EvidenceProf Blog

Texas Sized Justice: Texas Passes Bill Increasing Compensation To The Wrongfully Convicted

Many of you may have heard of Craig Watkins, who in 2006 became the first African-American elected district attorney of any county in Texas history when he became the Dallas County District Attorney. Last year, Reason's Radly Balko mused about whether Watkins was America's best prosecutor based upon his creation of the Conviction Integrity Unit.

Established by District Attorney Craig Watkins in July of 2007, the Conviction Integrity Unit oversees the post-conviction review of more than 400 DNA cases in conjunction with the Innocence Project of Texas (IPOT) and in accordance with the Texas Code of Criminal Procedure, Chapter 64 (Motion for Forensic DNA Testing).  In addition to the IPOT project, the Conviction Integrity Unit investigates and prosecutes old cases (DNA and non-DNA related) where evidence identifies different or additional perpetrators.  Special Field Bureau Chief Mike Ware supervises the Conviction Integrity Unit, the Appellate Division, the Public Integrity Division, the Federal Division and the Mental Health Unit, as well as public information, evidence destruction and expunctions at the District Attorney’s Office.  The Conviction Integrity Unit is staffed by one assistant district attorney, one investigator and one legal assistant.  This special division is the first of its kind in the United States.

This Unit is a big reason why Dallas County, with 20 DNA exonerations (including the recent exoneration of Jerry Lee Evans), has more DNA exonerations than any other jurisdiction in the nation since 2001. It's also the reason that you can follow the Unit's exploits on the (quite good) reality show Dallas DNA.

But what happens when the wrongfully convicted are released? What efforts does Dallas made to (somewhat) ease the transition from prison cell to a world that is often markedly different from the one the exonree inhabited before his incarceration? The answer is a lot more than it used to.

Texas recently passed a bill which increased lump sum payments to the wrongfully convicted

from $50,000 to $80,000 for every year of confinement and grant[ed] an annuity to provide a lifetime of income. Exonerees will get 120 hours of paid tuition at a career center or public college. Senators removed a provision to provide health insurance coverage for exonerees.

It also provides an additional $25,000 for each year a wrongly convicted person spends on parole or as a registered sex offender. No other state has such a provision, said Barry Scheck, the co-director of The Innocence Project, a New York-based legal center specializing in overturning wrongly convictions.

The bill...give[s] the wrongly convicted in Texas the most generous compensation package in the nation.

I applaud the efforts of Dallas and Texas on behalf of the wrongfully convicted, and I hope that their practice serves as a model for other states and jurisdictions across the country.

-CM

Balanced Opinion: Third Circuit Applies Balancing Test To Hearsay Admitted At Revocation Hearing

Pursuant to Federal Rule of Evidence 1101(d)(3), the Federal Rules of Evidence do not apply in revocation hearings. This does not, however, mean that hearsay evidence is per se admissible at such hearings as the Third Circuit made clear in its recent opinion in United States v. Lloyd, 2009 1459216 (3rd Cir. 2009).

In Lloyd, 

While on supervised release for a crime he committed in the United States Virgin Islands, [Ashbert] Lloyd pleaded guilty in Duval County, Florida to possession of a firearm by a convicted felon in violation of Florida law. After the Virgin Islands probation office was notified of Lloyd's guilty plea, the District Court summoned Lloyd to St. Thomas for a revocation hearing. 

At that hearing and over Lloyd's objection, the State introduced, inter alia, a violation report prepared by a Duval County probation officer. In preparing his report, the officer relied on information provided by an officer of the Duval County Sheriff, who described a physical altercation between Lloyd and his pregnant girlfriend during which Lloyd brandished a gun at a passerby; however, neither the probation officer who authored the report nor any representative of the Duval County Sheriff testified at Lloyd's revocation hearing. After the hearing, the district court concluded that Lloyd had violated the terms of his supervised release.

Lloyd subsequently appealed, claiming, inter alia, that the district court erred by admitting the probation officer's report because it contained inadmissible hearsay. The Third Circuit began by noting that the Federal Rule of Evidence 1101(d)(3) indicates that the Federal Rules of Evidence do not apply in revocation hearings but found that this does not make hearsay evidence ipso facto admissible. Instead, as the Supreme Court found in Morrissey v. Brewer, 471 U.S. 471, 489 (1971), a parolee's liberty cannot be revoked without due process, and the minimum requirements of a revocation proceeding include "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)."

The Third Circuit went on to note that Morrissey's requirements have been incorporated into Federal Rule of Criminal Procedure 32.1(b)(2)(C), which states that

Unless waived by the person, the court must hold the revocation hearing within a reasonable time in the district having jurisdiction. The person is entitled to...an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.

Moreover, the Advisory Committee's Note to that Rule

recognize[s] that the court should apply a balancing test at the hearing itself when considering the releasee's asserted right to cross-examine adverse witnesses. The court is to balance the person's interest in the constitutionally guaranteed right to confrontation against the government's good cause for denying it.

Following the lead of several other circuit courts of appeal, the Third Circuit decided to follow the language of this Note and found that that a district court 

"should apply a balancing test [in revocation hearings] when considering the releasee's asserted right to cross-examine adverse witnesses," and that "[t]he court is to balance the person's interest in the constitutionally guaranteed right to confrontation against the government's good cause for denying it."

Applying this test to Lloyd's case, the Third Circuit found that (1) Lloyd's aggravated domestic battery violation was supported solely by unreliable hearsay, and that (2) the State made no attempt to show cause for the declarants' absence. The court thus (properly, in my view) vacated the lower court's ruling.

-CM

Drag Me To Hell: Court Finds Discriminatory Remarks Not Precluded By Rule Against Hearsay In Employment Discrimination Suit

Federal Rule of Evidence 801(c) indicates that

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 

But, as the United States District Court for the Middle District of Pennsylvania found in its recent opinion in E.E.O.C. v. Schott North America, 2009 WL 310897 (M.D. Pa. 2009), discriminatory remarks made about the suitability of particular employees which serve as circumstantial evidence of a discriminatory atmosphere in an employment discrimination suit are not hearsay because such statements are not offered to prove the truth of the matters asserted.

Schott concerned

the 2004 reorganization of glassmaking operations at a plant in Duryea, Pennsylvania operated by Defendant Schott North America....Prior to the reorganization, glassmaking production had been divided into two sets of jobs. Jobs on the "cold end" of the production line were largely staffed by women, while those on the "hot end" of the line were largely performed by men. The reorganization resulted in the elimination of one type of glass production from the factory and a downsizing of the workforce. The division of production between the "hot end" and "cold end" was eliminated. In order to staff the reorganized production line, defendant created the new position of "Melting Line Operator" ("MLO"). Plaintiffs contend[ed] that the system that defendant developed and used to assign the new MLO-referred to here as "the matrix"-resulted in unlawful discrimination on the basis of sex. They contend[ed] that the matrix as designed and implemented by defendant both enshrined a long history of discrimination against women in training and job assignment and improperly valued the skills most likely possessed by men. Plaintiffs raise[d] both a disparate impact and a direct sex discrimination claim.

In support of their claims, the plaintiffs sought to introduce testimony indicating, inter alia, that Schott employee Lenny Cushner claimed that the plant would “go to hell” if women had jobs traditionally held by men. Schott brought a motion in limine which, inter alia, sought to preclude testimony concerning Cushner's statement under Federal Rule of Evidence 802 because it constituted hearsay under Federal Rule of Evidence 801(c).

The court disagreed, noting that 

[c]ourts have concluded that discriminatory remarks made about the suitability of particular employees which serve as circumstantial evidence of a discriminatory atmosphere in an employment discrimination suit are not hearsay, since “the statements were not offered to prove the truth of the matters asserted.” 

Applying this principle to Schott, the court found that "Cushner's statement [wa]s not hearsay, since plaintiffs d[id] not attempt to prove the truth of the matter that the workplace would 'go to hell' if too many women had particular jobs." This seems to me to be a correct (non)application of the rule against hearsay.

-CM

Public Enemy?: Eleventh Circuit Finds No Plain Error In Business Records Ruling In Health Care Fraud Appeal

The recent opinion of the Eleventh Circuit in United States v. Hoffman-Vaile, 2009 WL 1458567 (11th Cir. 2009), raised but did not resolve an interesting question: Do the records of a private administrator that processes and reviews claims for Medicare qualify as business records under Federal Rule of Evidence 803(6) or public records under Federal Rule of Evidence 803(8)? And the reason that the question is interesting is that the classification of such records could have drastic consequences in terms of their admissibility at criminal trials.

In Hoffman-Vaile, 

Dr. Marsha Lynn Hoffman-Vaile [wa]s a dermatologist who practiced in Florida and regularly sought reimbursement from Medicare for surgical procedures she performed on her patients. Dr. Hoffman-Vaile submitted her Medicare claims to First Coast Service Options, a private contractor that administers the Medicare program in Florida. First Coast reviewed the claims prepared by Dr. Hoffman-Vaile and approved payments to her based on the Current Procedural Terminology Code that she identified on each claim. First Coast regularly reviewed claims submitted by physicians and code usage to detect unusual diagnosis patterns or statistical anomalies that might suggest fraudulent billing.

First Coast eventually flagged potentially fraudulent billing by Dr. Hoffman-Vaille, and she was later convicted of 44 counts of health care fraud, 44 counts of filing false claims, and one count of obstruction of justice. Those convictions were secured in part through the prosecution's introduction into evidence of reports prepared by First Coast in the processing and reviewing of Medicare claims by Dr. Hoffman-Vaille. At trial, Dr. Hoffman-Vaile did not object to the admission of these reports, which the district court deemed admissible under Federal Rule of Evidence 803(6), which provides an exception to the rule against hearsay for

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, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

After she was convicted, however, Dr. Hoffman-Vaile appealed, claiming, inter alia, that the reports actually fell under Federal Rule of Evidence 803(8), which provides an exception to the rule against hearsay for 

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Specifically, Dr. Hoffman-Vaile claimed that these records fell under Federal Rule of Evidence 803(8)(B), which meant that they should have been inadmissible at her criminal trial. According to the Eleventh Circuit, however, the (main) problem for the doctor was that she did not object to the admission of the records at trial, which meant that it could only reverse for plain error under Federal Rule of Evidence 103(d). And, according to the court,

[a]ny error in the admission of the reports was not plain. First Coast is a private administrator that processes and reviews claims for Medicare, and Dr. Hoffman-Vaile cites no controlling authority about the reports of a similar private entity.

I agree with the Eleventh CIrcuit that there was no plain error by the district court, but I wonder what result the court would have reached if Dr. Hoffman-Vaile preserved the issue for appeal. My inclination is to guess that the records of a private administrator that processes and reviews claims for Medicare do not qualify as public records, but I am not aware of much case law on the issue of whether records are public or private.

-CM

In The Impala: Court Allows Defendant To Introduce Reverse 404(b) Evidence In Drug Possession Trial

In relevant part, Federal Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Usually, a prosecutor seeks to introduce Rule 404(b) evidence to prove that a criminal defendant committed the subject crime, but sometimes a defendant seeks to introduce so-called reverse-Rule 404(b) evidence to prove that somebody else committed the subject crime. In its recent opinion in United States v. Duran-Moreno, 2009 WL 1290010 (D.N.M. 2009), the United States District Court for the District of New Mexico addressed this latter scenario.

In Duran-Moreno, Ricardo Duran-Moreno was charged with possession with intent to distribute 500 or more grams of methamphetamine and possession with intent to distribute cocaine. Duran-Moreno was charged after large amounts of methamphetamine and cocaine were found hidden in the bumper of his Impala.The prior owner of that Impala was Santos Salazar, who had previously been convicted of possessing with intent to deliver methamphetamine in 2008. The State, knowing this fact, believed that Duran-Moreno would try to introduce evidence of Salazar's conviction to prove that the drugs found in the Impala belonged to Salazar and not him; consequently, it moved to preclude Duran-Moreno from introducing evidence of the conviction.

The United States District Court for the District of New Mexico disagreed, noting that most courts have allowed criminal defendants to introduce so-called reverse-Rule 404(b) evidence. Indeed, the court noted that just last year it had admitted such evidence in United States v. Moreau, 2008 WL 2229467 (D.N.M. 2008). Of course, the court noted that Duran-Moreno could not simply introduce Salazar's conviction as propensity character evidence, but it found that he could use the conviction to show Salazar had the intent, opportunity, ability, and know-how to place the drugs in the Impala-...a permissible purpose under rule 404(b). Indeed, the court noted that the Tenth Circuit has suggested, but not yet specifically held, that courts should more readily find reverse-Rule 404(b) evidence admissible than regular Rule 404(b) evidence because of the absence of the fear of an innocent man being convicted. 

-CM

Submission Guide for Online Law Review Supplements Now Available On SSRN

In the beginning of March, a colleague, knowing that I had published two pieces in online law review supplements (here and here), asked if I had a list of online law review supplements because she was interested in possibily writing a piece for one of them. In writing my prior pieces, I actually had created a list of sorts and sent it to her. At the time, though, I realized that she would not be able to submit her proposed original piece to some of these supplements because they only accepted responses to pieces published in their print law reviews. I thus decided it would be useful to create a submission guide for online law review supplements similar to the one that Allen Rostron and Nancy Levit created for traditional law reviews, which would contain information about the types of pieces accepted, submission information, and submission format.

I started by creating a rough draft of a submission guide from information culled from each online supplement's website and then sent that draft to the editors of each journal for additions, deletions, and revisions. The product of that work is the Submission Guide for Online Law Review Supplements, available for download for free from SSRN. The Guide will be updated an an annual basis and as law reviews created new online supplements. Indeed, since the start of this project, two law review have created new online supplements -- Cardozo Law Review's de∙novo and Minnesota Law Review's Headnotes -- so I expect updates to the Guide to be fairly frequent (Mitchell Rubinstein over at Adjunct Law Prof Blog also posted a list of  online law review supplements, which includes some speciality journals not included in my Guide, which only covers general online law reviews). Of course, if any reader is aware of any new online supplements or supplements I missed, please let me know.

-CM

Competent Opinion: Supreme Court Of Ohio Removes Requirement From Rule 807 In Memorial Day Case

Ohio Rule of Evidence 807 provides an exception to the rule against hearsay for

An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child is not excluded as hearsay under Evid. R. 802 if...[,inter alia,]...the following apply:

(1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to Evid. R. 803 and 804.... 

(2) The child's testimony is not reasonably obtainable by the proponent of the statement.

(3) There is independent proof of the sexual act or act of physical violence.

In State v. Said, 644 N.E.2d 337 (Ohio 1994), the Supreme Court of Ohio added a requirement to Ohio Rule of Evidence 807: the requirement that the child declarant be evaluated at a competency hearing to determine whether the child was "competent" at the time that he made the out-of-court statement. In State v. Silverman, 2009 WL 961431 (Ohio 2009), the Court removed this requirement.

In Silverman, 

During Memorial Day weekend in 2006, appellant Doron Silverman and his family visited his parents and sister Batya Silverman in Indianapolis. After dinner, Batya went back to her apartment with Silverman's four-year-old son, M.S., who stayed the night with her.

Batya and M.S. spent the next day at the apartment complex's swimming pool. After going back to her apartment, Batya decided to bathe M.S. to wash off the chlorine from the pool. Batya, whom M.S. called "Poti," was undressing M.S. when he pulled on his penis, pointed to it, and said to her, "Poti, put your mouth on it."

Batya was shocked by this statement because it was the first time M.S. had ever said anything like that to her. She asked her boyfriend, Joe Farber, to come in and hear what M.S. had said. Farber first asked M.S., to no avail, why he said that to Batya. He then questioned M.S. whether he had ever seen that in a movie; M.S. answered no. M.S. also said no when Farber inquired whether he had ever seen his parents do that. Finally, when Farber asked where M.S. learned it, M.S. responded, "Daddy did it. No more talk." With that, Batya and Farber decided not to pressure M.S. any more at that time, and they finished up the bath.

Silverman and his wife came over to Batya's that night, but M.S.'s earlier comment was not mentioned. M.S. again stayed the night at Batya's, and the next day Farber and Batya asked M.S. if he remembered what he had told them in the bathroom the previous day. M.S. said that he did, and they asked M.S. again if he had learned it from watching a movie or his parents, to which M.S. replied that daddy had done it. When asked if he did it to his father too, M.S. said yes. Batya explored this line of questioning, and when she asked M.S. if he had kissed his father's penis, he answered, "No, I lick it." M.S. further indicated that Silverman was the only person who did this to him, that it was a secret, and that he did not want to talk any more because he would get in trouble. By the end of the conversation, M.S., who had been coloring, was stabbing the paper with his pen and shaking his clenched fists.

After a police investigation, Silverman was charged with rape and gross sexual imposition. Before trial, however, Silverman's wife set fire to the couple's residence, with M.S. dying in the fire. During trial, witnesses testified concerning M.S.'s aforementioned statements, which the trial court deemed admissible under Ohio Rule of Evidence 807. Silverman was eventually convicted of gross sexual imposition and appealed, claiming, inter alia, that M.S.'s statements were inadmissible under Ohio Rule of Evidence 807 because M.S. was not evaluated at a competency hearing to determine whether he was competent at the time that he made his out-of-court statements.

In addressing Silverman's appeal, the Supreme Court of Ohio noted its prior holding Said that a child declarant must be evaluated at a competency hearing before his out-of-court statements can be admitted under Ohio Rule of Evidence 807. But upon reconsideration, the Court found the dissenting opinion in that case more persuasive. That dissent had

recognized that "[t]he effect of instituting the majority's position * * * will be to preclude the admission of otherwise qualified out-of-court statements into evidence. For example, in those situations where the abused victim falls into a coma or dies at some point after making statements to a parent or therapist concerning the source of his or her abuse, the statements would not be admissible, given the child's inability to attend a competency hearing. That result surely defeats the obvious purpose for which Evid. R. 807 was adopted.”

In Silverman, the Supreme Court of Ohio now agreed with this dissenting opinion and repudiated the majority opinion, concluding:

We now hold that the better approach is to return to the plain text of Evid. R. 807. The rule says absolutely nothing about a child declarant's competence. Despite the fact that the text of the rule lacks this requirement, Said imposed a judicially created rule that contravenes both the language and intent of Evid. R. 807.

-CM

  

State v. Silverman
--- N.E.2d ----, 2009 WL 961431
Ohio,2009.

http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1576.pdf

Broken Record? Court Of Appeals Of North Carolina Finds Tape Recorded Statements Can Be Admissible Under Rule 803(5)

Like its federal counterpart, North Carolina Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.

It seems clear that this Rule covers something written by a witness, but does it also cover a tape recorded statement by a witness? That was the question recently presented to the Court of Appeals of North Carolina in State v. Wilson, 2009 1373205 (N.C.App. 2009).

In Wilson, David Reed Wilson was convicted of first-degree murder in large part based upon the testimony of Raymond Morgan. According to Wilson, however, that testimony was inconsistent with statements that Morgan made to Tecolia Daughtridge. The problem for Wilson at trial, however, was that when he called Daughtridge, she claimed that she had no recollection of any statements Morgan made to her regarding the murder. 

At this point, Wilson sought to introduce a tape recorded statement that Daughtridge made to Detective Terry Green, in which she recounted what Morgan had told her. When Wilson's attorney asked Daughtride whether she remembered making the statement to Detective Green, she testified that he did not recall making a statement to police. Thereafter, when Daughtridge was asked about whether she fabricated any statement made to the police, she responded:

I didn't say I made anything up and you're not going to get me to say I made nothing up. My mental state and my physical health as far as my head, I'm liable to say anything. So, I'm not really-me sitting up here, anything I say is not going to be credible because really my mental state, I'm liable to say anything....

I'm liable to say anything. Truthfully. I'm a patient at Mental Health. I'm liable to say anything.

Over Wilson's objection, the trial judge ruled that this recording was inadmissible, and Wilson was subsequently convicted. He later appealed to the Court of Appeals of North Carolina, claiming, inter alia, that the recording was admissible as a recorded recollection under North Carolina Rule of Evidence 803(5).

Initially, that court noted that it had found no North Carolina precedent interpreting the language "memorandum or record" in N.C.R. Evid. 803(5) as encompassing a tape recorded statement. The court, however, found no North Carolina precedent interpreting "memorandum or record" as not encompassing a tape recorded statement. Instead, it cited Brandis & Broun on North Carolina Evidence § 224 at 201 (6th ed.2004) for the proposition that

Though most of the cases speak of a “writing,” it seems that a tape or similar recording should equally qualify. Indeed, if the witness dictated the recording and testifies that she then knew her dictation to be accurate and identified her voice, the probability of trustworthiness is higher than in the situations [involving written recordings by a third party].

The court then concluded: We agree and hold that an audio recording can be admissible as a “record” under Rule 803(5). 

Wilson, however, had another problem. As noted, Rule 803(5) only allows for the admission of a recorded recollection "shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly." And as noted, Daughtridge claimed that she did not recall making a statement to police and indicated that if she made a statement to police, it wasn't likely to be reliable. Thus, the court found that Daughtridge's tape recorded statement was not admissible and affirmed his conviction.

Ignoring this final part of the court's opinion, however, we are still left with the question of whether tape recorded statements should generally qualify as recorded recollections under Rule 803(5). I generally agree with the Court of Appeals of North Carolina on this point, but with one qualification. Like its federal counterpart, North Carolina Rule of Evidence 803(5) has a last sentence that the court did not mention. This sentence provides: "If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party."

In other words, if Daughtridge had written what Morgan had told her, and that writing qualified as a recorded recollection, the jury would not have seen the writing; instead, Daughtridge would have simply read it to the jury. I think that the same principle should have applied if Daughtridge's tape recorded statement qualified as a recorded recollection. In this case, the recording should not have been played for the jury; instead, a transcript of the recording should have been made, with Daughtride reading the transcript to the jury.

-CM

d

Can You Search Me Now?: Court Upholds Search Of Cell Phone Incident To A Lawful Arrest

A man is arrested. Pursuant to the Supreme Court's opinion in United States v. Robinson, 414 U.S. 218 (1973), "[a] full search of the person, his effects, and the area within his immediate reach at the time of a lawful custodial arrest may be conducted without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested." As part of a valid search incident to a lawful arrest, however, can an arresting officer search the contents of the arrestee's cell phone, and if so, how thorough can that search be? Those were the questions posed to the United States District Court for the District of Massachusetts in United States v. Wurie, 2009 WL 1176946 (D.Mass. 2009).

In Wurie, Brima Wurie was arrested on September 5, 2007, on suspicion of selling a small quantity of drugs and transported to the Area C-6 station in South Boston. Thereafter,

Approximately 5 to 10 minutes after Wurie was brought to the station, Officers Kevin Jones and Robert England, members of the C-6 Drug Control Unit, examined one of the cell phones seized from Wurie. They observed numerous calls logged on the caller ID screen from “my house.” When the phone rang, the officers flipped it open, activating the backlight. They observed a “wallpaper” photo of a young black female holding a baby. They also saw that the “my house” calls originated from “617-315-7384.” Officer Jones, using a police computer, typed the number into the website “AnyWho” (www.anywho.com). The number was listed to “Manny Cristal” at 315 Silver Street in Boston. The officers did not answer the call or access any other information stored in the phone.

Eventually, after gathering other evidence, officers were able to secure a search warrant for the apartment at 315 Silver Street and, while executing it, recovered, inter alia, 215 grams of crack cocaine, a Smith & Wesson .9 millimeter firearm loaded with five rounds of ammunition, six loose rounds of .40 caliber hollow point ammunition, four plastic bags of marijuana, drug paraphernalia, and $250 in cash. Wurie was thereafter charged with  (i) felony possession of a firearm and ammunition; (ii) distribution of cocaine base within 1000 feet of a school; and (iii) possession of crack cocaine with intent to distribute. England thereafter moved to suppress the evidence obtained based upon the information retrieved from his cell phone.

In addressing that motion, the court first noted what type of search the officers did not conduct. According to the court, the search of the cell phone was not a "second evidentiary look" at an item taken during an arrest inventory, which would have made the search unquestionably constitutional. Instead, the search of the cell phone was a search incident to a lawful arrest when Wurie arrived at the place of detention under United States v. Edwards, 415 U.S. 800, 803 (1974), or a booking search incident to a lawful arrest under United States v. Lafayette, 414 U.S. 640, 648 (1983).

The court noted, however, that "[n]either the Supreme Court nor the First Circuit has directly considered the issue of whether a search incident to arrest may include a search of a cell phone's contents, and if it does, how thorough the search might be." The court did not really need to address this latter question because it found that the search of Wurie's cell phone was "limited and reasonable." Meanwhile, in support of its conclusion that searches of cell phones incident to lawful arrests are proper as a general proposition, the court put forth an impressive string cite of opinions from across the country upholding such searches or similar searches. According to the court, "[d]ecisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager technology) trend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones":

See United States v. Mercado-Nava, 486 F.Supp.2d 1271, 1277 (D.Kan.2007) (the same exceptions apply to warrantless searches of cell phones under the Electronic Communications Privacy Act as any other warrantless search.); United States v. Deans, 549 F.Supp.2d 1085, 1094 (D.Minn.2008) (agreeing with the Fifth Circuit that, “if a cell phone is lawfully seized, officers may also search any data electronically stored in the device.”); United States v. Valdez, 2008 WL 360548, at *3 (E.D.Wis. Feb.8, 2008) (search of defendant's phone was contemporaneous with his arrest and the officer was reasonably concerned that if he delayed, the information on the phone would be lost); United States v. Lottie, 2008 WL 150046, at *3 (N.D.Ind. Jan.14, 2008) (warrantless search of a cell phone justified by exigent circumstances); United States v. Dennis, 2007 WL 3400500, at *7 (E.D.Ky. Nov.13, 2007) (search of a cell phone incident to valid arrest no different from the search of any other type of evidence seized incident to arrest); United States v. Parada, 289 F.Supp.2d 1291, 1304 (D.Kan.2003) (phone seized incident to valid arrest; exigent circumstances justified accessing cell phone's call records because continuing incoming calls would overwrite memory and destroy evidence); Cf. United States v. Morales-Ortiz, 376 F.Supp.2d 1131 (D.N.M.2004) (otherwise unlawful search of cell phone's memory for names and numbers was justified under the inevitable discovery doctrine); United States v. James, 2008 WL 1925032 (E.D.Mo. April 29, 2008) (“[T]he automobile exception allows the search of the cell phone just as it allows a search of other closed containers found in vehicles.”).^FN9 See also United States v. Reyes, 922 F.Supp. 818, 834 (S.D.N.Y.1996) (warrantless searches of the stored memory of two pagers justified (i) as incident to arrest and (ii) by general consent); United States v. Chan, 830 F.Supp. 531, 535-536 (N.D.Cal.1993) (warrantless search of pager memory comparable to a search of container contents; search was not so remote in time to invalidate it as a search incident to arrest); United States v. Diaz-Lizaraza, 981 F.2d 1216, 1223 (11th Cir.1993) (agents reasonably activated defendant's pager to confirm its number). Cf. United States v. Thomas, 114 F.3d 403, 404 n. 2 (3d Cir.1997) (noting in dicta that the retrieval of a phone number from a pager found on defendant was a valid search incident to arrest).

I agree with the United States District Court for the District of Massachusetts. As that court went on to note, courts have routinely allowed officers to search personal items found on arrestees such as wallets, purses, and luggage. Because there is "no principled basis for distinguishing a warrantless search of a cell phone from the search of [these] other types of personal containers found on a defendant's person," the court's conclusion was correct. The question of the proper scope of the search of a cell phone incident to a lawful arrest is a tougher question and one that I suspect will divide courts in the years to come.

-CM

In Treatment: Court Of Appeals Of Texas Finds Trial Court Properly Allowed For The Admission Of Child's Statements To Doctor Concerning Sexual Assault By His Father

Like its federal counterpart, Texas Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

The basis for this exception is that a patient would not lie to his doctor for fear of mistreatment and/or misdiagnosis. And the exception typically only allows for the admission of those portions of a patient's statements describing the "general character of the cause or external source" of his injury or illness and does not allow for the admissions of those portions describing the identity of the person causing the injury or illness, if applicable. But what if the patient is a child? Does the child understand the consequences of lying to a doctor, making his statements sufficiently reliable? And if the source of a child patient's injuries is his parent, is a statement of identification reasonably pertinent to diagnosis or treatment, making statements of identification admissible? These were the questions that the Court of Appeals of Texas recently addressed in Weeks v. State, 2009 WL 1325461 (Tex.App.-Hous. [14th Dist.] 2009).

In Weeks, James Richard Weeks appealed from his conviction on two counts of aggravated sexual assault of a child. Weeks was convicted in part based upon the testimony of Dr. Reena Isaac, who treated Weeks' six year-old  son, whom Weeks allegedly sexually assaulted. According to Dr. Isaac, when she asked the son why he was there, he replied “[b]ecause my dad did something bad to me." The trial court found that Dr. Isaac could render this testimony because the son's statements constituted statements made for purposes of medical treatment or diagnosis under Texas Rule of Evidence 803(4). After he was convicted, Weeks appealed, claiming that this ruling was erroneous.

Weeks' first argument on this front was that his son was too young to understand the consequences of lying to Dr. Isaac, making his statements unreliable and not qualified for admission under Texas Rule of Evidence 803(4). The court disagreed, noting that in Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991), the Court of Apeals of Texas found that a four year-old child appreciated the need for veracity when she made statements identifying her abuser to a pediatrician. Based upon this precedent, the court in Weeks concluded:  "We disagree with appellant's argument that the complainant, who was six years old at the time of evaluation, could not have appreciated the need to be truthful because of his youth."  

Weeks' second argument on this front was that his son's statement identifying him as his assailant was inadmissible because generally Texas Rule of Evidence 803(4) only allows for the admission those portions of a patient's statements describing the "general character of the cause or external source" of his injury or illness and does not allow for the admissions of those portions describing the identity of the person causing the injury or illness, if applicable. However, relying upon Fleming as well as its prior opinion in Bargas v. State, the court found that "[a] child sexual assault complainant's statement identifying his or her abuser is admissible under Rule 803(4) and pertinent to medical treatment because the treatment of child abuse includes removing the child from the abusive setting." The court thus affirmed Weeks conviction, and in my opinion, it did so correctly.

-CM 

Does Child Pornography=Child Molestation?: Military Court Finds Child Pornography Evidence Was Properly Admitted As Character Evidence

Similar to its counterpart in the Federal Rules of Evidence, Military Rule of Evidence 414 provides that 

[i]n a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused's commission of one or more offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.

So, what if the government has evidence that a defendant on trial for indecent acts with a child and related crimes was (apparently) in possession of child pornography? Is such possession an offense of child molestation, rendering it admissible under Rule 414? That was the conclusion reached by the U.S. Navy Marine Corps Court of Criminal Appeals in its recent opinion in United States v. Yammine, 2009 WL 1315352 (N.M.Ct.Crim.App. 2009).

In Yammine, Rob B. Yammine was convicted by a general court-martial, composed of officer and enlisted members, of larceny, sodomy with a child who had attained the age of 12 but was under the age of 16, and indecent acts with a child. A portion of the government's evidence at trial involved the contents of Yammine's laptop computer. An examination by an expert from the Defense Computer Forensics Laboratory revealed that Yammine's name was listed as the only user profile found on the computer, which contained three types of evidence: 

file names of purported images of child and adult pornography (“file name evidence”); a movie frame image associated with file name “boy.kiddy.pedo.DX17[1].mpeg” that purported to depict two subjects engaged in intercourse (“movie frame evidence”); and remnants of approximately 4,000 internet searches using the term “Lolita,” which the DCFL expert testified is a commonly known search term for pedophiliac subjects (“internet search evidence”). Id. at 280, 732; Prosecution Exhibit 5 at 10. The expert testified that the “file name evidence” was located in a folder connected to a program called “Kazaa,” which is used to share files over the internet. The images related to the file names had been downloaded in November 2004, but were subsequently deleted from the computer's hard drive and the hard drive was defragged. Id. at 276-80. The “file name evidence” discovered by the DCFL expert included the following:

(1) boy.kiddy.pedo.DX17[1].mpeg

(2) C:/Program Files/Kazaa/My Shared Folder/10 y teen boys sex (1).jpg

(3) C:/Program Files/Kazaa/My Shared Folder/pedo preteen boy little boy get (1).jpg

(4) C:/Program Files/Kazaa/My Shared Folder/gay teen-skinny boy sucked.jpg

(5) C:/Program Files/Kazaa/My Shared Folder/pedo preteen boy little boy gets sucked.jpg

(6) C:/Program Files/Kazaa/My Shared Folder/pedo preteen boy boner ... mal19-72.jpg

(7) C:/Program Files/Kazaa/My Shared Folder/2 Boys-Teen Boy Fucking Preteen-B 26W.jpg

(8) C:/Program Files/Kazaa/My Shared Folder/PEDO-Boy Fun Series 1.jpg

(9) C:*Documents and Settings*Rob Yammine*Incomplete*T-1202102-UNDERAGED BOY FUCKED BY JUDGES R@YGOLD (7) child porn sex underage illegal incest lolita preteen !Y! incest zYz young KIDDY DAD nude French illegal pee forced violated.wmv

(10) C:*Documents and Settings*Rob Yammine*Incomplete*T-51175444-11 yr yng Lolita riding dad (preteen incest kiddy rape)(1)(2)(1).mpeg

(11) C:*Documents and Settings*Rob Yammine*Incomplete*T-80618-2_fuck dicks young sex teen ass boy blondes preteen cum gay cock teens little bareback boys(1).jpg

(12) C:*Documents and Settings*Rob Yammine*Incomplete*T-5385287-sex pjk rbv maria kdv nudists.mov

(13) Fucking very fast in the ass by three (illegal_preteen_underage_lo lita_ kiddy_child_incest_xxx_porno_gay_fuck_ young_naked_nude_little_g .mpeg

In other words, these were pretty disturbing files and also, according to both the military judge and the U.S. Navy Marine Corps Court of Criminal Appeals, admissible under Military Rule of Evidence 414, for the most part. According to the Court of Criminal Appeals, there were two reasons why evidence of this apparent child pornography was admissible against Yammine. First, "the possession or attempted possession of child pornography...constitutes 'an offense of child molestation' as it involves 'deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain of a child' under MIL. R. EVID. 414(d)(5)." Indeed, the court noted that in United States v. Seymour, 468 F.3d 378, 385 (6th Cir. 2006), the Sixth Circuit reached the same conclusion under .Federal Rule of Evidence 414(d)(5).

Second, the court found "that possession, or attempted possession, of child pornography also qualifies as an 'offense of child molestation' under MIL. R. EVID. 414(d)(2) and (g)(5) as 'sexually explicit conduct with children...proscribed by...Federal law because it involves the 'lascivious exhibition of the genitals or pubic area of any person.'"

The court did find that file (10) should have been deemed inadmissible because Yammie's was charged with acts against a young male and that file (12) should have been deemed inadmissible because it did not clearly consist of child pornography, but it found that both of these errors were harmless. But, overall, the court found that possession of child pornography qualifies for admission under Rule 414, and I think that most courts would agree.

-CM

The Bloodhound Gang, Take 2: Supreme Court Of South Carolina Tweaks Test For Admissibility Of Bloodhound Tracking Evidence

Back in February, I wrote a post about how "courts generally admit evidence that bloodhounds tracked down a defendant if the prosecution can establish" certain elements. As support for this proposition, I cited to the opinion of the Court of Appeals of South Carolina in State v. White, 642 S.E.2d 607, 614 (S.C.App. 2007), in which the court found that evidence that bloodhounds tracked down a defendant is admissible if the prosecution can establish that the bloodhounds

(1)...are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination; (2)...possess these qualities, and have been accustomed and trained to pursue the human track; (3)...have been found by experience reliable in such pursuit; [and] (4)...were put on the trail of the guilty party, which was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification.

The Court of Appeals of South Carolina in White found the prosecution established these four elements and thus affirmed the defendant's conviction, prompting his appeal to the Supreme Court of South Carolina which affirmed but did so only after tweaking the above test in State v. White, 2009 WL 1108881 (S.C. 2009).

In White, Gary White and Anthony Morris allegedly robbed a convenience store, and its manager, Gwen Anthony, in Columbia South Carolina (with Roy Wiggins driving the getaway car). As White and Morris were exiting the convenience store, Officer Rouppasong of the Columbia Police Department coincedentally pulled into the store parking lot on a routine break.

Upon his arrival on the scene, Officer Rouppasong saw two people: Anthony, waving and flagging him down and another person running away from the store. Rouppasong described the man he saw running as a black male, wearing a white t-shirt and dark colored pants, holding or carrying something in one of his hands. Rouppasong remained in his vehicle and followed White. As he followed him around the corner of the store, Rouppasong saw a car parked on the street. Rouppasong saw a black male (later identified as White) exit the car on the passenger side and flee. Rouppasong did not give chase; instead, he stayed with the vehicle and Wiggins. Officer Gunter, with the K9 unit, was called to the scene to search for the suspect.

Officer Gunter arrived on the scene approximately thirty minutes after the robbery. Once there, Rouppasong relayed the necessary information that allowed Gunter to know where to initiate the track. Gunter and his tracking dog, Aurie, began tracking and soon found White nearby sleeping next to some bushes, gun in hand. Rouppasong testified that the man he saw lying by the bushes, asleep, was the same man he saw exiting the store and fleeing the crime scene. There were two other in-court eyewitness identifications of White. Wiggins testified that White left his car with a gun, returned to his car a short time later, and then fled when police arrived. The second identification came from Morris.

Based upon these identifications and evidence indicating that Aurie tracked down White, White was convicted of armed robbery, leading to his aforementioned unsuccessful appeal to the Court of Appeals of South Carolina. White then appealed to the Supreme Court of South Carolina, which agreed with the court below, but only after applying a six element test rather than a four element test. Specifically, according to the South Carolina Supremes, a sufficient foundation for the admission of dogtracking evidence is established if 

(1) the evidence shows the dog handler satisfies the qualifications of an expert under Rule 702; (2) the evidence shows the dog is of a breed characterized by an acute power of scent; (3) the dog has been trained to follow a trail by scent; (4) by experience the dog is found to be reliable; (5) the dog was placed on the trail where the suspect was known to have been within a reasonable time; and (6) the trail was not otherwise contaminated.

The court found that these six elements were satisfied and thus affirmed.

-CM

Plain Truth: Court Of Appeals Of Minnesota Fails To Conduct Plain Error Review Of Business Records Ruling

In relevant part, Federal Rule of Evidence 803(6) provides a exception to the rule against hearsay for 

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, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Thus, before a business record/report may be admitted under Rule 803(6), the proponent must have a custodian or other qualified witness testify that the record/report satisfies all of the elements of the Rule. Ostensibly, the prosecution failed to present such a witness in State v. Forbes, 2009 WL 1181914 (Minn.App. 2009), but, based upon the defendant's failure to object, the Court of Appeals of Minnesota concluded that he had waived the issue on appeal. I disagree.

In Forbes, after allegedly throwing a rock through his neighbor's window, Derrick Lamont Forbes was charged with third-degree criminal damage to property. The charged offense was committed on September 2, 2007, and effective August 1, 2007, the legislature raised the damages range for third-degree criminal damage to property from $250-$500 to $500-$1,000. At trial, "the state offered only one piece of evidence, Exhibit 9, to prove the value of the damage to the window." Exhibit 9 was a written estimate that the neighbor's friend obtained from a glass service company; the report indicated that it would cost $843.75 to replace the window. The estimate, however, was introduced through the testimony of a police sergeant; neither the neighbor's friend nor anyone from the glass service company testified at trial.

Forbes was subsequently convicted and appealed, alleging, inter alia, that Exhibit 9 was improperly admitted and that the district court erred in instructing the jury. According to the Court of Appeals of Minnesota, the problem with Forbes' first argument was that he did not object to the admission of Exhibit 9 at trial. According to the court,

“Evidentiary rulings are committed to the trial court's discretion and will not be reversed absent a clear abuse of discretion....” But appellant did not object to the admission of the estimate at trial....While this court may review error not objected to at trial under a plain-error standard,...the rule that failure to object to the admissibility of evidence waives the right to an appeal has an important purpose:

The purpose is simply to require objection to evidence offered at the trial to be made at the time so clearly that the objection may be obviated or if not, then the testimony excluded, without the cumbersome necessity of a new trial. If a new trial is...granted because of the reception of...evidence it will mean that objection to evidence may be made for the first time in [a reviewing] court. The vice of this rule is apparent and far-reaching. The adoption of such a rule will mean that an attorney for the defendant may sit back and permit the reception of any evidence offered, assured that if incompetent evidence gets into the case, [a reviewing court] will set aside any adverse verdict. It will mean that if a verdict of guilty is to stand, the court and county attorney must try the defendant's case. Any such rule is wrong in principle....Objections which counsel do not see fit to urge should be deemed waived....

Accordingly, we decline to address on appeal whether Exhibit 9 was inadmissible hearsay.

Did I miss something? If Forbes objected, the court would have reviewed for abuse of discretion; because he did not, the court was supposed to review for plain error, but it didn't. Instead, it declined to address the admissibility of Exhibit 9 on appeal. And this was despite the fact that the exhibit was the only evidence of the value of the damage to the window and despite the fact that it was clear that it was not introduced through a qualified witness.

The only thing that I can think is that the Court of Appeals of Minnesota declined to address the issue because it found that Forbes' second argument was sufficient to reverse the verdict against him. As noted, the charged offense was committed on September 2, 2007, and effective August 1, 2007, the legislature raised the damages range for third-degree criminal damage to property from $250-$500 to $500-$1,000. The problem is that the district court did not update its jury instruction; instead, the jury was instructed to find only whether the damage appellant caused reduced the value of the window by more than $250.

Forbes didn't object to this jury instruction either, but the Court of Appeals of Minnesota did find plain error in this jury instruction and thus reversed. Therefore, it didn't matter what the court found with regard to Exhibit 9, but if the court found plain error with regard to the jury instruction, why didn't it find plain error with regard to Exhibit 9? 

-CM

The Text-Message Mistrial: Judge Declares Mistrial After Witness Receives Text-Messages While On The Witness Stand

Back in March, I did a post about jurors improperly exchanging e-mails during trial and deliberations and concluded: "I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point."  Later that month, I did a post about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing. A recent case from Miami presented a slightly different problem: A witness engaging in text-messaging while he was on the witness stand.

The trial at issue involved Sky Development accusing Vistaview Development of fraudulently misrepresenting the number of two-bedroom units in the 308-unit Vistaview apartment complex. While Sky Development's chief operating officer Gavin Sussman was on the witness stand, Judge Scott Silverman spoke with attorneys for both sides during a sidebar conference. This conference gave Sky Development chief executive Yizhak Toledano Sussman the opportunity to text Sussman:

One message from Toledano to Sussman said: "We never filed a lawsuit against seller. These people developed the site 40 years ago, in 40 years and know every corner." It wasn't clear from a transcript who sent the second text saying, "We maybe got this document after Sept. 7 when the bank discovered the problem."  

A courtroom spectator noticed the texting and alerted defense counsel. Judge Silverman thereafter questioned Sussman about the texting, and Sussman admitted what he had done. Then, upon defense counsel's motion, the judge declared a mistrial because "[a] basic trial rule prevents people on the witness stand from communicating with anyone about their testimony during recesses or other breaks."  

Before declaring that mistrial, however, the judge laid into Toledano in a heated exchange:

"Let me be really frank about this," the judge said. "I never had this happen before. This is completely outrageous, absolutely outrageous."

Toledano responded, "It was on a break."

Silverman shot back: "It doesn't matter. You are communicating about the case and the subject matter of the case with a witness who is currently under oath and before the jury,"

Toledano said, "I'm sorry, after we took the break, it's not in the middle."

The judge explained himself again.

"It's a problem on your communicating with the witness about his testimony whether it's before the break, after the break and during the break while he's testifying," he said. "This is outrageous."

Unfortunately, while this was the first time that Judge Silverman had seen such behavior, I'm sure that it won't be the last time he sees it. The question is what courts can do to prevent the Google mistrial, the twitter mistrial, and now the text-message mistrial. 

(Hat tip to Marilyn Thomas for the link)

-CM

Under Construction: Ninth Circuit Resolves Interplay Between Rules Of Evidence 608 And 609

Federal Rule of Evidence 609 allows for witnesses to be impeached through evidence of their prior convictions. Meanwhile, Federal Rule of Evidence 608(b) provides in relevant part that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

So, how do these two Rules work together? Does the above cited language from Rule 608(b) mean that evidence relating to a conviction is treated solely under Rule 609? Or does this language indicate that the defendant's actions which led to his conviction can be inquired into on cross-examination and that they can be proven by extrinsic evidence? This was the question presented to the Ninth Circuit in United States v. Osazuwa, 2009 WL 1232107 (9th Cir. 2009).

In Osazuwa, Daniel Osazuwa appealed fro his conviction for assaulting a federal prison guard while he was incarcerated for failing to pay restitution associated with a bank fraud conviction. At trial, Osazuwa had testified in his own defense, leading the prosecution to impeach him through his bank fraud conviction. The prosecution, however, did not stop at merely asking Osazuwa about his conviction, but instead questioned him at length about the dishonest conduct that led to his conviction.

The basis for Osazuwa's appeal was that, under Federal Rule of Evidence 609, "'absent exceptional circumstances, evidence of a prior conviction admitted for impeachment purposes may not include collateral details and circumstances attendant upon the conviction.'" The prosecution countered that it could delve into the dishonest conduct that led to Osazuwa's conviction under Federal Rule of Evidence 608(b). According to the prosecution, "Rule 608 provides only that, while specific instances of the conduct of a witness may not be proved by extrinsic evidence, extrinsic evidence is admissible to prove criminal convictions." Conversely, Osazuwa contended that Rule 608 exempts from its coverage a witness' prior criminal convictions and instead delegates to Rule 609 Rule 609 any questions relating to such convictions."  

And the Ninth Circuit found that "[b]oth Defendant's and the government's constructions [were] plausible." To resolve the dispute, the court thus went to the Advisory Committee's Note to Rule 608, which states that 

"[p]articular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination” and “[c]onviction of crime as a technique of impeachment is treated in detail in Rule 609, and here is merely recognized as an exception to the general rule excluding evidence of specific incidents for impeachment purposes."

The Ninth Circuit found that this language clearly supported Osazuwa's reading of the two Rules and noted that many courts across the country had reached a similar conclusion. The court thus found that the intensive interrogation of Osazuwa was erroneous and reversed his conviction.

-CM

The Cherry On Top Of The Prosecutorial Sundae: Why Improperly Admitted Rule 704 Evidence Will Almost Never Lead To A Reversal

Federal Rule of Evidence 704 provides that

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

After reading the recent opinion of the Fifth Circuit in United States v. Setser, 2009 WL 1299562 (5th Cir. 2009), I made a realization regarding this Rule: Testimony improperly admitted under it will almost never lead to a reversal.

In Setzer, siblings 

Gregory and Deborah Setser...were convicted of involvement in a Ponzi scheme focused on soliciting funds from Christian groups for largely mythical deals involving real estate and retail products. As in a classic Ponzi scheme, as new investments came in (eventually totaling $173 million), some of the new money was used to pay earlier investors. The take-home for the personal use of the Setsers and their co-conspirators was shown to be about $58 million.

After they were convicted, Deborah appealed her sentence and Gregory appealed his conviction. As part of his appeal, Gregory alleged that the district court improperly allowed the court appointed receiver to testify at trial that his operations constituted "security fraud" and a "Ponzi scheme." According to Gregory, these claims were improper legal conclusions under Federal Rule of Evidence 704(a), and the government even conceded that the receiver should not have referred to Gregory's operations as "security fraud." 

Indeed, the district court agreed as well, and after the receiver rendered this testimony, the court gave cautionary instructions "both specifically informing the jury not to draw inferences about Setser's state of mind from the receiver's testimony, and emphasizing that the jury was not bound by the receiver's conclusions and must undertake an independent evaluation of the evidence." (This seems to indicate to me that the district court found the receiver's testimony objectionable under both Federal Rule of Evidence 704(a) and Federal Rule of Evidence 704(b)).

After he was convicted, Gregory claimed that these cautionary instructions were insufficient and that he was entitled to a new trial, but the Fifth Circuit disagreed, finding that "[t]he government's evidence against Setser was considerable, with numerous other witnesses whose testimony could independently have allowed the jury to convict," rendering the admission of the receiver's testimony harmless error. As support, the court cited to two previous Fifth Circuit opinions (which were actually cited by Gregory), which had found that district court errors in admitting evidence under Federal Rule of Evidence 704 were harmless.

This got me thinking that testimony improperly admitted under Federal Rule of Evidence 704 will almost never lead to a reversal. Why? Well, Rule 704 testimony is the cherry on top of the prosecutorial sundae. In other words, the classic case where Rule 704 testimony is admitted involves facts like Setzer: The prosecution has gobs of evidence and testimony overwhelmingly showing the defendant's guilt, but then a prosecution witness crosses the line by putting a bow on top of the package and telling the jury that the defendant committed "fraud." On appeal, the defendant can then point to the trial court's error in admitting this testimonial conclusion, but, based upon the overwhelming evidence supporting that conclusion, the court is almost certainly going to find harmless error and affirm the conviction.

-CM

I Need You To Aid And Abet Me: Court Precludes Jury Impeachment In Aiding And Abetting Appeal

In Hunter v. Felker, 2009 WL 1246691 (N.D. Cal. 2009), David Hunter brought a federal habeas action in the United States District Court for the Northern District of California, seeking relief from his convictions for assault with a firearm and being a felon in possession of a firearm. Hunter, however, ran into a popular obstacle on this blog: Federal Rule of Evidence 606(b). 

In Felker, the chief witness for the prosecution was David Devlin. According to Devlin, "a street-level drug dealer,"

[Hunter] and co-defendant Victor Hernandez called [Devlin] at his girlfriend's residence in San Leandro during the early morning hours of April 10, 2003, and arranged to purchase methamphetamine. They all met at the residence and they moved to the backyard. [Devlin] gave Hernandez a half-ounce bag of methamphetamine to inspect. Hernandez made some comments about the drugs while [Hunter] excused himself to urinate. [Hunter] walked towards a nearby fence. Moments later, [Hunter] returned pointing what appeared to be a semiautomatic pistol at [Devlin], ordering him to hand over his money. [Devlin] instead rushed [Hunter] and wrestled with him. [Hunter] fired his gun twice, missing [Devlin]. While the two continued to wrestle, they moved closer to a gazebo. [Devlin] threw [Hunter] into the gazebo, causing [Hunter] to fall to the ground. [Devlin] got on top of [Hunter] and began hitting him. Hernandez then walked toward them with a handgun and fired once at [Devlin], striking him in the left buttock. [Devlin] let go of [Hunter], who then fled with Hernandez over the fence into a nearby apartment complex.

The only other eyewitness was

14-year-old Eli Mahoney who lived with his mother in the residence where the shooting took place. He recalled hearing an argument, followed by a demand from [Hunter] to "give me your money." Eli Mahoney saw [Hunter] and [Devlin] "punching each other" while Hernandez pulled out a gun and fired it three times at [Devlin]. Eli Mahoney testified he did not see [Hunter] with a gun, although he "wasn't really looking at him."

As noted above, Hunter was convicted of assault with a firearm and being a felon in possession of a firearm, but Hunter was also charged with robbery with the court declaring a mistrial on that count based upon the jury deadlocking. The jury found Hunter guilty under an aiding and abetting theory after the court gave a jury instruction that ended as follows:

You are not required to agree unanimously as to what, as to which originally contemplated crime the defendant aided and abetted so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted in the commission of and [sic] identified and defined target crime, and that crime [sic] assault with a firearm was a natural and probable consequence of the commission of that target crime.

According to Hunter, this last

paragraph improperly failed to require unanimity as to the target offense, and that the deadlock on the robbery charge (which was identified in the first quoted paragraph) left the jury able to find him guilty based on any crime or even noncriminal activity, i.e., he contends he could have been held liable based on an assault with a firearm that was a natural and probable consequence of any unidentified crime or even noncriminal activity.

The court, however, found no problem with this instruction, which led Hunter to seek the evidentiary hearing to prove that, regardless of the propriety of the instruction, jurors convicted him under an impermissible aiding and abetting theory. The problem for Hunter, however, was Federal Rule of Evidence 606(b), which precludes jurors from impeaching their verdicts based upon anything internal to the jury deliberation process, such as misunderstood jury instructions or even misapplications of the law. Therefore, even if the juror misunderstood the instruction or misapplied the law, Hunter could not get relief.

-CM

Caller ID: Supreme Court Of Tennessee Finds That Anonymous Statements Cannot Qualify As Statements Against Interest

Like its federal counterpart, Tennessee Rule of Evidence 804(b)(3) 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. 

But what happens when the statement at issue was made anonymously? That was the question presented to the Supreme Court of Tennessee in State v. Kiser, 2009 1313564 (Tenn. 2009). And, like many other courts, Tennessee's highest court found that anonymous statements cannot qualify as statements against interest for hearsay purposes.

In Kiser, a jury convicted Marlon Duane Kiser, of first degree premeditated murder and two counts of first degree felony murder, all involving the same victim, Hamilton County Deputy Sheriff Donald Bond. What the jury did not hear was the tape recording of anonymous call made to a public defender in which the caller said that he could not let an innocent man go to jail, that the witnesses against Kiser had actually committed the subject crimes, and that he had been pressured to keep his information quiet. Kiser was prepared to have two witnesses testify that the voice on the recording belonged to a man named Mack Heard, but the trial judge precluded their testimony and admission of the recording, finding that it constituted inadmissible hearsay.

After Kiser was convicted, he appealed, claiming, inter alia, that the recording was admissible as a statement against interest under Tennessee Rule of Evidence 804(b)(3), and his appeal eventually reached the Supreme Court of Tennessee. And that court acknowledged that the caller's statements could in one sense be construed as against his penal interest because the caller placed himself at risk for prosecution for the federal crime of misprision of a felony and conspiracy to obstruct justice.

But the problem for Kiser was that Tennessee Supremes noted that most courts had found that anonymous statements cannot constitute statements against interest, including the Court of Criminal Appeals of Tennessee in State v. Wilhoit, 962 S.W.2d 482, 487 (Tenn.Crim.App. 1997), which found that information provided by an anonymous citizen "raises heightened concerns about the reliability of the information" because of the possibility of false reports or reports from vindictive or unreliable informants. 

The court adopted the reasoning of these courts and rejected Kiser's argument that "in this day and age, it is forseeable that one's telephone calls to public agencies would be tape-recorded and captured on caller-ID," finding that

Even if this argument has some merit, we are not persuaded that it changes our analysis. Caller-ID may (or may not) identify the phone number from which a call is being placed; it does not identify who is speaking into the phone, however. And if the caller thinks that his call may be recorded and that his voice may then be subjected to efforts at identification, he may simply attempt to disguise his voice in some manner. He may also be convinced for other reasons that his voice will remain unidentified. In all of these events, the anonymous caller will likely lack the crucial concern that he will be called to answer for his statements: otherwise, he would not take efforts to conceal his identity in the first place. 

The court also found

an additional reason that the anonymous phone call was not admissible as a statement against penal interest. The caller told [the public defender] that he could not let an innocent man go to jail. He also told her that he had been pressured to keep his information quiet. Obviously, he was presenting himself as an ally in the pursuit of justice. As commentators have noted, statements should not be admitted under Rule 804(b)(3) "if the declarant actually believed that he or she was saying something that would be helpful...." In that event, “reliability is questionable and the statement should not be admitted under this hearsay exception."

-CM

I'd Rather Be Fishing: Court Refuses To Allow Jury Impeachment Based Upon Juror Changing Vote To Guilty To Make Annual Fishing Trip

In State v. Miller, 2009 WL 1081745 (Wis.App. 2009), James D. Miller appealed from his conviction for first-degree reckless injury while armed with a dangerous weapon and aggravated battery while armed with a dangerous weapon, alleging, inter alia, juror misconduct. His claim: One of the jurors found him guilty so that he could be dismissed in time for his annual fishing trip. Unfortunately for Miller, the Court of Appeals of Wisconsin didn't take the bait.

At the outset of Miller's trial, the court informed the jury that the trial was expected to last two days. When, at the end of the second day, it became clear that the trial would run long, the court asked jurors if they would be able to return the following day. One juror informed the court that he had planned to leave town the following day at 3:00 p.m. for an annual fishing trip. The court advised the juror that the case would likely be sent to the jury by noon, but the case did not go to the jury until 4:12 p.m. the following day, with the jury returning a guilty verdict at approximately 8:30 that night. As part of his appeal, Miller presented an affidavit alleging that the fishing-trip juror later told an investigator that he switched his vote from "innocent" to "guilty" to end jury deliberations so that he could leave for the trip.

The problem for Miller, however, was that Wisconsin Stat. Section 906.06(2) provides 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 the juror's 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, 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. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received. 

According to the court, the problem for Miller was that he wanted the fishing-trip juror to impeach the verdict based upon the effect of the fishing trip upon his mind or emotions as influencing him to assent to the verdict. This meant that the proposed testimony fell squarely under Wisconsin Stat. Section 906.06(2), making it inadmissible.

Miller tried to get around this conclusion by claiming that the fishing-trip juror's "impending departure for his annual trip, and no doubt the chiding he could expect from his buddies," was an outside influence improperly brought to bear upon the juror. The court, however, "conclude[d] that the scheduled fishing trip, and any criticism the juror might expect to receive from his fishing buddies for missing the trip, was not, as a matter of law, an "outside influence" within the meaning of WIS. STAT. § 906.06(2).

I'm not sure that I agree with this conclusion, but in reviewing this post this morning, I see that the court withdrew its opinion yesterday, so I will have to see what the court now does before reaching any final conclusions.

-CM

13 Going On 30: Illinois Man Becomes Youngest Person In The U.S. To Be Wrongfully Convicted And Exonerated

More than 16 years ago, 13 year old Thaddeus Jimenez was arrested for a street gang murder on Chicago's Northwest side. At the time, the judge sentenced him to 50 years imprisonment, describing Jimenez as a "little punk, probably too young to shave, but old enough to commit a vicious murder." The judge was wrong. On May 1, Jimenez became what his lawyers say is likely to be the youngest person in U.S. history to be wrongfully convicted of a crime and exonerated after Cook County Criminal Court Judge Joseph Claps vacated Jimenez's conviction and released him at the age of 30.

The murder for which Jimenez was convicted happened Feb. 3, 1993, when 19- year-old Eric Morro was gunned down as he walked east in the 3100 block of West Belmont with a 14 year-old friend. Jimenez was identified within hours as the one who fired the gun and was convicted twice of Morro's murder: in 1994 and in 1997. In 2005, attorneys and students from the Northwestern University Center on Wrongful Convictions and attorneys from Katten Muchin Rosenman LLP began to reinvestigate Jimenez's case, and when two key witnesses recanted their statements that Jimenez fired the fatal shot, the group in August 2007 contacted the state's attorney's office, which opened its own investigation.

That investigation led to the arrest of suspected shooter Juan Carlos Torres, and, eventually, Jimenez's exoneration. But this was not the first time that the police, the prosecution, and the court were aware of Torres. Instead, at the time of Jimenez's convictions, "there was substantial evidence" that Torres had committed the murder with which Jimenez was charged. That evidence consisted of Torres' confession to a witness named Ezequiel (and may have also included Torres' tape recorded confession to the crime although I'm not sure when exactly it was recorded) The jury, however, never heard about those confessions at either trial.

Why? Well, let's look at the 1996 opinion of the Appellate Court of Illinois, First District, Fifth Division, in People v. Jimenez, 672 N.E.2d 914 (Ill.App. 1 Dist. 1996), which reversed Jimenez's conviction before Jimenez was convicted again in 1997. That court reversed Jimenez's conviction because "the trial court committed reversible error by refusing to ask prospective jurors whether defendant's gang affiliation would prevent them from giving defendant a fair trial." As part of that appeal, Jimenez also asked the court to deem Ezequiel's confession admissible on remand, but the court disagreed, noting that the confession was hearsay and that the court could not determine whether the confession qualified as a statement against interest.

The court began by laying out Illinois precedent on the statement against interest exception to the rule against hearsay, and, well, it is muddled. Basically, Illinois applies some version of 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.

Exactly what version of this Rule Illinois courts apply is a matter of considerable uncertainty, as I noted in a post last July (The big problem is that Illinois does not have codified rules of evidence, but we're working on it. I just finished a 100 page document comparing each Federal Rule of Evidence to its counterpart in Illinois case law, statutes, etc. for the Supreme Court of Illinois, which is in the process of developing Illinois Rules of Evidence). But what is clear is that Illinois requires some type of corroborating circumstances to allow for the admission of a statement against interest, and that is where Jimenez ran into a problem.

Jimenez actually had a witness named Victor Romo (it's unclear whether he is related to Ezequiel) testify that Torres killed the victim, which the court found provided some corroboration for Torres alleged confession. But the problem for Jimenez was that his

offer of proof provided no details of the confession, except that Torres admitted the shooting. This confession may not incriminate Torres, if he also reported details that make the shooting constitute self-defense. The lack of detail concerning, for example, Torres' appearance, makes impossible the determination of the extent to which the alleged confession corroborates the testimony of the other eyewitnesses. Defendant in the offer of proof also gave no indication of the nature of the relationship between Torres and Ezequiel Romo, and Romo's unspecified questions may deprive the confession of spontaneity.

The court did find, though, that "[o]n remand, defendant may present in full the circumstances surrounding Torres' statements for an evaluation of their trustworthiness." Unfortunately, I haven't been able to track down anything after this opinion to see what Jimenez presented at his subsequent trial, so I can't say whether the judge acted correctly on retrial. 

-CM