay under SDCL 19-16-1(3) in that it "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Furthermore, even if the sister-in-law were considered a co-conspirator of Lykken based on additional facts, her statements would not be admissible as co-conspirator's admissions under SDCL 19-16-3(5) becuase they would not have been made "during the course and in furtherance of the conspiracy."
-The prosecution claims that police may have memory enhancement techniques that can help Lykken's sister recall what happened to the Vermillion girls, which will allow her to testify against her brother at trial.
Presumably, the prosecution is saying that it can hypontically refresh the sister's memory. Courts are sharply split on whether and/or under what circumstances hypnotically refreshed testimony is admissible, with at least four different approaches being taken. See State v. Johnston, 529 N.E.2d 898, 904-05 (Ohio 1988). In State v. Boykin, 432 N.W.2d 60, 67-68 (S.D. 1988), South Dakota took its procedure from the EIghth Circuit Court of Appeals opinion in Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir. 1985). Pursuant to this procedure, hypnotically refreshed testimony is admissible only if the following procedural safeguards are met:
-1) Only an impartial licensed psychiatrist or psychologist trained in the use of hypnosis should conduct hypnotic sessions;
-2) Any information given to the hypnotist should be noted, preferably in written form;
-3) The hypnotist should obtain a detailed account of facts from the subject before hypnosis;
-4) The session should be recorded, preferably on videotape; and
-5) No one other than the hypnotist and subject should be present during the session, unless it is shown the other's attendance was essential and that steps were taken to avoid influencing the results.
Thus, if the sister's memory can be refreshed through hypnosis, the admissibility of her testimony will depend on whether these safeguards are followed.
-An expected key witness is fellow inmate Aloysius Black Crow. Lykken allegedly admitted the murders to Crow, who wrote notes about the confessions and recorded them by wearing a wire. Defense counsel claims that the notes are hearsay and that the state can't prove that it is Lykken's voice on the tapes.
My conclusion is that Lykken's statements to Black Crow are admissions pursuant to SDCL 19-16-3(1) because they are statements by a party -- the criminal defendant -- offered against him at trial. Furthermore, Black Crow's notes would likely constitute "recorded recollections" under SDCL 19-16-19, making them admissible as an exception to the rule against hearsay. Furthermore, Lykken's voice could be authenticated throuh a variety of means, inlcuding Black Crow's testimony that he recorded Lykken making the confessions, the testimony of any lay witness with knowledge of Lykken's voice identifying his voice as the voice on the tape, and the testimony of an expert witness comparing the voice on the tape to Lykken's voice. See SDCL 19-7-1.
January 13, 2008
Conspiracy Theory: Seventh Circuit Notes That Prosecutors Don't Need To Charge Conspiracy To Introduce Co-Conspirator Admissions
The Seventh Circuit's recent decision in United States v. Moon, 2008 WL 43585 (7th Cir. 2008), makes an important point that too few prosecutors know: a prosecutor seeking to admit statements as co-conspirator's admissions does not need to charge defendants with conspiracy. In Moon, Anthony Alexander and George Moon were convicted of distributing cocaine and of some ancillary crimes, but they were neither charged nor convicted of conspiracy. Some of the evidence used to convict them were recorded conversations between the two men obtained as a result of a wiretap and admitted pursuant to Federal Rule of Evidence 801(d)(2)(E) (co-conspirator's admissions), which indicates that a statement is not hearsay if the statement is offered against a party and is "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."
On appeal, the defendants seemed to argue, inter alia, that their recorded conversations were inadmissible as co-conspirator's admissions because they were not charged with conspiracy. The Seventh Circuit rejected this argument, noting: "Some prosecutors may believe that they need to charge conspiracy in order to take advantage of the co-conspirator exception to the hearsay rule..., but that's a mistake. This rule of evidence depends on principles of agency, so it applies (if the evidence demonstrates agreement by a preponderance...) whether or not the indictment has a conspiracy count." The Seventh Circuit then found that the prosecution had proven a conspiracy between Alexander and Moon by at least a preponderance of the evidence, and it thus affirmed their convictions.
Thus, prosecutors should adhere to the following logic when they have alleged co-conspirator admissions that they want to admit. If they have enough evidence that they think they can prove conspiracy beyond a reasonable doubt, they should charge conspiracy. If, however, they think that they can merely prove conspiracy by a preponderance of the evidence or by clear and convincing evidence, they should not charge conspiracy but should still seek to admit the statements pursuant to Federal Rule of Evidence 801(d)(2)(E) or state counterparts.