EvidenceProf Blog

Dismissed With Prejudice, Take 2: Recent Maryland Opinion Reveals That The Terrpain State Precludes Jury Impeachment Based Upon Allegations Of Juror Racism

In my forthcoming article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense, I cite to a number of state court opinions precluding jurors from impeaching their verdicts through allegations of juror racial prejudice during deliberations.  In the article, however, I did not cite to any opinions from Maryland, but the recent opinion of the Court of Special Appeals of Maryland in Dorsey v. State, 2009 WL 809451 (Md.App. 2009) reveals that the Terrapin State precludes jury impeachment on these grounds as well.

Dorsey itself actually did not involve post-trial allegations of juror racial bias.  Instead, Theodore Doresy appealed from his second degree arson conviction, and the Court of Special Appeals of Maryland found that jurors could not impeach their verdict through testimony that jurors took his decision not to testify as evidence of his guilt pursuant to Maryland Rule of Evidence 5-606(b)(1), which states that:

In any inquiry into the validity of a verdict, a sworn juror may not testify as to (A) any matter or statement occurring during the course of the jury's deliberations, (B) the effect of anything upon that or any other sworn juror's mind or emotions as influencing the sworn juror to assent or dissent from the verdict, or (C) the sworn juror's mental processes in connection with the verdict. 

In reaching this conclusion, however, the court relied in part on the opinion of the Court of Appeals of Maryland in Williams v. State, 102 A.2d 714 (Md. 1954). In that case, an African-American woman appealed from her assault and battery conviction and sought to introduce the affidavit of a juror, who averred

"This was an all white jury. From the beginning of the discussion in the jury room it was the race of the defendant, not the facts, which were weighed by the majority of the jurors. They freely discussed the race of this girl and said that where colored people are concerned the police have got to be right. Bandied back and forth between the jurors were the statements that these colored people are smart alecs, especially the educated ones; that they overassert their rights; that we must teach them a lesson. Four of the jurors, including myself, were for complete acquittal at the first of the discussion. A fifth juror was undecided. The other jurors kept hammering at us. One of the jurywomen exclaimed to me, 'You're taking that colored girl's word against the police. You must be in trouble with the police!' I told her I had never been in trouble with the police, that I had many friends who were police officers, but I felt this girl was innocent. The last half hour, I held out alone. I finally threw in the towel when some of the jurors accused me of being a 'nigger-lover.'"

The Court of Appeals in Williams deemed this affidavit admissible, concluding that "[w]e have been referred to no case, and careful independent research has disclosed none, where a verdict was set aside on appeal in any jurisdiction, because of fallacious, unfair or biased arguments advanced by jurors to one another in their deliberations." In so folding, the Court of Appeals remarked that it reached this conclusion even though the "claim that a litigant has been denied justice on account of his or her race ... rais[es] an issue of utmost gravity." 

So, we can add Maryland to the list of states that preclude jury impeachment based upon allegations of juror racial prejudice, and I think that this last sentence from Williams goes a long way toward explaining why the application of such a rule violates the right to present a defense.

-CM

Eleven Angry Men: Northern District Of Illinois Rejects Section 2255 Petition Alleging Missing Juror During Deliberations

The recent opinion of the United States District Court for the Nothern District of Illinois in United States v. Webster, 2009 WL 779806 (N.D. Ill. 2009), contains one of the more interesting jury impeachment questions that I have ever seen:  What happens when twelve angry men becomes eleven angry men?  For the Northern District of Illinois, the answer was "nothing," at least when the petitioner seeks relief based upon alleged juror misconduct.

In Webster, Jesse Webster was convicted of conspiracy with intent to distribute kilogram quantities of cocaine, possession with intent to distribute fifteen kilograms of cocaine, attempted possession with intent to distribute twenty-five kilograms of cocaine, and two counts of false statements on his 1992 and 1993 tax returns.  After he unsuccessfully appealed, he filed for Section 2255relief. In his Section 2255 petition, Webster alleged, inter alia, juror misconduct in that:

the docket sheet of the criminal case indicated that on November 29, 1995 the records showed that one juror was absent. A docket entry stated that the jury deliberated that day. The next day, the absent juror appeared and the twelve jurors deliberated and around noon indicated that it had reached the verdict that is the foundation for the judgment in this case.

If the docket sheet were correct, the deliberations were incorrect because the jury should not have deliberated with only eleven jurors present.  But the problem for Webster was that the bailiff serving on his trial had passed away was thus unable to testify whether the jury deliberated with only eleven jurors present and, if so, why he failed to instruct the court of this fact and have the jurors sent home.  Recognizing the potential for injustice, and notwithstanding Federal Rule of Evidence 606(b), the anti-jury impeachment rule, the judge allowed for interrogation of the jurors regarding deliberations, but the problem was that they "had incomplete memories of the deliberations."

There was understandable confusion about which days the jury sat and about who sat. Seven jurors could not recall a day when one of their members was absent. Three did recall such a day but remembered, incorrectly, that an alternate juror was seated. Another juror did recall that a male juror did not appear during trial (not during deliberations) but did come back the next day. None of the jurors recalled a day in which they were sent home early, an event which would have occurred if the normal practice regarding such events in this courthouse had been followed. None of the jurors recalled deliberating with less than all of the jurors. 

But the larger problem for Webster was that Webster's Section 2255 petition alleged juror misconduct when in fact he was alleging bailiff misconduct because it was the bailiff who should have stepped in and stopped and prompted the judge to stop deliberations.  The Northern District of Illinoisthus found that Webster's new "bailiff misconduct" claim was untimely and not cognizable because it was not of constitutional dimensions (the court also rejected Webster's other attempts to attack his convictions).  This seems like a troubling result to me, but it seems that the trouble came from the lack of reliable evidence rather then the court, which did not rigidly apply the rules of evidence.

-CM

You're Gonna Get Out In Forever And A Day: Kentucky District Court Precludes Jury Impeachment In Capital Habeas Appeal

Last November, I posted an entry about United States v. Jackson, 2008 WL 4901375 (5th Cir. 2008), in which death-sentenced David Jackson moved for a new trial, alleging, inter alia, that the jury erroneously believed that even if Jackson were sentenced to life without parole, it was still possible he could be released before the end of his life, despite the district court's explicit instruction to the contrary. The Fifth Circuit denied Jackson's motion, finding that the jurors could not impeach their verdict through evidence of a misunderstood jury instruction.  The recent opinion of the United States District Court for the Wester District of Kentucky in Matthews v Simpson, 2009 WL 722073 (W.D. Ky. 2009), is cut from a similar cloth.

In Matthews, David Matthews brought a petition for writ of habeas corpus after he had unsuccessfully appealed from his convictions for murder and burglary and death sentence in the Kentucky state court system. One of the grounds for Matthews' challenge to his death sentence was that jurors considered the possibility that he could be paroled in deciding upon his sentence, which was prohibited under Kentucky law at the time of his trial.  In support of his petition, Matthews submitted, inter alia, the affidavits of jurors David Eugene Durham and Mary Jo Fisher Raichart.  Durham's affidavit stated:

1. I was a juror in the 1981 capital trial of David Eugene Matthews in Louisville, Kentucky.

2. While we as a jury were deliberating on the kind and type of sentence to recommend for Mr. Matthews, one of the jurors said that they thought that no matter what kind of sentence we gave him, that he would be eligible for parole within a short period of time after being sentenced.

3. We all felt that this had a great impact upon our sentencing decision, therefore, we asked the judge how we were to consider parole in the sentencing choices we had to make.

4. The judge told us he could not answer our questions. However, he never told us not to consider parole in deciding upon an appropriate sentence.

5. Because we believed that Mr. Matthews might be eligible for parole in a relatively short period of time if we handed down a sentence of less than death, I voted for the death penalty so that Mr. Matthews would have to stay in prison.

Similarly, Fisher Raichart's affidavit stated:

1. I was a juror in the 1982 capital trial of David Eugene Matthews in Louisville, Kentucky.

2. My name at the time of the trial was Mary Jo Fisher. My name is now Mary Jo Fisher Raichart. The jury was concerned about the possibility of parole within a short time.

3. We all felt that this had a great impact upon our sentencing decision, therefore, we asked the judge how we were to consider parole in the sentencing choices we had to make.

4. The judge told us he could not answer our questions. He never told us not to consider parole in deciding upon an appropriate sentence.

5. Because we believed that Mr. Matthews might be eligible for parole in a relatively short period of time if we handed down a sentence of less than death, I voted for the death penalty so that Mr. Matthews would have to stay in prison.  

The problem for Matthews was Federal Rule of Evidence 606(b), which states that:

Upon 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.

Using this Rule, the court found that Matthews did not present it 

with any evidence that the jury considered some external piece of information that was not admitted at trial in reaching its sentencing verdict. If that were the case, then the court might be able to consider it. Rather, Matthews...presented the Court with only affidavits from two jurors stating that the possibility of parole influenced their verdict....[S]uch evidence is undisputably intrinsic in nature, and therefore, inadmissible under Rule 606(b).

Alternatively, the court found that it could not award habeas relief to Matthews because "[e]ven if the court were to consider this evidence, the fact that the jury considered parole in violation of Kentucky law does not establish a violation of federal law."

Undoubtedly, this was the correct decision under current law, but I still remain uncomfortable applying the anti-jury impeachment rule when it is a person's life, and not merely his liberty, at stake.

-CM

Layering Effect: Ninth Circuit Finds Public Record With Hearsay Within Hearsay Was Improperly Admitted

The recent opinion of the Ninth Circuit in United States v. Marguet-Pilado, 2009 WL 792500 (9th Cir. 2009), addresses a topic that I just covered in my Evidence class yesterday: If a business or public record contains statements made by someone outside the business or public agency, you have hearsay within hearsay, and each level of hearsay must be admissible under some applicable exception.

In Marguet-Pilado, Carlos Jesus Marguet-Pillado (Carlos Marguet) appealed from his conviction under 8 U.S.C. Section 1326(a) for being a removed alien who was found in the United States. As part of his appeal, Carlos Marguet claimed, inter alia, that the trial court improperly allowed for the admission of the Application from his immigration file (A-file), in which he applied for permanent resident status on the basis of his relationship to Michael Marguet, who was not his biological father but who was named as his father on a Mexican birth certificate. At the time that this application was filled out, Carlos Marguet was just a five-year-old boy, and the document was filled out and signed by Michael Marguet. In it, Michael Marguet declared that Carlos Marguet was born in Mexico and was a citizen of that country.

On appeal, Carlos Marguet claimed that this Application was inadmissible hearsay, but the State countered that it was admissible under either the business records or the public records exception to the rule against hearsay.  The Ninth Circuit found that either of these exceptions were probably at least partially applicable, especially the latter, because "the Application c[ould] be said to document the activities of a governmental agency and to document the observations of a responsible government officer to some extent."  

The problem for the State, however, was that both of these exceptions only cover statements made by members of the business or public agency because they have a duty to report, and it is generally expected that they do so accurately and reliably.  Conversely, a private citizen outside the business or public agency has no such duty, and "the only part of the document truly relevant...[wa]s Michael Marguet's hearsay statement that Carlos Marguet was born in and was a citizen of Mexico."  Therefore, Michael Marguet's statements on the Application were hearsay within hearsay under Federal Rule of Evidence 805 and only admissible if they also met some applicable hearsay exception.  The problem for the State was that no such exception applied, and the Ninth Circuit thus reversed.  Of course, if Carlos Marguet filled out the Application himself, his statements on the form would have been the admissions of a party-opponent, and there would have been no hearsay problem.

-CM   

Gang Related?: Michigan Court Precludes Jury Impeachment Despite Disturbing Juror Behavior

Federal Rule of Evidence 606(b) generally precludes courts from peering behind the jury room curtain after a verdict has been rendered.  Well, to put it more specifically, the Rule does not preclude courts from such peering, but it does preclude litigants from using what is found to challenge the verdict.  And, as the recent opinion of the United States District Court for the Western District of Michigan in Torrez v. McKee, 2009 WL 528950 (W.D. Mich. 2009), makes clear, what courts find is frequently disturbing.

In McKee, Jose Torres brought a petition for writ of habeas corpus after he was unsuccessful in appealing his convictions for assault with intent to commit murder, possession of a firearm during the commission of a felony, and assault with intent to commit great bodily harm in the Michigan state court system.  Part of the basis of Torres' motion was that the Michigan courts improperly refused to reverse the jury's verdict, despite post-trial allegations by juror Catherine Jacobs that

-she and three other jurors believed that the verdict most properly should be guilt on the offense of assault with intent to commit great bodily harm, rather than assault with intent to murder. 

-the foreman repeatedly told the other jurors that intent was irrelevant and that the only issue was whether an ordinary person would pull out a gun and fire at people;

-various jurors concluded that Petitioner was in a gang and expressed their beliefs that gang members wanted to kill people;

-one juror expressed her belief "that these kids are all alike, that they are angry, and that they think that society owes them, and she said she's seen people like the Defendant before;"

 

-another juror stated, "Oh, this country's going to hell because people get let off, and they let all the bad guys go free;" and

-the day that the verdict was rendered was long, with jurors not having a dinner break, and that she felt worn down by the other jurors, one of whom was angry that the trial had continued so long that he would miss a big band concert. 

The Western District of Michigan denied Torres' petition, noting that Jacobs allegations could not be used to disturb the jury's verdict pursuant to Federal Rule of Evidence 606(b), which states that

Upon 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. 

According to the Western District of Michigan, because "the allegations in the instant case involve[d] matters intrinsic to the jury's deliberations..., the jury's verdict [wa]s not subject to impeachment by evidence from one of the jurors."  Undoubtedly, this ruling was correct under Rule Evidence 606(b), but I can't imagine that many people are completely satisfied with this result.

-CM

Recalculating, Take 4: Court Of Appeals Of New York Hears Oral Argument In Warrantless GPS Tracking Appeal

On several previous occasions on this blog (here, here, and here), I have addressed the issue of whether police are required to obtain a search warrant before attaching a GPS device to a suspect's vehicle.  In the second of those posts, I addressed the case of People v.Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), where 

a police officer, in the course of investigating a series of burglaries and acting without a warrant, attached a GPS device under the bumper of Scott Weaver's van while it was parked on a public street. Based upon the data retrieved from this device and other evidence, Weaver and a codefendant were arrested and charged with burglary in the third degree and grand larceny in the second degree in relation to a theft from a K-Mart Store, as well as burglary in the third degree and petit larceny in relation to a theft from a meat market six months earlier. After he was convicted of these crimes, Weaver appealed to the appellate division, claiming, inter alia, that the trial court erred in denying his motion to suppress all of the evidence obtained against him as a result of the warrantless placement of the GPS device on his van. 

In affirming, the Third Department noted that New York precedent on the issue was split but decided to affirm Weaver's conviction because "where there is no legitimate expectation of privacy, there is no search or seizure" under the Fourth Amendment. The court noted that pursuant to federal precedent (such as United States v. Knotts, 460 U.S. 276), a defendant can neither reasonably expect privacy in the publicly accessible exterior of his or her vehicle, nor in the location of his or her vehicle on public streets. Therefore, the court found that the warrantless attachment of the GPS to Weaver's vehicle was legal because collecting information about the movement of a vehicle on public thoroughfares by means of an electronic device attached to a vehicle's undercarriage, which does not damage the vehicle or invade its interior, does not constitute a search or seizure in violation of the Fourth Amendment.

While I feel uncomfortable with this conclusion, I think that it was the right one under federal precedent such as Knotts.  That said, nothing precludes states from affording citizens greater rights under their state constitutions, and that is exactly what Justice Stein did in his dissenting opinion in Weaver, concluding:

"Specifically, I would reject the 'premise...that information legitimately available through one means may be obtained through any other means without engaging in a search....'  Instead, I would adopt the principle that 'a privacy interest...is an interest in freedom from particular forms of scrutiny'...and would find that '[a]ny device that enables the police quickly to locate a person or object anywhere ... day or night, over a period of several days, is a significant limitation on freedom from scrutiny'...and upon a person's reasonable expectation of privacy, even if it occurs in a place where an expectation of privacy would not be considered reasonable under other circumstances. Stated otherwise, while the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause."   

Well, these disputes among New York courts and justices should soon be resolved.  On Tuesday, the Court of Appeals of New York (the equivalent of most states' supreme courts) heard oral arguments in Weaver. In presenting Weaver's case to the court, his attorney argued, "Your honors, we are here today to decide the most important constitutional case of this young 21st century." Meanwhile, the State's attorney countered, "When you're out in public, you're in public....People can watch you, you can be monitored, cameras can watch you." 

The response from the justices seemed mixed.  One asked Weaver's attorney, "Isn't this just a more efficient way of doing the same thing that's been done by police for a long time; namely, tailing somebody or following somebody?" Meanwhile, the Chief Justice cautioned that "We have to also consider the opportunity for abuse."  

I couldn't get it to play, but it appears that Capital News Nine has some video of the arguments or least analysis of them here. The court's ruling is expected in April. 

-CM

The Lone Ranger And Tonto Fistfight In Heaven, Take 4: Tenth Circuit Denies En Banc Request In Juror Racism Appeal

Readers of this blog are intimately acquainted with the plight of Kerry Dean Benally.  Last December, I wrote a post which laid out the basic details of his trial and its aftermath:

An officer spotted Kerry Dean Benally, a Native American man, who was allegedly driving erratically in the White Mesa area in southeastern Utah. The officer than followed Benally to his residence. At this point, according to the officer, Benally, who appeared to be intoxicated, punched the officer and struck him in the face with a flashlight. Benally was charged with assault on a federal officer, and trial began and ended quickly with the jury finding Benally guilty as charged. 

After the verdict was entered, however, a problem soon arose.  When the jury was selected to hear the case, all seated jurors denied that they had any preconceived notions about Native Americans. According to juror Karen Cano, however, some jurors were either fooling the court or fooling themselves.  Cano came forward after the verdict and told the court that the jury foreman told the other jurors that he had lived on or near a reservation and that he told the other jurors, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent." According to Cano, a female juror then seemed to agree with the foreman, saying something about what happens when "they get drunk." Cano also claimed that two other jurors talked about wanting to send a message to the reservation. 

Notwithstanding Federal Rule of Evidence 606(b), the anti-jury impeachment rule, the United States District Court for the District of Utah allowed for the admission of Cano's affidavit and vacated Benally's conviction. At the time, I noted, "The Benally case...appears to be the first case in which a court in the Tenth Circuit has considered post-verdict evidence of juror racial bias in reversing a verdict."

And the Tenth Circuit wasn't very happy with the district court's decision.  It subsequently reversed, finding that:

(1) Rule 606(b) only permits jury impeachment based upon allegations of extraneous prejudicial information or improper outside influences, and allegations of juror bias fit in neither box;

(2) An inquiry into whether a juror lied on voir dire is constructively an inquiry into the validity of a verdict, which is precluded under Rule 606(b); and

(3) The Supreme Court found in Tanner v. United States, 483 U.S. 107 (1987), that the application of Rule 606(b) to allegations of an incompetent (drunk/high/sleepy) juror does not violate the Sixth Amendment right to a competent jury, so the application of Rule 606(b) to allegations of a biased (racist) juror does not violate the Sixth Amendment right to an impartial jury.

Well, unfortunately, on Monday, the Tenth Circuit denied Benally's en banc request in United States v. Benally, 2009 WL 738393 (10th Cir. 2009), but there were some interesting and compelling dissenting opinions.  In his dissenting opinion, Judge Briscoe noted that Rule 606(b) only precludes post-trial juror testimony "[u]pon an inquiry into the validity of a verdict," not to prove that a juror lied during voir dire. According to Briscoe,  

If, as Mr. Benally asserts, one or more jurors failed to honestly respond to the district court's questions during voir dire, then Mr. Benally would have established the existence of a structural defect in his trial, i.e., the deprivation of his Sixth Amendment right to an impartial jury.  

I agree.  Indeed, this is one of the points that I make in my new article, Dismissed with Prejudice.  But, I am not alone.  Instead, as I note in my article, “[c]ourts have universally held that [Rule 606(b)]…do[es] not preclude evidence to show that a juror lied on voir dire." Well, at least courts had universally come to this conclusion before Benally. So, where did the Tenth Circuit go wrong? Well, as I note in my article and as Briscoe noted in his dissent, the Tenth Circuit relied upon the opinion in Williams v. Price, 343 F.3d 223 (3rd Cir. 2003), where the Third Circuit merely found (because it was dealing with a habeas petition), that there was no Supreme Court precedent clearly establishing that jurors could testify concerning juror deliberations to prove that a juror lied during voir dire. And the Third Circuit was correct.  There is no Supreme Court precedent on the issue (yet).  But before Benally, circuit courts universally had allowed such testimony, meaning that the Tenth Circuit created a circuit split based upon a flawed reading of Price. 

Judge Briscoe also claimed that even if Cano's affidavit were potentially precludable under Rule 606(b), it was admissible because juror bias/racism constitutes "extraneous prejudicial information," a proper predicate for jury impeachment under the Rule.  I wish that I could agree with Judge Briscoe on this point, but as I noted in my last post on Benally, "extraneous prejudicial information" covers external evidence (such as a newspaper article about a failed polygraph test finding its way to the jury), not information, however, biased, that comes from a juror himself.

I do, however, agree with the third part of Judge Briscoe's dissent, in which he found that the Tenth Circuit improperly conflated the Sixth Amendment right to a competent jury with the Sixth Amendment right to an impartial jury.  In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court found that the application of Rule 606(b) to allegations that jurors got drunk, got high, and slept through parts of trial did not violate the the Sixth Amendment right to a competent jury.  According to the Tenth Circuit, this meant that the application of Rule 606(b) to allegations that jurors used racial slurs during deliberatoons did not violate the Sixth Amendment right to an impartial jury.  As I do in my article, Judge Briscoe disagreed, finding that there is a fundamental difference between the two rights because "the Sixth Amendment right to an impartial jury is itself a 'structural feature' of the justice system, and..., as a consequence, a violation of this right is not susceptible to harmless error review."  

Judge Murphy also dissented, noting that there is a circuit split on the issue(s) raised by Benally, meaning that it was "undoubtedly worthy of en banc review."  The question then becomes whether Benally will try to get heard by the Supreme Court and whether the Supremes will grant cert. I certainly hope so, and maybe if they do, they will find, as I argue in my article, that the application of Rule 606(b) to allegations of juror racism violates the right to present a defense.

-CM

Cross The Pages Of The Magazine: Court Notes That Consumer Complaints Are Often Admissible Under The Residual Hearsay Exception

When litigants are unsuccessful in introducing statements under the traditional exceptions to the rule against hearsay, they typically attempt to rely upon Federal Rule of Evidence 807, the residual exception, as a last resort.  Usually, courts rebuff such attempts, but as the recent opinion of the United States District Court for the Western District of Pennsylvania in F.T.C. v. Magazine Solutions, 2009 WL 690613 (W.D. Pa. 2009), makes clear, courts generally have found that consumer complaints qualify for admission under Rule 807.

In Magazine Solutions, the Federal Trade Commission brought an action against Magazine Solutions, alleging that they

violat[ed] the FTC Act and the Telemarketing Sales Rule (TSR) by calling consumers and telling them they were eligible to receive "valuable coupons" for groceries and other items, when in fact they were luring them into signing up to purchase unwanted magazine subscriptions. The Commission’s complaint state[d] that the defendants, collectively known as Magazine Solutions, often did not tell consumers up-front that to get the coupons they had to buy the subscriptions, and sometimes claimed the magazines were free or that the consumers only had to pay shipping and handling. When consumers tried to cancel their orders, many found it was nearly impossible to do, and were stuck with subscriptions to magazines they never wanted in the first place.

The problem for the F.T.C. was that it had numerous consumer complaints and declarations concerning Magazine Solutions, but none of these documents were covered by any of the traditional exceptions to the rule against hearsay included in Federal Rules of Evidence 803 and 804. Nonetheless, the F.T.C. claimed that these documents were admissible under Federal Rule of Evidence 807, the residual exception to the rule against hearsay, which provides that    

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

The court agreed.  First, the court found that the complaints and declarations were trustworthy because the consumers were known and named, their allegations were based upon personal knowledge, the allegations corroborated each other, and the allegations "were made to governmental agencies and/or consumer agencies with the apparent expectation that action would follow based upon the representations."  Second, the court found that the complaints and declarations were evidence of a material fact because they

contain[d] evidence...of the Defendants' representations regarding the value of the coupons promised and the value actually received. The evidence will also be probative regarding representations about the cancellation policy, the consumers' obligation to pay for services and the Defendants' intentions to pursue legal action. Because the complaints also show the widespread nature of the Defendants' representations, they are material with respect to the issue of customer redress as well.

Third, the court found that the complaints and declarations were (more) probative (than any other evidence) because Magazine Solutions itself admitted that it "failed to retain all records of customer complaints" and "all letters they themselves sent to consumers." Fourth, the court found that "the general purpose of the Rules of Evidence and the interests of justice would best be served by the admission of the complaints because they would assist this Court in determining the truth."  Finally, the court found that "the Defendants were given fair and adequate notice of the FTC's intent to use this evidence." 

As noted in the introduction, this was not a landmark ruling.  Instead, in reaching the conclusion that these consumer complaints/declarations were admissible under Rule 807, the court noted that other courts, such as the Ninth Circuit, "have also found consumer complaints to have sufficient guarantees of trustworthiness under Rule 807 to permit admission."

-CM

Bringing Good Things To Light?: Action Against GE Healthcare Reveals That Illinois Still Uses The "Control Group" Test For Corporate Attorney-Client Privilege Claims

In Upjohn v. United States, 449 U.S. 383 (1981), the Supreme Court explicitly rejected the "control group" test for determining which communications between a lawyer and members of a corporation are protected from disclosure by the attorney-client privilege.  And while Upjohn was not binding upon the application of state rules of evidence/privilege, many states subsequently reached the same result.  But as the recent opinion of the United States District Court for the Northern District of Illinois in Resurrection Healthcare and Factory Mutual Insurance Company v. GE Healthcare, 2009 WL 691286 (N.D. Ill. 2009), makes clear, Illinois is not one of those states.

In GE Healthcare, Resurrection Healthcare (does anyone else find this name odd?) and Factory Mutual Insurance Company sued GE Healthcare (GEHC) in Illinois state court before GEHC removed the action to federal court based upon diversity jurisdiction.  In their complaint, the plaintiffs claimed that GEHC employees, who were contracted to operate a bio-medical department in a Resurrection-affiliated hospital, negligently allowed mercury to spill on the hospital's floor and improperly disposed of the mercury after the spill was discovered. Before trial, the plaintiffs sought production of interviews of GEHC employees who were present at the hospital at the time of the spill; a written statement by one of those employees; and documentation of a site visit by another GEHC employee.  

In addressing this issue, the Northern District of Illinois first noted that it had to apply Illinois privilege law pursuant to Federal Rule of Evidence 501 because the basis for federal court jurisdiction was diversity jurisdiction.  It then found that:

In the corporate context, Illinois applies the "control group" test to determine whether communications by corporate representatives are cloaked with the privilege....Under this test, a communication is not privileged unless it is made by a member of the control group, which includes top management as well as "an employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority."

As noted, if the basis for the federal court's subject matter jurisdiction were federal question jurisdiction, the court could not have applied this "control group" test and instead would have applied a case-by-case balancing approach similar to the "subject matter" test, under which:

the attorney-client privilege is applicable to an employee's communication if: (1) the communication was made for the purpose of securing legal advice; (2) the employee making the communication did so at the direction of his corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of the employee's corporate duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Whether you agree or disagree with the propriety of the "control group" approach, it certainly makes things simple(r).  All that the Northern District of Illinois had to do was determine whether the GEHC employees at issue were members of the "control group" and whether the communications at issue originated in a confidence that they would not be disclosed, were made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, and remained confidential.  Using this test, the court found that some of the aformentioned interviews/statements/dcouments were privileged while other were not.

-CM

The Things We Do For Love: Tenth Circuit Refuses To Craft "Homosexual Exception" To Bias Questioning

The recent opinion of the Tenth Circuit in United States v. Baldridge, 2009 WL 692107 (10th Cir. 2009), reveals that lawyers are given wide latitude to inquire into potential biases that witnesses harbor against or in favor of the parties in a lawsuit.  And according to the court in Baldridge, that latitude extends to questions regarding a homosexual relationship between witness and party.

In Baldridge, Randy Lee Baldridge, a former elected county commissioner of Rogers County Oklahoma, appealed from his conviction on eight counts of conspiracy, fraud and misapplication of funds by a local government official, mail fraud, money laundering, and corrupt persuasion of a person to obstruct a federal investigation.  Specifically, the prosecution alleged at trial that "Baldridge abused his position as commissioner by engaging in a scheme to file false claims with the County for payment."  

One of the witnesses whom Baldridge called during his defense case was his fried, Brian Slover. During its cross-examination of Slover, however, the prosecution sought to establish that Baldridge and Slover were more than friends and that they were in fact involved in a homosexual relationship.  On appeal, Baldridge claimed that this line of questioning constituted prosecutorial misconduct because it was "treacherously calculated," but the government responded that its "cross-examination of Slover were proper and sought only to establish Slover's 'obvious potential bias in favor of [Baldridge].'"  

The Tenth Circuit sided with the State.  According to the court,

It is permissible impeachment to expose a witnesses' bias....At common law, bias describes the relationship between a witness and a party which might cause the witness to slant his testimony for or against the party....Certainly, if Baldridge and Slover had been having an intimate relationship, Slover's testimony might well have been slanted in favor of Baldridge. And Slover could have been biased in favor of Baldridge even if their relationship was not sexual, but merely close. Baldridge claims this situation is exceptional because an insinuation of homosexuality in rural Oklahoma is incendiary, not likely to be forgotten or forgiven by the jurors. Even if true, it is not a reason to craft a 'homosexual exception' to a hallowed rule of evidence allowing wide latitude for the jury to assess possible witness bias. At most it would be a factor for the trial judge to consider upon a proper Rule 403  objection, absent here. Viewed in the context of the entire trial, we perceive no error in the prosecutor's questioning of Bentz and Slover.  

I agree with the court.  Sure, an insinuation of homosexuality is extremely prejudicial, especially in certain parts of the country (although I don't have any personal knowledge about rural Oklahoma).  But evidence of a romantic relationship between witness and party is extremely probative of a potential bias tainting the witness' testimony.  Because evidence can only be excluded under Federal Rule of Evidence 403 when its probative value is substantially outweighed by its prejudicial effect, it is easy to see why the Tenth Circuit ruled against Baldridge.

-CM

News To Me: Aggravated Robbery Appeal Reveals That Texas Does Not Allow For Jury Impeachment Based Upon Extraneous Prejudicial Information

The recent opinion of the Court of Appeals of Texas in Cox v. State, 2009 WL 692606 (Tex.App.-Tyler 2009), reveals that, unlike Federal Rule of Evidence 606(b), Texas Rule of Evidence 606(b) does not permit jurors to impeach their verdicts through allegations that extraneous prejudicial information tainted the deliberation process. And, as Cox makes clear, the consequence of this difference is that jurors cannot impeach their verdicts through allegations that their verdict was based upon a prejudicial newspaper story rather than the evidence presented at trial.

In Cox, Jeremy Shane Cox appealed from his conviction for the offense of aggravated robbery. According to Cox, he deserved a new trial because, inter alia, 

-a juror slept through deliberations;

-a juror read a newspaper article, read it a second time to other jurors, and then discussed it while in the jury room;

-jurors reached a decision "based on personal feelings;" and

-a juror "as[ked] to be told how to vote."  

Cox supported these allegations through the affidavits of two jurors.  Jury foreperson Kathy Shelton 

stated in her affidavit that some of the jurors based their verdict "on their personal feelings instead of the facts; particularly [a] juror who had been shot and her sister had been killed." She stated that "four jurors, including [Shelton,] held out all day for a not guilty verdict" but "felt pressured by the judge to come to a verdict and that is when we changed our vote." She stated that, during a break in deliberations, "Juror Atkinson was reading a newspaper article about the case out loud to the other jurors." Finally, she stated that one juror slept through deliberations and that another "asked to be told how to vote so she could get out of deliberations."  

In her affidavit, juror Nancy Bass stated:

Myself and three other jurors, including the jury foreman, Kathy Shelton, were voting not guilty. Juror Jay Brian Atkinson cam[e] to the jury room during the deliberations and stated he had read an article about the incident in the newspaper. He all but read the article in the deliberation room. He told the other jurors what the victim had said. I also felt pressure to vote guilty because the judge told us we weren't going home until we reached a verdict.... At polling of the jury I wanted to change my vote [but did not].  

Now, if Cox's appeal were being heard pursuant to Federal Rule of Evidence 606(b), the allegations in these affidavits regarding the sleeping juror, jurors using personal feelings, and a juror asking about how to vote all would have been inadmissible.  In relevant part that Rule states that 

Upon 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.

Because all of the above allegations concerned matters internal to the jury deliberation process, they would not have formed the proper predicate for jury impeachment.  Conversely, because the allegations concerning the newspaper article were allegations concerning "extraneous prejudicial information," they would have formed the proper predicate for jury impeachment.

The problem for Cox is that Texas Rule of Evidence 606(b) does not contain an exception for extraneous prejudicial information.  According to that Rule,

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve. 

Thus, Cox could not achieve any jury impeachment (improper outside influences would be people such as relatives of a party threatening jurors or bailiffs feeding incorrect information to jurors), and the Court of Appeals of Texas affirmed his conviction. Which version of Rule 606(b) do readers prefer?

-CM

Oh Microsoft, Microsoft, Moderation Please: Rhode Island Seemingly Applies Frye In Microsoft Patent Infringement Trial

Here's a quick recap of the recent opinion of the United States District Court for the District of Rhode Island in Uniloc USA, Inc. v. Microsoft, 2009 WL 691204 (D.R.I. 2009):  Expert damages testimony in patent infringement cases is unreliable, but it should be admissible because it is generally accepted.

Uniloc involves Uniloc Singapore Private Limited's claim that Microsoft's Product Activation technology ("MPA") in software products such as Windows and Office infringes Claims 12 and 19 of Uniloc's U.S. Patent 5,490,216 ('216 patent).  According to Uniloc, this infringement was willful; according to Microsoft, it has an invalidity defense, and the '216 patent is unenforceable based on inequitable conduct. But none of these arguments were the basis for the court's recent ruling.  Instead, the court was addressing Microsoft's motion to preclude Uniloc's damages expert from testifying at trial.  And the result is an opinion both colorful and troubling.

According to Microsoft, the court should have precluded Uniloc's damages expert, Joseph Gemini, from testifying for two reasons.  First,

his testimony is unreliable because his damage calculation is based on an unfounded and arbitrary valuation figure that assumes MPA's independent value is $10 per activation. Second, Microsoft takes issue with Mr. Gemini's reliance on the so-called "25% rule of thumb" which it describes as a "junk science" method for calculating royalty rates.

In addressing this argument, the District Court found that

the world of damage calculation in a patent case is constructed on a fictional foundation that resembles the make believe world of "Second Life." If a jury finds Microsoft has infringed Uniloc's patent, it will be called upon to determine what a reasonable royalty would be. It will be asked to do this by envisioning a fictional or "hypothetical" negotiation wherein these two parties-or rather their perfectly reasonable avatars-are transported back in time to negotiate a royalty. They do this with appropriate attention to the so-called Georgia-Pacific factors....Microsoft claims Mr. Gemini's methodology for concocting the reasonable royalty is just not "good science." But this is like saying Alice did not serve Earl Gray at her tea party. Maybe so, but in this fictional world it is close enough because the starting premise, as discussed below, is at least arguably grounded in the evidence and the rule of thumb calculation and the Georgia-Pacific factors are so widely accepted. If these premises are acceptable (which they seem to be) then the only issue is whether Mr. Gemini is qualified (which he is) and has he accurately performed his task (he has). 

In further explaining why Gemini's "rule of thumb" testimony would be admissible at trial, the District Court noted that

[a]lthough the concept of a "rule of thumb" is perplexing in an area of the law where reliability and precision are deemed paramount, the reliability inquiry is a "flexible one...." "The '25% Rule' has been accepted as a proper baseline from which to start [a royalty] analysis...."  There has been considerable criticism of the rule,...much of which is well reasoned. However, the rule's widespread and general acceptance in the field suggests that the reasonableness of Mr. Gemini's reliance on it in fashioning his opinion is a matter that more properly goes to weight as opposed to admissibility. 

Moreover, the court also noted that Microsoft argued that "the 25% rule is only designed to serve as a starting point for a damage calculation and that because Mr. Gemini does not deviate from the rule this approach is result oriented and unreliable."  The District Court similarly rejected this claim, finding that

[w]hile Mr. Gemini's apparent rote application of, the 25% rule is enough to raise an eyebrow, his expert report reveals that he considered many factors in forming his opinion. Again, Microsoft may rely on cross examination and other tools of the adversary process to address the weaknesses in this testimony.

My reaction to this opinion is that it feels to me like an opinion issued in 1992.  Of course, in 1992, federal courts were using Frye v. United States, 293 F. 1013 (D.C. 1923), to admit expert opinion testimony as long as it was based upon reasoning/methodology that had general acceptance in the relevant scientific community. The following year, the Supreme Court issued Daubert v. United States, 509 U.S. 579 (1993), in which it found that Frye no longer rules the federal court roost and that courts must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, and of whether that reasoning or methodology properly can be applied to the facts in issue."

The District Court clearly did not make that assessment and instead fell back on the old Frye crutch in finding Gemini's testimony admissible.

-CM

Like A Virgin (Islands' Opinion)?: Supreme Court of V.I. Finds 1953 Uniform Rules Of Evidence Apply In Criminal Trials

The 1953 Uniform Rules of Evidence were kind of like Betamax or HD DVD: they just never really caught on and were eventually supplanted by a better competitor. See Michael Teter, Acts of Emotion: Analyzing Congressional Involvement in the Federal Rules of Evidence, 58 Cath. U. L. Rev. 153, 158 (2008).  For the Uniform Rules of Evidence, the competitor was the Federal Rules of Evidence, and the Uniform Rules of Evidence raised he white flag in 1974 when they were amended to be "nearly identical to the then-proposed Federal Rules of Evidence." Deirdre M. Smith, An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in the Federal Courts, 58 DePaul L. Rev. (2008). The Uniform Rules of Evidence were amended again in 1999 (and again in 2005) but I'm not sure that many people noticed; for most intents an purposes, the Federal Rules of Evidence are the only game in town.

But according to the recent opinion of the Supreme Court of the Virgin Islands in Phillips v. People, it's the 1953 Uniform Rules of Evidence that reign supreme in the Virgin Islands' non-federal courts.  And based upon the way that those Rules treat hearsay, other courts might want to reconsider the way that they do business.

In Phillips, Sinclair Phillips appealed from his convictions for burglary in the second degree and assault in the third degree based upon his alleged attack on Paulious Stoute, a "deaf mute," in Stoute's home.  At Phillips' trial, some of the most damaging testimony rendered against him came from James Charles, a Virgin Islands' police officer, which, according to Phillips, consisted mostly of "inadmissible hearsay concerning the victim's purported [']statements['] identifying [Phillips] as the perpetrator." This testimony was especially important because "[o]nly in a few limited instances did Stoute's testimony," which was given through a sign language interpreter, "cover what he told the police when he described and identified Phillips."  

Now, I don't have the trial transcript before me, so I can't say how a court using the Federal Rules of Evidence would have treated Charles' testimony, but I would guess that some of it would have been deemed inadmissible hearsay under Federal Rule of Evidence 802 while other portions would have been admissible under Federal Rule of Evidence 801(d)(1)(C) , which indicates that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person.

On Phillips appeal, however, the Supreme Court of the Virgin Islands was able to find that all of Charles' testimony was admissible, and it did so by resolving an existing split among V.I. courts as to whether the Federal Rules of Evidence or the 1953 Uniform Rules of Evidence apply in criminal cases in the Virgin Islands' non-federal courts. According to the V.I. Supremes, the latter apply because virtually all of the 1953 Uniform Rules of Evidence were codified in 5 V.I.C. Sections 751-956.

The problem with this analysis is that the editorial commentary to these Sections referred to former Federal Rule of Criminal Procedure 54, a rule that 

“direct[ed] all Article III courts and congressionally-created courts in United States territories, including the District Court of the Virgin Islands,” to “use the Federal Rules of Criminal Procedure in their criminal proceedings...." Because Federal Rule of Criminal Procedure 26 "mandate[d] that courts using the Federal Rules of Criminal Procedure are obligated to use the Federal Rules of Evidence as well," the commentary to the Uniform Rules "conclude[d] that the Uniform Rules cannot apply in criminal matters in the Virgin Islands."  

In turn, the problem with this reasoning is that 

though Rule 54 "directly allude[d] to the District Court of the Virgin Islands, it d[id] not mention the [Superior] Court of the Virgin Islands or any other local court...."  Thus, while "the District Court of the Virgin Islands must rely upon the Federal Rules to resolve its evidentiary quandaries, no such compulsion prevents the [Superior] Court of the Virgin Islands from relying upon the evidentiary code that was adopted by the Legislature...." Furthermore, "[w]hen originally made, the editor’s comment that the Uniform Rules do not apply to criminal actions in the Virgin Islands was technically correct as, at that time, all criminal cases were tried in the District Court...." The District Court’s exclusive jurisdiction over criminal cases arising under either federal or local law lasted until 1984, when Congress, through an amendment to the Revised Organic Act of 1954..., bestowed concurrent jurisdiction to the Superior Court—then known as the Territorial Court—over criminal offenses arising out of violations of local law."

Thus, the V.I. Supremes found that non-federal V.I. courts are not bound by the Federal Rules of Evidence and that they should use the 1953 Uniform Rules of Evidence as codified in 5 V.I.C. Sections 751-956 (The District Court must use the Federal Rules of Evidence pursuant to Federal Rule of Evidence 1101(a)).

So, why is this so important?  Well, 

Title 5, section 932 of the Virgin Islands Code defines hearsay and exceptions, in part, as: 

Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except: 

 

(1) Previous statements of persons present and subject to cross-examination. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.  

In other words, as long as the declarant testifies at trial, there is no hearsay problem.  Obviously, this rule greatly reduces the number of hearsay problems, which in turn reduces headaches for lawyers and attorneys alike.  The question is whether it allows for the introduction of testimony that is too unreliable.  I'm not sure where I fall on the issue, but I think that it is one that merits further consideration.

As a final note, I want to point out that this hearsay difference is not the only difference between the Federal Rules of Evidence and the 1953 Uniform Rules of Evidence.  As noted, Stoute was a deaf mute requiring a sign language interpreter.  Well, under the Uniform Rules of Evidence-V.I. Code, the trial court did not need to treat that interpreter as an expert witness while Federal Rules of Evidence 603 states that

An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. 

(Hat tip to Anthony Ciolli for the link to the opinion)

-CM

           

Welcome To The Blogosphere: Legal Planet (The Environmental Law and Policy Blog)

I recently came across the excellent blog Legal Planet (The Environmental Law and Policy Blog), which launched in January.  The contributors to the blog are a collection of heavy hitters in the field of environmental law: Professors Eric Biber, Ann Carlson, Holly Doremus, Ethan Elkind, Dan Farber, Richard Frank, Sean Hecht, Cara Horowitz, Timothy Malloy, Cymie Payne, Steve Weissman, and Jonathan Zasloff. Some of the recent interesting posts on the blog have covered issues such as state insurance regulators taking steps toward addressing climate risk, mandatory renewable portfolio standards, and California's salmon crisis.  I strongly recommend the blog to readers of this blog.

-CM  

Curiosity Killed The Jury?: New York Times Story Addresses The "Google Mistrial"

On March 8th, I posted an entry about an appeal in which the Eleventh Circuit refused to allow jurors to impeach their verdicts through allegations that "jurors allegedly exchang[ed] e-mails both during trial and during deliberations."  At the time, I mused that "[t]his was undoubtedly the correct decision under [Federal Rule of Evidence 606(b)], but I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Well, yesterday, John Schwartz took on this issue, and the issue of jurors doing internet research, in his New York Times article, As Jurors Turn to Web, Mistrials Are Popping Up. 

The launching point for Schwartz's article was a "big federal drug trial in Florida" which recently ended in a mistrial based upon nine jurors doing research on the case on the internet." According to Schwartz, this type of mistrial

might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.  

And as readers of this blog know, this phenomenon is not isolated.  Indeed, in his article, Schwartz notes that

[l]ast week, a building products company asked an Arkansas court to overturn a $12.6 million judgment, claiming that a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded before the verdict that the judge declare a mistrial because a juror posted updates on the case on Twitter and Facebook . The juror had even told his readers that a "big announcement" was coming on Monday. But the judge decided to let the deliberations continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

While juror resort to outside sources has always been a problem that plagued trials, 

now, using their cellphones, [jurors] can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia  can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from Point A to Point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

These sources have led judges to "amend[] their habitual warning about seeking outside information during trials to include Internet searches."  They have also led attorneys to begin "to check the blogs and websites of prospective jurors."  

Of course, one might wonder whether such behavior is a bad thing, and I would agree with Olin Guy Wellborn III that it indeed is because it allows jurors to consider things that were not filtered through the rules of evidence, which were designed to "ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides."  Indeed, it seems to me that it has gotten to the point where some type of change has to be made to account for the rapid encroachment of technology into the jury trial.  The only question is: What type of change should it be?

-CM

You're On Notice: Eleventh Circuit Finds that Rule 404(b)'s Notice Requirement Doesn't Apply To Intrinsic Evidence

The recent opinion of the Eleventh Circuit in United States v. Watley, 2009 WL 635185 (11th Cir. 2009), reveals that the criminal pre-trial notice requirement of Federal Rule of Evidence 404(b) applies only if the evidence at issue is extrinsic to the charged offense.

In Watley, Anthony Watley appealed from his convictions for being a felon in possession of firearms, possessing cocaine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking offense. These convictions resulted from a drug bust at Watley's house on May 22, 2007, and the prosecution also presented evidence of prior drug sales at Watley's house on April 30, 2007 and May 18, 2007.

On Watley's appeal, the Eleventh Circuit rejected his argument that evidence regarding these other drug sales was inadmissible under Federal Rule of Evidence 404(b); instead, the court found that:

Since Watley was charged with possessing cocaine with intent to distribute, the government was entitled to establish, through circumstantial evidence, Watley's knowledge of the cocaine at the house and knowledge of, if not direct participation in, the drug distributions that occurred there.

The court also found that the evidence of the other drug sales was admissible to explain why a search warrant was obtained for Watley's house.

Watley also raised the argument that the evidence of these other drug sales was inadmissible because the prosecution failed to provide him with pre-trial notice of its intent to introduce this evidence in accordance with the last clause of Federal Rule of Evidence 404(b), which states that:

the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The Eleventh Circuit, however, rejected this argument, finding that the evidence at issue was intrinsic, rather than extrinsic, to the charged offense. In other words the evidence of the other contemporaneous drug sales was "inextricably intertwined" with the charged offense, both in terms of the behavior of Watley in committing the subject crime and the police in investigating that crime. And because it was intrinsic evidence, Watley should have known that the prosecution would admit it and was not entitled to the pre-trial notice otherwise required by Federal Rule of Evidence 404(b)

-CM

Call For Papers & Panels: Outsiders Inside: Critical Outsider Theory and Praxis in the Policymaking of the New American Regime

LatCrit XIV: Fourteenth Annual LatCrit Conference
http://www.latcrit.org/

CALL FOR PAPERS & PANELS

OUTSIDERS INSIDE: CRITICAL OUTSIDER THEORY AND PRAXIS
IN THE POLICYMAKING OF THE NEW AMERICAN REGIME

American University - Washington College of Law
Washington, D.C.
October 1 - 4, 2009


Please join us at LatCrit XIV, the Fourteenth Annual LatCrit (Latina and Latino
Critical Legal Theory, Inc.) Conference, which will take place in Washington, D.C.,
from Thursday, October 1 through Sunday, October 4, 2009.

LatCrit/SALT Junior Faculty Development Workshop

The Seventh Annual Junior Faculty Development Workshop, sponsored jointly with the Society of American Law Teachers (SALT), will begin at 9:00 am, Thursday, October 1st and continue through Friday morning.

LATCRIT XIV THEME

OUTSIDERS INSIDE: CRITICAL OUTSIDER THEORY AND PRAXIS IN THE POLICYMAKING OF THE NEW AMERICAN REGIME

In October 2009, LatCrit will meet inside the Beltway for the first time in its history amidst a tectonic shift in American government. With the January inauguration of President Barack H. Obama, the nation’s first “outsider” president, we also saw the ascendance of a new progressive governance philosophy in Washington. As a biracial former law professor with working class and immigrant roots and an international and multicultural upbringing, Mr. Obama ran a progressive campaign that echoed many core LatCritical values, including internationalism and global-mindedness, the valorization of human rights and multidimensional diversity, the centrality of antidiscrimination work, a commitment to rigorous interrogation of longstanding dominant assumptions and norms, and a preference for discourse and dialogue over militarism. Notably, President Obama’s Yes We Can! campaign slogan has its roots in the ¡Si Se Puede! rallying cry coined by Dolores Huerta of the United Farm Workers movement and invoked in more recent progressive and mostly Latino/a political actions.

The new Presidential administration and enlarged bicameral Democratic majority in Congress account only for part of the historic paradigmatic transition in American national government. The ongoing deterioration of the American and world economies also has catalyzed an aggressive reassessment by moderate and even some conservative thinkers of the wisdom of the Reagan Revolution’s uber alles dependency on the private marketplace for the realization of the public good – an antiregulatory disposition that dominated federal government through the last seven presidential administrations. In the United States, the failure of the government’s dominant antiregulatory disposition to prevent the ensuing economic meltdown has catalyzed a new, aggressive Federal response in the form of much more statist economic interventions, including the de facto nationalization of key economic components. To add irony, it was the administration of President George W. Bush – the loudest in exalting the power of unbridled private marketplaces to regulate themselves – that laid the foundation for the national takeover of large sectors of the financial services and banking industries.

These quantum changes in the leadership and driving philosophies of American government present unique and in some cases unprecedented opportunities for scholars engaged in critical outsider scholarship to influence and inform national policy and legislation. The new executive and legislative branch incumbents have telegraphed early receptivity to the instantiation of LatCritical and other progressive theories and principles in the tangible products of Federal government (i.e., legislation, regulation, presidential directives, and, of course, caselaw). As President Obama’s aspirational campaign continues to transition into the nouveau regime at the helm of the most powerful government on Earth, millions of Americans expect the vague Yes We Can promise to become the Yes We Are reality.

But with these openings come potential pitfalls. Although the ascendance of a putatively progressive president and likeminded Congressional majority indeed may open up new opportunities to bridge the theory/praxis chasm, it also may pose serious challenges to the independence and even legitimacy of progressive critical theory movements. Should the cooption or even distortion of conservative theory by militaristic, extremist partisan politicos serve as a cautionary tale in the formation of new relationships between the progressive government and outsider critical theorists? More specifically, what if the first year in office of the Yes We Can presidential candidate unfolds into more of a No We Won’t disappointment? What if the exigencies of governing to and from the middle – which many pundits insist is the sine qua non for reelection viability – result in the sacrificing of Obama’s progressive promise? What roles should outsider critical legal scholars and their scholarship assume then? More generally, what should the incarnation of progressive theory in the new American regime look like? And what prevents that theory from being co-opted and corrupted by the corroding influences of insider power?

The LatCrit XIV Host Committee invites the submission of proposals for panels and papers related to this open-textured theme and encompassing the fullest array of theoretical and doctrinal topics and approaches. Because we will be in Washington, DC, we encourage the submission of paper and panel proposals propounding prescriptive critiques of discrete areas of law, policy and regulation of specific relevance to outsider communities, including (but by no means limited to) economic justice, international and comparative law, criminal law and the death penalty, civil rights and constitutional law (including gender and LGBT equality, reproductive and disability rights), feminist legal theory, immigration, political and electoral (dis)enfranchisement, communications policy and intellectual property, healthcare, education, employment, tax policy, and the environment. We also, of course, welcome proposals for more theoretical panels and papers, particularly (but not exclusively) in areas linked to the challenges posed by progressive governance and the ascendance of outsiders to positions of ultimate authority.

Please submit your panel and paper proposals through the online process at the LatCrit website (http://www.law.du.edu/latcrit/index.htm) no later than MONDAY, APRIL 27, 2009. Please note that although paper proposals for work-in-progress sessions may be submitted now, we will continue to accept those proposals through mid-July (please refer to LatCrit website for forthcoming additional details).

Standing LatCrit Themes

LatCrit conferences seek to feature and balance four basic perspectives in organizing each annual conference’s substantive program. These four perspectives are listed as themes below. They have, thus far, served as useful lenses of LatCritical inquiry, enabling LatCrit scholars to develop an impressive body of work that increasingly links issues of identity to the substantive analysis of law, policy and process. This effort to link identity issues to substantive analyses has been particularly fruitful in revealing the way race and ethnicity are implicated precisely in those areas of law and policy that are ordinarily thought not to be about race and ethnicity: for example, in the operations and assumptions of international law and legal process, foreign affairs, liberal democracy, religion and sexuality, to name just a few areas of recent LatCrit attention.

To build on these accomplishments, everyone is encouraged to develop their proposals with a view to: (1) expanding our understanding of the impact of race and ethnicity in substantive areas of law and policy ordinarily thought to be about "something other than race" (e.g. issues of sovereignty, labor rights, globalization, intellectual property, antitrust law); and (2) deepening our analysis of the various ways in which identity issues intersect, conflate and conflict in our self-understandings and coalitional efforts. The following four themes are offered, therefore, as possible points of reference for thinking in new ways about familiar issues (like affirmative action and bilingual education), as well as for encouraging critical forays into new substantive areas (like communications or antitrust laws):

1) Papers or panels that focus on the multidimensionality of Latina/o identity and its relationship to current legal, political and cultural regimes or practices. The ideal is to explicate aspects of the Latina/o experience in legal discourse, both domestically and internationally. Nonetheless, you are free to address identity issues that do not specifically touch upon Latina/o identity or the law.
2) Papers or panels especially salient to this region (the East Coast). Regional emphasis ensures that the Conference's geographic rotation will illuminate local issues, helping us understand how local particularities produce (inter)national patterns of privilege and subordination.
3) Papers or panels that elucidate cross-group histories or experiences with law and power, such as those based on the intersections of class, gender, race, sexuality and religion. In this way, each Conference aims to both elucidate intra-Latina/o diversities and contextualize Latina/o experience within inter-group frameworks and Euro-Heteropatriarchy. Accordingly, we constantly ask how we can create progressive movements, communities and coalitions that meaningfully recognize difference.
4) Papers or panels that connect or contrast LatCrit theory to other genres of scholarship, both within and beyond law and legal theory, including but not limited to the various strands of critical outsider jurisprudence (critical race theory, feminist legal theory, queer legal theory) that critique class, gender, race, sexuality and other categories of social-legal identities and relations.

The Sponsoring Institution – American University Washington College of Law

Founded in 1898, the American University Washington College of Law is the first law school in the world founded by women, Ellen Spencer Mussey and Emma Gillett, who did so in part to combat the de facto exclusion of women from legal education and practice. WCL also was the first law school to have a woman dean and the first to graduate an all female law school class. The law school later expanded its mission to provide more generally opportunities for those historically outside the mainstream of the legal profession.

Today WCL is one of the most diverse law schools in the country, with 1,216 full-time JD students (40% identifying as minorities and 55% women), 160 students in two LLM degree programs and 25 SJD candidates. WCL’s student body includes native speakers of 92 languages and dialects, with almost all nations of the world represented. Its main building at 4801 Massachusetts Avenue, NW, occupies nearly 180,000 square feet over six stories, including the 54,000-square foot Pence Law Library.

WCL’s faculty consists of 61 tenured and tenure-track and over 100 active visiting and adjunct professors engaged in teaching, scholarship and service benefiting a myriad of professional and community institutions and social justice causes. Dr. Claudio Grossman, WCL dean and Raymond I. Geraldson Scholar for International and Humanitarian Law, is the longest serving Latino law school dean in the nation and an active practitioner of international and human rights law, currently serving as the unanimously elected chair of the United Nations Committee against Torture (UNCAT).

The Conference Sites

The LatCrit/SALT Junior Faculty Development Workshop (On Thursday, October 1) and the first full day of the LatCrit Conference (Friday, October 2) will take place in the Conference Center at the Hyatt Regency Bethesda Hotel in Bethesda, Maryland, which also will serve as the primary lodging site for conference attendees. A very accessible and comfortable hotel, the 390-room Hyatt Regency Bethesda offers two full-service restaurants, fully equipped fitness center, in-room broadband Internet access, and spacious conference facilities. The hotel is located at the heart of Downtown Bethesda, a diverse and lively urban center two miles northwest of the Washington, DC, border and three miles from American University. Over 200 restaurants, three live theaters, two cinemas, and several bookstores are within a short walk of the hotel, which sits directly above the Bethesda station on the Metro Red Line, offering rapid, low-cost and high-frequency rail service to Dupont Circle (15 minutes); the National Mall, White House, and Capitol Hill (20 minutes); and Reagan National Airport (30 minutes).

The LatCrit XIV planning committee selected the Hyatt Regency Bethesda in June 2008 after a lengthy and exacting search, and was able to lock in a significantly discounted guestroom rate for LatCrit attendees, comparable to previous LatCrit conference rates, in what is one of the most expensive hotel markets in the nation. Hotel reservation information will be made available, together with conference registration information, in early summer.

Most of the conference events on Saturday, October 3, including several rounds of panels, all work-in-progress workshops, and a community lunch, will take place at the American University Washington College of Law. Free shuttle bus transportation will be available between the hotel and the law school.

There's No Record Of It: Eighth Circuit Seemingly Finds No Criminal Case Exception To Rule 803(10)

Back in January, I posted an entry that raised a hypothetical question about the interplay between Federal Rule of Evidence 803(8)(B) and Federal Rule of Evidence 803(10). Well, in its recent opinion in United States v. Harris, 2009 WL 614771 (8th Cir. 2009), the Eighth Circuit addressed that issue. And I think that it reached the wrong conclusion.

In Harris, Antonio Harris appealed from his conviction for possessing over fifty grams of cocaine base (crack) with intent to distribute it. One of the grounds for his appeal was that the district court

erred by allowing Julie Hancock, his probation officer at the time of trial, to testify to the contents of his probation file. During the trial, Mr. Harris, in an effort to establish that Detective Liston had planted the drugs seized in his apartment, testified that the detective had harassed him on three separate occasions and that he (Mr. Harris) notified Kelly Wilkins, who was his probation officer at the time, each time he had such an encounter as he was required to do. Ms. Hancock testified that Mr. Harris's probation file, which Ms. Wilkins maintained during the time period in question, did not contain any notations indicating that Mr. Harris had made any calls to Ms. Wilkins or notified her of any supposed harassment.

Harris argued that Hancock's testimony was inadmissible under Federal Rule of Evidence 803(8)(B), which provides an exception to the rule against hearsay for:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth... matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.

According to Harris, because Rule 803(8)(B) specifically retains the hearsay objection "in criminal cases" for "matters observed by police officers and other law enforcement personnel," the district court should have deemed Hancock's testimony inadmissible. The Eighth Circuit disagreed, concluding that:

803(8)(B) "does not bar the admission of all law enforcement agency records...." While it does prohibit the admission of records that contain opinions or conclusions resulting from criminal investigations, it does not bar the admission of records concerning routine and unambiguous factual matters....Ms. Hancock's testimony was offered for the purpose of ascertaining what Mr. Harris told Ms. Wilkins, something that involves a routine and unambiguous factual notation and not an opinion, a finding of fact, or a conclusion....Thus, even if Rule 803(8)(B) were applicable here, it would not bar Ms. Hancock's testimony.

But the Eighth Circuit noted that because Hancock was establishing the absence of a record of Harris' alleged calls, the Rule that applied was Federal Rule of Evidence 803(10), which states that:

To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

According to the court,

it is Fed.R.Evid. 803(10) that is relevant here because Ms. Hancock's testimony was not offered to show what was in Mr. Harris's file; it was offered to show what was not in it. Rule 803(10) allows for admission of testimony that "a diligent search failed to disclose [a] record" to prove the "nonexistence of a matter" where a record of such a matter would have been "regularly made and preserved by a public office or agency." Ms. Hancock testified, in part, that it was normal policy for probation officers to make an entry in a probationer's file for each contact with the probationer, and there were no notations in Mr. Harris's file indicating that Mr. Harris had contacted Ms. Wilkins. Ms. Hancock's testimony was therefore admissible to prove that Mr. Harris did not tell Ms. Williams about any alleged police harassment.

Now, it seems to me that this conclusion can be read in two ways. The first is that (a) Rule 803(8)(B) only covers reports/records that contain opinions or conclusions resulting from criminal investigations, so (b) Rule 803(10) only covers the absence of entries in reports/records that contain opinions or conclusions resulting from criminal investigations. If that's the case, I have no objection to the opinion.

But it seems to me that the Eighth Circuit reached the broader conclusion that there is no criminal case exception to Rule 803(10). And certainly, there is nothing in the language of Rule 803(10) that indicates that there is such an exception. Nonetheless, I see no good reason why there would be a criminal case exception to the public record/report Rule while there wouldn't be such an exception for the Rule covering the absence of entries in public records/reports. Indeed, is there really even any difference between the two Rules?

-CM

What, A Fraud?: Southern District Of Texas Refuses To Pierce Attorney-Client Privilege Based Upon Strange Fraud Allegation

The recent opinion of the United States District Court for the Southern District of Texas in Doty v. Sun Life Assur. Co. of Canada, 2009 WL 614907 (S.D. Tex. 2009), addressed a strange request to pierce the attorney-client privilege (based upon the crime-fraud exception) that the court properly rejected.

In Doty, after

Kathleen Doty, an ex-employee of Clear Creek Independent School District (CCISD), was denied long-term disability payments under the Plan maintained by CCISD, she filed suit against Defendant, Sun Life Assurance Company of Canada (Sun Life) by invoking federal jurisdiction under the Employee Retirement Income Security Act (ERISA). Unfortunately, for Doty, CCISD's long-term disability plan is a governmental plan exempted from ERISA coverage. Sun Life did not challenge the Court's jurisdiction, but moved for summary judgment on other grounds. After summary judgment was granted in favor of Sun Life, Doty's counsel realized his mistake and filed a Motion to Dismiss for lack of subject matter jurisdiction. The District Court granted Doty's Motion.

Doty thereafter, inter alia, filed a subsequent action and against Sun Life and a motion

seeking an in camera review of "all letters, memoranda or other documents discussing whether the claim of Kathleen Doty was covered by ERISA" or whether Clear Creek Independent School District was a governmental entity under 2[9] U.S.C. § 1003(b)." According to Doty, she “believes that the letters of Sun Life and their (sic) attorneys will show that they knew that ERISA did not apply to Plaintiff's claims but they were representing to the Court and to Plaintiff that ERISA did apply. This is fraud,” she concludes. Consequently, Doty wants the Court, under the guise of the Crime/Fraud Exception of Rule 503(d)(1) of the Texas Rules of Evidence, to examine and, hopefully, disclose the documents otherwise covered by the attorney-client or work-product privileges.

Nonetheless, while finding Doty's motion to be "tempting," the ultimately rejected it because

[e]ven if the Court were to assume fraud,...the disclosure of the suspected supportive documents are of no use to Doty in pursuit of her claim for long-term disability benefits. Sun Life's attorneys cannot be sued by Doty for fraud. Under Texas law, attorneys cannot be held liable to the opposing party for wrongful litigation conduct...; if any attorney's conduct violates his professional responsibility, the remedy is public, not private....Nor can Sun Life be sued for fraud, because, generally, claims of fraud cannot arise from legal opinions....While there are three recognized exceptions to the latter Rule, none apply here. First, Sun Life had no superior knowledge of the applicable law during the initial lawsuit; both Parties were represented by experienced counsel....Second, there was no fiduciary duty between Sun Life and Doty, individually....Third, the "misrepresentation" of the jurisdictional law did not concern a present factual state of affairs; Doty knew she had been an employee of CCISD and her counsel was free to research the apparent jurisdictional concession of Sun Life.

All that's fine and dandy, but I think that I have a simpler reason why the court should have rejected Doty's motion. And that reason is that I see no possible reason why Sun Life would have wanted to commit a fraud upon the court by moving for summary judgment when it was at least somewhat apparent that there was no subject matter jurisdiction over Doty's claim. It is well established under Federal Rule of Civil Procedure 12(h)(3) that the defense of lack of subject matter jurisdiction can never be waived, even after a court has entered a verdict, order, opinion, etc. Indeed, this is why Doty's counsel was able to successfully file a motion to dismiss for lack of subject matter jurisdiction even after the court granted Sun Life's summary judgment. Based upon these facts, I don't see how Sun Life's behavior could be construed as fraudulent, unless the company was acting at the level of Brad Pitt in Burn After Reading.

-CM

Mississippi Mistake: Court Of Appeals Of Mississippi Misapplies Felony Conviction Impeachment Rule In Drug Appeal

The recent opinion of the Court of Appeals of Mississippi in Young v. State, 2009 WL 596660 (Miss.App. 2009), is the latest example of a court incorrectly applying the felony conviction impeachment rule.

In Young, Elliot Young appealed from his conviction on two counts of unlawful sale of cocaine to an undercover informant. That conviction came after the jury rejected Young's entrapment defense, which his attorney first raised in his opening statement when he made the remark that "these charges are preposterous, and it's a set-up situation and [Young] certainly did not sell cocaine to the confidential informant."

Before Young testified, he sought to preclude the prosecution from impeaching him through, inter alia, evidence that he had a prior felony conviction for possession of cocaine seven years before trial. The trial court rejected this argument, concluding that the conviction was admissible under Mississippi Rule of Evidence 609(a)(1), which states in relevant part that:

For the purpose of attacking the credibility of a witness,...evidence that...a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party

As I note in my article, Impeachable Offenses, courts generally consider five factors in making this determination:

(1) The impeachment value of the prior crime;

(2) The point in time of the conviction and the witness' subsequent history;

(3) The similarity between the past crime and the charged crime;

(4) The importance of the defendant's testimony; and

(5) The centrality of the credibility issue.

The trial court applied these factors and found that:

the probative value of admitting the evidence outweighs any prejudicial effect. The crime has impeachment value, given the posture of the case, and given the remarks of counsel for Defense in opening statement. It was within the last I guess seven years, around seven years ago, so the timeliness of it weighs in favor of the admissibility. There's a similarity between that and the act charged here which, as far as prejudicial effect, weighs in the Defendant's favor-the third factor in Peterson, but the importance of the Defendant's testimony and the centrality of the credibility issue I think very clearly tipped the scales in favor of admissibility, and it has great-it has probative value, and the prejudicial effort would be minimal, if any.

The Court of Appeals of Mississippi gave this decision the rubber stamp of approval, but it should not have. First, drug possession convictions are thought to have low impeachment value because they are "thought to have little necessary bearing on veracity." (and I don't see how the remarks in the opening statement change anything, given that the prior conviction was not for selling drugs). Second, a gap of seven years between prior conviction and present trial generally cuts against admissibility. See, e.g., People v. Lester, 432 N.W.2d 433, 435 (Mich.App. 1988). Third, because both the prior conviction and Young's present trial involved drug offenses, the prior conviction was extremely prejudicial. Fourth, the fact that Young's testimony was very important means that the approval of his prior conviction for impeachment purposes was prejudicial because it could have led Young to refrain from testifying. Only the court's analysis under factor five was correct. And clearly, when balancing these factors, the courts should have found that the prior conviction's probative value did not outweigh its prejudicial effect.

-CM