EvidenceProf Blog

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

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Saturday, December 6, 2008

Justice, Texas-Style: Court Of Appeals Of Texas Makes Correct Evidentiary Rulings But Baffling Harmless Error Conclusion In Assault Appeal

The recent opinion of the Court of Appeals of Texas in Aguilar v. State, 2008 WL 5058974 (Tex.App.-Houston 2008), reveals two important, and yet oft-ignored, aspects of most rules of evidence:  (1) a party cannot call a witness for the sole purpose of impeaching him or her, and (2) for the past recollection recorded hearsay exception to apply, the declarant must vouch for the accuracy of the statement at issue.  It also contains a hard to swallow dose of Texas style justice.

In Aguilar, Amado H. Aguilar appealed from his conviction for aggravated assault with a deadly weapon based upon his alleged assault of Christopher Luhan.  And part of the evidence used to convict him was a statement that Clifton Mancias made to Eagle Lake police officer Steve Nelson; according to Mancias, Aguilar told him that he had shot Luhan.  Mancias, however, did not make this claim at trial. 

Instead, when the prosecution called Mancias to testify about the prior statement, Aguilar objected because he suspected that Mancias did not remember giving the statement to police and believed that the prosecution's sole purpose for calling Mancias was to impeach him with his prior statement.  And his suspicions were well founded because, at a hearing outside the presence of the jury, Mancias testified that he had no memory of giving an oral or written statement to the police.  The prosecution, however, requested to call Mancias to "impeach him with his statements," and the trial court overruled Aguilar's objection and permitted Mancias to testify, followed by Officer Nelson's testimony that he took a statement from Mancias in which he stated that Aguilar told Mancias that he had shot Luhan.

On appeal, Aguilar claimed, inter alia, that Mancias' statement to Nelson was improperly admitted, and the Court of Appeals began by noting that, under Texas Rule of Evidence 607, "[t]he credibility of a witness may be attacked by any party, including the party calling the witness."  However, the court also found (and most courts have found at least somewhat similarly) that a party "cannot call a witness that it knows will testify unfavorably for the sole purpose of impeaching that witness with otherwise inadmissible hearsay."

Thus, Mancias' prior statement was improperly admitted because "the State learned during the hearing outside the presence of the jury that Mancias did not remember making a statement to the police. Further, Mancias gave no favorable testimony to the State, nor did the State expect that Mancias would give favorable testimony."

The prosecution, however, tried to get around this conundrum by arguing that Mancias' statement to Nelson was not inadmissible hearsay but instead a recorded recollection under Texas Rule of Evidence 803(5), which provides an exception to the rule against hearsay for:

     "[a] memorandum or record concerning a matter about which a witness once had personal 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, unless the circumstances of preparation cast doubt on the document's trustworthiness."

According to the court,

     "[t]he predicate for past recollection recorded is set forth in Rule 803(5) and requires that four elements be met: (1) the witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum."

The problem for the prosecution was that:

     "Mancias did not vouch for the accuracy of the statement. When asked whether he remembered making the statement, Mancias responded that he did not remember making the statement, nor did he remember signing the statement. Mancias acknowledged that the statement was signed by 'Indigo Night Wolf,' which is his nickname, but testified that he never signs official documents with his nickname. Therefore, the State failed to meet the fourth criterion for admissibility as a past recollection recorded." (And I would argue that it failed the second criterion as well).

So, Aguilar won his appeal, right?  Well, actually, the Court of Appeals found the trial court's error to be harmless.  And how did it reach this conclusion?  Was there forensic evidence supporting the conviction?  Did eyewitnesses testify?  Did other people hear Aguilar confess?  No, no, and no.  Instead, according to the court,

     "At trial, Luhan testified that [Aguilar] shot him. Further, Officer David Wiese, an officer who responded to the scene of the shooting, testified that he asked Luhan who shot him and Luhan identified [Aguilar]. Therefore, the court admitted the only damaging evidence from Mancias' statement, that appellant shot Luhan, through other sources. Because the same evidence was admitted without objection, the error is harmless."

Really?  So, the trial court's error in admitting evidence of Aguilar's alleged confession was harmless solely because the victim identified him twice?  Is the Court of Appeals really saying that a victim's identification of the defendant as his assailant is the same as the defendant's confession to the crime?  It looks to me as if this is a clear case where the Court of Criminal Appeals of Texas needs to reverse and order a new trial.

-CM

December 6, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2008

Easier Rhode To Admissibility: Murder Appeal Reveals Differences Between Federal And Rhode Island Rules Of Evidence On Conviction Impeachment

The recent opinion of the Supreme Court of Rhode Island in State v. Gillespie, 2008 WL 5089111 (RI. 2008), reveals that: (1) unlike Federal Rule of Evidence 609(a), Rhode Island's counterpart allows for impeachment through evidence of convictions for misdemeanor crimes not involving dishonesty or false statement; and (2) unlike Federal Rule of Evidence 609(b), Rhode Island Rule of Evidence 609(b) does not flip the Rule 403 balancing test for convictions that are more than ten years old.

In Gillespie, Clyde Gillespie appealed his convictions for the second-degree murder of Betty Sue Woods and for failing to report a death with the intention of concealing a crime.  After he was convicted, Gillespie appealed, claiming, inter alia, that the trial judge improperly refused to allow him to impeach Betty Sue's sister, Estelle, a witness for the prosecution, through evidence of her 1989 conviction for loitering for indecent purposes.

If Gillespie's case were being heard under the Federal Rules of Evidence, his claim would have been completely without merit because loitering for indecent purposes is a misdemeanor crime under G.L. 1956 Section 11-34-8 in that it is only punishable by "imprisonment for a term of not more than one year, or a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), or both."  And under Federal Rule of Evidence 609(a), witnesses can only be impeached through (1) felony convictions, or (2) felony or misdemeanor convictions for crimes involving dishonesty or false statement.  Because Estelle's conviction was a misdemeanor and not for a crime involving dishonesty or false statement, it would have been per se inadmissible under the Federal Rules.

Conversely, under Rhode Island Rule of Evidence 609,

     "(a) General Rule. 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. “Convicted of a crime” includes (1) pleas of guilty, (2) pleas of nolo contendere followed by a sentence (i.e. fine or imprisonment), whether or not suspended and (3) adjudications of guilt.

     (b) Discretion. Evidence of a conviction under this rule is not admissible if the court determines that its prejudicial effect substantially outweighs the probative value of the conviction. If 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, or if the conviction is for a misdemeanor not involving dishonesty or false statement, the proponent of such evidence shall make an offer of proof out of the hearing of the jury so that the adverse party shall have a fair opportunity to contest the use of such evidence."

As the Rule clearly indicates, witnesses in Rhode Island may be impeached through misdemeanor convictions not involving dishonesty or false statement although an offer of proof must be made outside the hearing of the jury.  As the Rule also makes clear, Rhode Island doesn't flip the Rule 403 balancing test for convictions that are more than ten years old.  While under Rule 403 evidence is generally admissible as long as its probative value is not substantially outweighed by considerations such as the danger of unfair prejudice, Federal Rule of Evidence 609(b) states in relevant part 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."

As the text of Rhode Island Rule of Evidence 609(e) indicates, however, the same Rule 403 balancing test that applies to most evidence also applies to convictions that are more than ten years old and used for impeachment purposes.  That is not to say, though, that the remoteness of a conviction is irrelevant in Rhode Island; instead, the remoteness of Estelle's conviction played in a key role in the Supreme Court of Rhode Island finding that the conviction was inadmissible for impeachment purposes, even under the regular Rule 403 balancing test.

-CM

December 5, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 4, 2008

Passing Judgment: 10th Circuit Case Cites To 4th Circuit Case Allowing Immediate Appeal Of Rape Shield Ruling

The recent opinion of the Tenth Circuit in United States v. Hunter, 2008 WL 5062140 (10th Cir. 2008), sheds light on a Fourth Circuit opinion from 1981 with which I strongly agree.  While the appeal in  Hunter, an appeal from a ruling under the Crime Victims' Rights Act of 2004, is interesting in and of itself, what is more interesting to me is that Fourth Circuit case it cited. 

In that case -- Doe v. United States, 666 F.2d 43 (4th Cir. 1981), the alleged victim in a rape prosecution sought to appeal a district court judge's ruling that evidence concerning her past sexual behavior and habits would be admissible at trial, notwithstanding Federal Rule of Evidence 412, the Rape Shield Rule.

The Fourth Circuit flagged a potential problem with her appeal under 28 U.S.C. Section 1291, the final judgment rule, which states that:

     "The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292 (c) and (d) and 1295 of this title." (emphasis added).

Obviously, the district judge's Rape Shield ruling would not typically be thought of as a "final judgment," but the Fourth Circuit noted that "[t]he Supreme Court has held that this finality requirement should be 'given a practical rather than a technical construction.'"  It further found that, "[t]he Court also has instructed that the most important considerations for determining whether an order is final are 'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.'"

Applying these considerations, the Fourth Circuit concluded that:

       "In this case the balancing of these factors weighs heavily in favor of a conclusion of finality. The inconvenience and costs associated with permitting the victim to appeal are minimal. Certainly, they are no greater than those resulting from government appeals of suppression orders that are authorized by 18 U.S.C. s 3731. Because the rule provides for pre-trial evidentiary hearings, appeals are unlikely to involve significant postponements of criminal trials. Indeed, in this case, we heard the appeal and filed an order resolving the issues without any delay of the criminal trial.

     On the other hand, the injustice to rape victims in delaying an appeal until after the conclusion of the criminal trial is manifest. Without the right to immediate appeal, victims aggrieved by the court's order will have no opportunity to protect their privacy from invasions forbidden by the rule. Appeal following the defendant's acquittal or conviction is no remedy, for the harm that the rule seeks to prevent already will have occurred. Consequently, we conclude that with respect to the victim the district court's order meets Gillespie ‘s test of practical finality, and we have jurisdiction to hear this appeal."

Further supporting the Fourth Circuit's conclusion was its finding that:

     "The text, purpose, and legislative history of rule 412 clearly indicate that Congress enacted the rule for the special benefit of the victims of rape. The rule makes no reference to the right of a victim to appeal an adverse ruling. Nevertheless, this remedy is implicit as a necessary corollary of the rule's explicit protection of the privacy interests Congress sought to safeguard....No other party in the evidentiary proceeding shares these interests to the extent that they might be viewed as a champion of the victim's rights....Therefore, the congressional intent embodied in rule 412 will be frustrated if rape victims are not allowed to appeal an erroneous evidentiary ruling made at a pre-trial hearing conducted pursuant to the rule."

I agree with this analysis, but when I Shepardized Doe, I didn't find any cases citing it for this point, which makes me wonder whether other courts have come to different conclusions, other courts simply haven't cited Doe, or the issue simply hasn't arisen with much frequency (which seems doubtful).  It definitely seems to be something that I will research in the future.

-CM

December 4, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 3, 2008

Can I Get A (Summary) Witness?: First Circuit Opinion Reveals That IRS Agents Can Testify As Summary Witnesses

The recent opinion of the First Circuit in United States v. Stierhoff, 2008 WL 5050171 (1st Cir. 2008), is an important reminder that we can't label every witness either a lay witness or an expert witness (or both); instead, as the opinion makes clear, courts have created a third category of witness:  the "summary witness." 

The Stierhoff opinion was written by Judge Selya, and he weaves such an interesting story that I figured I would reproduce large portions of it in this post.  According to Selya:

     "This case began when a young woman complained about a strange man who was harassing her. The state police launched an investigation, which later took an unexpected turn and morphed into an indictment for federal income tax evasion. The tale of how the stalker became the stalked follows * * * *

     In March of 2002, a young woman contacted the Rhode Island State Police and complained about a stalker. She told the troopers that the man had approached her at work, given her unwanted cards and poems, and left poetic messages on her windshield while her car was parked in a dormitory parking lot at Rhode Island College. The troopers traced the suspected stalker through his license plate number and identified him as Neil Stierhoff (the defendant herein).

     Between April 4 and April 12, 2002, the troopers conducted a surveillance that tended to confirm their suspicions about the defendant's obsession with the complainant. They then devised a sting operation that played out on the night of April 12. The sting worked, and the troopers arrested the defendant on the spot * * * *

     [With the defendant's consent, the troopers searched his residence] * * * *  The troopers found a treasure trove of interesting items. These items included the computer on which the defendant had composed the poems, greeting cards similar to those delivered to the complainant, a briefcase containing $100,000 in cash, another $40,000 in cash lodged in a desk drawer, and a myriad of financial documents. The troopers proceeded to make inquiries about the cash and a bank statement * * * *

     [T]he troopers concluded that the defendant had been operating a highly lucrative business featuring the sale of used electronic equipment over the internet. When they noticed that the aforementioned bank statement bore the name 'Joseph Adams,' the defendant explained that he used that pseudonym in conducting this business. As to the large sums of cash on hand, he ventured that he neither trusted banks nor paid any taxes (federal or state).

     Later that evening, [and again with the defendant's consent] the troopers conducted a search of a storage unit leased by the defendant....At the storage unit, the troopers discovered high-end computer equipment and a salmagundi of business records. The documents bore a wide range of individual and entity names, most of which comprised variations on the 'Joseph Adams' pseudonym.

    In due course, the troopers contacted the Internal Revenue Service (IRS) and relayed pertinent portions of the information they had unearthed to that federal agency. The IRS initiated its own investigation. That probe confirmed the defendant's aversion to the payment of federal income taxes.

     From there, the defendant found himself under attack on two fronts. The state successfully prosecuted him on charges related to his stalking activities....That conviction is final and need not concern us.

     The other shoe dropped on March 22, 2006, when a federal grand jury in the District of Rhode Island handed up an indictment charging the defendant with four counts of income tax evasion covering calendar years 1999, 2000, 2001, and 2002, respectively, in violation of 26 U.S.C. § 7201. The government asserted that the defendant had total unreported taxable income of approximately $1,250,000 during this four-year span and that he owed nearly $460,000 in back taxes.

    After some pretrial skirmishing,...a trial jury found the defendant guilty on all counts."

Stierhoff subsequently appealed, claiming that the district court improperly received the testimony of Michael Pleshaw, an experienced IRS agent.  Stierhoff noted that the district court did not allow Pleshaw to testify as an expert, but the First Circuit responded that the district court did properly allow him to testify as a summary witness.  The court noted that:

     "We have recognized as a general proposition that testimony by an IRS agent that allows the witness to apply the basic assumptions and principles of tax accounting to particular facts is appropriate in a tax evasion case....The key to admissibility is that the summary witness's testimony does no more than analyze facts already introduced into evidence and spell out the tax consequences that necessarily flow from those facts."

And, according to the First Circuit, that is exactly what Pleshaw did.  According to the court,

     "Pleshaw sat through the trial and studied the amplitudinous documentary evidence. Based on the information thus acquired, he calculated the defendant's tax liability for the years at issue.

     Pleshaw's methodology was unremarkable. Using bank deposit records, Pleshaw computed the defendant's gross receipts, again on a year-by-year basis. He then set to one side non-taxable receipts (such as loan proceeds) and subtracted business expenses (treating all non-cash withdrawals from the defendant's accounts as deductible), year by year. To the 2002 total, he added the cash found during the search (which the defendant had admitted to a trooper emanated from his business dealings).

     In that manner, Pleshaw arrived at an estimate of the defendant's net profits for each year. Thereafter, he adjusted for self-employment taxes, took the standard deduction, and factored in personal exemptions. These computations yielded the defendant's putative taxable income for each of the four years in question. From there, elementary school arithmetic-an application of the rate table-produced annual figures for taxes due and owing."

Based upon these findings, the First Circuit concluded that "Pleshaw's testimony fit[] comfortably within the mine-run of permissible summary witness testimony in tax cases."  And based upon the many opinions from other circuits cited by the court, it appears that most courts around the country would have come to the same conclusion.

-CM

December 3, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 2, 2008

My New Essay: A Public Privilege

In September I posted an entry about the Supreme Court of Pennsylvania's opinion in Castellani v. Scranton Times, L.P., 956 A.2d 937 (Pa. 2008), in which it failed to carve a crime-fraud exception out of Pennsylvania's reporter's privilege, its Shield Law, despite having previously read a similar exception into every other evidentiary privilege.  In that post, I noted that:

     "in maybe the most interesting part of its opinion, the Court rejected the argument for a crime-fraud exception to the Shield Rule based upon the crime-fraud exception to the attorney-client privilege, finding that its Shield Rule provides more protection than any other evidentiary privilege.  According to the Court,

     'contrary to appellants claim, we conclude that the Shield Law is not comparable to the attorney-client privilege, or, for that matter, to any other privilege with respect to the issue presented here. The attorney-client privilege, in contrast, does not encompass the same absolute protection. The foundational reason for this difference is that each privilege or protection serves its own, unique interests. The Shield Law was enacted to protect the free flow of information to the news media in their role as information providers to the general public. The attorney-client privilege, on the other hand, renders an attorney incompetent to testify as to communications made to him by his client in order to promote a free flow of information only between attorney and his or her client so that the attorney can better represent the client. See 42 Pa.C.S. 5916."

Well, I remained interested in this portion of the ruling after the post and then saw a call for papers on the attorney-client privilege by the Yale Law Journal Pocket Part.  So, I ended up writing a short essay on Castellani entitled, A Public Privilege.  The essay will be published in an upcoming issue of the Pocket Part, and you can download my first draft now from SSRN.  Here is the abstract:

     "If a rule is only as good as its exceptions, and a reporter is only as good as her sources, then, according to a recent Supreme Court of Pennsylvania opinion, Pennsylvania’s reporter’s privilege is the best of privileges and the worst of privileges.  In that opinion, the justices failed to carve a crime-fraud exception out of Pennsylvania’s reporter’s privilege – its “Shield Law” – despite having previously read a similar exception into every other evidentiary privilege.  Ironically, this alleged act of judicial passivism transformed the Shield Law into both a shield and a sword and mischaracterized the purposes served by the attorney-client privilege and all other evidentiary privileges.  According to the court, the Shield Law is exceptional, and thus exceptionless, because it is directed toward the public end of protecting the free flow of information to society while the attorney-client privilege, like all professional privileges, is intended for the private benefit of the client. This essay argues, however, that as the United States Supreme Court recognized in Jaffee v. Redmond, all evidentiary privileges must serve two masters, private interests and public ends, and crime-fraud exceptions do not undercut those public ends but bolster them."

-CM

December 2, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, December 1, 2008

Easy Money: Eleventh Circuit Applies Rule 704(a), Not 704(b), In Ponzi Scheme Appeal

In affirming the conviction of James W. Long in United States v. Long, 2008 WL 4997057 (11th Cir. 2008), the Eleventh Circuit likely came to the correct conclusion but probably engaged in more legwork than was needed.  Long was convicted of  substantive wire fraud and conspiracy to commit wire and mail fraud, stemming from his operation of a payday loan company, Cash Today, USA, Inc.  And part of the testimony used to convict him was the expert testimony of Soneet R. Kapina, a forensic accountant who reviewed Cash Today's records.

Kapina testified, inter alia, that Cash Today bore the hallmarks of a "ponzi scheme" and was an artifice or scheme to defraud.  Long did not object to this testimony at trial, but on appeal, he claimed, among other things, that Kapina improperly testified as to his mental state.

The Eleventh Circuit rejected this argument, citing to Federal Rule of Evidence 704(a), which states that:

     "[e]xcept as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."

The court then correctly noted that while Rule 704(a) permits expert opinion testimony concerning an ultimate issue of fact, it precludes such testimony regarding ultimate legal conclusions.  And, according to the court, "Kapina's statement that Cash Today bore the hallmarks of a 'Ponzi scheme' described Cash Today's financial practices but offered no conclusion as to whether Long participated in these practices with the intent to defraud investors. Because this statement was a factual, and not a legal, conclusion, it was admissible under Rule 704."

Conversely, it concluded that "Kapina's statement that Cash Today was an artifice or scheme to defraud [wa]s more problematic, however, because it c[ame] much closer to embodying an impermissible legal conclusion."  Then, despite this seeming ambivalence, the court strangely jumped to the conclusion that "this statement was plainly inadmissible."

The problem for Long, however, was that his failure to object at trial meant that he had to prove plain error, and the court found that Long could not

     "show that his substantial rights were affected. Given the overwhelming evidence of guilt adduced at trial, there is no reasonable probability that the result of the trial would have been different had the district court excluded this single remark. Accordingly, Long has failed to satisfy the third prong of the plain error test."

As I said above, I think that the court came to the correct conclusion, but I don't think that the court needed to attempt to characterize Kapina's statement as an impermissible legal conclusion to get there.  And the reason is Federal Rule of Evidence 704(b), which states that:

     "[n]o 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."

Obviously, Long's argument was that Kapina's testimony that Cash Today was an artifice or scheme to defraud was improper testimony concerning his mental state, and the Eleventh Circuit seemingly implicitly agreed before shoehorning the testimony into the "impermissible legal conclusion" category.  I thus don't know why it cited to Federal Rule of Evidence 704(a) instead of Federal Rule of Evidence 704(b).   

-CM

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

Sunday, November 30, 2008

How Different Is Death?: Fifth Circuit Precludes Jury Impeachment Based Upon Misunderstood Jury Instructions In Capital Case

Probably the rule of evidence that most interests me is Federal Rule of Evidence 606(b), the anti-jury impeachment rule, which states that:

     "Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying."

Now, there are certainly several good reasons to have such a rule, with the main 3 being:  (1) it secures the finality of verdicts, (2) it allows jurors to deliberate without the fear that their deliberations will be put under the microscope after trial, and (3) it protects jurors from harassment by losing parties after trial.  And while I am somewhat uncomfortable with the Solomonic compromise that has been drawn with this rule, I find it pretty hard to argue with that compromise, despite it meaning that some "unjust" verdicts remain on the books.

But, when the proposed jury impeachment relates to racial, religious, or other bias by jurors, I think that the anti-jury impeachment rule must give way, and I will have my article on the issue completed early next year.  A second situation where I think that application of Rule 606(b) doesn't make sense is when the proposed juror misconduct occurred during a trial which resulted in the defendant being sentenced to capital punishment.

This was the circumstance addressed by the recent opinion of the Fifth Circuit in United States v. Jackson, 2008 WL 4901375 (5th Cir. 2008).  In Jackson, a jury found David Jackson guilty of murder and sentenced to him death based upon the killing of another inmate during a prison fight.

Jackson thereafter moved for a new trial, alleging, inter alia, that the jury erroneously believed that even if Jackson were sentenced to life without parole, it was still possible he could be released before the end of his life, despite the district court's explicit instruction to the contrary."  In support of this contention, he proffered an affidavit of an investigator who contacted jurors after the trial. The affidavit stated that a number of  jurors believed that Jackson could be released early, as had happened with a cooperating witness who testified at trial.

The Fifth Circuit denied Jackson's motion, finding that the jurors could not impeach their verdict through evidence of a misunderstood jury instruction.  Instead, it found that

     In United States v. Jones, 132 F.3d 232, 245-46 (5th Cir.1998), a death penalty case like Jackson's, we unambiguously stated that "[r]ule 606(b) has consistently been used to bar testimony when the jury misunderstood instructions" and that "'outside influence' refers to a factor originating outside of normal courtroom proceedings which influences jury deliberations, such as a statement made by a bailiff to the jury or a threat against a juror."

The question that this raised for me was:  Isn't death different, as the Supreme Court has recognized in other contexts?  Aren't there good reasons to believe that we shut put aside the anti-jury impeachment rule when there is evidence that jurors might merely have sentenced the defendant to life imprisonment but for a misunderstood jury instruction?

Well, it turns out that the Fifth Circuit addressed this issue in Jones but with a seemingly disastrous results.  In Jones, the Fifth Circuit was faced with a similar factual context and rejected the defendant's Eighth Amendment challenge to the court's application of Rule 606(b).  According to the court,

     "Noting that the Eighth Amendment requires a 'greater degree of reliability when the death sentence is imposed,' we are convinced that Rule 606(b) does not harm but helps guarantee the reliability of jury determinations in death penalty cases....Jury deliberations entail delicate negotiations where majority jurors try to sway dissenting jurors in order to reach certain verdicts or sentences. An individual juror no longer exposed to the dynamic offered by jury deliberations often may question his vote once the jury has been dismissed. Such self-doubt would be expected once extrinsic influences bear down on the former jurors, especially in decisions of life and death. When polled, each juror affirmatively indicated that he had voted for the death penalty. We will not allow a juror to change his mind after the jury has rendered a verdict. In this situation, the outcome could just as easily have turned out the other way with the jurors not supporting the death sentence convincing the death-prone jurors to impose life without the possibility of release. If the jury truly feared that the district court would impose some lesser sentence in the absence of a unanimous recommendation, then the jury had the option of imposing life without the possibility of release. Furthermore, the jury never sought a clarifying instruction to remedy the alleged confusion. Consequently, the affidavits do not convince us that the instructions given by the district court could lead a reasonable jury to believe that the failure to reach a unanimous decision would result in the imposition of a lesser sentence."

Really?  I could understand applying Rule 606(b) if a juror came forward and said that he actually was unsure whether the defendant was guilty beyond a reasonable doubt or said that he imposed the death penalty because he thought that holding out would be futile.  In those situations, there would be no way to corroborate the juror's claim.  But the situation seems different when a juror comes forward and claims that jurors misunderstood jury instructions.  Now, sure, in this latter situation, this claimed confusion could merely be pretext for second-guessing, but it seems like this possible pretext could be probed by seeing whether other jurors corroborated the claim.  As I said above, there might be enough reason to apply Rule 606(b) when misunderstood jury instructions allegedly led jurors to, say, impose a 4 year term of incarceration instead of a 2 year term of incarceration.  But again, isn't death different?  When a person's life is at stake, don't the protections of the Rule have to give way?

Besides, the "greater degree of reliability" analysis under the Eighth Amendment is all about making sure that the death sentence is not mandatory and that jurors instead look at the "relevant facets of the character and record of the individual offender or the circumstances of the particular offense."  Shouldn't the same apply to jury deliberations?  Otherwise, aren't we dealing with the mechanistic application of a rule of evidence in a manner that would violate the Compulsory Process Clause/right to present a defense?

-CM

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