EvidenceProf Blog

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

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Saturday, August 2, 2008

Judge, Jury, And Influencer: Court Allows For Jury Impeachment And Reversal Based Upon "12 Angry Men" Argument

The recent opinion of the Court of Appeals of Indiana in Henri v. Curto, 2008 WL 2929369 (Ind.App. 2008), is a case with an interesting Rule 606(b) ruling.  In Curto, Susana Henry met Stephen Curto at a house party near Butler University in Indianapolis, where both were students.  They hung out with other students, drank until they were both intoxicated, and eventually went back to Henri's dormitory room and engaged in a sexual encounter.  Henri filed a civil suit alleging that Curto had raped her and reported to Butler University what had happened.  The University thereafter held a hearing, with the judicial official concluding that Curto had violated University rules and suspending Curto for four years.

Curto was considerably more successful in the civil suit, where he filed a counterclaim alleging that Henri tortiously interfered with his contract with Butler University as a student enrolled in a degree program.  After a day of deliberations, the jury returned a unanimous verdict finding that Curto had not raped Henri and that Henri tortiously interfered with Curto's contract with Butler University.  But was the jury's verdict proper?

Henri didn't think so and submitted a juror's affidavit as part of a Motion to Correct Error and a Motion to Supplement the Record.  There were various and sundry allegations in the affidavit, ranging from a juror fielding a call on her cell phone during deliberations to a juror noting that she wanted deliberations to end quickly because she was leaving for vacation soon.  Despite the juror's affidavit, the trial court denied Henri's motions, and the Court of Appeals of Indiana found that most of the allegations in the affidavit either had no probable deletorious effect on jury deliberations or were inadmissible under Indiana Rule of Evidence 606(b), which states in relevant part that:

     "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, 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."

The Court of Appeals, however, found that one of the allegations in the affidavit was admissible and required reversal.  The allegation was that, twenty minutes into deliberations, the trial judge received a juror's question asking whether the verdict had to be unanimous.  The trial judge then apparently told the bailiff to instruct the jury to "continue their deliberations."  Unfortunately, in something that you might see in the game of telephone, the bailiff then told the jury that it "would have to keep deliberating until we could reach a unanimous verdict."  As the Court of Appeals correctly found, this was "an incorrect statement of the law because jurors have the opportunity to cause a mistrial or hung jury."

According to the court, this allegation was admissible because it related to an improper outside influence being brought to bear upon the jury rather than improper behavior by the jurors during deliberations.  This still left the question of whether this improper outside influence likely had a significant impact upon the verdict.  The court then answered this question in the affirmative, finding that "the statement by the bailiff conveys that jurors in the minority would face the daunting task of swaying all the other jurors if they are to stick to their convictions, a task surmountable in less than two hours on the silver screen if you are Henry Fonda, but a task that could be overwhelming in real life for the average juror."

I agree with the court's ruling and note that even the Henry Fonda character in Sidney Lumet's classic film couldn't convince his fellow jurors without some improper behavior.  Specifically, Fonda's character improperly visited the defendant's neighborhood and purchased a switchblade knife similar to the murder weapon at a pawnshop, which he showed to the other jurors, conduct which almost certainly constituted jury misconduct.  See Charles D. Weisselberg, Good Film, Bad Jury, 82 Chi-Kent L. Rev. 717, 728 (2007).

-CM

August 2, 2008 | Permalink | Comments (1) | TrackBack (0)

Friday, August 1, 2008

Ten Years Have Got Behind You: Supreme Court Of Illinois Clarifies Ten Year Rule For Conviction-Based Impeachment

The recent opinion of the Supreme Court of Illinois in People v. Naylor, 2008 WL 2940572 (Ill. 2008), finally resolved a quandary that had plagued Illinois courts for decades:  how to measure the ten year time limit on conviction-based impeachment.  I refer to this as a "time limit" because Illinois does not have an equivalent state counterpart to Federal Rule of Evidence 609(b), which states in relevant part that a felony conviction or a conviction for a crime involving an act of dishonesty or false statement is:

"not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."

Illinois, however, which does not have codified rules of evidence, actually adopted a draft version of Federal Rule of Evidence 609(b) which stated that such "old" convictions are per se inadmissible for impeachment purposes, without an "interests of justice" exception. See People v. Montgomery, 268 N.E.2d 695 (Ill. 1971).  After Montgomery, Rule 609(b) was amended to quell a debate that actually threatened the entire project of creating a Federal Rules of Evidence, but the Supreme Court of Illinois subsequently reaffirmed that it was sticking with the draft version of Rule 609(b), rather than the version that was enacted. See People v. Yost, 399 N.E.2d 1283 (Ill. 1980).  So, how did this all come into play in Naylor?

Well, in Naylor, John Naylor was indicted on six counts relating to possession of heroin with intent to deliver and delivery of heroin, acts which he allegedly committed in March 2000.  Naylor's trial finally commenced in August 2004, which is also when Naylor testified and when he was impeached by the prosecution through evidence of his December 1990 conviction for aggravated battery.  After Naylor was convicted, he appealed to the Appellate Court of Illinois, which reversed his conviction, and the Supreme Court of Illinois subsequently affirmed the appellate court's opinion.  Why?

Well, let's look at how the ten year clock works.  The ten year clock begins ticking under Federal Rule of Evidence 609(b), in both its draft and enacted forms, with the date of the prior conviction or the date of release, whichever is later.  So, if a witness was convicted of a crime more than ten years before the date when the clock stopped but was not released from confinement for that crime until ten years or less before the clock stopped, Rule 609(b) would cover the conviction, with the date of release being the determinative date.  Conversely, if the witness was convicted of a crime and sentenced to time served or not sentenced to incarceration, the date of conviction would be the determinative date.  So, what was the determinative date in Naylor?

Well, it turns out that it was December 2000 because the State did not present evidence of Naylor's release date, a mistake which could have been fatal.  Why?  Well, most courts hold that the ten year clock stops on the date on which the witness testifies. See, e.g., United States v. Watler, 461 F.3d 1005, 1008-09 (8th Cir. 2006).  Because Naylor didn't testify until August 2004, more than ten years had elapsed since the date of his conviction, but more than ten years might not have elapsed since he was released from confinement (if he was incarcerated for about five years or more).  So, why did the trial court allow for Naylor to be impeached?

Well, the court in Naylor noted that over the years, several Illinois courts found that the clock actually stopped on the date that the defendant allegedly committed the crime for which he was being tried.  The court expressly disavowed these decisions based upon two grounds, only one of which makes sense to me.  The ground that makes sense to me is that stopping the clock on the date of the alleged crime "presumes that the defendant must be guilty."  I agree with the court's conclusion that, "To state this presumption is to reject it."

The court's second rationale, however, was that these courts were wrong because their determination of when the clock stops makes no sense when the individual to be impeached is merely a witness and not a testifying defendant.  Furthermore, the court concluded that "[t]o the extent that the State proposes a separate rule for criminal defendants who testify on their own behalf, such a suggestion is not well-taken."  This leads me to ask, "Why not?"

Looking at Federal Rule of Evidence 609(a)(1), we see that criminal defendants and other witnesses are treated differently, with a felony conviction being admissible for impeachment purposes against the former only if the state proves that its probative value outweighs its prejudicial effect but admissible against another witness as long as its probative value is not substantially outweighed by dangers such as the danger of unfair prejudice.  Meanwhile, Federal Rule of Evidence 609(d) states that evidence of a juvenile adjudication is per se inadmissible against a criminal defendant but admissible against other witnesses in criminal cases under certain circumstances.  Thus, it seems to me that there was no reason for the Supreme Court to reject a criminal defendant/other witness dichotomy out of hand.      

-CM

August 1, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 31, 2008

Your Honor, We Call Your Honor To The Stand: Proseuctors Ask Judge To Recuse Himself In Baby Killing Case

The 1987 courtroom thriller "Suspect," starring Cher and Dennis Quaid is by no means a very good movie, despite the esteemable talents of director Peter Yates and screenwriter Eric Roth.  Nonetheless, it has one of the classic lines in any courtroom movie, with defense counsel at the climax of the movie saying to the judge, "Your honor, we call your Honor to the stand."  Well, in Ohio, Mahoning County prosecutors have asked the judge presiding over the case of an accused baby killer to recuse himself to avoid such a scenario

That case is the case of Terrance Tate, who is charged with aggravated murder with a death-penalty specification in connection with the fatal beating of Javonte Covington on his first birthday in April 2006.  The current issue in Tate's case is whether his admission to the subject crime will be admissible at his trial.  At the suppression hearing on the issue, Tate testified that police behaved aggressively toward him, yelled at him, and called him a liar in 45 minutes to an hour of questioning before warning him of his right to remain silent.  Judge John M. Durkin apparently credited Tate's testimony and excluded the confession, and the 7th District Court of Appeals affirmed, finding that police failed to warn Tate of his right to remain silent before questioning him about the victim's injuries while he was in police custody.

Prosecutors have appealed this ruling to the Supreme Court of Ohio, and they are armed with two new pieces of evidence:  letters that Tate wrote to Judge Durkin while in county jail in May 2006 and August 2007.  So, why didn't the prosecution have these letters earlier?  Assistant county prosecutor Martin P. Desmond has claimed that while the letters were faxed to defense lawyers, John B. Juhasz and Lynn Maro, they were not faxed to the prosecution.  So, what was in the letters?  While it's unclear what the letter from 2007 letter stated, in the May 2006 letter, Tate told the judge he gave a false confession to police to keep the baby’s mother, April Ford, from going to jail.  The prosecution now claims that it could have used the May 2006 letter to cross-examine Tate when he testified at Judge Durkin’s suppression hearing concerning the methods police used to obtain the confession.

And the prosecution ostensibly plans to use the letter(s) at a new suppression hearing, which, if it has its way, will not be before Judge Durkin.  That's because, as noted, the prosecution wants Judge Durkin to recuse himself because as the recipient (and alleged withholder) of Tate's letters, Durkin could himself be called as a witness.  Now, I don't have all the facts of the case, but I will address why Judge Durkin should indeed recuse himself if he thinks that it's likely that he will be a (material) witness in the case.

The reason that Judge Durkin should recuse himself in this scenario is because Canon 3 of the Ohio Code of Judicial Conduct states at (E)(1)(d)(v) that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where...[t]he judge...is to the judge's knowledge likely to be a material witness in the proceeding."  Moreover, pursuant to Ohio Rule of Evidence 605, "[t]he judge presiding at the trial may not testify in that trial as a witness.

-CM

July 31, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2008

Til Disclosure Do Us Part, Take 2: B.C. Supreme Court Finds Spousal Testimonial Privilege Precluded Admission of Wife's Statements To Police

A recent opinion of the B.C. Supreme Court reveals that our neighbors to the north still have the spousal testimonial privilege, at least in criminal cases.  In 2003, David Couture was found guilty of two counts of second degree murder in connection with the 1986 slayings of his then girlfriend and her friend.  Couture's conviction hinged largely upon audiotaped and videotaped statements made by his wife, Darlene, to police in 2003 in which she claimed that he admitted to the murders (at the time David allegedly made these statements, Darlene was David's Christian volunteer counsellor in prison, where he was serving time on unrelated offences).  When Darlene spoke to the police, David and she were recently separated but still married, and they later reconciled and remained married at the time of his trial.

After David was convicted, he appealed to the B.C. Court of Appeal, claiming that the trial court improperly admitted his wife's audiotaped and videotaped statements.  The Court of Appeal agreed, ruled the statements inadmissible, set aside the convictions, and ordered a new trial.  The Crown then appealed from this order, but the B.C. Supreme Court affirmed.  Why?

The B.C. Supreme Court noted that "[a]t common law, in civil cases, the parties and their spouses were incompetent to testify.  The same rule applied in criminal cases to accused persons and their spouses, save in cases that involved the witness spouse’s person, liberty or health."  The Court then noted that while the rule was abolished in civil cases, in criminal cases, it was codified in Section 4 of the Canada Evidence Act, which implicitly preserved the common law, subject to exceptions that were inapplicable in Couture's case.

Technically, speaking, however, Darlene did not testify; instead, her statements to police were admitted.  So, why did the Court find her statements admissible when it acknowledged that "[t]here is no question that the spousal incompetency rule is testimonial in nature."  Well, it found that "[u]nless there is good reason to modify an established common law rule, the modern approach to hearsay should be applied in a manner which preserves and reinforces the integrity of the traditional rules of evidence."  And the Court found no such good reason, rejecting the Crown's argument that Darlene's statements were admissible under Canada's principled exception to the hearsay rule because the circumstances in which they were given rendered them reliable.  The Court rejected this argument "[b]ecause exclusion of evidence under the spousal incompetency rule has nothing to do with the reliability or probative value of the evidence."

The Court did acknowledge that in a previous case -- Hawkins -- it had admitted out-of-court statements made by a spouse under the principled exception, but it agreed with the Court of Appeals that Hawkins was very much limited to its facts because in that case:

     (1) the hearsay admitted was a transcript of evidence given under oath (Darlene's statements were not given under oath);

     (2) the witness had been cross-examined; and

     (3) the marriage took place after the evidence was given.

The Court thus rejected the Crown's argument and concluded that "Hawkins was based on its own particular fact situation and did not create a broad exception that would admit all out-of-court statements made by spouses on the basis of threshold reliability alone."  I agree with the opinion of the B.C. Supreme Court and disagree with the contrary conclusion of Michigan Court of Appeals, which recently strictly construed Michigan's confidential marital communications privilege (which is somehwat similar to the spousal testimonial privilege) and found that a spouse's statements are admissible through other witnesses as long as they meet an applicable hearsay exception (Here is my post on the Michigan opinion).

-CM

July 30, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2008

Wall Of Silence, Take 3: Judge Doesn't Yet Rule On Character Testimony In Spector Retrial

I've written twice (here and here) about the retrial of Phil Spector and his attorneys' attempt to preclude the prosecution from presenting the testimony of five women who testified at Spector's initial trial that he had a proclivity for threatening women with guns (as well as the proposed testimony of a sixth woman to the same effect).  Today, the judge heard several defense pre-trial motions, including a motion on this issue, but he did not rule on the issue of whether these women could render this character testimony against Spector.  As I previously noted, however, the issue seems clear, with the judge seemingly having no option but to exclude the testimony.

-CM

July 29, 2008 | Permalink | Comments (0) | TrackBack (0)

The Last 48?: District Attorney General Sends Letter To Memphis Police Department Asking That It Not Renew Its Contract With A&E's "The First 48"

The A&E show "The First 48" summarizes its premise in its title voiceover: "For homicide detectives, the clock starts ticking the moment they are called. Their chance of solving a case is cut in half if they don't get a lead in the first 48 [Hours]."  Each episode tracks a homicide or homicides, showing how detectives use forensic evidence, witness interviews, and other advanced detective skills to identify suspects. The way that the show is able to do this is that it was given unprecedented access by several police departments to crime scenes, interrogations, detectives' opinions and and other details that typically are revealed in a courtroom.  The show has followed police departments in many cities, ranging from Miami to Phoenix and has now sparked its first controversy in Memphis, with some claiming that the courtroom is where this information should remain.

Recently, the show did an episode on Jessie Dotson, which was punctuated by his tearful confession to shooting four adults and beating and stabbing five children.  There were, however, problems with this confession.  First, the confession, which was recorded and edited by A&E hasn't yet been ruled admissible in Dotson's pending trial, meaning that the jury pool could easily be tainted by it if it is later ruled inadmissible at trial.  And inadmissibility (and extreme prejudice) seems a real possibility based upon the fact that the video was allegedly edited and taken out of sequence, with A&E destroying whatever video they don't use.

This, however, was not the problem which led District Attorney General Bill Gibbons to send a letter to Memphis Police Director Larry Godwin asking that he not renew the department's contract with the show.  Instead, the letter was the result of the Rules of Professional Conduct promulgated by the Supreme Court of Tennessee.  Pursuant to Rule 3.6(a), "[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding."

Prosecutors, however, not only have to keep their own mouths shut, but also must ensure that mum's the word for everyone around them.  Specifically, Rule 3.8(e)(2), states that the prosecutor in a criminal matter shall "discourage investigators, law enforcement personnel, and other persons assisting or associated with the prosecutor in a criminal matter from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6."  Ostensibly, this Rule is violated by the Memphis Police Department's cooperation with "The First 48," so how are things likely to end?

Well, it initially appeared that they might end amicably, after Godwin decided in May not to renew the contract with "The First 48" because of how disruptive the taping is to the department.  However, he said recently that he is reconsidering the decision because the show casts detectives in a favorable light.  It seems to me, though, that the show violates the Rules promulgated by the Supreme Court of Tennessee and thus shines a negative light on the Memphis Police Department.  Hopefully, then, the Memphis Police Department and other police departments will discontinue their affiliation with the show or at least, as suggested by Gibbons, reach an agreement that "The First 48" will not air its episodes until after cases have been disposed

-CM

July 29, 2008 | Permalink | Comments (2) | TrackBack (0)

Monday, July 28, 2008

Sexual Assault By Any Other Name: Wisconsin Court Finds Trial Court Properly Excluded Prior False Sexual Abuse Allegations In Sexual Assault Trial

I'm skeptical of the recent opinion of the Court of Appeals of Wisconsin in State v. Sussman, 2008 WL 2833111 (Wis.App. IV Dist. 2008).  In Sussman, Gordon Sussman appealed a trial court judgment convicting him of two counts of repeated sexual assault of the same child and sixteen counts of possession of child pornography.  One of Sussman's claims on appeal was that he received the ineffective assistance of counsel because his trial attorney failed to file a pre-trial motion under Wis.Stat. Section 971.31(11).  In relevant part, Section 971.31(11) states that "evidence which is admissible under s. 972(11)(2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial."

Wis.Stat. 971(11)(2) is Wisconsin's rape shield statute, which generally proscribes the admission of evidence of the alleged victim's prior sexual conduct in a rape or sexual assault case.  Wis.Stat. Section 97(11)(2)(b)3, however, allows for the admission of "[e]vidence of prior untruthful allegations of sexual assault made by the complaining witness," and this was the type of evidence that Sussman sought to introduce at trial:  testimony that the victim had falsely accused his father of sexual abuse in the past.  However, because his trial attorney failed to comply with the procedural requirements of Section 971.31(11), this testimony was inadmissible, prompting Sussman's appeal.

The Court of Appeals of Wisconsin thus had to determine whether the testimony that Sussman sought to admit would have been admissible under Wis.Stat. Section 97(11)(2)(b)3 if Sussman's trial attorney had complied with Section 971.31(11).  In making this determination, the court relied upon the previous opinion of the Supreme Court of Wisconsin in State v. DeSantis, 456 N.W.2d 600 (Wis. 1990), which said that courts faced with proposed "false accusation" evidence must find three elements:

     (1) that there is a sufficient factual basis for allowing the jury to hear the evidence that the complainant has made prior allegations of sexual assault that are untruthful;

     (2) that the evidence is material to a fact in issue; and

     (3) that the evidence of an untruthful allegation is of sufficient probative value to outweigh its inflammatory and prejudicial nature.

The Court of Appeals of Wisconsin then deferred to the trial court's determinations that the first and third elements did not exist.  With regard to the first element, it affirmed the trial court's ruling that:

     "Admissible evidence under Wis.Stat. Section 97(11)(2)(b)3 is specifically limited to '[e]vidence of prior untruthful allegations of sexual assault made by the complaining witness.' This language indicates that the purported allegations must bear at least some resemblance to a relevant definition of sexual assault and not merely be allegations with some sexual aspect. The language of the statute is particularly relevant in this case where defendant has provided material which could support a finding that the complaining witness alleged that his father made contact with his intimate parts. There has, however, been no material submitted which would support a finding that the complaining witness claimed his father had touched him for the purpose of sexual gratification or sexual degradation. There is no indication that the complaining witness alleged that the father was aroused by the contact, that the complaining witness was intentionally humiliated by the contact or that the complaining witness depicted the contact as assaultive. To infer that the complaining witness' allegations were allegations of sexual assault in this instance would, in the Court's opinion, either be entirely speculative and/or render a significant portion [of] the language of [the statute] surplusage." (emphasis added).

And my response to the Court of Appeals of Wisconsin is, "You cannot be serious!"  The "relevant definition of sexual assault" is found in Wis.Stat. Section 940.225, which requires "sexual contact," which it in turn defines as, inter alia, "intentional touching, whether direct of through clothing, if that intentional touching is either for the purposes of sexually degrading; or for the purpose of sexually humiliating the complaining or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery."

Unfortunately, the court did not provide the facts of the alleged victim's prior false allegations, but assuming that the son claimed that his father intentionally made contact with his intimate parts, how is it speculative to conclude that the son's allegation was that the purpose of the contact was to sexually humiliate him and/or to sexually arouse/gratify the father?  What other purpose would lead to allegations of sexual abuse?  I can't think of any, and, even if I could, I would imagine that those allegations would still have borne the required resemblance to the definition of sexual assault to allow for application of Wis.Stat. Section 97(11)(2)(b)3.

Furthermore, with regard to the third element, the appellate court affirmed the trial courts; ruling that:

     "the purported evidence would not have been admitted because its probative value is significantly, indeed grossly, outweighed by its prejudicial effect. The alleged false accusation by the complaining witness against his father was of a rather ambiguous nature, was temporally remote from the allegations against the defendant, especially considering the youth of the complaining witness, and contained vastly different surrounding circumstances. Thus, the probative value of the evidence would have been quite low. The potential for improper use and confusion by the jury, however, would have been unacceptably high. Extensive testimony regarding this alleged report of sexual abuse would likely have focused undue attention on the complaining witness' behavior in a situation quite unlike the one actually being tried."

Again, without the facts of the alleged victim's prior false allegations, it's difficult to determine the exact probative value of the evidence.  That said, the false allegations clearly had some probative value.  On the other hand, where is the unfair prejudice?  The unfair prejudice usually connected with prior false sexual assault allegations is that jurors will misuse them to draw the conclusion that the alleged victim likely consented to the earlier sexual act and thus likely consented to the act at issue.

In Sussman, however, as in the Ninth Circuit's opinion in LaJoie v. Thompson, 217 F.3d 663 (9th Cir. 2000), which also dealt with an alleged child victim, this fear of unfair prejudice was non-existent.  Why?  Well, as the court found in Thompson,

     "Admitting the excluded evidence in this case, however, would not create undue prejudice. The evidence is distinguishable from evidence of an adult or sexually-mature minor's sexual history which could be improperly used by the jury in deciding whether she was raped. Rather, the evidence in this case concerned non-consensual sexual abuse of a young child; thus, the jury was unlikely to draw an unfavorable and unwarranted impression of the alleged victim."

In other words, there was no fear that the jury in Sussman would have used the prior false allegation to conclude that the alleged victim consented to the sexual contact with his father.  Therefore, I don't see how the court could have found that the evidence was too prejudicial to be admissible.

-CM

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

Sunday, July 27, 2008

Is Justice (Color)Blind?: Court Of Appeals of Michigan Becomes Latest Court To Finds That Evidence Of Racial Prejudice Can't Support Jury Impeachment

The Court of Appeals of Michigan is the latest court to find that evidence of racial prejudice during deliberations is not a sufficient ground to permit post-trial jury impeachment.  It's a conclusion with which I strongly disagree, and I plan to write my article arguing for application of the doctrine from Chambers v. Mississippi, 410 U.S. 284 (1973) to this fact pattern this fall (research so far is going very well).  So, what was the exact fact pattern prompting the recent opinion of the Court of Appeals of Michigan in People v. Brooks, 2008 WL 2855040 (Mich.App. 2008)?   

Keith Brooks was convicted based upon the allegation that he sexually abused the victim, his niece, in 2004, when she was 15 years old.  Specifically, he was convicted of first-degree criminal sexual conduct (digital penetration), but acquitted of a second count of first-degree criminal sexual conduct (penile penetration).

One of the bases for Brooks' appeal was an affidavit from the jury foreman -- Brooks Maudlin.  The affidavit claimed that some of the jurors had discussed the case during the trial.  It also asserted  that Juror # 1 had twice suggested that Maudlin's position that Brooks was not guilty was a "brotherhood thing" -- (both Brooks and Maudlin are African-American).  According to Maudlin, Juror # 1 said this once in front of Juror # 14, who "immediately introduced race into the discussion." Maudlin "felt that [Juror # 14] was attacking me personally based upon the fact that both Mr. Brooks and I are Black and I was arguing on his behalf."  Maudlin claimed that once he was the last juror voting "not guilty," several jurors personally attacked him and other jurors complained that they needed to get back to work." Maudlin stated that he changed his vote to "guilty" because he felt he "could not stay in that room much longer without exploding," and later realized that he had done so because of the pressure from other jurors, not because he believed that Brooks was guilty.

Now, the interesting thing is that Michigan actually doesn't have a rule of evidence covering the admissibility of the affidavit.  Michigan Rule of Evidence 606 merely covers juror testimony during trial, stating that "[a] member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting.  No objection need be made in order to preserve the point."  In other words Michigan Rule of Evidence 606 is very similar to Federal Rule of Evidence 606(a), which also proscribes juror testimony during trial.  Michigan, however, does not have a rule of evidence dealing with juror testimony after trial.  Conversely, Federal Rule of Evidence 606(b) precludes jurors from impeaching verdicts except through testimony 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."

However, while Michigan doesn't have a rules-based counterpart to Federal Rule of Evidence 606(b), it has incorporated a similar "rule" in its case law, with the Court of Appeals of Michigan finding in People v. Fletcher, 679 N.W.2d 127 (Mich.App. 2004) that "[o]nly where there is evidence that the jury's verdict was affected by influences external to the trial proceedings may a court considered juror testimony to impeach a verdict."  So, what did this mean in Brooks?  Well, according to the court, it meant that "[a]lthough it was improper for the jurors to discuss the case before the trial court instructed it to so and to allow their need to return to work to motivate their deliberations, these are the sorts of 'internal influences' [deemed inadmissible] by the case law." 

And how about the evidence of racial prejudice?  According to the court, no evidence could be received on this point, either.  According to the court, "The allegation that race entered into the jury's discussions, and the attendant implication that racial bias motivated the verdict, while much more disturbing, is still not an 'extraneous influence.'"  And that's the same finding that most courts currently reach when a defendant seeks to have a juror testify or present evidence that a verdict was tainted by racial/religious/gender prejudice.  These courts slavishly adhere to their rules and precedent in holding that juror impeachment should not be allowed in lieu of crafting an approach that would avoid what they acknowledge to be "disturbing" results. 

So, why do I think their conclusions are wrong?  Well, in Chambers v. Mississippi, the Supreme Court held that "exclusion of reliable evidence under state evidentiary rules may, under certain circumstances, deprive a criminal defendant of the fourteenth amendment right to present evidence critical to his defense." Mark Andrew Stafford, A. State v. Barts, North Carolina Relaxes Foundation Requirements for Mitigating Evidence in Capital Sentencing Hearings, 66 N.C. L. Rev. 1221, 1224 (1988). 

And the thing is that in most of these cases, there is nothing specific about the evidence excluded that brings the Fourteenth Amendment to mind.  For instance, in Chambers v. Mississippi, the Court found that Mississippi erred in applying its "voucher rule" to prevent defense counsel from impeaching a witness he had called.  Now, because the impeachment evidence consisted of statements indicating that the witness and not the defendant committed the subject murder, it is easy to see why the Court ruled in favor of the defendant.  But there was nothing about Mississippi's application of its voucher rule that screamed for application of the Fourteenth Amendment.

Conversely, a case like Brooks falls right in the Fourteenth Amendment's wheelhouse.  A criminal defendant claims that he was convicted based not upon the evidence, but based upon racial bias.  Such an allegation clearly implicates the due process clause and the Sixth Amendment requirement of a trial by an impartial jury, making it, in my mind, the perfect candidate for the Chambers v. Mississippi treatment.

-CM   

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