September 13, 2008
Taking The Bait: 7th Circuit Finds That A "Bait Money" List Is Admissible Under The Business Records Exception
I agree with the Seventh Circuit's application of the business records exception to the rule against hearsay to a "bait money" list in United States v. LeShore, 2008 WL 4173086 (7th Cir. 2008). LeShore dealt with the robbery of the First Source Bank in Fort Wayne, Indiana, by men wearing white cloth masks. The defendant James LeShore was later linked to this robbery in part through the recovery of "bait money" from a bag that was in his possession.
The term "bait money" refers to a packet of bills the serial numbers of which a bank pre-records. The bank does not circulate the bait money, and the only way it leaves the bank is if it is stolen; consequently, if a bill from a bait money list turns up, it was most likely stolen at some point. In order to prove that the money recovered from LeShore's bag was "bait money" from the bank, the prosecution introduced into evidence a bait money list of all the "bait money" that was in the bank at the time of the subject robbery.
On LeShore's appeal, the Seventh Circuit found that the trial court did not err in admitting this evidence. It first noted that "[a] bait money list is a writing offered to prove the truth of the matter asserted-that the money in evidence was part of a bait money pack," making it classic hearsay under Federal Rule of Evidence 801. The court then, however, found that the bait money list qualified for admission as a business record under Federal Rule of Evidence 803(6), which states, inter alia, that records kept in the course of regularly conducted business activity are admissible if certain conditions are "shown by the testimony of the custodian or other qualified witness...."
LeShore countered, among other things, that:
"even though the bank regularly kept this record, it was irregularly compiled (in this case, remade): a new list was made only after the theft (or loss) of an existing bait money packet. By its very nature, therefore, LeShore argue[d], a bait money list cannot be regularly compiled. Compilations are generated only when a robber gets away with the old packet."
The Seventh Circuit, however, rejected this argument, finding that:
"This argument overstates the spirit of both the rule and the exception. The chief concern with hearsay evidence is that it lacks sufficient indicia of reliability. Even though the bank did not compile its bait money list regularly, it verified the list three times per year. The Advisory Committee indicated that regular verification is one of the indicia of reliability that gave business records the status of a freestanding exception in the first place....Indeed, all of the factors suggested by the Advisory Committee as central to the justification for the exception are met in this case: systematic checking, regularity and continuity (giving rise to precision), actual reliance by the business, and compilation and verification by someone whose duty it is to do so."
I agree with the Seventh Circuit's explanation of the spirit of the business record exception. I think that the provision of the Advisory Committee Note cited by the court is the one that states that "[t]he element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation." Based upon the facts cited by the court, it seems like all of these elements were satisfied. The ruling also seems consistent with precedent from other circuits. See, e.g., United States v. Davis, 542 F.2d 743, 745-46 (8th Cir. 1976) ("The bank's bait money list was introduced by the government over the objection of Davis through the testimony of an auditor of the Little Rock bank. The document was accepted as a business record in accordance with Fed.R.Evid. 803(6).").
Readers who are aware that the business records exception generally does not allow for the admission of accident reports might wonder how this situation is different. Well, an accident report is only made after an accident, meaning that there are reliability concerns because the business could lie in the report to understate its liability and/or overstate the liability of someone outside the business, especially if that report could be admissible in the trial over that accident. In the "bait money" situation, however, while the bank re-makes its "bank money" list after a robbery, it is the list in existence at the time of the robbery that the bank seeks to introduce, obviating any reliability concerns.
September 12, 2008
You Can't Do That In Interrogation: Supreme Court Of Canada Announces New Standard For Youth Interrogation
In its judgment yesterday in R. v. L.T.H., 2008 SCC 49, the Supreme Court of Canada announced an interesting new standard for determining whether youths understand what they are doing when they waive their right to counsel and right to remain silent. In L.T.H., 15 year-old L.T.H., was arrested after a police chase, taken into custody, and asked, several times, whether he wished to contact counsel, but he declined. Finally, approximately 12 hours after the arrest, L.T.H. was brought to the Halifax police station and interviewed by Constable Jeffrey Carlisle, who reviewed a young offender statement form with L.T.H. Asked by the officer whether he understood his rights, L.T.H. said "yes" and said that he did not wish to call a lawyer or talk to a lawyer in private. Likewise, he answered "no" when asked if he wanted to consult in private with a parent or another appropriate adult.
L.T.H. also interrupted the reading of the form at one point and stated that he was not going to answer all of the questions asked of him. The officer told him, however, that the questions did not relate to the incident and were only "do you understand?" questions. Constable Carlisle then finished reading the form, whereupon L.T.H. initialled and signed the waiver of rights; then, in response to questioning, he provided an inculpatory videotaped statement that subsequently formed the basis of the Crown’s case against him, in which he was charged with dangerous driving causing bodily harm.
At trial, the trial judge excluded the videotaped statement from evidence based upon (1) the testimony of L.T.H.'s mother that her son had a learning disability, (2) the fact that Constable Carlisle used a rapid pace in navigating the waiver form, used a monotone voice, and had a lack of eye contact with L.T.H., and (3) the fact that L.T.H. interrupted the reading of the form at one point and stated that he was not going to answer all of the questions asked of him. Thereafter, the Crown called no further evidence and the charge was dismissed.
The Crown subsequently appealed this ruling, which might have merely led to a Supreme Court judgment very much limited to the facts of L.T.H.'s case. Instead, the Court adopted to me what seems to me to a new standard for youth interrogations. The Court noted that under s. 146 of the Youth Criminal Act, statements made by young persons are inadmissible against them unless the persons who took them “clearly explained to the young person, in language appropriate to his or her age and understanding” It then found that it was presented with two questions:
"The first is whether the Crown must prove not only that the necessary explanation was given in appropriate and understandable language, but also that it was in fact understood by the young person who made the statement. The second is whether compliance with the informational requirement must be proved by the Crown beyond a reasonable doubt, or only on a balance of probabilities."
The majority then concluded, that:
"Because of their interdependence, and for other reasons to be later explained, I would answer both questions together. In my view, the Crown’s evidentiary burden will be discharged by clear and convincing evidence that the person to whom the statement was made took reasonable steps to ensure that the young person who made it understood his or her rights under s. 146 of the YCJA. A mere probability of compliance is incompatible with the object and scheme of s. 146, read as a whole. Compliance must be established beyond a reasonable doubt."
This seems like a fairly rigorous standard for the Crown to meet (but one with which I agree), and it is one which was not met in L.T.H. And it will certainly be interesting to see how Canadian courts apply the standard in future cases.
September 11, 2008
Real Error, Real Fast: Utah Judge Uses Invited Error Doctrine To Deny New Trial In Fazoli's Trial
A recent case from Utah gives me my third recent opportunity to address the invited error doctrine (for previous posts, click here and here). In that case, former Fazoli's restaurant manager J.W. Craig Lamoreaux was convicted by a jury in March of one felony count of attempted forcible sex abuse for allegedly putting his hand down the pants of and making sexual advances toward a 17-year-old female employee in March 2007. During trial, defense counsel introduced into evidence a DVD-recorded interview of the victim during which she told police that Lamoreaux had mentioned he was transferred from the Orem store to the Provo store because of other flirtatious acts. Defense counsel later, however, rebutted this allegation through an affidavit from a regional manager, who said that no harassment had occurred in Orem. Instead, according to defense counsel, Lamoreaux was transferred because of a paperwork issue.
And when defense counsel pressed this theory of Lamoreaux's previous transfer during closing arguments, the prosecution rebutted it by referencing the alleged victim's statements in the DVD-recorded interview. After Lamoreaux was convicted, defense counsel argued that he was entitled to a new trial because the prosecutor improperly referred to the alleged victim's hearsay statements in his closing argument. Moreover, I would add that the alleged victim's statement should have been inadmissible not only on hearsay grounds, but also on the ground that it constituted improper propensity character evidence.
But while the alleged victim's statement thus should not have been introduced into evidence, the problem for Lamoreaux was that his counsel, and not the prosecution, introduced it into evidence. Thus, 4th District Judge Claudia Laycock found that a new trial was not warranted because "[i]f it was error, it was invited error brought in by the defense" and "[p]rosecutors had every right to comment on testimony that had come in without any objection." More specifically, the defendant "was the one who introduced it into evidence, not the state, and when this statement came up ... on the tape, it is his obligation to deal with it." I agree with the judge's conclusion because this was a classic case of a party inviting the court to commit an error, meaning that the party had no grounds to complain after that invitation was accepted.
William Mitchell Law Review Calls For Evidence Articles
Call for Papers – Evidence Law
William Mitchell Law Review, Vol. 35, Issue IV (Spring 2009)
The William Mitchell Law Review is proud to dedicate its fourth issue to Evidence Law in its upcoming Volume 35 (spring 2009). We are currently seeking papers that examine current issues and recent developments in this important area of law. Submissions may either take the form of shorter commentaries or longer law review articles. We are also accepting submission proposals at this time.
The William Mitchell Law Review is highly regarded both regionally and nationally. Our Law Review recently ranked twenty-second in citations by judges and ranked fifty-seventh in citations by other law journals, culminating in an overall ranking of seventieth. Over the years, the William Mitchell Law Review has featured the works of various scholars and practitioners such as Congressman Tim Penny, and former Vice President Walter Mondale. The William Mitchell Law Review has also published nationally known legal experts ranging from Philip Bruner, to Supreme Court Justices Sandra Day O’Connor, Byron White, and Harry Blackmun. Now, we would like to invite you to join us to publish in our upcoming volume.
Please direct inquiries to Executive Editor Bob Ambrose at firstname.lastname@example.org. Please send submissions to email@example.com or mail them to our Editorial Office. Please note that the Law Review prefers electronic submissions.
William Mitchell Law Review
William Mitchell College of Law
875 Summit Avenue, Suite 159
St. Paul, Minnesota 55105
Thank you for your interest.
William Mitchell Law Review, Vol. 35
September 10, 2008
To Catch A Predator?: Second Circuit Questions Trial Judge's Decision To Exclude Expert's Testimony On Role-Playing In Internet Sex Chatrooms
In its recent opinion in United States v. Joseph, 2008 WL 4137900 (2nd Cir. 2008), the Second Circuit reversed a man's conviction based upon an improper jury charge but also made some interesting statements about expert testimony. In Joseph, Dennis Joseph appealed from his conviction for using his computer to send messages on the Internet to entice an individual he believed to be an underaged girl to engage in unlawful criminal sexual activity, in violation of 18 U.S.C. Section 2422(b).
Specifically, at trial it was proven that Joseph visited an Internet chat room called "I Love Older Men," where he initiated a conversation with an individual with the screen name "Teen2Hot4U," who purported to be a 13-year-old girl named "Lorie." "Teen2Hot4U" was in fact Stephanie Good, a 55-year-old woman who spends 20 to 50 hours a week surfing the Internet for those she believes to be sexual predators and reporting her finds to the FBI. And that's exactly what she did with Joseph, later referring him to her friend "Julie," who was in fact FBI agent Austin Berglas posing as a 13 year-old girl.
Joseph later arranged a meeting with these girls, whereupon he was arrested by authorities. Joseph's defense at trial was that, inter alia,
"when he encountered 'Lorie' in what he believed was an 'adult sex theme[d]' chat-room, he was convinced that she was an adult posing as a teenager. He claimed that her familiarity with sexual terminology convinced him that she was part of a 'make-believe, pretend world.' When 'Lorie' offered to introduce him to 'Julie,' he played along. Joseph believed 'Julie' was also a sexually experienced adult engaged in role-playing."
Joseph sought to bolster his claim through the testimony of his expert witness, Dr. James Herriot, who would have testified about role-playing in the context of sexually explicit conversations on the internet. Dr. Herriot is an Associate Professor of Clinical Sexuality at the Institute of Advanced Human Sexuality in San Francisco and proposed to testify about a distinct culture of the Internet in which one can become a "fantasy character." Joseph also wanted Dr. Herriot to explain the realities and motivations of online role-playing via chatrooms and e-mail. The trial judge, however, precluded such testimony. The judge then proceeded to give an improper jury charge, which led to Joseph's conviction to be reversed on appeal.
The Second Circuit, however, also urged the trial court to revisit its ruling on the admissibility of Dr. Herriot's testimony. The Second Circuit found that Dr. Herriot could likely be qualified as an expert witness under Federal Rule of Evidence 702 because he wrote his Ph.D. thesis on sexual communication on the Internet and had conducted a large number of interviews and studied chat-room conversations to understand sexual behavior on the internet. The court also found that his testimony would assist the jury because "[a]lthough some jurors may have familiarity with Internet messaging, it is unlikely that the average juror is familiar with the role-playing activity that Dr. Herriot was prepared to explain in the specific context of sexually oriented conversation in cyberspace." Indeed, the court noted both that "[n]umerous courts have upheld the admission of expert testimony to explain conduct not normally familiar to most jurors" and that Dr. Herriot had previously been allowed to testify on the subject in other cases in federal courts.
The Second Circuit then found that the fact that Dr. Herriot's testimony would rely on inadmissible hearsay -- the interviews and chat-room conversations -- shouldn't give the trial court pause. That's because, in relevant part, Federal Rule of Evidence 703 states that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted." The court then found that Dr. Herriot's testimony should be admissible because "[s]ocial science experts commonly base their opinions on interviews."
I agree with the well reasoned analysis of the Second Circuit and think that Dr. Herriot's testimony should be admissible on retrial.
September 9, 2008
Your Honor, We Call Your Honor To The Stand: 7th Circuit Finds Admission Of Judge's Testimony Necessitates New Trial
Federal Rule of Evidence 605 states that "[t]he judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." The plain language of this Rule explains why I haven't had many opportunities to address it on this blog. Judges know the rule and recuse themselves from hearing cases in which they know they might have to testify, and it is usually only when a judge refuses to recuse himself that the Rule comes into play. The Seventh Circuit, however, was based with a different factual scenario in the recent case, United States v. Blanchard, 2008 WL 4119995 (7th Cir. 2008).
In Blanchard, Marshall Blanchard was tried and convicted of one count of manufacturing methamphetamine and one count of unlawful possession of a firearm by a convicted felon. During pre-trial suppression hearings, Blanchard 's son rendered inconsistent testimony, leading the trial judge to comment, inter alia,:
"And, of course, now [the prosecutor] has asked him specific questions that lead me to the undeniable conclusion that he has not been credible because he knew that his answers that he was giving were not the same answers that he had given to the grand jury in April."
Later, during trial, the government sought to clarify who had first suggested that the son's testimony may have been untruthful. When the son responded, "The judge and you," the prosecutor was not satisfied, and he asked the son if he remembered what the judge had said to him. Defense counsel promptly objected and requested a sidebar, but the judge rejected that request, stating, "No. If I said something, it will be in the record, and you have a copy of the record. Everybody's been talking about what everybody said. So if you have what I said, it's on the record. It can be put before the jury." Then, after a second rejected request for a sidebar, the prosecutor read aloud the entirety of the trial judges' suppression-hearing comments indicating his belief that the son was testifying untruthfully.
Furthermore, according to the Seventh Circuit,
"Adding another wrinkle to this already unusual event, during the prosecutor's reading of the court's suppression-hearing comments, the trial judge characterized his comments, in response to a defense counsel objection and in the presence of the jury, as 'judicial testimony.' The court stated, 'It's my statement. You've got the record. Has he misread it?...It's a direct statement of the Court in a judicial proceeding. You were present. You have a copy of it. Has he misread what I said?...This is reading judicial testimony."
Based upon this, the Seventh Circuit's decision was easy: The judge's "testimony" violated Federal Rule of Evidence 605, it was substantially more prejudicial than probative under Federal Rule of Evidence 403, and it was not harmless error, thus necessitating a new trial. I agree with the Seventh Circuit's opinion and find it hard to believe that there could ever be a case where a judge testifies, and the admission of his testimony is deemed harmless error based upon the fact that, unlike other rules of evidence, Federal Rule of Evidence 605 does not even require an objection to preserve the issue on appeal.
September 8, 2008
The Family Business: Second Circuit Finds That Mafiosos Don't Need To Be Qualified As Expert Witnesses
The mafia may be the family business, but, according to the Second Circuit, that doesn't mean that its members have to be qualified as expert witnesses before they can testify abut it. In United States v. Yannotti, 2008 WL 4071691 (2nd Cir. 2008), Michael Yannotti appealed from his conviction for conspiring to engage in racketeering in violation of RICO. On appeal, one of his claims was that the trial court improperly admitted the testimony of Gambino Family associate Andrew DiDonato. At trial and over Yannotti's objection, the trial judge permitted DiDonato to testify, inter alia, about two intercepted conversations involving Yannotti, which allegedly proved that he engaged in loansharking.
According to DiDonato, individuals who receive extortionate loans usually make weekly payments on the interest rather than on the principal and that the interest is usually termed "points" by those involved in loansharking. In response to the government's question about the meaning of an alleged loansharking victim's statement to Yannotti that "I'm going to leave you a two," DiDonato testified that it meant "200 dollars" in interest. DiDonato also testified that the intercepted conversations consisted of Yannotti seeking to collect a debt from an individual who was "backed up on his payments." The court admitted this testimony as proper lay witness testimony under Federal Rule of Evidence 701 after determining that DiDonato acquired his understanding of the conversation through personal experience with loansharking.
Federal Rule of Evidence 701 states that:
"If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."
On Yannotti's appeal, the Second Circuit found that DiDonato's testimony easily met the first two requirement of Rule 701 because: (1) it was rationally based on his own perceptions which he derived from his direct participation in the loansharking activities of the charged enterprise, and (2) there was little question that DiDonato's testimony was helpful to the jury because the conversation between Yannotti and the individual was cryptic and required interpretation.
The Second Circuit then found that his testimony met the third requirement based upon the conclusion:
"that where a witness derives his opinion solely from insider perceptions of a conspiracy of which he was a member, he may share his perspective as to aspects of the scheme about which he has gained knowledge as a lay witness subject to Rule 701, not as an expert subject to Rule 702....No different conclusion is mandated by Rule 701's requirement that a lay opinion must be the product of 'reasoning processes familiar to the average person in everyday life,' and not 'scientific, technical, or other specialized knowledge....' While we do not profess that loansharking is an activity about which the average person has knowledge, we find that the opinion DiDonato reached from his own loansharking experience derived from a reasoning process familiar to average persons. In short, his opinion did not depend on the sort of specialized training that scientific witnesses or statisticians rely upon when interpreting the results of their own experiments or investigations."
All of this would make sense if the only experts who needed to be qualified under Rule 702 were scientific witness, statisticians, and those with specialized training or education. But, as I like to tell my Evidence students, Rule 702 takes all types. Sure, neurosurgeons need to be qualified as expert witnesses under Rule 702, but so do witnesses who want to testify as experts in general automotive knowledge. And while "My Cousin Vinny" got plenty of legal issues wrong, it was right that Mona Lisa Vito could be qualified as an expert able to give testimony concerning general automotive knowledge based upon working in her father's garage, despite having no specialized training or education.
Indeed, in the famous case of United States v. Johnson, 575 F.2d 1347 (5th Cir. 1978), the Fifth Circuit found that a pot head could be, and had to be, qualified as an expert witness on the question of whether drugs were imported despite the fact "that he had no special training or education for such identification," with "his qualifications c[oming] entirely from 'the experience of being around a great deal and smoking it.'"
Government agents typically have to be qualified as expert witness under Rule 702 before they can render testimony about loansharking. See, e.g., United States v. Weiner, 3 F.3d 17, 21 (1st Cir. 1991). And based upon the foregoing analysis, I don't see why members of the mafia should be treated any differently.
September 7, 2008
True Confessions: Court of Appeals Of Texas Finds Cleric-Penitent Privilege Doesn't Apply To Confessions In The Church Of Christ
A murder case in Houston has produced an interesting evidentiary ruling under Texas' clergy-penitent privilege. In Leach v. State, 2008 WL 4075797 (Tex.App.-Hous. 2008), Dan Randall Leach II confessed to the following facts in a statement to Sheriff's deputies:
Ashley Wilson and he dated in high school, but the relationship ended when she suffered head injuries in an accident. Later, the two reconnected, and Wilson became pregnant with Leach's child, but no one else knew about the relationship. Wilson was depressed and insecure about the future, and Leach convinced her to engage in "pseudo-therapy" with him, in which she would write down all the negative things in her life, after which he would show her all the good things. Leach also told Wilson not to include any mention of him. After Wilson wrote the note, Leach convinced Wilson to put a pillowcase over her head as part of a trust exercise. While Wilson's head was covered, Leach grabbed a three-foot long cord and strangled her to death. Leach then positioned her body on the bed to that it would appear that she had tied herself to the bed rails in an attempted or experimental suicide.
The plan worked as Sheriff's deputies believed that Wilson had committed suicide and closed the case. After seeing the film "The Passion of the Christ," however, Leach felt he had been "pricked by God" and needed to face the consequences of killing Wilson. Leach thus stood before the congregation at his church and stated that he was going on a long journey. When he returned home, he confessed to his parents. His father then called the church elders to the house, and Leach confessed to them as well.
After Leach was convicted of murder, he claimed that his statement to the Sheriff's deputies was improperly admitted because it was aken in violation to his right to counsel, but I want to focus on his other argument, which was that the church elders should not have been able to testify concerning his confession at trial. According to Leach, this confession was inadmissible under Texas' clergy-penitent privilege, Texas Rule of Evidence 505, which states that "[a] person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser."
Without even having to get into waiver issues, the Court of Appeals of Texas found that the privilege did not apply. Why? According to the court, a former elder of Leach's church, the Church of Christ, testified that the church does not have a doctrine that confessions will be kept confidential. Moreover, Leach's father testified that a member of the congregation can confess to an elder, and the elder will stand up and tell the congregation what he has confessed, and they will all pray together
Leach's father also indicated that no communication is private unless requested. And one of the elders of the church testified that Leach never told him that he wanted his communication to be kept private. Moreover, Leach's mother and father both testified that Leach never expressly indicated that he wanted his statements to the clergy to be kept private. Finally, Leach's mother also testified that Leach "knew when he told us what had happened that it was no longer going to be private once it got out."
All of this is fairly fascinating to me. I had assumed that all religious institutions had policies of keeping their penitents' "confessions" confidential, meaning that such confessions would normally be inadmissible under cleric-penitent privileges in the same way that confessions to attorneys are normally inadmissible under the attorney-client privilege and confessions to psychotherapists are normally inadmissible under the psychotherapist-patient privilege. Obviously, though, this is not the policy with the Church of Christ, and it might not be the policy with other religious institutions. In Evidence class, I like to say that the so called "professional privileges" are all very similar, but this seems to me to be a key difference.