EvidenceProf Blog

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

Saturday, February 9, 2008

To Tell The Truth, Take 2: Researchers Claim 100% Accuracy In fMRI Studies

Earlier, I posted about research being conducted by a project launched by the John D. and Catherine T. Macarthur Foundation about how breakthroughs in neuroscience can be used in the courtroom.  As I noted, the most interesting part of an article reporting on the project were claims by at least 2 companies that they could use a type of brain scan called a fMRI (functional magnetic resonance imaging) to detect lies with greater accuracy than a polygraph.  I contended that if such claims led to fMRIs being admissible in court as lie detection tools, it would completely overhaul the current legal landscape under which polygraph results are generally inadmissible.  New research suggests that such a day may be closer than anyone thought.

First, let's look at how the fMRI works:  "Inside the machine is a magnet field 60,000 times the strength of gravity, equipped with special software that not only scans, but analyzes, the brain, four millimeters at a time. It looks for signs of lying when the person is confronted with some fairly simple questions." 

University of Las Vegas Associate Professor Phillip Patton is two months into a research project on whether the fMRI will one day be a foolproof lie detector.  According to Patton, "We showed [participants] a series of cards, and we asked them if that was their card that we handed them previously. One card they were supposed to tell the truth about, the other, they were supposed to lie about."  Patton has claimed that in all of the 20 studies he conducted, he was able to predict the truth based on "activation," under the theory that lying increases blood flow to key areas of the frontal lobe of the brain.  According to Patton, "We can see the part of the brain that is stopping the truth from coming out. We can see the other part of the brain that is constructing a lie."

University of Nevada, Reno Professor Craig Kluman cautions that there hasn't been nearly enough testing on the device to establish its accuracy.  He also notes that the device could be abused by law enforcement and that it is potentially violative of the right to privacy.  However, Joel Huizenga, president of a California company called No Lie MRI, claims that the fMRI will eventually be admissible in court, just like DNA evidence.  In the meantime, he is already charging $5,000 to $10,000 to take the fMRI test, with most clients being husbands and wives looking to prove their fidelity.

Personally, I side more with Professor Kluman as the test seems a bit too much like the precogs in Philip K. Dick's short story "Minority Report" (and Steven Spielberg's inferior movie of the same name).  But it will certainly be interesting to see the degree to which the brain scan will become accepted in the scientific, law enforcement, and judicial communities.


February 9, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, February 8, 2008

Evidence And Ethics 10: Professor Imwinkelried's Clarifying the Curative Admissibility Doctrine: Using the Principles of Forfeiture and Deterrence to Shape the Relief for an Opponent's Evidentiary Misconduct

UC Davis School of Law Professor Edward J. Imwinkelried's contribution to the Evidence and Ethics Symposium is his article, Clarifying the Curative Admissibility Doctrine: Using the Principles of Forfeiture and Deterrence to Shape the Relief for an Opponent's Evidentiary Misconduct.  Professor Imwinkelried begins by noting that under the "doctrine, if the opposing attorney injects inadmissible evidence into the record, the trial judge may allow the injured party to respond in kind to cure the damage done by the introduction of the inadmissible evidence."  In determining whether and how to apply this doctrine, judges must ask themselves two questions:  (1) Should I permit the innocent party to respond with otherwise inadmissible rebuttal evidence, and (2) If so, how far should I go?  Unfortunately, as Imwinkelried notes, the parameters of this doctrine are poorly defined, with courts often blurring the distinctions between curative admissibility and related doctrines such as specific contradiction impeachment in answering these questions.

In Part I of his article, Imwinkelried argues that judges should look at the forfeiture principle in answering the initial question and the deterrence principle in answering the second.  In other words, in determining whether he should permit the innocent party to respond with otherwise inadmissible rebuttal evidence, the judge should focus on the prejudicial nature of the improperly admitted evidence, not the subjective intent of the party/attorney who admitted the wrongful evidence.  In determining how far he should go, the judge should be guided by what ruling will deter future evidentiary violations and encourage compliance with evidentiary norms.

In Part II, Imwinkelried considers whether his proposed method of applying the curative admissibility doctrine comports with the Federal Rules of Evidence.  He contends that while there was no express reference to "forfeiture" before 1997, the "forfeiture by wrongdoing" exception was added as Federal Rule of Evidence 804(b)(6) in 1997, which could fuel the argument that the drafters explicitly approved of the forfeiture concept in only one context, impliedly disapproving of its use in other contexts.  But he rejects this argument, looking at the rule's legislative history and how courts have continued to apply the forfeiture concept in other contexts post-1997.  He also raises and rejects a similar argument under Federal Rule of Evidence 402, concluding, inter alia, that evidence admitted under his forumlation of the curative admissibility doctrine would clearly be "relevant to the issue injected by the opposing attorney...."

My favorite part of the article, however, is Imwinkelried's last argument, which focuses on Federal Rule of Evidence 102, which states that the Federal Rules of Evidence "shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined."  I have taken a keen interest in Rule 102 lately, but it is a rule which courts have almost never applied in large part because, as Imwinkelried notes, its "text is vague in the extreme."  And yet, its text must mean something, and Imwinkelried contends that we should define the phrase "justly determined" with reference to Federal Rule of Evidence 403, which states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Imwinkelried argues that the concept of "unfair prejudice" is kindred to the notion of "injustice."  Thus, focusing the curative admissibility doctrine's first question on "forfeiture" and thus the prejudicial nature of the improperly admitted evidence ensures that proceedings are "justly determined" under Rule 102. 


February 8, 2008 | Permalink | Comments (0) | TrackBack (0)

Forfeit Victory, Take 2: Supreme Court of Montana Finds Forfeiture By Wrongdoing Doctrine Doesn't Require Specific Intent

As I noted before, the United States Supreme Court recently granted certiorari in Giles v. California, a case that addresses the issue of whether the forfeiture by wrongdoing doctrine applies even when the prosecution cannot prove a specific intent on the part of a defendant to render a prospective witness unavailable to testify at trial.  The Court' opinion in the case is likely to have a significant impact across the country as courts are increasingly finding that such intent is not required.  Earlier, I wrote about how the Supreme Court of Wisconsin found that specific intent on the part of a defendant to render a prospective witness unavailable at trial was not required to apply the forfeiture by wrongdoing doctrine in the Mark D. Jensen trial.

Now, the Supreme Court of Montana has come to a similar conclusion in State v. Sanchez, 2008 WL 273926 (Mont. 2008).  In Sanchez, Raul Sanchez was convicted of deliberate homicide and sentenced to life without parole in connection with the shooting death of his estranged girlfriend, Aleasha M. Chenowith.  After dating Chenowith for about 4.5 months, Sanchez became suspicious that she was cheating on him with his co-worker.  He then confronted the co-worker, who confirmed his suspicions.  Subsequently, on the night of July 19, 2004, Sanchez was distraught, angry, and drinking as he tried to get Chenowith to come out of he trailer to talk to him.  She eventually came outside, they argued, and he shot her five times, allegedly when she threatened to have his children taken away.  These facts were not substantially disputed because Sanchez turned himself into law enforcement officials later that night and admitted to the shooting.  The question, though, was whether this was a planned murder or a heat of passion killing (Sanchez testified that something got dark in his head when Chenowith told him that she would have his children taken away.).

As evidence that the murder was planned, the prosecution sought to introduce, inter alia, a note written by Chenowith, which stated:

"On July 8, 04 around 10:30 p [sic] Raul Sanchez Cardines told me if I ever was cought [sic] with another man while I was dating him, that he would kill me.  Raul told me that he had friends in Mexico that had medicine that wold kill me and our doctors wouldn't know what it was till it was to [sic] late and I would be dead."

This statement would have been inadmissible hearsay unless the forfeiture by wrongoing doctrine applied.  Under this doctrine, a defendant waives his hearsay and Confrontation Clause ojections to evidence when he engages or acquiesces in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.  So, for instance, in the Sanchez case, if an eyewitness saw Sanchez kill Chenowith, the eyewitness told a friend, and then Sanchez killed the eyewitness, the friend could testify about the eyewitness' statements at trial, despite the statements constituting hearsay.

The more difficult question is whether a defendant like Sanchez, who specifically intended to kill Chenowith but who did not specifically intend to prevent her from testifying at trial against him, triggers the forfeiture by wrongdoing doctrine.  Like the Supreme Court of Wisconsin, the Supreme Court of Montana found that such intent was not required and thus found that the note was admissible pursuant to the forfeiture by wrongdoing doctrine.  The United States Supreme Court's upcoming decision will either confirm the validity of the ruling or strike it down.  I have my own thoughts on the dcotrine in this post.


February 8, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 7, 2008

Evidence And Ethics 9: Joseph Colquitt's Evidence and Ethics: Litigating in the Shadows of the Rules

University of Alabama School of Law Professor Joseph Colquitt's contribution to the Evidence and Ethics Symposium is his article, Evidence and Ethics: Litigating in the Shadows of the Rules.  The article raises a fascinating ethical issue:  What should an attorney do when opposing counsel offers a stipulation, the court finds that the attorney does not have to accept the stipulation, and yet the attorney knows that the evidence he seeks to admit is highly prejudicial.  Professor Colquitt opens his article with 2 intriguing scenarios, both partially based off of real world cases:

     -In Scenario 1, "[t]he socially prominent wife of a well-known physician stands charged with capital murder.  The charge arises out of the brutal murder of her husband in their home by an individual allegedly hired by the wife to kill the husband.  The prosecution asserts that the wife was motivated by her desire to obtain the husband's multimillion-dollar estate and to continue her social liaisons with several men.  Both the husband-victim and the wife are white.  The prosecution will call a former paramour to the stand to testify to the liaisons.  The witness is African-American, and he was married, with children, at the time of his sexual liaisons with the defendant."

Colquitt notes that the prosecution could offer this witness' testimony to prove motive and that if the judge finds it admissible, defense counsel could offer a stipulation that the defendant engaged in several extramarital affairs.  The judge could then find that the prosecution would not need to accept this stipulation, but Colquitt wonders whether it should, noting the highly prejudicial effect of such testimony and the prosecutor's obligation to the public.

     -In scenario 2, "[a] man is charged with rape, based on a woman's allegation that she was raped by an acquaintance during a date.  She reported to the police that she and the man had been dating rather frequently for some period of time, and that the man sexually assaulted her when they returned to her home from a social event.  During an ensuing police interrogation, the accused insisted that the sexual acts were consensual.  He stated that after the sexual relations an argument ensued, and he departed.  Shortly thereafter, she called the police and accused the man of rape.

     To prove that the allegation is false, the defense will call a witness to prove that the prosecutrix made a previous false claim of rape.  Both the current defendant and the prosecutrix are white.  The potential witness is African-American.  He will testify to a similar experience with the prosecutrix when they were dating."

Colquitt notes that if the judge finds this witness' testimony admissible, the prosecution could offer a stipulation that the prosecutrix previously claimed falsely that she was raped by another man.  The judge could then find that defense counsel would not need to accept this stipulation, but Colquitt again wonders whether it should, noting the highly prejudicial effect of such testimony.

After comprehensively analyzing these scenarios in Parts I and II, in Part III Colquitt contends that we should not only "provide counsel with some standards or rules (as we do), but that we also should school counsel that as attorneys they will be called upon to exercise professional judgment, and in doing so, they may have to rely on their professional conscience to identify the appropriate course of action."  I find the points raised by the article to be very interesting and plan on incorporating them into my "stipulation" materials the next time I teach Evidence.


February 7, 2008 | Permalink | Comments (0) | TrackBack (0)

Survivor: Rhode Island -- First Circuit Upholds Richard Hatch's Convictions Based In Part On Expert Testimony Ruling

The First Circuit Court of Appeals has upheld the tax and fraud convictions of Richard Hatch, the first winner of CBS' "Survivor," finding, inter alia, that the trial court properly allowed an IRS agent to provide expert testimony about the proper tax consequences of a transaction. See United States v. Hatch, 2008 WL 274037 (1st Cir. 2008).  In 2005, Hatch was indicted in Rhode Island for related tax and fraud crimes such as tax evasion based upon, inter alia, filing a "tax return for the year 2000 in which he falsely stated that he had negative income and was owed a $4,483 refund, and that he willfully failed to declare three sources of income: (a) the over one million dollars he won on “Survivor;” (b) $18,708 in rental income from property he owned in Newport, Rhode Island; and (c) $25,000 in charitable donations diverted to his own use." at *1.

During a pre-trial hearing, the prosecution indicated that it wanted to call IRS agent Michael Pleshaw to testify that if the above listed sums "omitted from the tax returns had been included, substantial tax would be owed," an element needed to prove tax evasion. Id. at *18.  There apparently was some dispute as to whether Pleshaw would be testifying as a fact witness or an expert witness, and the prosecution did not qualify Pleshaw as an expert witness. Id.  The record revealed, however, that while the trial judge invited defense counsel to file a motion for a Daubert hearing to determine whether Pleshaw needed to be qualified as an expert witness, defense counsel failed to file such a motion. Id. at *19.  Pleshaw  subsequently testified at trial, leading to Hatch's convictions. 

On appeal, Hatch claimed, inter alia, that the trial court improperly allowed Pleshaw to provide expert testimony. Id.  The First Circuit rejected this argument, noting that defense counsel failed to file a motion for a Daubert hearing, despite the trial judge's invitation. Id.  The court further found that if defense counsel would have asked for such a hearing, the trial judge would have qualified Pleshaw as an expert witness in conformity with precedent allowing IRS agents to provide expert testimony as to the proper tax consequences of transactions. Id.   

This conclusion seems correct to me because IRS agents have specialized knowledge about taxes that would be helpful to the trier of fact.  Indeed, my review of case law across the country reveals that several courts have all came to the same conclusion as the First Circuit. See, e.g., United States v. Pree, 48 F.3d 855, 869-70 (7th Cir. 2005); United States v. Mohney, 949 F.2d 1397, 1406-07 (6th Cir. 1999). 


February 7, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 6, 2008

Evidence And Ethics 8: Professor Rothstein's "Anything You Say May Be Used Against You": A Proposed Seminar on the Lawyer's Duty to Warn of Confidentiality's Limits in Today's Post-Enron World

Georgetown University Law Professor Paul F. Rothstein's contribution to the Evidence and Ethics Symposium is, "Anything You Say May Be Used Against You": A Proposed Seminar on the Lawyer's Duty to Warn of Confidentiality's Limits in Today's Post-Enron World.  The article is exactly what its title suggests:  a comprehensive guide on how a seminar on confidentiality's limits could look.

In Part I, Rothstein begins by addressing the problem.  He notes that while historically clients could be relatively confident that virtually anything that they told their attorney would be protected by the attorney-client privilege and the lawyer's ethical obligation of silence, modern developments such as the Sarbanes-Oxley Act and corresponding or even broader provisions in many state and model ethics rules, "the confidence that one's communications with a lwyer will remain sacrosanct today may be badly misplaced."

Part II notes that utility of the proposed seminar in light of the fact that there simply is not enough time to cover these issues in either an evidence class or most professional responsibility classes, and yet they rise with potentially great frequency in practice.

Part III then lays out Rothstein's vision of the course, which starts with students preparing "background reports" on issues ranging from sources of condidentiality to limits on confidentiality and concludes with a final unified report addressing issues such as whether existing warning requirements are sufficient.  In between students would engage in other tasks such as conducting mock interviews and preparing "specific creative papers."

It seems clear to me that Rothstein's seminar fills a clear void in the curricula in most law schools, and such a seminar is certainly something I will consider proposing to my school in the future.


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

Raising Arizona: Judge Prevents Defendant From Using Prior Conviction To Impeach Neighbor

An Arizona judge has ruled that Ronald D. Koch cannot impeach the credibility of his neighbor, Joshua Liest, through Liest's 1996 felony conviction for receiving stolen property in Koch's trial for aggravated assault and endangerment.  It is undisputed that the 50 year-old Koch shot Koch twice on August 13th during a disagreement, but the two men disagree as to what precipitated the shooting.  Koch claims that he was on a tractor, cutting grass on his own property when Liest approached him in a hostile and threatening manner while muttering under his breath in a threatening manner.  Koch also claims that he believed that Liest began reaching behind his back for a weapon, which led Koch to shoot him twice.  Koch is the president of an association that maintains the water supply from a well that served Kock, Liest, and others, and Koch was in the process of taking legal action against Liest for failure to pay his assessments at the time of the shooting.  Liest counters that he "did not reach for anything" before Koch shot him, and contends that the shooting took him completely by surprise.

The article reporting on the story notes that Koch tried to impeach Liest's credibility by introducing evidence on Liest's felony conviction on May 9, 1996 for receiving stolen property.  The article then notes that the judge refused to allow such impeachment during the trial, scheduled to start on February 25th, pursuant to the Arizona Rules of Evidence, which state that prior felony convictions more than 10 years old are inadmissible to impeach a witness/party unless a strict test is satisfied.  Specifically, under Arizona Rule of Evidence 609(b), "[e]vidence 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 substantiall outweighs the prejudicial effect." (emphasis added).

The important point in this rule is that in determing whether a prior conviction is older than 10 years, you go by the later of the date of the conviction or the date of release.  So, the fact that Liest was convicted on May 9, 1996 is irrelevant if he subsequently served time; it would be his date of release that would be relevant, with the question being whether he was released before late February, 1998.  Unfortunately, the stories on the case don't mention Liest's release date, even though it is the only relevant date (unless Liest's case is the rare case where he served his time before his trial and was then convicted and sentenced to "time served," which would make the conviction date the later date).  I'm assuming that the judge hearing Koch's case relied on the correct date, but with the way that courts frequently mishandle Rule 609 objections, one can never be sure.


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

Tuesday, February 5, 2008

Evidence And Ethics 7: Gerald Shargel's Federal Rule 608(b): Gateway to the Minefield of Witness Preparation

The contribution of Gerald L. Shargel, a criminal defense attorney and Practitioner-in-Residence at Brooklyn Law School, to the Evidence and Ethics Symposium is Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation.  Under Federal Rule of Evidence 608(b), a witness can be questioned on cross-examination about specific instances of truthfulness/untruthfulness of the witness or another witness, but these specific instances of conduct cannot be proven by extrinsic evidence.  In other words, a prosecutor could ask a defense witness whether he ever cheated on his taxes. If the witness admits to such cheating, the jury can take his admission as evdience that the act occurred, but no more evidence on the issue is allowedl if the witness denies cheating, the prosecutor cannot introduce, inter alia, the witness' tax returns or the testimony of another witness to prove the cheating.

As Shargel notes, this Rule raises the difficult ethical question of whether and when attorneys should reveal to their clients the contents of Rule 608(b) and state counterparts.  According to the "zealous advocates" school, informing a client about this rule is useful if not necessary for effective representation by forwarding goals such as witness preparation and client participation and autonomy.  Meanwhile, according to the "truth trumps" school, informing a client about the rule risks tempting him to commit perjury and undermining the search for truth and justice in general.  In Part I, Shargel considers these and other points and ultimately decides that (a) an attorney should tell his client that Rule 608(b) bars extrinsic evidence of collateral bad acts even though this might tempt him to commit perjury, and (b) an attorney should tell the client about Rule 608(b) before asking the client about his past.

Shargel acknowledges, however, that this course of action can easily lead to client perjury, and in Part II, he discusses a variety of techniques that attorneys can use when their clients plan to use Rule 608(b) to commit perjury, ranging from dissuasion and withdrawal to having clients testify in narrative form.

Finally, in Part III, Shargel reviews a variety of reforms that have been proposed to Rule 608(b).  He then endorses a proposal under which Rule 608(b) would still prevent extrinsic evidence concerning specific instances of truthfulness/untruthfulness when a witness denies the instance, but under which extrinsic evidence would be allowed when a witness admits the instance.  Thus, in the tax fraud example from above, if a defense witness denied committing tax fraud, the prosecutor still could not prove his tax fraud through extrinsic evidence.  But, if the defense witness admitted that he committed tax fraud, the prosecutor could then introduce extrinsic evidence to further prove that the tax fraud occurred.

Shargel acknowledges that such a change places the "honest liar" in a worse position than the "lying liar."  But, he also notes that the purpose of Rule 608(b)'s extrinsic evidence ban is to prevent "trials within trials," wasting the court's resources and confusing the issues. When a witness, however, admits to an act such as tax fraud, the concern about having a "trial within a trial" is no loner exists.  Furthermore, Shargel rejects amending Rule 608(b) to allow for extrinsic evdience against "lying liars," noting that Rule 608(b) was never intended to entrap such witnesses. 

I'm not sure that I agree with all of Shargel's conclusions, but they are well argued and have given me reason to research these issed more thoroughly.


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

Aruba, Jamaica, Take 2: Top Dutch Lawyer Contends That Tape May Be Inadmissible Even Though Obtained Without The Assistance Of Police

Yesterday, I wrote about how I thought that the secret videotaped confession of Joran van der Sloot would be admissible assuming that Aruban criminal law (which is modeled after Dutch criminal law) is similar to American law in deeming confessions inadmissible if unconstitutionally obtained by the government but admissible if unconstitutionally obtained by a private citizen.

Top Dutch lawyer Gerald Spong, however, has contended that the videotape obtained by Patrick van der Eem in collaboration with crime reporter Peter R. de Vries, "was, according to the European Court, a violation of the right of privacy. This court decided that monitoring and recording conversations by a private person in the context of and on behalf of an official investigation with the use of technical assistance of the police, is inadmissible."  Furthermore, "[a]ccording to Spong, even without the assistance of the police, penetrating the personal life with visual technical means is also inadmissible.  'But if that illegal evidence is given to justice on a silver platter, it may still be used in some cases, according to the verdict. I am not certain whether this is also the case here but it is indeed exciting.'"

The issue thus seems very muddled, with the possibility that an Aruban court could just as easily find the tape admissible or inadmissible.  What seems clearer according to Spong and to people watching 20/20 last night is that van der Sloot's was not an explicit confession of murder, merely a confession that he had some role in hiding Holloway's body after she died.  And, according to Antillean and Aruban law, a person who buries, hides, carries off or takes a body with the intent of concealing the death, will be sentenced to a maximum of 6 months imprisonment or a fine of a maximum of 300 guilders. It is not possible to keep the person in custody for such deed.


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

You're Sure To Fall In Love With Old Cape Cod: Judge Allows Testimony By Juror's Great Aunt In Juror Bias Hearing

In November 2006, Christopher M. McCowen, an African-American man, was convicted of raping and fatally stabbing fashion writer Christa Worthington at her secluded bungalow in the affluent beach town of Truro on Cape Cod.  Days after the jury rendered the verdict, however, three jurors contacted McCowen's attorney, Robert A. George, and told him that there had been racial bias during deliberations.  Two jurors specifically indicated that juror Eric "Billy" Gomes, a "dark-skinned Cape Verdean," said that he "did not like blacks because they cause trouble and that he considered himself white and preferred to socialize with whites."

These jurors' statements led to McCowen moving for a new trial and Judge Gary A. Nickerson conducting hearings to determine whether racial bias had an effect on the jury deliberations.  During questioning, Gomes denied making racist remarks, and his testimony was reported in a Cape Cod newspaper, which his 74 year-old great aunt Delainda Julia Miranda read.  Miranda then contacted Peter Manso, who is writing a book about the case, and Manso contacted George.  This led to George calling Miranda at the hearing, and she testified that Gomes "doesn't like blacks."  She claimed that Gomes "often made disparaging remarks about blacks similar to those he allegedly uttered to jurors" and "repeatedly denied being black."  She further testified that Gomes said that "all blacks do is come down here and get in trouble, do drugs," that they "don't like to work, and that all blacks like to do is kill people."  Nickersen is expected to rule on the motion for a new trial within 60 days.

According to the article on the case, "[l]egal specialists have said that Nickerson's decision to interview the former jurors was highly unusual because judges typically avoid prying into deliberations after a verdict. But federal rules of evidence and case law make a notable exception for extraneous racist remarks, particularly if the comments intimidate jurors and prevent them from voting their conscience."

This statement is partially correct.  Under Federal Rule of Evidence 606(b), "[u]pon 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." (emphasis added).  Massachusetts applies the language of Rule 606(b) in its case law. See Commonwealth v. Delp, 672 N.E.2d 114, 116 n.3 (Mass.App.Ct. 1996).

The article is wrong that there is an exception under Rule 606(b) for racist remarks by jurors as courts have held that these do not constitute extraneous matters. See  Commonwealth v. Laguer, 571 N.E.2d 371, 376 (Mass. 1991).  The article is right, though, that some (but not all) cases have created an exception for racist remarks by jurors, allowing them to be admissible irrespective of the rules of evidence because deeming them inadmissible would violate defendants' rights to due process/equal protection/fair trials. See id.  This is the conclusion that the Supreme Judicial Court of Massacusetts came to in Laguer, where it held a hearing on juror bias when a defendant was convicted, and there was evidence that "[t]he deliberations were tainted wih blatant racism...." Id. at 375.   

Furthemore, the article on the case cites Jeffrey B. Abramson, a former prosecutor and now a professor at Brandeis University as saying, "I don't believe I have ever heard of a judge going to this length to essentially call a collateral witness....It means we now have a minitrial within a trial. We have a particular juror on trial."  I was in the same position as Professor Abramson until I heard about a bizarre case in Illinois where a judge allowed a reverend and his brother to testify in a post-verdict hearing that a juror told them that he had doubts about the defendant's guilt and was pressured by other jurors into finding him guilty.  In commenting about the case, I contended that the judge ruled incorrectly because the juror could not testify about this internal pressure pursuant to Rule 606(b), and the testimony of the reverend and his brother constituted inadmissible hearsay.

In the McCowen case, however, I think that the judge got it right.  As I noted, when a judge decides to hold a hearing investigating juror bias, he is saying that, despite the rules of evidence, the defendant has a Constitutional right to a hearing to investigate whether racism, sexism, etc. tainted the jury's verdict.  Thus, any argument that Miranda's testimony constituted inadmissible hearay would seem inapposite because the judge has already ruled that this is not a situation governed by the rules on evidence.


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

Monday, February 4, 2008

Aruba, Jamaica, Oooh I Want To Take You: Aruban Chief Prosecutor Claims Tape Made By Private Citizen Admissible In Natalee Holloway Case

Ever since American teenager Natalee Holloway disappeared on the island of Aruba during a high school post-graduation trip, police say that they have done everything in their power to crack the case.  In the wake of a tape which was first broadcast on Dutch television on Sunday night, they might finally have their break.

Holloway was last seen leaving a bar with Dutch student Joran van der Sloot and two Surinamese brothers hours before she was due to board a flight home.  Police, however, have been unable to prove that van der Sloot caused Holloway's disappearance, that is, until the tape that aired on Sunday in a report by a Dutch investigative journalist. 

Apparently, Dutch businessman Patrick van der Eem, a 34 year-old Dutch businessman, befriended van der Sloot with the intention of prying a confession out of him. (echoes of Linda Tripp). van der Eeem then secretly recorded van der Sloot saying with regard to Holloway, inter alia, that while he was with her, "[s]uddenly she started shaking and then she didn't say anything."  "I would never murder a girl."  According to stories on the tape, van der Sloot said that after the shaking, he panicked and tried to revive her.  Stories are inconsistent as to what van der Sloot said next, but some are reporting that he said that when he was unable to revive Holloway he then asked a friend to drop her body in the sea.  Hopefully, any inconsistencies will be resolved in the special edition of 20/20 on the case tonight.

What is clear is that the tape led Aruba to re-open the case against van der Sloot, which it had previously closed.  According to Chief Prosecutor Hans Mos, it is also clear that the tape will be admissible because it was made by a private citizen without any influence by authorities.

Aruba's criminal justice system is mirrored after the Dutch criminal justice system, and I'm assuming that both are similar to the American justice system with regard to the exclusionary rule. See Kuk Cho, "Procedural Weakness" of German Criminal Justice and its Unique Exclusionary Rules Based on the RIght of Personality, 15 Temp. Int'l  & Comp. L.J. 1, 29-30 (2001) (noting that the Netherlands has an exclusionary rule).  Under the American system, while the exclusionary rule prevents the admission of evidence obtained unconstitutionally by government officials or those acting on their behalf in criminal cases, it does not preclude evidence obtained independently by a private citizen. See, e.g., Commonwealth v. Ellis, 208 A.2d 1090. 1091 (Pa. Super. 1992).  Assuming this is true, the Chief Prosecutor is correct that the tape will be deemed admissible, but maybe a Dutch or Aruban reader can confirm this conclusion.


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

Evidence And Ethics 6: Professor Giannelli and Professor McMunigal's Prosecutors, Ethics, and Expert Witnesses

The contribution of Case Western Reserve University School of Law Professors Paul C. Giannelli and Kevin C. McMunigal to the Evidence and Ethics Symposium is their article, Prosecutors, Ethics, and Expert Witnesses.

The article begins with the interesting fact that a study of the DNA exonerations secured through the Cardozo Law School's Innocence Project revealed prosecutorial misbehavior in 42% of cases, with one-third of those case involving "'tainted or fraudulent science.'"  From this data, the professors ask tough questions and raise a range of possible reforms addressed at the intersection of prosecutorial ethics and the selection and presentation of expert evidence.

Part I cites several case examples of prosecutors engaging in expert "shopping":  seeking out experts based upon the expert's willingness to support the prosecution's theory of the case regardless of the soundness of the expert's view."  After reviewing the pernicious consequences of expert shopping, the professors conclude that (1) the reckless use of a tainted expert should be considered a due process violation, and (2) a similar due process obligation should extend to the content of an expert's testimony.

Part II looks at how prosecutors have acted improperly (and yet often without sanction) in disclosing scientific evidence during discovery by, inter alia, engaging in late disclosyre, omitting information from laboratory reports, declining to have expert reports prepared, and failing to disclose exculpatory evidence.  The authors raise several recommendations for addressing this problem:

     -(1) amending discovery provisions in accordance with the 2006 ABA Criminal Justice Standards on DNA Evidence;

     -(2) amending ethical and discovery rules so that the explicitly require the prosecutor to instruct crime laboratories and other experts of their Brady obligations; and

     -(3) actually enforcing the rules.

Part III looks at different ways in which prosecutors have presented expert testimony in a misleading manner, ranging from withholding information at trial to the failure to correct overstatements.  Finally, Part IV raises a number of interesting observations and reforms, with the most compelling being to add a provision to Model Rule 3.8 that would make it an ethics violation for a prosecutor to knowingly, recklessly, or negligently offer defective scientific evidence.

In response to an e-mail about the article, Professor McMunigal wrote me:

"Paul has done a lot of work concerning corrupt scientific evidence. I have written about prosecutor ethics. So the topic was a natural one for us to collaborate on."

It's apparent that the collaboration paid off as the article does a terrific job of addressing both issues.


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

As I Lay Dying: Maryland Judge Finds That Deathbed Communications Don't Constitute Dying Declarations

The civil lawsuit against a former Prince George's County police corporal and the county was struck a blow when the Maryland judge hearing the case determined that one of the victim's deathbed statements to his mother constituted inadmissible hearsay.  On January 24, 2007, Brandon Clark and Robert White were making a furniture delivery at the home of former Prince George's County police corporal Keith Washington when Washington opened fire on them.  Articles have noted that Washington is claiming self-defense on the ground that the deliverymen attacked him after they were told to leave his 6 year-old daughter's bedroom.

While White merely suffered wounds from Washington's attack, Clark died from his wounds after weeks on his deathbed.  The families have sued both Washington and PGC based upon the attack; they are seeking $20 million for emotional distress, loss of income, and medical expenses.  In addition to these civil charges, Washington faces second degree murder, weapons and assaut charges.

As part of their case, the families sought to admit communications between Clark and his mother while he was on his deathbed.  According to Clark's mother, she communicated to her son with hand signals, and he indicated that White and he did not attack Washington.  The judge, however, found these communications inadmissible, which means that he must have found that they did not constitute dying declarations. 

Pursuant to Maryland Rule of Evidence 5-804(b)(2), "[i]n a prosecution for an offense based upon an unlawful homicide, attempted homicide, or assault with intent to commit a homicide or in any civil action, a statement made by a declarant, while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death" is admissible as a "dying declaration," an exception to thr ule against hearsay.

Clearly, Clark's communications with his mother concerned the circumstances of his death, and the plaintiffs sought to admit those communications in a civil case, meaning that two of the elements of a dying declaration were satisfied.  The problem, then, was likely the third element, the requirement that the declarant must have made his statement while believing his death to be imminent.  And ever since the Supreme Court's decision in Shepard v. United States, 290 U.S. 96 (1933), courts have interpreted this element strictly.  In Shepard, a wife made a deathbed accusation to a nurse that her husband poisoned her on May 20, 1929; she eventually died on June 15, 1929.

The Court found that the wife's statement did not constitute a dying declaration, noting

    -"To make out a dying declaration the declarant must have spoken without hope of recovery and in the shadow of impending death;"

     -"There must be 'a settled expectation'" of death; and

     -"She may have thought she was going to die and have said so to her nurse, but [her statement, "You will get me well, won't you?] was consistent with hope."

While the articles on the Washington case don't set forth the specific facts of Clark's hospitalization, I would have to imagine that the Maryland judge came to a similar conclusion:  while Clark may have had a strong belief that he was going to die, unless he lacked any hope of recovery, his communications with his mother could not constitute dying declarations.


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

Sunday, February 3, 2008

Georgia On My Mind: Georgia Makes Seemingly Disastrous First Application Of Its Criminal Impeachment Rule

In Newsome v. State, 2008 WL 186210 (Ga. App. 2008), the Court of Appeals of Georgia put forth a confusing interpretation of its version of Federal Rule of Evidence 609.  In Newsome, a jury found Kenneth Newsome guilty of aggravated assault, aggravated stalking, cruelty to a child, and possession of a firearm during the commission of a felony after, inter alia, hearing testimony that Newsome violated a protective order, drove to his wife's house, and opened fire on her and their baby son when they came outside of the house. See id.  At trial, the prosecution also introduced certified copies of two of Newsome's prior convictions for aggravated assault and possession of a firearm during the commission of a felony pursuant to OCGA Section 24-9-84.1, which was enacted in 2005, and which governs when prior convictions can be used to impeach the testimony of witnesses or parties.

The Georgia statute is very similar to Federal Rule of Evidence 609.  Under both, a witness or party previously convicted of a misdemeanor involving dishonesty or false statement, with the later of the conviction date or date of release being 10 years old or less, can be impeached by the conviction, without the court needing to balance the probative value of the conviction against its prejudicial effect.  Under both, a witness or party besides a criminal defendant previously convicted of a felony, with the later of the conviction date or date of release being 10 years old or less, can be impeached by the conviction, if the court finds that the conviction's probative value is not substantially outweighed by its prejudicial effect pursuant to Federal Rule of Evidence 403.  In either of these circumstances, if the later of the conviction date or date of release is more than 10 years old, the conviction is inadmissible to impeach 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.

The only place where the Georgia state differs from Federal Rule of Evidence 609 is in its treatment of criminal defendants.  Under Federal Rule of Evidence 609, a criminal defendant previously convicted of a felony, with the later of the conviction date or date of release being 10 years old or less, can be impeached by the conviction, if the court finds that the conviction's probative value outweighs its prejudicial effect.  Under OCGA Section 24-9-84.1, a criminal defendant previously convicted of a felony, with the later of the conviction date or date of release being 10 years old or less, can be impeached by the conviction, if the court finds that the conviction's probative value substantially outweighs its prejudicial effect. (emphasis added).

Newsome argued on appeal, inter alia, that the portion of the Georgia statute dealing with impeachment of criminal defendants by prior convictions should be given the same effect as the portion dealing with the impeachment of parties/ witnesses by 10+ year old convictions.  The Court of Appeals of Georgia noted that no previous case had interpreted this portion of the Georgia statute but rejected Newsome's contention because the portion dealing with criminal defendant impeachment did not replicate the portion dealing with 10+ year old convictions (for instance, it didn't mention courts needing to find that impeachment would be "in the interests of justice").

The court instead found that the portion should be given its plain meaning:  "the trial court shall admit the prior crimes evidence upon a determination that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant."  This conclusion makes sense in and of itself, but then, in the very next sentence, the court noted:  "This balancing test is in keeping with a long line of Georgia cases which imbue the trial judge with the discretion to exclude evidence if 'its prejudicial impact substantially outweigh[s] its probative value.'"  This makes no sense to me.

Saying that a conviction can be used to impeached a criminal defendant if its probative value substantially outweighs its prejudicial effect means that it can be used if, for instance, the conviction has high probative value and medium prejudicial effect or medium probative value and low prejudicial effect.  If probative value and prejudicial effect are somewhat equal, but probative value is slightly higher than prejudicial effect, the conviction would be inadmissible because its probative value would not substantially outweigh its prejudicial effect.

So, how is this balancing test "in keeping with a long line of case" holding that evidence can be excluded if its probative value substantially outweighs its prejudicial effect?  This is the classic, liberal Rule 403 balancing test, under which evidence is admissible, for instance, if it has high probative value but high prejudicial effect or medium probative value but medium prejudicial effect.  Under this classic balancing test, if probative value and prejudicial effect are somewhat equal, evidence is admissible even if prejudicial effect is somewhat higher than probative value because its prejudicial effect would not substantially ouweigh its probative value.  The Georgia rule for impeaching criminal defendants through prior convictions thus is not in keeping with prior cases but instead turns the balancing test in those cases on its head.

Now, this statement by the Georgia court might have been fine if I thought that it was merely an innocent misstatement not altering the substance of its decision.  This, however, does not appear to be the case.  The court found that Newsome's prior convictions had "crucial probative value" because there was only one witness to the shooting, and his convictions were thus needed to impeach his testimony.  Now, unfortunately, the court didn't address prejudicial effect, but it is easy to see that Newsome's prior convictions had high prejudicial effect.  Courts across the country have found that when prior convictions used to impeach a criminal defendant are similar to the crime with which he is charged, the convictions have high prejudicial effect because of the fear that they will be taken as character, not impeachment, evidence by the jury. See, e.g., United States v. Sanders, 964 F.2d 295, 298 (4th Cir. 1992).

In Newsome's case, he was charged with, inter alia, aggravated assault and possession of a firearm during the commission of a felony and his prior convictions were for aggravated assault and possession of a firearm during the commission of a felony.  Clearly, then, these convictions had high prejudicial effect to counteract their high probative value.  I thus don't see how the Georgia court could have determined that the convictions' probative value substantially outweighed their prejudicial effect, which leads me to believe that the court did not make a mere misstatement but instead fundamentally misapplied OCGA Section 24-9-84.1.


February 3, 2008 | Permalink | Comments (1) | TrackBack (0)