EvidenceProf Blog

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

Saturday, February 2, 2008

Though Your Brother's Bound And Gagged, Take 2: Illinois Decides Not To Re-Prosecute James Andrews

Earlier, I reported that a Cook County judge ordered a new trial for James Andrews, who claimed that his confession was the result of torture at the hands of detectives working under former Chicago Police Commander John Burge.  That new trial was supposed to have started in March, but the Illinois attorney general's office decided yesterday that the trial would not go forward and it would not prosecute Andrews.  Cara Smith, a spokesperson for attorney general Lisa Madigan stated,  "Based on the judge's ruling that suppressed the statements and the evidence that remained for crimes that occurred over 25 years ago, we decided this was the most appropriate course to take."

As I noted in my earlier post, it will be interesting to see how many more appeals will follow by people who gave confessions with Burge was Police Commander.


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

Pizza, Pizza: Judge Excludes Expert Testimony On Likelihood Of Counfusion In Restaurant Battle

How important is the name of a pizza parlor?  If it's in New York, it's been important enough to spawn a seemingly endless stream of litigation, much of it involving Patsy's Pizzeria.  The story starts with Patsy Grimaldi learning to make pizza at his uncle Patsy Lancieri's restaurant, Patsy's Pizzeria, in 1941 at the age of 10.  In 1990, Grimaldi finally decided to open up his own pizzeria under the Brooklyn Bridge, which he called Patsy's.  A problem soon arose, however, because when Grimaldi's uncle died in 1974, his wife took over his pizzeria, and in 1991 she sold the trade name to someone outside the family, leading to litigation and Grimaldi changing the name of his pizzeria to Grimaldi's Pizzeria. (while Patsy's won the litigation battle, the pizza crown goes to Grimaldi's, which is by far the best pizza I've ever had; Patsy's, not so much).

There has been, however, a longer rivalry between Patsy's Pizzeria, which opened in 1933 in East Harlem, and Patsy's Italian Restaurant, which opened in 1944 at West 56th Street.  For the most part, though, these two restaurants have peacefully co-existed, with the former mainly serving pizza and the latter serving a more complete Italian style menu.  As the parties both attempted to sell pasta sauces in jars for retail distribution, however, and as Patsy's Pizzeria began expanding to the outer boroughs, things finally came to a head, with Patsy's Italian Restaurant suing Patsy's Pizzeria for, inter alia, common law trademark infringement and unfair competition.

In support of its claim, Patsy's Italian Restaurant attempted to call Rob Wallace, an "[e]xpert in all trademark, trade dress, package design, product design, brand dilution, likelihood of confusion, consumer research and brand identity issues," as an expert witness. See Patsy's Italian Restaurant, Inc. v. Banas, 2008 WL 222348 at *1 (E.D.N.Y. 2008).  Wallace would have testified about the likelihood of confusion based upon the similarity of the marks Patsy's Pizzeria and Patsy's Italian Restaurant. See id.  The problem with this testimony, however, is that pursuant to Federal Rule of Evidence 702, expert testimony is only admissible, inter alia, if it "will assist the trier of fact to understand the evidence or to determine a fact in issue."  In other words, expert testimony is inadmissible when jurors could just as easily draw the conclusion drawn by the expert. See id.  This is exactly what the court found in excluding Wallace from testifying as it concluded that Patsy's Italian Restaurant "failed to show why Wallace's testimony would assist the jury on the issue of likelihood of confusion when they can just as easily make a comparison between the parties' marks." Id

This ruling makes sense to me, and as the court noted, it is consistent with prior case law on the issue.  Thus, for instance, in Malletier v. Dooney & Bourke, Inc., 2007 WL 45300868 (S.D.N.Y 2007), the court precluded an expert from testifying about, inter alia, the likelihood of confusion between the use of color in the multicolor handbags of Dooney & Bourke & Louis Vuitton.


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

Friday, February 1, 2008

London Calling, Take 2: First "Low Copy Number" DNA Case Dropped In Wake of Omagh Bomb Trial

Earlier, I wrote anout how the United Kingdom has suspended its use of "low copy number" DNA in the wake of questions about its reliability and specifically the Sean Hoey Omagh bomb case.  Now, the prosecution has withdrawn charges against a Strabane youth which relied on low copy number DNA, the first such dismissal since the fallout from the Omagh bomb trial.  In January 1, 2005, the youth was accused of assembling and possessing a firebomb, but the prosecution dropped charges after the judge refused to delay the case until the review of "low copy number" DNA had been completed.  We're certain to see similar dismissals in the future.


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

Evidence And Ethics 5: Professor Zacharias' Are Evidence-Related Ethics Provisions "Law?"

University of San Diego School of Law Professor Fred Zacharias' contribution to the Ethics and Evidence Symposium is his article, Are Evidence-Related Ethics Provisions "Law"?  The launching point for the article is the fact that the Restatement (Third) of the Law Governing Lawyers (2000) refers to state legal ethics codes as part of the construct of lawyer regulation but fails to define to what extent these ethics codes are "law."  Zacharias answers this question by looking at three categories of legal ethics rules:

     -(1) those which are entirely consistent with evidentiary law;

     -(2) those which conflict with evidentiary law but which courts for the most part ignore; and

     -(3) those which state evidentiary principles that courts do not apply directly, but with which courts seem to agree.

Legal ethics rules falling in categories one and three are a form of "law" to the extent that courts apply them, whether directly or indirectly, explicitly or implicitly.  The questionable category is thus the second category, and as Zacharias notes, "If commentators are correct that key divergences between the professional codes' evidence-related provisions (e.g., confidentiality) and parallel evidence law (e.g., privilege) are directly attributable to a difference in vision -- in part a different vision of the purpose of law -- that undermines the Restatement's premise that the professional codes are law."  Zacharias, however, concludes that the divergences are frequently based upon the judiciary and code-drafting bodies operating in different speheres.  Because ethics provisions are adopted in the abstract, covering a general range of cases, while evidence law focuses on specific cases, the pronouncements of the judiciary and code-drafting bodies "may not be designed as rules for the other institution."

Zacharias thus contends that the Restatement is correct in referring to the professional codes as a form of law, although it is a peculiar form "that courts only sometimes deem effective."  Accordingly, he proffers 3 possible responses to the status quo:

     (1) we could decide to recognize the professional codes as full law;

     (2) we could acknowledge explicitly the limits of professional regulations as law, but this risks the ethical codes losing their effect on lawyers; or

     (3) we could give up the pretense that the codes and other law operate on equivalent planes.

I know that I struggle in trying to mix in ethical rules into my evidence class, and I think that Zacharias' article is a terrific explanation which can be used in teaching the subject to students.  I asked Professor Zacharias whether he had anything he would like to add about his article, and he responded: 

"The only thing I might add is that this article focuses on one aspect of a much problem addressed in a forthcoming article to be submitted to law reviews in the Spring. In that article, entitled "Rationalizing Judicial Regulation of Lawyers," Bruce Green and I reconcile the different forms of judicial regulation of lawyers and attempt to come to grips with how those different forms of regulation might take better account of one another.


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

One For The Razorbacks: Darren McFadden Agrees To Take Second Paternity Test After First Is Deemed Inadmissible

Darren McFadden, a former All-American running back at the University of Arkansas and certain first round NFL draft pick, will comply with a request that he take a second paternity test in response to a motion brought by Tiffany Rena Smith.  Smith filed a petition on January 18th, seeking to establish that McFadden was the father of her nearly four month old daughter and receive child support.  Before this petition was even filed, however, McFadden allegedly voluntarily took a paternity test which indicated that the probability that McFadden was the father was zero percent.  Smith's attorney, Agather McKeel has noted, though, that the results of this test are inadmissible in court, and McFadden has agreed to take a paterntity test which is admissible and verifiable.

It is difficult to ascertain what paternity tests McFadden took and will take, but one article  seems to indicate that there were chain of custody issues with McFadden's paternity test.  In other words, when a blood or DNA sample is taken from someone, courts require that every person handling that sample can be accounted for to ensure that the sample was not tainted or misplaced and replaced with another sample.  In the paternity test context, Arkansas Code Section 9-10-108(B)(i) specifically provides that "[i]f contested, documentation of the chain of custody of tissue and blood samples taken from test subjects in paternity testing shall be verified by affidavit of one (1) person witnessing the extraction, packaging, and mailing of said samples and by one (1) person signing for said samples at the place where same are subject to the testing procedure."

Presumably, then, Smith contested the documentation of the chain of custody of the samples taken during McFadden's paternity test, and McFadden didn't have the necessary affidavits. 


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

Thursday, January 31, 2008

Evidence And Ethics 4: Professor Orenstein's Special Issues Raised by Rape Trials

I first came across the writings of Indiana University School of Law Professor Aviva Orenstein when I discovered her article, "My God!":  A Feminist Critique to the Excited Utterance Exception to the Hearsay Rule, 85 Cal. L. Rev. 159 (1997), while preparing my own article on the exception.  She has written a number of other excellent articles and sponsored the terrific symposium, Children as Witnesses: A Symposium on Child Competence and the Accused's Right to Confront Child Witnesses.  Her latest article is her contribution to the Ethics and Evidence Symposium, Special Issues Raised by Rape Trials. 

Professor Orenstein offers this description of the article:

"In analyzing the role of evidence and ethics in rape trials, this brief essay considers the cultural milieu surrounding rape allegations, examining assumptions about victims and perpetrators, men and women, the chaste and the deviant.   After describing the legal zeitgeist concerning rape, focusing on the reversal of false rape convections based on DNA evidence and the advent of the big-media rape trials involving various celebrities, the essay turns to three separate issues of ethics and evidence that arise regularly in rape trials:  (1) naming the victim; (2) shielding the victim's sexual history; and (3) civil settlements of rape charges.  For all three of these discrete categories, the essay uses the fairly recent case of Kobe Bryant, a famous basketball player accused of rape, to illustrate the evidence and ethical issues.  Both the Rules of Evidence and the Rules of Professional Conduct are demonstrably unhelpful in assisting attorneys to confront these problems.   The analysis highlights the limits of the law to effectuate practical change or to transcend, let alone improve, social attitudes.  This is true not only because of the cultural forces promoting rape myths, but because of changes in communication, whereby the internet and blogosphere can release information about the victim and the case, even if the rules of ethics and evidence might withhold such information.  The essay therefore concludes that protecting the name, identity, and sexual history of the victim via rules of evidence and ethics, seems futile, at least in the high profile case involving celebrities."

Furthermore, the article notes that "[t]he intersection of evidence and ethics in rape trials raises questions not only of the limits of law but also questions concerning the rights of the accused and the balance between protection of the victim and paternalism towards her."  Orenstein's article is an incredibily even-handed account of the issues, and it addresses issues that are increasingly important with the 24 hour news cycle and the whittling away of the privacy of both alleged victims and assailants.


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

I Put A Spell On you: Wisconsin Court Allows For Admission Of Hypnotically Refreshed Testimony

John Joseph Moore is currently standing trial, facing charges that he she shot and killed a young mother while she was driving down Interstate 20 in Wisconsin in 2004.  The young mother was Stephanie Dover, and the case is just reaching trial now because her fiance, Gene Derrick, was able to relay the facts of the shooting to police, but told police that he was unable to see the license plate number of the black pickup truck from which the gunshots emanated.  Police, however, eventually charged Moore after he told them that someone in Dover's car made an obscene gesture to him, altough he has denied shooting Dover. 

Despite Derrick's claims about not seeing the license plate number, investigators thought that they could trigger his memory through hypnosis, and apparently the hypnosis at least partially worked because the prosecution wanted introduce the tape of Derrick's hypnosis into evidence.  On Tuesday, the judge hearing the case said that in his 17 years on the bench, he'd never seen proferred hyponosis evidence, but he ruled that the prosecutor could admit it.  The judge's statement makes me wonder (and hope) that he followed the correct procedure for determining the admissibility of hypnotically refreshed testimony.

As I've noted before, courts are sharply split on whether and/or under what circumstances hypnotically refreshed testimony is admissible, with at least four different approaches being taken.. See State v. Johnston, 529 N.E.2d 898, 904-05 (Ohio 1988).  In State v. Armstrong, 329 N.W.2d 386, 394 n.23 (Wis. 1983), the Supreme Court of Wisconsin set forth nine factors for Wisconsin courts to consider when deciding to admit hypnotically refreshed testimony:

     -1. The person administering the hypnotic session ought to be a mental health person with special training in the use of hypnosis, preferably a psychiatrist or a psychologist.

     -2. This specially trained person should not be informed about the case verbally. Rather, such person should receive a written memorandum outlining whatever facts are necessary to know. Care should be exercised to avoid any communication that might influence the person's opinion.

     -3. Said specially trained person should be an independent professional not responsible to the prosecution, investigators or the defense.

     -4. All contact between the specially trained person and the subject should be videotaped from beginning to end.

     -5. Nobody representing the police or the prosecutor or the defendant should be in the same room with the specially trained person while he is working with the subject.

     -6. Prior to induction a mental health professional should examine the subject to exclude the possibility that the subject is physically or mentally ill and to confirm that the subject possesses sufficient judgment, intelligence, and reason to comprehend what is happening.

     -7. The specially trained person should elicit a detailed description of the facts as the subject believes them to be prior to the use of hypnosis.

     -8. The specially trained person should strive to avoid adding any new elements to the subject's description of her/his experience, including any implicit or explicit cues during the pre-session contact, the actual hypnosis and the post-session contact.

     -9. Consideration should be given to any other evidence tending to corroborate or challenge the information garnered during the trance or as a result of post-hypnotic suggestion.

I've seen issues of hypnotically refreshed testimony arising with much more frequency than in the past, and it will be intersting to see whether the the approaches taken become more uniform or varied.



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

Wednesday, January 30, 2008

Collateral Damage, Take 2: Shane Ragland Found Liable For Kentucky Football Player's Death

Earlier, I reported on the civil wrongful death suit brought against Shane Ragland after he pleaded guilty to manslaughter in connection with the killing of University of Kentucky football player Trent DiGiuro after DiGiuro kept him out of a fraternity.  I noted that while defense counsel claimed that Ragland should not automatically be found liable based upon his guilty plea, the court would find Ragland automatically liable under the doctrine of collateral estoppel.  On Monday, the court did just that, finding Ragland liable for DiGiuro's death, with Ragland's plea meaning that plaintiffs' counsel didn't have to prove that Ragland killed DiGiuro.


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

Evidence And Ethics 3: Professor Marianne Wesson's Remarkable Stratagems And Conspiracies

University of Colorado Law School Professor Marianne Wesson's contribution to the the Ethics and Evidence Symposium is "Remarkable Stratagems and Conspiracies": How Unscrupulous Lawyers and Credulous Judges Created an Exception to the Hearsay Rule.  The article is quite interesting in that it consists of a comprehensive discussion and analysis of the single case undergirding the hearsay exception contained in Federal Rule of Evidence 803(3) and state counterparts and concludes that it is a house of cards.  That case is Mutual Life Insurance Co. of New York v. Hillmon, 145 U.S. 285 (1892).  Professor Wesson provides a wonderfully detailed accounting of the facts of the Hillmon case in her article, but here are the brief facts:

     -Sallie Hillmon claimed that a dead body found in a creek belonged to her husband, John, and thus sought to recover on insurance policies on his life;

     -The insurance companies claimed that the Hillmons were trying to defraud them and that the body actually belonged to John's traveling partner, Frederick Walters;

     -The insurance companies sought to introduce letters allegedly written by Walters to his sister and fiancee in which he stated his intention to go with John Hillmon on a trip.

The Supreme Court agreed with the insurance companies, finding that the letters were admissible as an exception to the rule against hearsay because they were statements of intent which could be used to prove that Walters acted in accordance with his declared intent.  As Wesson notes, "This hearsay exception is lacking in empirical or policy justification, yet has displayed remarkable durability, finding its way into the Federal Rules of Evidence and the evidence codes of nearly all American jurisdictions, as well as into the British law, chiefly because of the prestige of the Hillmon decision."  Specifically, Federal Rule of Evidence 803(3) indicates that "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will" is admissible as an exception to the rule against hearsay.

And yet, the point of Wesson's article is not to join in the debate over efficacy of the rule, but instead to argue that the Hillmon case isn't what the Supreme Court and subsequent courts made it out to be.  Instead, there were several problems with the case, the most notable one being that the letter allegedly sent to Walters fiance, "was, if not a fake, full of lies, and its provenance was misrepresented by witnesses who must have been solicited by the companies' lawyers."  Wesson thus argues that revocation of Rule 803(3) would "be fitting tribute to Hillmon, and a suitable apology for the insults the law and its actors have leveled at his reputation and his memory."

I asked Professor Wesson what led her to write such a thorough and interesting analysis of Hillmon, and she replied:

"I came to my obsession with the Hillmon case less through my interest in the law of evidence than because of my lifelong love of narrative.  It was the story more than the law that captivated me at first.  I knew its general public outlines (in the way all Evidence professors do) for years before I got serious and dug up the archive and the old newspaper accounts that transformed my understanding of the events behind the case.  One day a few years ago a typical classroom discussion about why the Court would have invented this curious exception to the hearsay rule (yes, I know there were some precedents from New Jersey and the UK, but not very strong ones) finally brightened the bulb for me and gave me a flash of what felt like insight.  Could it be, I suggested to my students, that the Justices ruled as they did because they understood the story as one about a wily frontier outlaw and his effort to fleece a trio of respectable businesses, and could not resist taking such steps as they could to prevent the miscreant from profiting from his crime?  (John Maguire’s account of E.R. Thayer’s notes about the Court’s consideration of the case may have suggested this idea to me.)  It seemed like a plausible and sufficient explanation for an otherwise puzzling decision.  Sending the case back for retrial on the ground that the companies had not enjoyed enough peremptory challenges probably would not have changed the result, if Miss Alvina Kasten’s letter was still to be kept out of evidence.  And there was no getting around the letter’s hearsay nature, nor could the Court with a straight face endorse the companies’ argument that the letter was a business record.  Finding a hearsay exception that would accommodate the letter’s admission, even if it had to be one that none of the companies had argued for, was the only measure that would work.  Armed with this idea, I made up my mind to see what I could discover about the story that wasn’t revealed by the Court’s account of the facts.  And the more I found, the deeper my obsession grew.  I’m still discovering new documents and materials, and now I’m working on a book about the case.  It’s not only a terrific opportunity to reflect on how the law is sometimes made, but a window into a turbulent, fasciniating, infuriating time in the history of the United States."

I also asked Professor Wesson what she thought about the circuit split over whether Rule 803(3) allows for the admission of statements that reflect on not only the state of mind of the speaker, but which also speak to the alleged future acts of some other person.  She responded:

"Your question about whether I think the reach of the Hillmon doctrine ought to be limited in the way suggested by the Judiciary Committee’s report is a good one.  I understand the theory that statements like “I have an understanding with Hillmon,” which lurks implicit in the statement “I am going with Hillmon to start a sheep ranch,” are more dangerous (in the hearsay sense) then pure statements of individual intention like “I am going for a walk in the park.”  The former is subject to errors of perception and memory as well as the hazard that the declarant is lying; the latter subject only to the risk of prevarication.  But in general the law of evidence considers the risk of prevarication alone sufficient to exclude an out of court statement, unless there is reason to think it trustworthy.  (The out of court statement “I had a terrible stomachache last night” is inadmissible if not made for purposes of diagnosis or treatment, although the risk of failed perception is nonexistent and the risk of failed memory almost so.)  It’s true there are some hearsay exceptions apart from the Hillmon exception that seem to accommodate statements that are relatively unprotected from the risk of mendacity, if the dangers of misperception or failed memory are small: statements of present physical sensation (like pain) for one, statements made to medical professionals for purposes of diagnosis only, for another.  But those exceptions seem to me to rest more on some theory of necessity than on the statements’ reliability.  I concede neither justification (necessity nor reliability) for statements about the declarant’s intentions.  So to return to your question, I would prefer to see the exception for statements of the declarant’s intention abandoned altogether, rather than merely limited to statements that do not implicate the intentions of another or events in the past.  But as the perfect should not destroy the good, of course I agree that an exception so limited is preferable to the unbridled exception that too many courts have been willing to recognize.  I’ll add only that the question of how to enforce such a limitation when the statement is a mixed one like “I am going with Hillmon to start a sheep ranch” (or “I’m going out to the parking lot to buy a lid of marijuana from Angelo”) is vexed, unless such statements are to be excluded altogether.  Limiting instruction? (lol, as my students would say)."


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

I Feel The Heat Run Down: Eleventh Circuit Finds Lay Witness Can Testify About "Heat Runs"

In United States v. Perez-Lopez, 2008 WL 185507 (11th Cir. 2008), the Eleventh Circuit rendered an interesting expert evidentiary ruling which conflicts with precedent in other circuits.  In Perez-Lopez, Oscar Perez-Lopez was charged with conspiracy to possess with intent to distribute more than five kilograms of cocaine and possession with intent to distribute cocaine. See id. at *1  During the prosecution's case, Drug Enforcement Administration Agent Michael Lumpkin testified that after Perez-Lopez's alleged co-conspirator was apprehended, he provided information to authorities concerning a ranch owned by Perez-Lopez. See id.  Lumpkin then testified that while he was monitoring this ranch, he followed an Expedition, which was registered to Perez-Lopez and his wife, leave the ranch, drive through several cities, and return to the ranch. See id. at *2.  Perez-Lopez described the vehicle's course of action as "heat runs or checking to see if it was being followed by law enforcement." Id. (emphasis added).       

Perez-Lopez objected, contending that this testimony constituted expert opinion evidence and that the prosecution did not qualify Lumpkin as an expert witness. See id.  The prosecution countered that it was merely asking Lumpkin to describe his observations, and the trial court overruled the objection. See id.  Lumpkin then proceeded to testify that "the vehicle pulled into cul-de-sacs and drove around the city without stopping at any particular location before returning to the ranch." Id.

After Perez-Lopez was convicted on both charges, he appealed to the Eleventh Circuit, which affirmed his convictions.  On the issue of whether the trial court properly admitted Lumpkin's testimony on "heat runs," the Eleventh Circuit noted that pursuant to Federal Rule of Evidence 701, "[i]f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."

Meanwhile, Federal Rule of Evidence 702 indicates that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

Because Lumpkin was not qualified as an expert witness, the question thus became whether his testimony on "heat runs" was rationally based on his perceptions and not based on technical or other specialized knowledge.  The Eleventh Circuit found that the trial court did not abuse its discretion in admitting Lumpkin's testimony pursuant to Federal Rule of Evidence 701 "because his opinion that the vehicle he observed was conducting a 'heat run' or 'checking to see if it was being followed,' was based on his personal observations of the vehicle and his past experience as a DEA agent.'" Id. at *4.

This ruling is inconsistent with the rulings by the two other circuits which have considered the issue.  In United States v. Garcia, 86 F.3d 394 (5th Cir. 1996), a government agent gave testimony regarding the defendants' use of "car sweeps," "stash houses" and "heat runs," and also testified that 166.9 kilograms of cocaine recovered from an alleged stash house was indicative of a large drug trafficking organization. (emphasis added).  On appeal, the defendants claimed that "this testimony was not helpful because the jury could have drawn its own conclusion as to whether a large drug trafficking organization controlled the cocaine." Id.  at 400.  The Fifth Circuit disagreed, finding that the agent's testimony fell under the purview of Federal Rule of Evidence 702 because "[t]he average juror may not be aware that the presence of 166.9 kilograms of cocaine is indicative of a large drug trafficking organization, and may not be aware that large drug trafficking organizations commonly use 'car swaps,' 'stash houses' and conduct 'heat runs.'"

In United States v. Brown, 110 F.3d 605, 610 (8th Cir. 1997), the Eighth Circuit similarly found that testimony concerning the modus operandi of drug dealers constitutes expert testimony because it is testimony concerning activities which are not something with which most jurors are familiar.  As support, the Eighth Circuit cited with approval the Garcia court's ruling with regard to "heat run" testimony.

I agree with the Fifth and Eighth Circuits and disagree with the Eleventh Circuit.  The Eleventh Circuit's ruling that the DEA agent's "heat run" testimony was proper lay witness testimony because it was based upon his personal observations only satisfied part (a) of Rule 701, establishing that it was "rationally based on the perception of the witness."  The Eleventh Circuit also had to find under part (c) that his testimony "was not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."

As the Fifth and Eighth Circuits correctly noted, however, that testimony about "heat runs" is not something with which most jurors are familiar, meaning that the testimony was based upon technical or other specialized knowledge gained from police/DEA work.  The Eleventh Circuit's decision thus seems in error as the DEA agent needed to be qualified as an expert witness (it is unclear why the prosecution did not seek to qualify the agent as an expert witness).


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

Tuesday, January 29, 2008

Evidence And Ethics 2: Professor Todd Pettys' The Emotional Juror

University of Iowa College of Law Professor Todd Pettys' contribution to the Evidence and Ethics Symposium is The Emotional Juror.  The article addresses the ethical issue of what obligation trial attorneys (partularly prosecutors) and judges have to try to minimize the emotional impact of visceral evidence.  While part of Pettys' argument is that attorneys and judges do have such an obligation when evidence is particulary incendiary, his larger point is that the legal community too frequently and simplisticly labels emotional evidence as prejudicial.

He notes that while other disciplines have increasingly found that emotions and rationality are inextricably and usefully linked, the legal community has stubbornly adhered to a reason/emotion dichotomy under which emotional evidence is categorically deemed "unfairly prejudicial" under Rule 403.  Pettys contends that "the legal community  needs to move beyond the notion that all emotional influences automatically fall on the 'unfair prejudice' side of the balance that Rule 403 prescribes for testing the relative weight of evidence's probative value and potential for unfair prejudice."  Instead, "[l]egal professionals need to understand the ways in which emotions aid rational decision making, while also better understanding the ways in which emotions can understandably skew jurors' judgments."

Part I of the article opens with a brief, three-part definition of the term "emotions."  Part II considers the roles emotions play when people make decisions by looking at recent research.  Pettys pays particular attention to Damasio's theory of somatic markers, which posits that there are so many  relevant factors in any decision such that a person would spend an inordinate amount of time making decisions but for emotions, which "help us sort through the morass."  He also notes how emotions help us determine which factors are most salient in any decision and prompt us to "take certain kinds of action," based upon factors such as cognitive dissonance and the use of emotions as "commitment devices."

Part III then applies this research to three situations where jurors are influenced by emotions that arise upon hearing or seeing particular items of evidence:  (1) those that relate to jurors' efforts to make demeanor-based assessments of witnesses' credibility, (2) those that relate to jurors' efforts to constrict coherent narratives that account for all of the credible evidence to which they have been exposed, and (3) those that relate to jurors' willingness to render a verdict that is faithful to the facts that they believe the evidence has established.

One of the main points Pettys makes is that "[r]ather than naively tell jurors to ignore their emotions, we need to encourage jurors to engage in what Samuel Pillsbury calls 'emotional self-examination,' reserving Rule 403 for those instances in which we believe such encouragement would be ineffectual."  In other words, instead of excluding potentially inflammatory evidence under Rule 403 and telling jurors to ignore their emotions, we should tell jurors to reflect on their emotions, "to try to identify the appraisals on which those emotions are based, to think carefully about whether those appraisals are warranted by the witnesses' testimony..., and to think carefully about whether those appraisals are consistent with all of the other evidence...."

The article is important for the legal community as a whole and an essential read for trial judges and lawyers who are frequently presented with the question of what type of emotional evidence to submit and admit.  I definitely leaned more toward the side of submitting and admitting most emotional evidence, but my beliefs were called into question as a result of hearing about two recent Australian mock trial  studies suggesting that jurors presented with "gruesome evidence," such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence.  I asked Professor Pettys what he thought about these findings, and he responded as follows: 

"I have not examined the Australian mock jury studies that you've cited, and so my initial response is a little tentative.  In general terms, let me offer the following thoughts.  Scholars often appear to assume that when the admission of a certain type of evidence drives conviction ratesup, the evidence's influence is somehow illegitimate.  Scholars certainly often make that assumption with emotionally powerful evidence--they often assume that, if the admission of such evidence leads to higher conviction rates, the evidence is somehow acting on an irrational, or sub-rational, level.  I readily concede that emotionally powerful evidence presents this risk--hence my indication in my Fordham essay that judges should try to guard against such effects.  I believe, however, that the standard analysis of such cases is too one-sided, assuming too quickly that the evidence's influence is illegitimate.

Suppose I designed a study in which my hypothesis were as follows:  Citizens find it extraordinarily difficult--both emotionally and morally--to convict a fellow citizen of a heinous crime, such as murder.
I hypothesize that, in order to feel sufficiently emboldened to send a fellow citizen to death or life imprisonment, the jurors need to be squarely confronted with the raw, ugly facts of the crime--by seeing and hearing such evidence, the jurors will be able to summon the moral and emotional fortitude they will need in order to convict.  In testing my hypothesis, I find that the admission of gruesome evidence leads to higher conviction rates.

Now, what should one conclude from such a study?  If my hypothesis at the outset were that emotionally loaded evidence makes jurors behave less rationally, one might conclude that the results support my
hypothesis.  If, on the other hand, my hypothesis at the outset were that jurors are reluctant to convict even in the face of persuasive evidence, and that they need help summoning the moral and emotional
courage to follow where the evidence leads, then wouldn't the very same results also seem to support my hypothesis?

I'm not suggesting that all studies of the matter--including the Australian study (about which I know virtually nothing)--are flawed.  I am suggesting, however, that there are both legitimate and illegitimate ways in which emotionally powerful evidence might drive up conviction rates, and that it's important to distinguish between those two possibilities when considering what kind of effects emotionally powerful evidence exerted in a particular case."


January 29, 2008 | Permalink | Comments (0) | TrackBack (0)

Time Stands Still: Maryland Court Finds Statements Admissible As Excited Utterance Despite Lack Of Evidence On Lapse Of Time

The Maryland Court of Special Appeals affirmed the conviction of a Pikesville, Maryland attorney for assaulting his wife after determining that the trial judge properly found that the wife's statements to a friend constituted excited utterances.  On March 6, 2006, Samuel Abram Seidler allegedly dragged his wife Phoebe down the stairs, hit her, choked her, and pulled her down the hall by her hair.  According to the trial testimony of Phoebe's friend, Robert Fryer, at some point after this alleged attack, Phoebe told him about the attack.  Phoebe claimed spousal privilege and refused to testify against her husband. 

While there was no evidence about how much time elapsed after the alleged attack, the trial judge found that Phoebe's statements to Fryer were admissible as excited utterances because Fryer testified that when she made the statements, she was upset, visibly shaken, and crying, with fresh bruises, red marks, and a split, bleeding lip.  The Maryland Court of Special Appeals affirmed, finding that Phoebe's statements constituted excited utterances, and rejecting defense counsel's claims that testimony by the defendant's father and evidence allegedly withheld by the prosecution necessitated a new trial.

Without seeing the court's opinion, it is difficult to address these last concerns raised by the defendant.  That said, I see no error in the court finding Phoebe's statements constituted excited utterance despite the absence of evidence on the lapse of time between the alleged attack and her statements.  Maryland Rule of Evidence 5-803(2) indicates that "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is admissible as an exception to the rule against hearsay. 

While the absence of evidence on the lapse of time between the alleged attack and Phoebe's statements could have supported the finding that her statements to Fryer were not excited utterances, "[t]he time that elapsed between the occurrence of the event and the utterance is only one factor to be considered in determining the admissibility of the hearsay statement."  Alexander v. State, 1998 WL 857877 (Tex.App.-Dallas 1998).  Thus, for instance, in Alexander v. State, supra, the court found that a woman's statements identifying her assailant constituted excited utterances even though there was "no evidence showing how" much time passed between the attack and her statements because she was "visibly upset and crying" when she made the statements. Id. at *5. 

It seems reasonable to me that the Maryland Court of Special Appeals similarly concluded that Phoebe's statements were excited utterances based not only upon her being visibly upset/shaken and crying, but also based upon her fresh bruises and bleeding lip.  This evidence seemed not only to confirm that she was startled, but also seemed to be indirect evidence that not much time had elapsed since those injuries were caused.


January 29, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, January 28, 2008

Evidence and Ethics 1: Opening Thoughts on the Fordham Symposium

I recently had the privilege of reading the 15 wonderful articles in the Fordham Law Review's Evidence and Ethics Symposium Issue.  After reading the articles, I contacted Professor Daniel J. Capra, who brought together the impressive pool of authors who wrote pieces for the symposium, and he wrote me the following:

"My colleague Bruce Green runs the Stein program on law and ethics, and that program puts on a yearly symposium that is published in the Fordham Law Review. Bruce asked me to contact some of the people I know in the Evidence field to see if they wanted to contribute to a symposium on Ethics and Evidence. I had a list of 15 people whose scholarship I find interesting and challenging, and I contacted each of them. What you see is the product of that search process.

This was not a symposium where people met to present papers and exchange ideas. People picked a topic, I reviewed the topics and approved them, and the authors and law review students did the rest. I am very happy with the outcome."

As Professor Capra notes in his introduction to the symposium, each of the authors addresses important questions about the interrelationship between ethics rules and ethics rules, such as:

     (1) Do ethics rules impose any limitations on the use (and arguable abuse) of evidence rules?

     (2) Do evidence rule enforce ethical principals of lawyering, and if not, why not?

     (3) What specific areas of evidentiary practice are most in need of an infusion of ethical principles?

In subsequent posts throughout the next few weeks, I will post summaries and thoughts on these articles as well as some comments by the authors in response to questions I posed to them.  I think that the Symposium is a wonderful collection of articles on the ethics of evidence law, which are essential reading for professors, practitioners, judges, and law students.


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

Refreshing Decision: Court Finds Documents Used To Refresh Recollection Not Protected Under Work Product Privilege

The United States District Court for the Northern District of Illinois recently addressed an interesting evidentiary issue in Reed v. Advocate Health Care, 2008 WL 162760 (N.D. Ill. 2008):  Is a party is entitled to discover documents which were used by opposing counsel to refresh the recollection of witnesses?  In Reed, nurses brought a class action lawsuit against the owners and operators of hospitals in the Chicago Metropolitan Area, claiming, inter alia, that they conspired among themselves and with other hospitals in the Chicago area to depress the compensation levels of registered nurses. See id

The plaintiffs claimed that Michael Shankman, the attorney for Advocate Health Care, one of the defendants, "improperly coached" Advocate's Vice President of Compensation and Benefits and Advocate's Director of Compensation during their depositions. Id. at *1.  Specifically, the plaintiffs claimed, inter alia, that Shankman became afraid that these witnesses "would not follow their rehearsed scripts" during their deposition testimony and thus supplied them "with a copy of a law review article 'containing a road map for the defense to win this very case.'" Id.

The plaintiffs accordingly argued that any materials such as the law review article which Shankman showed to the witnesses during their depositions were writings used to refresh their memories under Federal Rule of Evidence 612.  Because Rule 612 indicates that writings used in this manner must be produced to opposing counsel, the plaintiffs argued that the defendants had to produce the documents.

The defendants countered that defense counsel's selection of these materials constituted work product and that they thus were protected by the work product privilege.  If the work product privilege were applicable, the court could only order the defendants to produce them if it found that disclosure was in the interests of justice.

The court noted that there was mixed precendent on the issue but decided to side with cases such as James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982).  In Raytheon Co., the "court held that a binder of documents used for witness preparation constituted work product because the selection and compilation revealed important aspects of counsel's understanding of the case, but that the use of the binder to refresh the witness's memory prior to testifying constituted a waiver of the protection." 

I agree with this analysis and think that a party using documents to refresh witness' recollection and then claiming the work product privilege is attempting to use the privilege as both a sword and a shield, resulting in waiver. See Sauer v. Burlington Northern Railroad Co., 169 F.R.D. 120, 123 n.3 (D. Minn. 1996).  Furthermore, it seems clear that a party using documents to refresh witness' recollection could always claim that the documents are protected by the work product privilege because the selection of those documents would always reveal important aspects of counsel's undestanding of the case.  Thus, courts finding documents non-waiver of the work product privilege in these circumstances are essentially rendering Federal Rule of Evidence 612 meaningless.


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

Sunday, January 27, 2008

D'yer Maker: Jamaica To Review Evidence Act In Wake Of Police Corruption

Approximately 100 cases and Jamaica's Evidence Act look like they will be reviewed in the wake of Detective Constable Carey Lyn-Sue's confession that he falsified witness statements that were tendered as evidence in a murder case against a 22 year-old St. James man.  After facing pressure to reduce the huge backlog in the Jamaican court system due to witness absenteeism, the previous administration amended Jamaica's Evidence Act.  Amended Section 31D made provision for statements to be admissible in criminal proceedings in certain circumstances, where the witness:

     a) Is dead

     b) Is unfit, by reason of his bodily or mental condition, to attend as a witness

     c) Is outside of Jamaica and it is not reasonably practicable to secure his attendance

     d) Cannot be found after all reasonable steps have been taken to find him; or

     e) Is kept away from the proceedings by threats of bodily harm and no reasonable steps can be taken to protect the person.

The amended act also allows for video evidence to be admitted where a witness feels physically threatened in coming to court. 

In the wake of Carey Lyn-Sue's confession, however, current Prime Minister Bruce Golding has instructed Attorney General Dorothy Lightbourne to review the act and to determine whether this was an isolated incident, or, as one public defender has claimed, whether Section 31D has been consistently abused by unscrupulous 'investigators.'  Meanwhile, former Police Commissioner Trevor MacMillan has asked that amnesty be given to cops so that those who had falsified statements would come forward, allowing the innocent to be freed.

To me, it seems clear that Jamaica went too far in liberalizing its rules regarding the admissibility of statements made by unavailable witnesses.  While the United States allows for the admission of statements by witnesses who are unavailable under Federal Rule of Evidence 804(a) and state counterparts, it only does so when the statement at issue is thought to be reliable pursuant to one of the Rule 804(b) exceptions, which include former testimony and statements against interest.

Clearly, statements admitted under the former testimony exception aren't subject to police fabrication because there is a record of this testimony.  Furthermore, while the police could fabricate a statement against interest allegedly made to them, pursuant to the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), such a statement would be inadmissible against a criminal defendant under the Confrontation Clause.


January 27, 2008 | Permalink | Comments (1) | TrackBack (0)