September 20, 2008
The Parting Of The Ways: 8th Circuit Makes Seemingly Erroneous Prior Consistent Statement Ruling In Drug Murder Case
The Eighth Circuit's recent opinion in United States v. Hoover, 2008 WL 4273910 (8th Cir. 2008), contains what I regard to be an incorrect prior consistent statement ruling. In Hoover, Jeffrey Hoover appealed from his conviction on two counts of using a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. Section 924(c)(1), resulting in the deaths of Harold Fowler and Duane Johnson in 1997. While investigating those murders in 2005, police interviewed Benjamin Waldbaum and B.J. Kempton. At the time, neither revealed that they had any personal knowledge of the facts surrounding the deaths. Subsequently, however, authorities learned that Waldbaum had been talking about witnessing a homicide. Both Waldbaum and Kempton thereafter cooperated with police and testified at trial that they saw Hoover kill Fowler and Johnson in an apartment after a drug deal gone wrong.
Defense counsel thereafter impeached their testimony under Federal Rule of Evidence 613 through their prior inconsistent statements to police in which neither revealed that they had any personal knowledge of the facts surrounding the deaths. After this impeachment, the prosecution sought to introduce alleged prior consistent statements made by Waldbaum and Kempton prior to their police interrogations. Specifically, the prosecution wanted to present evidence that Waldbaum and Kempton told their girlfriendsbefore they talked to police that they were present at a drug rip-off killing and that the shooter was Hoover.
The prosecution sought to admit these statements for both rehabilitation and substantive purposes under Federal Rule of Evidence 801(d)(1)(B), which indicates that "[a] statement is not hearsay if...[t[he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Hoover countered that that Kempton's and Waldbaum's admitted presence in the apartment gave each an immediate motive to lie, meaning that their statements were not admissible under Federal Rule of Evidence 801(d)(1)(B) because they were not made before the motive arose.
The district court admitted the statements with a limiting instruction informing jurors that they were solely to be considered for rehabilitative purposes, Hoover was convicted, and he appealed. On appeal, the Eighth Circuit noted that "[t]he district court made no determination about when a motive to lie arose for Waldbaum or Kempton." Nonetheless, it found that it did not need to "determine whether Waldbaum's and Kempton's statements that are the subject of Hoover's challenge were made before either man had a motive to fabricate." According to the court, the two witness' prior statements had the purpose of demonstrating that there was no real inconsistency between their earlier story and their trial testimony. And the court found that "[i]n this circumstance, prior consistent statements may be admitted for rehabilitative purposes even if they are not admissible as substantive evidence under Rule 801(d)(1)(B)."
This conclusion immediately struck me as incorrect, so I did some research to determine when the Eighth Circuit first made such a conclusion. It turns out that it first did so in United States v. Andrade, 788 F.2d 521 (8th Cir. 1986). In Andrade, the defendant was interrogated by several FBI agents, and FBI Agent Brown rendered testimony concerning the interrogation that was consistent with three pages of handwritten notes he had taken during the interview. Defense counsel then sought to discredit Brown's testimony through rigorous interrogation of other FBI agents concerning their somewhat different recollections of the interrogation and possible errors in the reports concerning that interrogation. Afterwards, the trial court allowed the prosecution to introduce Agent Brown's notes, finding that this rehabilitative use of prior consistent statements is in accord with the principle of completeness promoted by Rule 106."
The Eighth Circuit then cited Andrade in United States v. Kenyon, 397 F.3d 1071, 1081 (8th Cir. 2005) for the proposition that "'rehabilitative use of prior consistent statements is in accord with the principle of completeness promoted by Rule 106.'" And then, in Hoover, the Eighth Circuit cited to Kenyon for the questionable conclusion I mentioned above, with the court now omitting any reference to Rule 106. By considering Federal Rule of Evidence 106, we can see where the Eighth Circuit erred in Hoover. Under Federal Rule of Evidence 106, the so-called "rule of completeness,"
"When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."
Looking at this language, we can see the Eighth Circuit's reasoning in Andrade. In that case, defense counsel elicited a lot of testimony about the interrogation of the defendant and reports prepared based upon that interrogation. Thus, a significant part of that interrogation was before the jury, and the court found that Agent Brown's notes were another part of that interrogation which, in fairness, should have been considered contemporaneously by the jury.
In contrast, in Hoover, defense counsel had not introduced part of the police interrogation of Waldbaum and Kempton, with the prosecution trying to introduce another part of that interrogation. Instead, the prosecution was trying to introduce evidence of entirely separate conversations that Waldbaum and Kempton had with their girlfriends. There was thus no argument that Rule 106 considerations applied, which is why the Eighth Circuit's ruling was clearly erroneous.
September 19, 2008
Rape Shield Redux: Pennsylvania Judge Addresses Novel Question In Rape Shield Case
In an upcoming case in Pennsylvania, the defendant has raised one oft repeated argument that never finds success under the rape shield rule and one unique argument that I have never seen raised before. Gregory L. Mikesell faces charges of rape of an unconscious victim, involuntary deviate sexual intercourse with an unconscious person, and indecent assault and sexual assault. Those charges stem from acts he committed against a female friend after a night of Halloween partying.
According to the female friend,
After a night of partying, she went to the home of Miskell's friend and woke up sometime during the night to find Mikesell taking off her underwear and trying to perform oral sex on her. She called out, "Greg, what are you doing?" and told him to stop. After going back to sleep, she later awoke again and saw Mikesell taking off his pants and underwear. When he thereafter began having sexual intercourse with her, she said "Greg, no, no, no," and pushed him off of her. Subsequently, she went downstairs to call police, but that the call was cut off before she could make a report.
Mikesell tells a different version of the events of that night. According to him, the friend and he had begun to "get physical," but the friend at some point become upset and ran from the room. He said he did not know why she had become upset.
In order to try to prove his version of events and that he thought that the friend was consenting to intercourse, Mikesell asked the court to deem two types of evidence admissible. The first type of evidence was evidence relating to a phone call between the alleged victim and a fiancee. Defense counsel indicated that the alleged victim was acting flirtatiously toward the woman's fiance and that she told the fiancee that her fiance "would not be coming home that evening." Indeed, defense counsel alleged that the call was so devastating for the fiancee that the fiancee attempted suicide "in light of the call from the (woman) and the comments made." According to defense counsel, evidence of the phone call was necessary to show what Mikesell thought about the woman's "flirtatious nature that evening."
Now, if Mikesell were simply using evidence of the phone call to prove that the alleged victim likely consented to the sexual act at issue, it would be inadmissible under Pennsylvania's Rape Shield Rule, which states that "[e]vidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence."
Mikesell, however, was attempting to use the oft attempted end around of claiming that he was using evidence of the phone call, not to prove consent, but to prove that he thought that the alleged victim was consenting. And just as Mikesell's argument has been oft raised, it has been oft rejected. Indeed, a military court was presented with similar facts in United States v. Knox, 1992 WL 97157 (U.S.A.F.Ct.Mil.Rev. 1992), where the defendant tried to use evidence of the alleged victim's promiscuity to prove that "he thought [the complainant] was awake and by her actions was consenting to his advances." The court, like all other courts of which I am aware, found that there was no merit to the argument because the defendant was, in essence, trying to use the evidence to prove the same purpose proscribed by the rape shield rule.
The second type of evidence was evidence relating to the platonic relationship between Mikesell and the alleged victim, including evidence that the pair had slept together without having sex prior to the October incident. According to Mikesell, evidence that the two slept together, even though they did not "sleep together," would show the "progress" in the relationship that led to what he said was consensual sex.
Now, if Mikesell were claiming that he had prior sexual relations with the alleged victim, his argument would not be novel, and the evidence would be admissible under the exception listed in the previously cited Pennsylvania's Rape Shield Rule. But Mikesell wanted to introduce evidence of a non-sexual act to prove that his platonic relationship with the alleged victim was progressing, leading to the culminating sexual act, which was, according to him, consensual. Because this evidence involved a non-sexual act, it wasn't covered by Pennsylvania's Rape Shield Rule, and the judge found that it would be admissible at trial and that it would be up to a jury to decide whether it added up to a form of consent. "Some guys may consider that to be a green light. I don't know," the judge said. "But isn't that for a jury to determine?"
With due respect to the judge, I'm not sure that it is. I suppose that the evidence might have some probative value for proving consent (or the defendant's belief that the alleged victim was consenting), but it seems to me that any probative value would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, making it inadmissible under Pennsylvania Rule of Evidence 403. What do readers think?
September 18, 2008
It's My Space. That's Why They Call It MySpace, Take 3: North Carolina Court Makes Erroneous MySpace Ruling In Rape Shield Case
I've already had the opportunity to address two opinions dealing with an issue that I think might divide courts in the near future: Is evidence from a person's MySpace page admissible? In both of those opinions, the courts found the MySpace evidence to be inadmissible, with one finding that it constituted inadmissible hearsay and the other concluding that it violated Michigan Rule of Evidence 403.
Well, on Tuesday, in In re K.W., 2008 WL 4201072 (N.C.App. 2008), the Court of Appeals of North Carolina became, as far as I am aware, the first court to find that MySpace evidence should have been admissible at trial, although I disagree with its conclusion on different grounds. In K.W., K.W., a 13 year-old minor, notified her school counselor that she was being raped by her father, A.W. The counselor thereafter called the police, and K.W. provided a statement in which she accused her father of raping her multiple times. Mecklenburg County Youth and Family Services ("YFS") then became involved with the case and convinced A.W. to signed a Safety Assessment Plan, under which he agreed to cease all contact with his daughter.
K.W., however, stated that her father moved back into the family home approximately one week after the rape allegation, which was a violation of the Safety Assessment Plan. K.W. was subsequently examined by a physician, who found that K.W. had a hymeneal transection and that her physical condition was consistent with child sexual abuse. Consequently, YFS filed a Juvenile Petition alleging K.W. to be an abused, neglected, and dependent juvenile and obtained an immediate Non-Secure Custody Order. Then, after a hearing, the trial court entered an Adjudicatory and Disposition Hearing Order, adjudicating K.W. abused, neglected, and dependent, prompting A.W.'s appeal
As part of his appeal, A.W. claimed, inter alia, that the trial court erred by precluding him from presenting evidence from K.W.'s MySpace page. According to the court,
The Myspace page contain[ed] suggestive photos of K.W. to which she caption[ed], "'[I] may not be a virgin but I still gotta innocent face.' "Also, she answer[ed] in the affirmative to the question "'had sex?' "During the in-camera questioning, K.W. testified that the website was hers, but that her friend filled in the answers.
A.W. claimed that this evidence was admissible for two purposes. The first purpose was to establish that someone else could have caused the hymeneal transection found by the examining physician. And, indeed, if this evidence established that K.W. engaged in other sexual acts at or around the same time as the alleged sexual abuse by her father, it could have been admissible under North Carolina Rule of Evidence 412(b)(2). This Rule, an exception to North Carolina's rape shield rule, allows for the admission of evidence of the sexual behavior of a complainant if it "[i]s evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant." The problem for A.W., however, was that the MySpace page made no reference to any specific instances of sexual behavior by K.W., let alone when they occurred.
The second purpose was to impeach A.W.'s testimony. You see, K.W. testified that she was a virgin before her father raped her and that, during the time her father was raping her, she did not have any boyfriends with whom she was intimate nor had she ever been on a date. The court rejected A.W.'s explanation that her friend filled in the answers on her MySpace page and found that the trial court should have deemed the page admissible to impeach her contradictory trial testimony. In so concluding, it relied upon a North Carolina case which pre-dated its rape shield rule and which allowed for the admission of an alleged rape victim's statements which contradicted her trial testimony. See State v. Younger, 295 S.E.2d 453, 456 (N.C. 1982). Nonetheless, the court found that the error was harmless and affirmed the trial court's ruling.
I disagree with the court's ruling, and I think that it erred by relying upon a pre-rape shield rule case. North Carolina's rape shield rule contains four exceptions, none of which allow for the admission of prior sexual behavior of an alleged victim for impeachment purposes. Instead, the exceptions allow for evidence of prior sexual behavior of an alleged victim when it is:
(1) evidence of sexual behavior between the complainant and the defendant; or
(2) evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
(3) evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
(4) evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
Indeed, the Court of Appeals of North Carolina merely needed to look at its prior opinion in State v. Dorton to have seen that its ruling was erroneous. There, the court noted that:
" defendant contends the trial court improperly denied him the right to inquire into the victim's previous sexual activity for the purpose of attacking her credibility as a witness....In the instant case, defendant neither cites to nor argues the substance of any of the four exceptions. Rather, defendant asserts he 'simply wanted to attack [the victim's] credibility as a witness....' Defendant's arguments fail to bring the sought testimony within any of the four exceptions to the Rape Shield Statute and appears to be directly in conflict with our Supreme Court's holding in State v. Autry, 321 N.C. 392, 398, 364 S.E.2d 341, 345 (1988) (noting that, because a 'victim's virginity or lack thereof does not fall within any of the four exceptions[,]' it is an area 'prohibited from cross-examination by Rule 412[,]' and the rule does not violate a defendant's right to confront an adverse witness)."
This same analysis should have applied in K.W., making the trial court's ruling proper, although, based upon the court of appeals' harmless error finding, it ended up not making a difference in the disposition.
September 17, 2008
Providing The Answer: Court Denies Summary Judgment In Lawsuit Against Allen Iverson, But Highlights Hearsay Problem
I distinctly remember being an 11th grader in Virginia Beach in 1993 when Governor Douglas Wilder pardoned Hampton basketball star Allen Iverson after he was convicted for his role in a bowling alley brawl. And the reason I remember it so well is because of the sharp debates that Wilder's decision engendered in the hallways and cafeteria (I also remember Iverson's college games at Georgetown being appointment TV). Well, it looks as if A.I. has gotten himself into some more legal trouble, at least according to a patron at the D.C. nightclub Zanzibar on the Waterfront (which, anecdotally, was literally steps away from my wife's summer sublet when she was working as a law clerk at the National Housing Law Project).
In Broady v. Zanzibar on the Waterfront, LLC, 2008 WL 4191078 (D.D.C. 2008), Gregory Broady alleged that he incurred significant injuries when he was struck by an unidentified security guard at the Zanzibar on the Waterfront nightclub. In his complaint, Broady identified the security guard as "John Doe" and alleged that John Doe was employed either by Zanzibar or by Iverson, who was at Zanzibar on the night that Borady was allegedly injured. In Broady, Iverson moved for summary judgment, which the court denied, finding that there was a genuine issue of material fact as to whether Iverson had an agency relationship with John Doe when Doe allegedly struck and injured Broady.
Notwithstanding this denial, the court noted that Broady's filings in connection with his opposition to Iverson's motion included a number of factual assertions that were entirely unsupported by the record. The court thus "identifie[d] the most egregious of Plaintiff's unsupported assertions below, in order to frame the future litigation of th[e] case." In so doing, however, I think that the court overstated the difficulty that Broady will face in attempting to prove one of his allegations.
Specifically, the court highlighted Broady's assertion that after he was "struck and injured, the John Doe guard was approached about his behavior, Allen Iverson indicated, 'If he goes, I go.', and both were allowed to stay. This represents ratification of the conduct by Allen Iverson." Allen Iverson." The court noted that in support of this assertion, Broady cited to his own deposition testimony that he had a telephone conversation with a Zanzibar owner in the days following the alleged incident with John Doe, during which the Zanzibar owner,
"said that the gentleman that I explained to him that I had a problem with, that I described, said that they had a problem with him and they were going to escort him out of the club and that is when Allen Iverson stepped up and said if he goes, then I go, and they said that they were forced to let him stay."
According to the court,
"Plaintiff's testimony represents inadmissible hearsay because Plaintiff offers it for the truth of the matter asserted, i.e., to prove that Allen Iverson said 'If he goes, I go....' Indeed, Plaintiff's testimony represents double hearsay; he offers his own report as to what the unidentified Zanzibar owner purportedly told him Iverson allegedly said on June 4, 2004. In short, Plaintiff's double hearsay testimony cannot support a conclusion that Iverson ratified John Doe's alleged action in striking Plaintiff."
As I said, I think that this overstates the matter and makes it appear that Broady faces two hurdles in getting Iverson's statement. In fact he only faces one. That's because, pursuant to Federal Rule of Evidence 801(d)(2)(A), Iverson's statement is the admission of a party-opponent (the civil defendant) and thus, technically, non-hearsay. What this means is that all that Broady needs to do to get Iverson's statement before a jury is convince the Zanzibar owner to testify concerning Iverson's statement.
September 16, 2008
Article Of Interest: Ruebner And Goryunov Update Forfeiture Article In Wake Of Giles, Likely Launching The First Extended Critique Of The Majority Opinion
Earlier, I posted an entry about "Loss of Sixth Amendment Confrontation Rights: Forfeiture Triggered By Voluntary Wrongful Conduct," an article by my colleague Ralph Ruebner and law student Eugene Goryunov. The version of the article to which I linked was written before the Supreme Court's opinion in Giles v. California and advocated a position that was ultimately rejected by Justice Scalia in his majority opinion. Well, in the wake of Giles v. California, the authors decided to retool the article over the summer to add a critique of Justice Scalia's majority opinion, which I think that they do quite convincingly. I would imagine that this is the first extended critique of the majority opinion, and if it is a bellwether of things to come, I don't think that the opinion will be treated that kindly in the pages of the country's law reviews (Indeed, I have already had a few students ask me for unique attacks that they can make upon the opinion in their law review comments based upon the belief that there will be a deluge of articles criticizing it). Here is the updated SSRN abstract. You will have a chance to read their updated article in a forthcoming issue of the University of Toledo Law Review, or, right now, you can download the updated version here: Download giles_article.doc
Under Pressure: California Court Delays Sentencing Based Upon Allegations Of Juror Misconduct
According to an article in appealdemocrat.com, a report of possible juror misconduct stalled the sentencing of a man convicted of a series of robberies in California. That man, Haurilio Silva-Valencia, was convicted of three felony counts of second-degree burglary, two felony counts of second-degree robbery and one felony count of attempted second-degree robbery. But, 10 days ago, his attorney, Jesse Ortiz, allegedly received a phone call from the neighbor of a juror, who alleged that the juror told her that another female juror and she felt that Valenica was not guilty but were forced to change their positions.
Ortiz claimed that the call could form the basis for a new trial, but Colusa County District Attorney John Poyner correctly countered that the phone call constituted inadmissible hearsay. Ortiz ostensibly agreed, but asked for a week so that he could try to get the juror herself to testify or provide a statement. And Judge S. William Abel responded, "I don't understand a lot of things about your request...but you have a week."
If Judge Abel had understood Ortiz's request, he likely would have denied it. That's because California Code of Evidence Section 1150(a) states that:
"Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either
in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
So, what's the problem? Well, the two jurors who were allegedly pressured to change their positions could only prove that they succumbed to such pressure by testifying about the effect of the other jurors' conduct on their mental processes. And California courts have consistently proscribed this type of jury impeachment. See, e.g., People v. Taplin, 2003 WL 1958878 (Cal.App. 2 Dist. 2003) ("Appellant also contends that Juror No. 5 himself committed misconduct...in that he...based his decision not on the evidence but on the pressure of other jurors....Th[is] claim..., like the related assertion of improper 'intimidation,' is barred under Evidence Code 1150, because it depends upon inadmissible evidence of Juror No. 5's mental processes."); People v. Stevenson, 84 Cal.Rptr. 349, 350 (Cal.App. 1970) ("In the other affidavit a second juror alleges, 'It was my understanding that we had to come back with a unanimous verdict one way or the other. Since I was one of the few who were for acquittal, I felt that it was useless to persist in my convictions and, therefore, voted for a guilty verdict....'In the case at bench, the evidence supplied by the jurors' affidavits was inadmissible because it showed only the mental processes of the respective jurors, and the subjective considerations which influenced their verdicts.").
September 15, 2008
Ma-a-a-a-a-a-a-a-a-a-a-aps: Eighth Circuit Finds Maps Leading To Murder Victims Are Not "Testimonial"
I strongly disagree with the Eighth Circuit's Confrontation Clause ruling in its recent opinion in United States v. Honken, 2008 WL 4181150 (8th Cir. 2008). The facts of Honken are complicated, but basically the prosecution's theory of the case was that, in 1993, after being indicted on federal drug trafficking charges, Dustin Lee Honken and his girlfriend, Angela Johnson, kidnapped and murdered a federal witness, the witness's girlfriend, and the girlfriend's two young daughters. For years, however, authorities were not able to locate the bodies of these victims. That all changed in 2000, when a federal grand jury indicted Johnson.
While in the Benton County Jail, Johnson became acquainted with Robert McNeese, a federal prisoner serving a life sentence. Johnson and McNeese discussed Johnson's case, and, as a ruse, McNeese told Johnson she could escape responsibility for the murders if McNeese could arrange to have another inmate who was already serving a life sentence falsely claim responsibility for murdering the five victims. McNeese told Johnson that in order to make the confession believable, the other inmate would need to be able to furnish proof of his involvement by leading authorities to the victims' bodies. Johnson prepared and provided McNeese with maps and notes describing the locations where the five bodies were buried, whereupon McNeese turned the maps and notes over to law enforcement. Using the maps Johnson drew, officers discovered the bodies, which were buried in a single hole located in a wooded area.
Honken was subsequently charged with the murders, and he unsuccessfully objected to the prosecution's introduction of Johnson's maps into evidence. On appeal, the Eighth Circuit affirmed the trial court's decision to admit the maps. It found that the maps were admissible as a statement against interest under Federal Rule of Evidence 804(b)(3), which allows for the admission of a "statement" of an unavailable declarant if the statement was:
"at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."
In so finding, the Eighth Circuit first correctly found that Johnson was "unavailable" because she invoked her Fifth Amendment right not to testify. The court then rejected Honken's argument that the maps were not "statements against Johnson's penal interest because she drew them in the hopes of aiding her penal interest." Instead, it found that:
"Johnson's maps clearly subjected her to criminal liability. By admitting she knew where the victims' bodies were buried, Johnson implicated herself in the murders, or at least in the subsequent cover-up of the murders. No reasonable person would make such a statement unless she believed it to be true. The fact Johnson harbored the delusion that a complete stranger would take the blame for the five murders does not make the maps any less inculpatory."
The Eighth Circuit then concluded that the admission of the maps did not violate Johnson's rights under the Confrontation Clause. Since the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), courts have held that the Confrontation Clause is violated when hearsay is "testimonial admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. And while it is difficult to pin down an exact definition of "testimonial" statements, most courts have determined that they are statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Thus, because Honken was not able to cross-examine Johnson, admission of the maps would have violated Honken's Confrontation Clause rights if the maps were "testimonial." So, why did the court find that the maps were non-testimonial? According to the Eighth Circuit:
"McNeese most likely anticipated Johnson's maps would be used at a later trial. However, we conclude the proper focus is on Johnson's expectations as the declarant, not on McNeese's expectations as the recipient of the information. Johnson did not draw the maps with the expectation they would be used against Honken at trial, nor did she draw the maps 'for the purpose of establishing or proving some fact' against Honken. Johnson drew the maps for the express purpose of recruiting another inmate to confess to the murders so she and Honken could go free....We simply cannot conclude Johnson made a 'testimonial' statement against Honken without the faintest notion she was doing so."
It seems to me that the court was saying one of two things, either of which would be incorrect. First, the Eighth Circuit might have been saying that while Johnson was aware that the maps might be available for use at a later trial, she was unaware that the maps might be available for use at a later trial against Honken. Under Crawford and its progeny, a statement is "testimonial" if it was "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial;" there is no requirement that than an objective person in the declarant's position would reasonably believe that her statement would be available for use at a later trial against any particular individual. Thus, if the Eighth Circuit's decision was based upon such line drawing, it was incorrect.
But maybe, the Eighth Circuit was instead saying that an objective person in Johnson's position would not have reasonably believed that her maps would be available for use at any later trial. In that case, the Eighth Circuit would have applied the correct legal standard, but I would strongly disagree with its conclusion. According to the court, Johnson drew the maps so that the murders could be pinned on another inmate. A reasonable person in Johnson's shoes thus absolutely should have understood (at least as far as the courts infer that most people have a working knowledge of how the legal system works) that the maps could have been available for use at a later trial, albeit a trial against the other inmate.
September 14, 2008
Putting On The Ritz: New York Court Makes Seemingly Improper Rule 609(b) Ruling In Slip And Fall Case
I think that the recent opinion of the United States District Court for the Southern District of New York in Sanders v. Ritz-Carlton Hotel Co., LLC, 2008 WL 4155635 (S.D.N.Y. 2008), contains a misapplication of Federal Rule of Evidence 609(b). In Sanders, Dean Sanders sustained a fractured ankle and fibula when he fell in a condo unit at the Ritz-Carlton Golf Club & Spa in Jupiter, Florida. Sanders alleged that the marble floor of the unit was covered with dust or film and that his fall was a result of the defendants' negligence in failing to keep the marble floor of his unit clean and free of slippery materials. The defendants countered that there was no dust on the unit's marble floor and that even if there were dust on the floor, they neither caused the dust to be there nor had notice of the dust.
Before trial, the defendants brought a motion in limine, pursuant to Federal Rule of Evidence 609(b) to admit Sanders' 1987 conviction for tax evasion and 1996 RICO conviction in the event that he testified for impeachment purposes. The court noted that both of these convictions were crimes of "dishonesty or false statement" (or crimen falsi) under Federal Rule of Evidence 609(a)(2) and thus per se admissible to impeach Sanders, assuming that the convictions were timely.
You see, crimen falsi convictions are per se admissible under Federal Rule of Evidence 609(a)(2) only if the later of the date of the conviction or the date of the witness' release from confinement was 10 years or less before trial. If the date of conviction or the date of release was more than 10 years old, Federal Rule of Evidence 609(b) indicates, inter alia, that:
"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 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."
The court then found that Sanders was released from incarceration for his 1996 RICO conviction in 2000, making it per se admissible to impeach him under Federal Rule of Evidence 609(b). It found, however, that Sanders was released from incarceration for his 1987 tax evasion conviction in 1987, making it more than 10 (indeed, more than 20) years old. The court then cited to the Advisory Committee Note to Federal Rule of Evidence 609(b), which indicates that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances." The court, however, then proceeded to find such "exceptional circumstances" because: (1) Sanders tax evasion conviction was in the nature of crimen falsi, meaning that it had high probative value, and (2) "the jury will be asked to assess Sanders's credibility in determining whether dust on the floor caused his injuries," making his credibility a central issue at trial.
With due respect to the court, I don't see how the second factor is exceptional. In almost any case where a party takes the witness stand, he will make claims that counter those of the other party's witnesses, making his credibility essential. And while crimen falsi convictions are thought to be unusually probative, providing a somewhat "exceptional" circumstance, there are two other factors militating against admission.
The first is that, the older a conviction, the less probative value it has. See, e.g., United States v. Cook, 608 F.2d 1175, 1194 (9th Cir. 1979). Here, as noted, Sanders' tax evasion conviction not only falls on the bad side of the 10 year time limit, but it is in fact more than 20 years old, greatly diminishing its probative value. Second, and this is a point that I cannot believe that the court failed to address, the probative value of Sanders' tax evasion conviction was greatly lessened by the fact that the court already approved his impeachment through evidence of his RICO conviction.
Courts in Federal Rule of Evidence 609(b) cases typically consider the evidentiary need of the impeaching evidence at issue. If the party seeking to impeach has no other methods by which it can impeach the opposing party, the "old" conviction increases in probative value while the converse applies when it has other methods at its disposal. Compare United States v. Pritchard, 973 F.2d 905 (11th Cir. 1992), with United States v. Hamilton, 48 F/3d 149 (5th Cir. 1995).
And here, the United States District Court for the Southern District of New York's argument that crimen falsi convictions are unusually probative should have cut against admissibility of the tax evasion conviction. Because the defendants already could impeach Sanders through his unusually probative RICO conviction, the probative value of his tax evasion conviction was greatly lessened, meaning that it almost certainly shouldn't have been approved for admission under Federal Rule of Evidence 609(b).