EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, November 1, 2008

Or Maybe In the County Jail: Court Of Appeals Of Ohio Finds Lay Witness Testinmony On Intoxication Was Proper

The recent opinion of the Court of Appeals of Ohio in State v. Morgan, 2008 WL 4693134 (Ohio App. 9 Dist. 2008), is fairly representative of most opinions in its conclusion that lay witnesses can testify regarding the apparent intoxication of a witness or party.  In Morgan, Matthew Morgan allegedly violated both the law and the Ninth Commandment, resulting in him being convicted of two counts of gross sexual imposition for grabbing the crotch and breast of his fiancée's friend, Mrs. Sasha Vormelker.

According to Vormelker,

     On the day in question, she planned to pick up Morgan's fiancée and others so that they could watch movies at her house.  Morgan told her that his fiancée was not there, but he offered her a piece of paper that he claimed contained a telephone number where his fiancée could be reached. When she approached Morgan to take the number, he "[g]rabbed [her] through [her] sweatpants in the crotch area."  When Mr. Morgan grabbed her, he said, "[c]ome on, come on, no one needs to know." Vormelker, however, "turned around and pulled away and [the sweatpants] ripped, and two of his fingers went up a little bit." She was not wearing any underwear, and when she pulled away from Morgan she "felt a bit of an insertion of...fingers."

     Vormelker went toward the door to leave, but Morgan stood up and grabbed her right arm with his left hand and "stuck his right hand down [her] shirt...[and] touch[ed]...[her] breast." Morgan then continued saying, "[c]ome on, come on" while groping her.  Morgan's speech was slurred and, based on the way he was walking and acting, Vormelker believed him to be intoxicated.

A couple of hours later, a police officer questioned Morgan and also thought that he appeared to be intoxicated.  And at Morgan's trial, both Vormelker and the officer testified concerning these observations, and Morgan contended on appeal, inter alia, that this constituted improper lay witness testimony on intoxication, a subject which requires expert testimony.  The Court of Appeals of Ohio disagreed, concluding that:

     "A lay witness may offer opinions and inferences provided they are both rationally based on his perception and helpful to the jury's understanding of the testimony or determination of a fact in issue. Evid. R. 701. 'It is generally accepted that virtually any lay witness, including a police officer, may testify as to whether an individual appears intoxicated.'"

The court then found that the testimony of both witnesses was properly received because:

     "[t]hey both testified to specific observations that led them to that belief, such as, beer cans strewn around the room, slurred speech, and bloodshot, watery eyes. Both witnesses testified that they had some experience observing drunk people on prior occasions."

As I said at the opening, the courts' decision is fairly representative in that "[t]ypical examples of the kind of opinion evidence contemplated by Rule 701 include a person's age, a person's anger or excitement, the value of one's own property, a person's intoxication, distance, sound, or the speed of a vehicle." Douglas R. Richmond, Regulating Expert Testimony, 62 Mo. L. Rev. 485, 535 (1997).  And I think that the ruling comports with the general belief that, as with obscenity, we know intoxication when we see it.   


November 1, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2008

EvidenceProf Blog's 2nd Annual Halloween Movie Pick: Joe Dante's Homecoming

On the eve of the Presidential election, and with the war still being waged in Iraq, I thought that I would repost a review I wrote back in my DVD reviewing days of a very topical film by one of my favorite horror film directors, Joe Dante.


Movie zombies tend to be exaggerations of the "braindead" populace, whether they be the consumerist, Dawn of the Dead variety, flocking to the shopping mall, or the gluttonous, Return of the Living Dead  variety, on the singular quest for "brains, more brains." Joe Dante's entry in the Masters of Horror TV series, "Homecoming," turns this concept on its head, presenting us zombies who seem to have wised up in the grave, becoming (in a sense) a ridiculously idealized version of the democratic citizen, rather than man stripped down to his basest desires. In the process, Dante and writer Sam Hamm have flipped the George Romero script of the social-commentary-posing-as-horror movie and created a more overt social satire with slight horror undertones.

In "Homecoming," the mother of a soldier who died in Iraq asks a Presidential speechwriter on a Larry King Live-esque show why her son had to die when there was seemingly no threat to America. The speechwriter's response is that his one wish is that her son could come back from the dead to proclaim the necessity of the war and his pride in dying for his country. Then, as if Murch were holding a monkey's paw, dead soldiers indeed rise from their graves, weeks before the President (clearly George W. Bush) is up for re-election. Republicans rejoice and Jerry Falwell clone Luther Poole sees this as a godsend; that is, until they realize that these zombies aren't here to toe the company line but, instead, are on an unwavering quest to vote the President out of office for baselessly sending them to their deaths.

Dante is probably the ideal director for this material, having deftly crafted social satires on hot button political issues such as immigration (The Second Civil War) and war -- whose absurdities he exposed in Small Soldiers -- in the past. From The Haunting to Gremlins (and its even better sequel), Dante also deserves his moniker as a "master of horror" but, while there's the requisite zombie carnage here, the film's more like a live action version of D.C. Follies (with Dante's signature wit) than a splatterfest.

In fact, if Michael Moore wanted to make his "Will They Ever Trust Us Again?" into a movie (a la Canadian Bacon), the result might look a lot like Dante's flick, which presents and then lampoons slightly fictionalized versions of Ann Coulter and Karl Rove, who blather on with sound and fury while soldiers are sent to their deaths.

Based on the short story "Death and Suffrage" by Dale Bailey, Hamm's script isn't exactly subtle. In addition, both the cinematography and make-up are suitably low rent, and the acting is broad. In other words, this is exactly the type of B-movie you might expect from a Roger Corman disciple, although with a political focus and ideology that might attract or repel those looking for stock genre thrills.

The 58-minute film is presented in anamorphic 1.77:1 widescreen with Dolby Digital 5.1 sound and contains a spate of special features. The best of the extras include a commentary track by Hamm -- in which he points out the myriad of allusions and references in the film -- an informative 24-minute interview with Dante, a 14-minute Z Channel interview of Dante by Mick Garris, and a 22-minute featurette on Dante's career with insights provided by people as varied as Roger Corman and Corey Feldman (whom Dante directed in another comedy-horror classic, The 'burbs).

Rounding out the extras are three actor interviews, a decent 9-minute behind-the-scenes featurette, a solid 30-minute script-to-screen featurette, and both Bailey's short story and Hamm's script as DVD-ROM supplements.


October 31, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2008

Mississippi Mistrial: Judge In Case Against State Trooper Declares Mistrial Despite Invited Error Doctrine

A judge in Mississippi has declared a mistrial in the trial of a state trooper charged with the improper touching or fondling of a child younger than 16 based upon the improper admission of character evidence, despite the fact that the judge found that this error was invited by defense counsel.  In addition to this charge, the defendant,  Richard Dane Davenport, 46, a Mississippi Highway Safety Patrol master sergeant, has been charged in another court with raping the alleged victim.

The drama started early in Davenport's trial, with the opening statement of defense counsel John Zelbst being interrupted twice by potential witnesses, including the alleged victim.  However, these interruptions were not what precipitated the mistrial.

Instead, the mistrial, stemmed from the fact that, before trial, Circuit Judge James T. Kitchens Jr. precluded the introduction of testimony relating to Davenport's alleged rape of the victim, presumably pursuant to Mississippi Rule of Evidence 404(a), which precludes the introduction of evidence of a person's character to prove that he has a propensity to act in a certain manner and that he thus likely acted in conformity with that propensity at the time in question.

During the prosecution's case-in-chief, however, it called the alleged victim to the stand.  And "[t]hree times during cross-examination in response to questions from Zelbst — sometimes multiple, open-ended questions at a time — the witness referred to being raped by the defendant.  Zelbst thereafter moved for a mistrial, and the judge found that, "If you invited the error, you could not complain about the result."   "[O]f the three instances of improper testimony by the witness, [Kitchens] ruled the first two 'invited error.' The third was borderline — if not quite invited, [but] still the result of poorly worded questions."

Now, traditionally, appellate courts invoke the invited error doctrine when a party complains about an evidentiary ruling, and those courts, not wanting to disturb the verdict, reject the appeals, concluding that a party is not permitted to take advantage of an error which he himself invited or induced the trial court to make.  In this case, however, defense counsel raised a motion for mistrial early during trial, and the court found that it should be granted, despite the invited error doctrine, concluding that "because the person that’s on trial here is Mr. Davenport and not Mr. Zelbst, prudence … dictates that I grant the motion (for a mistrial) at this time."

Obviously, this was a difficult call for the judge to make, and, according to the victim's family, it was the very goal of defense counsel to secure a mistrial and delay the proceedings by asking the questions at issue.  That said, unless there was evidence that the defendant directed his attorney to ask these questions, I think that the judge was correct that the defendant should not be punished for his attorney's actions when a mistrial could be declared during the early stages of trial.


October 30, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 29, 2008

Ladies And Gentlemen Of The Juries: California Court Empanels Rotating Juries In Two Defendant Murder Trial

In a move that calls to mind the infamous Menendez brothers murder trial(s) from the 1990s, two juries have been empaneled in Stanislaus County Superior Court to hear a single murder case involving accuseds Jerry Michael Benge and his nephew, Sean Benge.  The prosecution has alleged that Jerry, now 49, and his 30 year-old nephew are responsible for the shooting death of Steven Glenn Brown in his home outside Ceres.

According to the prosecution, the elder Benge got to know the victim's wife, Katherine when her son started visiting him to learn to care for a pig.  Thereafter, as her children got involved with 4-H, Jerry and she spent more time together.  Indeed, Jerry eventually moved his animals to Brown's home and visited daily to care for them.  But apparently, that's not all that he was doing; instead, according to Katherine, their relationship intensified and "they started twice to have sex but did not continue."

The prosecution claims that Jerry then attempted to get Steven out of the way and "asked his nephew to help him 'get rid of' Steven Brown or 'cause him serious injury.'"  According to this theory, Sean Benge entered Brown's home, waited for him to come home, and then shot and killed him.

So, why are there two juries in the case?  Well, according to an article on the case, "[c]ertain evidence...is admissible against just one of the defendants," meaning that, say, Jury 1 and Jury 2 both hear most of the evidence, but Jury 1 is rotated out when there is evidence that is only admissible against Jerry and Jury 2 is rotated out when there is evidence that is only admissible against Sean. 

And while the article doesn't mention the nature of the evidence, it does mention that Jerry apparently confessed to detectives.  And if that confession at least partially implicated Sean and Jerry chooses not to testify at trial, the jury hearing Sean's case would not be able to hear that confession pursuant to the Confrontation Clause and the Supreme Court's opinion in Bruton v. United States, 391 U.S. 123 (1968).

Also according to the article on the case, this is "the first time a Stanislaus County courtroom has used two juries in a single courtroom,...though courts in Sacramento and Los Angeles [such as in the Menendez brothers case] have used the method."  According to court spokesman Michael Tozzi, "[t]he benefit is that it allows witnesses to testify once, rather than in two cases. Also, Tozzi said, the case could last six to eight weeks, so the judge and attorneys agreed a two-jury solution would be more efficient."

I agree with these observations, but despite similar claims at least as early as 1993, I get the sense that most courts are like the courtroom in Stanislaus County in that they have used the rotating juries procedure rarely, if at all. 


October 29, 2008 | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 28, 2008

Hold On To My Receipt: Seventh Circuit Finds Photos & Receipt Were Properly Admitted In Weapons Appeal

The recent opinion of the Seventh Circuit in United States v. Miller, 2008 WL 4694925 (7th Cir. 2008), contains a few interesting evidentiary rulings.  In Miller, Leroy Miller took in Ricky Fines as a boarder at his farm, and they allegedly bought, refurbished, and sold many weapons while Fines lived in Miller's house.  When federal agents conducted a search of Miller's farm in April 2004, they found three weapons in the house and 31 in a shed nearby.  A jury subsequently convicted Fines, a former felon, of possessing weapons despite his prior conviction, in violation of 18 U.S.C. Section 922(g)(1) and Miller of aiding and abetting Fines' illegal possession.

On his appeal, Fines raised two arguments.  First, he claimed that the trial court erred in admitting two pictures of him, saluting, while sitting in a chair under a gun rack.  He argued that these pictures did not depict the condition of the room when the agents searched it.  The Seventh Circuit, however, found this argument to be "beside the point," because Fines would be

     "guilty if he possessed guns any time during five years (the period of limitations) before the indictment. The pictures are relevant because they show that guns and Fines were in the room together, which supports an inference that he possessed them."

I agree with the Seventh Circuit on the relevance point, and, assuming that a witness with knowledge authenticated the photograph by testifying that they accurately depicted Fines at some point in the five years before the indictment, see United States v. Richardson, 562 F.2d 476, 479 (7th Cir. 1977), they were properly admitted.

Fines also claimed that the trial court erred in admitting a folder of receipts showing that Fines had ordered and paid for gun parts.  The Seventh Circuit again disagreed, finding that

     "[t]he receipts were hearsay if offered for the truth of the sellers' (implied) assertions that the parts had been delivered as ordered, but to the extent they embodied Fines's statements they were admissible under Fed.R.Evid. 801(d)(2) as admissions, and to the extent that they reflected the sellers' business records they were admissible under Fed.R.Evid. 803(6)."

Starting with this last conclusion, Federal Rule of Evidence 803(6) states in relevant part that:

     "A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."

Most courts have found that receipts are admissible under Federal Rule of Evidence 803(6). See, e.g., United States v. Brown, 9 F.3d 907, 911 (11th Cir. 1993) (finding a property receipt for a gun to be admissible as a business record).  This rulings seem logical to me, and thus, assuming that the receipt was properly authenticated, it was properly admitted.

The most interesting question for me, however, is whether the receipt could have been admitted as an admission under Federal Rule of Evidence 801(d)(2).  And, to my surprise, many courts have found that a party's mere possession of a receipt constitutes an adoptive admission under Federal Rule of Evidence 801(d)(2)(B), which indicates that "[a] statement is not hearsay if...[t]he statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth." See, e.g., United States v. Paulino, 13 F.3d 20-24 (1st Cir. 1994) (citing cases).  Other courts have adopted a "possession plus" approach, under which possession of a receipt constitutes an adoptive admission "so long as the surrounding circumstances tie the possessor and the document together in some meaningful way." Id.

I disagree with either approach.  Why?  Well, here's an example of a classic adoptive admission.

    -William and Dan are talking with Fred at 2:00 on October 25th when William says that Dan just shot Vince in Skokie.  Dan says nothing in response.  Dan has in effect, adopted William's statement.

And the reason he is deemed to have adopted it is that because "an innocent defendant would have responded in order to deny the statements made rather than acquiescing in such statements by remaining silent after hearing and understanding those statements." United States v. Lafferty, 503 F.3d 293, 305 (3rd Cir. 2007).

Conversely, if William merely said, "Dan and I just came from Skokie," and Dan were now on trial for murdering Vince in Skokie at 1:30 on October 25th, Dan would not be deemed to have adopted William's statement.  And the reason would be that William's statement was seemingly innocuous and not overtly incriminatory.  In other words, Dan could have known that William and he had just come from Evanston but might not have felt the need to correct William, in contrast to his apparent need to correct the statement that he just shot someone if it were untrue.

And I think the same applies to receipts.  I don't think that most people feel the need to correct incorrect receipts, and I don't think that merely retaining a receipt constitutes an adoption of its contents.  Heck, I just bought a vegetarian burrito at Chipotle this weekend and they rang it up as a chicken burrito.  However, because the two burritos cost the same (actually, the veggie burrito used to cost less before Chipotle raised prices in response to the economy), I didn't say anything because it didn't seem important to correct the cashier.  And while one might say that a receipt for a burrito is non-incriminatory while a receipt for gun parts is somewhat incriminatory (at least for a prior felon), another question to ask is how often people actually look at receipts to verify their accuracy.  My asnwer would be "not very often," and I thus don't see how mere retention of a receipt constitutes an adoption of its contents.


October 28, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, October 27, 2008

Check Out The New Animal Blawg

Congratulations to Pace Law School Professors David N. Cassuto and Luis Chiesa as well as Pace law student Suzanne McMillan, who recently launched Animal Blawg.  As they note in their introductory post on the blog:

     "This blog's scope is intended to be braod, encompassing both legal issues affecting animals and legal issues reflecting animals' situations.  It purports to examine current case law and statutes, as well as the ethical and jurisprudential issues arising from how animals are treated in one of any number of situations.  Thus, it presents not only substantive information, but also food for thought."

That post also addresses the topicality of this new blog by noting that:

     "Animal law in the United States has grown over the last couple of decades from a virtual unknown to being one of the faster-growing areas of legal scholarship and practice.  It is now being offered on the menu of every Ivy League law school in the nation.  Judges increasingly find themselves presiding over cases involving issues of animal treatment, and demand is rising for lawyers who handle such cases.  Increasingly, animal law is taken seriously in the professional world, making it ever more important for law students and practitioners to familiarize themselves with its basics and stay abreast of its developments."

I have found these observations to be accurate, with animal law presentations being heavily attended both at my previous job at the Appellate Division of the Supreme Court of New York and my current job at the John Marshall Law School (Indeed, to toot my own law school's horn, JMLS students recently finished 1st and 2nd at the Animal Law Advocacy Closing Argument Competition at Harvard Law School).  And it would seem that if you want intelligent writing about animal law, Animal Blawg would be the place to get it.  Professor Chiesa has a forthcoming article entitled Why is it a Crime to Stomp on a Goldfish, and Professor Cassuto co-edited Animal Law and the Courts, wrote the chapter Animal Sacrifice and the First Amendment for that book, and wrote the article Bred Meat: The Cultural Foundation of the Factory Farm .

The blog already contains several interesting posts, including one about California's controversial Proposition 2, and I am sure that several more interesting posts will follow.


October 27, 2008 | Permalink | Comments (0) | TrackBack (0)

Dead Man Talking: Story By Fordham Professor Indicates That Court In Old Maryland Case Allowed Witness To Testify About What A Ghost Told Him

As I have noted before,

     "Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate.  The theory behind these statutes is that the interested person has reason to fabricate his testimony and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury."

So, for instance, Maryland has a Dead Man's Statute in Section 9-116 of the Courts and Judicial Proceedings Article of the Maryland Code, which states that:

     "A party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement."

But, Maryland's Dead Man's Statute is part of a dying breed.  Most states have repealed their Dead Man's Statutes, see e.g., Wesley P. Page, Dead Man Talking, 109 W. Va. L. Rev. 897, 898 (2007), which begs the question of whether Maryland will follow suit in the near future.  According to a story by Fordham University History Professor Elaine Forman Crane, however, a case from Maryland's past reveals that the state apparently did not always need this statute.

     The story involved Thomas Harris, a farmer from Queen Anne's County in Maryland, who had four illegitimate children with his lover, Ann Goldsborough. Harris' will said that when he died, his brother was to sell all of Harris' property and give the money to his children, but the brother kept the cash. That's when, according to William Briggs, Harris' best friend, Harris' ghost met with him and told him to tell the brother that the money should go to Harris' children.  Apparently, Briggs then relayed this message to the brother, but the brother died before the money was transferred, and the brother's wife did not want to cough up the money.  A lawsuit ensued, and, according to Crane's story, the court allowed Briggs to testify regarding his encounters with Harris' ghost, whom he claimed spoke in a low, sometimes incoherent voice.

According to the story on Crane's story,

     "[t]he case's depositions, filings and judgment are nowhere to be found, so it's not exactly clear how the courts decided this spooky case. But the story gathered some steam a decade later in the national political scene when the Federalists revived the case to disgrace the opposing Republican party."

Courts who still have their Dead Man's Statutes often defend them on the ground that they protect the deceased, who cannot speak from the grave.  If Crane's story was accurate, however, that is exactly what the Maryland court allowed, which would obviate the need for such a statute.


October 27, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, October 26, 2008

Cruel Intentions?: Third Circuit Makes Seemingly Erroneous Rule 704(b) Ruling In Drug Trafficking Appeal

Federal Rule of Evidence 704(b) states that:

     "No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."

As I have noted before, the Rule was enacted as a result of the Insanity Defense Reform Act of 1984, which in turn was prompted by the public outrage in response to the insanity defenses of Mark David Chapman and John Hinckley, Jr.  As is clear from its language, however, although Rule 704(b) was "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," courts have since found that it "applies to all instances in which expert testimony is offered as to the mental state or condition constituting an element of the crime charged or defense thereto," often to the detriment of prosecutors. United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995)

Of course, that has led prosecutors to try to walk an evidentiary tightrope with their expert witnesses, who now clearly imply in their testimony that the defendant acted intentionally or with premeditation but do so without using those words.  But at some point, those experts cross the "[fine] line that expert witnesses may not cross," United States v. Watson, 260 F.3d 301, 309 (3rd Cir. 2001), and I think that an expert did so in a recent federal case in Pennsylvania, despite the Third Circuit's opinion to the contrary.

In United States v. Farrish, 2008 WL 4672128 (3rd Cir. 2008), Marcel Farrish appealed from his convictions for (1) possessing with intent to distribute five or more grams of cocaine base in violation of 21 U.S.C. Section 841(a)(1) and (b)(1)(B)(iii); (2) using or carrying a firearm during and in relation to any drug trafficking crime or, in furtherance of any such crime, possessing a firearm in violation of 18 U.S.C. Section 924(c)(1)(A); and (3) being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g)(1).

The facts of Farrish were as follows: On the night of March 27, 2004, three City of Pittsburgh police officers came across a car idling in front of a "no parking" street sign.  Detective Edward Fallert noticed the man sitting alone in the driver's seat of the car, later identified as Farrish, grab something from his lap, place it in his mouth, and start chewing rapidly.  Detective Fallert believed Farrish was in possession of and attempting to destroy contraband, so he asked Farrish what he was chewing, and Farrish responded that it was a "bag of weed."  Fallert asked Farrish to open his mouth, Farrish complied, and Detective Fallert noticed green, leafy matter in Farrish's mouth, which he believed based on his experience as a police officer to be marijuana.  Fallert asked Farrish to exit the vehicle and arrested him for possession of a controlled substance and tampering with evidence.  Farrish gave his name, but stated that he lacked identification because his driver's license was suspended and told the officers that the car belonged to his girlfriend.

Police thereafter arranged for a tow service to impound the car, whereupon the police performed a warrantless inventory search of the vehicle and its contents.  In the trunk, they discovered 88 knotted plastic baggies containing crack cocaine, a fully loaded 9-millimeter semiautomatic gun, and a baggie with 30 loose 9-millimeter rounds. The crack cocaine weighed 15.32 grams and had an approximate street value of $1,700.

At trial, the prosecution called an expert witness (who unfortunately is not identified by title in the Third Circuit's opinion), who testified "as to whether the quantity of drugs in the trunk indicated intent to sell and whether the proximity of the gun to the drugs indicated intent to use the gun in conjunction with drug trafficking."  And according to the expert, "the facts and circumstances surrounding Farrish's behavior were 'indicative' of someone who had the intent to deliver drugs." (again, unfortunately, the Third Circuit's opinion doesn't list the specific testimony of the witness).

Now, it seems pretty clear to me that the expert's testimony violated Rule 704(b).  So, why did the Third Circuit find to the contrary during Parrish's appeal?  Well, according to the court, "We have held that '[e]xpert testimony is admissible if it merely supports an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury.' United States v. Watson, 260 F.3d 301, 309 (3d Cir. 2001).'  If this citation were accurate, the Third Circuit would have been correct because, ostensibly, the expert didn't literally say that Farrish had the requisite intent.

The citation from Watson, however, seemed to me to present an unreasonably narrow construction of Rule 704(b), so I went to that opinion and found that the Third Circuit was engaging in selective citation.  The full quote from Watson reads, "Expert testimony is admissible if it merely 'support[s] an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony.' United States v. Bennett, 161 F.3d 171, 183 (3d Cir.1998) (quoting United States v. Morales, 108 F.3d 1031, 1038 (9th Cir.1997))." (emphasis added).

In other words, the Third Circuit cut off the last clause of the quote, the part which states that expert testimony violates Rule 704(b) if the conclusion that the defendant had the requisite mens rea necessarily follows from the expert's testimony.  And the reason the court did so seems clear to me, with the reason being that it also seems clear to me that the conclusion that Farrish had the requisite mens rea necessarily followed from the expert testimony that "the facts and circumstances surrounding Farrish's behavior were 'indicative' of someone who had the intent to deliver drugs."

So, notwithstanding this selective citation, could the Third Circuit's opinion have been correct?  Well, according to the court in Farrish, the expert's testimony was proper because "[i]t is well established that experts may describe, in general and factual terms, the common practices of drug dealers. See Boyd, 55 F.3d at 671 (citing cases)."  As with Watson, this led me to the opinion in United States v. Boyd, 55 F.3d 667 (D.C. Cir. 1995), to check its accuracy.  And once again, I was underwhelmed.

In general, the Third Circuit's citation to Boyd was accurate in that the court found that experts can render general factual testimony concerning the common practices of drug dealers:  "For example, a Government expert may testify about the significance of drug packaging,...the uses of various drug paraphernalia,...the street value of narcotics,...or the various roles that individuals might play in a typical drug distribution network."  Of course, none of these types of testimony directly bears upon intent/mens rea, so the question becomes whether Boyd mentioned any such cases.  And the answer is that it did.

The D.C. Circuit cited to its previous opinion in United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993), in which the following expert testimony was rendered:

     Q: Now, what, if anything, does the packaging of that crack cocaine into nine individual ziplocks tell you about the intent of the person that was carrying those ziplocks?

     A: It was intent to distribute. * * *

     Q: Why are you able to say that the person in possession of those nine individual ziplocks, $50 rocks of crack cocaine, has the intent to distribute them?

     A: As I stated earlier, the packaging is consistent with the way crack cocaine is packaged for street-level distribution."

The D.C. Circuit found that, in contrast to general factual testimony concerning the common practices of drug dealers, this testimony violated Rule 704(b) because the expert's testimony "that 'it was intent to distribute', pointed much more directly to the mental state of 'the person that was carrying those ziplocks.'"

And as noted, the expert testimony in Farrish was nearly identical; according to the expert, "the facts and circumstances surrounding Farrish's behavior were 'indicative' of someone who had the intent to deliver drugs."  Therefore, I don't see how the Third Circuit could have found that the expert's testimony in Farrish was proper under Rule 704(b)


October 26, 2008 | Permalink | Comments (0) | TrackBack (0)