EvidenceProf Blog

Ex Post Handcuffs, Take 2: Sixth Circuit Opinion Also Shows Immediate Impact Of Arizona v. Gant

Yesterday, I did a post about the immediate impact of the United States Supreme Court's recent opinion in Arizona v. Gant, 129 S.Ct. 1710 (2009), and its holding that officers cannot search the passenger compartment of an arrestee's vehicle incident to the arrest "after the arrestee has been secured and cannot access the interior of the vehicle." In that post, I cited the Eighth Circuit's opinion in United States v. Hraskey, 2009 WL 1606642 (8th Cir. 2009), as "[t]he first o[pinion] that I have seen at the federal appellate level" striking down such a search in the wake of Arizona v. Gant. Well, after a little more searching, I actually came across the Sixth Circuit's opinion in United States v. Lopez, 2009 WL 1507294 (6th Cir. 2009), which did the same about a week earlier.

In Lopez, 

On September 27, 2006, Kentucky State Police Trooper Tommy Cromer clocked [Juan] Lopez driving 106 miles per hour on I-75 in Rockcastle County, Kentucky. Cromer gave chase and eventually arrested Lopez for reckless driving. After securing Lopez in the back of the patrol car, Cromer searched the passenger area of Lopez's car. Under the driver's seat, Cromer found a brake-shoe box containing 73 grams of crack cocaine, a set of digital scales, and a Glock .40 caliber handgun loaded with ten rounds of ammunition.

Under the way basically all federal courts had interpreted the Supreme Court's opinion(s) in New York v. Belton, 453 U.S. 454 (1981), this search would have been constitutional because they read New York v. Belton as holding that  "the interior of a car is always within the immediate control of an arrestee who has recently been in the car," making it searchable as an incident to the arrestee's lawful arrest.

Of course, that all changed with the Supreme Court's recent opinion in Arizona v. Gant. And indeed, after citing the language Gant included in the introduction to this post, the Sixth Circuit held that

That standard is not met here. Lopez was not within reaching distance of his vehicle's passenger compartment at the time of the search, but was instead handcuffed in the back seat of the patrol car by then. There was no reason to think that the vehicle contained evidence of the offense of arrest, since that offense was reckless driving. The search of Lopez's vehicle, therefore, violated the Fourth Amendment as interpreted in Gant.   

As I noted in my post yesterday, I expect to see many such decisions in the near future, and it will be interesting to see how the police modify their behavior in the wake of Gant.

-CM

Ex Post Handcuffs: Eighth Circuit Opinion Shows Immediate Impact Of Arizona v. Gant

In 1969, the Supreme Court established the boundaries of proper search incident to a lawful arrest in California v. Chimel, 395 U.S. 752 (1969). According to the Court,

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape....And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. 

Okay, so according to Chimel as part of a search incident to a lawful arrest, an officer can search the suspect and the area into which he might reach. But then came the Court's 1981 opinion in New York v. Belton, 453 U.S. 454 (1981).

In Belton, an officer arrested four men in a car on the New York Thruway, split the men onto four separate areas on the Thruway, and then searched the passenger compartment of the car, uncovering drugs. Was the passenger compartment of the car within the reach of the arrestee's? As a practical matter, the answer was clearly, "no," but the Supreme Court's answer was "yes." According to the Court, lower courts had been across the board in determining whether the passenger compartment of an arrestee's car is within his reach, leading to problems both for suspects, and police, who necessarily have to make split second judgments. In response, the Court decided to craft a per se rule, "hold[ing] 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."  

But it actually wasn't the majority's opinion that (really) became the law of the land. Instead, courts glommed on to Justice Brennan's dissenting opinion, which actually disparaged the majority's opinion. 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." Indeed, according to Brennan, the majority's opinion was actually stranger than fiction' he argued that 

Under the approach taken today, the result would presumably be the same even if [the officer] 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.

Courts agreed with Brennan resulting in opinions finding searches incident to lawful arrests constitutional despite it being clear that, as a practical matter, the areas being searched were beyond the reach of the arrestees. Then came this April's opinion in Arizona v. Gant, 129 S.Ct. 1710 (2009). In Gant, the Court recognized that Justice Brennan's reading of the majority opinion in Belton had predominated, and it explicitly rejected it. Specifically, 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."  

Unlike Belton, Gant doesn't seem to give lower courts much wiggle room in terms of defining the proper scope of an automobile search incident to a lawful arrest (Conversely, as I noted in an earlier post, I think that Gant could have a large impact in how lower courts define the proper scope of a search incident to a lawful home arrest; I have an upcoming article that will address this issue in more detail). Sure, lower courts might quibble about when exactly an arrestee is secured (e.g., does he have to be handcuffed) and when he is within reaching distance of the passenger compartment of the car (what is the maximum distance), but the scope seems pretty clear: If an arrestee is at least several feet from his car and being restrained by an officer or handcuffs, an officer likely cannot search his car.

Indeed, unless officers change their behavior based upon Gant (which is a distinct possibility), I expect most officers will follow the exact behavior outlined by Brennan, meaning that they won't be able to conduct automobile searched incident to lawful arrests, and if they do, they will be deemed unconstitutional.

Indeed, we are already seeing pre-Gant searches being deemed unconstitutional based upon reliance upon Belton. The first one that I have seen at the federal appellate level is the Eighth Circuit's opinion in United States v. Hraskey, 2009 WL 1606642 (8th Cir. 2009). In Hraskey, on July 2, 2004, an officer properly stopped the vehicle of Zachary Hrasky, arrested Hrasky, and handcuffed him and put him in his squad car. The officer then searched the passenger compartment of Hrasky's vehicle and uncovered two handguns, leading to Hrasky being charged with unlawful possession of a firearm as a previously convicted felon. And Hraskey pleaded guilty to that crime before filing a petition for hearing, and while that petition was pending the Supreme Court decided Gant. And Gant, by the government's own admission, meant that the handguns needed to be suppressed.

-CM

Expert Commitment: New Jersey Appellate Court Affirms Civil Commitment Based Upon Reasonable Expert Reliance

New Jersey Rule of Evidence 703 indicates that

[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

And because the experts in In re Civil Commitment of W.X.C., 2009 WL 17505433 (N.J.Super.A.D. 2009), relied upon inadmissible evidence that is nonetheless reasonably relied upon by experts in their field in forming opinions, the Superior Court of New Jersey, Appellate Division affirmed W.T.C.'s commitment to the Adult Diagnostic and Treatment Center for sex offender treatment.

In In re Civil Commitment of W.X.C.,

[t]he crimes that led to W.X.C.'s...commitment all took place in 1992 when W.X.C. was twenty-five years old. W.X.C. burglarized his first victim's home twice when she was not in the house. On April 17, 1992, W.X.C. entered the home for a third time and, at knifepoint, raped the victim, a young woman. After committing the assault, W.X.C. demanded money and, when the victim had none, stole her VCR. According to various psychological reports, W.X.C. found it sexually exciting to be in the victim's home during the first two burglaries, even while she was not there.

On June 4, 1992, W.X.C. entered another home, this time using a key he had found outside, and raped a woman after telling her he had a gun. W.X.C. then made her drive him to an ATM machine, where he forced her to withdraw and give him approximately $600. He also stole two of the victim's rings. On October 22, 1992, W.X.C. entered a rest home and overpowered a female employee. He dragged her into an empty bedroom and demanded that she perform an oral sex act on him. The police were called and W.X.C. attempted to flee but was apprehended.

At W.X.C.'s civil commitment hearing, only two witnesses testified, Dr. Brian Friedman and Dr. Evan Feibusch.

Dr. Friedman testified that in rendering his opinion, he reviewed “all of the police documents, investigation reports, presentence reports, Judgments of Conviction, [and] victim statements.” He also examined W.X.C.'s statement to police, his prison records, and “reports completed over the years by different evaluators....” Dr. Friedman diagnosed W.X.C. with antisocial personality disorder [and]...paraphilia NOS (non-consenting)....

Dr. Feibusch [also] based his opinion on various psychological reports prepared on prior occasions, police reports, and clinical risk assessment tests....Dr. Feibusch [also] diagnosed W.X.C. with antisocial personality disorder, paraphilia NOS, and possibly sexual sadism.

After he was committed, W.X.C. appealed, claiming, inter alia, that the testimony of these doctors was improperly admitted because it was based upon inadmissible data, such as the "evaluations prepared by non-testifying experts."  The court disagreed, finding that their testimony was admissible under New Jersey Rule of Evidence 703 because

[h]ere, the testifying experts relied on reports concerning W.X.C.'s mental health, his criminal history, police reports, and clinical tests in rendering their opinions. Both doctors testified that these sources of information were of the type typically relied upon by experts in performing risk assessment. The trial judge considered the experts' opinions, but did not allow the "wholesale and uncritical admission of prior forensic evaluations."...To the contrary, she properly used the hearsay reports "as background in evaluating the opinions of the ... experts, who testified that they considered these reports in reaching their own diagnoses."

-CM

It's So Juvenile: Minnesota Case Reveals Difference Between Minnesota And Federal Rule Of Evidence 609(d)

Federal Rule of Evidence 609(d) indicates that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Minnesota Rule of Evidence 609(d), however, is different, and that difference made all the difference for the defendant in State v. Bishop, 2009 WL 1750631 (Minn.App. 2009). 

In Bishop, Elmer Bishop appealed from his first and second degree assault convictions, claiming, inter alia, that that the prosecutor wrongfully failed to disclose evidence of the victm's prior juvenile adjudication for possession of a dangerous weapon on school grounds. Bishop claimed that if the prosecutor disclosed this adjudication to him, he could have used it to impeach the testimony of the victim at trial. 

And, if his case were being heard under the Federal Rules of Evidence, he might have been right. As noted above, he could have used the juvenile adjudication to impeach the victim under Federal Rule of Evidence 609(d) if he could have established that the offense underlying that adjudication was be admissible to attack the credibility of an adult and that its admission was necessary for a fair determination of the issue of guilt or innocence.

But Bishop's case was heard under the Minnesota Rules of Evidence, and Minnesota Rule of Evidence 609(d) indicates that

Evidence of juvenile adjudications is not admissible under this rule unless permitted by statute or required by the state or federal constitution.  

Because no statute or constitutional provision applied, Bishop was not entitled to impeach the victim through his juvenile adjudication, the prosecution did not err in failing to disclose that adjudication, and the Court of Appeals of Minnesota affirmed Bishop's convictions.

-CM

Juror's Curiosity Killed The Verdict: Court Of Appeals Of Arkansas Upholds Granting Of New Trial Based Upon Juror's Accident Scene Visit

Similar to its federal counterpart, Arkansas 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 his or any other juror's mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions 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. 

And, as the recent opinion of the Court of Appeals of Arkansas in Campbell v. Hankins, 2009 WL 1685164 (Ark.App. 2009), makes clear, when a juror, against the judge's instructions, visits the accident/crime scene and relays what he saw to the other jurors, what he saw is extraneous prejudicial information which forms the proper predicate for jury impeachment.

In Hankins, Ms. Michael Hankins sued Mr. Leed Campbell for damages arising out of a vehicle collision that took place at an intersection in Pine Bluff, Arkansas. Hankins' vehicle, which was not subject to a stop sign, struck the side of Campbell's vehicle, which had a stop sign, and the basis for Hankins' lawsuit was that Campbell was negligent in failing to stop at the stop sign, failing to maintain a proper look out, and failing to yield the right of way to her.

Prior to deliberations, the judge instructed the jurors "to determine the facts from the evidence produced in this trial." But despite this instruction, a juror apparently visited the accident scene. After the jury returned a general verdict signed by ten of the twelve jurors finding against Michael Hankins, the two holdout jurors submitted identical affidavits, which each stated,

I attest that a fellow juror [McDaniel] made an independent investigation into the facts of the case in that he reported during the deliberations that he went to the scene of the accident during the lunch break. Juror McDaniel reported the results of his investigation and his opinions regarding the same to the other jurors during the deliberations. Juror McDaniel was a juror voting in favor of the defendant and I believe his actions contributed to the verdict being handed down in favor of the defendant....

Based upon these affidavits, the trial court granted Hankins' motion for a new trial, prompting Campbell's appeal. And, in addressing that appeal, the Court of Appeals of Arkansas noted that juror accident scene visits are extraneous to the jury deliberation process, meaning that they form the proper predicate for jury impeachment notwithstanding Arkansas Rule of Evidence 606(b). It then noted that it had previously found in Diemer v. Dischler, 852 S.W.2d 793 (Ark. 1993), that there are four factors to consider in determining whether a juror's visit to the accident scene warrants a new trial:

(1) whether the trial court instructed the jury not to visit the site of the accident; (2) whether the juror offender simply voiced an opinion or engaged in an experiment relating to a crucial issue; (3) whether the offending juror's observations impugned a fact presented by a party; (4) whether the affiant describes the alleged juror with sufficient specificity, which would include identifying the names of the jurors who engaged in the acts complained of.

Applying these factors to the case before it, the court concluded that,

[h]ere, the offending juror, McDaniel, was named. Further, prior to deliberations, the jury was instructed to determine the facts from the "evidence produced in this trial." Despite this instruction, a juror went to the scene of the accident. McDaniel then "made an independent investigation of the facts of the case" and "reported the results of his investigation and his opinions regarding the same to the other jurors during the deliberations." We note that comparative negligence was at issue, and there is a reasonable possibility that McDaniel's observations and report thereon impugned facts presented by the parties. 

The Court of Appeals of Arkansas thus found that the trial court properly granted a new trial because

In its findings of fact, the court concluded that the jury failed to follow the court's instructions and considered evidence not introduced into evidence. There was a reasonable possibility that a view of the scene of the collision could have swayed jurors on the issue. Moreover, the affidavits were found by the trial court to be uncontroverted, and there is no indication in the record that any of the jurors may have already been familiar with the accident scene, as Campbell did not file any competing affidavit. We simply cannot say that the trial court's decision to grant a new trial in this case constituted a manifest abuse of discretion. 

-CM

Chicken Little Or Canary In The Coal Mine, Take 2: Professor Friedman's Initial Reaction To Melendez-Diaz

Professor Richard Friedman over at The Confrontation Blog has a typically great post setting forth his initial reaction to Melendez-Diaz. I recommend that readers check it out as well as his upcoming post which will focus on the dissent.

-CM

Chicken Little Or Canary In The Coal Mine?: Supreme Court Finally Issues Opinion In Melendez-Diaz, Finding Certificates Of State Laboratory Analysts To Be "Testimonial"

Today, the Supreme Court finally decided Melendez-Diaz v. Massachusetts, finding in a 5-4 vote that certificates of state laboratory analysts were "testimonial" and thus covered by the Confrontation Clause. And, if you believe Justice Kennedy, the result of the decision will be the sky falling on many criminal prosecutions; if you believe Justice Scalia, Justice Kennedy is Chicken Little.

You can get the full facts of Melendez-Diaz from the Court's opinion, but here are the basics. Police arrested Luis Melendez-Diaz, took what was apparently cocaine from him, and charged him with distributing cocaine and trafficking in cocaine in an amount between 14 and 28 grams. At trial, the police introduced into evidence

three "certificates of analysis" showing the results of the forensic analysis performed on the seized substances.  The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine."...The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health.

The analysts who conducted the forensic analysis, however, did not testify, and Melendez-Diaz claimed that their failure to testify violated his rights under the Confrontation Clause. The trial court disagreed, Melendez-Diaz was convicted, and his appeal eventually reached the Supreme Court.

In finding that the introduction of the certificates of analysis violated the Confrontation Clause, Justice Scalia, in his majority opinion, noted that the Court's analysis was guided by its opinion in Crawford v. Washington, 541 U.S. 36 (2004), which held that the Confrontation Clause is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.

Scalia then noted that the Crawford opinion set forth various formulations of what is testimonial as follows:

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial state-ments...contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

As I have noted before on this blog, however, the formulation that most courts have adopted is the one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."  And in Melendez-Diaz, Scalia leaned on this formulation to a large degree in reaching his conclusion, finding that

not only were the affidavits "'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,'"...but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight" of the analyzed substance....We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits themselves.

Scalia also, however, construed certificates of analysis as affidavits and noted that in the "formulations" block quote from Crawford, "[o]ur description of that category mentions affidavits twice." Indeed, Scalia, noted that "[t]here is little doubt that the documents at issue in this case fall within the 'core class of testimonial statements' thus described." All of this makes me wonder what took the Court so long to issue its opinion, and my guess is that Justice Thomas, who wrote a concurring opinion, was the swing vote.

Indeed, most of Scalia's opinion was not directed at the issue of whether certificates of analysis are "testimonial," but instead addressed various objections raised by the respondent and Kennedy's dissent: (1) that the analysts are not subject to confrontation because they are not “accusatory” witnesses; (2) that the analysts should not be subject to confrontation because they are not "conventional" (or "typical" or "ordinary") witnesses of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh; (3) that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is "prone to distortion or manipulation," and the testimony at issue here, which is the "resul[t] of neutral, scientific testing;" (4) that the analysts’ affidavits are admissible without confrontation because they are "akin to the types of official and business records admissible at common law;" (5) that the Court should have found no Confrontation Clause violation in this case because petitioner had the ability to subpoena the anaylists.

I agree with Scalia's points for the most part and thus will leave readers to the Court's opinions to see whether they side with Scalia or Kennedy. To me, though, the most interesting question is whether Scalia is correct that the Court's opinion will not have a substantial negative impact on criminal prosecutions. According to Scalia, inter alia,

Perhaps the best indication that the sky will not fall after today’s decision is that it has not done so already. Many States have already adopted the constitutional rule we announce today,11 while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report....Despite these widespread practices, there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst’s appearance at trial. Indeed, in Massachusetts itself, a defendant may subpoena the analyst to appear at trial,...and yet there is no indication that obstructionist defendants are abusing the privilege.  

Moreover, Scalia contended that

defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case.  It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis.  Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counseldoes not intend to rebut in any fashion. 

Meanwhile, with regard to Scalia's first argument, Kennedy retorted that

Even what the Court calls the “simplest form” of burden-shifting statutes do impose requirements on the defendant, who must make a formal demand, with proper service, well before trial.  Some statutes impose more requirements, for instance by requiring defense counsel to subpoena the analyst, to show good cause for demanding the analyst’s presence, or even to affirm under oath an intent to cross-examine the analyst....In a future case, the Court may find that some of these more onerous burden shifting statutes violate the Confrontation Clause because they "impos[e] a burden...on the defendant to bring...adverse witnesses into court."

And, with regard to Scalia's second argument, Kennedy claimed that

The instant case demonstrates how zealous defense counsel will defend their clients. To convict, the prosecution must prove the substance is cocaine. Under the Court’s new rule, apparently only an analyst’s testimony suffices to prove that fact.  (Of course there will also be a large universe of other crimes, ranging from homicide to robbery, where scientific evidence is necessary to prove an element.) In cases where scientific evidence is necessary to prove an element of the crime, the Court’s rule requires the prosecution to call the person identified as the analyst; this requirement has become a new prosecutorial duty linked with proving the State’s case beyond a reasonable doubt. Unless the Court is ashamed of its new rule, it is inexplicable that the Court seeks to limit its damage by hoping that defense counsel will be derelict in their duty to insist that the prosecution prove its case.  That is simply not the way the adversarial system works.

I'm not sure who has the better of this argument, and it will be interesting to see how it plays out in courtrooms across the country.

-CM

Alternate Ending: Supreme Court Of Indiana Opinion Reveals That Indiana Courts Consider Alternate Juror (Mis)Behavior An Improper Outside Influence For Jury Impeachment Purposes

Similar to its federal counterpart, Indiana 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, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

(Federal Rule of Evidence 606(b) does not allow jurors to impeach their verdicts through allegations of juror drug or alcohol use, but it does allow jurors to impeach their verdicts based upon transcription mistakes). But what happens when an alternate juror participates, or distracts from, the jury deliberation process. Should this be considered something internal to the jury deliberation process and thus not a proper predicate for jury impeachment, or is it an improper outside influence and thus something that can form the predicate for jury impeachment? As the recent opinion of the Supreme Court of Indiana in Henri v. Curto, 2009 WL 1685134 (Ind. 2009), makes clear, Indiana courts have found that alternate jurors are improper outside influences, meaning that jurors can testify about their misconduct to impeach their verdicts.

In Curto, 

Susana Henri and Stephen Curto were students at Butler University in Indianapolis in March 2004, when they met for the first time at an off-campus party. They drank alcohol, left the party together, went to a dorm room, and engaged in sexual intercourse. Alleging lack of consent, Ms. Henri subsequently sued Mr. Curto, seeking civil damages for rape. Denying the rape allegation, Mr. Curto, who had been temporarily suspended from the university in the aftermath of the incident, counterclaimed for tortious interference with his contract with the university. The parties presented their evidence to a...jury, which found against Ms. Henri on her claim and in favor of Mr. Curto on his counterclaim, awarding him damages of $45,000. Ms. Henri appealed, and a divided panel of the Court of Appeals, issuing three separate opinions, reversed and remanded for a new trial because of errors during the jury's deliberations.

Curto then appealed to the Supreme Court of Illinois. One of the errors during the jury's deliberations that apparently led to reversal was the (mis)behavior by an alternate juror during deliberations. This (mis)behavior consisted of 

the alternate juror communicated with the regular jurors during deliberations by making noises and gestures "that suggested she wanted to speak, but had caught herself," precipitating other jurors to "giggle or snicker."...The affidavit also asserted that the alternate juror used "gestures and nonverbal noises to interrupt during times when statements were made that were supportive of [Ms. Henri's] case," and that the alternate juror paced back and forth and eventually "got on the floor and began exercising," causing other jurors to laugh. 

The Supreme Court of Indiana noted that pursuant to Griffin v. State, 754 N.E.2d 899 (Ind. 2001), it had previously found that (mis)behavior by an alternate juror constituted an improper outside influence, meaning that the appellate courts properly considered the alternate's misbehavior in rendering its opinion. But the problem for Henri was that Indiana Rule of Evidence 606(b) only deals with the issue of whether evidence of such (mis)conduct is admissible, not whether it should lead to reversal. And the court found that for there to be a reversal, there had to be gross misconduct by the alternate or probable harm. On this ground, the court found the appellate court's opinion lacking because

[h]ere, while the alleged behavior of the alternate is disappointing and immature, it does not rise to gross misconduct that was likely injurious to Ms. Henri. The juror's affidavit does not demonstrate a likelihood that the antics of the alternate juror affected the decision of the regular jurors. Unlike Griffin, in which the alternate spoke about the merits of the case, this alternate was at worst an irresponsible and impolite distraction. We decline to find that the alternate's conduct amounted to gross misconduct that rendered a fair trial unlikely.

The Court thus reinstated the trial court's opinion.  

-CM

Duty To Defend: Diversity Case Reveals Interesting Aspect Of Illinois' Attorney-Client Privilege

Similar to most states' attorney-client privileges, Illinois' attorney-client privilege allows a client to prevent his attorney from disclosing a statement he made to his attorney in court if

(1) the statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential. 

As the recent opinion of the United States District Court for the Northern District of Illinois in Cars R Us Sales and Rentals, Inc. v. Ford Motor Co., 2009 WL 1703123 (N.D. Ill. 2009), makes clear, however, Illinois has an additional component to its attorney-client privilege, albeit one that was not relevant to the court's opinion.

In Cars R Us,  

[o]n February 24, 2005, a fire allegedly occurred in the dashboard of a 1997 Ford Escort owned by Linda Farther....At the time of the fire, the car was parked inside a building owned by [Cars R Us Sales and Rentals]....[Cars R Us] allege[d] that the fire occurred because [Ford] negligently designed, manufactured, and sold the car....Plaintiffs brought [a] diversity action against [Ford] on December 12, 2008, alleging that the fire caused damage to [its]' real, personal, and business property.

General Casualty provided a policy of insurance covering Cars R Us' property at the time of the fire, and, during discovery, Cars R Us produced two documents, each titled a document titled, "Litigation Agreement." The Litigation Agreement was

“between [General Casualty], [Cars R Us], and Smith Amundsen LLC ('Attorneys')."...Paragraph one of the Litigation Agreement simply authorize[d] Smith Amundsen to represent General Casualty and [Cars R Us]....Paragraph three require[d] [Cars R Us] to cooperate with the Attorneys and to assist them in preparation of the trial....Paragraph five relate[d] to the payment of attorneys' fees and costs in this litigation....The remainder of the document regards the relationship between General Casualty and [Cars R Us] in settlement, and the priorities in the potential distribution of settlement funds.

Cars R Us claimed that this Litigation Agreement was covered by attorney-client privilege, and Ford disagreed. The Northern District of Illinois found that the issue was governed by Illinois privilege law pursuant to Federal Rule of Evidence 501, which provides that 

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

And the court noted that, in addition to the the typical attorney-client privilege that applies when the aforementioned three elements are satisfied, "[i]n Illinois, the privilege also extends to communications between an insurer and an insured, 'where the insurer is under an obligation to defend the insured.'" Of course, in Cars R Us, Cars R Us was the plaintiff meaning that there was no obligation to defend and thus no insurer-insured privilege.

But, here's the part of the opinion with which I don't agree. According to the court,

Although the Litigation Agreement was executed with assistance from attorneys and purports to represent an agreement entered into by the parties and the parties' attorneys, [Cars R Us] admit[s] that nothing in this document constitutes an 'explicit attorney-client communication of advice or opinion.'...More accurately, the document memorializes the rights and responsibilities agreed to between General Casualty and [Cars R Us] in this litigation. Because the document does not reflect or represent communications made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, it is not protected by the attorney-client privilege.

Huh? This seems to to be exactly the type of communication that is covered by the attorney-client privilege. This ruling ended up being irrelavant because the court found that the Litigation was work product, but it seems to me that the court was wrong on the privilege issue.

-CM 

Going Unnoticed: Texas Appeal Illustrates Difference Between Texas And Federal Rule Of Evidence 609(b)

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible [to impeach a witness] if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Texas Rule of Evidence 609(b) contains the first sentence of its federal counterpart, but it does not contain the second sentence, and this omission apparently made the difference in the recent opinion of the Court of Appeals of Texas in Gore v. State, 2009 WL 1688196 (Tex.App.-Hous. [1 Dist.] 2009).

In Gore, Keeln Gore was charged with second offender assault to a family member.

During cross-examination of [Gore], the State asked if appellant was the same person who had been convicted of unauthorized use of a motor vehicle (UUMV) on two previous occasions. At that point, [Gore]'s attorney objected by stating, "Judge, the State did not give notice under 609. Additionally, the prior convictions are more than ten years old.” [Gore]'s attorney further stated, “We would also object to remoteness, Judge; they're more than ten years old."

The judge, however, found that the probative value of this conviction substantially outweighed its prejudicial effect and thus admitted it under Texas Rule of Evidence 609(b), which provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Now, the court did not squarely address the notice requirement, and I think that the comparison between Texas Rule of Evidence 609(b) and Federal Rule of Evidence 609(b) explains the reason why. Texas Rule of Evidence 609(b) does not have a notice requirement like Federal Rule of Evidence 609(b). Texas Rule of Evidence 609(f) does indicate that

Evidence of a conviction is not admissible if after timely written request by the adverse party specifying the witness or witnesses, the proponent fails to give to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

As is clear from this Rule, however, notice only need be given after a timely written request, and I am guessing that in Gore, defense counsel did not submit such a written request.

-CM

The Harmless Conspiracy: Court Finds Harmless Error Despite Improperly Admitted Co-Conspirator Admission

Federal Rule of Evidence 801(d)(2)(E) provides that

[a] statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

As both the plain language of this Rule and the recent opinion of the United States District Court for the Eastern District of Michigan in Rodriguez v. Jones, 2009 WL 1619969 (E.D. Mich. 2009), make clear, a statement is not admissible under this rule merely because it was made by a party's co-conspirator; instead, the statement must be made both during the course of the conspiracy and in furtherance of it. And in Jones, the co-conspirator's statement was neither.

In Jones, Frank C. Rodriguez was convicted of conspiracy to deliver 650 or more grams of cocaine, possession with intent to deliver 50 to 224 grams of cocaine, and two counts of delivery of less than 50 grams of cocaine. These convictions were procured in part based upon the testimony of Mary Chopski, who claimed that Rodriguez's co-defendant, Tico Porter, told her that Rodriguez was the biggest drug dealer in Oakland County.

After he was convicted in Michigan state court and unsuccessfully appealed through the Michigan state court system, Rodriguez filed a pro se application for the writ of habeas corpus with the Eastern District of Michigan under 28 U.S.C. Section 2254, claiming, inter alia, that Porter's alleged statement was inadmissible hearsay. The court found that the issue was governed by Federal Rule of Evidence 801(d)(2)(E) and that Porter, as Rodriguez's co-defendant, was clearly his co-conspirator. The problem for the prosecution, however, was that it could neither prove that Porter's statement was made during the course of the subject conspiracy nor that it was made in furtherance of the conspiracy; instead, it was apparently an offhanded comment in no way connected to the crimes for which Rodriguez was convicted.

Nonetheless, there was a fundamental problem for Rodriguez.

A close friend of [Rodriguez]...testified that [Rodriguez] had admitted to being the biggest drug dealer in the area..., and [another witness] conceded at trial that [Rodriguez] might have said he was the biggest dope dealer around....Thus, even though Mary Chopski's hearsay testimony that co-defendant Porter had said that [Rodriguez] was the biggest cocaine dealer in the county might [have] amount[ed] to constitutional error, the error was harmless, and defense counsel's failure to object to Chopski's testimony did not amount to ineffective assistance.

-CM

Total Recall: Court Dismissed Lawsuit Against Harley-Davidson Based Upon Rule 407

Federal Rule of Evidence 407 states that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, 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 when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

In other words, if a plaintiff is going to sue a company such as Harley-Davidson for making a defective product that caused her to suffer injuries, her sole method of proof cannot be that the company recalled the product after her accident as is made clear by the recent opinion of the United States District Court for the Southern District of Mississippi in Rutledge v. Harley-Davidson Motor Co., 2009 WL 1635762 (S.D. Miss. 2009). 

In Rutledge, on December 13, 2006, Donna Rutledge purchased a new model XL883L motorcycle designed and manufactured by Harley-Davidson. On December 29, 2006, Rutledge was unable to steer the motorcycle through a curve in the road, crashed, and sustained serious injuries. Thereafter,

[a]pproximately one month after the accident, on January 22, 2007, [Harley-Davidson] mailed the first of two recall notices stating that it had "decided that a defect relating to motor vehicle safety exists on certain 2007 XL model motorcycles" built during a specific six month period in 2006. The list of affected models included the XL883L, and the notice stated, “Our records indicate that you purchased one of the model motorcycles listed above that may have the condition involved in this recall.” More specifically, the notice indicated that certain motorcycles had a voltage regulator which, due to its size and location and under certain circumstances, could come into contact with the front fender, impeding the operator's ability to steer the vehicle.

Rutledge thereafter sued Harley-Davidson for negligence, breach of warranty, and strict products liability, and the company moved for summary judgment. Now, what Rutledge should have done was obtained documents from Harley-Davidson indicating how they determined that the XL883L was defective. Such evidence would have been perfectly admissible and undoubtedly sufficient to create a triable issue of fact and avoid summary judgment. But Rutledge didn't do this.

Instead, Rutledge relied 

exclusively on the recall notices and her own description of the accident to prove [Harley-Davidson] breached its duties. She argue[d] that through the recall notices, "Harley-Davidson admits that these motorcycles were 'built with voltage regulator part number 74546-07 which, as a result of a greater body thickness than used in previous model years, may contact the front fender under certain conditions.'" 

And the problem with this reliance was that Harley-Davidson "issued the recall notices after [Rutledge]'s accident, and they would have made injury less likely (assuming the alleged defect actually caused the injury)," meaning that fell squarely under Federal Rule of Evidence 407 and were inadmissible. Thus, although the court indicated that it couldn't "help but feel empathy for Ms. Rutledge" because "[s]he clearly suffered a significant injury," it had to grant Harley-Davidson's motion.

-CM

Ordeal By Innocence, The Aftermath: Alaska Adopts Wrongful Incarceration/Execution Exception To Attorney-Client Confidentiality

Last summer, the Northwestern University Law Review Colloquy published my essay, Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. I wrote the essay largely in response to the Alton Logan story. As I noted in the essay,

In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's.  What the jury that convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed.  The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession.  Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan dwere given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit: being locked up—Logan in a prison cell; the affidavit in a lock box.  Pained by guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

The thrust of my essay was that such injustices occur because,

[u]ntil recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted.  And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent "reasonably certain death or substantial bodily harm," the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example[]. Conversely, Massachusetts Rule of Professional Conduct 1.6(b)(1) explicitly permits attorneys to disclose client information to, inter alia, "prevent the wrongful execution or incarceration of another." Th[e] Essay argue[d] that the twenty-six states that have adopted some form of amended Model Rule 1.6(b)(1) can and should read an implied wrongful incarceration/execution exception into their existing rules while the remaining twenty-three states (and the District of Columbia) that have not adopted some form of amended Model Rule 1.6(b)(1) should amend their rules to create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exceptions.

At the time of my essay, Alaska was one of the twenty-three states that had not adopted some form of amended Model Rule 1.6(b)(1). But, as Andrew Perlman over at Legal Ethics Forum reported earlier this month, this all changed on tax day, 2009. On that day, Alaska adopted new Alaska Rule of Professional Conduct 1.6(b)(1)(C), which provides that "a lawyer may reveal a client's confidence or secret to the extent the lawyer reasonably believes necessary...to prevent reasonably certain...wrongful execution or incarceration of another."

And the Alaska Comment to the change makes clear that the Massachusetts rule was the model for the new Alaska rule. According to that Comment,

In paragraph (b)(1)(C), the court included an additional limited exception to the normal rule requiring lawyers to preserve the confidences and secrets of their clients.  This provision is modeled on the similar Massachusetts rule; its core purpose is to permit a lawyer to reveal confidential information in the specific situation in which that information discloses that an innocent person has been convicted of a crime and has been sentenced to imprisonment or execution.

Nice work, Alaska. Hopefully, this change will not be an isolated incident, and we will see several other states start to adopt wrongful incarceration/execution exceptions to attorney-client confidentiality.

-CM

Protecting Against The Google Mistrial: Supreme Court Of Michigan Revises Court Rule To Address Technologically Enhanced Jury Misconduct

Yesterday, I posted an entry about the Supreme Court of Michigan's adoption of a new rule of evidence providing that judges "shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons." Well, the Michigan Supremes also revised Michigan Court Rule 2.516, and the revision addresses an issue that I have given much attention on the blog: How do we deal with the increasing problem of jurors using cell phones, computers, and other devices to discuss and discover information relating to the case that they are hearing. But it didn't go all the way.

If the Michigan Supremes adopted the revision to Michigan Court Rule 2.516 in full, it would have read as follows, in relevant part:

(B)  Instructing the Jury. 

(1) After the jury is sworn and before evidence is taken, the court shall give such preliminary instructions regarding the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to enable the jury to understand the proceedings and the evidence.  MCR 2.516(D)(2) does not apply to such preliminary instructions.  The court shall specifically instruct the jurors that they shall not: 

(a) discuss the case with others until deliberation begins, except as otherwise authorized by the court; 

(b) read or listen to any news reports about the case; 

 

(c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation; 

(d) use a computer, cellular phone, or other electronic device  with communication capabilities to obtain information about the case when they are not in court.  As used in this subsection, information about the case includes, but is not limited to, the following: 

(i) seeking information about the criminal record of a party or witness; 

(ii) reviewing news accounts of the case; 

 

(iii) conducting research on any topics raised or testimony offered by any witness; 

 

(iv) researching any other information the juror might think would be helpful, such as an aerial map of the scene. 

(e) Any juror who observes or has reason to believe that another juror has used an electronic device in violation of this rule shall immediately inform the court of the violation.

As an article in The Detroit News makes clear, however, the Michigan Supremes "refused to adopt [the] portion of the proposed rule that would have ordered jurors to report on other jurors caught using communication devices in court. They did, however, pass the rest of the proposed revision, which "was spurred by county prosecutors across the state who claimed jurors have been using the Internet to research issues and to check on criminal backgrounds of defendants and witnesses in criminal cases."

-CM

What Not To Wear, Religious Edition: Supreme Court of Michigan Adopts Rule Allowing Judges to Exercise "Reasonable Control Over the Appearance of Parties and Witnesses" Based Upon Niqab Case

Yesterday, by a 5-2 vote, the Supreme Court of Michigan adopted an amendment to Michigan Rule of Evidence 611. This amendment created Michigan Rule of Evidence 611(b), which provides as follows:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons. 

The amendment was crafted in response to a lawsuit brought by Muslim woman Ginnah Muhammad. Muhammad had gone to court to contest a $3,000 charge from a rental company to repair a vehicle that she said thieves had broken into. When Muhammad appeared in court, District Judge Paul Paruk ordered her to remove her niqab, or face covering, but she refused, ostensibly because "[s]ome Muslim leaders interpret the Quran to require that women wear a headscarf, veil or burqa in the presence of a man who is not their husband or close relative." 

Based upon Muhhamad's refusal, Judge Paruk dismissed her case, and she subsequently sued him, claiming that he violated her religious and civil rights (that lawsuit is still pending). Meanwhile, the Michigan Judges Association and Michigan District Judges Association got behind a statewide court rule giving judges "reasonable" control over the appearance of parties and witnesses to observe their demeanor and ensure they can be accurately identified. This was the rule adopted by the Michigan Supremes yesterday.

I'm not sure whether we are going to get anything written from the Michigan Justices. According to the Chicago Tribune, "Majority justices did not comment on their vote Wednesday, but [Justice] Markman said last month that 'judges are not theologians,' and they should not be forced to decide whether a witness is exempted from requirements imposed on everybody else."  Meanwhile, the dissenting Justices (Chief Justice Marilyn Kelly and Diane Hathaway) apparently voted "no" because the rule did not have a religious exception endorsed by the ACLU of Michigan and religious groups.

Meanwhile, there is the question of how discretionary (or mandatory) the rule really is. On the one hand, ACLU attorney Jessie Rossman stressed that the rule "allows -- but does not force -- judges to ask Muslim women to remove their headscarves."  Meanwhile, Eugene Volokh over at The Volokh Conspiracy speculates that the rule may be a mandatory wolf in discretionary sheep's clothing.

I think that it would be unfair for me to address any of these issues without knowing whether and when we will get anything more from the Justices explaining the rationales and intended impact of their ruling. But, regardless of what the Michigan Supremes say, one thing is clear: Their decision cuts against a pretty consistent line of precedent in this country which had established that judges are not entitled to tell witnesses what not to wear when such an order implicates religious liberty.

This much is made clear by the opinion of the Intermediate Court of Appeals of Hawai'i in State v. Fergerstrom, 101 P.3d Hawai'i App. 2004). In Fergerstrom, Harry Fergerstrom appealed from his conviction for automobile-related offenses, claiming, inter alia, that the trial judge violated his right to due process and his right to present a defense by ordering a defense witness to wear western clothing, thus precluding him from wearing only a malo (loincloth) and kihei (rectangular tapa garment worn over one shoulder and tied in a knot).  

The court partially agreed, concluding that

In our view, absent a mode of dress that is obscene, disruptive, distractive, or depreciative of the solemnity of the judicial process, or that will create an atmosphere of unfairness, a party or a witness may decide what to wear in court. We agree with Ryslik that any positive or negative potential bias that might be caused by any other attire worn by the party or the witness can and should be addressed during the jury selection process, the trial, and in the instructions to the jury.

(The court found that there was not enough information in the trial court transcript to determine whether the trial judge acted properly and found that even if the judge acted improperly, such error was harmless).

The Ryslik opinion referenced in this block quote was the opinion of the Superior Court of New Jersey, Appellate Division, in Ryslik v. Krass, 652 A.2d 767 (N.J.Super.A.D. 1995), one of several opinions that the court cited in support of its conclusion. In Ryslik, the court found that the trial court abused its discretion in ordering a new trial based on the fact that a priest testified while wearing clerical garb, finding that the priest should not have been ordered to remove his clerical garb because

Any potential bias that could be caused by defendant's religious garb can be and here actually was addressed during the jury selection process and generally should be reiterated during the jury charge. This is a less intrusive alternative than restricting defendant's manner of dress and impinging on his possible constitutional right to free exercise of religion.

In State v. Allen, 832 P.2d 1248 (Or.App. 1992), the Court of Appeals of Oregon reversed a defendant's conviction for theft in the second degree because the trial court refused to allow her husband to testify while wearing his religious headgear, finding that

Although considerations of proper attire may go beyond the mere maintenance of a dress code, a trial judge's desire simply to maintain a general dress code cannot justify an infringement of a criminal defendant's right to present an exculpatory witness, unless the attire worn by a witness would be disruptive or would create an atmosphere of unfairness.

In Close-It Enters., Inc. v. Mayer Weinberger, 407 N.Y.S.2d 587 (N.Y.A.D. 1978), the New York Supreme Court, Appellate Division, Second Judicial Department, reversed a trial court's ruling that the defendant could not wear a yarmulke in front of the jury, concluding that

The defendant should not have been placed in the situation of having to choose between protecting his legal interests or violating an essential element of his faith.

And in In re Palmer, 386 A.2d 1112 (R.I. 1978), the Supreme Court of Rhode Island noted that the trial court had precluded the defendant from wearing a takia, a prayer cap which covers the top of the head and is a religious symbol among Sunni Muslims indicating that its wearer is in constant prayer. The Rhode Island Supremes found that,

assuming that the petitioner's beliefs are sincere, the state would bear a heavy burden of establishing how such actions threaten any compelling interest that the state may have in maintaining decorum in the courtroom.

Of course,  it could be argued that, unlike in these cases, judges have a compelling interest in having a witness remove a niqab because the finder of fact cannot observe the wearer's face and determine her credibility. 

There are at least two responses to this potential argument. The first is that the decision of the Michigan Supremes might still be out of line with precedent from across the country. Last December, the Fifth Circuit decided Boyd v. Texas, 2008 WL 5129645 (5th Cir. 2008). In Boyd, Karwana Boyd claimed that a trial judge in Texas' Second Administrative District ordered her to leave his courtroom because she refused to remove a head scarf that she was wearing in observance of hijab. Boyd quickly sued the judge, and the Chief Judge of the District just as quickly sent a letter to all of the judges in the District

reminding judges to be sensitive to the constitutional rights of people in the courtroom and specifically noting that people who wear religious clothing or head wear are not required to remove their religious clothing or head wear upon entering the courtroom. 

Second, the validity of the demeanor rationale is questionable. I direct readers to Aaron J. Williams excellent comment, The Veiled Truth: Can the Credibility of Testimony Given by a Niqab-Wearing Witness be Judged Without the Assistance of Facial Expressions?, 85 U. Det. Mercy L. Rev. 273 (2008), for a full and fair discussion of the issue.

-CM

Prior Authorization: Eleventh Circuit Finds Threat Conveyed To Witness' Girlfriend Didn't Constitute An Authorized Admission

Federal Rule of Evidence 801(d)(2)(C) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a person authorized by the party to make a statement concerning the subject.

But what must a party seeking to admit such a statement present to establish such authorization? Must there be explicit words of authorization or can authorization be implied by the statement itself? Both Federal Rule of Evidence 801 and the Eleventh Circuit's recent opinion in United States v. Docampo, 2009 WL 1652910 (11th Cir. 2009), tell us that authorization cannot be implied (solely) by the statement itself, but I am not sure that I agree.  

In Docampo, John Andrew Docampo, Jr. appealed from his convictions for conspiracy to possess with intent to distribute cocaine, possession of firearms in furtherance of the conspiracy, and conspiracy to possess firearms in furtherance of a drug trafficking crime. According to the testimony of Edwardo Lorenzo at trial, Docampo invited him to participate in the subject conspiracy, but Lorenzo declined. Lorenzo also testified at trial about a phone call Docampo made to Lorenzo's girlfriend during which Docampo told Lorenzo's girlfriend that "[e]ither bad things would happen to [Lorenzo] or somebody that [he] was close to if [he] was to testify." Docampo's attorney objected to this testimony as hearsay, but the district judge found that Docampo had opened the door to this testimony.

On Docampo's subsequent appeal, however, the Eleventh Circuit found that Docampo had not opened the door, which left the State scrambling to find an alternate rationale for the admission of Lorenzo's testimony. And the State's main argument was that Lorenzo's testimony concerning Docampo's statement to Lorenzo's girlfriend was admissible under Federal Rule of Evidence 801(d)(2)(C) because Docampo implicitly authorized Lorenzo's girlfriend to relate his threat to Lorenzo. The Eleventh Circuit disagreed (although it deemed the district court's error harmless), noting that Federal Rule of Evidence 801 provides that

The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

I understand the rationale of this sentence for statements arguably covered by Federal Rule of Evidence 801(d)(2)(D) and Federal Rule of Evidence 801(d)(2)(E). Federal Rule of Evidence 801(d)(2)(D) covers employee admissions, and, obviously, the proponent of an alleged employee admission must present evidence besides the alleged employee's statement to prove, inter alia, that the person making the admission was in fact the employee of a party. Meanwhile Federal Rule of Evidence 801(d)(2)(E) covers co-conspirator admissions, and, obviously, the proponent of an alleged co-conspirator admission must present evidence besides the alleged co-conspirator's statement to prove, inter alia, that the person making the statement was in fact the co-conspirator of a party.

But the same doesn't seem to work with authorized admissions under Federal Rule of Evidence 801(d)(2)(C). If Al tells Bob, "Tell Chris I am going to kill him," he he has authorized Bob to repeat the statement to Chris. Why, in this situation, would the statement not be sufficient to establish the authorization under Federal Rule of Evidence 801(d)(2)(C)? And what other evidence could the prosecutor even introduce besides the statement to prove the authorization? 

The situation in Docampo is a little more complicated because Docampo apparently didn't explicitly authorize Lorenzo's girlfriend to repeat his threat to Lorenzo. But it seems clear to me that it was implied in Docampo's threat that he wanted, and thus authorized, Lorenzo's girlfriend to repeat his threat to Lorenzo. Otherwise, why would he have made the threat?  It thus seems to me that Docampo's statement should have been deemed admissible, notwithstanding the aforementioned language from Federal Rule of Evidence 801.

-CM

What Are Your Intentions?: Sixth Circuit Finds No Plain Error In DEA Agents Drug Quantity Testimony

Federal Rule of Evidence 704(b) provides that

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.

Does this rule prevent DEA agents from testifying that the quantities of drugs recovered from a defendant are consistent with intent to distribute? The answer is "no" according to the Sixth Circuit in its recent opinion in United States v. Alford, 2009 WL 1587267 (6th Cir. 2009), at least if the defendant does not object to such testimony.

In Alford, one bag containing 2.7 grams of cocaine hydrochloride, or powder cocaine, and another bag containing 5.7 grams of cocaine base, or crack cocaine, were recovered from Daniel Alford. Alford was later charged with possession with intent to distribute five grams or more of crack cocaine. At trial, the prosecution presented the testimony of Agent Dave Lewis with the DEA, who

testified as an expert witness in narcotic drug trafficking practices. Lewis testified that a street-level crack dealer generally possesses numerous rocks of crack cocaine to sell to individual buyers, whereas a user will typically obtain only one or two crack rocks at a time. Lewis explained that, because crack is such a highly addictive drug, a person who uses crack becomes instantly addicted, cannot function in society, cannot maintain employment, and will use all of his money to buy crack. Further, a crack addict generally has no money except the amount necessary to buy the next rock.

Lewis testified that crack possessed for personal use generally will be a “very small quantity” that can be consumed in one sitting. A user of crack will possess one or two crack rocks, as well as a pipe or glass tube, and will go to the nearest location to smoke it after purchasing it. Lewis testified that, based on his experience, persons who distribute crack possess sums in denominations of $20 bills since crack rocks are sold for $20 and $40 apiece.

On cross-examination, Defendant asked whether Lewis's opinion would be different if Lewis knew that Defendant had a "$300 to $500 a day habit" using crack cocaine. Lewis responded that if Defendant had such a drug addiction, he would not have had the cash he possessed and he would not have both powder and crack cocaine. Lewis also stated that, in his experience, crack users generally are not in possession of both sums of cash and drugs at the same time.

After he was convicted, Alford appealed, claiming, inter alia, "that the district court plainly erred because Lewis improperly stated an opinion as to Defendant's mental state, which is barred by Fed.R.Evid. 704(b)." The court, however, noted that it had failed to find plain error when officers had rendered similar testimony in similar cases and noted that

Moreover, the statements Defendant complains of were elicited by Defendant on cross-examination when Lewis was repeatedly asked if Defendant could have possessed the crack for his personal use. Under these circumstances there is no plain error.

I agree with the Sixth Circuit and would add that Lewis' testimony appears to me to be pretty benign. It seems to me that Lewis merely provided general testimony about how people with different quantities of drugs tend to act, not specific testimony about Alford's consent. Under these circumstances, it seems clear to me that the district court did not commit plain error.

-CM

(In)Competently Put?: Court Of Appeals Of Mississippi Rejects Competency Challenge To Excited Utterance

It is well established in the American court system that only competent witnesses may testify in open court, If an individual cannot understand the difference between right and wrong, respond intelligibly to cross-examination, etc., he cannot render testimony before a jury. And, understandably, the same generally applies to hearsay declarants. If a witness cannot take the stand because he is incompetent, surely his out-of-court-statements cannot be introduced through the testimony of another witness. But, while this is the general rule, many courts, such as the Court of Appeals of Mississippi in its recent opinion in Eubanks v. State, 2009 WL 1520108 (Miss.App. 2008), find that there is an exception for excited utterances.

In Eubanks, Darrius Eubanks was convicted of capital murder, with the underlying felony of felonious child abuse. That conviction was based upon alleged acts that Eubanks committed against the children of his girlfriend, four-year-old Daviyon Johnson ("Doc") and two-year, eleven-month-old Inecia McNeil, who referred to Eubanks as "Daddy." The facts adduced at trial indicated that Eubanks' girlfriend, returned from visiting her sick grandmother one day and 

found Daviyon lying on the floor with Eubanks standing beside him. Inecia was standing against a wall, not moving, and she appeared "scared." Johnson asked Eubanks what was wrong, and he replied that he did not know. Johnson moved into her bedroom and called for her son to get up. When Daviyon failed to respond, Johnson went back into the children's bedroom. Eubanks picked Daviyon up, and Johnson described the child as limp "like a little Raggedy Ann doll." Johnson testified she took Daviyon into the bathroom, where she observed that "the whole side of [his] face was just black and blue and red." Johnson testified she asked Eubanks what had happened. He again told her that he did not know, but he added that the children had both reverted from their toilet training and soiled their clothing. Johnson also testified that Eubanks told her that Inecia had hit her older brother in the head with a stick that had been used to secure the apartment's patio door.

Johnson then went to a neighbor's apartment to telephone her mother and aunt. She asked them to come to get her and Daviyon and take them to CMMC. She then returned to the apartment, where she undressed Daviyon, washed him thoroughly, wrapped him in a blanket, and threw on a coat to meet her mother at the door. Johnson then took her daughter to an upstairs neighbor, Emma Robinson. When her mother arrived, Johnson testified that Eubanks said he would stay and clean up the apartment; Johnson was surprised he did not accompany them to the hospital. Johnson, Daviyon, her mother, and her aunt then left for the nearby CMMC.

CMMC could not stabilize Daviyon, and about an hour later, Daviyon was sent by ambulance to the University of Mississippi Medical Center (UMMC). Johnson returned to the apartment to pick up her daughter before continuing on to UMMC. Johnson testified that during the ride to UMMC, Inecia appeared "[q]uiet, scared. Like she was terrified." Johnson observed that ordinarily Inecia "never stopped talking," but she had been silent since Johnson returned home. In the car, Johnson asked the child, "Raja[,] what happened?" Johnson testified, over the objection of the defense, that Inecia responded, "[D]addy hit Doc with the stick in the head a lot of times[,] and he hit me too. Then Doc started crying[,] and [D]addy wouldn't stop hitting him. And then Doc stopped crying[,] and he didn't move no [sic] more."

The trial judge overruled the defense's objection because it found Inecia's statement to be admissible as an excited utterance under Mississippi Rule of Evidence 803(3) as it was "[a] statement relating to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition." And after Eubanks was convicted, he appealed claiming, inter alia, "that the trial court should have held a competency hearing to determine whether Inecia was competent to testify." The Court of Appeals of Mississippi, however, rejected this argument, concluding that "an excited utterance is admissible notwithstanding the availability of the declarant at trial."  

Indeed, this was not an anomalous opinion. As the Court of Appeals of Nebraska held in State v. Stithem, 1993 WL 500607 (Neb.App. 1993), 

[i]n litigation involving children, there is an exceedingly important exception to the rule that a hearsay declarant be competent at the time of an out-of-court statement. The great majority of decisions hold that an excited utterance is admissible despite the fact that the declarant is incompetent when the out-of-court statement is made. The rationale for this exception is that excited utterances draw their reliability from the circumstances in which they are uttered, not from the trustworthiness of the declarant.

I disagree with the vast majority of decisions for two reasons. First, I don't see how the above analysis distinguished excited utterances from statements falling under any other hearsay exceptions. Second, there are reasons to doubt the reliability of excited utterances. As David Crump noted in The Case foe Selective Abolition of the Rules of Evidence, 35 Hofstra L. Rev. 585, 615 (2006),

the exception for an "excited utterance' admits hearsay if it is spoken while under the stress of an exciting event.The theory is that the required element of stress reduces the sincerity risk, because a person under stress does not have the time or presence of mind to make up a false story. In the first place, we do not know whether this is so, or whether it is true to some degree only. In the second place, and more importantly, stress does not guarantee against defects in perceptivity, qualification, expression, or bias. In fact, the psychology of perception under conditions of stress points in precisely the opposite direction from this exception, indicating that hearsay of this kind is distinctly unreliable. The experiments show that stress results in distorted perception and reporting--it produces lesser accuracy, not greater. The ironic result of this exception for excited utterances, however, is that a court would be much more likely to admit evidence of Leake's son's hearsay statement if he had made it under stress--if it had been uttered right after the accident, for example, or in response to a shocking revelation by the insurance investigator--even though we would then have less reason to credit the statement, and even though the statement as actually uttered, which the rules excluded, had greater indicia of truth.

Nonetheless, the decision by the Court of Appeals of Mississippi appears to be the law of the land in most courts and one that is unlikely to change in the near future.

-CM

The Best Of Everything: Fourth Circuit Erroneously Finds That Best Evidence Rule Doesn't Apply In Firearms Appeal

Federal Rule of Evidence 1002, the Best Evidence or Original Document Rule, indicates that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. 

As I tell my Evidence students, this Rule is oft misunderstood, not only by law students, but also by lawyers and even judges. The recent opinion of the Fourth Circuit in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009), is a good example of judges completely misunderstanding the Best Evidence Rule.

In Smith, Cordell Smith was convicted of possessing with intent to distribute a quantity of crack cocaine, using and carrying one or more firearms during and in relation to a drug-trafficking crime, and possessing one or more firearms, having been previously convicted of a felony. To prove the interstate nexus element of the felon in-possession count, the government presented the testimony of Special Agent Andrew Cheramie of the ATF that firearms recovered from Smith's apartment had been manufactured in states other than North Carolina. Smith's attorney objected to the proposed testimony of Special Agent Cheramie on the ground that it would violate Federal Rule of Evidence 1002. He argued that Cheramie's testimony, which was based on written reference materials and ATF computer databases, none of which were offered into evidence, violated the Best Evidence Rule. The district court overruled the objection and allowed Cheramie to testify without requiring him to introduce any reference materials into evidence. 

Smith subsequently appealed, and the Fourth Circuit disposed of his appeal as follows:

Smith argues that "the materials on which Cheramie relied were clearly 'writings' or 'recordings' under Rule 1001" and therefore "Cheramie's testimony plainly sought to prove the content of writings or recordings because Cheramie himself had no independent, first-hand knowledge of where the firearms were manufactured,” in violation of Rule 1002....

Smith's argument, however, appears to rest on a misconception of the "best evidence rule" and Rule 1002. In asserting that Cheramie should not have been allowed to testify to the fact of a firearm's place of manufacture without introducing the writings and other materials from which he learned that fact, Smith suggests that the best evidence rule required the government to introduce the best evidence of that fact, i.e., the writings and other materials from which Cheramie learned the fact, especially when Cheramie did not have personal first-hand knowledge of the fact. But Federal Rule of Evidence 1002 is not nearly so broad.

Federal Rule of Evidence 1002 provides in pertinent part: "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required." As the Rule's language states, the Rule applies to the circumstance where the proponent seeks "to prove the content" of a document. The Rule exists to afford guarantees against inaccuracies and fraud by requiring that the original of the document be offered, subject to exceptions....

In this case, the government never sought to prove the content of any writing or recording relating to the firearms or their places of manufacture. It sought only to prove the fact that the firearms were manufactured in States other than North Carolina, where they were recovered during the search of Smith's apartment. The place of the firearms' manufacture was a fact existing independently of the content of any book, document, recording, or writing. Just because Special Agent Cheramie consulted books and computer databases in reaching his conclusion about the firearms' place of manufacture does not mean that his testimony was offered “to prove the content” of the books and computer files. Accordingly, Rule 1002 did not require submission of the books and computer files into evidence.  

With due respect to the Fourth Circuit judges who decided Smith, they were the ones who had the misconception regarding the "best evidence rule" and Rule 1002. Clearly, the government sought to prove the contents of the writings and other materials from which Cheramie learned that firearms recovered from Smith's apartment had been manufactured in States other than North Carolina. As Smith noted, Cheramie had no independent personal knowledge of where those firearms were manufactured. Instead, his knowledge of where those firearms were manufactured was dependent on the writings and other materials. Thus, his testimony was, in effect, proving the contents of the writings and other materials because he had no personal knowledge of where the firearms were manufactured. Accordingly, Cheramie's testimony triggered the Best Evidence Rule, and the Fourth Circuit's conclusion was erroneous.  

-CM

I Want A Lawyer...If I Go To Jail: Supreme Court Of Iowa Finds Conditional Request For Counsel Insufficient To Invoke Fifth Amendment Right To Counsel

DETECTIVE: Um, you have the right to a lawyer, talk to a lawyer for advice before I ask any questions and with you before-during questioning if you wish. If you can't afford one, one will be appointed to you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the stop right to stop answering at any time until you talk to a lawyer. And I will give you a copy of this in writing. I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing.

EFFLER: I do want a court-appointed lawyer.

DETECTIVE: Okay.

EFFLER: If I go to jail.

In the following exchange, has Effler, the criminal defendant, invoked his Fith Amendment right to counsel. According to the recent opinion of the Supreme Court of Iowa in State v. Effler, 2009 WL 1491444 (Iowa 2009), the answer is, "No." 

In Effler, 

Melissa Martin was babysitting J .M., a two-year-old girl, for the first time. Martin took J.M. to the Des Moines Central Library. Martin stood at a fifteen-minute internet station, and J.M. stood beside her leg. A few minutes later, Martin noticed J.M. was no longer there and began calling out her name. One of the librarians began a search for the child and remembered seeing Effler handing a toy to a toddler girl. The librarian suggested checking the men's bathroom. Martin and the librarian rushed over to the men's bathroom. The librarian tried to open it with her key, but it was locked from inside. They started pounding on the door calling the child's name. They heard two “bloodcurdling” screams followed by silence. The librarian asked her staff to call the maintenance man, who pried the lock open with a screwdriver. Inside the bathroom, they found a shirtless Effler kneeling next to J.M., who was completely naked. Martin picked up J .M. and ran out. Staff members slammed the door shut, preventing Effler from escaping. Two men held the door shut until the police arrived. The police wrestled Effler to the floor, handcuffed him, and took him to the Des Moines Police Station.

At the police station, a detective interviewed Effler in a small interview room, leading, inter alia, to the aforementioned exchange. After that exchange, Effler waived his Miranda rights, made incriminatory statements, and was convicted of first-degree kidnapping, second-degree sexual abuse, and failure to register as a sex offender after a 2002 conviction for sexual assault in Texas. Effler thereafter appealed, and the Court of Appeals of Iowa reversed, finding that the State violated his Fifth Amendment right to counsel. 

The Supreme Court of Iowa disagreed. That Court noted that, pursuant to Davis v. United States, 512 U.S. 452 (1994), for Effler to have invoked his right to counsel, he must have done so unequivocally and unambiguously. According to the Court, Effler's problem was that 

[t]here are a few different ways to interpret the conditional clause 'if I go to jail.' One possibility is 'I want a lawyer when I go to jail.' Under that interpretation, Effler's statement was conditional and ambiguous. He wanted a lawyer if and when he went to jail. At the time of the interrogation and at the time Effler made that statement, he was not in jail, and no charges had been filed against him. He was seated at a table across from a detective and drinking a can of pop. His statement did not indicate he wanted a lawyer at that moment. As the condition of going to jail had not been fulfilled, the conditional nature of the request rendered it ambiguous.

Another interpretation of Effler's statement is 'I want a lawyer if I am going to jail.' Even under this interpretation, it is arguable whether the condition had been fulfilled. Surely, the detective knew Effler was going to jail. However, it is unclear whether Effler himself knew he was going to jail after the interrogation. Effler thought he was being booked for public intoxication, and the detective told him 'well if they book you for intox, then ... you're not going to get released.' However, the detective also indicated he was not sure whether Effler was going to be booked for public intoxication. It could be argued the condition 'if I'm going to jail' had been satisfied at the time Effler requested counsel, since Effler was indeed going to jail after the conclusion of the interview. However, to establish the condition of Effler's request for an attorney (i.e.jail) had been satisfied requires changing the word 'go' to 'going.' Such a change expands the meaning of Effler's statement.

The very fact that we have to dissect Effler's statement and engage in an in-depth discussion to determine exactly what he meant by 'if I go to jail' indicates his statement was ambiguous, and it is uncertain whether 'a reasonable police officer in the circumstances would understand the statement to be a request for an attorney....' As a couple of different interpretations of Effler's statement 'I do want a court-appointed lawyer...if I go to jail' are possible, it is unclear whether Effler was invoking his right to counsel. A reasonable police officer under these circumstances would have understood only that Effler 'might be invoking the right to counsel....' Officers have no obligation to stop questioning an individual who makes an ambiguous or equivocal request for an attorney....Thus, Effler did not effectively invoke his Fifth Amendment right to counsel, and the detective was permitted to continue questioning Effler.  

I'm not the biggest fan of Davis, but it is the law of the land, and I think that the Iowa Supremes were correct to construe Effler's alleged request for an attorney as too equivocal, ambiguous, and conditional to count as an invocation of the Fifth Amendment right to counsel. 

-CM