August 30, 2008
She's A Femme Fatale: Ninth Circuit Finds Federal Rule of Civil Procedure 32(a)(4)(B) Allows For Admission Of Deposition Testimony In Life Insurance Murder Case
The Ninth Circuit's recent opinion in Nationwide Life Ins. Co. v. Richards makes an important point about the interplay between the Article VIII of the Federal Rules of Evidence and Federal Rule of Civil Procedure 32(a). In Richards, Nationwide Life Insurance Company brought a non-statutory interpleader action to resolve conflicting claims to the proceeds of a one million dollar insurance policy written on the life of Bryan Richards, who was murdered in December 2001. The district court entered a judgment against Bryan's wife and in favor of Bryan's brother, Keith, in his role as guardian ad litem for Bryce and Kendall Richards, the two minor children of Bryan and Angelina. Why did it do so?
Well, it determined that Angelina did conspire in, aid, and abet Bryan's murder, and thus was disqualified from receiving any proceeds from the policy. Instrumental in that finding was the deposition testimony of Gerald Strebendt, a former Marine sniper and close personal friend of Rafiel Torre, who was convicted of Bryan's murder. In his deposition, Strebendt, who did not testify at trial, testified that, inter alia,
-he met Angelina through Torre in early September 2001 and that later the same month he witnessed Angelina and Torre get Bryan intoxicated so that the two of them could spend the evening together without Bryan's knowledge;
-Angelina told him that she and Torre were having an affair;
-he saw Angelina give Torre $10,000 in cash and that shortly afterward Torre said, "Angelina just wishes she could be rid of Bryan, she wishes he was just gone...and she's even willing to pay somebody $10,000 to do it...and she knows you [Strebendt] were a sniper in the Marines and she wanted to know if you're interested....;"
-Torre called him several times in late December and early in mid-January, stated that Bryan had been killed, and emphasized his need to see Strebendt in person;
-Torre admitted to killing Bryan but claimed that it was self-defense after Bryan accused him of having an affair with Angelina and pointed a Glock handgun at him;
-Torre asked Strebendt to provide an alibi, which Strebendt refused to do, although Strebendt did agree to keep Bryan's handgun;
-he contacted sheriff's detectives and agreed to make recorded telephone calls to Angelina;
-On December 11, 2003, Strebendt told Angelina that “[t]he gun that Rafiel gave me has been recovered,” to which Angelina responded that she did not know what Strebendt was talking about and that he had better talk to Torre;
-On December 12, 2003, Strebendt told Angelina that Torre had admitted to killing Bryan in self-defense, had given Strebendt Bryan's gun, and had told Strebendt that Angelina would pay $10,000 for someone to kill Bryan. Angelina responded: "That's ridiculous. I would never say that."
At trial, Angelina raised a hearsay objection to Strebendt's deposition testimony regarding Torre's statements but the district court found that Angelina and Torre were engaged in a conspiracy to murder Bryan and that Torre's statements as reported by Strebendt thus were admissible as non-hearsay statements of a co-conspirator under Federal Rule of Evidence 801(d)(2)(E).
On appeal, Angelina claimed, inter alia, that the trial court erred in finding that Federal Rule of Evidence 801(d)(2)(E) applied and in finding that Strebendt's deposition testimony was admissible under Federal Rule of Evidence 804(b)(1), the former testimony exception to the rule against hearsay. That exception requires that the declarant be "unavailable" to testify at trial, and Angelina correctly argued that Strebendt did not meet any of the definitions of unavailability listed in Federal Rules of Evidence 804(a)(1)-(5).
The Ninth Circuit, however, found that Strebendt's deposition testimony was admissible under Federal Rule of Civil Procedure 32(a)(4)(B), which states that "[a] party may use for any purpose the deposition of a witness, whether or not a party, if the court finds...that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition." The Ninth Circuit correctly noted that under Federal Rule of Evidence 802, "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Thus, because Federal Rule of Civil Procedure 32(a)(4)(B) is one of these "other rules," Strebendt's deposition testimony was properly admitted.
The Ninth Circuit then found that there were sufficient facts in the record to support application of Federal Rule of Evidence 801(d)(2)(E) to Torre's statements to Strebendt. And while the Ninth Circuit did not address the issue, I will note that even Torre's statements asking Strebendt for an alibi and to take his handgun would likely qualify as statements during and in furtherance of the conspiracy to kill Bryan even though they occurred after his murder. See, e.g., United States v. Silverstein, 737 F.2d 864, 867 (10th Cir. 1984).
August 29, 2008
I'm A Soldier: Supreme Court of Missouri Finds Closing Statement Comparing Jurors To Soldiers Is Not Plain Error
According to the Supreme Court of Missouri's recent opinion in State v. McLaughlin, 2008 WL 3906355 (Mo. 2008), a prosecutor's closing statement comparing jurors to soldiers is not plain error. In McLaughlin, the jury found Scott A. McLaughlin guilty of first-degree murder, forcible rape, and armed criminal action based on the first-degree murder in connection with the rape and murder of his ex-girlfriend. The jury, however, deadlocked on the final step of the punishment phase, and so the question of punishment went to the trial judge, who imposed a sentence of death. McLaughlin subsequently appealed, claiming, inter alia, that the jury might have imposed a lighter sentence if the prosecutor had not made prejudicial remarks during his closing statement.
The contested portion of that statement, to which defense counsel did not object, went as follows:
"Also, another thing I want to point out to you is when you are out there deciding now what you are going to do, when you're deciding - we've talked about that duty. When you find a shred of humanity, ladies and gentlemen, find it for her family.
You know, she didn't have somebody there who was trying to decide her fate and decide whether she should live or die. She just had this man. You know, sometimes when you come in you have a duty. You've all seen this. You've all seen soldiers in World War II. You know, they're now what? In their 70s and 80s, if they're still around.
They went back in World War II, and they did their duty. The war wasn't something I'm sure they took pleasure in. They didn't want to do that. They didn't want to get taken away from their families and go over and fight the Germans and the Nazis. That wasn't what they wanted to do; they had a duty to do it, and they did their duty.
And just as you have a duty to do.
When you talk about those men now, and you look at those men, you know what? They're able to stand up there tall, and they're proud. They're not proud because of what they had to do to those other young men, but they're proud because they're able to do their duty. They did what was right even though it was hard to do that.
So, ladies and gentlemen, you've heard all the evidence. You've heard both the aggravating and mitigating. It's up to you to decide. In doing that, if you're trying to think of why you should do this, well, number one, the evidence is there for you to do it. And, number two, you know, you could send a message. Even if it only stops one other person from doing what he did, that's a message you want to send."
The Supreme Court of Missouri found that the admission of this statement was not plain error, contrasting this closing statement with one found to be improper in Weaver v. Bowersox, 438 F.3d 832 (8th Cir. 2006). In Bowersox, the prosecutor said:
"I know there's a movie, Patton, and in the movie, George Patton was talking to his troops because the next day they were going to go out in battle and they were scared as young soldiers. And he's explaining to them that I know that some of you are going to get killed and some of you are going to do some killing tomorrow morning. And they all knew that. And he was going to try to encourage them that sometimes you've got to kill and sometimes you've got to risk death because it's right. He said: But tomorrow when you reach over and put your hand in the pile of goo that a moment before was your best friend's face, you'll know what to do."
The Supreme Court of Missouri found, however, that Bowersox was not analogous for two reasons. First, according to the court, "[i]n the present case, the comment by the prosecutor was not as extensive as that criticized in Weaver." Really? I count 330 contested words in the McLaughlin closing statement compared to 126 contested words in the Bowersox closing statement, seemingly making the former much more extensive.
Second, according to the court, unlike the prosecutor in Bowersox,
"the McLaughlin prosecutor did not tell the jury that it was its duty to impose death. Rather, he basically told the jurors that like soldiers, they had a duty, but he then identified that duty as being to hear the evidence and decide on a punishment, stating, “[s]o, ladies and gentlemen, you've heard all the evidence. You've heard both the aggravating and mitigating. It's up to you to decide.” He did not tell them it was their duty to decide to kill, in other words, but to reach a decision."
Maybe I'm reading too much into the McLaughlin prosecutor's closing statement, but it certainly doesn't seem to me that he was simply asking the jurors to "reach a decision." He told them that, like the soldiers fighting the Nazis during World War II, they had a duty to do something that they didn't want to do. How could that merely be the duty to "reach a decision," when that is exactly what most jurors want to do so that they can get on with their lives (Pauly Shore in "Jury Duty" excepted). Instead, it seems clear to me that he was asking them to sentence McLaughlin to death.
And it seems to me that my assumption is confirmed by the last two lines of the prosecutor's closing. in those lines, he stated, "In doing that, if you're trying to think of why you should do this, well, number one, the evidence is there for you to do it. And, number two, you know, you could send a message. Even if it only stops one other person from doing what he did, that's a message you want to send." (emphasis added). It's clear to me that "this" means the imposition of the death penalty, and how could it not be? Section 565.030 of the Missouri Code states that jurors in the McLaughlin case only could have imposed the death penalty or life imprisonment without eligibility for probation, parole, or release except by act of the governor. I strongly believe that the prosecutor was telling them to do the former despite not wanting to do so because it was their duty, just like it was the duty of the soldiers during World War II.
August 28, 2008
My New Article: Impeachable Offenses?: Why Civil Parties in Quasi-Criminal Cases Should be Treated Like Criminal Defendants Under the Felony Impeachment Rule
Yesterday, I finished my summer article, Impeachable Offenses? Here is the abstract for the article:
With one exception, every Federal Rule of Evidence dealing with propensity character evidence or evidence which can be misused as propensity character evidence makes it either: (a) as difficult to admit such evidence in civil trials as it is in criminal trials, or (b) more difficult to admit such evidence in civil trials than it is in criminal trials. The "mercy rule" falls into this latter category as it allows criminal defendants to inject the issue of character into their trials while a similar luxury is not afforded to civil parties. Before 2006, however, a substantial minority of courts extended the "mercy rule" to civil parties in quasi-criminal cases because they were in most respects similar to criminal cases. Congress finally shut the door to this practice based upon the serious risks of prejudice, confusion, and delay that propensity character evidence engenders.
These same risks, however, support treating civil parties in quasi-criminal cases the same as criminal defendants under the felony impeachment rule. That rule, Rule 609(a)(1), makes it much more difficult for courts to exclude the felony convictions of civil parties than it is for them to exclude the felony convictions of testifying criminal defendants. It is thus the only Federal Rule of Evidence which makes it easier to admit evidence which can be misused as propensity character evidence in civil trials than it is in criminal trials. Courts should correct this anomaly by treating civil parties in quasi-criminal cases the same as criminal defendant under the Rule.
If you would like to download a copy of the article, you can do so by clicking on this link to SSRN.
Lie Detector As Sentencing Tool?: Maryland Judge Allows Defendant To Take Polygraph Test As Part Of Sentencing Process
In a strange ruling which I think is clearly contradictory to Maryland precedent, a Baltimore County judge has given convicted felon Trent L. Banks a chance to take a lie-detector test as part of the sentencing process. According to Judge Lawrence R. Daniels, "[t]he appellate courts say it can't come in [as evidence] as proof of guilt or innocence, and I certainly agree that the state shouldn't be able to say, 'He failed a polygraph so you should find him guilty on that basis.'" Judge Daniels noted, however, that private employers, the military, the federal government and even local prosecutors' offices routinely use lie-detector tests. According to Judge Daniels, "They use them as an investigatory tool. I'm just using it as a sentencing tool."
This is an interesting conclusion, but one that is inconsistent with a consensus among courts against the use of polygraph evidence at the sentencing stage of trial. See, e.g. Ortega v. United States, 270 F.3d 540, 548 (8th Cir. 2001). And Maryland falls within that consensus. In its1985 opinion in Johnson v. State, 495 A.2d 1 (Md. 1985), the Court of Appeal of Maryland dealt with a case where a reference was made to a polygraph test at a sentencing proceeding, and the trial judge overruled an objection to the reference. On appeal, the court found that this was error, citing to its 1984 opinion in Guesferid v. State, 480 A.2d 800, 803 (Md. 1984), for the proposition that "[t]here is no longer any doubt that in this State, the results of a lie detector test, as well as the fact of taking such a test, are inadmissible at trial." At first glance, I'm a bit confused by the facts of the Banks case, so I will look into them some more before doing a more detailed post on the case. But as I see things now, Judge Daniels' decision is clearly erroneous.
August 27, 2008
New Zealand's New Rule?: NZ's Justice Ministry Proposes Rape Shield Law
It looks as if New Zealand might be ready to join the United States and other countries in enacting a rape shield rule. Currently, in rape case in the country, judges admit evidence concerning the sexual history of both the complainant and the accused in open court without prior consideration of its relevance to the case. And if New Zealand juries are anything like juries in the U.S., that can cause serious problems. To wit, for the better part of this country's history, defense counsel in rape cases used to parade into court all of the alleged victim's sexual partners to, in effect, prove that she had a propensity to consent to sexual relations and that she acted in conformity with this propensity, and thus consented, at the time of the alleged rape. Or, more generally, they used the evidence to prove that the alleged victim was a liar.
Such a display impacted not only jurors, but also judges, who often revealed their chauvinistic tendencies in their opinions. For instance, in its 1895 opinion in State v. Sibley, 33 S.W. 167, 171 (Mo. 1895), the Supreme Court of Missouri fatuously concluded that"[i]t is a matter of common knowledge that the bad character of a man for chastity does not even in the remotest degree affect his character for truth, when based upon that alone, while it does that of a woman."
With such crazy notions bandied about courtrooms, its easy to see why it was difficult for prosecutors to procure rape convictions and easy to see why the anti-rape movement, an offshoot of the civil rights movement of the 1960s and 1970s, was able to get rape shield rules passed. These rules as well as Federal Rule of Evidence 412 in effect shield complainants from having their past sexual behavior and/or predisposition exposed in the courtroom unless defense counsel can point toward a compelling theory of admissibility.
And New Zealand's Justice Ministry is considering doing the same. It is currently seeking feedback as to whether current guidelines in the Evidence Act should be amended. The Ministry has suggested changing the law to extend protection for complainants, by making previous evidence about their previous sexual experience inadmissible without prior agreement of the presiding judge. It will be interesting to see whether the proposal is successful, and if so, whether the enacted law is more of a rape shield law or a rape sieve law.
August 26, 2008
Inference Engine: Fifth Circuit Finds Corroboration Is Not Required To Satisfy Rule 104(b)
Because I'm teaching Federal Rule of Evidence 104(b) today, I figured it would be an opportune time to do my first post on this rarely invoked rule of evidence. In United States v. Dillon, 532 F.3d 379 (5th Cir. 2008), former Assistant City Attorney of New Orleans Henry Dillon appealed conviction for depriving two women of their right to bodily integrity under color of law by sexually assaulted them. One of the grounds for his appeal was that the trial court erred by permitting Sheena Cheneau to testify that Dillon sexually assaulted her after he prosecuted a battery case in which she was the victim
The trial court admitted this evidence under the controversial Federal Rule of Evidence 413, which abrogates the ban on propensity character evidence and allows the prosecution in a sexual assault case to present evidence of the defendant's commission of another offense of sexual assault. While the other offense does not have to result in a conviction or even criminal charges, there does need to be sufficient proof that it occurred, which is where Federal Rule of Evidence 104(b) comes into play. Federal Rule of Evidence 104(b), which covers conditional relevance, states that "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition."
In other words, a judge must admit conditionally relevant evidence if he believes that a reasonable jury could find the conditional fact (the sexual assault on Cheneau) by a preponderance of the evidence. Even if the judge thinks it is more likely than not that the conditional fact did not occur, he must admit the evidence if he thinks that a reasonable juror could find that the fact occurred. This is an extremely liberal standard of admissibility, which is why the Fifth Circuit found that Dillon's argument that Cheneau's allegations had to be corroborated was without merit.
Indeed, as the case I cover in class today notes, a conditional fact does not even require direct evidence and can be established through inference. In that case, Cox v. State, 696 N.E.2d 853 (Ind. 1998), a murder victim had testified against the defendant's close friend, Jamie Hammer, at a bond reduction hearing held four days before he was murdered. The conditional fact to be established in the case was that the defendant in fact learned of the victim's testimony, giving him a motive to murder him. And the Supreme Court of Indiana found that the trial court did not abuse its discretion in finding that Rule 104(b) was satisfied despite a lack of direct evidence that the defendant learned of the victim's testimony. Instead, the court merely found that:
"the State introduced evidence that Cox spent almost every day at the Hammer house where Hammer's mother lived both before and after the bond reduction hearing and up to the time of the shooting. Hammer and Cox were close friends and Hammer's mother attended the hearing. This evidence is sufficient to support the inference that Cox had learned what transpired at the hearing"
August 25, 2008
The Lone Ranger and Tonto Fistfight in Heaven, Take 2: 10th Circuit Hears Oral Arguments In Rule 606(b) Appeal
Last Wednesday, I used my post from last December about a district court's landmark Rule 606(b) ruling in my Evidence class. Readers may recall the case, in which a Utah District Court vacated a Native American man's conviction for assaulting a federal officer after receiving evidence that, inter alia, the jury foreman told the other jurors that he had lived on or near a reservation and that, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent." At the time, I noted that the case "appear[ed] to be the first case in which a court in the Tenth Circuit has considered post-verdict evidence of juror racial bias in reversing a verdict," and noted that the U.S. Attorney's office was considering whether to appeal the court's decision.
Well, after class, I decided to check up on the case and found out that the U.S. Attorney's office did indeed decide to appeal, and oral arguments were held before a three judge panel of the Tenth Circuit last week. It will certainly be interesting to see what result the court reaches, and whichever way it decides, it will widen the already sharp circuit split over whether, notwithstanding Rule 606(b), jurors should be able to impeach their verdicts after trial through testimony about, inter alia, racial or religious slurs.
I'm in the last week of finishing my summer article, and as I noted before, I will be taking my stab at the split this fall, with my argument being that courts should apply the doctrine from Chambers v. Mississippi, 410 U.S. 284 (1973), to permit post-trial juror impeachment through testimony about racial or religious slurs, notwithstanding the rules of evidence. And maybe, based upon the case currently before the Tenth Circuit, the Supreme Court will finally be granting cert on the issue and reaching its own conclusions.
August 24, 2008
Laguna Peach: Tow Truck Dispute Calls Into Question Admissibility Of Prior Crimes By Jason Wahler
I remember flipping through the channels one day and landing upon the TV show "Laguna Beach" and concluding that it was pretty much the worst television show I had ever seen (maybe topped only by the short lived "Poochinski"). And while one of its "stars," Jason Wahler (who apparently also appears on that show's spinoff, "The Hills") isn't the worst person out there, his pending court case reveals that he has a pretty checkered history, albeit one that I don't think that jurors will be able to hear about.
Tow truck driver Dario Stevenson claims that in 2006, Wahler was traveling in a car with friends when their vehicle was blocked by his tow truck, which was trying to move an illegally parked vehicle. Stevenson claims he was "roughed up" by Wahler while trying to impound the other car and that the vehicle in which Wahler was a passenger almost "clipped" the tow truck as well as traffic officer Jonathon Wallace. In addition, both Wallace and Stevenson -- who are African-American -- have claimed Wahler used the N-word during the incident. Consequently, Stevenson has sued Wahler in civil court for compensatory and punitive damages for the verbal and physical altercation.
And he'd like to introduce evidence of Wahler's checkered history to prove his case. Some of these acts include:
-Wahler being arrested in April 2007 on charges of assault and criminal trespassing after a (hopefully non-"Borat"-esque) tussle in a Marriott hotel lobby, and
-a 2006 conviction for resisting arrest and bribery following a bust in New York.
According to Wahler's attorney, "[Wahler] was arrested in New York and in Seattle as a result of incidents not remotely related to this lawsuit...Such evidence should not be allowed to reach the jury inasmuch as it would only constitute evidence of character which is inadmissible." Meanwhile, the plaintiff's lawyers counter that the 21-year-old's history of arrests is perfectly admissible because it shows a consistent pattern where "he does not respect authority."
In this dispute, I definitely side with Wahler's attorney. California Evidence Code Section 1101(a) states that "[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, Wahler's prior bad acts could not be used be jurors to conclude. "Once a violent criminal, always a violent criminal."
On the other hand, according to California Code of Evidence 1001(b), "[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, [common] plan [or scheme], 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."
In essence, it appears that the plaintiff's attorney is trying to argue that Wahler's past acts show that he has a common plan or scheme of disrespecting authority, making those acts admissible under California Code of Evidence 1001(b). The clear problem with this argument is that there is no similarity between the two past acts and the tow truck dispute. Now, if all three incidents involved disputes with two truck drivers, or if all three involved hotel lobby fights, or if all three involved resisting arrest and/or bribery, the plaintiff's attorney might have a point. But from my perspective, the evidence of Wahler's prior bad acts is classic propensity character evidence, which is inadmissible under the rules of evidence.