EvidenceProf Blog

Everything's Bigger In Texas?: Opinion Reveals Four Key Differences Between Federal And Texas Statement Against Interest Exceptions

The recent opinion of the Court of Appeals of Texas in Chaney v. State, 2009 WL 1086952 (Tex.App.-Houston [1 Dist.] 2009), reveals that Texas' statement against interest exception to the rule against hearsay is different from its federal counterpart in four material regards. 

In Chaney, Jermaine Chaney appealed from his conviction for murder. The prosecution procured Chaney's conviction in large part through the testimony of Antoinette Miller, who testified at trial that the victim had stolen cocaine from her husband and that he had sent Chaney to kill the victim. After Chaney was convicted, he appealed, claiming, inter alia, that Miller's testimony was improperly admitted.

The Court of Appeals of Texas thus had to address whether Miller's testimony was admissible under Texas Rule of Evidence 803(24), the statement against interest exception to the rule against hearsay, which provides that:

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Conversely, Federal Rule of Evidence 804(b)(3), the federal statement against interest exception to the rule against hearsay, provides that, when a declarant is "unavailable" as defined in Federal Rule of Evidence 804(a):

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.  

There are thus three clear material differences between the two hearsay exceptions. First, the federal exception requires that the declarant be unavailable while the Texas exception does not. Second, the federal exception only covers statements (a) contrary to the declarant's pecuniary or proprietary interest, (b) tending to subject the declarant to civil or criminal liability, or (c) that would render invalid a claim by the declarant against another. The Texas exception covers these statements as well as statements that would "make the declarant an object of hatred, ridicule, or disgrace." Third, the federal exception only requires "corroborating circumstances" when a statement tending to expose the declarant to criminal liability is offered to exculpate a criminal defendant. The Texas exception requires "corroborating circumstances whenever a statement tending to expose the declarant to criminal liability is offered at a criminal trial.

In Chaney, however, two of these differences might have been relevant. First, the opinion makes no mention of the husband being "unavailable," which would have rendered the federal exception, but not the Texas exception, inapplicable. Second, the husband's statement tended to expose him to criminal liability but was not offered to exculpate Chaney. Thus, "corroborating circumstances" would not have been required under the federal exception, but they were required (and found) under the Texas exception.

So, the Court of Appeals of Texas found that Miller's testimony was properly received, and a court using the Federal Rule of Evidence 804(b)(3)..., well it would have reached a different conclusion, which brings me to the fourth key difference between the two rules. You see, in Williamson v. United States, 512 U.S. 594 (1994), the Supreme Court found that Federal Rule of Evidence 804(b)(3) does not allow for the admission of portions of statements against interest by a declarant which also implicate the defendant.

In Bingham v. State, 909 S.W.2d 903 (Tex.Crim.App. 1994) (which was subsequently withdrawn), a concurring judge noted Williamson's holding and noted that Texas precedent did allow for the admission of portions of statements against interest by a declarant which also implicate the defendant. But while that judge called for overruling of the inconsistent Texas precedent, as far as I can tell, this Texas precedent has not been overruled, which is why the court found that Miller's testimony was properly received.

-CM      

 

It's Settled: Sixth Circuit Finds Rule 408 Doesn't Bar Settlement Negotiation Evidence From Being Used To Prove Minimum Contacts

In order for a forum state (and thus its federal courts) to have personal jurisdiction over a nonresident defendant even though the defendant was not personally served within the forum state, the defendant must, inter alia, have minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Meanwhile, Federal Rule of Evidence 408 states:

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution

In SunCoke Energy, Inc. v. MAN Ferrostaal Aktiengesellschaft, 2009 WL 1034990 (6th Cir. 2009), the Sixth Circuit had to address the question of whether evidence of settlement negotiations is admissible to establish the aforementioned minimum contacts. The Sixth Circuit found that it is, and I agree.

In SunCoke Energy, SunCoke brought an action for injunctive relief in federal district court in Tennessee, seeking the return of confidential trade information generated and provided by it to MAN Ferrostaal, a German engineering and construction company. That court, however, found that it lacked personal jurisdiction over MAN Ferrostaal after precluding SunCoke from presenting evidence of settlement negotiations between MAN Ferrostaal and it in Knoxville, Tennessee before the action was brought to establish that MAN Ferrostaal had the requisite minimum contacts with Tennessee.

In so doing, the district court cited to Nationwide Mutual Insurance Co. v. Tryg Intern. Ins. Co., Ltd., 91 F.3d 790 (6th Cir. 1996), where the Sixth Circuit had found in dicta that

attributing significance (for the purposes of determining whether personal jurisdiction exists) to a single entry into the state in order to negotiate a resolution of a prior dispute would create a disincentive for foreign corporations to pursue a resolution in what may be the most efficient manner possible, namely, travelling to an adversary's headquarters and negotiating there.

Now, frankly, in reading this passage, I don't get the sense that the Sixth Circuit was applying Federal Rule of Evidence 408 to preclude evidence of settlement negotiations from the minimum contacts analysis, but the Sixth Circuit read it that way after SunCoke appealed and found that there is no

rational basis for the dicta in the Nationwide Mutual Insurance case that in effect converts Federal Rule of Evidence 408 (“conduct or statements made in compromise negotiations” may not be used “to prove liability for, invalidity of, or amount of a claim”) into a rule of personal jurisdiction under the Due Process clause. Why should these contacts be discounted for the entirely separate question of constitutional contacts? We should not constitutionalize this rule of evidence.

One dissenting (in part) judge disagreed, concluding that "[u]nder Nationwide Mutual Insurance Co....,the parties' settlement negotiations cannot be used as a contact to establish personal jurisdiction on the 2001 contract."

Now, unfortunately, nether side explained itself especially well, but it seems clear to me that the the dissenting judge was incorrect. Federal Rule of Evidence 408 makes clear that evidence of settlement negotiations, etc. is inadmissible only "when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction." Using evidence of settlement negotiations to prove minimum contacts/personal jurisdiction is neither using that evidence to prove any of these impermissible purposes nor even using that evidence to prove anything related to the merits of the case. 

-CM      

The Shield And The Sword: Supreme Court Of New Hampshire Incorrectly Finds No Waiver Of Attorney-Client Privilege In Implied Covenant Appeal

It is well established that evidentiary privileges cannot be used as both a shield and a sword. For example, a criminal defendant cannot seek to selectively or partially disclose exculpatory statements that he made to his attorney in confidence (sword) while still invoking the attorney-client privilege to preclude the prosecution from discovering incriminatory statements that he made to the same attorney in confidence (shield). And yet, in its recent opinion in Livingston v. 18 Mile Point Drive, Ltd., 2009 WL 1098455 (N.H. 2009), this is excatly what the Supreme Court of New Hampshire allowed the plaintiff to do.

Now, unfortunately, the opinion in Livingston does not provide us with many facts, but here are the basics. Anthony L. Livingston exercised an option to purchase a 1.5 acre lot from 19 Mile Point Drive, Ltd. but he did not technically comply with the option agreement, which "specified that to exercise the option, the plaintiff was required to give written notice to the defendants by certified mail, return receipt requested, and that the option would become effective upon receipt of this notice." Livingston attempted to explain why he did not technically comply with the option agreement by "rel[ying] upon [his attorney's] testimony concerning his preparation for the 2002 closing, the closing itself and his actions on the plaintiff's behalf." The trial court, however, precluded the defendant from discovering other communications between Livingston and his attorney. Thereafter, the trial court found that, notwithstanding Livingston's failure to comply with the terms of the option agreement, the defendant violated the implied covenant of good faith and fair dealing (by failing to point out Livingston's non-compliance to him) and thus awared specific performance to Livingston.

The defendant subsequently appealed, claiming, inter alia, that the trial court improperly denied its discovery request. The Supreme Court of New Hampshire disagreed, finding that the communications that the defendant sought were protected by New Hampshire Rule of Evidence 502, the lawyer-cient privilege. Moreover, the court found that the exception contained in New Hampshire Rule of Evidence 502(d)(3) for "communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer" did not apply because Livingston had not brought an action against his attorney. The court also found that Livingston had not placed his communications "at issue" in the sense that they had become "actually required for "resolution of [an] issue."   

The court, however, did not address the shield and the sword. But the opnion of the First Circuit in United States v. Desir, 273 F.3d 39 (1st Cir. 2001), provides a nice explanation of how a party impliedly waives the attorney-client privilege by trying to use it as a shield and a sword:

The district court's finding that the attorney-client privilege  did not apply was based upon a theory of implied waiver. See 1 McCormick on Evidence § 93 (John W. Strong, ed., 5th ed.1999) (noting that client's conduct, such as partial disclosure , may constitute waiver where it would be “unfair for the client to invoke the privilege thereafter”); see also 3 Weinstein's Federal Evidence § 503.41 (Joseph M. McLaughlin, ed., 2d ed.1997) (waiver by implication may occur whenever party takes a position that makes it unfair to protect attorney-client communications, such as when a client testifies about portions of such communications or client relies on attorney's advice as element of claim or defense); United States v. Workman, 138 F.3d 1261, 1263-64 (8th Cir.1998) (implied waiver is to prevent defendant from “selectively assert[ing] the privilege to block the introduction of information harmful to his case after introducing other aspects” of attorney-client communications that are beneficial; "attorney client privilege cannot be used as both a shield and a sword”); United States v. Rakes, 136 F.3d 1, 5 (1st Cir.1998) (waiver “is directed against selective disclosures by reserving protection for only those communications that the privilege holder himself is prepared to keep confidential”).

This is clearly what Livingston did, and the Supreme Court of New Hampshire thus should have allowed the defendant to discover other communications betwee Livingston and his attorney.

-CM

I Put A Spell On You: Supreme Court Of Illinois Reveals That The State Per Se Precludes Hypontically Refreshed Testimony By Any Witness Besides The Criminal Defendant

In Rock v. Arkansas, 483 U.S. 44 (1987), 

Vicki Rock was charged with manslaughter in connection with the shooting death of her husband.  When Vicki could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis to refresh her memory. Vicki was thereafter hypnotized by a neuropsychologist and subsequently "recalled" that she had a gun in her hand that accidentally discharged when her husband grabbed her arm during a struggle. At trial, however, based upon the prosecution's motion, the court only allowed Vicki to testify concerning what she remembered before she was hypnotized because it "decided to follow the approach of States that ha[d] held hypnotically refreshed testimony of witnesses inadmissible per se."   

The Supreme Court reversed, finding that the application of a per se rule precluding the admission of hypnotically refreshed testimony by a criminal defendant violates the right to present a defense. The Court's opinion, however, did not address the issue of whether courts can apply per se rules precluding the admission of hypnotically refreshed testimony by anyone besides criminal defendants, and the recent opinion of the Supreme Court of Illinois in People v. Sutton, 2009 (Ill. 2009), reveals that Illinois has such a per se rule.

In Sutton, Darryl Sutton was convicted of seven counts of murder for the sexual assault and fatal shooting of Monica Rinaldi and was sentenced to four 100-year extended-term prison sentences and three natural life sentences. The prosecution's sole eyewitness to the crime was David Janik, and his testimony/identification came only after his memory was hypnotically refreshed by Dr. Steven Ries. After he was convicted, Sutton appealed, claiming that Janik's testimony was improperly admitted, and his appeal eventually reached the Supreme Court of Illinois. That court agreed with Sutton, noting that it had previously adopted a per se rule precluding the admission of hypnotically refreshed testimony by any witness besides the criminal defendant in People v. Zayas, 456 N.E.2d 513, 519 (Ill. 1989). Specifically, after laying out this rule, the court in Zayas found that 

The ruling in this case is also consistent with the recent Supreme Court ruling in  Rock v. Arkansas....There, the Supreme Court ruled that a defendant may, by right, introduce hypnotic evidence because the defendant's right to testify on his own behalf, among other rights, outweighs the State's interest in excluding prejudicial evidence, and certain procedural safeguards will protect the integrity of the court. Our case, however, involves a witness for the State, not the defendant himself wishing to testify. As such, there are no constitutional implications and, therefore, Rock does not affect the decision in this case. While the Supreme Court did implicitly acknowledge that hypnotic evidence can have some probative value, its decision does not preclude this court from adopting a per se rule excluding the hypnotically enhanced testimony of a witness other than the defendant.

Applying this rule to the case before it, the court in Sutton noted that 

Janik testified that his memory of the offense and offender came back in bits and pieces during his therapy with Dr. Ries, until he regained his memory of the entire evening. Janik also testified that he did not regain any more memories of the offense after he stopped seeing Dr. Ries. In Zayas, this court recognized the problem with admitting hypnotically refreshed recollections, stating that, "having been hypnotized, the subject gains complete confidence in his 'restored' memory, forgets how it was 'restored,' and is unable to differentiate between that which he was able to recall before hypnosis and that which the hypnosis elicited...." Given that Janik's memory of the offense and the offender was restored solely through hypnosis, it follows that Janik's lineup identification of defendant was tied to his hypnosis therapy with Dr. Ries, even if that identification took place seven years after Janik discontinued therapy. Therefore,...Janik's identification of defendant was influenced by hypnosis making it per se inadmissible under Zayas.

The Illinois rule, as applied to witnesses for the prosecution, makes sense to me. That said, I would be very interested to see what might happen of appeal if a defendant claimed that application of this rule to preclude the testimony of a defense witness violated the right to present a defense.

-CM

Gangster No. 1: Court of Appeals of Minnesota Finds Statements Made During Concealment Phase Of Conspiracy Qualify As Co-Conspirator Admissions

Minnesota Rule of Evidence 801(d)(2)(E) indicates that a statement is not hearsay if the statement is offered against a party and is

a statement by a coconspirator of the party.  In order to have a coconspirator’s declaration admitted, there must be a showing, by a preponderance of the evidence, (i) that there was a conspiracy involving both the declarant and the party against whom the statement is offered, and (ii) that the statement was made in the course of and in furtherance of the conspiracy.

And, as the recent opinion of the Court of Appeals of Minnesota in State v. Neiss, 2009 WL 1046515 (Minn.App. 2009), makes clear, a statement is made "in furtherance of" a conspiracy even if it is made during the concealment phase of the conspiracy.

In Neiss, according to the state's evidence,

George Neiss asked Marsh for permission to look at Marsh's handgun. When Marsh handed it over, George Neiss removed the bullets and returned the handgun and the bullets to Marsh. George Neiss and Marsh then began to argue about Marsh's claim that he was affiliated with the Gangster Disciples. Marsh claimed that he was a member of the Gangster Disciples, but George Neiss claimed that Marsh was not. George Neiss punched Marsh in the head, which caused Marsh to fall to the ground. As Marsh lay on the ground, appellant, George Neiss, and T.W. repeatedly kicked him and yelled at him for lying. T.W. removed Marsh's shoes and threw them in the fire and then stomped on Marsh's bare feet. Appellant stood over Marsh with Marsh's gun and hit Marsh on the head several times with the gun. Marsh asked appellant not to kill him. Appellant put one bullet in the gun and asked Marsh if he wanted to play Russian roulette. Appellant pointed the gun at Marsh's head and pulled the trigger, and the gun fired the bullet into Marsh's head.

Appellant, George Neiss, T.W., and M.C. then fled. George Neiss called his girlfriend, T.D., and asked her to pick them up, and she did so. T.D. and M.C. testified that, as the group was riding in T.D.'s car, George Neiss told T.D. that they had killed Marsh and that appellant was "a gangster now." T.D. also testified that appellant repeated George Neiss's statement by saying, "I'm a 

gangster now."

 

The appellant was subsequently charged with murder and convicted after, inter alia, testimony was received concerning George's statement that they had just killed Marsh and that the appellant was "a gangster now." In addressing the appellant's appeal, the Court of Appeals of Minnesota found that these statements were admissible against the appellant as adoptive admissions under Minnesota Rule of Evidence 801(d)(2)(B) because the appellant responded to them by saying, "I'm a gangster now."   

The admissibility of a statement that George made the day after the murder was a closer call. Evidence was admitted at trial indicating that

the day after the murder, T.D. drove appellant and George Neiss back to the [murder scene] because George Neiss said that he had forgotten something. After returning to the car, George Neiss told T.D. that Marsh's body was still lying on the ground near a tree and that he had taken care of the crime scene so that “as long as [T.D.] and [M.C.] didn't say anything, [they would] be fine.

 

As noted, though, the court found that Minnesota Rule of Evidence 801(d)(2)(E) covers not only statements made during the commission phase of a conspiracy but also statements made during the concealment phase of a conspiracy, and because it found that George's statement was indeed made during the concealment phase, it concluded that the trial court committed no error.

-CM 

Juror Under The Influence: Delaware Court Denies New Trial Motion Despite Juror Conversation With Son About Drugs

A juror has heard all of the evidence in the trial of a man accused of Possession of Cocaine within 300 Feet of a Church and Possession With Intent to Deliver Cocaine. As the first day of deliberation ends, the juror believes that the defendant is guilty of possession, but is undecided on the possession with intent to distribute charge, but he is leaning against a finding of guilt. The juror thereafter discusses the case with his son, a recovering drug addict, asking him "whether the amount of drugs involved in this case was more consistent with simple possession or possession with intent to deliver." The next day, the juror returns to deliberations, agrees to vote in favor of a conviction on the possession with intent to deliver charge, and the defendant is convicted of both charges. Should the defendant be entitled to a new trial? The answer, at least according to the recent opinion of the Superior Court of Delaware in State v. Black, 2009 WL 147023 (Del. Super. 2009), is "no."

The facts presented above were basically the facts of Black, although in fairness to the court, (1) the juror claimed that he did not advise his son of the quantity of drugs seized from the defendant, but rather asked him general questions about the amount of drugs typically consumed by addicts; and (2) stated that his son was not particularly helpful and that he returned for the second day of deliberations “still undecided” on the question of possession versus possession with intent to deliver.

The court treated these allegations as follows. First, the juror was able to testify concerning these events pursuant to Delaware Rule of Evidence 606(b), which states in relevant part 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.

The son's advice thus formed the proper predicate for jury impeachment because it consisted of extraneous prejudicial information and came from an improper outside influence. But in order for the defendant to be able to establish that he was entitled to a new trial, he had to establish that the juror misconduct at issue was "so egregious as to be inherently prejudicial" or that it caused actual prejudice." And, according to the court, the problem for the defendant was that

Based on his candid revelations,...it [wa]s clear to the Court that [the juror] received little, if any, actual guidance from these efforts. He stated that he had questions about the appropriate outcome when he went home after the first day of deliberations, and that he returned to the jury room on the second day with those same questions. As is intended by the deliberative process, he discussed the case vigorously with his fellow jurors on the second day and, ultimately, was able to join in the jury's unanimous verdicts.   

Really? At most, this shows that there was not actual prejudice, but I would argue that the juror's questions to his son, which dealt with the essential issue at trial, were "so egregious as to be inherently prejudicial." Moreover, is anybody shocked that the juror claimed that his son was not helpful and did not influence his decision? Of course, the juror wanted to downplay the role of his misconduct and claim that it was benign. This is exactly why courts in juror misconduct cases should objectively assess the prejudicial effect of external evidence/influence and not rely upon the subjective evaluations of the jurors themselves. 

(Hat tip to Paula Gordon for the link).

-CM

Coming Out of the Closet: How Arizona v. Gant Could Lead to the Shrinking of the Scope of Searches Incident to Lawful Home Arrests

(Cross-posted at PrawfsBlawg)

In Chimel v. California, 395 U.S. 752 (1969) the Supreme Court held that a search incident to a lawful home arrest may only include "the area 'within [an arrestee's] immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." According to the Court, there were two justifications for allowing such searches: (1) "When an arrest is made, it is reasonable for the arresting officer to search the person arrested [and the area within his immediate control] in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape;" and (2) "it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person [or within his immediate control] in order to prevent its  concealment or destruction." The Court, however, was quick to note that "[t]here is no comparable justification...for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself."  

Twelve years later, in New York v. Belton, a majority of the Court found that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." It was, however, Justice Brennan's construction of the majority opinion in his dissent that his since predominated. According to Brennan, the majority "adopt[ed] a fiction - that the interior of a car is always within the immediate control of an arrestee who has recently been in the car." While in Belton, a single officer searched a vehicle when there were four unsecured arrestees, Justice Brennan found that the majority's conclusion "would presumably be the same even if Officer Nicot had handcuffed Belton and his companions in the patrol car before placing them under arrest, and even if his search had extended to locked luggage or other inaccessible containers located in the back seat of the car."   

Two years after Belton, relying upon Terry v. Ohio, 392 U.S. 1 (1968), the Court found in Michigan v. Long, 463 U.S. 1032 (1983), that an officer may also "search a vehicle's passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is 'dangerous' and might access the vehicle to 'gain immediate control of weapons."   

Seven years after Long, the Supreme Court extended the scope of the search incident to a lawfulhome arrest in Maryland v. Buie, 494 U.S. 325 (1990), holding "that as an incident to [an] arrest...officers c[an], as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which and attack could be immediately launched." Then, relying upon Terry, the Court found that officers can also conduct a protective sweep of the rest of the home, but only when there are "articulable facts which, taken together from rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."   

All of this takes us to the Court's opinion in Wednesday in Arizona v. Gant. In Gant, officers arrested Gant for driving with a suspended license and searched his automobile incident to that arrest only after handcuffing and locking Gant in the back seat of a patrol car, i.e., the situation identified by Brennan in his dissent in Belton. But Brennan's presumption was wrong. The Court noted the two Chimel justifications and found that Brennan's reading of the Belton majority opinion fulfilled neither because Gant obviously could not access the passenger compartment of his vehicle. Accordingly, the Court "reject[ed] this reading of Belton and h[e]ld that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." Later, the Court rephrased this holding in a slightly different manner, concluding that "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." (thus incorporating the automobile exception into its holding) 

Before this rephrasing, the Court also disposed of the State's suggestion that a broad reading of Belton was "[]necessary to protect law enforcement safety and evidentiary interests." According to the Court, this is the case because "[o]ther established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand." Specifically, the Court noted that officers in cases such as Gant can still search the vehicle if Long and/or the automobile exception applies. Interestingly, the Court then noted:

Finally, there may be still other circumstances in which safety or evidentiary interests would justify a search. Cf. Maryland v. Buie, 494 U.S. 325, 334...(1990) (holding that, incident to arrest, an officer may conduct a limited protective sweep of those areas of a house in which he reasonably suspects a dangerous person may be hiding).  

Now, of course, this "established exception" would not apply to the arrest of the driver of a vehicle, which is why the Court used a cf. cite. But, it seems to me that, through this citation, the Court inadvertently showed the invalidity of the "adjoining area" holding in Buie.

Like Brennan's construction of the majority opinion in Belton, the holding in Buie "that as an incident to [an] arrest...officers c[an], as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which and attack could be immediately launched" is a fiction. When police arrest and handcuff a suspect in a room such as bedroom, that suspect cannot access certain adjoining areas that could be fifteen (or more) feet away. See, e.g., State v. Roberts, 957 S.W.2d 449 (Mo.App. W.D. 1997) (upholding an "adjoining area" search of a closet and kitchen and living room areas that were respectively seven to ten feet and fifteen feet away from the handcuffed arrestee).

Of course, the twin Chimel justifications of preventing the arrestee from accessing weapons and/or evidence were never the basis for the "adjoining area" holding in Buie. Instead, this holding was based upon the possibility of other people launching an attack on officers from adjoining areas. But if this possibility was not sufficient to uphold the Belton fiction, why should it be sufficient to uphold the Buie fiction?

Just as officers in cases such as Gant can still search the passenger compartment if Long applies, officers completing a home arrest can conduct a protective sweep of the rest of the home if there are "articulable facts which, taken together from rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Just as officers in cases such as Gant can still search the arrestee's vehicle if the automobile exception applies, officers completing a home arrest can search the rest of the home if they procured a search warrant in addition to an arrest warrant (or if the plain view doctrine applies, etc.).

This analysis indicates the Court should eliminate the Buie fiction for the same reasons it eliminated the Belton fiction, especially because individuals enjoy a greater expectation of privacy in their homes than they enjoy in their vehicles. Seemingly the only basis for a distinction between the two fictions is the Court's statement in Buie that

unlike an encounter on the street or along a highway, an in-home arrest puts the officer at a disadvantage of being on his adversary's 'turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.  

Of course, that language was used in support of the "protective sweep" portion of Buie, not the "adjoining area" portion, and this makes sense. An officer likely won't know the configuration of a home, justifying protective sweeps of other rooms based upon reasonable suspicion. But this knowledge gap does not support suspicionless searches of areas adjoining the arrest room, whose configuration is readily observable by the officers. 

 

-CM

Goodyear? No, The Worst: Minnesota Opinion Reveals That The Anti-Jury Impeachment Rule Precludes Jury Testimony Concerning Quotient Verdicts

The recent opinion of the Court of Appeals of Mississippi in Goodyear Tire & Rubber Co. v. Kirby, 2009 WL 1058654 (Miss.App. 2009), provides a nice illustration of how the anti-jury impeachment rule precludes post-trial jury testimony on whether the jury reached a quotient verdict.

In Kirby,

[t]hree young men, all of whom were under the legal age and intoxicated, were driving a 1998 Chevrolet Camaro Z28 at speeds from 88-92 miles per hour during the early morning hours of August 5, 2000, in rural Copiah County. The owner and driver of the automobile was Travis Kirby, age 20, and with him were his two friends, Strickland, age 18 who was in the front passenger seat, and Odom, age 19, who was in the back seat. At approximately 3:00 a.m., the automobile left the road, rolled, clipped a tree, continued to roll hitting another tree, and then came to rest on its side against a tree. The accident... was not discovered until about dawn when a passing motorist, Sandy Adams, saw a piece of tire tread and some gravel on the side of the road. He stopped, spotted the car lying on its side against a pine tree, and began to render aid. He found one young man, later identified as Strickland, conscious sitting up against a tree to the left of the car and another young man, later identified as Odom, nearby but unconscious lying face down on the ground. Adams called the sheriff's department. Adams said that Strickland kept saying, “Where's Travis? We need to find Travis,” so he started to look for a third person and found Kirby covered up in a brush pile. When he checked Kirby's pulse, he found he was dead.  

The administrator of Kirby's estate and other plaintiffs subsequently sued Goodyear and Big Ten, contending

that the cause of the accident was a faulty right back tire manufactured by Goodyear and sold by Big Ten which without provocation threw off pieces of tread causing the tire to rapidly deflate and the car to lose control and crash. Goodyear and Big Ten claim[ed] the accident was caused by the excessive speed at which the car was traveling, by the drunken condition of the driver Kirby, and by a puncture in the tire caused by impact damage after running over something that cut the surface of the tire.  

The jury largely sided with the plaintiffs, in large part based upon the testimony of their accident reconstructionist, Gilbert L. Rhoades, who testified, inter alia, that the road was straight and level where the accident occurred and "that the cause of the wreck was a catastrophic failure of the right-rear tire, which caused the tire to rapidly lose air pressure." But the jurors did not award the plaintiffs the full damages that they sought, and the defendant claimed that there was "good" reason for this.

According to the defendants, the jury reached an illegal quotient verdict, i.e.,

an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be. Then the amounts are totalled and divided by the number of jurors to reach a figure for the award.

The problem with this argument was that this allegation concerned something internal to the jury deliberation process, meaning that it did not form the proper predicate for jury impeachment under Minnesota Rule of Evidence 606(b). Indeed the Advisory Committee Note to the federal counterpart to Minnesota Rule of Evidence 606(b) makes clear that the ani-jury impeachment rule does not allow for post-trial jury testimony indicating the the jury reached a quotient verdict.

-CM  

Dismissed With Prejudice, Take 2: Court Denies New Trial To Death Sentenced Defendant Despite Jury Exposure To Racist Comment

Sometimes, I read a court opinion, and all that I can think about are the immortal words of John Patrick McEnroe, Jr.: "You cannot be serious!" Readers of this blog might remember a post that I did back in February about Rejon Taylor, an African-American man convicted of four capital offenses in connection with a carjacking, kidnapping, and murder and given a death sentence. As I noted in that post,

He thereafter moved for a new trial and evidentiary hearing and moved to interview jurors ahead of that hearing. The basis for the latter motion was at least two-fold. First, according to alternate juror Everage Holloway and two regular jurors, all 12 seated jurors and all six alternates were aware of and discussed media reports which indicated that Taylor had called jurors "racist rednecks." Also, according to Holloway, he "heard (jurors) talking about how we needed to make an example of him. It was like, here's this little black boy. Let's send him to the chair, and all I ever thought was that he made the unluckiest (gun)shot of his life." 

Unsurprisingly, the United States District Court for the Eastern District of Tennessee found that an evidentiary hearing was not warranted based upon the second allegation because it concerned a matter internal to the jury deliberation process, and Federal Rule of Evidence 606(b) indicates 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. 

While, as I note in my forthcoming article, Dismissed with Prejudice, there are Constitutional problems with applying this Rule to allegations of juror racism, most courts have found that such racism does not form the proper predicate for jury impeachment because it comes from the jurors themselves and is not external evidence or influence. 

Of course, the same could not be said about the jury's improper exposure to Taylor's comment that the jurors were "racist rednecks," which was clearly extraneous prejudicial information. The court thus ordered an evidentiary hearing on the issue, which in effect, was directed toward answering the question of whether Taylor's characterization of the jurors was correct. The court found that it was not.

At the hearing, Holloway repeated his claim that all of the jurors had heard about Taylor's "racist rednecks" comment. Nonetheless, in United States v. Taylor, 2009 WL 1034940 (E.D. Tenn. 2009), found that this exposure did not cause Taylor substantial prejudice and denied his motion for a new trial because

Holloway's testimony shows the comment did not affect jurors. The comment sparked jokes and laughter among jurors; there was no indication jurors took the comment personally. No juror seemed to take offense at the comment. The comment was not a big deal, Holloway testified. Holloway did not say the comment created fear in any juror....The “racist redneck” comment was not the subject of continuing conversation among jurors. “It was one of those things that got brought up every blue moon, you know, joke-in joke or jest or something,” Holloway testified. “It wasn't serious if it was brought up.”

What? According to Holloway, he "heard (jurors) talking about how we needed to make an example of him. It was like, here's this little black boy. Let's send him to the chair, and all I ever thought was that he made the unluckiest (gun)shot of his life." This seems to me to be pretty clear evidence that the jurors took offense at the comment, resulting in substantial prejudice to Taylor. And to the court, all I have to say is: "You cannot be serious!"

-CM

Trying Over Spilt Milk: Ninth Circuit Finds District Court Improperly Admitted Fault Letter As Business Record

In relevant part, Federal Rule of Evidence 803(6), the business records exception to the rule against hearsay, allows for the admission of

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness. 

The rationale behind this exception is that members of a business generally record things accurately to ensure the smooth functioning of the business. When, however a business prepares a record/report or has a record/report prepared for it, not in the course of regularly conducted activity, but after an accident, there is no such expectation of reliability. Instead, because the business in this situation likely anticipates suing or being sued, there is the strong possibility that the report/record will be unreliability slanted in favor of the business. And this was exactly the problem with a district court opinion, according to the Ninth Circuit's recent opinion in Millenkamp v. Davisco Foods Intern., Inc., 2009 WL 982787 (9th Cir. 2009).

In Millenkamp,

[t]he Millenkamps raise[d] bovine calves in Idaho...[while] Davisco operate[d] the "Jerome Cheese Company," which produces milk permeate as a byproduct of its cheese-making operation. Because milk permeate is sometimes used as a source of dietary energy, protein, and minerals in livestock feeding programs, Davisco sells milk permeate to several dairies near Jerome, Idaho.

Given the use of milk permeate in other feeding programs, the Millenkamps decided to investigate using it as part of their calf feeding operation. They discussed its use in their operation with Davisco employee, Steven Ewing. Ewing admit[ted] that he provided the Millenkamps an analysis sheet that set forth the contents of Davisco's milk permeate and represented that it had a pH level of at least 6. The Millenkamps also assert[ed] that Ewing told them that (1) he "thought" the milk permeate "would be good to feed" the calves; and (2) it should be stored in plastic tanks similar to tanks Ewing observed while touring the Millenkamps' facilities. The Millenkamps then consulted nutritionist Matt Schmitt of Cargil, Inc. After such investigation, the Millenkamps purchased milk permeate from Davisco, stored it in plastic tanks, and, beginning on May 25, 2002, incorporated it into the feed for their calves.

Within days, Bill Millenkamp noticed that several calves became sick, so he stopped feeding them milk permeate. Soon thereafter, many of the Millenkamps' calves died or failed to gain weight at a desirable rate. On June 3 and 4, 2002, the Millenkamps' veterinarian, Dr. Michael Mihlfried, conducted necropsies on three dead calves. He concluded that two of them died from rumin acidosis and the third died from a disease to which acidosis can predispose calves. Mihlfried posited that the Millenkamps stored the milk permeate at an improper temperature, which allowed lactose to ferment into a harmful lactic acid that caused the calves to fall prey to rumen acidosis.

The Millenkamps thereafter sued Davisco, claiming that the company breached express and implied warranties to them, and Cargil, Inc., with whom it reached a settlement. After the jury found in favor of the Millenkamps in their action against Davisco, the company appealed, claiming, inter alia, that the district court improperly allowed for the admission of Exhibit 18, a letter from Cargill's nutritionist, Matt Schmitt, to Bill Millenkamp, discussing the cause of the Millenkamps' calves' illnesses. The Ninth Circuit agreed, finding that

In order to be admissible under Rule 803(6), a document must have been “made at or near the time” of the events it records or describes, “by, or from information transmitted by, a person with knowledge” of those events, “kept in the course of a regularly conducted business activity,” and part of a business's “regular practice.” Fed. R. Evid. 803(6). Exhibit 18 fails to meet the requirements of Rule 803(6) for admission. It was not generated in the ordinary course of...business, nor kept in the course of the regularly conducted business activity. Instead, Exhibit 18 appears to have been generated in anticipation of litigation, rather than as part of a regular business practice. It places the blame for the calves' illness on Davisco. Moreover, there is no testimony from the letter's author nor other evidence that Exhibit 18 would have been generated, but for the Millenkamps' request.

In other words, there was every reason to believe that a letter prepared by one defendant (which later reached a settlement agreement with the plaintiff) which shifted the blame to the other defendant and which was prepared after the incident giving rise to the lawsuit would be both unreliable and slanted in favor of the plaintiff and against the other defendant. 

-CM

Attention Wal-Mart Robbers: Third Circuit Finds Rule 701 Does Not Apply To Co-Defendants Identification Testimony In Wal-Mart Robbery Appeal

It is well established that an acquaintance of a defendant may or may not be allowed to identify the defendant in an incriminating photo or video pursuant to Federal Rule of Evidence 701. That Rule allows for the admission of lay witness opinion testimony if, inter alia, that testimony would be "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Of course, in such cases, an argument can be made that the jury is just as capable as the acquaintance of determining whether the defendant is the man in the photo or video, which would make the acquaintance's testimony not helpful and not admissible under Rule 701. But when there is a sufficient basis for concluding that the acquaintance is more likely than the jury to correctly identify the defendant from the photo or video, such testimony is admissible. See, e.g., United States v. Dixon, 413 F.3d 540, 544-46 (6th Cir. 2005). But what happens when the acquaintance was a participant in the event that was photographed or videotaped? According to the recent opinion of the Third Circuit in United States v. Shabazz, 2009 WL 1011971 (3rd Cir. 2009), it is Federal Rule of Evidence 602 that applies, and the testimony is admissible.

In Shabazz, Bilial Shabazz was convicted of conspiracy to commit Hobbs Act robbery, Hobbs Act robbery, and using a firearm during or in relation to a crime of violence based upon his participation in the robbery of a Wal-Mart in Philadelphia in December 2006. The other participants in the robbery were:

-Steven Pattton, an assistant manager at the Wal-Mart that they robbed;

-Bruce Johnson, an assistant manager at a Wal-Mart in Cherry Hill, New Jersey and Shabazz's brother-in-law; and

-Christopher Young, whom Shabazz recruited.  

According to evidence adduced at trial, the four men decided to rob Patton's Wal-Mart  

because they knew that, during the holiday-shopping season, the store would have large amounts of cash in its safe....[T]hey decided that Patton would let Shabazz and his accomplice into the store around 2:00 a.m., when most of the overnight employees would be out on their lunch break, and that Patton would be taken to the safe room and tied up to make it look like he was a victim of the robbery.

At approximately 2:15 a.m. on December 3, Patton let two men into the store, whom he later identified as Shabazz and Young. As Patton led them to the safe room, they encountered Richard Tate, a store employee, who had come to the front register to ask Patton to cash him out. The two robbers then led Patton and Tate to the safe room at gunpoint. Once there, Patton was ordered to open the safe, while Tate was ordered to lie on the floor face down and then was bound with duct tape. After the safe was opened, Patton was also ordered to the floor and his hands were duct-taped. The two robbers left the store with approximately $351,563 in cash.

Patton then freed both himself and Tate and called the police. Initially, Patton presented himself as a victim of the robbery. After viewing the surveillance video, which showed him opening the store's door to allow the two men in, Patton admitted his involvement in the crime. He directed the police to Johnson, who in turn implicated Shabazz 

and Young.

Thereafter, at Shabazz's trial,

the Government introduced footage of the robbery from the store's surveillance cameras, which Patton narrated over Shabazz's objection. The footage showed the man Patton identified as Shabazz walking toward the store from the parking lot, entering the store, grabbing Tate by the store register and putting a gun to his neck, shoving Tate to the ground in the safe room and putting a gun to his head, taking money from the safe and putting it in a trash bag and his clothing, and leaving the safe room with the money. In addition, Patton identified...Shabazz as the man holding a gun in a still picture taken from the robbery. 

After Shabazz was convicted, he appealed, claiming, inter alia, that Patton's lay opinion testimony was improperly received under Federal Rule of Evidence 701 because the jury was just as capable as Patton of determining whether the Shabazz was the man in the photo/video. The problem for Shabazz, however, was at the Wal-Mart when Shabazz when his image was captured, meaning the he was a fact witness, not an opinion witness. Accordingly, because Patton had personal knowledge of the event at issue, he was allowed to render the fact testimony that he rendered under Federal Rule of Evidence 602. 

-CM

I Can't Put My Finger On It: Will England's New Fingerprinting Technique Have The Same Fate As Low Copy Number DNA?

Will a new fingerprinting technique from England become the key to solving cold cases in the United States? Or, like low copy number DNA and ear print evidence, will it be something that we decide is as unwanted on these shores as the British monarchy?

According to a recent CNN story, 

a groundbreaking technique developed across the Atlantic Ocean in Britain may help Texas police and others to crack cold cases....The technique enables scientists to detect fingerprints on spent bullets and shell casings, even when the print had been wiped off. It works by detecting the minute corrosion of metal caused by sweat, which corrodes the metal in the shape of the fingerprint.  

"That sweat is in the pattern of the original fingerprint that was deposited," said John Bond, a forensic scientist for England's Northamptonshire Police and a researcher at the University of Leicester, who developed the technique.

The corrosion is often impossible to see with the naked eye because it's so small -- as small as a micron, which is a millionth of a meter, Bond said.

His method involves dusting the metal with a fine black powder that adheres to the corroded areas, allowing scientists to see the fingerprint. 

According to Bond, he has been in contact with American law enforcement officials regarding his technique, and

"All of the inquiries we've had from the U.S. police forces have all been initiated by them," he told CNN. "We never say no, so anybody who says, 'I've got some shell casings, we have some over 30 years old' -- we always say send them and we'll have a look."  

All of this sounds promising, but I can't help but think that the technique might have the same problems as low copy number DNA. As I noted in a previous post,

Low copy number DNA allows the genetic profiles of suspects, victims or witnesses to be "uncovered" even when there is only a tiny amount of biological material present, sometimes as small as a milionth of the size of a grain of salt.  The technique amplifies these tiny DNA fragments when it is believed that a suspect may have transferred DNA through touch, like the residue believed to have come from cells such as skin or sweat left in a fingerprint. Since this technique was launched in 1999, it has been consistently doubted in the scientific community, and it has thus only been used in the U.K., the Netherlands, and New Zealand.

It seems to me as if this new fingerprinting technique takes the same starting point as low copy number DNA -- tiny DNA fragments coming from sweat left in a fingerprint -- but then uses it for a different result -- dusting corroded areas to see the fingerprint instead of amplifying the DNA fragments. Whether this new technique will also achieve a different result in most legal systems across the world, however, is something that we will have to track over the next years and decades.

-CM

Slowing Up Gotti: Court Denies Peter Gotti Evidentiary Hearing In Appeal Of Sammy Bull Sentence

Pursuant to the tax day ruling of the United States District Court for the Southern District of New York in Gotti v. United States, 2009 1010498 (S.D.N.Y. 2009), the 2004 conviction and sentencing of Peter Gotti, a/k/a "One Eyed Pete" and the brother of John Gotti, will stand, at least for now. Back in 2004, Gotti was convicted of racketeering, conspiracy to racketeer, conspiracy to murder, and extortion and was sentenced to 25 years in prison, 3 years of supervised release, and a $400 special assessment based upon his ordering a hit on mob rat Salvatore "Sammy Bull" Gravano. This was not Gotti's first appeal, but it might be his last.

Gotti petitioned the Southern District of New York, pursuant to 28 U.S.C. Section 2255 to vacate, set aside, or correct his sentence. One of the grounds for Gotti's appeal was that, following the jury's verdict, Juror Seven approached the Court and attempted to change his vote. According to Gotti, this entitled him to an evidentiary hearing to inquire into what led Juror Seven to vote one way and then change his mind.

But according to the court, the problem for Gotti was that the trial court "did inquire into the reason for Juror Seven's attempted recantation in an interview in chambers in the presence of all attorneys," and Gotti did not produce a transcript of he meeting with the juror. This was problematic because Federal Rule of Evidence 606(b) indicates 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.

In other words, a petitioner can only procure an evidentiary hearing to inquire into alleged juror misconduct if he can provide some scintilla of evidence that external evidence or influence improperly tainted the jury deliberation process (or provide some evidence of a jury transcription error). And, by failing to produce the transcript or presenting any other evidence of external evidence of influence, Gotti failed to establish that he was entitled to an evidentiary hearing.

-CM  

Thieves Like Them: Court Of Appeals Of Minnesota Explains The Boundaries Of Proper Prosecutoruial Comment During Closing

It is well established that a prosecutor may not belittle or disparage the defendant('s case) during closing argument. At the same time, "[a] prosecutor has discretion to fashion a persuasive closing argument, and the rhetoric need not be colorless." The question that the Court of Appeals of Minnesota had to address in State v. Peterson, 2009 WL 982081 (Minn.App. 2009), was whether the prosecutor in the appeal before it crossed this line.

In Peterson, Mark Peterson appealed from his conviction on one count of first-degree criminal damage to property. At Peterson's trial, the prosecution impeached Peterson and several of his defense witnesses through their prior criminal convictions pursuant to Minnesota Rule of Evidence 609. For instance, the prosecution impeached Peterson though his "two convictions for providing false information to police, three convictions for fifth-degree controlled-substance crimes, and one conviction for felony violation of an order for protection."   

Subsequently, during closing argument, the prosecutor stated:

Now the defendant, of course, has twice before been convicted for lying to law enforcement in 2004. Once in Beltrami County, once in Cass County. He's also got two convictions for controlled substance crime in the fifth degree for selling marijuana, one conviction in 2007 for possession of methamphetamine, and a felony conviction for violation of an Order for Protection. Were talking witnesses here who have lengthy criminal histories.

* * *

Now what do you have from the defendants testimony? Well, you have the defendant telling you that he didnt flush those sheets down the toilet. You have to make a judgment call as to whether or not you believe his testimony. Well, as Ive indicated before, hes previously been convicted twice for lying. That clearly is a factor that you may consider in determining whether or not hes telling the truth now. Clearly, that crime, providing false information to law enforcement, to a peace officer, falls within the type of crime that would indicate a likelihood the witness is telling or not telling the truth now.

Peterson subsequently appealed, claiming that the prosecutor's comments crossed the line mentioned above. The Court of Appeals disagreed, finding "that the prosecutor did not characterize appellants defense as ridiculous or otherwise." It distinguished the case before it from cases where prosecutors referred to the defense as "soddy" or "ridiculous" or suggested that the jurors would be “suckers” or "snowed" if they believed the defense. Rather, the court found that the prosecutor's comments had a clear basis in the record based upon the admission of the aforementioned impeachment evidence.

More troubling, however, was the fact that the prosecutor referred to referred to "the defense witnesses as a dealer, a burglar, and a thief." The Court of Appeals found that this was improper, relying upon the Supreme Court of Minnesota's opinion in State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990), which had found that "that a prosecutor exceeds permissible bounds when using a defendants prior convictions to personify him as a burglar or thief as opposed to noting the defendant had been convicted of burglary or theft."   

Nonetheless, the Court of Appeals found that Peterson did not suffer unfair prejudice as a result of the prosecutor's remarks for three reasons:

First, appellants trial counsel mitigated the impact of the prosecutors characterization of the defense witnesses by pointing out that it is not surprising that witnesses to an incident that occurred in a correctional center would have a criminal record. Second, the district court cautioned the jury that evidence that a witness has been convicted of a crime may be considered only for whether the kind of crime committed indicates the likelihood the witness is telling or not telling the truth. Third, the jurys conduct, including the submission of questions to the court and deliberating for several hours over two days, indicates the jurors were not unduly inflamed by the prosecutors comments.  

I'm not sure that I buy the Court of Appeals' conclusion that the prosecutor's latter remark was not unfairly prejudicial, but I do by the general distinction drawn by the court: Prosecutors may remind the jurors at the end of trial of the properly admitted convictions of the defendant and/or his witnesses, but he can not refer to either as a dealr, burglar, thief, murderer, rapist, etc.

-CM 

The Conclusory Conclusion: Fourth Circuit Makes Seemingly Incorrect Evidentiary Ruling Regarding Admissibility Of Instant Messages

I hate conclusory conclusions, i.e., when a court rejects a litigant's argument in one sentence without even telling you the basis for its conclusion. The problem with these conclusory conclusions is that the court possibly has a valid reason for rejecting the argument. But based upon the paucity of analysis in the court's opinion, the reader is forced to assume that the court got it wrong. The recent opinion of the Fourth Circuit in United States v.Minder, 2009 WL 981102 (4th Cir. 2009), contains just such a cursory conclusion.

In Minder, Joseph Miner appealed from his conviction on twelve counts of mail fraud, one count of securities fraud, and one count of possessing and uttering a forged endorsement on a check. Specifically, the facts adduced at trial indicated that, in 1998, William McNulty introduced Minder to a financial investment scheme promising unusually high rates of return, which purportedly involved overseas accounts managed by "Donald," a multi-millionaire European trader of financial investments. The problem, however, was that "Donald" was a fictitious character, and the investment scheme was classically fraudulent in that it used money received from later victims to pay earlier victims.

McNulty admitted to his guilt by pleading guilty to charges brought against him in connection with the scheme, and when Miner's trial rolled around, he exercised his Fifth Amendment privilege against self-incrimination. But this did not stop Miner from trying to get McNulty's words before the court. Instead, Miner tried to introduce into evidence instant messages from McNulty to him which indicated that "Donald" was a fictitious character.

According to Miner, these instant messages proved that he previously thought that the investment program was legitimate, rendering the instant messages admissible under Federal Rule of Evidence 803(3), which provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. 

The clear problem with this argument was that McNulty's instant messages were in no way relevant on the issue of Miner's state of mind, so the court properly deemed them inadmissible. On appeal, however, Miner claimed that the instant messages were admissible under Federal Rule of Evidence 804(b)(3), which provides an exception to the rule against hearsay for 

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 

In finding this exception inapplicable, the Fourth Circuit concluded:

A statement is admissible under this exception if: (1) the speaker is unavailable; (2) the statement is actually adverse to the speaker's penal interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement....The party seeking to introduce the statement has a formidable burden of establishing these prerequisites....We find Minder fails to establish the requisite elements to this hearsay exception.   

The problem with this conclusory conclusion is that it doesn't tell the reader which element the instant messages failed to satisfy, and my reading is that it failed none. First, McNulty was "unavailable" pursuant to Federal Rule of Evidence 804(a)(1) because he was "exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." Second, the instant messages identifying "Donald" as fictitious was clearly adverse to McNulty's penal interest because they admitted the very fact that led to the charges against him and his incarceration after his guilty plea. Third, it seems clear that McNulty's guilty plea and all of the evidence presented at Miner's trial that "Donald" was in fact fictitious (i.e., the very evidence used to convict Minor) clearly indicated the trustworthiness of McNulty's instant messages.

-CM

(Dys)Functional Equivalent?: Ninth Circuit Finds No Exception To Confidential Marital Communications Privilege For Grandchild Victim

The confidential marital communications privilege protects from disclosure private communications between spouses; however, there is an exception to the privilege for statements relating to a crime where a child of one or both of the spouses is the victim. As the recent opinion of the Ninth Circuit in United States v. Banks, 556 F.3d 967 (9th Cir. 2009), makes clear, this exception also applies to statements relating to a crime where the "functional equivalent" of a spouse's child is the victim, but only when the victim truly is a "functional equivalent."

In Banks, Jerry Levis Banks, Sr. appealed from his conviction on multiple counts involving the possession, production, transportation and receipt of images depicting minors engaged in sexually explicit conduct. Making Banks case even more disturbing was the fact that one of the images was a videotape of Banks' grandson. Banks was convicted based not only upon the introduction of that videotape into evidence, but also the testimony of his wife, who testified that her husband had admitted to making the video.

Part of the basis for Banks' appeal was that the district court improperly received his wife's testimony because it addressed a confidential marital communication and was thus privileged. And the Ninth Circuit noted that Banks was correct unless the facts called for application of the exception for statements relating to a crime where a spouse's child is the victim. The Ninth Circuit, noted, however, that this exception also applies to statements relating to a crime where the "functional equivalent" of a spouse's child is the victim "[g]iven that the bond between marital partners and the functional equivalent of their children would be nearly identical to that between marital partners and their birth or step-children." 

The question was thus whether the grandson was such a "functional equivalent," and the district court found that he was based on the following findings:

that JB, the alleged victim, was the grandchild of both the witness, Mrs. Banks, and the defendant, Mr. Banks; that the witness and the defendant were married and co-habitating at the time of the communication; that JB was in the care, joint care of Mrs. Banks and the defendant at the time of the alleged molestation; that JB was specifically being cared for by the defendant at the time of the alleged molestation; that at least during the two-month period prior to the alleged molestation that JB had been left in the joint care of the defendant and Mrs. Banks for two weekends beginning on Friday evening and ending Saturday afternoon; that the parents, i.e., Mr. and Mrs. Banks' son and their daughter-in-law, were not present during those times when JB was in the care of the defendant and his wife.

Further, during the approximate two years of JB's life preceding that time, for the first six months he had lived with Mr. and Mrs. Banks. And during that time, the parents also lived with Mr. and Mrs. Banks, but Mrs. Banks on occasion would feed, bathe, clothe, and change the diapers of JB on many occasions. After that three-month-or after that six-month period, the times in which JB was in Mr. and Mrs. Banks's care was very infrequent until April of 2005. But the parents started leaving JB in the care of Mr. and Mrs. Banks from the time he was about one and one half years old but not usually overnight until April of 2005.  

The Ninth CIrcuit, however, disagreed, concluding:

Although these facts demonstrate a strong bond between the victim and his grandparents, they do not show the type of relationship that would be considered the functional equivalent of a birth or step-child's relationship with his parents. Infrequent overnight visits are common to a large portion of grandparent/grandchild relationships, as are frequent visits with or even regular day-care services provided by the grandparents. This type of care, while admirable and important, does not carry the same indicia of guardianship and responsibility that a parent/child relationship carries. Further, while the district court noted that JB had resided with the Banks for the first six months of his life, it is an important qualifier that his parents had also resided in the home and that this living situation had ended well over a year before the alleged molestation.

This is not a case in which a child was raised by grandparents and, therefore, could be said to share a parent/child relationship with those caretakers. Rather, this situation demonstrates a strong grandparent/grandchild relationship. Although such a relationship is important to building strong extended families and improving society, it is not the type that creates the same overriding policy concerns that led us to limit the marital communications privilege to protect children of the marriage.   

The Ninth Circuit thus found that the district court erred in allowing Banks' wife to testify regarding his admission, but in light of the other evidence properly admitted at trial (such as the video and evidence that Banks made it), the court deemed this error harmless and affirmed Banks' conviction.

(Hat tip to my colleague Tim O'Neill for the link).

-CM

I Need A Remedy: Supreme Court Of Idaho Opinion Raises Question Regarding Admissibility of Subsequent Remedial Measure Evidence By A Defendant

Like its federal counterpart, Idaho Rule of Evidence 407 indicates that

When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, or culpable conduct, or a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

But does Rule 407 apply when a defendant wants to present evidence of a subsequent remedial measure to prove that it did not act negligently or otherwise culpably at the time of an accident? According to the recent opinion of the Supreme Court of Idaho in Jones v. Crawforth, 2009 WL 929839 (Idaho 2009), it does. I disagree.

In Crawforth, Lori Jones underwent lumbar spine surgery at HealthSouth Treasure Valley Hospital and died when an air embolous entered her blood stream from the reinfusion bag. Jones' family subsequently sued several defendants, including B & B Autotransfusion Services, Inc., for wrongful death, claiming, inter alia, that Jeri Kurtz, an autotransfusion tech, was improperly absent and not providing health care at the time of Jones' death.

At trial, the defendants claimed, however, that Kurtz had no duty to be in the operating room at the time of Jones' death. To prove this point, the defendants sought to introduce Treasure Valley Hospital's "revised protocol regarding the duties of autotransfusionists in the operating room. The revision included an additional paragraph which states: 'The autotransfusion tech will remain in the OR room during cell saver use."

The trial court, however, excluded this evidence, concluding that allowing for admission of this revised protocol would “run afoul of the prohibition about allowing subsequent remedial measure evidence to be introduced to the jury” because “[t]he policy behind the rule is to avoid the possibility of having a chilling effect on an institution or party engaging in remedial measures after the fact." 

The trial court was wrong. As the Supreme Court of Idaho held, Idaho Rule of Evidence 407, like its federal counterpart, does not cover subsequent remedial measures by third parties, and Treasure Valley Hospital  was not a party to the wrongful death action. Nonetheless, that court found that the trial court's error did not affect a substantial right of  B & B and thus affirmed.

It seems to me, however, that the trial court was wrong even if the subsequent remedial measure at issue were taken by B & B. As noted above, the exclusionary portion of Idaho Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, or culpable conduct, or a defect in a product, a defect in a product's design, or a need for a warning or instruction.  

By its plain terms, the Rule does not provide for the exclusion of evidence to prove the absence of negligence or culpable conduct (or an applicable duty). Moreover, as the trial court noted, the primary purpose of the Rule is to preclude the admission of evidence of subsequent remedial measure so as to not discourage defendants from taking such measures for fear that they will be used against them at trial. It seems clear to me, however, that applying the Rule to preclude defendants themselves from presenting evidence of their subsequent remedial measures in no way furthers this purpose.

Critics may claim that it unfair to apply Rule 407 to protect defendants but not plaintiffs, but another specialized relevance rule, Rule 410, protects criminal defendants but not prosecutors.

-CM

Your Only Self Defense: Court Of Appeals Of Louisana Engaged In Incorrect Right To Present A Defense Analysis In Murder Appeal

Most states, including Louisiana, have rules of evidence that govern the admissibility of evidence in their courts. Those rules, however, are not highest law of the land and must bow in the face of higher laws. One of those laws is the United States Constitution, and in Crane v. Kentucky, the Supreme Court found that:

 "[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense."

Appellate courts have found this right to be violated when trial courts apply state rules of evidence in a fashion that is technically correct but "mechanistic" or arbitrary or disproportionate to the purposes that the rule is designed to serve. In other words, an appellate court cannot simply respond to an appellant's claim that a trial court violated his right to present a defense by excluding evidence based upon the conclusion that the trial court properly applied a rule of evidence. And yet, that is exactly what the Court of Appeal of Louisiana, Second Circuit, did in State v. Thomas, 2009 WL 929388 (La.App. 2 Cir. 2009).

In Thomas, Dennis Thomas and Carlos Chambers got into a fight over Chambers's girlfriend; that fight unquestionably ended with Thomas fatally shooting Chambers. The question at Thomas' subsequent murder trial was how and why the shooting started. Claiming self-defense, Thomas asserted that he saw Chambers grab for a gun and start to point it at him, which is why he shot Chambers. Thomas' testimony was partially corroborated by the testimony of Dwight Davis, who claimed that Chambers was asking where a gun was and saying that he was going to shoot Thomas soon before Chambers himself was shot. But his testimony was contradicted by the testimony of Chambers' girlfriend, Teouna Fuller, who claimed that Chambers was neither threatening Thomas nor carrying a gun at the time that he was shot. 

What the trial judge did not hear (Thomas opted for a bench trial) was the grand jury testimony of eyewitness Crystal Brown, whom the Court of Appeal merely indicated was "unavailable" at trial. According to Brown,

[Thomas] was walking up the sidewalk coming from a store drinking a Sprite. A car pulled up and they were standing there arguing. In a few minutes they stopped arguing. [Chambers] went to reach for something or whatever. But [Thomas] reached in his pocket, pulled out a gun, made three shots. The young lady screamed. The car sped off and he went up on the sidewalk.  

The Court of Appeal found that the trial court properly excluded this testimony for two reasons. First, the court noted that grand jury testimony is only potentially admissible if it favorable to the accused and material on the issue of his guilt or innocence. And, according to the court, Brown's testimony

was not exculpatory. Ms. Brown did not say she saw a weapon, only that the victim "went to reach for something or whatever." She confirmed that Chambers never fired a shot but that Thomas fired several shots. In short, her testimony is cumulative and not truly exculpatory.

My response is, "Cumulative to what?" In reading the court's opinion, I did not see any witness besides the defendant testifying that Chambers was reaching for something before Thomas shot him. And I have never seen a court refer to the testimony of one witness who (partially) corroborates the defendant's version of events as "cumulative."

Furthermore, I don't see how the court deemed Brown's testimony non-exculpatory. Sure, Brown merely said that she saw Chambers reaching for something, not that she saw him pull (or shoot) a gun. But Thomas did not have to prove that Chambers had a gun or would have shot him. All he had to prove to establish self-defense was that he reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm and that his killing of Chambers was necessary to save himself from that danger. Sure, testimony by Brown that she saw Chambers pull (or shoot) a gun would have been great, but the simple fact that he was reaching for something (especially when combined with Davis' testimony) was certainly exculpatory.

Second, the court found that Brown's grand jury testimony was inadmissible under La. C.E. art. 804(B)(1), which provides an exception to the rule against hearsay for

Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered...had an opportunity and similar motive to develop the testimony by direct, cross, or redirect testimony.

The problem for Thomas was that some (but not all) courts find that the State's motive to develop the testimony of witnesses before the grand jury is not similar to its motive to develop the testimony of witnesses at trial. This is what the State argued and the trial court accepted, and the Court of Appeal affirmed, finding that "the state's construction of La. C.E. art. 804(B)(1), while perhaps overbroad, is essentially correct." 

And that was it for the Court of Appeals' analysis. It merely held that the trial court applied the rule correctly. As noted above, the court should have gone on to address whether the trial court's application of the rule was nonetheless mechanistic of arbitrary and disproportionate to the purposes that the rule was designed to serve. Or, as some courts have put it, the court should have gone on to address whether the trial court applied the rule in an "overbroad manner. See, e.g., Ramos v. Phillips, 2006 WL 3681150 (E.D.N.Y. 2006) ("In this vein, the Second Circuit has noted that the Supreme Court has drawn a distinction between a state's blanket evidentiary prohibitions that may be overbroad, and a state trial court's ordinary evidentiary rulings upon which the Supreme Court has been reluctant to impose restraints."); People v. Kirchner, 2008 WL 62551 (Cal. App. 3 Dist. 2008) ("[S]tates have broad latitude to establish rules excluding evidence, and such rules do not violate a defendant's right to present a defense as long as they are not arbitrary or overbroad.").   

 

Well, actually, the Court of Appeal did inadvertently address this point by finding that the state's construction of the rule was "perhaps overbroad," but it then failed to address why this did or did not violate Thomas' right to present a defense.

 

-CM

 

Waiting For The Verdict?: Supreme Court of Texas Precludes Jury Impeachment Even In The Absence Of A Verdict

Under Texas' version of the anti-jury impeachment rule, Texas Rule of Evidence 606(b),

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 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 a 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 a juror; or (2) to rebut a claim that the juror was not qualified to serve. 

But can jurors testify after a trial which ended in with a settlement agreement and not a verdict, meaning that they would not be testifying upon an inquiry into the validity of a verdict? According to the recent opinion of the Supreme Court of Texas in Ford Motor Com. v. Castillo, 2009 WL 886159 (Tex. 2009), they cannot.

In Castillo, 

Ford Motor Company and Ezequiel Castillo, the plaintiff in a products liability action, settled while the jury was deliberating. The settlement occurred after the presiding juror sent a note to the judge asking the maximum amount that could be awarded. Based on later discussions with jurors, Ford suspected that outside influence may have been brought to bear on the presiding juror. After Ford sought, but was refused, permission to obtain discovery on the outside influence question, it withdrew its consent to the settlement. Castillo sought summary judgment against Ford for breach of the settlement agreement. Ford's response renewed its request for discovery, but the trial court rendered summary judgment for Castillo on the breach of settlement agreement claim.  

The Supreme Court of Texas subsequently reversed, finding, inter alia, that the trial court erred by preventing Ford from conducting its proposed discovery because it was directed toward uncovering whether any outside improper influence was improperly brought to bear upon the jury, which is admissible under Texas Rule of Evidence 606(b).

The court was quick to note, however, that only evidence uncovered regarding such an improper outside influence could be admitted into evidence; anything uncovered about the internal machinations of the jury would be inadmissible. Why? Well, it wasn't based upon the plain language of Texas Rule of Evidence 606(b), which, as noted, only precludes the presentation of juror testimony "[u]pon an inquiry into the validity of a verdict or indictment." Instead, the court noted the general reasons why post-trial jury impeachment is precluded:

(1) keeping jury deliberations private to encourage candid discussion of a case,

(2) protecting jurors from post-trial harassment or tampering,

(3) preventing a disgruntled juror whose view did not prevail from overturning the verdict, and

(4) protecting the need for finality.  

According to the court,

Not all these reasons apply when no attempt is being made to impeach a verdict, but the overarching principles are the same any time discovery is sought as to what occurred during jury deliberations. Jurors are summoned to court to do public service and they should not be subjected to unfettered post-trial proceedings regardless of whether their deliberations resulted in a verdict. Discovery involving jurors will not be appropriate in most cases, but in this case there was more than just a suspicion that something suspect occurred-there was some circumstantial evidence that it did.  

I disagree. In McDonald v. Pless, 238 U.S. 264 (1915) the Supreme Court case that led to the adoption of Rule 606(b) and which is still cited by many courts today, the Court noted that its decision to adopt an anti-jury impeachment rule was a close call, the "lesser of two evils." If the decision to adopt such a rule was a close call in cases where there is a verdict, juror testimony seemingly should be allowed when there is no verdict. Sure, reason 1 from above applies equally in either case.

But reason 2 is often couched in terms of protecting jurors from post-trial harassment by the losing party. When there is no verdict, there is no losing party and thus much less reason to expect harassment. Obviously, when there is no verdict, reason 3, which deals with "overturning the verdict," does not apply. Finally, reason 4 is all about making sure that a verdict is not overturned, which does not come into play when there is no verdict (I think courts are much less concerned about protecting the finality of a private settlement). 

-CM

Ford Tough?: Sixth Circuit Reverses Excited Utterance Ruling Against Ford Based Upon Odd Test

The recent opinion, Maggard v. Ford Motor Company, 2009 WL 928604 (6th Cir. 2009), makes it clear that the Sixth Circuit has added one foundation factor to the excited utterance exception to the rule against hearsay and subtracted another. In looking at the way in which that court analyzes excited utterances, however, I would characterize the result more as strange than unsettling.

In Maggard, Ford appealed from a jury verdict finding the company strictly liable for injuries suffered by Dawn Maggard after her leg was trapped under her Ford Windstar van as it unexpectedly began to roll backwards out of her driveway. In reaching this verdict, the jury apparently relied upon the version of events relayed to them through Dawn and her ten-year old daughter Holly (via deposition) that the Ford Windstar van began moving while the gearshift was in the park position. And they really had no choice. No alternate version of events was presented because the trial judge precluded Ford from presenting into evidence the report of a responding officer whom spoke with Holly 30-40 minutes after the accident and wrote:

[T]he witness, the driver's ten-year-old daughter...stated her mother was going to drive her and her little sister to Walgreens. Witness stated her mother was getting in the driver's seat while she and her sister walked around to the passenger side. Witness stated her mother was halfway in the van when she slipped. Witness stated her mother grabbed the gearshift [sic] as she slipped and the van went into reverse. The van was parked at the top of driver's inclined driveway and began rolling backwards. Witness stated her mother could not keep up to get in and, as she struggled, the van turned and the driver's leg was pulled under the front and dragged...and victim fell out of the van and was trapped under the van as it came to rest in the ditch across the street.  

In the report, the officer also provided the following description of Holly's demeanor at the time that she spoke with him: 

“I don't recall her being very upset and having difficulty talking to me, I mean, other than naturally being upset about what had just happened. And I do kind of recall thinking that she probably didn't really know at the time the seriousness of it."  

Holly was initially named as a plaintiff but was later voluntarily dismissed because the elder Maggards (or their attorney) presumably realized that it she were a plaintiff, her statements to the officer would have been admissible under Federal Rule of Evidence 801(d)(2)(A) as the admission of a party opponent. And the strategy worked, at least in the short term, because the district judge also found that Holly's statements to the officer were not admissible as present sense impressions under Federal Rule of Evidence 803(1) or excited utterances under Federal Rule of Evidence 803(2). 

While the Sixth Circuit agreed on the former exception, it disagreed on the latter and thus reversed. Initially, the court noted that Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The Sixth Circuit then noted that an "excited utterance" is admissible under this exception only if three foundation factors are fulfilled:

(1) there [is] an event startling enough to cause nervous excitement;

 

(2) the statement [is] made before there is an opportunity to contrive or misrepresent; and 

(3) the statement [is] made while the person [is] under the stress of the excitement caused by the event.  

There are two problems with this conclusion. First, the text of the rule makes it apparent that the "requirement" that the statement at issue be "made before there is an opportunity to contrive or represent" is not in fact a requirement under the excited utterance exception. Instead, what matters is that the proponent prove that the statement was made while the person was still under the stress of the startling event/condition (the third element), which then leads to the conclusion that it was reliable. Second, the text of the rule clearly requires that the subject statement be related to the startling event/condition, yet the Sixth Circuit does not list this requirement as a foundation factor.

So, why did I say above that the Sixth Circuit's test is more strange than unsettling? Well, it seems as if that court does basically the same analysis under factor two as it does under factor three. In finding that factor two supported admission in Maggard, the court considered the "passage of time" and the "circumstances of the event," including the substance of Holly's statements and the fact that nobody had counseled her before she spoke with the officer. Similarly, in finding that factor three supported admission in Maggard, the court considered

“(1) the lapse of time between the event and the declarations; (2) the age of the declarant; (3) the physical and mental state of the declarant; (4) the characteristics of the event; and (5) the subject matter of the statements."  

In other words, the Sixth Circuit's second factor seems merely duplicative of its third factor and thus meaningless. Moreover, as noted, the Sixth Circuit considered the "substance of Holly's statements," finding that "[w]hen the subject matter of the statement involves the startling event itself, the subject matter supports a finding that the declarant was still under the stress of the statement." I interpret this as the Sixth Circuit reading the requirement that the subject statement be related to the startling event/condition into its foundation factors. It thus seems to me that while the Sixth Circuit's test for the admissions of excited utterances is confusing, it is not (that) different from the test called for by Federal Rule of Evidence 803(2). 

(Hat tip to William Woodruff for the link to the opinion).

-CM