November 8, 2008
Long-Term Care: Court Of Criminal Appeals Of Texas Addresses Admissibility Of Statements Made During Long-Term Therapy
In its recent opinion in Taylor v. State, 2008 WL 4724147 (Tex.Crim.App. 2008), the Court of Criminal Appeals of Texas addressed a fascinating question: Does the hearsay exception for statements made for purposes of medical diagnosis or treatment "provide for the admissibility of statements made to a licensed professional counselor in the context of on-going, long-term therapy?" And its answer, while complicated, I think was appropriate given the complexity of the issue.
In Taylor, Rashik Ali Taylor was convicted of the offense of aggravated sexual assault of a child younger than fourteen and sentenced to 10 years incarceration. The alleged victim, J.B., was 13 years-old at the time of the offense and the daughter of a friend of the defendant. In the wake of the alleged crime, the J.B. asked a school counselor, "[W]hat does rape mean?" J.B. thereafter disclosed her ordeal to the school counselor, who in turn reported it to Child Protective Services, and J.B. began to see a therapist "through Child Advocacy."
Apparently, J.B. was diagnosed as bipolar and with Post Traumatic Stress Disorder, and she began to see Denise Volet, "a licensed professional counselor, formerly with Child Protective Services and in private practice at the time of trial, with extensive experience counseling victims of sexual assault and abuse." And apparently, several months after the alleged crime, and after J.B. had been seeing Volet on a weekly basis, J.B. relayed the details of the sexual assault to her.
Over Taylor's objection, the trial court admitted Volet's testimony concerning J.B.'s description of the assault under Texas Rule of Evidence 803(4), which provides an exception to the rule against hearsay for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." The First Court of Appeal affirmed, prompting Taylor's appeal to the Court of Criminal Appeals of Texas.
That court noted that Taylor's first objection was that Vogel's qualifications as a medical professional were not shown to "conform to the rule." But it rejected that argument, finding that "[i]t is clear that the drafters of the federal rule did not think so, for they expressly designated that in order for the exception to apply 'the statement need not have been made to a physician....' Indeed, '[s]tatements to hospital attendants, ambulance drivers, or even members of the family might be included.'" (quoting the Advisory Committee's Note to Federal Rule of Evidence 803(4)).
Having rejected this objection, however, the Court of Criminal Appeals of Texas nonetheless found that for J.B.'s statements, which included statements identifying her assailant, to be admissible under Texas Rule of Evidence 803(4), "it [wa]s incumbent upon the proponent...to make the record reflect both 1) that truth-telling was a vital component of the particular course of therapy or treatment involved, and 2) that it is readily apparent that the child-declarant was aware that this was the case."
The court created this first requirement because
"reclining on a therapist's or psychiatrist's couch is not quite the same as sitting in the emergency room in the immediate aftermath of an injury or on the physician's cold examination table in the interest of diagnosing and curing some exigent disease or ailment. In the latter contexts, it seems only natural to presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor's questions are designed to elicit accurate information and that veracity will serve their best interest....In the therapist's office, however, this tacit presumption is far less compelling. It is not always so readily apparent (indeed, it may not always be accurate ) in the mental-health context that truth-telling is vital. Not even an older, more mature child (maybe not even an adult) will necessarily recognize and appreciate the necessity (assuming there is a necessity) always to tell a mental-health provider the truth in order to assure the efficacy of treatment."
And the court created the second requirement because statements identifying an assailant early during the diagnosis/treatment process
"might be pertinent because it is important for a physician to discover the extent of the child's 'emotional and psychological injuries'-particularly when the perpetrator might be a family or household member and it is important to remove the child from the abusive environment....It is far less obvious [however] how that information will necessarily be pertinent, long after the fact of the abuse, in an on-going course of mental-health treatment or therapy. At that point, knowing who is at fault for the emotional or psychological trauma may not be critical to every treatment plan, especially if the perpetrator was not a family or household member. We think it is appropriate, therefore, to require that the proponent of the hearsay exception make the record reflect that it was important to the efficacy of the treatment that the mental-health professional know the identity of the perpetrator."
Applying this analysis, the court reversed, concluding that:
"The appellant was not a family or household member-he was, in fact, barely more than a stranger to J.B. It is not readily apparent that knowing the appellant's identity was pertinent to Volet's treatment of J.B. for the trauma of the sexual assault, and it seems unlikely to have aided Volet in any material way in treating the residual anger issues that J.B. had with her mother. This is not to say that Volet could not have testified to establish that appellant's identity was pertinent to J.B.'s treatment in a way that is not obvious to us. But she was never asked to do so during her testimony, and it is not otherwise apparent on the record how it might be pertinent. Moreover, there is nothing in this record that makes it readily apparent that J.B. understood that truthfulness about the identity of her assailant was important to the efficacy of her treatment for these issues. We cannot presume these predicate facts without effectively relieving the proponent of the hearsay evidence (here, the State) of its burden to establish the existence of a valid exception to the hearsay rule. On this state of the record, we conclude that the trial court abused its discretion to admit Volet's testimony of J.B.'s out-of-court declarations, at least to the extent that they identified the appellant as the perpetrator."
As, I said above, the court's analysis was complicated, but given the complexity of the issue, I think that requiring these on-the-record findings was the proper way to ensure reliability.
November 7, 2008
Robert Ford, A(nd The) Gunman: D.C. Court Of Appeals Reaches Right Conclusion On Wrong Grounds In Manslaughter Appeal
The recent opinion of the District of Columbia Court of Appeals in Blunt v. United States, 2008 WL 4735144 (D.C. 2008), contains what I regard to be the correct conclusion but one reached upon the incorrect grounds. In Blunt, Frederick Blunt was found guilty by a jury of armed voluntary manslaughter and possession of a prohibited weapon, both arising from the death of Robert Ford. Specifically, according to Sandra Williams, she
"was outside her mother's home one evening in mid-August when she saw three men gambling on the sidewalk. One of them was Blunt, whom she had known as 'Fats' for seven years. Williams watched as a second man, 'Dayton,' snatched ten dollars from the hand of the third player, later identified as Robert Ford, whereupon Ford hit Dayton in the chest and the two began fighting. Ford soon pinned Dayton against a car and punched him repeatedly, causing Dayton to yell to Blunt for help. Blunt went to a nearby alley and picked up a cinder block which he hoisted above his head. Then, according to Williams and two other eyewitnesses, he used it to strike Ford repeatedly in the head or body while also kicking him. When Ford rose from the ground at one point and chased Blunt, Blunt retrieved a second block and again struck him on the head and ribs despite Ford's appeal to stop ('why you doing this, it [was] a one on one fight?'). After delivering further blows to Ford, Blunt ran from the scene when an eyewitness called the police."
Williams, however, did not testify concerning these events at Blunt's trial; while she did render this testimony before the grand jury, "[b]efore trial, the prosecutor informed the judge that Sandra Williams was afraid to testify and would be a reluctant witness." The prosecutor asked that Williams be allowed to explain her fear, specifically that she had been stabbed eight months earlier, that a gun had been fired through the floor of a house when she was present there, and that "random people" had warned her that "nobody likes snitches on her block." And according to the prosecutor, Williams held Blunt indirectly responsible for these actions."
Over defense counsel's objection, the trial judge allowed the prosecutor to pursue this line of questioning, and
"[w]hen Williams took the stand at trial, she admitted being home on the day of the charged crimes but denied remembering anything about them. The prosecutor sought to refresh her memory with her grand jury testimony given two days after the crimes, but Williams declined to read it. After the judge intervened, Williams apparently read the proffered transcript but testified that it did not refresh her memory of the events described therein. At a bench conference, the prosecutor sought leave to question her about why she had been crying ever since she took the witness stand. The judge granted leave, noting that 'that's such unusual behavior[,] that she's been crying throughout [her testimony]' and looking away from the jury.
The prosecutor then asked Williams the following questions:
Q.: Ms. Williams, can you tell us why you are crying?
A.: Because I hurt, right now I'm stressed.
Q.: Why are you stressed? * * *
A.: Because I have been through a lot because I testified. I have been stabbed nine times and almost lost my life by testifying. So I'm stressed and I'm scared now."
The judge thereafter instructed the jury:
"You just heard the witness testify with regard to having been stabbed and I want to make clear for the record to you there is no evidence that Mr. Blunt participated in any way connected to that incident. You are not to make [an]y negative inference from the fact that Ms. Williams may have been stabbed, nor are you to speculate that Mr. Blunt was in any way linked to the fact that Ms. Williams was stabbed.... The reason that you were hearing about that was only as it's relevant to the witness' presentation."
Subsequently, the prosecutor again tried, unsuccessfully, to refresh Williams' recollection using the grand jury testimony. Thereafter, the trial court allowed the prosecution to present her grand jury testimony pursuant to D.C. Code Section 14-102(b)(1), which indicates that
"A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition."
After Blunt was convicted, he appealed, claiming first that, even with the jury instruction, Williams' specific testimony about why she was afraid to testify was unfairly prejudicial. The District of Columbia Court of Appeals agreed, finding that "proper testimony by Williams on direct about the reason for her fear of testifying should have been limited-in Blunt's words on appeal-to a general statement that she feared retaliation." Nonetheless, the court found this error to be harmless and insufficient to warrant reversal.
Blunt's second argument was that Williams' alleged memory loss was feigned, meaning that her grand jury testimony was inadmissible under D.C. Code Section 14-102(b)(1) because (1) her trial testimony was not inconsistent with her grand jury testimony, and (2) she was not "subject to cross-examination." The appellate court disagreed, concluding that
"'A well-settled body of case law holds that where a declarant's memory loss is contrived it will be taken as inconsistent with a prior statement for purposes of applying Rule 801(d)(1)(A) [the federal counterpart to D.C. Code Section 14-102(b)(1)].' United States v. Knox, 124 F.3d 1360, 1364 (10th Cir.1997) (citing authorities). Moreover, the same witness is 'subject to cross-examination' within the meaning of the rule. Id."
And while I am dubious of the logic behind these opinions, it is true that they are the current law of the land. So, why do I think that Blunt was decided on the wrong grounds? Well,
"while the government may now impeach its own witnesses,...and there is no impropriety in calling a witness and then arguing to the jury that the witness lied on the stand,...it remains well established that 'impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.'" United States v. Zackson, 12 F.3d 1178, 1184 (2nd Cir. 1993).
And while the prosecution in Blunt would likely argue that it thought that Williams might provide probative testimony at trial, I would argue that the facts of that case are similar to Zackson, where the court found that:
"In our view, the prosecutor's questioning of Zackson went beyond the limits of zealous advocacy. The voir dire of Zackson demonstrated conclusively that Zackson would offer no testimony probative of the conspiracy. It was a virtual certainty, moreover, that nothing the government did would refresh Zackson's recollection. If any doubt remained concerning the government's motive, it was dispelled by the prosecutor's candid admission that Zackson's testimony would help the government regardless of what Zackson said on the stand. Finally, although no objection was lodged at the time, we note that the prosecutor's summation improperly invited the jury to disbelieve Zackson's claims that he did not remember anything, and to believe instead the truth of the prosecutor's questions themselves. We are left with no doubt, therefore, that the government called Zackson solely to get before the jury inadmissible hearsay that implicated LaGatta. The prosecutor's explanation that he was merely attempting to refresh Zackson's recollection was, in our view, wholly unacceptable."
It thus seems that Blunt was decided on the wrong grounds. So, on what grounds should it have been decided? Well, assuming that there was decent evidence that Blunt was responsible for the acts leading to Williams' "refusal to testify," the court could have admitted Blunt's grand jury testimony under the forfeiture by wrongdoing doctrine, which indicates that "[a] statement offered against a party that has engaged or acquiesced in wrong-doing that was intended to, and did procure the unavailability of the declarant as a witness is admissible at trial." Gatlin v. United States, 925 A.2d 594, 600 n.8 (D.C. 2007). Thus, for instance, in Gatlin, the District of Columbia Court of Appeals applied the doctrine to admit the grand jury testimony of a deceased witness when there was sufficient evidence presented that the defendant was responsible for the witness' death.
November 6, 2008
Conditional Admission: Texas Case Reveals Distinctions Between Texas And Federal Rule Of Evidence 104(b)
The recent opinion of the Court of Criminal Appeals of Texas in Fischer v. State, 2008 WL 4724086 (Tex.Crim.App. 2008), maintained one distinction between Texas Rule of Evidence 104(b) and Federal Rule of Evidence 104(b) and eliminated another one.
"[t]he evidence in this case show[ed] that on May 26, 2003, the victim was killed in her home by a single gunshot wound to the back of her head at close range. Just before [Fischer]'s trial began, the State proffered evidence that it intended to present during its case-in-chief. The State's proffer essentially was that on June 5, 2003, employees of a Wal-Mart store where [Fischer] worked as an assistant manager discovered that the probable murder weapon (a single shot .22 caliber Cricket rifle manufactured mainly for children) went missing from the Wal-Mart store's inventory some time after May 20th or 21st of 2003, and that [Fischer] was one of as many as sixteen Wal-Mart employees with a key to the secured gun locker where this rifle was kept. [Fischer] objected to the admission of this evidence because, among other things, the State could not prove to the jury beyond a reasonable doubt that [he] 'took' the rifle. The trial court ruled that the State's proffer established that 'the extraneous [theft-of-the-rifle] offense [was] admissible beyond a reasonable doubt.'"
The Court of Appeals, however, reversed, finding that "the proffered evidence was legally insufficient to support a finding beyond a reasonable doubt that appellant committed the theft-of-the-rifle extraneous offense." This led to the state's appeal to the Texas Court of Criminal Appeals, which found that its decision was premised upon its prior opinion in Harrell v. State, 994 S.W.2d 154 (Tex.Cr.App. 1994).
The court noted that in its prior opinion in Harrell, it deviated from federal law in at least one key regard, which should be evident to those with a working knowledge of Federal Rule of Evidence 104(b). Both Federal Rule of Evidence 104(b) and Texas Rule of Evidence 104(b) deal with conditional relevance and indicate that "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." Now, according to the United States Supreme Court, when the relevance of evidence depends on the fulfillment of a conditional fact, such as Fischer's alleged theft of the rifle, that evidence shall be admitted if the judge finds that a reasonable jury could find that the conditional fact occurred by a preponderance of the evidence. See Huddleston v. United States, 495 U.S. 681 (1988). As is clear from the excerpted portions of Fischer, however, the Court of Criminal Appeals of Texas in Harrell applied a more rigorous test which only allows for admission of such evidence if the judge finds that a reasonable jury could find that the conditional fact occurred beyond a reasonable doubt.
The Court of Criminal Appeals of Texas affirmed this deviation from federal law in Fischer, so why did it nonetheless reverse the Court of Appeals' decision? Well, in Harrell, the court stated that "in deciding whether to admit extraneous offense evidence in the guilt/innocence phase of trial, the trial court must, under rule 104(b), make an initial determination at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense." And relying upon this language, the Court of Appeals focused solely on the State's proffer, ignored any evidence presented later at trial concerning the theft of the rifle, and found that the State had not satisfied the requirements of Texas Rule of Evidence 104(b).
The Court of Criminal Appeals of Texas, however, repudiated this portion of Harrell, finding that "[t]he portion of the holding in Harrell as to the timing of when the trial court must make this determination, however, is inconsistent with the 'subject to' language of rule 104(b)." I agree with this ruling because both Federal Rule of Evidence 104(b) and Texas Rule of Evidence 104(b) clearly indicate that when there is evidence whose relevance depends upon a conditional fact, "the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." (emphasis added). The "subject to" language clearly indicates that, under the rule, litigants can make a conditional relevance proffer and the judge can except it subject to the litigant later presenting "connecting up" evidence. And because the prosecution later presented such "connecting up" evidence in Fischer, the Court of Criminal Appeals of Texas properly reversed the Court of Appeals' decision.
November 5, 2008
Were You Lying Then Or Are You Lying Now?: Supreme Court Opinions Display Disparate Treatement Of Polygraph Test Results And Hypnotically Refreshed Testimony
Since I covered the right to present a defense yesterday in both my Evidence class and a blog post, I thought that I would write another post about the right to present a defense today. Recently, I read an article about a "lie detector challenge" which stated that "[p]olygraph evidence is generally inadmissible in court because, as Supreme Court Justice Clarence Thomas noted in his majority opinion in the 1998 case U.S. v. Scheffer, 'there is simply no consensus that polygraph evidence is reliable.'"
Well, that's part of it, but Scheffer was specifically focused on whether Military Rule of Evidence 707, which excludes polygraph test results in all military trials, violated an accused's right to present a defense. And why did some think that the Supremes would find a Constitutional violation? Well, in addition to certain courts finding polygraph test results admissible in certain circumstances after the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S 579 (1993), there was the Supreme Court's 1987 opinion in Rock v. Arkansas, 483 U.S. 44 (1987).
In Rock, Vicki Rock was charged with manslaughter in connection with the shooting death of her hubsand. When Vicki could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis to refresh her memory. Vicki was thereafter hypnotized by a neuropsychologist and subsequently "recalled" that she had a gun in her hand that accidentally discharged when her husband grabbed her arm during a struggle. At trial, however, based upon the prosecution's motion, the court only allowed Vicki to testify concerning what she remembered before she was hypnotized because it "decided to follow the approach of States that ha[d] held hypnotically refreshed testimony of witnesses inadmissible per se."
The Supreme Court, however, found that this violated Vicki's right to present a defense, relying in part on its previous opinion in Washington v. Texas, 388 U.S. 14 (1967), in which it had held that Texas statutes precluding a charged or convicted coparticipant from testifying on behalf of another alleged coconspirator on the ground that application of these statutes "arbitrarily denied [the defendant] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense." The Court then analogized (and relied upon its opinion in Chambers v. Mississippi, 410 U.S. 284 (1973)), in finding that:
"Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony."
The Court then found that Arkansas' per se rule was arbitrary, but, as is often the case when the defendant asserts that his right to present a defense was violated, it could only reach this conclusion by finding that hypnotically refreshed testimony can be or can be made sufficiently reliable. And the problem acknowledged by the Court was that "[t]he use of hypnosis in criminal investigations...is controversial, and the current medical and legal view of its appropriate role is unsettled." So, how did the Court find Arkansas' per se rule to be arbitrary? Well, it found that
"The inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards. One set of suggested guidelines calls for hypnosis to be performed only by a psychologist or psychiatrist with special training in its use and who is independent of the investigation....These procedures reduce the possibility that biases will be communicated to the hypersuggestive subject by the hypnotist. Suggestion will be less likely also if the hypnosis is conducted in a neutral setting with no one present but the hypnotist and the subject. Tape or video recording of all interrogations, before, during, and after hypnosis, can help reveal if leading questions were asked.... Such guidelines do not guarantee the accuracy of the testimony, because they cannot control the subject's own motivations or any tendency to confabulate, but they do provide a means of controlling overt suggestions.
The more traditional means of assessing accuracy of testimony also remain applicable in the case of a previously hypnotized defendant. Certain information recalled as a result of hypnosis may be verified as highly accurate by corroborating evidence. Cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies. Moreover, a jury can be educated to the risks of hypnosis through expert testimony and cautionary instructions. Indeed, it is probably to a defendant's advantage to establish carefully the extent of his memory prior to hypnosis, in order to minimize the decrease in credibility the procedure might introduce.
We are not now prepared to endorse without qualifications the use of hypnosis as an investigative tool; scientific understanding of the phenomenon and of the means to control the effects of hypnosis is still in its infancy. Arkansas, however, has not justified the exclusion of all of a defendant's testimony that the defendant is unable to prove to be the product of prehypnosis memory."
So, based upon this, you can see why Edward G. Scheffer thought that he had a good chance of success when he claimed that Military Rule of Evidence 707 violated his right to present a defense. After all, aren't polygraph results at least as reliable as hypnotically refreshed testimony, can't polygraph results be verified by corroborating evidence, can't cross-examination undercut polygraph results, and can't judges issue jury instructions about the fallibility of polygraph results?
Well, not according to the Court, which, as noted, found that 'there is simply no consensus that polygraph evidence is reliable.'" Now, admittedly, there were other aspects of the opinion and different justices deciding the two cases, but, as things stand, the Supreme Court has basically said that hypnotically refreshed testimony can be reliable enough to make a per se rule mandating its exclusion arbitrary while polygraph test results are so unreliable that a similar per se rule proscribing their introduction is justified. Do most readers think that this distinction makes sense?
November 4, 2008
Tomorrow I Head Off To The AALS Faculty Recruitment Conference
Tomorrow, I am headed out to the annual AALS Faculty Recruitment Conference as part of the team for the John Marshall Law School. If any professors or candidates want to talk about the blog, guest blogging, teaching techniques, works in progress, or anything else, I will alternately be interviewing candidiates in Room 4085 and working on a short essay on the attorney-client privilege. I also plan on attending the reception on Friday night. So, if you're a reader interested in shooting the breeze, just look for the 6'4" guy with the buzz cut and glasses.
Compulsion: Court Finds Failure To Execute Body Attachment Violated Defendant's Rights Under The Compulsory Process Clause
The Sixth Amendment states that:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
Of course there is manifold precedent concerning the right to a speedy trial, the right to an impartial jury, the right to confront witnesses, and the right to assistance of counsel. But what about the right to compulsory process? Well, for almost two centuries, it was thought that the Compulsory Process Clause merely afforded criminal defendants mechanical rights such as the right to (1) subpoena witnesses, (2) obtain writs of attachment or bench warrants, and (3) obtain continuances if witness failed to appear. Then, starting with Washington v. Texas, 388 U.S. 14 (1967), the Supreme Court began reading more protections into the Clause, which it now reads as "guarantee[ing] criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683 (1987).
Most of the interesting case law on the Compulsory Process Clause involves this right to present a defense, but the recent opinion of the Court of Appeal of California in People v. Mitchell, 2008 WL 4694970 (Cal.App. 2 Dist. 2008), actually involves the mechanical rights it contains. In Mitchell, Long Beach Police Officer Yun Kim detained Elwood Mitchell because he allegedly saw him throw a cigarette on the ground. After Mitchell admitted that he was on parole, Kim patted him down and found three rocks of what appeared to be cocaine base and a charred glass pipe that could be used to smoke rock cocaine.
Mitchell was charged with cocaine possession and thereafter moved to suppress the evidence on the ground that Kim illegally detained him. At the hearing on the motion, Kim testified that he stopped Jeffrey Towner for jaywalking and that, during Towner's detention, he saw Mitchell, who was walking with a woman, throw a lit cigarette on the ground. Kim then detained Mitchell, asked him if he was on probation or parole, and Mitchell admitted he was on parole. After verifying that Mitchell was on parole and subject to a search condition, he patted Mitchell down and discovered the cocaine base and pipe
Meanwhile, Jeffrey Towner testified that he saw his girlfriend and was crossing the street to meet her when a police officer stopped him for jaywalking. Towner did not recall whether Mitchell had a cigarette and did not see him drop one. Additionally, Angela Dean testified that Mitchell was her "common law husband" of more than 17 years and that she had never seen him smoke or possess cigarettes.
Finally, Mitchell informed the court that he had subpoenaed Maria Jones to testify at the suppression hearing, but she was not present. The court found that Mitchell's subpoena was "in order" and offered to issue a body attachment for her. Defense counsel asked to wait a few days, and the court continued the suppression hearing. The court apparently then issued the attachment. It appears that, however, the Long Beach Sheriff's Department never executed the body attachment, and a judge informed the department that it did not need to appear at subsequent hearings in Mitchell's case to explain its behavior.
At one of these hearings, however, the judge asked Mitchell for an offer of proof regarding Maria Jones' proposed testimony, and defense counsel replied, inter alia,
"I expect her to say that she was walking to the particular liquor store the same night that my client was arrested. She was going to meet her boyfriend after walking to the liquor store on the same corner on Pacific Coast Highway.... [S]he's going to say that she was waking [ sic ] in the same direction on the same street as Mr. Mitchell, that he was not smoking a cigarette, and he did not litter a cigarette, and the police came up and immediately detained him. Since littering a cigarette is the probable cause in this case, her testimony very well may be material . Now, to be completely candid with this court, Mr. [Towner] and Miss Jones ... have never been cooperative with the defense.... And Miss Jones first told the defense investigator that they didn't remember the incident at all. However, we subpoenaed them anyway because we knew they were present and we thought they were being uncooperative."
The judge, however, concluded, "What you've told the court so far is she's not a material witness because from what I understand, you're saying she is indicating she doesn't remember the incident." Mitchell then testified similarly, but the judge did not believe Mitchell and denied his motion to suppress, leading to his conviction.
On his appeal, however, the Court of Appeals of California reversed, finding that Mitchell's rights under California's counterpart to the Compulsory Process Clause, were violated by the failure to execute the body attachment. The court then found that this error was not harmless and that Jones was "material" because
"While neither [Mitchell] nor anyone else could guarantee how Jones would testify if compelled to appear in court and put under oath, [Mitchell]'s offer of proof and testimony established at least a reasonable possibility that Jones could have given material and favorable testimony."
Mitchell seems to fall right into the Compulsory Process Clause' wheelhouse, and I thus agree with the court's opinion.
November 3, 2008
It Was A Privilege? Court of Appeals Of Texas Finds Party Failed To Plead Trade Secrets Privilege
The recent opinion of the Court of Appeals of Texas in In re: Union Energy, Inc., Gulf Exploration, Inc. and MC2 Resources, LLC, Relators, 2008 WL 4757008 (Tex.App.-Tyler 2008), reveals that a privilege is worthless if a party doesn't plead it. In Union Energy, Real Parties filed suit against MC2 Resources, LLC (collectively “Relators”) in Smith County, Texas seeking damages under various legal theories, including breach of contract, fraud, negligent misrepresentation, alter ego, and vicarious liability. Real Parties subsequently served Relators with a request for production of documents and tangible items, including a request for production of Union Energy, Inc.'s stock register. In response, Relators objected that the request sought documents that were not relevant and not reasonably calculated to lead to the discovery of admissible evidence and, further, that the discovery requested "invade[d] the personal, constitutional, or property rights of Defendants which is impermissible under TEX.R.CIV.P. 192.6(b)."
Thereafter, Real Parties filed a motion to compel, and there was no indication in Real Parties' motion to compel that they were aware that Relators were asserting any privilege with regard to the stock register. In response to the motion, Relators stated, in pertinent part, as follows:
"[P]laintiff's discovery request invades defendants' shareholders' privacy interests[ ] because it would require defendants to publicly disclose the identities of those owning interests in privately-held entities. Defendants' shareholders are highly concerned about disclosure of their identities. This information would not only be available for plaintiff to use to harass defendants' shareholders, but also for any member of the public to solicit after reviewing the information in the Court's records. Therefore, the Court should sustain Defendants' objection that the disclosure of such information would include Defendants' personal rights under TEX.R.CIV.P. 192.6(b)."
Thereafter, the trial court conducted a hearing on Real Parties' motion to compel, during which neither party uttered the words "privilege" or "trade secret." Following the hearing, the trial court entered an order compelling Union Energy to produce its stock register to Real Parties. Consequently, the Relators filed a petition for writ of mandamus as well as a motion for emergency relief with the Court of Appeals of Texas.
And the Relators raised a new argument before the Court of Appeals of Texas, the argument being that the stock register was privileged under Texas Rule of Evidence 507, its trade secrets privilege, which states that:
"A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require."
According to the Court of Appeals, however, it did not even need to reach the merits of this argument because:
"The party seeking protection of information by a claim of privilege has the burden to plead and prove the applicable privilege....There is no presumption that documents are privileged....To meet its burden, the party claiming the privilege must first assert the privilege....In the instant case, in their response to Real Parties' request for production of documents, Relators made no claim of privilege."
I agree with the court's opinion, and it provides an important lesson for all litigants: If you have a privilege, you must assert it.
November 2, 2008
Ten Years Have Got Behind You: Court Of Appeals Of Texas Ignores Plain Text Of Its Felony Impeachment Rules In DWI Appeal
The recent opinion of the Court of Appeals of Texas in Myers v. State, 2008 WL 4722974 (Tex.App.-Amarillo 2008), is yet another indication of how courts have played fast and loose with the rules regarding felony impeachment. In Myers, George Myers appealed from his conviction of driving while intoxicated and the resulting sentence of 180 days in county jail and a $1,000 fine. Myers testified in his defense at his trial, and the prosecution thereafter impeached him through his prior convictions: a 1982 conviction for burglary of a vehicle and a 1988 conviction for burglary of a habitation.
On appeal, Myers claimed, inter alia, that the trial court erred in allowing him to be impeached through the 1982 conviction. The Court of Appeals disagreed, finding that it was admissible under Texas Rule of Evidence 609(a), which states that:
"For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party."
But what about Texas Rule of Evidence 609(b)? That Rule states that:
"Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."
Well, according to the Court of Appeals, Texas "case law holds that a remote prior conviction may be treated as less than ten years old if, during the intervening period, the witness has been convicted of a felony or a misdemeanor involving moral turpitude, indicating the witness had not reformed following the remote conviction... In such an instance, the remote conviction may be admitted for impeachment purposes under the general rule of 609(a) rather than the more stringent standard under Rule 609(b)."
Therefore, according to the court, Myers' 1988 burglary of a habitation conviction "'remove[d] the taint of ... distance,' allowing the 1982 conviction to be treated as 'not remote....' Admissibility of both appellant's prior convictions for impeachment purposes was governed by the general rule under 609(a).
To me, this seems like a fairly remarkable conclusion (not in a good way), and one that finds no basis in Texas Rule of Evidence 609(b). Of course, this shouldn't come as a surprise because, as I note in my forthcoming article, Impeachable Offenses?, courts have ignored virtually every subsection of their felony impeachment rules. That said, Texas courts have probably been the worst, especially with regard to the ten year time limit, and Myers is merely the latest in a long line of improperly decided cases.