Saturday, December 20, 2008
The Dirty Double: Despite Having Passed Away, Lee Marvin Becomes Embroiled In Second Oral Agreement Dispute
Back in the 1970s, actor Lee Marvin was involved in one of the most famous cases ever dealing with an alleged oral agreement. And now, even though he has passed away, he has become posthumously embroiled in another such dispute.
Marvin v. Marvin, 557 P.2d 106 (Cal. 1976), is often described as "[t]he landmark decision involving unmarried cohabitants." Michelle Oberman, Sex, Lies, and the Duty to Disclose, 47 Ariz. L. Rev. 871, 894 (2005). That case dealt:
"with the affairs of Michelle and Lee Marvin, who lived together for seven years. During that time, Lee Marvin acquired considerable property in his own name. Upon the demise of the relationship, Lee evicted Michelle from the couple's joint home and denied any obligation to support her. According to Michelle, the couple had an oral understanding whereby she would serve as 'companion, homemaker, housekeeper and cook' to the defendant, and they would act as husband and wife. In exchange, they would 'share equally' in the property they accumulated, and he would support her for the rest of her life. The court accepted her testimony and upheld the legal enforcement of express contracts between unmarried cohabitants. Furthermore, the court suggested that, in future cases involving unmarried cohabitants who lacked express agreements, courts should look to the conduct of parties to determine whether there was an implied agreement to share resources. Finally, it held that courts may also award damages in these cases under the doctrine of quantum meruit." Id.
Lee Marvin has since passed away, but, in an example of deja vu all over again, the actor has once again become embroiled in a dispute involving an attempted eviction and an alleged oral agreement. This time, Marvin's widow, Pamela, wants to evict her daughter
widow and son-in-law, Wendy and Fred King, from the home that they have occupied for 25 years.
According to Pamela, the house should be sold, with the proceeds divided according to longstanding arrangements: 81% to a survivors trust that she manages and the remaining 19% to Wendy. Meanwhile, the Kings' attorney, Brick P. Storts III, has countered that Lee Marvin intended the property as part of Wendy King's inheritance and that Pamela Marvin is trying to punish her daughter. Finally, Pamela's attorneys have responded that "Wendy King's claim that Lee Marvin promised her the house as an inheritance wasn't admissible in court under Arizona's so-called 'Dead Man's Statute.'"
And, unless there are some facts of which I am unaware, I would have to agree with Pamela's attorneys. A.R.S. Section 12-2251, Arizona's "Dead Man's Statute," states that:
"In an action by or against personal representatives, administrators, guardians or conservators in which judgment may be given for or against them as such, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify thereto by the opposite party, or required to testify thereto by the court. The provisions of this section shall extend to and include all actions by or against the heirs, devisees, legatees or legal representatives of a decedent arising out of any transaction with the decedent."
This is exactly what Wendy is trying to do: testify regarding a "transaction with or statement by the testator." Thus, her proposed testimony regarding the house should be barred by Arizona's Dead Man's Statute.
Friday, December 19, 2008
We The Jury: Supreme Court Of Pennsylvania Refuses To Hear Allegations Of Extreme Juror Racial Prejudice In Death Penalty Apeal
Sometimes, I wake up and read a news article or court opinion that puts a smile on my face because of an apparent wrong that has been righted, a justice wrenched from the grasps of an injustice. Today is not one of those days.
Last March, I posted an entry about a Post-Conviction Collateral Relief Act (PCRA) petition by Fabian Smart, an African-American man from Pennsylvania who was convicted of murder in the first degree in connection with the beating death of a Lock Haven area man and sentenced to life imprisonment without the possibility of parole. According to Smart, a jury member contacted him after the trial and told him that jury members used racial slurs, which were brought up "early and often." The judge, however, precluded Smart's attempt to impeach the jury's verdict through this evidence pursuant to Pennsylvania Rule of Evidence 606(b), which states in relevant part that:
"Upon an inquiry into the validity of a verdict, including a sentencing verdict pursuant to 42 Pa.C.S.A. § 9711 (relating to capital sentencing proceedings), 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 in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received."
In that post, I noted that this ruling was consistent with another Pennsylvania opinion, this one decided in the shadow of no towers. As I noted,
"In Tabchi v. Duchodni, 56 Pa. D. & C.4th 238 (Pa.Com.Pl. 2002), an Arab husband and wife and their three children were involved in a car accident and brought a civil action against the other driver for their injuries. They thereafter moved for partial summary judgment on the issue of liability, and their motion was granted; the defendant was held solely responsible for the accident, leaving only the issue of damages to be tried before the jury. Id. at 239. At that trial, however, which began on September 24, 2001, "the jury returned a verdict in the amount of zero dollars as to each of the five plaintiffs, even though injuries to two of them were uncontroverted." Id.
After the jury rendered its verdict, one of the jurors approached plaintiffs' counsel and allegedly informed him of disparaging remarks concerning plaintiffs' Arabic heritage and culture made by other members of the jury during the course of their deliberations. Id. at 241. Several days later, the court received a letter from the jury foreperson which claimed that the ethnicity of the plaintiffs was openly discussed and apparently considered as a factor in the jury's deliberations. See id. The plaintiffs thereafter moved for a new trial, alleging, inter alia, that this prejudice made the jury's verdict fatally flawed. See id.
The court rejected this claim, finding that the "[p]laintiffs' contention that the jury was influence by anti-Arab bias and bigotry in the course of its deliberations is based solely upon the allegations of other jurors. However, such prejudice in the deliberative process, if it existed, and as odious and repugnant as it would be, is not and external or extraneous input that would override the sacrosanct nature of jury deliberations." Id. at 250 (emphasis added)."
While both of these rulings were troubling to me, they were lower Pennsylvania court opinions, giving me hope that if such a case ever reached the Supreme Court of Pennsylvania, that court would perhaps reach the opposite conclusion or at least address the broader Constitutional ramifications of excluding juror allegations of prejudice.
But those hopes were squashed when I read the Supreme Court of Pennsylvania's opinion in Commonwealth v. Steele, 2008 WL 5250893 (Penn. 2008). Steele sounds a lot like Smart. Roland William Steele, an African-American man, was convicted of three counts of first-degree murder, two counts of robbery, and two counts of theft by unlawful taking based upon his alleged killing of three Caucasian women. Like Smart, Steele filed a PCRA, and that motion was denied, leading to his appeal to the Pennsylvania Supremes.
One of Steele's claims in his PCRA was that "his due process rights and right to a fair and impartial jury were violated by [inter alia] the racial prejudice of one of the jurors." Specifically, Steele referenced a
"declaration of one of the jurors, [Mr. Mellow,] who stated that race was an issue from the inception of the trial. The juror stated in his declaration that 'early in the trial one of the other jurors commented on the race of the defendant. He also noted the race of three victims and stated that, on that basis alone, the defendant was probably guilty....' The juror continued:
I was upset that he would articulate his prejudice and speculate on the guilt of the defendant, ignoring the instructions of Judge Bell.... His comments continued at other breaks and he made very racist remarks. First one juror, then two or three more gradually became drawn to his position as the first week wore on. These jurors also belittled the efforts of the defense lawyer. They were openly critical of him and actually made fun of him....
The juror also stated that the juror that made the racist remark said, during the trial, that [Steele] should 'fry, get the chair or be hung."
And this is where Steele diverges from Smart. While Smart was given life imprisonment without the possibility of parole, the racist juror's wishes in Steele were granted: Steele was given three separate death sentences.
So, what did the Supreme Court of Pennsylvania do with this claim? Did it allow Steele to introduce the declaration upon the recognition that "death is different?" Did it recognize the Constitutional ramifications of its decision but lamentably apply the strict language of Pennsylvania Rule of Evidence 606(b) and exclude the declaration?
Unfortunately, the answer is "no and no." Instead, in a curt conclusion that seemed completely insouciant to the fact that it had a man before it sentenced to die and extreme allegations of racial prejudice and influence, the court found that
"Despite [Steele's] contentions, the exception to the general no impeachment rule is not implicated here. The exception only applies to outside influences, not statements made by the jurors themselves.... Here, one particular juror made some troubling statements. However, these statements were not based on any evidence not of record, or on any outside influences. Rather, one juror was attempting to influence the other jurors' opinion, although it was done inappropriately before deliberations. Indeed, Mr. Mellow's declaration states that the juror '... seemed to prey on the weaker jurors and tried to sway them....' Nevertheless, the influence here was internal, not from outside sources. Once the verdict was entered, the jurors, including Mr. Mellow, became incompetent to testify regarding any internal discussions or deliberations."
I mean no offense to the Supreme Court of Pennsylvania, but I have to ask, "How can you be so cold?" I'm not typically a person who shows much emotion, but I welled up reading the court's opinion. How could the court be so matter of fact with the stakes involved in this case? How could they not address the Constitutional issues raised by Steele, even if it ultimnately rejected them? I feel sick to my stomach, and it looks to me like the Justices gave Steele's claim as much consideration as a request by their children to buy them a candy bar at the grocery checkout aisle. I'm sure that's not the case, but how else would a person reading the opinion take it?
As readers of this blog know, the article I am submitting to law reviews this spring addresses the exact issue raised in Steele, and I can only hope that I can change a few hearts and minds by claiming that decisions such as the decision of the Supreme Court of Pennsylvania violate the right to present a defense.
Thursday, December 18, 2008
To The Payne: Supreme Court Of Idaho Vacates Death Sentence Based Upon Improper Victim Impact Statements
Last month, I posted an entry lamenting the United States Supreme Court's refusal to grant cert in two victim impact statement appeals. One of those impact statements can be found on the Supreme Court's website, and, as you can see, it not only contains images of the victim and statements concerning the effect of her death on her family, but also Enya music and a clip of wild horses running free.
The basis for my displeasure was that in Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court held that the Eighth Amendment does not place a per se bar on admitting victim impact statements in the sentencing phase of capital murder trials, but also held that:
"[i]f, in a particular case, a witness' testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment."
The basis for my displeasure was that, as Justice Stevens mused in dissent,
"At the very least, the petitions now before us invite the Court to apply the standard announced in Payne, and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence. Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor's side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use."
Well, even without that guidance, the Supreme Court of Idaho in State v. Payne, 2008 WL 5205959 (Idaho 2008), was recently able to determine that victim impact statements rendered a defendant's sentencing proceeding fundamentally unfair and thus vacated his death sentence and remanded for resentencing.
In Payne, a district court sentenced Darrell Edward Payne to death for the murder of Samantha Maher after a jury found him guilty of kidnapping, raping, robbing, and murdering her. Payne subsequently appealed, claiming, inter alia, that the admission of "inflammatory” and inadmissible victim impact statements violated his constitutional rights.
These victim impact statements included:
"an excessive number of letters from family members and friends, many of which stated the author's opinions about Payne, his character and the crime. Additionally, numerous family members and friends testified at the sentencing hearing and gave their opinions about Payne, his character and the crime. During the full day of victim impact testimony, described Payne as evil, a waste of aspirin, a sociopath, a cold-blooded killer, unremorseful, a predator, cold and calculating, not a man, not even human, selfish, a coward, a pathetic monster, a wimp and a man without a conscience. Witnesses also expressed their wishes that Payne 'rot in hell,' 'burn in hell' or be tortured."
Moreover, "[o]ne witness noted Bible passages he wished the court to consider; each passage called for death for a certain crime." Specifically,
"[t]his witness stated: 'As in the Good Book there's some scripture numbers I'd like to put into the record but I will not read them. Numbers 35:16, Deuteronomy 24:7, and the two special young women [Payne raped in Barber Park, Deuteronomy] 22:25.' Numbers 35:16 states, 'If a man strikes someone with an iron object so that he dies, he is a murderer; the murderer shall be put to death.' Deuteronomy 24:7 states, 'If a man is caught kidnapping one of his brother Israelites and treats him as a slave or sells him, the kidnapper must die. You must purge the evil from among you.' Deuteronomy 22:25 states, 'But if out in the country a man happens to meet a girl pledged to be married and rapes her, only the man who has done this shall die.'"
And while the United States Supreme Court has not set forth clear guidance on what can be included in victim impact statements, the state of Idaho has. According to I.C. Section 19-2515(5)(a),
"Information concerning the victim and the impact that the death of the victim has had on the victim's family is relevant and admissible. Such information shall be designed to demonstrate the victim's uniqueness as an individual human being and the resultant loss to the community by the victim's death. Characterizations and opinions about the crime, the defendant and the appropriate sentence shall not be permitted as part of any victim impact information."
Applying this standard to the above statements, the Idaho Supremes concluded that "[t]hese statements [we]re characterizations and opinions about Payne, the crime, his appropriate punishment, and calls to religious authority as the basis for punishment; as such, none of these statements were admissible." It then vacated Payne's sentence and remanded for resentencing because there was "a reasonable doubt as to whether the evidence contributed to Payne's sentence." And looking at the facts of Payne's case, I don't see how the court could have ruled any other way.
Wednesday, December 17, 2008
The Hands That Hold The Privilege: Cape May Murder Trial Reveals That New Jersey Places Confidential Marital Communications Privilege In Hands Of Both Spouses
A murder trial in Cape May, New Jersey gives me the opportunity to delve into New Jersey's confidential marital communications privilege. The state has charged Jesse Watkins with first-degree murder in connection with his alleged killing of Craig White. And according to Superior Court Judge Raymond Batten, Watkins' ex-wife, Karen Fox, will be able to testify at trial regarding Watkins' private confession to her.
According to Fox, in 1990, before her marriage to Watkins, she disclosed to him that she had an abortion before she met him. Watkins then revealed a secret of his own: He had learned that Fox was also dating White, his cousin, so he "took White out to a field, had him dig a hole and then shot him with a shot gun." Notwithstanding this confession, Watkins and Fox later married in 1997 and divorced in 2000.
So, why wasn't Watkins' confession to Fox covered by New Jersey's confidential marital communications privilege? Well, without even having to look at the privilege, it is clear that the confession was given before the couple was married, meaning that Fox could testify about it under any state's version of the privilege. When we look at New Jersey's version of the privilege, though, we see that it has some eccentricities. According to New Jersey Rule of Evidence 509,
"No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2) [Rule 501(2)]. When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication."
The first point I want to make about this privilege is that it is the rarest type of confidential marital communications privilege. The vast majority of states place the privilege either in the hands of the defendant spouse, who can prevent his spouse from testifying against him, or in the hands of the testifying spouse, who can choose whether to testify against the defendant spouse. New Jersey is thus one of very few states that requires the consent of both spouses to have the privilege waived.
The second point is that I have come across very few confidential marital communications privileges that address the separation situation (although some courts read these in). So, according to New Jersey, if you have a "War of the Roses" type situation where spouses are separated but living under the same roof, the privilege still applies. And if spouses are separated and living apart but they briefly reconcile for a night of passion, the privilege still applies as well.
Tuesday, December 16, 2008
What Kind Of Right?: Seventh Circuit Suggests In Dicta That Right To Present A Defense Could Apply To Discretionary Evidentiary Rulings
It is well established in Supreme Court precedent that:
"[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986).
And in every Supreme Court case finding that a court's application of a rule of evidence violated a defendant's right to present a defense, the rule applied by the court has been a per se rule of exclusion. But can a court only violate a defendant's right to present a defense through mechanistic application of per se rules of exclusion?
That was the approach taken by the Ninth Circuit in Moses v. Payne, 2008 WL 4192031 (9th Cir. 2008). As I noted in a previous post, the Ninth Circuit found that a trial court's refusal to allow a defendant to admit expert testimony pursuant to Washington Rule of Evidence 702 could not have violated his right to present a defense because:
"Rule 702 is different in kind from the rules in [the Supreme Court cases.] The evidentiary rules in those cases, by their terms, required the trial court to exclude crucial evidence that had a critical effect on the trial, with little or no rational justification. In general, the rules precluded a defendant from testifying, excluded testimony from key percipient witnesses, or excluded the introduction of all evidence relating to a crucial defense. In contrast, Rule 702 does not require a trial court to exclude evidence. Rather, it authorizes a court to admit expert testimony 'if it will assist the trier of fact to understand the evidence or a fact in issue.' Accordingly, a decision that Rule 702 itself is constitutional would be consistent with Supreme Court precedent."
Well now, in its recent opinion in Simonson v. Hepp, 2008 WL 5134700 (7th Cir. 2008), the Seventh Circuit has suggested in dicta that a court can violate a defendant's right to present a defense through a discretionary evidentiary rule such as Rule 702.
In Hepp, Chas Simonson was convicted of sexually assaulted his seven-year-old daughter. And some of the evidence used to prove that the daughter was sexually assaulted was the testimony of Nurse Julie Kennedy-Oehlert, who testified that the daughter's hymenal tissue along the lower portion of her vagina was "virtually missing." In her opinion, the only explanation was insertion of an object, such as a man's penis.
To counter this testimony, Simonson sought to develop an alternate explanation for the hymenal damage. He made an offer of proof that his daughter was severely constipated when she was one year old, and that her mother and grandmother attempted to extract the stool by pressing their thumbs against her rectal and vaginal areas as if they were trying to "pop a pimple." The state trial judge disagreed and precluded Simonson from presenting expert testimony on this issue because "[o]rdinary experience and common sense" did not reveal the link between the alleged cause and effect."
On Simonson's appeal, the Seventh Circuit affirmed, concluding that
"[w]hile there is some intuitive merit to the idea that pressure near the vaginal and rectal areas could result in tearing of the hymen, it is far from obvious. It is not like asking a jury to consider, say, the fact that a blow from a baseball bat can lead to a broken limb. Nevertheless, it is tempting to buy Simonson's argument that there was relevant expert testimony available-Kennedy-Oehlert's statement that the hymen generally stays intact "unless there is some pressure put directly on that tissue or near that tissue." It is tempting, we say, but not wholly convincing. It was reasonable to hold that this testimony did not suit the purpose because Kennedy-Oehlert announced this general proposition only as background to her specific conclusion (that the injury was caused by insertion of an object). Kennedy-Oehlert probably would have been surprised to learn Simonson's application of her testimony. That's how the state courts saw it, and we are not prepared to label that view objectively unreasonable."
So, the Seventh Circuit found no violation of Simonson's right to present a defense, but as you can see in the dicta from the above block quote, it might have found such a violation in, say, an assault case, where the defendant was trying to argue that a victim's injuries were caused by a bat-wielding co-defendant rather than by the defendant's fists.
Readers of this blog know that I am a big fan of a broad reading of the right to present a defense (indeed, my next article argues that it should apply to allegations of racial/religious prejudice by jurors), so why do I disagree with the Seventh Circuit's dicta, and why did I previously agree with the Ninth Circuit's ruling?
Well, the right to present a defense applies to cases where judges follow the letter of a per se evidentiary rule and thus exclude evidence despite the exclusion violating the spirit of the law and/or the ends of justice. Conversely, when a trial judge improperly applies a discretionary rule of evidence, such as by excluding expert evidence that a bat can break a limb, an appellate court can simply find that the judge abused his discretion and order a new trial on evidentiary grounds without having to resort to the right to present a defense.
Monday, December 15, 2008
The Hand That Holds The Privilege: Case Reveals That Military Rule Of Evidence Places Confidential Marital Communications Privilige In Hands Of Speaker
The recent opinion of the United States Air Force Court of Criminal Appeals in United States v. James N. Durbin, 2008 WL 5192441 (A.F.Ct.Crim.App. 2008), reveals that the holder of the confidential marital communications privilege under the Military Rules of Evidence is the spouse making the statement at issue.
In Durbin, around midnight on a night in March 2005, Ms. GD, then the wife of James Durbin, was doing homework on his laptop computer, whereupon she discovered what she believed to be child pornography. After discovering the images, she woke her husband and demanded an explanation. And after initially denying knowledge of how the images got on his computer, he claimed that "it was just a one-time thing" and promised to delete the images. Ms. GD told her husband that he was sick, that he needed help, and demanded that he leave their residence.
Subsequently, a panel of officers sitting as a general court-martial found James Durbin guilty of one specification of wrongfully possessing child pornography based in part upon the Ms. GD's testimony about what she told him after discovering the alleged child pornography. And part of the basis for his appeal was that her testimony was rendered in violation of Military Rule of Evidence 504(b), its confidential marital communications privilege, which states in relevant part that:
"A person has a privilege during and after the marital relationship to...prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law....[T]he privilege may be claimed by the spouse who made the communication or by the other spouse on his or her behalf."
Of course, the problem for the defendant was the last portion of the rule, which places the privilege in the hands of the spouse who made the confidential communication, his wife, and because she "opted to disclose her communications she had with [him],...the military judge did not abuse his discretion in admitting her statements."
I thus agree with the court's opinion on the privilege issue, but I also wonder why the wife's statements were not deemed inadmissible hearsay, an issue which the opinion did not address. I suppose that if the wife's statements were made immediately after viewing the images, they could have constituted present sense impressions. And if we can characterize viewing what one believes to be child pornography as a startling event, and we can assume that the wife was still under the stress of that startling event when she spoke to her husband, her statements could have constituted excited utterances. But I would need to know more about the facts of the case to make either of those conclusions.
Sunday, December 14, 2008
Motor City Mistake: Judge's Cutting Short Of Pre-Trial Examination Renders Former Testimony Exception Unavailable
According to an article in the Detroit News, "[a] mistake by 36th District Court Judge Miriam Martin-Clark led to charges being thrown out against an auto mechanic accused of beating a man with a lead pipe in an argument over a $17,500 real estate deal gone bad, according to the Michigan Court of Appeals." And the article is right.
In People v. Al-Lahham, 2008 WL 5158897 (Mich.App. 2008), the prosecution charged Mohamed Al-Lahham with assaulting Marlon Ozier with intent to commit murder. Subsequently, during a pre-trial examination of Ozier, defense counsel began to explore inconsistencies between Ozier's statements to the police and his testimony at the examination, resulting in the following exchange:
"THE COURT: Okay. We're closing this out, Mr. Cripps [defendant's counsel]. I assume you're done.
MR. CRIPPS: No, I'm not done.
THE COURT: Well, you are, you are. I'm not allowing you anymore questions. The Court gave you fair warning, five minutes. It's now after five minutes, so the Court is not allowing anymore questions by you of this witness.
MR. CRIPPS: I object to that, but you're the Court, you're cutting me off.
THE COURT: You cannot object. I'm cutting you off. It is now 1:21. This Court is not supposed to take the staff through the lunch break and we have done that and we have allowed you a great latitude to question this witness. You're cut off. You're cut off. Mr. Burton [the prosecutor], if you have anything brief you may ask it, otherwise I'm going to excuse this witness. This is ridiculous."
At this point, defendant's counsel explained that he had only been cross-examining Ozier for twenty minutes and asked to adjourn for lunch and continue the cross-examination afterwards, but the court refused. The court noted that the standard for a preliminary hearing was different than that for a trial and that the testimony and evidence defendant's attorney's wanted to present went to questions of fact that would "be determined by the next-at the next stage of the proceeding...."
But this testimony would not be forthcoming because Ozier was murdered before trial, and Al-Lahham wasn't a suspect in his killing. But the prosecution wanted to admit Ozier's testimony from the pre-trial hearing pursuant to Michigan Rule of Evidence 804(b)(1), the former testimony exception to the rule against hearsay, which in relevant part renders admissible:
"[t]estimony given as a witness at another hearing of the same... proceeding, if the party against whom the testimony is now offered...had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."
The trial court, however, found Ozier's testimony to be inadmissible, and the Michigan Court of Appeals affirmed. It did not do so, however, on the ground that the former testimony exception was inapplicable. Indeed, the court noted that "[i]n the present case, there is no doubt that Ozier is unavailable and that defendant's counsel did in fact have some opportunity to cross examine Ozier."
The court, however, found that this conclusion did "not end the inquiry." Instead, it found that admission of Ozier's testimony would violate the Confrontation Clause because
"[t]he Confrontation Clause does not require that the defendant be afforded only some opportunity to cross-examine the witnesses against him; rather, it requires that the defendant be afforded the opportunity to effectively cross-examine the witnesses against him."
I agree with this Confrontation Clause conclusion by the court, but I disagree with its hearsay ruling. Just as the Confrontation Clause requires the opportunity to effectively cross-examine and not merely some opportunity to cross-examine, the former testimony exception requires a full and fair opportunity to develop testimony, not just some opportunity to do so. See, e.g., People v. Harris, 2001 WL 1004367 (Mich.App. 2001).
In the end, though, the evidentiary result was the same, and because it left the Wayne County Prosecutor's office without enough evidence to convict Al-Lahham, they dropped the case against him."