September 27, 2008
Invitation Only: Supreme Court of Texas Finds Invited Error Doctrine Doesn't Apply To Unsuccessful Attempts To Introduce Evidence
I have had three recent opportunities on this blog (here, here, and here) to address the invited error doctrine, the doctrine under which a party is not permitted to take advantage of an error which he himself invited or induced the trial court to make. One specific application of the invited error doctrine is that a party cannot complain that the opposing party improperly introduced evidence concerning an impermissible subject when the complaining party already introduced evidence concerning that same subject. Thus, for instance, in the recent case of United States v. Villavicencio, 2008 WL 2894108 (11th Cir. 2008), the Eleventh Circuit found that the trial court did not err in allowing the prosecution to present evidence that two grams of cocaine were recovered from a search of the defendant's bedroom, which would otherwise have been inadmissible character evidence, because defense counsel himself broached the topic during cross-examination of a DEA agent.
But what happens when a party attempts to present evidence relating to an impermissible subject, yet the trial court and/or the opposing party doesn't take the bait? Well, in that case, it seems clear to me that the invited error doctrine doesn't apply, and that's exactly what the Supreme Court of Texas found in its recent opinion in Reliance Steel & Aluminum Co. v. Sevcik, 2008 WL 4370683 (Tex. 2008). In Sevcik, Michael Sevcik and Cathy Loth were injured in a highway accident west of Houston when they were hit from behind by a tractor trailer owned by Reliance Steel & Aluminum Co. They thereafter sued, and over Reliance Steel's objection, they offered the following testimony from the deposition of Reliance's corporate representative:
Q: How big a company is Reliance?
A: I believe last year's annual sales approximated $1.9 billion.
Q: About how many employees do they have? Do you know?
A: Just guessing, I think we're close to 3,000 I think, nationwide.
Q: And are the headquarters for Reliance in California? Is that what I-
A: Yes, sir. They're in Los Angeles, California.
The trial court overruled Reliance's objection, instead crediting plaintiffs' counsel's argument that "we are definitely entitled to show they are not a mom and pop operation, and we are going to talk-It says they are a California corporation. Then he says they are a division. I'm entitled to bring all of that in."
The problem with this argument, according to the Texas supremes, is that "Reliance had never suggested to the jury that it was 'a mom and pop operation' or could only pay a limited judgment; the plaintiffs' effort to prove otherwise was simply an unsolicited attempt to show Reliance made a lot of money." Thus, this evidence should not have been admissible because "highlighting the relative wealth of a defendant has a very real potential for prejudicing the jury's determination of other disputed issues in a tort case."
So, how did the invited error doctrine come into play? Well, according to the Court, "[n]either a plaintiff's poverty nor a defendant's wealth can help a jury decide whose negligence caused an accident." And, during trial, Reliance's attorneys asked several inappropriate questions about the size and newness of the plaintiffs' cars and home. The Supreme Court of Texas, however, found that the doctrine didn't apply because "[e]ach time this occurred and an objection was made, the trial court sustained the objection and excluded the evidence." According to the Court, "One party cannot violate the rules of evidence just because the other party tried to do the same, especially if the other party's evidence was excluded."
I pretty much agree with the Court's ruling and its decision to order a new trial, but I do think that this last statement is a bit of an overstatement. If I were crafting the final line, it would have read, "One party cannot violate the rules of evidence just because the other party tried to do the same, as long as the other party's evidence was excluded." If the other party's evidence were not excluded, then that would indeed trigger the invited error doctrine, and the other party indeed could violate the rules of evidence with regard to the subject broached by the evidence.
September 26, 2008
Power Of The Press, Take 4: Supreme Court Of Pennsylvania Refuses To Read Crime-Fraud Exception Into Its Shield Rule/Reporter's Privilege
The first paragraph of the Supreme Court's opinion on Wednesday in Castellani v. Scranton Times, L.P., 2008 WL 4345136 (Pa. 2008), illustrates its significance. According to the Court:
"Pennsylvania's Shield Law, 42 Pa.C.S. Section 5942, protects a newspaper's source of information from compelled disclosure. With the present appeal, appellants urge this Court to recognize a non-textual “crime-fraud” exception to the Shield Law that would permit compelled disclosure of a newspaper's source if the communication between the newspaper reporter and the source itself constituted a criminal act. For the following reasons, we decline to adopt any such exception and affirm the Superior Court's reversal of the trial court's order compelling disclosure of the confidential source."
-a grand jury was empaneled to investigate allegations of wrongdoing at Lackawanna County Prison;
-appellants Randall A. Castellani and Joseph J. Corcoran, then-Lackawanna County Majority Democratic Commissioners, testified before the grand jury;
-The Tribune and The Scranton Times published front-page stories by Jennifer Henn accusing appellants of “stonewalling” the Grand Jury;
-appellants filed a civil complaint against The Tribune, The Scranton Times, and Henn claiming that the news articles were false and contained "defamatory statements, innuendo, and implications" and that the articles' source engaged in "tortious, criminal, or contemptuous conduct;"
-the case eventually reached the Pennsylvania supremes, who found that "[t]he question accepted for appeal is whether the Shield Law protects media defendants in a defamation case from the court-ordered disclosure of the confidential source of an allegedly defamatory newspaper article, where the plaintiffs allege that the media defendants and the source were direct participants in the criminal disclosure of grand jury proceedings."
I'll begin where the Court began, by listing the language of 42 Pa.C.S. Section 5942, which states that:
"(a) General rule.--No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.
(b) Exception.--The provisions of subsection (a) insofar as they relate to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least one year from the date of the actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast."
The Court then noted that in its 1963 opinion in In re Taylor, 193 A.2d 181 (Pa. 1963),
"an investigating grand jury was convened in Philadelphia in 1962 to investigate allegations of criminal conduct and corruption involving various offices of the Philadelphia city government. Soon thereafter, The Philadelphia Evening Bulletin published an article reporting aspects of the investigation. The president/general manager and city editor of The Bulletin were subpoenaed to appear before the Grand Jury and directed to bring with them the source information of the articles."
And in Taylor, the Court upheld the newspapermen's invocation of the Shield Law, "stat[ing] point-blank: application of the plain text of the Shield Law 'will enable newsmen to conceal or cover up crimes.'" The Court then traced its treatment of the Shield Rule through its most recent opinion in Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003), where it reaffirmed Taylor by holding that "documents may be considered sources for Shield Law purposes, but only where production of such documents, even if redacted, could breach the confidentiality of the identity of a human source and thereby threaten the free flow of information from confidential informants to the media."
The Court thus flatly rejected the argument that there should be a crime-fraud exception to the Shield Rule, concluding that:
"Taylor 's interpretation of the Shield Law, as described by Bowden, plainly controls the outcome of the present appeal. There is cause to look beyond the plain language of the Shield Law when interpreting, for example, the scope of the word 'source,' but the Shield Law's unambiguous text leaves little question as to whether a source's identity is protected. Our Shield Law jurisprudence has consistently recognized the statute's absolute protection of a source's identity from compelled disclosure. For that reason alone, we cannot simply engraft upon the statute an exception which would not only contradict the well-established public policy underlying the Shield Law, but, as importantly, would contravene the statute's unambiguous text. The Shield Law has been reenacted three times since it was first enacted in 1937, and twice since this Court interpreted its text in Taylor. If the General Assembly disagreed with our interpretation, or wished to establish a crime-fraud exception to the Shield Law, it could easily have done so."
Then, in maybe the most interesting part of its opinion, the Court rejected the argument for a crime-fraud exception to the Shield Rule based upon the crime-fraud exception to the attorney-client privilege, finding that its Shield Rule provides more protection than any other evidentiary privilege. According to the Court,
"contrary to appellants claim, we conclude that the Shield Law is not comparable to the attorney-client privilege, or, for that matter, to any other privilege with respect to the issue presented here. The attorney-client privilege, in contrast, does not encompass the same absolute protection. The foundational reason for this difference is that each privilege or protection serves its own, unique interests. The Shield Law was enacted to protect the free flow of information to the news media in their role as information providers to the general public. The attorney-client privilege, on the other hand, renders an attorney incompetent to testify as to communications made to him by his client in order to promote a free flow of information only between attorney and his or her client so that the attorney can better represent the client. See 42 Pa.C.S. 5916.
In [Nadler v. Warner Co., 184 A.3 (Pa. 1936)], this Court recognized a crime-fraud exception to the attorney-client privilege to prevent a client from abusing the privilege in furtherance of a crime or fraud. No such purpose would be served by recognizing a similar exception to the Shield Law. Whereas the attorney-client privilege is for the benefit of the client, as privilege holder, the protections recognized in the Shield Law are intended to allow the news media to serve the public. Indeed, describing the Shield Laws protections in common evidentiary privilege terms, while the news media may be the holder of the protection, the general public is deemed to be the overall beneficiary of the Shield Law protections."
This is certainly an interesting ruling, and, at least according to the appellants, one that goes against how most states have interpreted their reporter's privileges. According to the appellants,
"a majority of [Pennsylvania's] sister states have authorized exactly what appellants urge-judicially compelled production of a reporter's source where the communication was criminal or fraudulent. Appellants contend that only ten states seem to have an absolute statutory reporter's privilege, while thirty-six states permit compelled disclosure of a defamatory news article's confidential sources, even in the absence of evidence of crime or fraud. Further, appellants assert that no court in an 'absolute' shield law state has held that its shield law protects a reporter from disclosing the source of a communication when the requesting party has made a prima facie showing that the communication was itself criminal or false."
The Pennsylvania Supreme Court acknowledged this argument, but ultimately rejected it, finding that
"While non-binding federal law and the law of our sister states is often informative, due to our Shield Laws absolute protection of a sources identity, the manner in which other jurisdictions have dealt with similar situations is of minimal value to the present appeal. In the cases referenced by appellants, the federal courts and courts in our sister states were interpreting their own, unique shield laws, or, as in [In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005)], the qualified reporters privilege. In resolving the present controversy, we have only the plain text of Pennsylvania's Shield Law. Moreover, even if case law from other jurisdictions were more directly relevant, appellants have not offered any authority demonstrating that a court in an absolute protection jurisdiction has ever recognized a non-textual crime-fraud exception to its shield law."
Power Of The Press, Take 3: Panel Held On Utah's New Reporter's Privilege
Previously on this blog, I posted a couple of entries (here and here) about the newly enacted Utah Rule of Evidence 509, it's reporter's privilege. As I noted in the second post, with the creation of Rule 509 Utah "completed its transformation from one of only three states without some form of a reporter's privilege to a state with one of the strongest such privileges in the country. Well, in my news reading this morning, I came across this link to a panel discussing Utah's new reporter's privilege moderated by Ed Carter of BYU, which I thought might interest readers.
September 25, 2008
Not Feeling Minnesota: Court Of Appeals Of Minnesota Makes Nonsensical Rule 609(b) Rulings In Criminal Sexual Conduct Case
In my mind, the recent opinion of the Court of Appeals of Minnesota in State v. Weiss, 2008 WL 4299619 (Minn.App. 2008), contains a nonsensical felony impeachment ruling. In Weiss, a jury found Scott Edward Weiss guilty of criminal sexual conduct and kidnapping based on evidence that he sexually assaulted two teenagers in the cab of his pickup truck on a dark, isolated, rural road. The record in Weiss revealed that Weiss has five prior felony convictions, with the state seeking to impeach him through four of these convictions in the event that he chose to testify: his convictions for third-degree criminal sexual conduct in 1995, first-degree criminal sexual conduct in 1988, second-degree criminal sexual conduct in 1981, and wrongfully obtaining public assistance by means of "false statements and representations or other fraudulent means" in 1996.
Before trial, the district court ruled that "if the defendant elects to take the witness stand that the prior felony convictions, at least on the two criminal sexual conduct charges will be allowed for impeachment purposes." Upon reading this passage, I raised the red flag, knowing that when considering whether to admit a prior conviction for impeachment purposes, i.e., for purposes of showing that the witness' trial testimony cannot be trusted, the main probative value courts should consider is how much bearing the prior conviction has on the witness' (dis)honesty, and the main prejudicial effect courts should consider is the danger that the jury will misuse the conviction as propensity character evidence. Ostensibly a conviction for wrongfully obtaining public assistance by means of "false statements and representations or other fraudulent means" has high probative value on the issue of a witness' honesty while a defendant's prior convictions for criminal sexual conduct in his trial for criminal sexual conduct have high prejudicial effect because of the danger that jurors will misuse the convictions as propensity character evidence and conclude, "Once a rapist, always a rapist."
Apparently, this passage also raised a red flag with the Minnesota Court of Appeals, which correctly noted that "[t]he district court did not specify which two of the four convictions could be introduced." As the Court of Appeals also correctly noted, the district court compounded the problem when Weiss raised the issue again at trial, and the district court judge ruled that "if Weiss testified, the jury would be informed 'of his prior felony record,' which suggest[ed] that the district court would have permitted the state to introduce all four prior convictions."
Based upon this ruling, Weiss did not testify, he was convicted, and he appealed, claiming that the district court erred in deeming these convictions admissible in the event that he chose to testify. The Court of Appeals rejected this argument, finding that the district judge did nor err in deeming any of these convictions admissible. I'm not sure that I agree with any of these rulings, but I will only focus on the rulings finding that the district court judge properly approved impeachment of Weiss through his 1981 and 1988 convictions for criminal sexual conduct.
Because both of these convictions were more than 10 years old, the Court of Appeals had to decide whether they were admissible under Minnesota Rule of Evidence 609(b), which states in relevant part 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."
In other words, the court had to ask whether the probative value of the prior criminal sexual conduct convictions for proving that Weiss could not be trusted as a witness substantially outweighed their prejudicial effect, i.e., the danger that jurors would misuse the convictions as propensity character evidence and conclude, "Once a rapist, always a rapist." The Court of Appeals noted that in making this determination, Minnesota courts weigh five factors (even though the district court did not weigh them):
"(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue."
The court correctly noted that factors 4 and 5 often counterbalance and that they counterbalanced in this case, leaving factors one through three. With regard to the first factor, the Court of Appeals noted that the Supreme Court of Minnesota "repeatedly has held that evidence of any prior felony conviction, including convictions for crimes that do not involve dishonesty, generally has impeachment value because 'it allows the jury to see the whole person and thus to judge better the truth of [the witness's] testimony.'" The court thus found that this factor weighed somewhat in favor of admission of the convictions.
Simply put, the court was wrong, unless it was saying that factor 1 favors admission of any felony conviction, which, of course, would also be wrong. Instead, sex offenses and prostitution are "thought to have little if any bearing on veracity," making them "more likely to be precluded" under Rule 609 based upon their low probative value. Peter Nicholas, "They Say He's Gay": The Admissibility of Sexual Orientation, 37 Ga. L. Rev. 793, 830 (2003).
Under factor two, the court found that the 1981 and 1988 convictions were old, decreasing their probative value, but that Weiss had subsequent, continuing conflicts with the law, increasing their probative value and indicating that he was not rehabilitated. Based upon these considerations, the Court of Appeals found that factor two weighed somewhat in favor of admission, and while I might quibble and say that the factor was neutral at best (after all, these were Reagan-era convictions), I don't have a huge objection to this conclusion.
The same can't be said under factor three, where the court noted the similarity between the prior convictions for criminal sexual conduct and the present charge of criminal sexual conduct and concluded that factor three "weigh[ed] somewhat against admitting them for impeachment purposes." I strongly disagree with this conclusion. Such a conclusion might be appropriate in, say, a murder case in which the defendant has a prior conviction for assault, and the court determines that the past crime and the charged crime are both crimes of violence but that they are also different in degree and type. Conversely, in Weiss, Weiss' past crimes and the charged crime were both for criminal sexual conduct, raising a strong probability that the jurors would misuse the convictions as propensity character evidence, and making factor three weigh strongly against admission.
Nonetheless, even if we are sticking with the Court of Appeals' conclusions, it found that two factors weighed somewhat against admission while three factors weighed somewhat in favor of admission. I don't see how that supports a finding that the probative value of the convictions substantially outweighed their prejudicial effect, especially in light of the fact that the Advisory Committee Note to the federal counterpart to Minnesota Rule of Evidence 609(b) indicates that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances." And when we consider the invalidity of the Court of Appeals' conclusions, it decision to admit Weiss' prior criminal sexual conduct convictions in the event that he chose to testify becomes even more nonsensical.
September 24, 2008
Burn Notice: Ohio Judge Excludes Evidence Of Prior Arson In Trial Covering The Largest Mass Murder In Youngstown's History
A judge has precluded the prosecution from introducing evidence relating to an earlier arson allegedly committed by a defendant in his trial for setting a house fire that killed 6 people. Michael A. Davis will soon stand trial on a 29-count aggravated murder and aggravated arson indictment with death penalty specifications. Those counts are based upon Davis allegedly setting a Youngstown, Ohio house on fire, which took the lives of Carol Crawford, 46; her daughter, Jennifer R. Crawford, 23; and Jennifer’s four children, Ranaisha, 8; Jeannine, 5; Aleisha, 3; and Brandon, 2. Five other people were also in the house, but escaped with their lives. Authorities are calling the "blaze the largest mass murder in the city's history." They also claim that the January 23rd fire was not the first one ignited by Davis.
Instead, assistant county prosecutor Natasha K. Frenchko claimed that Davis lit a fire on January 1st that shared some similarities with the January 23rd travesty. Specifically, according to the prosecution, at 11:00 p.m. on December 31, 2007, three individuals attacked a man with stones and hit him on the head when he opened his side door to investigate noises outside. The trio then ran away, and the victim went to a hospital. After returning home and lying down, the victim heard breaking glass in front of his house, looked outside and reported he saw the same trio dousing and igniting a liquid in front of his house. When he tried to extinguish the fire, the trio threw burning objects at him, forcing him to flee his home at 4:00 a.m. The victim thereafter identified Davis as one of his attackers, prompting prosecutors to move to introduce evidence of the January 1st fire as evidence against Davis.
And the prosecution's argument was that evidence of this earlier fire was admissible to prove common plan or scheme of modus operandi under Ohio Rule of Evidence 404(b). You see, prosecutors claimed that, in both fires, Davis sat up until the early morning hours, watching the nearby targeted houses and waiting for an opportunity to pour ignitable liquid on their front porches and start the fires. Judge R. Scott Krichbaum of the Mahoning County Common Pleas Court, however, rejected this argument and found that evidence of the January 1st fire was inadmissible because "This is evidence that is so outrageously prejudicial to a criminal defendant. And the problem with that is it is unproved misconduct" introduced "at the 11th hour."
I have a couple of points to make in response to this ruling. The first is that I thought that based upon the "11th hour" comment that the prosecution had failed to give sufficient pretrial notice of its intention to use the evidence of the prior fire. You see, in cases governed by the Federal Rules of Evidence, "the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial" under Federal Rule of Evidence 404(b). My review of Ohio Rule of Evidence 404(b), however, reveals that it contains no such notice provision, and my review of Ohio case law reveals that Ohio courts have not imposed such a notice requirement. See, e.g., State v. Yeager, 2005 WL 2292815 (Ohio.App. 9 Dist. 2005) ("However, this Court has held that Evid.R. 404(B) does not require advance notice of such evidence."
Next, I knew that the judge's claim that "the problem with that is it is unproven conduct" was a nonstarter. Since, the Supreme Court's opinion in Huddleston v. United States, 485 U.S. 681 (1988), courts have consistently held that establishing that a prior crime, wrong, or act occurred is a matter of conditional relevance under Federal Rule of Evidence 104(b) and state counterparts. In other words, as long as evidence of the former fire could navigate the probative value/prejudicial effect tightrope, Judge Krichbaum should have admitted it as long as he determined that a reasonable juror could have found the conditional fact -- that Davis participated in setting the former fire -- by a preponderance of the evidence. The Rule 104(b) standard is a fairly easy one to satisfy, and I have little doubt that the victim's identification of Davis would have satisfied it.
That leaves the first part of Judge Krichbaum's statement, where he claimed that evidence of the former fire was outrageously prejudicial. And in that regard, the judge was likely correct, and I certainly don't have enough facts before me to second guess his judgment. Basically, even if other crime, wrong, or act evidence is relevant for proving a permissible purpose, it should still be excluded if its probative value is outweighed by the danger of unfair prejudice. See, e.g., State v. Haines, 860 N.E.2d 91, 97 (Ohio 2006). In other words, Judge Krichbaum was correct in excluding the evidence if its probative value for establishing common plan or scheme was outweighed by the danger that the jury would use the evidence to conclude, "Once a murderous arsonist, always a murderous arsonist." And based upon the fact that there were only two fires at issue, I think that the probative value of the former fire was somewhat slight while the danger of unfair prejudice was extreme.
September 23, 2008
Safe Harbor Redux: President Bush Signs Federal Rule Of Evidence 502 Into Law
In what I would regard as the most lawyer (and client) friendly federal rule change since the "safe harbor" provision was added to Federal Rule of Civil Procedure 11, President Bush recently signed into law Federal Rule of Evidence 502, which is entitled, "Attorney-Client Privilege and Work Product: Limitations on Waiver." The Rule makes it so that disclosures, whether intentional or inadvertent, which previously led to partial or complete waiver of the attorney-client privilege and work produce protection (at least in certain courts), no longer do so.
According to the new Rule,
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
- Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver- When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:
- the waiver is intentional;
- the disclosed and undisclosed communications or information concern the same subject matter; and
- they ought in fairness to be considered together.
- Inadvertent Disclosure- When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:
- the disclosure is inadvertent;
- the holder of the privilege or protection took reasonable steps to prevent disclosure; and
- the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
- Disclosure Made in a State Proceeding- When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:
- would not be a waiver under this rule if it had been made in a Federal proceeding; or
- is not a waiver under the law of the State where the disclosure occurred.
- Controlling Effect of a Court Order- A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other Federal or State proceeding.
- Controlling Effect of a Party Agreement- An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
- Controlling Effect of This Rule- Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision.
- Definitions- In this rule:
- "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and
- "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial."
So, what was the reason for this new Rule? Well,
"[t]he Judicial Conference concluded that the current law on waivers of privilege and work product is largely responsible for the rising costs of discovery, especially discovery of electronic information. The reason is that if a protected document is produced, there is a risk that a court will find a subject matter waiver that will apply not only to the instant case and document but to other cases and documents as well. The fear of waiver also leads to extravagant claims of privilege."
So, how will the new Rule result in cost savings and predictability for parties? Well, as the Federal Evidence Review has nicely summarized,
There are seven key provisions under the new rule:
- Subsection (a): Limits waiver of the privilege normally to the communication or materials disclosed, and not to the entire subject matter of the communication. The scope of any waiver is therefore confined to the information disclosed unless “fairness” requires further disclosure.
- Subsection (b): Clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.”
- Subsection (c): Addresses the circumstances when disclosure was first made in a state proceeding and is later considered in a federal proceeding. The provision applies the federal or state law that furnishes the greatest protection to the privilege and work product.
- Subsection (d): Recognizes that a confidentiality order may provide “that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.”
- Subsection (e): Allows parties to enter into an agreement to limit the effect of any disclosure. The agreement is only binding on the parties unless the agreement is included in a court order.
- Subsection (f): Notes that the rule “applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings” and “even if State law provides the rule of decision.”
- Subsection (g): Includes definitions for “attorney-client privilege” and “work-product protection.”
More specifically, according to Congresswoman Sheila Jackson-Lee, in her statement in the Congressional Record,
"The new rule protects the confidentiality of privileged information against waiver in several ways. It protects information inadvertently disclosed in discovery, as long as the party has taken reasonable efforts to avoid disclosing privileged information and, upon learning of disclosure, promptly takes reasonable steps to rectify it.
It protects against a waiver extending to other, undisclosed documents except where privileged information is being intentionally used to mislead the fact finder to the disadvantage of the other party, so that fairness requires that other information regarding the same subject matter be available.
And it authorizes courts to enter orders enforceable in all jurisdictions permitting parties to make initial discovery exchanges efficiently without waiving the right to appropriately assert privilege later for documents culled for actual use as evidence.
This is sort of a back-up protection. This is your guarantee. This is an assistance to the idea of protecting privilege. This is extremely important, in that vast majority of documents exchanged in discovery, in some cases running to millions of pages, ultimately prove to be of no interest."
Just as important as what the new Rule is about is what the new Rule is not about. As Jackson-Lee noted,
"Importantly, the rule does not alter the law regarding when the attorney-client privilege or work product protection applies in the first instance. [Instead,] [i]t is narrowly targeted to address the question of when the specified kinds of litigation-related disclosures do or do not operate as a waiver of the privilege that would otherwise apply."
Also, as noted by the Federal Evidence Review, the new Rule does not contain a selective waiver provision, which was requested by the Judicial Conference, but which was ostensibly too controversial to find its way into the completed Rule. I direct readers to In re Qwest Communications International, Inc. v. Securities Litigation, 450 F.3d 1179 (10th Cir. 2006), for an interesting discussion about the circuit split surrounding the issue of selective disclosures.
(Hat tip to Joe Hodnicki of the Law Librarian Blog)
September 22, 2008
Against All Odds: Arkansas Court To Decide Admissibility Of Alleged Statements Against Interest In Double Homicide Case
According to an article last week, 20 year-old Jesse Lee Westeen of Fayetteville, Arkansas, who is charged as an accomplice to murder, wants a judge to allow hearsay evidence at his trial starting today because two defense witnesses are unavailable. Specifically, the prosecution alleges that Westeen was an accomplice to capital murder in the shooting deaths of Kevin Jones and Kendall Rice. More specifically, the prosecution claims that Westeen drove Gregory Decay to an apartment belonging to Jones and Rice on April 3, 2007, when Decay fatally shot them both in the face. In April, Decay was convicted on two counts of capital murder and sentenced to the death penalty on both counts.
So, what are the hearsay statements that Westeen wants to introduce? According to the article, they are statements made to Fayetteville police by Decay and another man named Vlydraus Dupree. Unfortunately, the article doesn't make clear the substance of those statements or the identity of Mr. Dupree, but I'd be willing to bet dollars to doughnuts that they are purported statements against interest which will incriminate Decay and Dupree and exonerate Westeen.
And indeed, the article notes that the statements of Decay and Dupree to police will not be admissible unless they are declared "unavailable" at Westeen's trial, a prerequisite for application of the statement against interest exception to the rule against hearsay. You see, for the statement against interest exception to apply, the court must first find the declarant "unavailable" under Arkansas Rule of Evidence 804(a). So, how is Westeen likely to fair under this Rule?
Well, he claims that Decay, whose case is on appeal, refuses to testify, citing his Fifth Amendment right against self-incrimination, while Dupree cannot be found. Assuming that the motion is accurate, both witnesses should be declared "unavailable," Decay because he will likely "be exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement" under Arkansas Rule of Evidence 804(a)(1), and Dupree because he will likely be absent from the trial, with Westeen "unable to procure his attendance" under Arkansas Rule of Evidence 804(a)(5).
Having disposed with the "unavailability" requirement, the question becomes whether the statements of Decay and Dupree satisfy the requirements of the statement against interest exception. That exception, contained in Arkansas Rule of Evidence 804(b)(3), allows, as an exception to the rule against hearsay, for the admission of:
"A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."
Now, as I noted, the article on the case doesn't reveal the substance of the statements by Decay and Dupree, but let's assume that they were indeed sufficiently against their interests. That would leave the difficult question of whether there were sufficient "corroborating circumstances." As I have noted before, courts have used a variety of tests in deciding whether there are sufficient "corroborating circumstances," with my preferred test being the Fourth Circuit's five factor test. So, what's the law of the land in Arkansas?
Well, unfortunately, Arkansas law is pretty vague. It tells us that in determining whether there were sufficient "corroborating circumstances," "[t]he totality of circumstances and the conditions from which the statement arose should be considered," but it doesn't tell us much else. Luster v. State, 1997 WL 225083 (Ark.App. 1997). All we really know is that if the proponent of a statement against interest claims that there were sufficient "corroborating circumstances" based upon the argument that "the proof was in the pudding," an Arkansas court will likely reject his argument. Wallace v. State, 2004 WL 1059787 (Ark.App. 2004).
September 21, 2008
What A Difference A Month Makes: 1st Circuit Finds That Trial Court Properly Excluded Prosecution Witness' Felony Conviction
The recent opinion of the First Circuit in United States v. Nguyen, 2008 WL 4277309 (1st Cir. 2008), displays the strikingly different balancing tests that are used when a criminal defendant seeks to impeach a witness for the prosecution via a felony conviction that is more or less than ten years old. According to the court, Nguyen involved a tale that was "tawdry, but quickly told." And, according to that tale,
Tommy Nguyen co-managed a nail salon in West Warwick, Rhode Island and placed wagers totaling $12,000 on several basketball games. The total amount wagered was lost. Hot on the heels of this debacle, Tommy received a telephone call from Van Anh. Anh informed him that the time had come to pay the piper. Minutes later, Anh appeared at the nail salon along with two other men, who demanded the money. Tommy sparred for time, and Anh agreed that he could pay the debt in installments. After Tommy had paid $6,800, he thought that the matter was settled, but Anh insisted upon payment of the $5,200 balance. When Tommy demurred, Anh stated that he knew where Tommy worked and that Tommy could not "run." Anh then announced that he would send someone to collect what was owed.
A few days later, Tommy stepped out of his nail salon to smoke a cigarette, and three men were lurking nearby: Thinh Cao, Khong Nguyen, and Khong's brother, Quoc Nguyen. The men made it plain that they had come to collect the balance of the indebtedness, and Tommy replied that he already had paid what he owed and retreated inside the nail salon. When Tommy left the shop about half an hour later, the three collectors surrounded him and threatened that if he did not pay they would "take care" of him. Tommy then called Anh on a cell phone, but Anh remained adamant; he warned that Tommy had better square the account. When Tommy again refused, the three men knocked him to the ground and kicked and pummeled him. Tommy was eventually able to escape, and the assailants fled, but they were subsequently apprehended and identified by the victim and eyewitnesses.
In one trial, Van Anh, Thinh Cao, and Khong Nguyen were convicted of conspiring to collect a gambling debt from Tommy Nguyen and beating him to facilitate the debt collection. In another trial, Quoc Nguyen was acquitted of the former charge but convicted of the latter charge. Apparently, the jury split the baby, giving some credit to Quoc's trial testimony that he didn't know about the gambling debt and that he had no involvement in the altercation beyond pushed Tommy in an effort to keep his balance after fisticuffs had begun, and giving some credit to Quoc's earlier confession to the crime and Tommy' testimony implicating Quoc in the attack.
On appeal, Quoc claimed that the jury should have been able to hear a piece of evidence that would have given them reason to discredit Tommy's testimony: his May 23, 1996 felony conviction for entering any automobile or other motor vehicle with the intent to commit a theft or a felony, which did not result in Tommy being incarcerated. And if Quoc's trial had started on May 23, 2006 or earlier, he likely would have had a terrific argument. Under Federal Rule of Evidence 609(a)(1), "evidence that a witness other than an accused has [a felony conviction] shall be admitted, subject to Rule 403." In turn, Rule 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Under this test, convictions of witnesses for the prosecution are typically admissible for impeachment purposes. Indeed, the Advisory Committee's Note to the 1990 amendment to Federal Rule of Evidence 609 states that "trial courts will be skeptical when the government objects to impeachment of its witnesses with prior convictions. Only when the government is able to point to a real danger of prejudice that is sufficient to outweigh substantially the probative value of the conviction for impeachment purposes will the conviction be excluded."
"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."
In other words, Rule 609(b) flips the Rule 403 balancing test and makes it extremely unlikely that older convictions will be admissible for impeachment purposes. Indeed the Advisory Committee's Note to the Rule indicates that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances." And, according to the First Circuit, the problem for Quon was that he "did not identify any specific facts or circumstances showing that the probative value of Tommy's earlier conviction overbalanced its unfairly prejudicial effect." If Quon's trial were a month earlier or if Tommy' conviction were a month later, it seems clear that the result would have been different.