October 4, 2008
Dampening The Flames: 2nd Circuit Finds Trial Court Made Incorrect Prior Consistent Statement Ruling During Cross-X Of CI Who Set Himself On Fire In Front Of The White House
After discussing the seemingly misguided application of the prior consistent statement rule by the Court of Criminal Appeals of Texas yesterday, I wanted to cleanse my palate with a court correctly applying the rule. And, as luck would have it, a helpful reader recently sent me a link to the Second Circuit's recent opinion in United States v. Al-Moayad, 2008 WL 4443841 (2nd Cir. 2008), which he told me had some great discussion of Federal Rule of Evidence 403. And he's right. The discussion of Rule 403 in the opinion is extensive and well reasoned, and I would direct readers wanting an in depth analysis of the rule to the opinion. Al-Moayad, however, also contains a well stated application of the prior consistent statement rule, which I will address in this post.
In Al-Moayad, Mohammed Ali Al-Moayad and Mohammed Mohsen Zayed appealed from judgments of conviction in the United States District Court for the Eastern District of New York (in my old stomping ground of Brooklyn). Both were convicted of conspiring to provide material support to designated terrorist organizations Hamas and Al-Qaeda, and attempting to provide material support to Hamas.
These charges were levied against Al-Moayad after an FBI investigation, which was aided to a great degree by a confidential informant named Mohammed Al-Anssi. Prompted by the events of September 11, 2001, Al-Anssi approached the FBI to offer information relating to terrorism. Al-Anssi claimed that he first met Al-Moayad in Yemen in 1995, where they were neighbors and Al-Moayad was the imam of a mosque and ran a bakery and a school. He further alleged that in 1996 or 1997, he learned from Al-Moayad that he was involved in supplying money, arms, and recruits to terrorist groups. After Al-Anssi relayed this information to FBI Special Agent Brian Murphy, Murphy enlisted Al-Anssi as his principal confidential informant and used him to help develop the government's case against Al-Moayad, and later Zayed.
As the Secnd Circuit noted, however, "Al-Anssi did not offer his assistance for free." Instead,
"he admitted that he was in difficult financial circumstances when he approached the FBI and that he sought compensation in exchange for information. Al-Anssi testified that in 2001, he was in the United States on a tourist visa. He was heavily in debt, looking for work, and in need of assistance for himself and his family. Al-Anssi initially asked the FBI for 5 million dollars in exchange for his assistance, 'hoping that it will go up, no problem.' He also requested United States citizenship and that his family be brought to the United States from Yemen. In describing his motive for seeking compensation, Al-Anssi testified, 'the issue was the truth, the whole issue, and after I chase the terrorists and to bring him here to America, I deserve even 10 million dollars.'
Al-Anssi stated that he was paid $100,000 by the FBI for his assistance. However, he believed that he deserved millions, '[a]nd I expect more than that.' Al-Anssi admitted that, because he was upset about his small payment from the FBI, he falsely told the Washington Post that the FBI promised to pay him 5 million dollars. He also testified that in November 2004, in an attempt to coerce the FBI into paying him more money, he set himself on fire in front of the White House. With regard to this incident, Al-Anssi testified that he did not intend to commit suicide, but that he 'wanted to put the government and the world on notice,' and that '[i]t is my right to get as much as I can from the FBI.'"
So, what did Al-Anssi do as a CI? Well, a big part of his job was to go to Yemen three times in 2002 and gather incriminatory statements from Al-Moayad. Later, In collaboration with German law enforcement agencies, the FBI arranged for Al-Moayad and Zayed to meet with Al-Anssi and another CI. These meetings were secretly recorded, and based upon how they are presented in the Second Circuit's opinion, they don't seem very incriminatory to me. For instance, at the first meeting, Al-Moayad expressed his desire to secure money for his charity projects, including his bakery, and no one explicitly mentioned funding terrorist activity. The government later contended, however, that the defendants' references to Al-Moayad's charitable endeavors were actually code for various forms of support for terrorism.
So, what happened at trial? Well, undoubtedly influenced by the fact that Al-Anssi set himself on fire in front of the White House, the prosecution didn't call him as a witness and instead tried to prove its case through the testimony of other witnesses and the recordings of the meetings. The defendants, meanwhile, called Al-Anssi as part of their case in chief, in which they alleged entrapment. And after calling Al-Anssi, they
"elicited significant impeachment testimony from him, including admissions of his heavy indebtedness, financial difficulties, and his attempts to obtain large sums of money from the FBI in exchange for information. Al-Anssi also conceded that he had a prior felony conviction, having pled guilty in the Eastern District of New York to bank fraud (specifically, writing bad checks). Al-Anssi further testified that he had purchased a dry cleaning business with a portion of the $100,000 he received from the FBI, but the business failed and he returned it to the seller in June 2004. A1-Anssi admitted that, after this failure, he had run out of money, leading to his attempt in November 2004 to get more money from the FBI by setting himself on fire at the White House."
During its subsequent cross-examination of Al-Anssi, the prosecution questioned him about his three meetings with Al-Moayad in Yemen, at which point he relayed some possibly incriminatory statements that Al-Moayad had made. The prosecution then moved to introduce into evidence handwritten notes Al-Anssi took during his three meetings with Al-Moayad, arguing that defense counsel had opened the door to their admission as prior consistent statements with his impeachment of Al-Anssi. The notes
"memorialized, among other things, the following information: Al-Moayad was 'the right hand' to Sheikh Abdul Majid Al-Zindani; at some point in the past, Al-Moayad was 'the main person choosing the volunteers' to send to fight in the conflicts in Chechnya, Afghanistan, and Bosnia; during Al-Anssi's first trip to Yemen, Al-Moayad provided him with information about foreign arms dealers; Al-Moayad asked Al-Anssi not to call him on the phone, and to refer only to medical treatment if he did so; Al-Moayad was aware while still in Yemen that Saeed (the other CI) intended to give a substantial sum of money ($2 million) specifically to support the armed mujahidin; Al-Moayad visited and supported Bin Laden in Afghanistan; he knew young volunteers who were ready for training in jihad; and he gave $3.5 million to Palestine and $20 million to Al-Qaeda 'during last few years and before the Sept. 11, 2001.'"
On appeal, Al-Moayad claimed, inter alia, that the trial court erred by admitting these notes into evidence as prior consistent statements 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."
The problem for the prosecution, however, was that Rule 801(d)(1)(B) contains a "fundamental temporal requirement" in that the prior consistent statement "must have been made before the declarant developed [an] alleged motive to fabricate." And, according to the Second Circuit, Al-Anssi created the notes only after a significant motive to fabricate arose, "namely the large amount of money he expected and was paid to furnish information to the FBI." The Second Circuit then rejected the prosecution's weak argument that the notes were not offered as substantive evidence under Rule 801(d)(1)(B), found that this error and other errors were not harmless, and vacated andremanded for further proceedings. And based upon the temporal requirement of the Rule, I think that the Second Circuit's decision was absolutely correct.
October 3, 2008
We Are The Fabrication: Court Of Criminal Appeal Of Texas Makes Seemingly Erroneous Prior Consistent Statement Ruling
I am a bit baffled by the recent opinion of the Court of Criminal Appeals of Texas in Klein v. State, 2008 WL 4414498 (Tex.Crim.App. 2008), which I think contains a fundamental misunderstanding of the prior consistent statement rule. In Klein, Nicholas Klein was charged in an eight-count indictment with aggravated sexual assault of a child, his daughter.
Specifically, when she was ten years old, the complainant told a school counselor that Klein had sexually abused her. Very soon after this, the complainant repeated these accusations to a Child Protective Services investigator (Todd) and to a police investigator (Cook). The complainant, however, subsequently recanted these accusations against her father.
Thereafter, at trial, during the State's direct examination, the complainant reaffirmed her recantation and testified that her father did not sexually abuse her. The complainant, however, also testified on direct examination by the State that her father did sexually abuse her. Klein's lawyer claimed that the complainant's direct-examination testimony in which she claimed that he father did sexually abuse her was influenced by the State's trickery in questioning her. The trial court decided that this assertion allowed the State to introduce into evidence the complainant's prior out-of-court statements to Todd and Cook to show that the complainant said the same thing without any "trick" questions from the State. According to the trial court, these prior statements were admissible under Texas Rule of Evidence 801(e)(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."
On Klein's appeal, the Second Court of Appeals reversed, holding that:
"We see no caselaw, nor does the State direct us to any, that would justify our stretching rule 801(e)(1)(B) to hold that [the complainant's] disavowal of her testimony supporting [appellant's] guilt, taken alone, operated as an implicit charge that she was 'improperly influenced.' Similarly, nothing in defense counsel's cross-examination of [the complainant] implied that [the complainant] was lying when she testified that [appellant] had assaulted her or that she had been pressured to so testify. Defense counsel stayed completely away from the testimony that damaged [appellant's] case and emphasized [the complainant's] testimony that was favorable to [appellant]-[the complainant] had lied about the assault and had recanted consistently since soon after the outcry/ All the jury had before it was [the complainant's] conflicting testimony. We hold that conflicting evidence alone does not trigger rule 801(e)(1)(B)."
I'm skeptical of the Court of Appeals' conclusion that there was no charge that the complainant's testimony was improperly influenced. It seems that a claim that the prosecution "tricked" her into saying that her father sexually abused her could be construed as at least an implicit charge of improper influence, which would suggest that I would agree with the majority opinion of Court of Criminal Appeals of Texas in Klein v. State, which reversed the Court of Appeals' disposition. The problem is that the Court of Criminal Appeals of Texas made an even bigger error.
And its problem was that it did not find that defense counsel charged the complainant with being improperly influenced or having an improper motive; instead, it merely found that "[t]he record support[ed] a finding that these out-of-court statements were offered to rebut an implied charge of recent fabrication." In reaching this conclusion, the majority rejected the reasoning of Judge Cochran's dissenting opinion, which concluded "that the complainant's out-of-court statements to Todd and Cook 'could not possibly qualify as statements offered to rebut an explicit or implicit charge of recent fabrication' because no charge of recent fabrication 'for some improper reason' was made by the defense on cross-examination.
According to the majority opinion,
"Judge Cochran's dissenting opinion seems to change the language of the 'recent fabrication' element of rule 801(e)(1)(B) to require that a recent fabrication be due to an improper reason, usually an improper influence or motive. This element of rule 801(e)(1)(B), however, does not require that the recent fabrication be due to an improper reason. Rule 801(e)(1)(B) permits the admission of a prior consistent statement to rebut a charge of 'recent fabrication or improper influence or motive.'"
This reasoning is bizarre to me because it implies that you can have a recent fabrication due to a proper or at least benign reason. The word "fabricate" is generally defined as "to make up for the purpose of deception." Thus, if a party claims that a witness, like the complainant in Klein, rendered incorrect testimony because she was mistaken, her testimony would not be a fabrication because she would not have the purpose to deceive. And this seems to be the point Judge Cochran was making in his dissenting opinion when he concluded that Klein's:
"position in this case is not that the child was improperly influenced with a bribe, or threatened, or promised something if she testified in a certain way. It is that the prosecutor confused her with his questions on the witness stand. That position does not attack the witness; it attacks the cross-examiner."
Again, I think that defense counsel's position could be construed as an argument that the complainant was subject to an improper influence, but I don't see how it could be construed as an argument that the complainant's testimony was a recent fabrication that was somehow not based upon an improper influence or motive. Indeed, even the cases cited by the majority don't support its conclusion that "rule 801(e)(1)(B)...does not require that the recent fabrication be due to an improper reason." The court cited to its previous opinion in Hammons v. State, 239 S.W.3d 798 (Tex.Cr.App. 2007), for the proposition that, to be admissible under rule 801(e)(1)(B), the "prior consistent statement must be made prior to the time that the supposed motive to falsify arose." This holding states the obvious: There must be an improper reason for there to be a recent fabrication.
The court also cited the Supreme Court's opinion in United States v. Tome, 513 U.S. 150 (1995), as support for its argument. But, Tome compels the same conclusion as Hammons based upon passages such as these:
"McCormick and Wigmore stated the rule in a more categorical manner: '[T]he applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.'"
"A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive."
October 2, 2008
They Know It When They See It: 10th Circuit Finds Trial Court Did Not Err In Allowing Testimony Regarding Gender Differences In Child Pornography
The recent opinion of the Tenth Circuit in United States v. Schene, 2008 WL 4379509 (10th Cir. 2008), reveals that courts don't need to be concerned with the reliability/admissibility of "expert" testimony under Federal Rule of Evidence 702 when such testimony is not offered to prove the truth of the matter asserted in the testimony. This situation is thus similar to the situation where courts don't need to be concerned with the reliability/admissibility of out-of-court statements under Federal Rule of Evidence 802 when such statements are not offered to prove the truth of the matter asserted in the statement, making them nonhearsay.
In Schene, Jay Martin Schene was convicted by a jury of five counts of knowingly possessing material that contained an image of child pornography that was produced using materials that had been mailed, shipped, or transported in interstate commerce, in violation of 18 U.S.C. Section 2252A(a)(5)(B). Here is an abbreviated version of the facts that led to these convictions:
The FBI executed a search warrant on the house of Donald Black and seized four computers. Black admitted trading child pornography with a number of individuals online, although he could not remember any of their names or screen names. The FBI thereafter performed a search of Black's computer, and one of the screen names that they uncovered was "outdoorguy104166." The FBI then served a subpoena on AOL, and AOL disclosed that the screen name corresponded to the account of Schene and that several other screen names were associated with his account, including "ccarlin317," "myebayshades," "ebayshades," and "okseecat."
FBI agent William Weaver then tracked down and interviewed Schene, who stated that he had never used, or heard of, outdoorguy. He admitted, however, that he used two of the other screen names: ccarlin317 okseecat. Schene stated that he worked as a financial advisor for Chase Bank, and that he was married to Cathy Carlin. Schene subsequently consented to a search of his home computer and told the agents that only he and his wife used the computer.
Computer forensics expert Bryan Carter conducted the search of the computer and found over 1900 images of child pornography, about half of which the user had attempted to delete. He discovered most of the images in emails associated with outdoorguy and ccarlin317, and he also found pornographic movies involving children, as well as a history of movies that had been "created" and viewed on the computer.
At trial, "Schene d[id] not contest that the computer contained the charged images of child pornography, or that the only people with access to the computer were Schene and his wife;" instead, his sole argument was that the child pornography could have belonged to his wife, not him. In furtherance of this argument, Schene got Weaver and other law enforcement officials to admit that they had not focused much, if any, attention on determining whether the child pornography could have belonged to Carlin, and instead focused mainly, if not exclusively, on Schene. For instance, Schene got Weaver to admit that he never attempted to interview Carlin and never searched her business computer.
The prosecution then had these officials testify as to why they focused mainly or exclusively on Schene, resulting in Q&A's such as the following:
[Prosecutor] Q: You never considered the possibility of a woman viewing these images, did you?
[Weaver] A: We tried to consider all people in the house. In this case, the images were of young boys, young mostly males, and generally you can consider men, but we try to consider both parties. * * *
Q: You just assumed that a man looked at these images?
A: Yes. * * *
Q: Has your training with the FBI taught you about the frequency with which women traffic in child pornography?
[Defense Counsel]: Your Honor, I'm going to object. Calls for speculation, and there's no foundation for this, and it's beyond Daubert and Kumho Tire.
THE COURT: Overruled.
Q: You may answer the question.
A: Yes. It's usually men.
On appeal, Schene claimed, inter alia, that the trial court erred by allowing this testimony because it was unreliable and failed to meet the standards established in Daubert, Kumho Tire, and Federal Rule of Evidence 702. The Tenth Circuit rejected this argument, determining that it didn't need to find this testimony to be reliable and/or admissible under Rule 702. As the Tenth Circuit noted with regard to the testimony of Weaver,
"Agent Weaver's testimony came on redirect examination after Schene had cross-examined him regarding his failure to investigate Carlin with respect to the images of child pornography. The clear purpose of the questioning on redirect was to explain why Agent Weaver had focused his attention on Schene. For that purpose, it was unnecessary to establish the 'scientific' basis for Agent Weaver's testimony. The point was not that the information he received in training was correct; it was that he was acting in accordance with his training."
This ruling seems correct to me. As long as the prosecution was solely using this testimony to establish why the officials did not investigate Carlin and not as substantive evidence that it is mostly men who traffic in child pornography (particularly when it involves young males), it was not offered to prove the truth of the matter asserted and did not need to qualify for admission under Rule 702.
October 1, 2008
Welcome To The O.C.: Trial Of Former O.C. Sheriff Raises Interesting Rule Of Completeness Issue
I'm not sure how a key evidentiary issue will play out in the upcoming trial of former Orange County Sheriff Mike Carona, but I am certainly interested in finding out. Carona resigned from his prior post in January after being indicted on charges of receiving cash and gifts while a public official, and he also has been charged with two counts of obstruction of justice. Carona is being tried alongside Debra Hoffman, a Newport Beach attorney who has been described by prosecutors as his longtime mistress, and who is charged with conspiracy, public corruption and bankruptcy fraud. Carona's wife, Deborah, has also been charged in the case, but she will be tried separately, defusing the possibility of what might have otherwise been a theatre of the absurd.
So, what's the evidentiary issue? Well, the prosecution wants to introduce transcripts from several secretly recorded conversations between Carona and former Assistant Sheriff Don Haidl, who had pleaded guilty to tax evasion charges and agreed to tape the conversations. According to the prosecution, those conversations contain statements in which Carona admitted to getting cash and gifts. The problem for the state is that the conversations also allegedly contain what it characterizes as "self-serving, exculpatory statements" by Carona. So, the prosecution wants the transcripts of the tapes admitted, but it wants the judge to excise the portions in which Carona makes these exculpatory statements.
And under the hearsay rules, the prosecution would have a good argument. Under Federal Rule of Evidence 801(d)(2)(A), Carona's incriminatory statements would be admissible as admissions by a party-opponent, while under Federal Rule of Evidence 802, Carona's exculpatory statements would be inadmissible as hearsay. The potential fly in the ointment, however, is Federal Rule of Evidence 106, the so-called "rule of completeness." Under Rule 106,
"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."
But, what does this rule mean? As I have noted before, there is a circuit split over how the rule of completeness should be applied, with some courts holding that it is merely a rule of timing and not a rule of admissibility. So, for instance, if the plaintiff in a breach of contract action wanted to introduce only a portion of the contract, which would be admissible in its entirety, the defendant would be able to get the entire contract seen by the trier of fact at the same time. An example might be a plaintiff introducing only page 6 of a contract and claiming that the term "bad faith" means one thing, which the defendant can rebut by simultaneously introducing the definitions page at the same time. But under this reading of the rule, when the prosecution admits portions of a recording containing incriminatory statements by a defendant, the defendant would not be able to introduce his exculpatory statements from the recording because they would still be inadmissible.
Meanwhile, the precedent in other circuits "unambiguously establishes that the rule of completeness may be invoked to facilitate the introduction of otherwise inadmissible evidence." Under this reading of the rule, which, as I have noted before, I wholeheartedly endorse, Carona's exculpatory statements should not be excised. So, how has the Ninth Circuit ruled?
Well, in United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996), the Ninth Circuit found that "Rule 106 does not compel admission of otherwise inadmissible hearsay evidence." That being the case, why did I say above that I'm not sure how the evidentiary ruling is going to play out? Well, this statement in Collicott was dicta, and in the few rulings in which the Ninth Circuit did not repeat this statement in dicta, it seemed to undercut its seeming absoluteness. For instance, in United States v. Lopez-Figueroa, 2008 WL 4185755 (9th Cir. 2008), the prosecution introduced a redacted version of the defendant's statement to a Customs and Border Protection Officer, and the defendant wanted the rest of the statement, which was allegedly exculpatory, to be introduced. The Ninth Circuit rejected this argument, citing the statement from Collicott, but it did not stop the analysis there and instead rejected the defendant's argument only after finding that "[t]he redacted parts of his statement were not necessary to explain those parts that were admitted."
And earlier this year, the United States District Court for the Central District of California, the court in which Carona's trial will be held, went even further in United States v. Castro-Cabrera, 534 F.Supp.2d 1156 (C.D. Cal. 2008). In Castro-Cabrera, the defendant was charged with illegal reentry to the United States following deportation. During the proceeding leading to his deportation, the defendant was asked:
"Q: Of what country are you a citizen? A: Hopefully United States through my mother. question: What country are you a citizen of now? A: I guess Mexico until my mother files a petition."
At the defendant's trial, the prosecution sought to introduce only this second Q&A while the defendant also wanted the first Q&A admitted under the rule of completeness. The court agreed with the defendant, concluding that:
"By itself, the answer 'I guess Mexico until my mother files a petition' suggests that Defendant believes he is currently a Mexican citizen. Read together, the answers are less conclusive. The two answers could alternatively mean that Defendant believes he has dual citizenship. On the other hand, the two answers could mean that Defendant was uncertain regarding his citizenship status. The point is that reading the statements in context results in one set of possible meanings, whereas reading the latter statement in isolation tends to create a different meaning. There is a serious risk that presentation of only the latter answer, separate and apart from the one before it, would distort, misrepresent, or confuse the meaning of the Defendant's statement."
The court was than careful in noting that it was not undermining the holding of Collicott. It noted:
"To be clear, the Court does not dispute the general rule against using the Rule of Completeness to obtain admission of inadmissible hearsay. In essence, as a general rule, the Rule of Completeness cannot be used to trump the normal rules concerning the admissibility of evidence. A defendant may, during the course of an interrogation, make an inculpatory statement and later make an exculpatory statement. The general rule precluding the Rule of Completeness from being the basis for admitting the exculpatory statement would apply. A defendant would then need to base admission of the exculpatory statement on some other rule of evidence, if such rule were applicable to the particular situation at hand....Thus, while the Rule of Completeness cannot be used in a general sense as an end run around the usual rules of admissibility, each analysis must be done on a case-by-case basis in order to avoid the injustice of having the meaning of a defendant's statement distorted by its lack of context."
So, where does that leave us? Well, without knowing the content of Carona's statements, I can't say whether this same analysis from Castro-Cabrera could apply to make his exculpatory statements admissible. And even if this analysis from Castro-Cabrera could apply, that still leaves the question of whether the Central District will again find that it can admit otherwise inadmissible exculpatory statements without violating Ninth Circuit precedent. As noted, I will be very interested in the outcome of this case and whether the Ninth Circuit ever steps in and approves or disapproves of this practice.
September 30, 2008
Punch-Drunk Love: Case Reveals 3 Differences Between Hawai'i And Federal Rule Of Evidence 404(b)
The recent opinion of the Supreme Court of Hawai'i in State v. Pond, 2008 WL 4381673 (Hawai'i 2008), reveals that there are three key differences between Hawai'i Rule of Evidence 404(b) and Federal Rule of Evidence 404(b). In Pond, Kevin Pond appealed from a judgment convicting him of the offense of abuse of family or household member and interference with reporting an emergency or crime. That household member was Pond's girlfriend, Miae Russell, and Pond sought to prove at trial, inter alia, that Russell had previously assaulted him to help establish his claim of self-defense, in which he asserted that Russell was drunk and punched him before he responded in kind. The problem for Pond was that he did not notify the court or the prosecution of this alleged assault until minutes before his trial was scheduled to begin, at which time he moved for a continuance. The court rejected this motion, finding that Pond had failed to comply with the pre-trial notice provisions of Hawai'i Rule of Evidence 404(b).
Hawai'i Rule of Evidence 404(b) states that:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial."
Meanwhile, Federal Rule of Evidence 404(b) indicates that:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, 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."
As the Supreme Court of Hawai'i noted, the pre-trial notice requirement of Hawai'i Rule of Evidence 404(b) thus differs from the pre-trial notice requirement of its federal counterpart in three regards:
(1) the Federal Rule merely requires prosecutors to provide pre-trial notice while the Hawaii Rule requires any proponent of Rule 404(b) evidence to provide pre-trial notice;
(2) the Federal Rule requires "a request by the accused" while there is no request requirement in the Hawaii Rule; and
(3) the Hawaii Rule requires a more detailed form of notice.
Thus, if Pond's case were governed by the Federal Rules of Evidence, he would not have needed to provide pre-trial notice of his intention to introduce evidence concerning Russell's alleged assault of him, but he was required to do so under Hawai'i Rule of Evidence 404(b), and his failure to do so foreclosed the introduction of this evidence.
Pond did try to argue that the pre-trial notice requirement of Hawai'i Rule of Evidence 404(b) violated his rights under the Confrontation Clause (and, seemingly, the Compulsory Process Clause), but the Hawai'i Supremes rejected the argument, concluding that the Rule's policy of reducing surprise and promoting early resolution on the issue of admissibility justified the limitations of the defendant's right to present the evidence.
September 29, 2008
Suicidal Tendencies?: Ninth Circuit Finds Court's Decision To Exlcude Expert Testimony Didn't Violate His Right To Present A Defense
In it recent opinion in Moses v. Payne, 2008 WL 4192031 (9th Cir. 2008), the Ninth Circuit addressed an issue which I don't think has ever been raised before: Can a court's discretionary decision to preclude a criminal defendant from present expert evidence deny him his right to presenting relevant evidence in his own defense?
In Payne, a Washington state jury convicted Jeffrey Moses of second degree murder for the shooting death of his wife, Jennifer. Payne's defense at his trial was that Jennifer, who was suffering from depression and substance abuse, shot and killed herself. The trial court, however, precluded him from proving this defense through certain testimony by Dr. Lawrence Wilson, an expert on depression.
In a preliminary evidentiary hearing, Dr. Wilson explained that he was prepared to testify regarding the nature of Jennifer's depression and substance abuse, the unlikelihood that her depression would have resolved itself before the date she died, and the ability of a person who was severely depressed to appear normal to friends and co-workers (which would have rebutted the government's lay testimony that Jennifer was not visibly depressed in the final months of her life).
Dr. Wilson was also prepared to testify that several risk factors, such as depression, substance abuse, and access to firearms, heighten the risk of suicide. Additionally, he was prepared to testify that lay persons do not fully understand the implications of major depression and the connection between these various risk factors and suicide. Although Dr. Wilson was not willing to opine that Jennifer Moses committed suicide, he was prepared to testify that Jennifer Moses fell "into a group of people with an extreme number of severe and significant risk factors for suicide" and that "she continued to suffer [from] major depression...that continued to the time of her death." Ostensibly, he was also prepared to testify "that 15 percent of those diagnosed with major depression will take their own life at some point in their life."
The trial court, however, decided to exclude Dr. Wilson's testimony on three grounds. First, it stated that Dr. Wilson's opinion that persons who suffer from depression, abuse drugs and alcohol, and have access to firearms experience a relatively higher risk of suicide was already within common knowledge of the jury. Second, it concluded that Dr. Wilson's testimony was cumulative in light of the other evidence introduced by the defense establishing that Jennifer was undergoing treatment for substance abuse, suffered from depression, experienced suicidal thoughts, and had a gun in the house. Third, the court concluded that Dr. Wilson's remaining testimony-namely, "that 15 percent of those diagnosed with major depression will take their own life at some point in their life"-was not sufficiently probative to outweigh its prejudicial effects and potential to confuse the jury.
After unsuccessfully attempting to appeal this verdict in the state system, Moses filed a petition for a writ of habeas corpus in federal district court, claiming, inter alia, that certain evidentiary rulings, such as the preclusion of this testimony by Dr. Wilson, deprived him of rights secured by the Constitution. The district court denied the habeas petition, prompting Moses to appeal to the Ninth Circuit.
In his appeal, Moses alleged that court's decision to preclude this testimony by Dr. Wilson was contrary to the Supreme Court's precedents holding that defendants have a constitutional right under the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment to present relevant evidence in their own defense. In rejecting this argument, the Ninth Circuit noted that these "right to present a defense cases" all concerned per se rules that prevented defendants from presenting evidence.
For instance, in Washington v. Texas, 388 U.S. 14 (1967), Washington statutes prevented a defendant from presenting the exculpatory testimony of his alleged accomplice because the statutes per se precluded defendants from offering the testimony of a person charged or convicted as a co-participant in the same crime. In Chambers v. Mississippi, 410 U.S. 284 (1973), inter alia, a Mississippi rule precluded the defendant from impeaching a witness through evidence of his confessions to the subject crime because the rule per se precluded such impeachment under the voucher rule. And in Rock v. Arkansas, 483 U.S. 44 (1987), the Arkansas Supreme Court concluded that the defendant's hypnotically refreshed testimony was inadmissible because it found that hypnotically refreshed testimony is per se inadmissible.
As the Ninth Circuit correctly noted,
"Rule 702 is different in kind from the rules in [these cases.] The evidentiary rules in those cases, by their terms, required the trial court to exclude crucial evidence that had a critical effect on the trial, with little or no rational justification. In general, the rules precluded a defendant from testifying, excluded testimony from key percipient witnesses, or excluded the introduction of all evidence relating to a crucial defense. In contrast, Rule 702 does not require a trial court to exclude evidence. Rather, it authorizes a court to admit expert testimony 'if it will assist the trier of fact to understand the evidence or a fact in issue.' Accordingly, a decision that Rule 702 itself is constitutional would be consistent with Supreme Court precedent."
Having disposed of this argument, the Ninth Circuit quickly rejected the argument that the court's application of Rule 702 violated his right to present a defense. Instead, it found that "Moses ha[d] not identified, and we have not found, a Supreme Court case holding that such an exercise of discretion to exclude expert testimony violated a criminal defendant's constitutional right to present relevant evidence."
While I agree with the Ninth Circuit's well reasoned opinion, I am extremely troubled with at least part of the trial court's evidentiary ruling. As I noted, the court concluded that Dr. Wilson's testimony "that 15 percent of those diagnosed with major depression will take their own life at some point in their life"-was not sufficiently probative to outweigh its prejudicial effects and potential to confuse the jury.
First of all, this conclusion misstated Washington Rule of Evidence 403, which indicates that relevant evidence may be excluded only 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." Second, do readers really think that this proposed testimony was more (unfairly) prejudicial/confusing than it was probative by any degree? Payne's defense at trial was that his wife committed suicide. Dr. Wilson's proposed testimony indicated that based upon her major depression, there was a decent possibility that she committed suicide. This evidence went directly to the defense's theory of the case and thus was highly probative. And because it went directly to his theory of the case, how did it confuse the issues or cause undue prejudice to the prosecution at all, let alone to a greater extent than the proposed testimony was probative?
September 28, 2008
WAMU In D.C.: D.C. Court Of Appeals Finds Document Not Discoverable Because It Wasn't Used To Refresh Witness' Recollection
Earlier, I wrote a post about a federal court in Illinois which held that an attorney cannot use documents to refresh a witness' recollection and then claim that the document is entitled to work product protection. The post also noted that there is some precedent to the contrary on the issue, with some courts holding that the work product protection should not be breached in such situations. Well, the recent opinion of the D.C. Court of Appeals in Clampitt v. American University, 2008 WL 4346424 (D.C. 2008), does not fall into either of these camps, but it does clarify that for the protection to be breached, the document at issue needs to be used to refresh the witness' recollection.
In Clampitt, after Susan Clampitt was terminated from her position as Executive Director of WAMU, a public radio station owned and operated by American University. She thereafter sued the University and its then-President Benjamin Ladner, alleging breach of employment contract; tortious interference with contract; breach of the duty of good faith and fair dealing; defamation; and a refusal by the University to pay her for accrued but unused vacation benefits. While the facts of the case are quite extensive, here were the main allegations made by Clampitt:
-"Soon after her arrival at the station, Clampitt launched an effort to improve station operations in order to increase the size of the listening audience and to attract new and larger contributions from donors. The budgets that she proposed called for use of the station's cash reserves to finance improvements, a strategy that would require the station to incur operating deficits in the initial years. On September 12, 2000, Ladner specifically approved a spending plan that acknowledged that while 'reserves are not meant to cover budget deficits,' use of reserves to enable the station to invest in fundraising, marketing, programming and salary increases could 'cover [ ] overexpenditures and produce larger revenue streams in the future.' Clampitt testified that '[t]his is something that President Ladner and I did together, and he signed off on everything.'"
-"On October 20, 2003, the Washington Post published a story about WAMU, stating that '[a]fter years of balanced budgets-even financial surplus-the nonprofit [station] has been awash in red ink, with large operating deficits in each of the last three years and an emergency cash fund that has been depleted of millions of dollars.'"
-Neither Ladner nor the University made any effort to inform the public that the University had specifically approved Clampitt's financial and budgetary recommendations. Instead, Calmpitt was "scapegoated." On October 30, 2003, Ladner met with Clampitt to inform her that he was terminating her employment.
-Clampitt "was told repeatedly in the weeks and months after her termination that she could not be hired anywhere else. She was radioactive. You Google her name and the first thing that pops up is Clampitt terminated by American University under cloud of financial improprieties and staff mismanagement."
Meanwhile, during his deposition on December 16, 2004, Ladner testified that he reviewed a two-page summary of questions or issues prepared by defense counsel in preparation for a pre-trial deposition. Clampitt then filed a motion to compel production of the two-page document, but the trial court denied the motion, which, inter alia, prompted Clampitt's appeal.
On Clampitt's appeal, the D.C. Court of Appeals noted that, at his deposition, in response to a question about whether he had reviewed any materials to prepare for the deposition, Ladner testified that he had reviewed a "summary of questions or issues of about two pages that counsel prepared to discuss with me." Only after the completion of Ladner's deposition did Clampitt move to compel production of the document that Ladner described, and the University's counsel represented to the court that when he met with Ladner prior to the deposition, he (counsel) used the worksheet, a copy of which he left with Ladner, to "verify [counsel's] understanding of the facts of the case," facts "which were otherwise third-hand given to me before them."
Clampitt's counsel had claimed, however, that seeing how Ladner's counsel had framed the issues necessarily would have influenced how Ladner framed his answers. Nonetheless, the trial court had denied the motion to compel, reasoning that a document that a lawyer "prepared in order to interview his client" is protected by attorney-client privilege (and it seemingly could have found that the summary should have been entitled to work product protection as well).
The D.C. Court of Appeals affirmed that ruling, rejecting Clampitt's argument that she was entitled to production of the summary under Federal Rule of Evidence 612, which states in relevant part that "if a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced...."
The problem for Clampitt was that, in his deposition questioning of Ladner, Clampitt's counsel did not elicit testimony that the two-page list of "questions or issues" refreshed Ladner's recollection; indeed, counsel asked no follow-up questions about the two-page document. Therefore, according to the court, "Clampitt did not establish the first of the 'three foundational elements [that] must be met before Rule 612 is applicable with respect to documents reviewed by a witness to prepare for a deposition,' i.e., that 'a witness must use a writing to refresh his or her memory.'"
I agree with the court's ruling. As I indicated before, I think that a party should be entitled to have writings produced when they are used to refresh a witness' recollection, notwithstanding the work product protection/attorney-client privilege, because otherwise the "production portion" of Rule 612 would be rendered meaningless. That said, without a specific requirement that the document at issue be used to "refresh" the witness' recollection, a party could argue that virtually any document prepared by an attorney in connection with testimony should be produced, rendering most of the work product protection/attorney-client privilege meaningless.