February 23, 2008
Bright Line, Big City: Court Of Appeals Of New York Eschews Bright Line Test For Confrontation Clause Cases
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The most difficult question in this analysis is the question of when hearsay is "testimonial," and the Supreme Court's opinion in Crawford did not answer it, instead, setting forth several proposed formulations.
Nonetheless, prior to the Supreme Court's opinion in Davis v. Washington, 547 U.S. 813 (2006), "[t]he circuits...concluded that the determinative factor common to all the proposed formulations set forth by the Crawford court [wa]s whether the statement was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." Guilbeau v. Cain, 2007 WL 2478888 at *10 (W.D. La. 2007). In Davis, the Supreme Court ushered in no new law, but it seemed to emphasize that "context matters for Confrontation Clause purposes." See People v. Rawlins, 2008 WL 423397 (N.Y. 2008). In the wake of Davis, some courts have continued to apply a bright line test under which statements are "testimonial" whenever they are made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial. See id. Other courts, however, have eschewed this approach in the wake of Davis in favor of a more fact sensitive inquiry. See id.
One such court is the Court of Appeals of New York (the equivalent of most states' supreme courts), based upon its opinion in People v. Rawlins, 2008 WL 423397 (N.Y. 2008). Rawlins involved convicted defendants claiming that the judges in their cases improperly admitted DNA and latent fingerprint comparison reports prepared by nontestifying experts despite the fact that they were "testimonial." In Rawlins, the court concluded that in Confrontation Clause cases, "facts and context are essential. The question of testimoniality requires consideration of multiple factors, not all of equal import in every case. And while it is impossible to provide an exhaustive list of factors that may enter into the mix, two play an especially important role in this determination: first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing. The purpose of making or generating the statement, and the declarant's motive for doing so, inform these two interrelated touchstones." Id.
The Court of Appeals then indicated that "[i]n the context of scientific tests, such as DNA analysis, many state and federal courts have considered the question presented, and little consensus has emerged." Id. Based upon its fact-sensitive analysis, however, the court concluded that the DNA and latent fingerprint comparison reports were "testimonial," although it concluded that their admission was harmless beyond a reasonable doubt based upon siginifcant other evidence of each of the defendants' guilt.
I'm generally not a fan of bright line tests, which would usually lead me to approve of the more fact sensitive inquiry adopted by the Court of Appeals of New York. At the same time, the "inquiry" adopted by the court seems so amorphous that litigants will likely have no idea whether statements will be determined "testimonial" in any particular case. Meanwile, the bright line test seems to produce somewhat more predictable results, but fails to account for the unique facts of each case. Which means that what I guess that I'm saying is that current Confrontation Clause analysis is a mess, with courts still struggling to create a workable approach in the wake of Crawford.
February 22, 2008
Open In Case Of My Death, Take 2: Mark D. Jensen Found Guilty of First Degree Murder
I've written before about the Mark D. Jensen trial and how the Supreme Court of Wisconsin took the liberal view of the "forfeiture by wrongdoing" doctrine in allowing for the admission of a note that his wife gave to a neighbor that said that Jensen should be the first suspect if she died. Now, after about 32 hours of deliberations over three days, jurors found Jensen guilty of murder in the first degree.
Unavailable For A Limited Time Only: Court Finds Co-Defendant Status Renders Declarant "Unavailable" Under Rule 804(a)
The Colorado Court of Appeals' recent opinion in People v. Reed, 2008 WL 323773 (Colo.App. 2008), contains an interesting interpretation of Colorado Rule of Evidence 804, Colorado's counterpart to Federal Rule of Evidence 804. In Reed, three men robbed a bank in Colorado Springs, and Edgar Dewond Reed, Al J. Williams, and Calvin Clark were charged with numerous offenses arising from the robbery; Clark accepted a plea agreement and testified against Reed and Williams, who were tried together. See id. at *1. At trial, over Reed's objection, the trial judge allowed Williams' cellmate, Matthew Graves, to testify about statements that Williams made to him, implicating both Williams and Reed in the robbery. See id. at *1. The court admitted the testimony on the ground that Williams' statements constituted statements against interest under Colorado Rule of Evidence 804(b)(3). See id. at *1. It did so even though Williams had not yet exercised his Fifth Amendment right against self-incrimination; indeed, Williams later testified. See id. at *1.
On appeal, the Colorado Court of Appeals noted that for Colorado Rule of Evidence 804(b)(3) to apply, Williams needed to be "unavailable" pursuant to Colorado Rule of Evidence 804(a). See id. at *2. The court first noted that Williams was not "unavailable" under Colorado Rule of Evidence 804(a)(1), which indicates that a declarant is unavailable if he "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement." See id. at *2. The court concluded that this portion of the rule did not apply because Williams had not invoked his Fifth Amendment right when Graves testified. See id. at *2. Indeed, it found that Williams was not "unavailable" pursuant to any of the five situations listed in Colorado Rule of Evidence 804(a). See id. at *2.
The court, however, found that the five situations listed in Colorado Rule of Evidence 804(a) was only a partial list of the situations under which a court can deem a declarant "unavailable," and it concluded "that a declarant's status as a codefendant in a joint trial renders him or her unavailable...." Id. at *3. The court came to this conclusion because "had the trial court required Williams to decide whether he would testify before the People called Graves as a witness, it would have violated Williams's constitutional right to decide whether and when to testify."
The Reed case raises several interesting issues, not the least of which is whether the court was right that a declarant's status as a codefendant in a joint trial renders him or her unavailable...." The question I want to address, however, is one that I thought would have been resolved, but which I did not find addressed after a Westlaw search: What happens if a declarant is deemed "unavailable" under Rule 804(a), allowing for the admission of hearsay under one of the Rule 804(b) exceptions, but then the declarant later becomes available?
Clearly, this is what happened in the Williams case. He was "unavailable" when Graves testified, but Williams then later became available when he testified. Does this mean that defense counsel could have asked that Graves' testimony be stricken once Williams testified? Or should Rule 804(a) be a snapshot view of admissibility, where testimony is allowed based upon the declarant's unavailability at the moment, with any changes in availability not changing that ruling? For instance, let's say that a witness is extremely ill, leading to him being declared "unavailable" under Rule 804(a)(4) and to the admission of his statements against interest. But that declarant has a quicker than expected recovery or the trial extends longer than expected, and he now testifies at trial. Should this lead to the prior testimony being stricken? My gut feeling is that it should, but I was unable to find a discussion of this issue in my Westlaw search or the Reed case.
February 21, 2008
Suicidal Tendencies?: Judge Rules Suicide Notes Inadmissible In David Wade Moore Re-Trial
In 2002, David Wade Moore was convicted in Alabama of capital murder and sentenced to the death penalty in connection with the March 12, 1999 killing of socialite Karen Tipton. This conviction, however, was overturned after it was learned that the prosecution failed to disclose potentially exculpatory evidence such as an FBI report, leading to his current re-trial.
Moore originally became a suspect in the murder after telling his uncle, Sparky Moore, on April 8, 1999, that he was in Tipton's house when she was murdered. Moore relayed this admission to his friend, Assistant District Attorney Wesley Lavender, who called the police. The next day, police found David at a Ramada Inn and took him in for questioning; David waived his right to remain silent and his right to an attorney. During initial questioning, David was nonchalant and denied knowing Tipton and her husband; however, once it was diclosed that the police knew about David's admission to his uncle, his demeanor changed and he was visibly shaken. When police thereafter stepped outside of the interrogation room to determine how to proceed, David stabbed himself with a pen knife, causing serious injuries which needed to be treated at the hospital.
Pursuant to the judge's ruling in the re-trial, however, the prosecution will not be able to refer to this self-stabbing as a suicide attempt because there is no evidence of a guilty conscience by David. Central to this finding was the judge's conclusion that several suicide notes written by David to his family were inadmissible because the state cannot establish when David wrote them.
But was this ruling correct? I'm assuming from the articles written on the case that the import of the judge's ruling on the suicide notes was that the state could not prove whether they were written after Tipton's murder, making them relevant to David's "guilty conscience," or whether they were written before Tipton's murder, making them irrelevant. But the articles also mention that Assistant Attorney General Corey Maze read a transcript excerpt of Moore's testimony from his trial in 2002 in which he testified that he had written the letters April 8 after talking to his uncle. If the reporting of this fact is true, I don't see why the judge ruled that the state cannot establish when David wrote the suicide notes.
Like its federal couterpart, Alabama Rule of Evidence 901(a) indicates that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." It seems clear to me that this liberal authentication standard should have been met by David's own testimony that he wrote the suicide letters on April 8th, but maybe there's something from the case that the articles are not reporting.
February 20, 2008
Evidence And Ethics 16: Professor Mosteller's The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure To "Do Justice."
The contribution of Duke University School of Law Professor Robert P. Mosteller to the Evidence and Ethics Sympoisum is his article, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice." In the article, Professor Mosteller focuses on the infamous Duke lacrosse case, which led to the disbarment of Durham County District Attorney Mike Nifong. And yet, the focus of the article is not on the actual ethical rulings resulting from the pernicious conduct of Nifong, but instead on the fact that no charge was brought against him for failing to "do justice." Mosteller notes that the absence of such a charge was because Model Rule 3.8(a) is woefully inadequate and largely unenforceable and thus contends that a better way to protect the innocent from unsubstantiated prosecutions would be to create guidelines that improve accuracy in identification and to turn those guidelines into legally enforceable standards.
In Parts I and II, Mosteller sets out all of the relevant facts of the Duke lacrosse case and lays bare the various and sundry ethical violations committed by Nifong, including (1) violations based upon improper pretrial publicity and (2) violations based upon the failure to disclose exculpatory DNA evidence.
In Part III, however, Mosteller notes that while a fundamental ethical duty of prosecutors is to "do justice," no charges were brought against Mosteller based upon Rule 3.8(a) of the North Carolina Revised Rules of Professional Conduct (taken directly from Model Rule 3.8(a)), which states that “[t]he prosecutor in a criminal case [shall] . . . refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” He contends that despite Nifong violating the "do justice" precept in "the most fundamental way," it is far from clear that Nifong violated Rule 3.8(a) because, inter alia, (1) the Rule requires only that the prosecution be supported by probable cause, (2) the Rule sets a very high standard on the mental element, imposing a duty to refrain from prosecuting only when the prosecutor “knows” that probable cause is lacking, and (3) the Rule imposes no duty of thorough inquiry into the facts and no responsibility of independent investigation.
Because Mosteller finds Rule 3.8(a) to be toothless and thus largely worthless in protecting the innocent from unsubstantiated prosecutions, in Part IV, he turns to an alternate solution: changing the way we allow police to conduct identifications. Mosteller notes that current due process doctrine affords extremely weak protection to criminal accuseds because it merely prevents police from being suggestive during the identification process. Mosteller notes, however, that while suggestiveness was a problem in the "all suspects" photograph identification procedure used in the Duke lacrosse case, the larger problem was unreliability. Mosteller then looks at how the innocence movement began changing the focus from suggestiveness to a focus "on misidentifications and on accuracy in identification procedures."
This movement has led to researchers generally "settling on six recommendations: (1) only one suspect should be in each lineup or photo array; (2) the suspect should not “stand out”; (3) the witness should be cautioned that the perpetrator might not be in the lineup or array; (4) those in the lineup or array should be displayed sequentially rather than simultaneously; (5) the person who administers the identification procedure should not know whether the suspect is in the lineup or array and certainly should be ignorant of the identity of the suspect (“double-blind testing”); and (6) a statement regarding the witness's confidence should be collected at the time any identification is made."
In Part V, Mosteller argues that states should adopt guidelines in accordance with these recommendations but that they must be made into legally enforceable standards. He then notes that North Carolina did just that in the wake of (and in response to) the Nifong case. He praises this move as at least a good first step but wonders whether the remedies in the North Carolina legislation are specific enough and go far enough. As an advocate of shifting in the way we treat identifications in criminal cases, I found myself agreeing with much of Mosteller's article, and I hope that many state legislatures soon follow suit.
I wrote Professor Mosteller about his article, and he responded,
"In about a week, a related article will be published by the George Mason Law Review, "Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery," 15 Geo. Mason L. Rev. ___ (forthcoming 2008). It deals with two other cases in North Carolina and the development of the full open-file discovery law, which was quite important to the proper outcome in the Duke Lacrosse Case."
That article is now available on the George Mason Law Review website.
One Dead In Ohio: Court Of Appeals Of Ohio Finds Forfeiture By Wrongdoing Doctrine Only Applies To Actions Taken After The Charged Event
As I noted before, the Supreme Court has 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. Case law uniformly holds that the doctrine applies where a defendant facing trial kills or injures a prospective witness against him because such a defendant has the specific intent to render the prospective witness unavailable. But what happens when, say, a husband kills his wife and is on trial for her murder? Should the doctrine apply even though the husband's specific intent in that case was not to render his wife unavailable to testify against him? As I've noted, a few courts, such as the Supreme Court of Montana in State v. Sanchez, 2008 WL 273926 (Mont. 2008) and the Supreme Court of Wisconisn in the Mark D. Jensen case have found that the forfeiture by wrongdoing doctrine applies in such circumstances and thus must be awaiting the Supreme Court's decision with baited breath.
An example of a court coming to the opposite conclusion can be found in the Court of Appeals of Ohio's recent opinion in State v. McCarley, 2008 WL 375842 (Ohio App. 9 Dist. 2008). In McCarley, Charlene Puffenbarger filed a paternity/child support suit in November 1991 naming Willard McCarley as the father of her two year old son. On January 20, 1992, a neighbor came to Charlene's apartment and found her dead on a couch with several scalp lacerations, defensive wounds on her hands, and a leather strap wrapped twice around her neck. After trial, McCarley was found guilty of aggravated murder after, inter alia, witnesses testified about statements Charlene made to them after she brought her paternity suit and before her murder, which were admitted pursuant to Ohio Rule of Evidence 804(b)(6), its version of the forfeiture by wrongdoing doctrine, which allows for the admission of "[a] statement offered against a party if the unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying."
The Court of Appeals of Ohio found that this evidentiary ruling was erroneous because "[i]t would be a very strange case indeed if a person murdered another for the purpose of preventing the other from testifying in their own murder trial." The court then noted that the Staff Notes to Ohio Rule of Evidence 804(b)(6) indicate that “the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...." The court thus concluded that "when a homicide victim and a Rule 804 witness are the same person, the forfeiture by wrongdoing provision generally cannot be used to admit that person's statements in their own trial." Based upon the Staff Notes to Ohio Rule of Evidence 804(b)(6), this conclusion makes sense, but I have a serious question about the Staff Notes themselves. As noted, the Staff Notes to Ohio Rule of Evidence 804(b)(6) do note that “the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...." But this conclusion only comes after the following language in the Staff Notes: "As the federal drafter's note, [t]he wrongdoing need not consist of a criminal act. The rule applies to all parties, including the government. It applies to actions taken after the event to prevent a witness from testifying.' Fed.R.Evid. advisory committee's note." Obviously, only the third sentence quoted from the advisory committee's notes provides support for Ohio's rule, and that leads to the problem, which is that I can't find this sentence listed in the advisory committee's note. On Westlaw, the first two sentences are listed, but not the third. The same is true on Cornell's page listing the Rules. Unless there's some version of the advisory committee's notes I'm not finding, the emperor has no clothes, and the stated rationale for its line drawing dissipates. -CM
The Court of Appeals of Ohio found that this evidentiary ruling was erroneous because "[i]t would be a very strange case indeed if a person murdered another for the purpose of preventing the other from testifying in their own murder trial." The court then noted that the Staff Notes to Ohio Rule of Evidence 804(b)(6) indicate that “the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...." The court thus concluded that "when a homicide victim and a Rule 804 witness are the same person, the forfeiture by wrongdoing provision generally cannot be used to admit that person's statements in their own trial."
Based upon the Staff Notes to Ohio Rule of Evidence 804(b)(6), this conclusion makes sense, but I have a serious question about the Staff Notes themselves. As noted, the Staff Notes to Ohio Rule of Evidence 804(b)(6) do note that “the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...." But this conclusion only comes after the following language in the Staff Notes: "As the federal drafter's note, [t]he wrongdoing need not consist of a criminal act. The rule applies to all parties, including the government. It applies to actions taken after the event to prevent a witness from testifying.' Fed.R.Evid. advisory committee's note." Obviously, only the third sentence quoted from the advisory committee's notes provides support for Ohio's rule, and that leads to the problem, which is that I can't find this sentence listed in the advisory committee's note.
On Westlaw, the first two sentences are listed, but not the third. The same is true on Cornell's page listing the Rules. Unless there's some version of the advisory committee's notes I'm not finding, the emperor has no clothes, and the stated rationale for its line drawing dissipates.
February 19, 2008
Evidence And Ethics 15: Professor Sanders' Expert Witness Ethics
University of Houston Law Center Professor Joseph Sanders' contribution to the Evidence and Ethics Symposium is his article, Expert Witness Ethics. In the article, Sanders focuses on what ethical standards apply to expert witnesses and "what steps we should take to encourage more ethical behavior" by expert witnesses. In Part I, he discusses "the nature of the expert's ethical obligation and impediments to fulfilling that obligation." His starting point is the central proposition that, as reflected in Federal Rule of Evidence 102, "the primary purpose of a trial is to ascertain the truth." From this proposition, he advocates use of the epistemolical approach of looking at the interplay among "belief, truth, and justification" in determining when an expert can testify. This approach leads him to argue that "[e]xpert ethical behavior should be judged by the standards of the discipline of the expert."
He then contends that this result is best achieved by applying "Kumho Tire's requirement that in order to be admissible the expert must employ the 'same intellectual rigor' with respect to his courtroom testimony that he would with respect to his everyday work." Sanders acknowledges that two primary concerns have been raised to this "same intellectucal rigor" test: (1) there may be areas for which the profession's acceptable levels of justification are so low that one might argue their standards are always insufficient for legal purposes; and (2) some professional standards may be too stringent, preventing the admission of relevant expert evidence. Nontheless, Sanders presents persuasive rebuttals as to why this test is most approriate.
In Part II, Sanders "discusses ways we might enforce expert ethical standards through the use of sanctions." In this part, Sanders considers several potential types of sanctions: (1) sanctions by the parties to the litigation; (2) sanctions by (and of) lawyers; (3) sanctions by professional organizations; (4) sanctions by judges, and (5) sanctions by juries. This analysis leads Sanders to conclude that while some sanctions (particularly published admissibility rulings "outing" experts and professional organization sanctions) can play a role in controlling unethical behavior, enforcement problems and countervailing pressures work to minimize their effectiveness as they are applied in only the most egregious cases.
Thus, in Part III, Sanders considers how systemic changes might control expert (mis)behavior. The most fascinating suggestion he raises is based upon a "recent reform in New South Wales" in Australia. Sanders notes that a new Civil Procedure Act in Australia, adopted in 2005, calls for, inter alia, "concurrent evidence" sessions. According to Sanders,
"The concurrent evidence procedure is employed in circumstances where the party experts disagree about some relevant fact. During concurrent evidence sessions, the experts, their attorneys, and the judge meet, freed from the constraint of having to formally respond to lawyer questions. Each expert is given an opportunity to make a statement, to comment on the evidence of other experts, and to ask questions of other experts. At the conclusion of this process, the judge may ask questions and then lawyers are permitted to pose questions that more nearly resemble those that would be asked in traditional adversarial proceedings. Judges report that the experts and their professional organizations approve of this procedure. According to Dr. Gary Edmond, judges attribute the following benefits to the concurrent evidence procedure: (1) it reduces partisanship (adversarial bias) and distortion; (2) it embodies scientific values and facilitates peer review; (3) it enhances communication, comprehension, and analysis; (4) it decreases lawyer control; and (5) it reduces time and costs and narrows the real issues."
Sanders cautions that implementation of this "concurrent evidence" procedure would require wholesale changes in American evidence law, but he also notes that pieces of this procedure could be readily implemented into the current American system. This approach seems to me to be a great solution to a problem that is increasingly plaguing courts, and I hope that those in the legal community pay attention to his recommendations when they next decide to amend the rules on expert evidence.
Secret Indictment: Ninth Circuit Inexplicably Drags Its Feet On Sixth Amendment Issue
The Ninth Circuit's recent opinion in United States v. Nunez-Villegas, 2008 WL 399191 (9th Cir. 2008), left open an issue which the court hadn't previously resolved, but which seems to have an answer that is as clear as day. In Nunez-Villegas, Celso Nunez-Villegas was convicted of one count of being a felon in possession of a firearm under 18 U.S.C. Section 922(g) and one count of being in possession of an unregistered firearm. Id. at *1. The court allowed Nunez-Villegas to stipulate to the fact that he had a qualifying felony conviction under 18 U.S.C. Section 922(g), but the court nonethless gave the jury a copy of his indictment, which "alleged that his prior felony conviction was for possession of narcotics for sale." Id. Nunez-Villegas contended that the submission of this indictment violated his Sixth Amendment right to confrontation. Id.
The Ninth Circuit noted that "[t]he Sixth Amendment is violated by '[a] jury's exposure to extrinsic evidence' not presented at trial." Id. (quoting Raley v. Yist, 470 F.3d 792, 803 (9th Cir. 2006). The court then noted, however, that "[o]ur circuit has not yet decided whether unsupported allegations in an indictment constitute improper 'extrinsic evidence.'" Id. The Ninth Circuit nonethless found that it did not need to answer this question because "under any standard of review, any error did not contribute to the verdict." Id. The court came to this conclusion because Nunez-Villegas' stipulation established that he was a prior felon, and his claim that he was not in possession of an unregistered firearm because he merely held the firearm as collateral for a loan was unavailing. id.
This opinion was no doubt correct based upon the facts of the case, but it leaves me wondering why the Ninth Circuit has failed to answer the question of whether unsupported allegations in an indictment constitute improper "extrinsic evidence." The Ninth Circuit has defined "extrinsic evidence" under this Sixth Amendment test as evidence not presented at trial, acquired through out-of-cort statements, or otherwise. See Yist, 470 F.3d at 803. Clearly, Nunez-Villegas' indictment, at least in unredacted form, was not presented at trial and could not have been presented based upon his stipulation, making it extrinsic. Furthermore, an indictment and the allegations contained therein are clearly "evidence." See, e.g., Haas v. Henkel, 216 U.S. 462, 482 (1910). Therefore, unsupported allegations in an indictment clearly constitute "extrinsic evidence," triggering a Sixth Amendment violation if they improperly contributed to the verdict.
February 18, 2008
Open The Door, Get On The Floor: Texas Court Makes Erroneous Impeachment Ruling
The Court of Appeals of Texas' recent opinion in Grant v. State, 2008 WL 399208 (Tex.App-Austin 2008) seems to me to be an opinion that confused the concepts of character evidence and impeachment evidence. In Grant, Johnny Alison Grant was found guilty of aggravated assault by causing serious bodily injury based upon an alleged attack on his former girlfriend. Grant's defense was that he did strike his ex-girlfriend, but that he was acting in self-defense.
At his trial, Grant testified, inter alia, that he had never “threatened to kill or hurt anybody, ever” and that he had “never hit a woman before." Thereafer, the prosecution asked the trial judge to allow Grant's testimony to be impeached with a prior felony conviction from 1976 when Grant stabbed three people in a bar in New York. The prosecution's theory of admissibility was that Grant had “opened the door” by making statements to the effect that he was a nonviolent person and had created a “false impression with the jury as to his propensity for violence." (emphasis added).
Defense counsel objected that this conviction was inadmissible under Texas Rule Rule of Evidence 609(b), which states that "[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 substantially outweighs its prejudicial effect." The trial judge overruled this objection and allowed for Grant to be impeached by his prior conviction.
On appeal, the Court of Appeals noted that the trial judge was not clear as to whether he allowed for the impeachment because, inter alia, he found that the conviction's probative value substantially outweighed its prejudicial effect under Texas Rule Rule of Evidence 609(b) or whether he found that "Grant 'opened the door' for impeachment....when he made affirmative misrepresentations about his propensity for violence." (emphasis added). The Court of Appeals, however, found that it did not need to consider Texas Rule Rule of Evidence 609(b) because Grant had "opened the door" by creating a '"false impression" of law abiding behavior, allowing for impeachment basd upon his prior felony conviction.
To me, this analysis makes no sense. "Character evidence" is covered under Texas Rule of Evidence 404 and in the criminal context typically consists of the prosecutor trying to prove that the defendant has a propensity to act in a particular manner (e.g., violently) and that he thus acted in conformity with this propensity when committing the subject crime. "Impeachment evidence," at least when prior convictions are involved, is covered under Texas Rule of Evidence 609, and in the criminal context consists of the prosecutor trying to prove that the defendant's past convictions make it so that the jury should not trust his testimony.
Thus, in a defendant's trial for assault, his felony assault conviction admitted under Texas Rule of Evidence 609 would be admitted to show that the jurors should not trust his testimony, but it would not be admitted to show that he had a propensity to be violent and that he acted in conformity with that propensity when committing the subject crime. Indeed, the Advisory Committee's Notes to the 1990 amendment to Federal Rule of Evidence 609 (after which Texas Rule of Evidence 609 is modeled), notes that "the rule recognizes that, in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudice --i.e., the danger that convictions that would be excluded under Fed. R. Evid. 404 will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes."
Now, lets look at the "opening the door" rationale used by Texas courts. The prosecution's theory of admissibility was that Grant had “opened the door” by making statements to the effect that he was a nonviolent person and had created a “false impression with the jury as to his propensity for violence." (emphasis added). The Court of Appeals agreed and thus allowed him to be "impeached" through his prior violent felony conviction.
The problem is that under the court's theory, the prosecution was making a "character evidence" use of the conviction, not an "impeachment" use of the evidence. The prosecutor was refuting the defendant's claim that he did not have a propensity for violence by presenting evidence that he had a propensity for violence based upon his violent felony conviction. If the prosecutor were making an impeachment use of the evidence, he would be using the violent felony conviction not to refute the defendant's testimony about his non-propensity for violence but to show that he was lying on the witness stand and should not be trusted by jurors. Texas courts seem to be confusing these two types of evidence, resulting in their flawed "opening the door" rationale.
February 17, 2008
Atlantic City: Judge Rules Modus Operandi Evidence Admissible In Parking Lot Robberies
The prosecution will be able to present evidence of two similar acts in a New Jersey man's trial for robbing and killing an 87 year-old woman. Allegedly, at about 1:00 P.M. on August 11, 2006, Robert Shaver left his home in search of a senior citizen to rob. He then drove to a ShopRite in Atlantic City, hung out in the parking lot, and saw 87 year-old Mildred Petrone, a frail, petite woman, get out of a car. Shaver then approached Petrone and yanked her purse away with such force that her neck broke. Five days later, Petrone died in the hospital from her injuries.
The prosecution sought to introduce evidence relating to to other alleged robberies committed by Shaver: (1) Shaver allegedly attacked 79 year-old Phyllis Cosulich and stole her purse near the same ShopRite, and (2) Shaver allegedly robbed 65 year-old Irene Ruzzo at gunpoint as she left Giovanni's Best of Italy restaurant.
Under New Jersey Rule of Evidence 404(a), "[e]vidence of a person's character or a trait of his character, including a trait of care or skill or lack thereof, is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion." Thus, the prosecution could not use Shaver's alleged other crimes to prove that he had propensities to be violent/thieving and that he acted in conformity with these propensities when he violently robbed Petrone.
However, under New Jersey Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts are admissible for other purposes such as proving common plan or scheme/modus operandi. In other words, Shaver's other robberies could be admissible to prove that he had a common plan of lying in wait for elderly women in parking lots and violently robbbing them. This is exactly the theory under which the judge allowed for the admission of the other acts, concluding that, "The modus operandi for all three (incidents) is strikingly similar."