October 11, 2008
Cold Cases Become Cold Again: Illinois Prosecutors Recognize That Death Of Key Prosecution Witness Doesn't Trigger Former Testimony Exception
The death of a key witness for the prosecutors has led Kane County prosecutors to mull dropping charges in two "cold case" Aurora murders. Jamaal "Isaac" Delville Garcia was slated to testify against Jesse Lopez and Quentin Moore as part of the Aurora cold case operation, a joint FBI and local police venture dubbed First Degree Burn. Both of those cases, however, were jeopardized after Garcia was found murdered on September 23rd. His body was badly burned, and he had been shot multiple times, apparently after a dispute over a gun. Not only was Garcia to testify against Lopez and Moore, but his testimony was apparently essential to their prosecutions, with Kane County State's Attorney John Barsanti saying, "We cannot prove these cases without him."
An article on the case states that all of the cold case witnesses went before a grand jury. According to the article, however, the State's Attorney recognized that "[b]ecause a defense attorney wouldn't be able to question Garcia, any statements or grand jury testimony he provided are not admissible in a trial." This conclusion is correct, and it provides a nice platform for a discussion of the former testimony exception to the rule against hearsay.
Under Federal Rule of Evidence 804(b)(1), the "former testimony" exception to the rule against hearsay, if a declarant is "unavailable" to testify at trial, the following is admissible:
"Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."
Illinois doesn't have codified rules of evidence, but it has basically applied the same reasoning in its case law. See, e.g., People v. Rice, 651 N.E.2d 1083, 1086 (Ill. 1995) ("For an opportunity to cross-examine to be considered meaningful, and therefore adequate and effective, the motive and focus of the cross-examination at the time of the initial proceeding must be the same or similar to that which guides the cross-examination during the subsequent proceeding. (Cf. Fed.R.Evid. 804(b)(1).).").
In other words, if the party against whom former testimony is offered had an opportunity and similar motive to develop the declarant's testimony at a hearing/deposition, he can't complain when that declarant's testimony is offered against him at trial. See id. The problem for prosecutors in the Lopez and Moore cases is that neither the defendants nor defense counsel were present during Garcia's grand jury testimony, meaning that the defendants had no opportunity to develop Garcia's testimony. Thus, the "former testimony" exception is inapplicable, and it looks as if the prosecution will have to drop the charges against them.
(It's important to note that even if the defendants were present for Garcia's grand jury testimony, the "former testimony" exception might not have applied because some courts have recognized that, at least in some circumstances, litigants have different motives at grand jury proceedings than they have at trials in terms of developing testimony. See, e.g., United States v. DiNapoli, 8 F.3d 909, 915 (2nd CIr. 1993) ("These two circumstances dispel similarity of motive, and the absence of similar motive is not rebutted by the limited cross-examination undertaken by the prosecutor at the grand jury.").
October 10, 2008
Justice, Texas-Style: Court Of Appeals Of Texas Makes Seemingly Erroneous "Mercy Rule" Ruling
The recent opinion of the Court of Appeals of Texas in Fort v. State, 2008 WL 4500318 (Tex.App.-Texarkana 2008), reveals how tight of a seal a defendant must keep on the evidentiary Pandora's box that is the "mercy rule" if he wants to ensure that propensity character evidence does not pervade his trial. More importantly, it is, at least in my view, a clearly erroneous decision.
The facts of Fort are brief:
"When Gilmer police executed a search warrant at 904 Warren Street, Jason Demarcus Fort was there with various men, but had not been there as long as had many of the others. Fort was in a back bedroom when police arrived and tried to break out a window to escape, cutting himself badly in the process. When officers corralled him and were in the process of taking him to an emergency medical vehicle for treatment, Fort made another effort to escape, running out the front door. This time, Fort was tackled and taken to the hospital. [Police recovered a set of digital scales with cocaine residue from Fort's pocket]. Several batches of crack cocaine were later found on the premises. Some of those present at the time protested that the cocaine did not belong to Fort. Fort appeal[ed] his resulting conviction for possession of a controlled substance with intent to deliver, within 1,000 feet of a school zone."
One of the grounds for Fort's appeal was that the trial court improperly allowed the prosecutor to question a defense witness about Fort's prior conviction for delivery of cocaine. Specifically, Fort called Ricky Moore, the owner of the house that was searched. Moore testified that Fort arrived at his house only about twenty to thirty minutes before officers arrived and executed the warrant. Based on this arrival time, Moore was sure none of the cocaine at the scene belonged to Fort because the other men and the cocaine were already at the house when Fort arrived. Furthermore,
"[w]hen asked about the scales found in Fort's pocket, Moore said he knew nothing about that. Moore, who has diabetes and a prosthetic leg, said Fort frequently helped him around the house and brought him groceries. Fort, said Moore, would help with the dishes, sweep the floors, or leave money for Moore. All that led to Moore's testimonial that Fort was 'a pretty good guy.'"
Thereafter, on cross-examination, and over Fort's objection, the prosecutor asked "Moore if he was aware that Fort had been convicted in March 2002 for delivery of cocaine. Moore said he knew of the conviction but thought it was for marihuana."
On appeal, Fort claimed that that this question elicited impermissible propensity character evidence, and if Moore had not rendered the indented testimony above, he would have been correct. Like its federal counterpart, Texas Rule of Evidence 404(a) states that "[e]vidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion."
Also like its federal counterpart, however, Texas has a "mercy rule" in Texas Rules of Evidence 404(a)(1) & (2), under which the defendant can open the door and present evidence concerning his good character for a pertinent character trait or the alleged victim's bad character for a pertinent character. Of course, doing so opens Pandora's box because the prosecutor can then respond in kind by presenting evidence concerning the defendant's bad character for a pertinent character trait and/or evidence concerning the alleged victim's good character for a pertinent character trait. Also, pursuant to Texas Rule of Evidence 405(a), if the defendant has presented a good character witness on his behalf, the prosecution can cross-examine that witness concerning relevant specific instances of conduct.
As support for its conclusion that Moore's testimony constituted evidence concerning Fort's good character for a pertinent character trait, thus permitting the prosecution to cross-examime Moore regarding Fort's cocaine conviction, the court relied upon the opinion of the Texas Court of Criminal Appeals in Harrison v. State, 241 S.W.3d 23 (Tex.Crim.App. 2007), a case where the defendant was alleged to have inflicted fatal, blunt force trauma to his eight year-old son and appealed from his convictions for manslaughter and injury to a child. According to the court in Fort,
"[t]he Texas Court of Criminal Appeals has reviewed a similar situation. See Harrison v. State, 241 S.W.3d 23 (Tex.Crim.App.2007). In Harrison, a defense witness said the defendant 'was a sweet person, he was a good person' and that he 'watched my kids and I don't have a problem with him....' Citing Rules 404 and 405 of the Texas Rules of Evidence, and stating that '[a]lthough Appellant did not intentionally elicit [the witness'] character testimony, the non-responsiveness of [the witness'] statement does not change the fact that it was character evidence offered by a defense witness....' The cross examination was allowed."
So, lesson #1 to take from Fort is to tread lightly if you are a criminal defense attorney and do not want propensity character evidence to infect your client's trial. As is clear from Harrison and Fort, even if you don't intentionally elicit character testimony from a witness, a court can still find that you opened Pandora's box and that the prosecution will thus be able to respond in kind and with damaging questions regarding prior bad acts on cross-examination. So, if your witness unexpectedly renders character evidence, ask for the court to strike the testimony.
Lesson #2 goes to judges, and hopefully the Texas Court of Criminal Appeals, which should hear Fort's inevitable appeal and find that the lower courts committed error. And that lesson is that the "mercy rule" is only triggered when a criminal defendant presents evidence concerning a pertinent character trait. And in Harrison, this is what clearly happened. The defendant was on trial for allegedly causing the death of his child, meaning that the pertinent character trait in his trial was his violence or peaceableness toward children. And the defense witness' testimony that he had no problem with the "sweet" and "good" defendant with whom he trusted his children was clearly evidence concerning the defendant's good character for this pertinent character trait.
Conversely, in Fort, the defendant was charged with possession of a controlled substance with intent to deliver, within 1,000 feet of a school zone." This means that there were likely a few pertinent character traits in this trial: Whether Fort was "clean" or addicted and whether he was the type of person who would deal, as opposed to merely use, drugs (and possibly some character traits dealing with his relationship with children). Moore's testimony, however, did not relate to any of these pertinent character traits; it was merely testimony about Fort being nice to a disabled/diabetic adult. In fact, the prosecutor likely could have objected that this testimony was irrelevant to any issue at trial. What he could not have done, however, was cross-examine Moore about Fort's prior cocaine conviction because Moore presented no testimony concerning any pertinent character trait, and I don't see how the lower Texas courts found otherwise.
October 9, 2008
Day(s) Of Atonement: D.C. Case Reveals That Continuances Based Upon Yom Kippur Are Non-Excludable Under The Speedy Trial Act While Most Delays From Motions To Admit/Exclude Evidence Are Excludable
The recent opinion of the District Court for the District of Columbia in United States v. Ferguson, 565 F.Supp.2d 32 (D.D.C. 2008), reveals that delays resulting from motions to admit/exclude evidence which are subject to "prompt disposition" are excludable under the Speedy Trial Act while delays resulting from continuances granted as the result of (Jewish) holidays are not. In Ferguson, Darren A. Ferguson was indicted on February 5, 2004 on one count of conspiracy to import five kilograms or more of cocaine and one thousand kilograms or more of marijuana into the United States and to knowingly manufacture or distribute the same with the intent that they would be unlawfully imported into the United States. Because of a "long and convoluted procedural history," his trial did not commence until May 2008. On the eve of trial, Ferguson moved to dismiss the indictment, claiming that his rights had been violated under the Speedy Trial Act, 18 U.S.C. Section 3161.
The trial court took the motion under advisement but nonetheless proceeded with the trial, after which Ferguson was convicted. The government thereafter filed its opposition to Ferguson's motion to dismiss, and the court found that Ferguson's arguments carried the day. It found the there was a violation of the Speedy Trial Act, granted Ferguson's motion, and dismissed the indictment without prejudice, effectively undoing the results of the trial.
In affirming this conclusion, the District Court for the District of Columbia had to determine how many of the days in 2004-2008 were excludable from the Speedy Trial Act's clock. I will focus on just two of these determinations, but you can find the rest of them in the court's opinion.
First, the court noted that some of the delays in the case were the result of the court needing time to resolve the prosecution's multiple motions to admit evidence pursuant to Federal Rule of Evidence 404(b). The court found that these delays were excludable from the Speedy Trial Act's clock, concluding that:
"[D]elay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion” is properly excludable under the Act. 18 U.S.C. Section 3161(h)(1)(F). In calculating delay caused by the filing of pretrial motions, the Act distinguishes between motions which require a hearing and motions where no hearing is required and the motion is subject to 'prompt disposition....' In the latter situation, which is applicable here, the Act 'permits an exclusion of 30 days from the time a motion is actually 'under advisement' by the court."
Second, the court noted that Ferguson's trial was at one point scheduled for September 11, 2007. The court indicated, however, that on July 23, 2007, Ferguson moved to continue the September 11, 2007 trial date because trial would conflict with Rosh Hashanah and Yom Kippur, which was problematic for his attorney. The motion was unopposed by the prosecution and was granted by the court on August 7, 2007, when trial was rescheduled to begin on October 9, 2007. The court concluded, and the prosecution did not dispute, that the delay caused by this continuance was non-excludable because it failed to fit within any of the specific exclusions provided by the Speedy Trial Act. However, because the prosecution actually filed one of its motions to admit evidence under Rule 404(b) on September 18, 2007, the Rosh Hashanah/Yom Kippur continuance actually only caused 7 days of non-excludable delays, with the rest of the days up to October 9th being excludable.
In the end, however, this second ruling was unnecessary because the court merely needed to find that more than 70 non-excludable days passed between Ferguson's first court appearance and trial for there to be a Speedy Trial Act violation, and there were 112 such days, with only 7 of those days being the result of the Rosh Hashanah/Yom Kippur continuance.
October 8, 2008
We The Jury, Take 3: 7th Circuit Issues Report On ABA's Principles For Juries And Jury Trials, Including Jury Questioning Principle
An article in today's Daily Iowan notes that the 7th Circuit's Bar Jury Project Commission recently completed a three year test of seven of the American Bar Association's nineteen Principles for Juries and Jury Trials and issued a written report, the Seventh Circuit American Jury Project Final Report. The first principle explored in the report was the ABA's recommendation regarding jury questioning, which states that:
C. In civil cases, jurors should, ordinarily, be permitted to submit written questions for witnesses. In deciding whether to permit jurors to submit written questions in criminal cases, the court should take into consideration the historic reasons why courts in a number of jurisdictions have discouraged juror questions and the experience in those jurisdictions that have allowed it.
1. Jurors should be instructed at the beginning of the trial concerning their ability to submit written questions for witnesses.
2. Upon receipt of a written question, the court should make it part of the court record and disclose it to the parties outside the hearing of the jury. The parties should be given the opportunity, outside the hearing of the jury, to interpose objections and suggest modifications to the question.
3. After ruling that a question is appropriate, the court may pose the question to the witness, or permit a party to do so, at that time or later; in so deciding, the court should consider whether the parties prefer to ask, or to have the court ask, the question. The court should modify the question to eliminate any objectionable material.
4. After the question is answered, the parties should be given an opportunity to ask follow-up questions.
So, how did the Seventh Circuit test this principle and the other principles? Well, you can get the full methodology in the report, but, basically, one or more of the ABA's principles were tested in 50 jury trials, after which 434 jurors, 86 attorneys, and 22 federal trial judges completed questionnaires. And according to the report, "[t]he concepts tested by the Seventh Circuit Project were generally viewed by the participants as enhancing the jury trial process."
Specifically, with regard to the jury questioning principle, "Of the participating jurors in the test, 83 percent said the questions positively affected their understanding of the facts. In addition, 77 percent of participating judges and 65 percent of the attorneys were in favor of the procedure." And that's really just the tip of the iceberg. The report also contains a wealth of statistical data on issues such as how many questions were submitted by jurors, whether the judges/attorneys/jurors were satisfied with the number of juror questions asked, and how the number of questions asked varied based upon the educational background of the jurors." (Furthermore, the report contains similar detailed data for each of the 7 tested principles).
This data jives with the findings from the implementation of Florida's new rules, which mandated jury questioning in civil trials and made such questioning permissible in criminal trials (I have blogged the Florida experience about here and here). As I noted in my second post on Florida's new rules, Circuit Judge De Furia has been the only judge in Florida to allow juror questions in all of his trials,
"And according to both prosecutors and defense attorneys who have tried cases before De Furia, the process has improved the quality of the trials. Meanwhile, jurors in those cases have claimed that the process has clarified issues and made their decisions easier."
As I also noted then, "I still maintain that juror apathy/confusion is the biggest concern facing the American legal system, and I think that based upon these early returns, the Florida rules could indeed serve as a model for other states." I think that the results of this report corroborate this conclusion, and I hope that courts takes a long look at all of the findings of the Seventh Circuit's report in the years to come.
October 7, 2008
Formula 409: Fictional Superman Trial Illustrates General Inadmissibility Of Offers To Pay Medical Expenses
Matthew Nelson has had a couple of recent posts in the Examiner (here and here) about "Whine, Whine, Whine," a second season episode from the TV show, "Lois & Clark," in which a musician sues Superman after the Man of Steel allegedly breaks his arm while rescuing him (which amusingly leads, not to a "Watchmen"-esque ban on superheroes, but simply several citizens of Metropolis bringing bogus personal injury claims against Supes). During the ensuing trial, Superman testifies that he offered to pay the musician's medical expenses. According to Nelson,
"Although the federal rules of evidence state that such a statement cannot be considered an admission of guilt and a jury will be instructed as such, it is highly likely that a jury would interpret such a statement in this way. The logical conclusion is that most people would not offer to pay another person's medical expenses if the person who made that offer did not cause that harm."
Thus, Nelson concludes, "Much of this boils down to seeing that someone who is injured in your place of business gets that necessary medical treatment but also being sure to keep your mouth shut as much as possible and follow your attorney's advice to the letter."
While I agree with Nelson that it is usually a good (legal) idea to keep your mouth shut after an accident/injury, you really don't need to worry about offering to pay the victim's medical expenses. That is because, as Nelson alludes to, Federal Rule of Evidence 409 (as well as most state counterparts) indicates that: "Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury."
Furthermore, it is extremely unlikely that such offers to pay medical expenses will be admissible to prove any permissible purpose. One rare instance where an offer to pay medical expenses may be admissible would be if: (a) there is a three car pile-up between Bob, Carol, and Ted, and Bob offers to pay the medical expenses of Carol, who is Caucasian, but not Ted, who is African-American, and (b) Ted claims at trial that Bob intentionally struck his car because of his race and seeks to use Bob's offer to pay Carol's medical expenses, but not his, as evidence of his racial bias. But as I noted, these situations are exceedingly rare.
What this means is that if Superman were being tried in a real court of law, his attorney almost certainly would have instructed him not to mention that he offered to pay the musician's medical expenses and would have been able to object successfully to any attempt by the plaintiff's attorney to elicit testimony on the subject. What this means is that if someone gets injured and you think that you might be responsible, you should listen to your heart, damn the torpedoes, and offer to pay his or her medical expenses.
October 6, 2008
The Time Has Come Today: 3rd Circuit Becomes Latest Court To Find That A Criminal Defendant Can Waive The Substantive Protections Of Rule 410
Based upon its recent opinion in United States v. Hardwick, 2008 WL 4444294 (3rd Cir. 2008), the Third Circuit has become the latest court to find that a criminal defendant can waive the protections of Federal Rule of Evidence 410 to such an extent that his plea/statements can be used not only for impeachment purposes, but also substantively.
The opinion in Hardwick was based upon the following facts. The "Perez Organization" was led by Enrique "Ricky" Perez, a cooperating witness, and defendants Bernard "B-Nice" Murray and Allen "Tito Allen" Resto. Meanwhile, defendant Lorenzo "Fu Quan" Hardwick managed one of the drug corners controlled by the Perez Organization, and defendant Jose G. Rodriguez was one of the primary "baggers" for the gang, responsible for processing the drugs into individual bags for street sale. Various disputes erupted between members of the Perez Organization and competing drug dealers, resulting in three individuals being shot to death and several others being badly injured. A federal grand jury in Camden, New Jersey subsequently issued an eight count Superseding Indictment naming Murray, Resto, Hardwick, and Rodriguez as defendants.
During the investigation before trial, Murray entered into a proffer agreement (a/k/a a "queen for a day" agreement) with the government. Under this proffer agreement, Murray agreed to cooperate with the investigators by answering questions truthfully and completely, and the government agreed not to use these statements against him at trial in its case-in-chief. The proffer agreement provided for an exception, however, if the government needed "to rebut any evidence or arguments offered on [Murray's] behalf." When Murray was interviewed under this agreement, he admitted to planning and participating in the slaying of two individuals, Hiram "Chubby" Rosa and Kenneth "Smoochie" Allen.
At trial, Murray did not testify in his own behalf, but during cross-examination of witnesses for the prosecution, Murray's attorney raised questions that were designed to support the inference that Perez and possibly Mark Lee, the leader of another drug gang, were responsible for the murders of Rosa and Allen. Because these questions were also designed to support the inference that Murray was not responsible for these murders, they were also contrary to the statements Murray made under the proffer agreement. Accordingly, the trial court found that, pursuant to the terms of the proffer agreement, the prosecution could present Murray's admissions as substantive evidence of his guilt during its case-in-chief.
On appeal, Murray claimed that the prosecution improperly introduced his admissions, which led the Third Circuit, inter alia, to consider whether the waiver contained in the proffer agreement was enforceable. The Third Circuit began by recognizing that Murray's admission would ordinarily be inadmissible under Federal Rule of Evidence 410, which states in relevant part that:
"Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn."
But, the Third Circuit noted that in its landmark ruling in United States v. Mezzanatto, 513 U.S. 196, 210 (1995), the Supreme Court concluded that a criminal defendant can waive the protections of Federal Rule of Evidence 410 pursuant to a proffer agreement (a/k/a a "queen for a day" agreement) as long as there is no "affirmative indication that the agreement [to waive] was entered into unknowingly or involuntarily." Importantly, however, the Third Circuit also recognized that "the Mezzanatto Court only considered the enforceability of proffer waivers for impeachment purposes, and five justices expressed doubt as to whether a waiver could be used to admit the defendant's statement in the Government's case-in-chief."
Indeed, in their concurring opinion, Justices Ginsburg, O'Connor, and Breyer found that:
"The Court holds that a waiver allowing the Government to impeach with statements made during plea negotiations is compatible with Congress' intent to promote plea bargaining. It may be, however, that a waiver to use such statements in the case in chief would more severely undermine a defendant's incentive to negotiate, and thereby inhibit plea bargaining. As the Government has not sought such a waiver, we do not here explore this question."
Meanwhile, in their prophetic dissenting opinions, Justices Souter and Stevens argued that:
"The second consequence likely to emerge from today's decision is the practical certainty that the waiver demanded will in time come to function as a waiver of trial itself. It is true that many (if not all) of the waiver forms now employed go only to admissibility for impeachment. But although the erosion of the Rules has begun with this trickle, the majority's reasoning will provide no principled limit to it. The Rules draw no distinction between use of a statement for impeachment and use in the Government's case in chief. If objection can be waived for impeachment use, it can be waived for use as affirmative evidence, and if the Government can effectively demand waiver in the former instance, there is no reason to believe it will not do so just as successfully in the latter. When it does, there is nothing this Court will legitimately be able to do about it. The Court is construing a congressional Rule on the theory that Congress meant to permit its waiver. Once that point is passed, as it is today, there is no legitimate limit on admissibility of a defendant's plea negotiation statements beyond what the Constitution may independently impose or the traffic may bear."
And indeed, this is exactly what happened, with the Third Circuit recognizing that several other circuit courts had enforced proffer agreements under which criminal defendants authorized the admission of their incriminatory statements as substantive evidence during the prosecution's case-in-chief. And the Third Circuit decided to join these courts and thus affirmed the trial court's decision to allow the prosecution to introduce evidence of Murray's incriminatory statements as substantive evidence during its case-in-chief.
All of this leads me to think that it is time for the Supreme Court to grant cert in one of these cases. As noted, Mezzanatto did not answer the question of whether a criminal defendant's incriminatory statements can be used as substantive evidence based upon a proffer agreement, and five justices expressed doubt on the issue. This being the case, there seems to me to be a decent chance that the Supreme Court would find this practice unconstitutional, and it certainly seems to be an issue of such importance that the Court should resolve it.
October 5, 2008
Throwing The Baby Out With The Bath Water?: Connecticut Court Finds No Reversible Violation Of Right To Present A Defense In Assault Case
The recent opinion of the Appellate Court of Connecticut in State v. Thomas, 2008 WL 4426789 (Conn.App. 2008), contains an interesting, and I would argue, correct, application of the "right to present a defense." In Thomas, Tania Thomas appealed from her convictions of assault in the first degree and assault in the third degree based on an altercation with Jessica Wilson. At trial, Thomas claimed self-defense and sought to prove this claim at least in part through a somewhat strange line of questioning during cross-examination of Wilson. Specifically, defense counsel inquired during cross-examination of Wilson whether she had any children. Wilson responded that she had one child who was six years old.
Later in the cross-examination, defense counsel asked her if she had custody of a child named Evelyn. The state objected on the ground that the question was beyond the scope of direct examination, and the court agreed. Defense counsel then asked Wilson if she had "ever heard of Isabelle Wilson," and Wilson responded that "[t]here is no Isabelle Wilson." The state again objected, and the court again sustained its objection. Immediately following the objection and outside of the presence of the jury, defense counsel argued that the line of inquiry was relevant to Wilson's credibility. He asserted that Wilson had lied under oath about how many children she had and that the defense had information to believe that one of Wilson's children may have been sold for drug money.
The court again sustained the state's objection, and later, during the defense case, defense counsel sought to recall Wilson as a witness. The state again objected, noting that defense counsel had a full and fair opportunity to interrogate Wilson on cross-examination. At this point, defense counsel shifted its theory of the evidence regarding Wilson allegedly selling her child for drug money. Defense counsel now argued that Thomas had evidence of Wilson selling a child for drug money, that she told Wilson she planned to expose her, and that this gave Wilson the motive to attack Thomas. Once again, the court sustained the state's objection and did not permit this line of questioning.
After Thomas was convicted, she appealed, claiming, inter alia, that these evidentiary rulings violated her right to present a defense. In addressing this argument, the Appellate Court of Connecticut presented a pretty nice explanation of the Constitutional right to present a defense under the Sixth Amendment's Compulsory Process Clause. According to the court,
"[a] defendant's right to present a defense does not include a right to present evidence that properly is excluded under the rules of evidence....The sixth amendment to the United States constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense....The defendant's sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence....Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense....A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant's right is not violated....The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion.... Even when a trial court's evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial....In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful." (emphasis added).
The problem for Thomas was that while the Appellate Court found that the trial court's decision to preclude inquiry into whether Wilson sold a child for drug money was wrong, it also found that this error was not (sufficiently) harmful. The Appellate Court
"conclude[d] that the [trial] court improperly excluded evidence relevant to Wilson's alleged motive to attack the defendant. Because the defendant raised the defense of self-defense at trial, the determination of whether Wilson or the defendant was the initial aggressor was material....Although the proffered evidence may have strained credulity, it tended to corroborate the defendant's assertion that Wilson initially attacked her because it tended to show that Wilson had a motive to attack the defendant."
Nonetheless, the Appellate Court found that this error could not support a new trial because Thomas was allowed to present significant other evidence that Wilson had a motive to attack her. According to the court,
"evidence was adduced that the two women were bitter rivals, that they had fought for the attentions of Moussay Ortiz and that they had been arrested several times for fighting with each other. Wilson acknowledged in her testimony that she previously had fought with the defendant and called her 'a black bitch.' Because the theory in question provided at most merely one more motivation to attack, its exclusion did not foreclose an entire defense theory and, therefore, did not rise to the level of a constitutional violation."
As I noted above, I think that the court applied the correct analysis. I'm currently researching an article on the right to present a defense, and the Appellate Court of Connecticut's ruling seems to be pretty consistent with precedent across the country finding that there can't be a violation of the right to present a defense sufficient to warrant a new trial when the defendant is precluded from presenting evidence supporting his theory of the case but is permitted to introduce (sufficient) other evidence supporting that theory. See, e.g., United States v. Deering, 179 F.3d 592 (8th Cir. 1999).