EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Saturday, September 6, 2008

Exchange For His Parole?: Seventh Circuit Find Probation/Parole Periods Don't Count In Rule 609(b)'s Clock

In its recent opinion in United States v. Rogers, 2008 WL 4072542 (7th Cir. 2008), the Seventh Circuit correctly concluded that the ten year clock of Federal Rule of Evidence 609(b) starts after an individual is released from imprisonment and not after the end of his subsequent probation period.  In Rogers, Anthony Rogers was tried in 2005 on charges of making a false statement on a firearm-purchase form and being a felon in possession of a firearm. He testified in his own defense and was impeached with his 1993 conviction for distribution of cocaine. Rogers was released from prison on that conviction in 1994 after his sentence was modified to probation, and he thereafter remained on probation supervision until 1999.

At trial, the district court found that Rogers' previous conviction was not covered under Federal Rule of Evidence 609(b), which states, inter alia, that:

     "[e]vidence of a conviction under this rule 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."

According to the district court, Rogers was not "release[d]...from confinement" until his probation period ended, meaning that his prior conviction/release was less than 10 years old, making it admissible to impeach him under Federal Rule of Evidence 609(a)(1) as long as the "probative value of admitting this evidence outweigh[ed] its prejudicial effect to the accused." 

After he was convicted, however, Rogers brought a motion for a new trial, in which he contended that his release from confinement was the date he was released from imprisonment, not the date that his probation period ended, making his prior conviction/release more than 10 years old.  The district court agreed and found that while the probative value of Rogers' conviction outweighed its prejudicial effect, as required by Federal Rule of Evidence 609(a)(1), it did not do so to a substantial degree, as required by Federal Rule of Evidence 609(b).  This decision makes sense to me, because, as I point out in my new article, Impeachable Offenses?, the Advisory Committee indicated in its Note to Federal Rule of Evidence 609(b) that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances."  The district court nonetheless found that its erroneous impeachment ruling was harmless error, prompting Rogers' appeal to the Seventh Circuit.

The Seventh Circuit noted that the question it was presented with was "whether the probation that followed his release from prison for that conviction (essentially, his parole) may be said to constitute 'confinement imposed for that conviction.'"  The court indicated that this was a matter of first impression for it and it answered the question in the negative, relying upon the Fifth Circuit's opinion in United States v. Daniel, 957 F.2d 162 (5th Cir. 1992).  In that opinion, the Fifth Circuit in turn relied upon the Advisory Committee Note to Rule 609(b), which it found conclusively addressed and rejected the probation/parole formulation of the ten year time limit.  I actually think that both opinions chop up that Note too much, so I will simply quote it directly to show why both courts were right.  According to the Advisory Committee,

     "Rule 609(b) as submitted by the Court was modeled after Section 133(a) of Public Law 91-358, 14 D.C. Code 305(b)(2)(B), enacted in 1970. The Rule  provided:

     Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the release of the witness from confinement imposed for his most recent conviction, or the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction, whichever is the later date.

     Under this formulation, a witness' entire past record of criminal convictions could be used for impeachment (provided the conviction met the standard of subdivision (a)), if the witness had been most recently released from confinement, or the period of his parole or probation had expired, within ten years of the conviction.

     The Committee amended the Rule to read in the text of the 1971 Advisory Committee version to provide that upon the expiration of ten years from the date of a conviction of a witness, or of his release from confinement for that offense, that conviction may no longer be used for impeachment. [And the Rule was subsequently amended to allow such remote convictions to be admissible in rare cases with exceptional circumstances]."

Thus, the Advisory Committee clearly found that the date of "release...from confinement" was different from the date of the expiration of a parole/probation period and that it was the latter date that was controlling under Federal Rule of Evidence 609(b).  I thus agree with the Seventh Circuit that  "'confinement' for purposes of the ten-year time limit in Rule 609(b) does not include periods of probation or parole."  Indeed, simply thinking logically about what we think is meant by the word "confinement," I don't see how it could be read to include a parole probation/parole period.

[As often happens in conviction impeachment cases, however, the Seventh Circuit agreed with the district court that its evidentiary error was harmless in light of the other evidence of Rogers' guilt.].

-CM

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

Friday, September 5, 2008

WikiJudge?: 8th Circuit Finds That Immigration Judge Improperly Relied Upon Wikipedia In Asylum Case

In Budasa v. Mukasey, 2008 WL 3981817 (8th Cir. 2008), the Eighth Circuit granted a petition for review of an order of the Board of Immigration (BIA) based upon improper consideration of evidence from internet encyclopedia Wikipedia.  In Mukasey, Lamilem Badasa entered the U.S. illegally using a fraudulent Italian passport and later applied for asylum and relief under Article III of the Convention Against Torture. The Immigration Judge (IJ) found that Badasa's claim was not credible because she had submitted fraudulent documents designed to establish her identity  The BIA initially dismissed Badasa's administrative appeal, also concluding that she had failed to establish her identity. Badasa thereafter moved to reopen her case based on a travel document recently acquired from the Ethiopian government, known as a laissez-passer, which Badasa alleged would establish her identity.  The BIA then reopened the case and remanded it to the IJ for further consideration.

On remand, the IJ used information, including evidence from Wikipedia, to conclude that laissez-passer is a single-use, one-way travel document that is issued based on information provided by the applicant. On this basis, the IJ concluded that the Ethiopian government's issuance of the travel document did not change her prior decision regarding Badasa's failure to prove her identity and denied the application for asylum, and the BIA affirmed.

Badasa then appealed to the Eighth Circuit, which reversed, finding that:

     "Wikipedia describes itself as 'the free encyclopedia that anyone can edit,' urges readers to '[f]ind something that can be improved, whether content, grammar or formatting, and make it better,' and assures them that '[y]ou can't break Wikipedia,' because '[a]nything can be fixed or improved later....' Wikipedia's own 'overview' explains that 'many articles start out by giving one-perhaps not particularly evenhanded-view of the subject, and it is after a long process of discussion, debate, and argument that they gradually take on a consensus form....'  Other articles, the site acknowledges, 'may become caught up in a heavily unbalanced viewpoint and can take some time-months perhaps-to regain a better-balanced consensus....' As a consequence, Wikipedia observes, the website's 'radical openness means that any given article may be, at any given moment, in a bad state: for example, it could be in the middle of a large edit or it could have been recently vandalized.'"

Based upon these factors, the Eighth Circuit found that the IJ improperly relied upon the evidence from Wikipedia and that it was impossible to determine whether she would have reached the same conclusion if she had not considered this evidence.  Thus, it granted the petition for review and remanded to the BIA.

Now, this was a case for asylum, so "fairness rather than the rules of evidence govern[ed] the admissibility of evidence." Turn v. Gonzales, 485 F.3d 1014, 1028 (8th Cir. 2007).  Nonetheless, it seems clear to me that a judge would have made the same ruling a case governed by the Federal Rules of Evidence.  Specifically, because there are multiple, unidentifiable authors of each Wikipedia entry, there are hearsay issues with such evidence under Article VIII of the Rules and authentication issues under Article IX.  Furthermore, because Wikipedia itself acknowledges that articles can be biased and "in a bad state," it's very possible that they are substantially more misleading, etc. than probative, violating Federal Rule of Evidence 403.

-CM

September 5, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2008

Shielded From Justice?: Court Of Appeals Of Mississippi Seemingly Reads Exception Out Of Rape Shield Rule

The recent opinion of the Court of Appeals of Mississippi in Goldman v. State, 2008 WL 4041284 (Miss.App. 2008), contains what seems to me to be a partially correct and a partially incorrect ruling under Mississippi's rape shield rule.  In Goldman, Michael Goldman was convicted of, inter alia, sexual battery and aggravated assault, in connection with acts that he committed against the alleged victim.  At the time of those acts, Goldman was 18 years-old, and the alleged victim was 16 years-old (in Mississippi, age 16 is the age of consent).  Goldman's defense was that the intercourse was consensual. He claimed to have known the alleged victim since he was fifteen years old and testified that they had spent time together at school and at church

He also wanted to cross-examine the alleged victim about her past sexual relationship with him and produce evidence from other witnesses to prove that he previously had sex with her.  The controlling Rule on this issue was Mississippi Rule of Evidence 412, which states in relevant part that:

    "(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense against another person, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual offense is not admissible.

     (b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense against another person, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is: * * * 

          (2) Admitted in accordance with subdivision (c) hereof and is evidence of * * *

               (B) Past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which a sexual offense is alleged * * *

     (c) (1) If the person accused of committing a sexual offense intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior or evidence of past false allegations made by the alleged victim, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and on the alleged victim."

In other words, in a sexual battery case, evidence that the alleged victim engaged in other sexual acts is inadmissible to prove that she had a general propensity to consent to sexual acts and that she likely acted in conformity with that propensity, and thus consented, at the time of the alleged crime.  However, previous sexual acts between the alleged victim and the accused may be admissible to prove that there are specific reasons to believe that she may have consented to the sexual act at issue.  But, in this latter situation, the accused has to comply with the notice requirements of Mississippi Rule of Evidence 412(c)(1) listed above, and the Court of Appeals of Mississippi noted that the trial court properly precluded Goldman from presenting evidence regarding his past sexual relations with the alleged victim because he failed to so comply.  This is the ruling with which I agree.

The Court of Appeals of Mississippi also found, however, that the trial judge properly concluded that such evidence would have been inadmissible even if Goldman complied with the notice requirements of Mississippi Rule of Evidence 412(c)(1) because the evidence was "irrelevant."  The appellate court agreed with this conclusion, noting that, "[a]s we have held before regarding the defense of consent, '[a]ll that was relevant regarding sexual relations at this trial was whether the victim consented to the shocking abuses visited upon him on in question].'" Fuqua v. State, 938 So.2d 277, 283 (Miss.App. 2008).

Now, maybe, the Court of Appeals of Mississippi didn't intend to use such sweeping language and won't use such language or reasoning in subsequent cases in which defendants do comply with the applicable notice provisions.  But it certainly seems to me that the court, in effect, is improperly reading an exception out of the rape shield rule and finding that evidence of prior sexual relations between the defendant and the alleged victim are never admissible.

-CM

September 4, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 3, 2008

The Turncoat CI: 3rd Circuit Corrects Trial Judge's Erroneous Hearsay Ruling In Drug Bust

The Third Circuit's recent opinion in United States v. Green, 2008 WL 4014129 (3rd Cir. 2008), involves a confidential informant going turncoat, the prosecution scrambling to discredit him, and the trial judge bizarrely accepting its left field argument.  In Green, Artega Green was convicted of one count of distribution of more than 50 grams of cocaine base in violation of 21 U.S.C. Section 841.  Instrumental in this conviction was an audio recording in which a CI, Michael Brown, called a cell phone number "associated with" Green and ordered 3 ounces of cocaine base, and a video in which the CI allegedly engaged in a drug transaction with Green.  The video, however, was of relatively low quality and only briefly depicted the profile of the alleged perpetrator; thus, key to the defense's case was to cast doubt as to whether Green was in fact the person depicted.

And the defense received a windfall when, "[i]n a rather dramatic turn of events," Brown decided to testify for the defense. According to Brown, Green never got out of the car on the day of the buy, and the person depicted on the video selling the drugs was an individual known as "Tex."  Brown also alleged that the DEA agents had used him before in other controlled buys, always with the goal of catching Green on tape selling drugs; however, they were never successful, and were upset at Brown because of this.

Thereafter, over Green's objection, the trial judge permitted the government to "introduce as substantive evidence a statement that Brown purportedly made some 50 minutes following the controlled buy in question, after he was brought back to DEA offices and debriefed by the case agents." (emphasis added).  In the statement, Brown attested that it was Green who sold him the drugs. While defense counsel argued that the statement should not have been admitted under Federal Rule of Evidence 613(b) because Brown had not been given the opportunity to explain or deny it on the witness stand, the trial judge admitted the statement, pursuant to the prosecution's argument, as a present-sense impression under Federal Rule of Evidence 803(1).

On appeal, the Third Circuit reversed.  It noted that Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."  The court then found that Brown's statement did not qualify for admission under this Rule, concluding,

     "While it is true, as the Government notes, that courts have not adopted any bright-line rule as to when a lapse of time becomes too lengthy to preclude Rule 803(1)''s application,...we are nevertheless unaware of any legal authority for the proposition that 50 minutes after the fact may appropriately be considered immediately thereafter.'"

Moreover, the Third Circuit properly noted that

     "Brown's statement in this case is problematic not only because of the lengthy passage of time, but also because the statement was only made after he had been questioned by DEA agents about the details of the transaction the statement purports to describe. This undisputed sequence of events affirmatively indicates that Brown made his statement after he was expressly asked to reflect upon the events in question, and thereby fatally disqualifies the declaration for admission as a present-sense impression."

The court then found Brown's statement was also likely inadmissible under Federal Rule of Evidence 613(b) as a prior inconsistent statement because, as defense counsel noted, he was not given the opportunity to explain or deny it on the witness stand, a requirement under the Rule.  There was no need, however, for the Third Circuit to be equivocal.  As noted, Brown's statement was introduced as substantive evidence, and under Federal Rule of Evidence 613(b), the statement "could have been admissible solely for the purpose of impeaching his previous testimony," not as substantive evidence. Lippay v. Christos, 996 F.2d1490, 1499 (3rd Cir. 1993).

-CM

September 3, 2008 | Permalink | Comments (6) | TrackBack (0)

Tuesday, September 2, 2008

Can't Stop The Music?: Defendant Files Petition For Writ Of Certiorari In Enya Victim Impact Statement Case

Last December, I posted an entry about a strange California case involving a victim impact statement.  In that case, a jury convicted Douglas Oliver Kelly of the first degree murder of Sara Weir under the special circumstances of robbery, rape, and with personal use of a deadly weapon. And during the penalty phase of Kelly's trial, after which he was sentenced to death, the court allowed the prosecution to play a 20-minute videotaped victim impact statement with a montage of photographs of Sara Weir's life, narrated by her mother. On appeal to the Supreme Court of California, Kelly claimed that the videotape was unfairly prejudicial.

One of the grounds for his appeal was that the videotape should have been excluded because it was accompanied by Enya music.  The Supreme Court of California attempted to distinguish previous cases where courts had found that videotaped victim impact statements accompanied by music from the Beatles, James Taylor, and Celine Dion were or should have been deemed inadmissible.  According to the Court, a rational line could be drawn because Beatles and James Taylor music is "stirring" and could go "beyond what the jury might experience by viewing still photographs of the victim or listening to the victim's bereaved parents" while the Enya music in the video in Kelly's case was "generally soft, not stirring," with most of the words unrecognizable. 

Well, according to SCOTUSblog, Kelly has now filed a petition for writ of certiorari to the Supreme Court (SCOTUSblog has the impact statement on its site).  In that petition, he has claimed that "courts have 'held the line' against the introduction of tapes containing both background music and extensive video footage or collections of photographs....The petition also contends the inclusion of background music serves no purpose beyond heightening the emotional experience of the viewer. Kelly’s attorney cites a 1940 essay in the New York Times in which composer Aaron Copland discussed his score for the movie, Of Mice and Men. 'The quickest way to a person’s brain is through his eye,' Copland wrote, 'but even in the movies the quickest way to his heart and feelings is still through the ear.'  The petition argues that just as background music could not be played during in-court testimony, nor should it be allowed to accompany evidence on videotape."

Meanwhile, in its brief in opposition, California has argued that no genuine conflict exists on the admissibility of victim impact evidence presented on videotape.  According to the state, most courts have admitted such evidence, and those that excluded it relied on state rules of evidence rather than the due process clause.  California has claimed that even if the background music or closing images were irrelevant to the impact on the victim’s family and should not have been admitted, their inclusion did not prejudice the defendant when considered in light of the trial as a whole.

Kelly's petition will be heard on September 29th, and I hope that the Supremes decide to take the case.  As I noted in my previous post, judges seem pretty ill suited to be making decisions about what type of music is too "stirring," and I think that there's a strong argument that any music in victim impact statements is exploitation rather than exposition.

(Hat tip to Ben Winograd of SCOTUSblog).

-CM

September 2, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2008

The Beads Of One Rosary: New Jersey Court Affirms Convictions Despite Witness' Rosary Beads In Labor Day Case

The recent opinion of the Superior Court of New Jersey in State v. Branin, 2008 WL 3876013 (N.J.Super.A.D. 2008), raised by did not resolve an interesting issue:  Can a witness be forced to remove his or her rosary beads during testimony?  In Branin, the alleged victim claimed that while spending the 2005 Labor Day holiday weekend in the Highlands with her boyfriend, Christopher, he and she went to dinner at a local restaurant.  They were seated at a table behind the defendant, Gary S. Branin, Jr., who knew Christopher as both were Highlands volunteer firefighters.  After dinner, Branin invited Christopher and the alleged victim to join his group, whereupon Branin bought alcoholic drinks for everyone at the table.  Branin and the couple then left for another Highlands bar, and the alleged victim claimed that while they were there, Branin sexually assaulted her.  Branin was subsequently convicted of two counts of second degree sexual assault.

On appeal, Branin claimed that he was prejudiced by the alleged victim's possession of rosary beads during her testimony.  While Branin admitted that there was no New Jersey case supporting his claim that a witness' mere possession of rosary beads is prejudicial, he claimed that such possession "falls within N.J.R.E. 610's prohibition on the admission of religious evidence."  New Jersey Rule of Evidence 610 states that "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."

So, Branin's argument was ostensibly that the rosary beads were evidence that the alleged victim was a devout Catholic, which could have enhanced her credibility in the eyes of the judge/jurors.  The fatal problem with this argument, however, is that Branin conceded that while he was aware that she had the beads, "the judge could not observe the beads from the bench, no one informed the judge of this, and the judge was not able to take any action to avert their prejudicial effect.  This was problematic at the legal level because it required Branin to prove "plain error" and problematic at the factual level, because, as noted by the appellate court, "in the absence of objection and a relevant record, we do not know what the jurors observed.  In light of this situation, it is unsurprising that the appellate court found that no error was committed.

For me, though, this ruling left an interesting evidentiary issue on the table:  What should a trial judge do when a party objects to a witness carrying rosary beads, wearing a cross, etc.?  Is such "evidence" inadmissible religious evidence under Federal Rule of Evidence 610 and state counterparts, substantially more prejudicial than probative under Federal Rule of Evidence 403 and state counterparts, or permissible?  It would seem that the objecting party would want to make an argument similar to the argument that "compelling" a defendant to wear prison garb violates his right to due process and the presumption of innocence. See, e.g., Felts v. Estelle, 875 F.2d 785 (9th Cir. 1989).  I think the rosary bead argument would be successful, but it would be interesting to see how a court would treat the issue if it were raised.

-CM

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

Sunday, August 31, 2008

Recalculating, Take 3: NY Times Publishes Story About Warrantless GPS Tracking Which Cites Terrific Law Review Article

I've written a couple of posts (here and here) addressing whether police are required to obtain a search warrant before attaching a GPS device to a suspect's vehicle.  In those posts, I agreed with a couple of judges who found that a warrant was required.  Specifically, in State v. Jackson, 76 P.3d 217 (Wash. 2003),  the Supreme Court of Washington noted, inter alia, that it perceived

     "a difference between the kind of uninterrupted, 24-hour a day surveillance possible through use of a GPS device, which does not depend upon whether an officer could in fact have maintained visual contact over the tracking period, and an officer's use of binoculars or a flashlight to augment his or her senses...[T]he intrusion into private affairs made possible with a GPS device is quite extensive as the information obtained can disclose a great deal about an individual's life."

Meanwhile, in his dissenting opinion in People v. Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), Justice Stein stated that

     "Specifically, I would reject the 'premise...that information legitimately available through one means may be obtained through any other means without engaging in a search....'  Instead, I would adopt the principle that 'a privacy interest...is an interest in freedom from particular forms of scrutiny'...and would find that '[a]ny device that enables the police quickly to locate a person or object anywhere ... day or night, over a period of several days, is a significant limitation on freedom from scrutiny'...and upon a person's reasonable expectation of privacy, even if it occurs in a place where an expectation of privacy would not be considered reasonable under other circumstances. Stated otherwise, while the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause."

Well, The New York Times has an article on the issue, "Police Using G.P.S. Units as Evidence in Crimes."  The article mentions a few more cases where police have used G.P.S. devices to track defendants and cites to a terrific article I hadn't noticed before.  That article is Tied Up in Knotts?: GPS Technology and the Fourth Amendment, published by University of Maryland School of Law Professor Renee Hutchins in the UCLA Law Review.  In the article, Hutchins argues that GPS-enhanced surveillance should be deemed a search within the meaning of the Fourth Amendment and, as such, must be preauthorized by a warrant supported by probable cause.  I would highly recommend it to anyone with an interest in this area of the law.

(Hat tip to reader Paula Gordon)

-CM

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

Deal Or No Deal?: Supreme Court Of Vermont Finds That Statements Made During Plea Discussions Are Inadmissible To Impeach

In my mind, the recent opinion of the Supreme Court of Vermont in State v. Amidon, 2008 WL 3982509 (Vt. 2008), clearly reached the correct conclusion in finding that statements made during plea discussions are not admissible to impeach a defendant at trial (barring a Mezzanatto waiver).  In Amidon, Seth Amidon was charged with sexual assault for having nonconsensual sexual intercourse with the alleged victim in July 2006 at her apartment in Bennington, Vermont.  The alleged victim and Amidon were friends who regularly had sexual intercourse with one another, and, at the time of his arrest, Amidon admitted having sexual intercourse with the alleged victim on the date in question, but claimed that the sex was consensual.

Amidon thereafter entered a plea of not guilty at his arraignment but subsequently reached a plea agreement with the State.  After engaging in a full colloquy with Amdion, the trial court accepted his plea and ordered that a Presentence Investigation (PSI) report be conducted, reserving its decision as to whether to accept the sentencing recommendation until after reviewing the report.  In the course of conducting the PSI, an officer conducted a taped interview of Amidon, and when he asked him about what happened on the date of the alleged incident, Amidon replied,  "I...started kissing her and stuff like that. One thing led to another and she basically told me that she did not want to have sex with me. I never physically harmed her or nothing like that. She just kept telling me no, she didn't want to have sex with me. I didn't take no for an answer. That's how it ended up...."

The trial court declined to accept the recommended sentence, and Amidon was allowed to withdraw his guilty plea.  Before the case went to trial, the State notified defense counsel of its intention to use this statement in its case-in-chief as well as to impeach defendant should he take the stand and testify that the victim consented to the sexual intercourse.  The trial court approved the former use, finding that

     "'if the defendant were to testify and during direct examination specifically contradict[ ] such statements and such statements bear directly on the elements of the charged offense.' The court further opined that '[the] statements would certainly seem to be impeaching evidence for [defendant] to testify that it was consensual.'"

Amidon thereafter chose not to testify at trial, and after he was convicted, he appealed, contending that the trial court's evidentiary ruling was in error.  The Supreme Court noted that it was faced with two issues on appeal.  The first was whether the record was insufficient for appellate review.  You see, in its 1984 opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that appellate review of a trial court's decision to allow the prosecution to impeach a defendant through evidence of his prior felony conviction under Federal Rule of Evidence 609(a)(1) was unavailable because the defendant chose not to testify at trial.

The Supreme Court of Vermont noted that it had "thus far neither expressly adopted nor rejected Luce, at least in the context of the preservation of non-constitutional claims" and then "decline[d] to adopt the rule of Luce as governing the issue in th[e] case" before it.  Its main reason for doing so was that it found that it sat "in review not of a trial court's discretionary decision on a subtle evidentiary question requiring the careful fact-specific weighing of probative value verses prejudicial effect, but of a purely legal question as to whether a particular ruling is permissible generally under statutory and constitutional guarantees."

I strongly agree with this conclusion because I have just written an article on Rule 609(a)(1), which does indeed force a court to make subtle, discretionary (arbitrary?) decisions, and I have also written an article on the rule implicated by the Amidon case, Rule 410, which makes it absolutely clear whether statements made during plea discussions are admissible to impeach a defendant at trial. See Colin Miller, "Caveat Prosecutor," 32 New Eng. J. On Crim. & CIv. Confinement 209 (2006).

This leads to the second issue faced by the Supreme Court of Vermont, which was whether Amidon's statement was admissible to impeach him at trial.  It noted that the issue was governed by Vermont Rule of Evidence 410 (and Vermont Rule of Evidence 11(e)(5)), which states, inter alia, that "except as otherwise provided in this rule, evidence of the following is not...admissible against the defendant...who...was a participant in the plea discussions:...any statement made in the course of proceedings under Rule 11 of the Vermont Rules of Criminal Procedure."

The court noted that "the Reporter's Notes to the 1977 amendment to V.R.Cr.P. 11, 'makes clear the uniformity of the Vermont and Federal rules on this important question of admissibility.'"  The court then noted that the

     "legislative history of the 1975 amendments to F.R.Cr.P. 11 and F.R.E. 410 provides 'unusually clear' guidance as to whether statements made in connection with plea proceedings were intended to be used for impeachment purposes....[T]hat history shows that while crafting the 1975 amendments to F.R.Cr.P. 11 and F.R.E. 410, Congress debated whether statements made in the course of plea proceedings should be available for later admission to impeach a defendant....The Senate sought to specifically permit such use, while the House opposed the exception....The House view prevailed."

The Supreme Court of Vermont thus correctly viewed "this legislative history as conclusively demonstrative of Congress' intent to prohibit the use of statements falling under the general protection of F.R.Cr.P. 11 and F.R.E. 410 for impeachment," found that the trial court erred, and thus reversed and remanded.

-CM

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