November 29, 2008
Hypothetically Speaking: Court Of Appeals Confirms Convictions Because Trial Judge Supplemented Incomplete Expert Hypothetical
The recent opinion of the Court of Appeals of Mississippi in Teston v. State, 2008 WL 4914960 (Miss.App. 2008), gives me my first opportunity on this blog to address an issue I recently taught in my Evidence class: the posing of hypotheticals to expert witnesses. And what the case shows is the critical role the trial judge can play in ensuring that their use does not result in a verdict that can be challenged on appeal.
In Teston, Krystal Marie Teston was convicted of three counts of driving under the influence and negligently causing death to another and one count of driving under the influence and negligently causing serious injury to another. The facts giving rise to the case against Teston were as follows:
"On September 10, 2004, five college students in an SUV were traveling east on Interstate 10 in Biloxi, Mississippi. The driver of a black Honda, who was later identified as Teston, was also traveling east on I-10. [Teston] swerved into the path of the SUV. When the black Honda veered in front of the SUV, the driver of the SUV lost control of the vehicle, which crashed into the concrete median and flipped over....Three of the passengers-Lindsay Miller, Maksim Sisoev, and Beth Finch-were killed in the accident. Joshua Miller, the fourth passenger, was severely injured, and Nicole Thurman, the fifth passenger, received minor injuries."
Thereafter, Officer Wesley Brantley of the Biloxi Police Department arrived at the scene of the accident and spoke to Teston. At Teston's trial, Officer Brantley testified that his initial contact with Teston was very brief and that she did not appear to be impaired. According to Brantley, during this first contact, Teston identified herself as the driver of the black Honda and told Officer Brantley that she witnessed the accident, but she did not mention her involvement in the accident.
Brantely also claimed at trial, however, that he went to speak to Teston for a second time about 60 minutes later and noticed that her speech was slurred, she was mumbling and confused, and her eyes were dilated and glassy. Brantley testified that he believed that Teston was impaired but that he did not smell any alcohol on her breath.
Based upon the testimony of Brantley and other witnesses, the prosecution posed a hypothetical to Dr. Barbieri, its State's expert witness, which led Dr. Barbieri to conclude that Teston was impaired at the time of the accident. So, how does a party use an expert hypothetical at trial? Well, basically, at trial, an attorney tells the expert witness to assume certain facts and asks for his opinion based upon those assumptions.
Now, unfortunately, the Teston opinion does not mention the facts that the prosecutor asked Dr. Barbieri to assume, but it is clear that he failed to ask him to assume that Brantley did not not any signs of Teston being intoxicated when he first talked to her. Luckily for the prosecution, the court stepped in after Dr. Barbieri gave his initial conclusion, leading to the following exchange:
THE COURT: Dr. Barbieri, assuming in addition to those characteristics [the State] gave to you as part of this hypothetical, you also considered that within minutes of the accident one of the officers identified Ms. Teston as a potential witness, had a conversation with her about whether or not she observed the accident and has testified that he did not at that time observe any of the impaired conditions which he observed some 50 minutes later, being slurred speech, mumbling, confusion, etc., would that change your opinion?
DR. BARBIERI: Well, that would tend to indicate that either he misrepresented or misobserved [sic] the first time or something happened in that interval.
THE COURT: Would it change your opinion?
DR. BARBIERI: It would only-it would not change my opinion
THE COURT: All right. Subject to that objection, [defense counsel], I'm going to allow the testimony."
If an expert hypothetical is not complete and accurate, it can lead to reversal, so Teston teaches us two important lessons. First, if you are going to use expert hypotheticals, make sure that they are complete and accurate. And second, you need to hope that you have a trial judge as alert as the judge in Teston, who will fill in the blanks.
November 28, 2008
In Need Of A Refresher: Seventh Circuit Confuses Recorded Recollection Rule With Refreshing Recollection Rule
The recent opinion of the Seventh Circuit in United States v. Tatum, 2008 WL 4964796 (7th Cir. 2008), is the latest illustration of a court confusing the recorded recollection exception to the rule against hearsay and the rule governing the use of writings to refresh a witness' recollection.
In Tatum, Exie Tatum was convicted of various drug and weapons charges. And part of the evidence used to convict him was the foundation testimony of Milwaukee Police Department (MPD) Officer Michael Capati, which the prosecution used to admit evidence of baggies of cocaine recovered from Tatum. Capati testified that he was the booking officer at the MPD's downtown administration building on the night of Tatum's arrest and that he was in charge of searching male prisoners and "bagging" property recovered from them.
Capati testified that he recovered from Tatum's left pajama pocket a clear plastic baggie, which he passed off to the detective or officer responsible for the arrest (it was later determined that the baggie contained cocaine). However, on cross-examination, Capati admitted that he reviewed another officer's report prior to testifying and, while he recalled that Tatum was wearing pajamas underneath his pants, he had no independent recollection of recovering the drugs from Tatum.
After Tatum was convicted, he appealed, claiming that the prosecution failed to lay a proper foundation for admission of the baggies of cocaine because, inter alia, Capati needed to review the other officer's report and had no independent recollection of recovering the drugs from Tatum. The Seventh Circuit, however, found that this argument was without merit because "the government was entitled to refresh his recollection during his testimony with the inventory sheet that he prepared at the time of the incident. See Fed.R.Evid. 803(5)."
While the Seventh Circuit's decision correct, its reasoning was faulty. Federal Rule of Evidence 803(5), the recorded recollection exception to the rule against hearsay, states that:
"A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party."
The facts of Tatum clearly indicate that Capati "reviewed another officer's report," so Rule 803(5) could not have applied because presumably Capati didn't make or adopt the other officer's report. But, as is also clear from Tatum, the prosecution did not have Capati read the report into evidence, meaning that neither hearsay nor Rule 803(5) were in issue. Instead, it merely used the report to refresh his recollection and then independently testify, which is perfectly permissible under Federal Rule of Evidence 612.
November 27, 2008
Extrasensory Impression: Court Finds That Student Complaints About Thanksgiving/Christmas/St. Patrick's Day Posters Were Inadmissible Hearsay
The recent opinion of the United States District Court for the Southern District of New York in Menes v. City University of New York Hunter College, 2008 WL 4349439 (S.D.N.Y. 2008), contains a nice description of the limitations of the present sense impression exception to the rule against hearsay. In Menes, college accountant Herman Menes brought an action against his employer, Hunter College, and six individuals also employed by Hunter College, alleging, inter alia, that various "religious displays" in the college's bursar's office constituted a governmental endorsement of religion in violation of the Establishment Clause of the First Amendment.
Specifically, Menes claimed among other things that his former supervisor, Tom Crowfis,
"hung up 'religious posters' 'all over' the area immediately outside the Bursar's Office....These posters were allegedly displayed around St. Patrick's Day, Thanksgiving, and Christmas....While [Menes] provide[d] almost no details about these posters, he recall[ed] that they included 'images' and 'writing...,' that they had a 'Christian religious tone and message...,' and that there was 'no doubt that they were Christian religious displays.'"
(As I side note, I wonder how the Thanksgiving posters had a Christian religious tone and message. I know that the Pilgrims were Christians, but I don't really think of Thanksgiving as a Christian holiday. Maybe the posters praised Jesus like a poster addressed by the Third Circuit when Alito was a judge).
Menes also claimed that Crowfis improperly displayed religious figurines and Christmas trees. The court, however, granted Hunter College's motion for summary judgment dismissing the complaint after refusing to allow Menes to present evidence concerning students who allegedly "complained about the figurines as they walked past the office window, then entered the Bursar's Office and complained about the figurines, the posters, and the Christmas tree." Menes had claimed that these students said that they were Jewish and asked "Where are the Jewish displays?"
Hunter College, however, successfully argued that these complaints were inadmissible hearsay. In accepting this argument, the court noted that Menes had contended that the students' statements were admissible as present sense impressions" under Federal Rule of Evidence 803(1), which provides an exception to the rule against hearsay for "statement[s] describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."
The court, however, rejection this contention, concluding that:
"This exception 'applies only to reports of what the declarant has actually observed through the senses....' A student's opinion that the displays at issue constituted an endorsement of Christianity does not report a sensory perception or observation but rather the student's own interpretation of these observations."
I agree with the analysis behind this conclusion and also think that it explains why the complaints would have been inadmissible under the state of mind exception to the rule against hearsay, which "is essentially a specialized application of [the present sense impression exception], presented separately to enhance its usefulness and accessibility."
November 26, 2008
Efficient Solution Or 3 Ring Circus?: Brooklyn Cop Killing Case Being Heard By 3 Revolving Juries
Last month, I wrote a post about a California trial involving two defendants with some evidence only being admissible against one defendant and other evidence only being admissible against the other defendant. And the way in which the court solved this logistical problem was to have separate juries for each defendant and to rotate jury 1 out when evidence was presented that was inadmissible against its defendant and rotate jury 2 out when evidence was presented that was inadmissible against its defendant. As I noted in that post, the benefit of such a technique is that it leads to efficiency for the court , the litigants, and the witnesses.
The problem, as I noted to my Evidence students when they asked why the technique is not used more, is that the logistical solution can turn into a logistical nightmare, and there is the ever-present danger than an attorney or witness will reference previous evidence/testimony from trial that was only heard by one jury when both juries are present.
Not having any personal experience with this type of two jury trial, it would be my guess that the benefits outweigh the burdens, but I'm not sure that the same applies when you have 3 defendant and 3 juries. That's the situation currently faced by a court in Brooklyn.
Prosecutors in Brooklyn charged Dexter Bostic, 36, Lee Woods, 30, and Robert Ellis, 35, with murder in the first degree in the death of 23-year-old police officer Russel Timoshenko, on the theory that the trio worked as a team when they killed Timoshenko. The prosecution's theory is that Woods was driving a stolen SUV with Bostic and Ellis when he was pulled over by Timoshenko and his partner. According to the prosecution, Bostic then shot Timoshenko, and Ellis shot Timoshenko’s partner, who was hit in the chest and survived thanks to a bullet-resistant vest.
Conversely, Ellis’ attorney has contended that Ellis was the driver and argued that DNA tests on pieces of fried chicken left on the driver’s side in the front seat would prove Ellis had been driving. Unfortunately, this chicken, which appeared in crime scene photos, was apparently not collected as evidence.
Meanwhile, a recent witness for the prosecution, an acquaintance of the trio, said she was present during their conversations and that Woods had said he did not shoot anyone. But, Ellis' attorney claimed that the witness, whose aunt had been romantically involved with Woods, was lying to protect him.
If that allegation is true, the witness apparently wouldn't be the first person to fall under Woods' spell. Woods has been described as a "charismatic" figure, especially after two Rikers Island guards were fired for providing him with marijuana and alcohol, the day after Woods set off a metal detector for allegedly swallowing a handcuff key. Moreover, a female prison guard was transferred after surveillance footage showed her taking Woods out of his cell and into the showers, where they allegedly had sex.
Yes, this trial seems to have everything, that is, except for any "direct testimony or surveillance footage that can confirm who was sitting in the vehicle and who pulled the triggers on the two guns." And that everything includes 3 separate juries, with "[a] fair amount of time in the courtroom [being] spent shuffling the juries back and forth into the back rooms." I would like to think that the trial will end well, but it seems to me that hung juries or mistrials are likelier than final verdicts.
November 25, 2008
The Giant(s) Of Illinois: Supreme Court Of Illinois Forms Special Committee To Create Illinois Rules Of Evidence
As I have noted on a few occasions (here, here, and here), Illinois does not currently have codified rules of evidence, which has created serious problems because case law is inconsistent, rendering judges uncertain about how to make evidentiary rulings. As I noted this summer, in a post about an Illinois case dealing with the statement against interest exception to the rule against hearsay,
"the state of the law is so unsettled that litigants can't really know what to expect in cases where they seek to admit or exclude statements against interest. All of which makes incoming Illinois Supreme Court Chief Justice Thomas R. Fitzgerald's claim that he is going to 'try to do something with possibly codifying the law of evidence in Illinois' of supreme importance."
Yesterday, Chief Justice Fitzgerald took a giant step toward fulfilling that promise when the Illinois Supreme Court announced the formation of a Special Committee on Illinois Evidence with the aim of codifying existing evidentiary law so that it is available in a single source. The Special Committee, appointed by the Supreme Court, is composed of a blue ribbon roster of judges, practitioners, law professors and state legislators.
I don't know any of the judges, practitioners, or state legislators well enough to be able to say what they will be able to bring to the table. Conversely, one of the Special Committee members is my colleague, Ralph Ruebner, who will also serve as Reporter, and whom I am sure will do a bang up job based upon his expertise in evidence law. Also, University of Miami School of Law Professor Michael Graham will serve as an advisor to the Special Committee, and, while I don't know him personally, I have read a good deal of his scholarship, and it is clear to me that he is one of the most knowledgeable evidence authorities in the country (he has also served as the author of Cleary & Graham’s "The Handbook of Illinois Evidence.").
According to Chief Justice Fitzgerald, "The function of this project is to codify existing law, which is presently contained in state statutes, Supreme Court rules and the common law....Having the rules of evidence in a single location would be of enormous value to the practitioner." It is a worthy goal, and one which I expect to be achieved with flying colors based upon the talent involved.
(Hat tip to my colleague Mark Wojcik)
November 24, 2008
Available For A Limited Time: Court Of Appeals Of Texas Finds Trial Court Made Erroneous Former Testimony Ruling
The recent opinion of the Court of Appeals of Texas in Loun v. State, 2008 WL 4937833 (Tex.App.-Texarkana 2008), provides a nice explanation of when a declarant is "available" for hearsay purposes.
In Loun, Michael Alan Loun appealed from his conviction for murder while under the immediate influence of sudden passion. The victim, Jack Edward LaPelley, III, knocked on the door of the apartment of Loun's girlfriend, Jodi Clark, and demanded entry. Five persons were present in the apartment including Loun, Rashaan Roberson, and Miranda Fancher, LaPelley's girlfriend. LaPelley, who was intoxicated, wanted to talk with Fancher, and because LaPelley had a history of physically abusing Fancher, Clark assumed Fancher would not want to talk with him.
After telling LaPelley to leave through the closed and locked door, Clark then opened the door a crack and LaPelley forced his way into the apartment. Loun ordered LaPelley to leave, but LaPelley refused, and Loun pointed a gun at him and demanded that he leave. LaPelley responded by unsuccessfully attempting to slap the gun out of Loun's hand. When Loun recovered his balance, he shot LaPelley three times, leading to him being indicted for murder.
While Loun's first trial resulted in a hung jury, his second trial resulted in a unanimous verdict finding Loun guilty, but the jurors were unable to agree on punishment. The trial court thus declared a mistrial on punishment only, and, after a third trial, the jury found Loun acted under the immediate influence of sudden passion and assessed a sentence of ten years.
During that third trial, the prosecution presented the recorded testimony of Roberson, who had testified before the third trial, inter alia, that he did not believe LaPelley was a threat to anyone in the apartment. Roberson was a sailor from Maine, and the prosecution presented his recorded testimony under Texas Rule of Evidence 804(b)(1), the former testimony exception to the rule against hearsay.
The third trial's transcript reveals that his testimony was introduced as follows:
"[Defense Counsel]: Your Honor, under 804 hearsay exceptions, without them bringing a witness they have to prove that declarant is unavailable which has not been proven in this case. That is why we are saying the testimony be excluded based on hearsay.
[Prosecutor Biggs]: Your Honor, the witness is unavailable. County can't pay for him to come back down here from Maine again. He's got prior recorded testimony.
THE COURT: Oh, this is the sailor?
[Prosecutor Atkinson]: This is Rashaan Roberson.
[Defense Counsel]: That is not one of the reasons that the county cannot pay for.
[Prosecutor Atkinson]: I don't think that prior recorded testimony requires unavailability of the declarant.
[Defense Counsel]: Rule of evidence 804B.
THE COURT: Kind of an unusual situation is that witness has testified, has been subject to cross-examination of this case. The trouble is he wasn't subject to physical appearance before this jury. Objection is going to be overruled. I sure hope the State thinks it's on safe ground."
Unfortunately for the judge, his ruling was more of a bridge over troubled water, resulting in Loun's appeal. Defense counsel was correct that for testimony to be admitted under a Rule 804(b) hearsay exception, the proponent must first prove that the declarant is "unavailable" under Rule 804(a). And the only way that Roberson might have been deemed "unavailable" was under Texas Rule of Evidence 804(a)(5), which states that a declarant is "unavailable" when he "is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means."
The problem for the State was that to establish unavailability under this Rule, it had to:
"make some good-faith efforts to produce the witness at trial or to show any efforts would be futile. The State's only explanations in this case were 1) it would be too expensive and 2) the incorrect legal conclusion the State had 'no way to procure his attendance.' The State argues, even though there is no evidence it attempted to subpoena Roberson, it should not be required to perform a useless act because, according to the State, a subpoena does not reach across state lines. We note the State 'is not required to engage in clearly futile activities before a trial court can, in its discretion, determine that the State made good-faith efforts to produce a witness at trial....' Compulsory process for a witness located outside of Texas can be obtained under the 'Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings....' The record does not contain any evidence that attempting compulsory process in this case would be futile. Because there is no evidence of any good-faith efforts, the State failed to show it made good-faith efforts to secure Roberson's presence."
November 23, 2008
Nobody's Perfect: Judge Finds Newspaper Article Mentioning Inadmissible Evidence Is Insufficient To Award New Trial In Real Estate Killing
Like the protagonist in Nathaniel Hawthorne's "The Birthmark," the American justice system is ill-advised to demand perfection. I would say, however, that a recent trial in California was closer to a perfect storm than perfection.
In that case, Michael Ray Jennison was convicted of second-degree murder in the death of James Magot, a real estate agent. There was no dispute at trial that Jennison shot Magot twice in the head during an argument about the sale of a condominium that Jennison had inherited from his grandmother. Instead, Jennison's argument was that he should only be convicted of voluntary manslaughter because he had psychological issues that rendered him incapable of handling stressful real estate negotiations.
Pursuant to California Penal Code Section 192, "[m]anslaughter is the unlawful killing of a human being without malice," and one time of manslaughter is voluntary manslaughter, which is a killing based "upon a sudden quarrel or heat of passion." So, Jennison's theory of the case was that his quarrel with Magot caused him to snap and shoot him, which should have resulted in a voluntary manslaughter conviction, not a second-degree murder conviction.
Jurors disagreed with his theory, and a juror who came forward after trial provided at least a partial explanation. According to that juror, "several hours before they convicted his client, jurors read an article in the San Diego Union-Tribune that said the defendant had guns, ammunition and cash in his car when he was arrested in Arizona." This evidence, however, had been declared inadmissible at trial."
Jennison's attorney thus moved for a new trial. Now if this case were heard under the Federal Rules of Evidence or most state counterparts, the juror's statements would have been admissible despite the general proscription on jury impeachment because the news story was extraneous prejudicial information. California Evidence Code Section 1150, however, generally allows juror impeachment, so there was certainly nothing preventing jury impeachment.
The problem, though, was that Judge Allan Preckel denied the motion for a new trial, concluding that while he wished the newspaper article had never found its way into the hands of jurors, the law merely calls for trials with "fundamental fairness" instead of "perfection."
So, what do readers think? It seems to me that the newspaper article could have been fatal to Jennison's argument that he was merely guilty of voluntary manslaughter and that, at a minimum, he likely suffered "substantial prejudice" as a result of the jury's exposure to the extraneous information."