February 16, 2008
Let's Make A Deal: Judge Finds Defendant's Statements To State Police Official Don't Constitute Plea Discussions
Brian Dugan is currently on trial for the 1983 murder of 10 year-old Naperville schoolgirl Jeanine Nicarico, and his defense has been dealt a serious setback after DuPage CIrcuit Judge George Bakalis ruled that parts of decades' old audio recordings in which Dugan details acts of sexual violence are admissible . Dugan is already serving two life sentences based upon two prior murder convictions, and DuPage State's Attorney Joseph Birkett has said that he will pursue the death penalty if Dugan is convicted of killing Nicario.
Those odds increased greatly with Judge Bakalis' admissibility ruling on the tapes, which were recorded during three interviews with state police official Robert Thorud in October 1986 for a state police study of sexual predators. In the recordings, Dugan does not name Nicario, but he does make incriminating remarks, such as "when I did the others." Dugan's defense counsel had argued that these tapes were inadmissible, inter alia, because they were part of ongoing plea discussions. His counsel asserted, "Why else would he be talking to them?" "To be a good Samaritan?" Judge Bakalis, however, rejected this argument, finding that the interviews were not part of any protected plea talks.
This ruling makes sense under current plea bargaining jurisprudence. Under Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f) (which used to be Rule 11(e)(6)), "any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn" are inadmissible against the defendant who was a participant in the plea discussions. Illinois has incorporated these Rules into its case law. See People v. Jones, 845 N.E.2d 598 (Ill. 2006).
Prior to 1979, there was a dispute "over whether these rules operated to make plea negotiations between an accused and law enforcement officials inadmissible or whether they only applied when the discussion was between the accused (or his attorney) and a government attorney." See Colin Miller, Caveat Prosecutor, 32 New Eng. J. on Crim. & Civ. Confinement 209, 229 (2006). In 1979, however, the Rules were amended so that plea negotiations with law enforcement officials were not covered by the Rules; instead, the Rules only cover "plea negotiations" with prosecutors or those acting with their express authority. Id.
In the Dugan case, his statements were cleary to state police official Robert Thorud, meaning that they did not constitute plea negotiations protected by the Rules (unless Thorud had express authority from a prosecutor, which doesn't seem to be the case).
February 15, 2008
Evidence And Ethics 14: Vice Dean/Professor Perrin's The Perplexing Problem of Client Perjury
Pepperdine University School of Law Vice Dean and Professor of Law L. Timothy Perrin's contribution to the Evidence and Ethics Symposium is his article, The Perplexing Problem of Client Perjury. In the introduction, Perrin begins by noting that the most difficult ethical questions for lawyers arise "when the duty to the court collides with the duty to the client." Perrin then sets out to addess "a particularly perplexing instance of such a conflict: What are the responsibilities of a criminal defense lawyer when his or her client seeks to take the witness stand and testify falsely? Should truth or partisanship prevail?" He then lays out a very persuasive argument that it is the truth that should prevail.
In Part I, Perrin addresses how the Federal Rules of Evidence "resolve the conflicts between the system's search for the truth and the heightened constitutional protections accorded to criminal defendants." He notes that, pursuant to Federal Rule of Evidence 102, the Rules attempt to accomplish two fundamental objectives: (1) ascertaining truth, and (2) dispensing justice/protecting the rights of the accused. With regard to the former objective, he indicates that the Rules were "drafted to account for the perceived strengths and weaknesses of the various partcipants in the adversary system": judges are given the power to make evidentiary decisions, jurors are given great deference with regard to their evaluations of witnesses and facts, and lawyers are given significant autonomy to make strategic decisions but are also viewed with suspicion. The Rules thus "seek to create the right conditions for finding the truth by empowering judges, protecting jurors, and restraining lawyers."
With regard to the latter objective, he notes, inter alia, that the Rules include several provisions that seek to conform to constitutional rights, and allow for criminal defendant's to present propensity evidence under the Rule 404(a) exceptions while such evidence is generally prohibited in civil trials. Perrin then indicates that the these two hallmarks of the Rules of Evidence do collide on occasion, with the former winning out both in the context of prosectors using confessions obtained in violation of the Miranda warning for impeachment purposes and the forfeiture by wrongdoing doctrine under Federal Rule of Evidence 804(b)(6).
In Part II, Perrin asks whether lawyers are merely "amoral technicians" charged with zealously representing their clients within the bounds of the law, as advocated by Professor Monroe Freedman. Or does teaching law students to have such a "Contextual View" of lawyering have "the undesirable effect of 'teaching students that ethical-social issues are not important to the way one ought to think about legal practice," as argued by the Carnegie Foundation and Professor William Simon?
In Part III, Perrin begins by noting that Model Rule 3.3 indicates that, inter alia, a lawyer shall not offer evidence the lawyer knows is false and may refuse to offer evidence (other than the testimony of a defendant in a criminal case) that the lawyer reasonably believes is false. Perrin then proceeds to set forth several different tacts defense lawyers have taken when their clients want to testify falsely (and how courts have responded to them): convincing the client to tell the truth, refusing to allow the client to testify, withdrawing to avoid participation in the fraud, and having the client testify through narrative testimony.
Perrin concludes with the words of Abraham Lincoln, who wrote, "Let no young man, choosing the law for a calling, for a moment yield to this popular belief. Resolve to be honest at all events; and if, in your own judgment, you can not be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave."
Perrin thus contends that, "Lincoln's advice suggests that the answer to the profession's truthfulness deficit is not to be found in more rules of ethics or in better enforcement of the rules of ethics, but that the answer will be found with individual lawyers who have an unflagging commitment to the truth."
Rocket Man: Clemens-McNamee Soap Opera Highlights Distinctions Between Texas And Federal Rules Of Evidence
The Roger Clemens-McNamee soap opera is a good place to point out 2 divergences between the Federal Rules of Evidence and the Texas Rules of Evidence. Over at PrawfsBlawg, Professor Howard Wasserman notes that "McNamee has accused four people of using HGH or steroids: Clemens, Andy Pettite, Chuck Knoblack, and Debbie Clemens (Roger's wife). And in the discussion over McNamee's credibility, much is being made of the fact that three of the four people (everyone but Roger) he has accused have admitted to taking drugs--that is, they have acknowledged that McNamee told the truth." Wasserman then gives his preliminary take that, inter alia, the fact that three accusations have been true would be "[a]dmissible under 608(b)(2) (or the Texas equivalent) if Clemens puts on a reputation witness to attack McNamee's character for truthfulness. That witness could be cross-examined about specific instances of truthful conduct by McNamee.
Federal Rule of Evidence 608(b)(2) does, under certain circumstances, allow for cross-examination about specific instances of truthful conduct, although it allows for no extrinsic evidence of such instances if the witness denies (knowledge of) them. Texas Rule of Evidence 608, however, indicates that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence." Therefore, the fact that three accusations have been true would be inadmissible in a case heard under the Texas Rules of Evidence.
The second difference involves the statement against interest exception to the rule against hearsay. Under Federal Rule of Evidence 804(b)(3), if the declarant is "unavailable" at trial, "[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."
However, under Texas Rule of Evidence 803(24), whether or not the declarant is available at trial, "[a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true." (emphasis added)
Thus, the two key differences between the two rules are that the federal rule only allows for the admission of "statements against interest" when the declarant is unavailable and when the statement exposes the declarant to liability or harms a claim or interest; the Texas rule don't require witness unavailability and catches a wider range of statements under its purview. Now, if both Clemens and McNamee are parties in a case in Texas, these differences are meaningless because the rules regaring party admissions would govern. If, however, Clemens or McNamee brought a defamation against against a newspaper or some other entity and the other were not a party, these distinctions could be very relevant.
It Seems So Juvenile: Appellate Court Of Illinois Reverses Convictions Based Upon Trial Court's Erroneous Juvenile Impeachment Ruling
The Appellate Court of Illinois' recent opinion in People v. Newborn is the latest example of a court failing to properly apply the correct analysis in determining whether a conviction is admissible for impeachment purposes. In Newborn, the defendant was convicted of armed robbery as a juvenile based in large part on the testimony of one of the State's key witnesses, Bobby King. King, an adult, was either an occurrence witness or a participant in the crime, depending on conflicting testimony that was given at trial.
Immediately before jury selection, defense counsel had requested and received access to juvenile court records regarding King's delinquency adjudications in two prior 2002 cases. Each of these adjudications involved juvenile felonies. Prior to King's testimony, the State moved to bar questioning about his juvenile criminal record. Defense counsel countered that he intended to impeach King's credibility with two prior juvenile adjudications. The court took judicial notice of King's prior adjudications, but it did not allow the defendant to utlize those adjudications for impeachment purposes, noting that there was an absence of case law permitting admission of a prior juvenile adjudication for purposes of impeachment.
Unfortunately, this conclusion was incorrect. Pursuant to Federal Rule of Evidence 609(d), "[e]vidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence." While Illinois does not have a statutory counterpart to this federal rule, it has incorporated this language into its case law. See People v. Montgomery, 268 N.E.2d 695, 699 (Ill. 1971).
Thus, while juvenile adjudications are rarely deemed admissible to impeach, they are admissible (1) in criminal cases, (2) against witnesses other than the accused, when (3) the court determines that the adjudications are necessary for a fair determination of guilt or innocence. Clearly, elements one and two were satisfied in the Newborn case, and while element three is almost never satisfied, the Appeallate Court of Illinois determined that it could not resolve the issue because it was impossible to ascretain from the record the nature of King's delinquency adjudications. Therefore the court reversed Newborn's convictions and remanded for a new trial. Without knowing the nature of King's delinquency adjudications, this seems to me the only decision that the court could have made.
February 14, 2008
My Bloody Valentine: Valentine's Day Case Reveals Texas Still Adheres To Common Law Rule For Prior Inconsistent Statements
The Court of Appeals of Texas' opinion in Madry v. State, 200 S.W.3d 766 (Tex.App.-Houston 2006), reveals that Texas still adheres to the old common law rule regarding the use of extrinsic evidence to impeach a witness through a prior inconsistent statement. In Madry, it was undisputed that on Valentine's Day, 2004, the defendant, Eric Madry, shot his "on again, off again" girlfriend, Demetria Jackson, in the mouth, with the bullet traveling "through Jackson's lip, almost cut[ting] her tongue in half, and fractur[ing] the first cervical vertebrae in her neck." Id. at 767 At trial, the only disputed issue was whether the shooting was accidental or intentional, and the the jury went with the latter interpretation, convicting Madry of aggravated assault. Id. Indeed, Jackson testified that the shooting was intentional at trial, and the trial judge foreclosed Madry from calling "Michelle Permenter, a Crime Victims Advocate, as a witness who allegedly would have testified that Jackson told her that the shooting was accidental." Id. at 769.
On appeal, Madry claimed that the trial judge's ruling was in error. The Court of Appeals rejected this argument, noting that Madry failed to comply with Texas Rule of Evidence 613(a), which states that "[i]n examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and person to whom the statement was made, and must be afforded an opportunity to explain or deny such statement." (emphasis added). The Court of Appeals noted that under Rule 613(a), Landry would have thus needed to "confront Jackson with the statement, telling her the contents of the statement and the time, place, and person to whom it allegedly was made" before he called Permenter; however, he failed to do so.
Undoubtedly, this ruling was correct under Texas Rule of Evidence 613(a), which relies upon the old common law rule, but this common law rule has been eradicated by the Federal Rules of Evidence. See, e.g., United States v. Delta Rose, 403 F.3d 891, 903 (7th Cir. 2005). Under Federal Rule of Evidence 613(b), "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." The key difference under this federal rule is that the word "before" has been removed, meaning that if the Madry case were heard under the federal rules, while defense counsel would have needed to confront Jackson with her alleged prior inconsistent statement at some point during trial, he did not need to do so before Permenter testified. Instead, defense counsel could have called Permenter to testify to the alleged prior inconsistent statement by Jackson and then called Jackson and confronted her with the statement. See id.
The Advisory Committee Note to Rule 613 indicates that the common law rule was relaxed so "several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement....Also, dangers of oversight are reduced." It seems to me that the federal rule is prefereable because allowing a witness to explain a prior inconsistent statement before another witness relates it to the jury would seem to dilute its effect. In the case of a sympathetic witness like Jackson, we may want such dilution, but for many witnesses who have waffled, allowing for opposing counsel to expose them without prior notice would seem preferable.
Lost In Translation: Alaska Court Ignores Legislative History In Making Interpretor Ruling
The Court of Appeals of Alaska's recent opinion in Vuig Gui Tsen v. State, 2008 WL 341649 (Alaska.App. 2008), provides a good example of how courts frequently ignore the legislative history to their rules of evidence when it doesn't fit with their view of a case, even though they cite this history with approval when it serves their purposes. In Vuig Gui Tsen, the defendant ran an escort service/massage parlor in the Spenard area of Anchorage, Alaska. After two of his female employees were arrested for prostitution, they agreed to aid the police by arranging to purchase cocaine from Tsen. Tsen subsequently sold cocaine to the women and was arrested and charged with two counts of third-degree controlled substance misconduct (sale of cocaine, and possession of cocaine for sale) and one count of third-degree promoting prostitution. During a pre-trial conference and at trial, Tsen's attorney, Assistant Public Defender John A. Bernitz, notified the judge that Tsen wanted to have a Vietnamese interpreter during trial. The attorney noted that while Tsen spoke English, he was a native Vietnamese and language gets more complicated and quicker at trial. The judge rejected the request, concluding, inter alia, that while an interpreter could certainly provide assistance to Tsen, an interpreter's presence was not required because Tsen clearly had command of the English language. After Tsen was convicted on all three counts, he appealed, claiming, inter alia, that the trial judge violated his right to due process by refusing to order word-for-word interpretation of the jury voir dire and the trial testimony.
In its opinion, the Court of Appeals of Alaska proceeded to consider federal case law, which generally holds that the decision of whether to order word-for-word interpretation of trial testimony hinges on many variables, chief among them (1) the extent to which the defendant can comprehend spoken English ( i.e., understand the English speech of other people), (2) the extent to which the defendant can express himself or herself in English, and (3) the degree to which the trial testimony will present complex or subtle issues of fact that will require the defendant's input ( i.e., the defendant's participation in formulating the defense case and in devising the cross-examination of adverse witnesses)." The court then found that the trial judge's opinion was proper because, inter alia, Tsen's comprehension of Enlish was not so deficient as to make his trial fundamentally unfair.
But why did the court rely upon federal case law, rather than Alaska case law? Well, the court noted that Alaska law on the subject of interpreters was still undefined, with no published Alaska appellate decisions in the area. At the same time, Alaska Rule of Evidence 604 does set forth the rule for interpreters at trial. And the Commentary to Alaska Rule of Evidence 604, written by its main drafter, Professor Stephen A. Saltzburg, indicates, inter alia, that “[a]ppointment of an interpreter for [an] indigent defendant is probably constitutionally required if the defendant's understanding of the proceedings against him depends on it." The Court of Appeals of Alaska noted this language, but it also noted that the Introduction to the Commentary to the Alaska Rules of Evidence made clear that the Supreme Court of Alaska had neither adopted nor approved the Commentary. The Court of Appeals thus failed to ascertain whether the Commentary compelled a different test for whether an interpreter was required and assumed (without deciding) that Alaska law mirrors federal law on the issue of a criminal defendant's right to the assistance of an interpreter.
While the Court of Appeals is correct that the Supreme Court of Alaska has neither adopted nor approved the Commentary to the Alaska Rules of Evidence, it has frequently relied upon the Commentary in reaching decisions. Indeed, in one case, Marron v. Stromstad, 123 P.3d 992, 1005 n.50 (Alaska 2005), the Supreme Court of Alaska even found the reasoning in an amicus brief written by Saltzburg to be "especially persuasive" because he was the main drafter of the Alaska Rules of Evidence. The Supreme Court of Alaska is not alone in reaching decisions based upon the commentary as the Court of Appeals of Alaska did the same in numerous cases before Vuig Gui Tsen. See, e.g., Ryan v. State, 899 P.2d 1371, 1374 (Alaska.App. 1995). The court's decision in Vuig Gui Tsen thus seems to be unsatisfactory in its dismissiveness of the Commentary.
February 13, 2008
Evidence And Ethics 13: Professor Raeder's See No Evil: Wrongful Convictions And The Prosecutorial Ethics Of Offering Testimony By Jailhouse Informants And Dishonest Experts
Southwestern Law School Professor Myrna Raeder's contribution to the Evidence and Ethics Symposium is her article, See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts. In the introduction, Raeder lays out the central question: In the context of jailhouse informant and expert testimony, "[a]re prosecutors at fault for reaching out to witnesses whose testimony sounds too good to be true when it fills in the gaps that otherwise would likely derail the prosecution's case?"
Section I introduces the problem. In attempting to get defendants convicted, prosecutors frequently must rely on the testimony of jailhouse informants, "the clearest threat to the integrity of the criminal justice system" because of their willingness to fabricate testimony in exchange for their "ticket to freedom." At the same time, when technical or scientic evidence is involved in a case, there is a temptation for prosecutors to "expert shop," "casting a wide net before finding an expert to agree with their desired conclusion."
Section II then sets forth why prosecutorial reliance on such suspect sources of testimony has persisted and gone largely unchecked. Raeder notes that, on the one hand, the 24/7 news cycle, the increased empahsis on victim's rights, and the "CSI effect" have increased the pressure on prosecutors to secure convictions through even questionable means. On the other hand, much of the alleged prosecutorial misconduct with regard to these suspect sources "relates to 'activities that the [professional] codes refer to only obliquely, if at all," helping "to explain the paucity of cases in which prosecutors are disciplined."
Section III continues with this thread, reviewing the ethical obligations placed upon prosecutors by, inter alia, case law, the Model Rules, the ABA's Criminal Justice Standards on the Prosecution Function, and the U.S. Attorney's Manual. This review again leads Raeder to the conclusion that the current rules did not satisfactorily cover "jailhouse informant" or "expert" shopping and the recommendation that "the rules or standards should be modified...."
In Section IV, Raeder notes how "neither the constitutional framework for obtaining reversals of criminal convictions, nor any potential civil remedies provides sufficient incentives for prosecutors to be prudent when they consider employing jailhouse informants or dishonest experts." Instead, based upon factors such as the finality doctrine and courts' restrictive readings of the Sixth Amendment in challenges to jailhouse informant testimony, "while claims of prosecutorial misconduct are common, reverasals are not assured, even when the conduct is cleary unethical." Raeder thus contends that "this appellate reality encourages winning at any cost, because ethicsa do not appear to affect outcomes, let alone at the polling place...."
In Section V, Raeder sets forth several suggestions for "reinvigorating the ethical approach to evidence." With regard to confidential informants, she suggests the "stringent restrictions on the use of jailhouse informants adopted" in Los Angeles and the similarly stringent standards recently adopted by the Canadian Association of Chiefs of Police. With regard to expert shopping, she cites to and expands upon Professor Moriarty's argument that the Model Rules should be broadened so that the prosecutor's special obligation to do justice includes the duty not to introduce unreliable information as well as false information. Finally, Raeder argues for the creation of a self-regulatory body, whose very existence would have symbolic value.
Raeder's argument raises a lot of intriguing arguments, and, in particular, the Los Angeles and Canadian polices, of which I was unaware, seem to be something that the legal community should seriously consider extending across the country.
I asked Professor Raeder for her thoughts on the article, and she responded:
"I wrote this article because I believe our pro admissibility bias ensures that some very unreliable evidence of jailhouse informants and dishonest experts is likely to be presented at trial. Therefore, I was attempting to create an affirmative ethical obligation on prosecutors to scrutinize this evidence before offering it for admission. It is my belief that many prosecutors would welcome self-regulation that would tend to lessen complaints that paint prosecutors as generally unethical, while focusing on the prosecutorial bad apples and pressures that currently exist to offer questionable evidence that
is likely to be admitted."
Open The Door, ATF: Eighth Circuit Finds That ATF Form 4473 Is Inherently Trustworthy For Rule 807 Purposes
In United States v. Banks, 2008 WL 80577 (8th Cir. 2008), the Eighth Circuit determined that ATF Form 4473 is "inherently trustworthy" and thus presumptively admissible under Federal Rule of Evidence 807, the residual hearsay exception, even if it isn't admissible as a business record under Federal Rule of Evidence 803(6). In Banks, Clarence Frazier Banks was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g). Id. at *1. While executing a narcotics search warrant, police talked with Banks, who told them that his name was Andre Stevens. See id. At trial, the prosecution introduced into evidence an ATF purchase form (ATF Form 4473) which indicated that a pawn shop in Colorado sold a semi-automatic pistol to a man named "Andre Stevens." Id.
On appeal, Banks claimed that the trial court erred by admitting this ATF form because it constituted inadmissible hearsay. See id. at *6. The Eighth Circuit agreed with Banks that the ATF form was not admissible as a business record under Federal Rule of Evidence 803(6), which states, inter alia, that records kept in the course of regularly conducted business activity are admissible if certain conditions are "shown by the testimony of the custodian or other qualified witness...." The problem with the ATF form was that "the government did not call a witness from the pawn shop who was familiar with its record-keeping practices." Id.
The Eighth Circuit, however, noted that "Rule 807 allows for the admission of hearsay 'not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness.'" There are five requirements for admissibility under Rule 807, with the first being "that the evidence have circumstantial guarantees of trustworthiness." The Eight Circuit noted that Banks did not contest that the ATF form met requirements two through five and thus confined its analysis to the first requirement.
On that count, the court explained that, unlike other businesses, pursuant to 27 C.F.R. Section 478.124(a), "a firearms dealer is required to record all of its sales on Form 4473." Id. at *7. On this form, "[s]pecific information must be collected, including the buyer's name, sex, address, date and place of birth, height, weight, race, citizenship status, and a certification that the buyer is not a person prohibited from possessing a firearm." Id. Furthermore, "[a] dealer must maintain Form 4473 in an indexed manner for no less than 20 years after the date of sale....Upon demand, a dealer must make available its records for inspection by ATF officers...Failure to comply with these provisions may result in the dealer losing its license to sell firearms." Id.
The Eighth Circuit thus concluded that the contents of a Form 4473 are "inherently trustworthy" based upon "the ATF regulations requiring proper record keeping practices." Id. I agree with this conclusion and find it to be consistent with findings in other cases that business documents not meeting the technical requirements of Federal Rule of Evidence 803(6) ares still admissible under Federal Rule of Evidence 807 when there is no indication that the documents are unreliable. See, e.g., United States v. Laster, 258 F.3d 525 (6th Cir. 2001).
February 12, 2008
Evidence And Ethics 12: Professor Aronson and Professor McMurtrie's The Use And Misuse Of High-Tech Evidence By Prosecutors: Ethical And Evidentiary Issues
The contribution of University of Washington School of Law Professors Robert Aronson and Jacqueline McMurtrie to the Evidence and Ethics Symposium is their article, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues. The professors lay out their central point in the introduction to their article: "As technological advances have introduced high-tech evidence into the courtroom, there is an even greater need for evidentiary guidelines to ensure that prosecutors fulfill their duty to do justice and prove guilt upon the basis of sufficient evidence."
In Part I, the authors address three new technologies increasingly being used in courtrooms: computer-generated animations, simulations, and computer-assisted closing arguments. With regard to animations, they note that despite courts using a three-pronged analysis for determining their admissibility, some prosecutors continue to submit unacceptable computer animations. They argue that (1) "[c]omputer animations must be 'carefully scrutinized for proper foundation, relevancy, accuracy, and the potential for undue prejudice' because animations have such 'dramatic power,'" (2) judges should issue cautionary instructions to jurors highlighting the differences between computer animations and other types of evidence, and (3) animations should be excluded when such instructions can't dilute an animations' prejudicial effect.
They next contend that simulations require stricter scrutiny than animations "because they are dependent on scientific principles." On the matter of computer-assisted closing arguments, they cite two cases where courts were lenient towards the prosecution's use of technology during closing arguments (in one of the cases, an arson case, the prosecutor displayed the elements of arson next to the image of a curtain engulfed in flames). The professors argue against such leniency, asserting that courts "should take a stronger role in ensuring that prosecutors do not act unethically while making high-tech closing arguments."
Part II then addresses prosecutorial misconduct in the use of DNA evidence, ranging from misrepresentation of the evidentiary value of DNA evidence to prosecutorial resistance to postconviction DNA testing. On the second count, they note that such resistance can result in the twin evils of prolonging incareceration of an innocent person and preventing identification of the true perpetrator.
In Part III, the professors contend that the use of high-tech evidence is often expensive, meaning that its use "may make it impossible for opposing counsel to counter effectively the animation or closing argument...." They note that, in response, the Washington Supreme Court recently established the Access to Justice Technology Principles:
"Access to a just result requires access to the justice system. Use of technology in the justice system should serve to promote equal access to justice and to promote the opportunity for equal participation in the justice system for all. Introduction of technology or changes in the use of technology must not reduce access or participation and, whenever possible, shall advance such access and participation."
They argue that, "[a]t a minimum, more courts should establish these kinds of guidelines to ensure that defendants are able to adequately respond to the prosecution's evidence, even if a defendant has few resources."
Finally, in Part IV, Professors Aronson and McMurtrie point out that "[s]ome commentators have suggested that the judiciary consider drafting separate ethical rules for prosecutors that recognize their unique role as ministers of justice." They support such a separate set of ethical rules but caution that "the solution must depend on the prosecutors themselves," with prosecutors being involved in the creation of these new standards.
I share the concerns raised by Professors Aronson and McMurtrie, as I have indicated in recent posts about computer-generated animations and computer-assisted closing arguments. In fact, during law school, I conducted a research project where I sent surveys to legal aid attorneys and their most common adversaries, asking about how much technology they used both during trial preparation and at trial. I was surprised that the gap was less wide then I expected, but it seems to me that the gap is much wider between prosecutors and defense attorneys, making this article all the more important as technology continues to inflitrate the courtroom.
Doctor, There's Something Wrong With Me: Alabama Court Finds Statements Of Identity Admissible Under Rule 803(4) In Domestic Violence Cases
Federal Rule of Evidence 803(4) and many state counterparts indicate that "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are admissible as an exception to the rule against hearsay. When the cause of a declarant's symptoms, pain, or sensations is a person, the declarant's statements for purposes of medical diagnosis or treatment usually have two components : (1) the component concerning general causation (I was shot or hit by a car), and (2) the component concerning who caused the symptoms/pain/sensations (I was shot by "John" or "a caucasian man"). See United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980). "The former in most cases is pertinent to diagnosis and treatment while the latter would seldom, if ever, be sufficiently related." Id. Thus when a doctor asks what happened to a decalarant's hip and he responds, "I was struck by a car. The car was driven by John," the former statement is admissible under Federal Rule of Evidence 803(4); the latter statement is not.
Many courts, however, have developed an exception to this dichotomy in cases of child abuse by relatives. For instance, as the EIghth Circuit noted in United States v. Renville, 779 F.2d 430, 436-38 (8th Cir. 1985):
"Statements by a child abuse victim to a physician during an examination that the abuser is a member of the victim's immediate household are reasonably pertinent to treatment[;] they are reasonably relied on by a physician in treatment or diagnosis. First, child abuse involves more than physical injury; the physician must be attentive to treating the emotional and psychological injuries which accompany this crime....The exact nature and extent of the psychological problems which ensue from child abuse often depend on the identity of the abuser....Second, physicians have an obligation, imposed by state law, to prevent an abused child from being returned to an environment in which he or she cannot be adequately protected from recurrent abuse."
A tougher question, recently faced by the Alabama Court of Criminal Appeals in Moore v. City of Leeds, 2008 WL 274720 (Ala.Cr.App. 2008), is whether there should be an exception to this dichotomy in cases of domestic violence. In Moore, Jeffrey Scott Moore was convicted of domestic violence in the third degree based on the underlying offense of assault, harassment, and harassing communications. Id. at *1 Part of the evidence used to convict Moore consisted of the testimony of Dr. Ronald McCoy, an ear, nose, and throat specialist, who testified that he treated Moore's ex-wife, Karen Kelly, for, inter alia, a broken nose. Id. at *2. According to Dr. McCoy, Kelly told him that "her injury was caused as a result of an 'altercation with her husband while they were driving.'" Id. On appeal, Moore contended that the component of Kelly's statement identifying him as the source of her injury was inadmissible under Rule 803(4).
The court rejected this argument, relying upon the Tenth Circuit's opinion in United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir. 1993), where the Tenth Circuit found that:
“Unlike the victims in the cases cited above, Ms. Joe was not a child but rather the estranged wife of the alleged sexual abuser. However, the identity of the abuser is reasonably pertinent to treatment in virtually every domestic sexual assault case, even those not involving children. All victims of domestic sexual abuse suffer emotional and psychological injuries, the exact nature and extent of which depend on the identity of the abuser. The physician generally must know who the abuser was in order to render proper treatment because the physician's treatment will necessarily differ when the abuser is a member of the victim's family or household. In the domestic sexual abuse case, for example, the treating physician may recommend special therapy or counseling and instruct the victim to remove herself from the dangerous environment by leaving the home and seeking shelter elsewhere. In short, the domestic sexual abuser's identity is admissible under Rule 803(4) where the abuser has such an intimate relationship with the victim that the abuser's identity becomes ‘reasonably pertinent’ to the victim's proper treatment.”
I think that there's a good argument that there should be an exception to the Rule 803(4) dichotomy in cases of domestic violence, but I don't think that the court in the Moore case provided that argument. The Joe case principally relied upon by the the Alabama Court of Criminal Appeals in rendering its opinion, provides good reasons for an exception in cases of domestic sexual assault cases, but it says nothing about domestic violence not involving sexual assault.
February 11, 2008
Evidence And Ethics 11: Professor Blinka's Ethical Firewalls, Limited Admissibility, and Rule 703
Marquette University Law School Professor Daniel D. Blinka's contribution to the Evidence and Ethics Symposium is his article, Ethical Firewalls, Limited Admissibility, and Rule 703. In the article, Professor Blinka takes a close look at Federal Rule of Evidence 703 and argues that it forms the basis for rethinking how the doctrine of limited admissibility is used in the Federal Rules of Evidence and at trial.
In Part I, Blika lays out the doctrines of general and limited admissibility. Multiple admissibility recognizes that every piece of evidence supports numeorus inferences and thus may be used to prove multiple factual propositions. Its corollary, limited admissibility, sets forth that when evidence is inadmissible under the rules of evidence to prove certain factual propositions but admissible to prove other factual propositions, courts will admit it to prove the permissible purposes, with the evidence frequently being accompanied by a limiting instruction requested by opposing counsel to preclude jurors from considering it for impermissible purposes.
In Part II, Blinka notes how the doctrines of multiple and limited admissibility are threaded throughout the federal rules of evidence. For instance, character evidence (e.g., a prior felony assault conviction) is inadmissible to prove that a defendant has a propensity to act in a certain manner (e.g., violently) and acted in conformity with that propensity when committing the subject crime (e.g., murder) pursuant to Rule 404. However, that same evidence may be admissible to prove another purpose such as motive under Rule 404(b) or to impeach the defendant under Rule 609. Furthermore, each of the specialized relevance rules contained in Rules 407-411 recognize that evidence of subsequent remedial measures, liability insurance, etc., are inadmissible for some purposes, but inadmissible for others.
In Part III, Blinka then considers how the doctrines of multiple and limited admissibility work in the Rule 703 context. He notes that before the Rule's passage, courts rigidly adhered to the notion that experts could only provide opinion testimony if they formed their opinions based upon evidence which would be admissible at trial. The increasing use of expert testimony, however, strained the common law's rigid approach, leading to Rule 703, which at the time it was enacted, stated: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted."
Blinka then notes that "[c]ase law soon revealed the fundamental incompatibility of Rule 703's reasonable reliance standard and exclusionary rules of evidence" as the proponents of expert opinion testimony were increasingly able to get "inadmissible" evidence before the jury as their experts explained the basis for their opinions. In response to this problem and an ABA study, the Supreme Court amended Rule 703 by adding a third sentence, which reads: "Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Blinka contends, however, that "[p]rotestations to the contrary, amended Rule 703 performed like the legendary alchemist's stone, transforming inadmissible evidence into a species of admissible evidence."
In Part IV, Blinka argues that while some might argue that a lawyer is acting unethically if he uses Rule 703 to disclose inadmissible evidence, there are "at least two ethical firewalls that insulate against charges of impropriety." These are (1) the fact that evidence isn't "inadmissible" unless and until the opponent raises a timely and proper objectoon, and (2) Rule 703's incorporation of the limited admissibility doctrine. In his conclusion, Blinka thus concludes that it is not the skilled trial lawyer using the doctrine to his advantage that is deserving of criticism. Instead, he proposes that we (1) revisit many of the distinctions now recognized by evidence law, (2) redraw limiting instructions, and (3) pay more attention to arguments by counsel.
Personally, I think that Rule 703 is perplexing, and Blinka does a great job of exposing the consternation and odd results that it has caused, both pre- and post-amendment.
Why Wyoming?: Reay Case Reveals Wyoming Courts Hold Instrinsic Evidence Is Still Subject To Rule 404(b)
The Supreme Court of Wyoming's recent opinion in Reay v. State, 2008 WL 344116 (Wyo. 2008), reveals a distinction between its treatment of Wyoming Rule of Evidence 404(b) and most federal courts' treatment of Federal Rule of Evidence 404(b). In Reay, Roy Glenn Reay was convicted of burglary, aggravated kidnapping, and battery against a household member based upon beating and trying to kidnap a Casper woman who had broken off a relationship with him. At trial, the woman, Kelly Meyer, related the following details of the beating:
"I woke up, and I was being-I was held down. I couldn't move. I didn't know what was going on, why I couldn't move. And I was-the next thing that I realized was that [Mr. Reay] was there and that he was choking me. He was yelling at me; telling me that I was stupid, thinking that he wasn't going to find me, because he would always find me; saying that I thought I was so smart; choking me and hitting me; telling me he was going to kill me, going to take me up to the mountain and burn my body in tires. And he was hitting me fast and hard. And he-he flipped me over on my back, twisted my arm behind my back. Was saying that if I-if I thought that he abused me before, he didn't abuse me before; this was abuse. And then he was hitting and choking me again."
Defense counsel objected that this testimony and similar testinmony later provided by Meyer constituted inadmissible character evidence. The trial court, however, overruled defense counsel's objections, and, on appeal, the Supreme Court of Wyoming affirmed these rulings.
In relevant part, Wyoming Rule of Evidence 404(b) and Federal Rule of Evidence 404(b) are identical: They both indicate that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
Thus, if Meyer's testimony revealed that Reay abused her before, and if the prosecution was trying to use this past abuse to show that Reay had a propensity to be abusive and acted in conformity with that propensity when he attacked Meyer in the instant case, her testimony would have been inadmissible. If, however, Meyer's testimony did not reveal other crimes by Reay or if it did but was offered for a permissible purpose, it would have been admissible.
One other consideration, however, complicates the analysis. As the Supreme Court of Wyoming noted, if Meyer's testimony clearly referred to a prior abusive act by Reay, it was "intrinsic evidence because "it 'and the evidence of the crime charged [we]re inextricably intertwined....'" In other words, Meyer was relating statements Reay allegedly made during the instant act of abuse, not simply testifying about unrelated past acts.
In most cases decided under the federal rules of evidence, the determination that Meyer's testimony referred to "intrinsic evidence" would have resolved the issue because most federal courts have held that "[i]ntrinsic other act evidence does not implicate Rule 404(b) of the Federal Rules of Evidence and 'consideration of its admissibility pursuant to Rule 404(b) is unnecessary.'" See United States v. Skelton, 2008 WL 152601 at *5 (5th Cir. 2008).
In contrast, as the Supreme Court of Wyoming noted in the Reay case, it has consistently held that intrinsic evidence is still subject to analysis under W.R.E. 404(b). Thus, the mere fact that Meyer's testimony referred to a statement made by Reay while committing the instant assault did not exempt it from W.R.E. 404(b). Nonethless, the Supreme Court of Wyoming found that Meyer's testimony was admissible because it was not about other crimes, wrongs, or acts. Instead, the Court found, inter alia, that the phrase, "if I thought that he abused me before, he didn't abuse me before," was conditional, not a positive assertion that he had abused her before.
Frankly, I'm not sure whether I prefer the method used by most federal courts or courts in Montana. I plan on conducting some research into Montana case law in the next few weeks to find cases where Montana courts have found that intrinsic evidence fails Wyoming Rule of Evidence 404(b) and see whether those decisions seem proper or improper.
February 10, 2008
The Wire: Supreme Court of Illinois Finds Joint Federal/State Investigations Don't Need To Comply With State Eavesdropping Law
In People v. Coleman, the Supreme Court of Illinois determined that Illinois police do not have to follow a state eavesdropping law when working as part of a federal ivestigation. In Coleman, "the federal Bureau of Alcohol, Tobacco, Firearmes, and Explosives (ATF), the Addison police department, the Wheaton police department, and the Du Page County sheriff's office began a multiple jurisdiction narcotics investigation." During this investigation, Randall Coleman was arrested and indicted on two counts of unlawful delivery of a controlled substance based in large part upon audio recordings of conversations between himself and the State's confidential informant, Eugene Sanders, who was wearing a wire. The trial court refused Coleman's motion to suppress this evidence, leading to him being convicted, and the appellate court affirmed, prompting Sanders' appeal to the Supreme Court of Illinois.
The Court framed the issue as follows: Under 720 ILCS 5/14-1 et seq., passed by the Illinois legislature in 1961, both parties must consent to the recording or the person doing the recording must get a judge's permission. Because the local police did not comply with this statute, if they were acting alone, the audio recordings would have been inadmissible under 725 ILCS 5/108A-9.
On the other hand, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 governs wiretaps by federal agents and provides: "It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." Title III thus does not require federal agents to obtain a court order before wiring a confidential informant.
The Supreme Court of Illinois noted that Title III was an act of preemption but that Congress specifically permitted concurrent state regulation. In other words, states may adopt standards more stringent than those in Title III. The Court noted, however, that while 720 ILCS 5/14-1 et seq. is more stringent than Title III, Illinois courts have consitsently found that it doesn't apply during joint federal/state investigations. Coleman contended that these cases were wrongfully decided, but the Supreme Court of Illinois noted that 720 ILCS 5/14-1 et seq. was passed in 1961, prior to the passage of Title III of the Omnibus Crime Control and Safe Streets Act, and the Illinois legislature did not subsequently amend 720 ILCS 5/14-1 et seq. to state that its more stringent standard applied in joint federal/state investigations. This decision seems correct to me, with the Supreme Court of Illinois sending a clear message to the legislature that if it wants its more stringent wiretap standards to apply to joint federal/state investigations, it must pass new legislation.