EvidenceProf Blog

Mississippi Mud: Supreme Court Of Mississippi Opinion Reveals Anomalous Nature Of Its Marital Privilege

Mississippi Rule of Evidence 504(b) provides that

In any proceeding, civil or criminal, a person has a privilege to prevent that person’s spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse. 

Mississippi Rule of Evidence 504(d)(1), however, indicates that

There is no privilege under this rule in civil actions between the spouses or in a proceeding in which one spouse is charged with a crime against (1) the person of any minor child.

But what constitutes a crime against the person of any minor child? That was the question that the Supreme Court of Mississippi had to address in its recent opinion in Hood v. State, 2009 WL 2259937 (Miss. 2009).

In Hood, Melissa Hood, the wife of Ronald Hood, found a videotape

in a box of her husband's belongings within an extra bedroom at their home. She decided to view the tape on her VCR to determine its contents. Melissa testified that when she witnessed the videotape she became sick to her stomach. The videotape depicted nude male children, and Melissa believed the children to be between the ages of five and seven years old.

This videotape eventually formed the basis for the State bringing exploitation of children charges against Ronald, and at his ensuing trial, he was convicted based upon, inter alia, the testimony of Melissa. Ronald subsequently appealed, claiming, among other things, that the trial court should have precluded Melissa's testimony pursuant to Mississippi Rule of Evidence 504(b).

According to Ronald, the exception contained in Mississippi Rule of Evidence 504(d)(1) did not apply to his case; he claimed that "exploitation of children is not a 'crime against the person of any minor child,' and only those crimes specifically listed in Title 97, Chapter 3 of the Mississippi Code [crimes against the person] are such crimes."

The Supreme Court of Mississippi disagreed, noting that in Fisher v. State, 690 So.2d 268 (Miss. 1996),

this Court recognized that "Miss. R. Evid. 601(a)(2) indicates an obvious growing concern about sexual and violent abuse against children,” and as a result, amended Rule 504(d) to "reflect the same."...Rule 504(d) was amended to reflect the same intentions as Rule 601(a)(2); therefore, prosecution for “a criminal act against any child” absolves the husband-wife privilege as set out in Rule 504. There is no indication that Rule 504(d) was intended to apply only to the crimes listed in Title 97, Chapter 3 of the Mississippi Code, as crimes against persons, as Hood contends to this Court. Exploitation of children is a crime against the persons of minor children; therefore, the trial judge did not abuse her discretion in admitting Melissa's testimony.

I have no problem with this broad construction of the phrase "crime against the person of any minor child." But what seems odd to me is that the Mississippi Rule uses this particular phrase. Every other marital privilege I have seen merely provides an exception in a case where a spouse is charged with a crime against the minor children of either spouse. For instance, Arkansas Rule of Evidence 504(d)[1](2) provides an exception to its marital privilege "in a proceeding in which one [1] spouse is charged with a crime against the person or property of...a child of either." And Alaska Rule of Evidence 505(a)(2)(D)(i) provides an exception to its marital privilege "[i]n a proceeding in which one spouse is charged with...[a] crime against the person or the property of the other spouse or of a child of either, whether such crime was committed before or during marriage.

And this makes sense to me. The purpose of marital privileges is to protect the marital union, and there is no point in protecting a marital union when it involves a spouse committing crimes against the minor children of one or both of the spouses. But why should the privilege not apply when a spouse is charged with a crime involving minor children, but not either of the spouse's marital children? How is this any different than a spouse being charged with a crime against an unrelated adult?

-CM 

Efficiency Expert: Supreme Court Of Kansas Opinion Reveals Differences Between Kansas And Federal Rules Of Evidence On Expert Testimony

Federal Rule of Evidence 703 provides in relevant part that

The 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 in order for the opinion or inference to be admitted.

As the recent opinion of the Supreme Court of Kansas in In re Colt, 2009 WL 1974517 (Kan. 2009), K.S.A. 60-456(b), is quite different from its federal counterpart, but in a way that was ultimately not relevant to the court's opinion.  

In Colt, John Colt was indefinitely civilly committed as a sexually violent predator under K.S.A. 59-29a01 et seq. Colt was committed in large part based upon the testimony of clinical psychotherapist Rex Rosenberg, who diagnosed Colt with Paraphilia Not Otherwise Specified  Paraphilia; alcohol dependence; partial sustained remission in a controlled environment; cannabis dependence; impartial sustained remission in a controlled environment; and antisocial personality disorder. Rosenberg also opined that Colt had serious difficulty controlling his behavior and would be at a high risk to commit a future sex offense. 

According to Colt in his subsequent appeal, however, one of the problems with Rosenberg's testimony was that it was largely based upon records of Colt's prior convictions which were inadmissible. This being the case, Colt claimed thatRosenberg could not have relied upon them in forming his expert opinion pursuant to K.S.A. 60-456(b), which provides that

If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.  

And the Supreme Court of Kansas generally agreed with Colt, noting, "In contrast to the federal rule, Kansas has adopted the traditional approach to the question whether an expert may rely on reports from third parties, such as other experts, if the reports do not fall within any hearsay exception. Under the Kansas rule, experts' opinions based upon hearsay are not admissible in any court proceedings.

The court went on to note, however, that with regard to the subject records,

the parties not only stipulated to their foundation but also agreed that the records' admission was unnecessary, as concerns about their content could "be appropriately addressed simply by asking [Rosenberg] to refer specifically to a specific record if he has testified about something that he claims is from the record." Admission of unreliable statements by out-of-court declarants to prove the truth of the matter asserted is exactly what the hearsay rule is designed to prevent; this agreement appears to have eliminated any useful purpose our enforcement of the rule might serve; waived any initial objection to the Rosenberg's reliance on and reference to the records; and, to the extent admission of his opinion was error, invited it.

The court thus found no error with the proceedings below and affirmed Colt's civil commitment.

-CM

Avoiding Confrontation: New Jersey Appellate Court Finds Admission Of Excited Utterance Did Not Violate Confrontation Clause

Like its federal counterpart, New Jersey Rule of Evidence 803(c)(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.

It seems clear to me that the Superior Court of New Jersey, Appellate Division, in its recent opinion in State ex re. B.S., 2009 2140031 (N.J.Super.A.D. 2009), correctly found that the trial court properly admitted the victim's "excited utterance" under this rule. And it only seems somewhat less clear to me whether the appellate court made the right call in finding that this "excited utterance" was admissible notwithstanding the Confrontation Clause.

In B.S., 

Camden Police Officer A. Hoskins was on patrol near Whitman Park when she was flagged down at the intersection of Pershing and Chase Streets by an older man. The officer noticed the man was out of breath and his face was swollen. The man related that he had a pacemaker and was in pain. He told Officer Hoskins he had been assaulted and robbed at the corner of Carl Miller Boulevard and Pershing Street. The man explained that he was riding his bicycle when he heard footsteps running up behind him. He was then struck from behind and fell from his bicycle. His assailants took two dollars. The man remembered two tall, young males watching him as he counted his money, and described one as wearing a gray sweater and tan pants and the other wearing a green sweatshirt and blue jeans.

B.S., a juvenile, and another individual were later apprehended in connection with the incident, and B.S. was eventually tried for acts that, if committed by an adult, would constitute second degree robbery. The victim did not testify at trial, but the State did call Officer Hoskins to testify with regard to the victim's description of his assailants. The court eventually entered an adjudication of delinquency against B.S., prompting his appeal.

One ground for B.S.' appeal was that the victim's description of his assailants was hearsay, rendering Officer Hoskins' testimony improperly admitted. The Superior Court of New Jersey, Appellate Division, quickly disposed of this issue, finding that

Here, moments after being assaulted from behind and robbed, surely a "startling event," the breathless and visibly injured victim flagged down Officer Hoskins. The officer immediately put the victim in her patrol car, where the victim continued to describe the attack and his assailants. The victim's excited state surely continued during this period. Consequently, the trial judge properly admitted the hearsay statements of the non-testifying victim relating the event and describing the assailants as excited utterances under N.J.R.E. 803(c)(2).

B.S. also claimed that the admission of the victim's statements through the testimony of Officer Hoskins violated his rights under the Confrontation Clause pursuant to Crawford v. Washington, 541 U.S. 36 (20040, because the statements were "testimonial," i.e., "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." The court, however, noted that in Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court found that "[n]ontestimonial statements are those made under circumstances 'objectively indicating that the[ir] primary purpose...is to enable police assistance to meet an ongoing emergency.'" Under this standard, the court was able to find that the victim's statements were nontestimonial, concluding:

Here, when the victim flagged down Officer Hoskins, he had just been attacked and robbed, surely a startling event. The victim was out of breath and in pain. His statements describing the attack and his assailants were intended to secure help for himself. Those statements were nontestimonial, and their admission did not impinge on B.S.'s right to confront the witness against him.

-CM

Money For Nothing: Court Of Appeals Of Texas Upholds Excited Utterance Ruling In Elder Theft Appeal

Like its federal counterpart, Texas Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Usually, the startling event or condition triggering this "excited utterance" exception is something along the lines of a physical or verbal assault (event) or an illness or injury (condition); however, as the recent opinion of the Court of Appeals of Texas in Arriaga v. State, 2009 WL 2045220 (Tex.App.-San Antonio 2009), makes clear, the startling event can be something along the lines of somebody without authorization withdrawing money from your bank account.

In Arriaga, Flor E. Arriaga was convicted of one count of theft from an elderly individual, $500-$1500, and three counts of debit card abuse based upon the following facts adduced at trial:

In 2005, [Mary] Kelley was an eighty-year-old woman who, after a surgery in early 2005, needed the help of caregivers. Thus, she hired Domestic Agency to provide caregivers for her. Domestic Agency sent Arriaga to work for Kelley. In October 2005, Arriaga had been working for Kelley for a couple of months when Kelley accused Arriaga of stealing her money by fraudulently using her ATM debit card.

Kelley, however, died before trial, and Arriaga's defense at trial was that Kelley gave her consent to use her debit card. Obviously, Kelley was not available to contradict this testimony at trial, so the prosecution called Patricia Sandusky, an employee at Kelley's bank, who testified

that as a result of a call from her bank, Kelley learned that her account was missing $800. Sandusky testified that Kelley was very upset when she arrived at the bank, claiming that money was missing from her account. When Sandusky and Kelley identified the three transactions made without her consent, Sandusky asked Kelley if she had the card in her possession at all times. Kelley said that she did. Sandusky then asked her if anyone could have taken the card without her knowledge. Sandusky testified that Kelley did not want to believe that her caretaker could do such a thing.

After she was convicted, Arriaga appealed, claiming, inter alia, that Kelley's statements constituted inadmissible hearsay. The Court of Appeals of Texas disagreed, finding that Kelley's statements qualified as excited utterances under Texas Rule of Evidence 803(2) because "the evidence show[ed] a frail, eighty-year-old woman, who was recovering from heart surgery and needed help at all times, learning that someone had taken money out of her account and then on arriving at the bank, learning that her caretaker could be the responsible party.

-CM

Arizona v. Gant: A Windfall For The Government?

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

In reaching this last conclusion, the Supreme Court was expressly repudiating its prior opinions in United States v. Harris, 331 U.S. 145 (1947), and United States v. Rabinowitz, 339 U.S. 56 (1950), which had ruled the search incident to a lawful arrest for approximately two decades and allowed such broader searched incident to lawful arrests. Twelve years after Chimel, in New York v. Belton, 453 U.S. 454 (1981), a majority of the Court found that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." It was, however, Justice Brennan's construction of the majority opinion in his dissent that his since predominated. According to Brennan, the majority "adopt[ed] a fiction - that the interior of a car is always within the immediate control of an arrestee who has recently been in the car." While in Belton, a single officer searched a vehicle when there were four unsecured arrestees, Justice Brennan found that the majority's conclusion "would presumably be the same even if Officer Nicot had handcuffed Belton and his companions in the patrol car before placing them under arrest, and even if his search had extended to locked luggage or other inaccessible containers located in the back seat of the car."  

All of this changed with the Court's recent opinion in Arizona v. Gant, where it "reject[ed] this reading of New York v. 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." So, Gant was a victory for criminal defendants, right? This is is certainly what commentators, including myself, said in the wake of the Court's opinion.

But now, I'm not so sure. You see, the above language in Gant was not the Court's sole holding. Instead, relying upon Justice Scalia's concurrence in Thornton v. United States, 541 U.S. 615 (2004), which in turn relied upon Harris and Rabinowitz, the Court held:

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton, 541 U. S., at 632 (SCALIA, J., concurring in judgment).  In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence....But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein. 

So, what does "reasonable to believe" mean? Seeing as how this language from Gant came from Scalia's concurrence in Thornton, and seeing as how Scalia relied upon Rabinowitz, it seems to me that the answer should be "probable cause." Why? Well, in upholding the arresting officers' search of the arrestee's desk, safe, and file cabinets in that case incident to his lawful arrest, the Court concluded

In the instant case the search was not general or exploratory for whatever might be turned up. Specificity was the mark of the search and seizure here. There was probable cause to believe that respondent was conducting his business illegally. The search was for stamps overprinted illegally, which were though upon the most reliable information to be in the possession of and concealed by respondent in the very room where he was arrested, over which room he had immediate control and in which he had been selling such stamps unlawfully. (emphasis added). 

Of course, "reasonable to believe" is a lot closer to "reasonable suspicion" than it is to "probable cause," and, because the automobile exception already allowed automobile searches based upon probable cause, it seems likely that courts will merely require reasonable suspicion. While it is not difficult to establish reasonable suspicion, an officer would still have to be able point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. And I don't see how the officer in People v. Osborne, 2009 WL 2026328 (Cal. App. 1 Dist. 2009), established reasonable suspicion.

In Osborne, officers arrested Christopher Osborne, hadcuffed him and recovered a loaded nine-millimeter semiautomatic handgun from him, and then searched his Lexus, removing from it a pouch containing drugs. Osborne moved to suppress the drugs, but the trial court denied his motion, and the appellate court affirmed on Osborne's appeal, finding that

Although the firearm found on defendant was loaded, it was reasonable to believe that the vehicle might contain additional items related to the crime of gun possession such as more ammunition or a holster. Thus we find that the search of the passenger compartment was reasonable under the Fourth Amendment....Contrary to defendant's assertions on appeal, it matters not whether the officers had probable cause to believe the automobile contained evidence of a crime or contraband, or whether the officer believed the car to be stolen. Such factors would have permitted the search of the vehicle under the automobile exception, but are not required for a search of the car incident to defendant's arrest. The Gant court specifically requires only a "reasonable basis to believe" the vehicle contains relevant evidence, a standard less than full probable cause.

Really? According to this reading of Gant, it seems to me that whenever officers arrest someone in a car and recover a weapon from him, they have reason to believe evidence relevant to the crime of arrest might be found in the vehicle. And if that's the case, Gant is a victory for the government, not criminal defendants.

-CM

Garden State (Of Mind): Connecticut Federal Court Finds Psychotherapist-Patient Privilege Waived Even Under Narrow View Of Waiver

All federal courts and most states recognize some version of the psychotherapist-patient privilege, under which a patient has the privilege to refuse to disclose confidential communications made to a psychotherapist for the purpose of diagnosis or treatment. I have posted a couple of entries on this blog (here and here) about the two different interpretations of when a party waives the psychotherapist-patient privilege.

Under the "broad" view, "the mere allegation of emotional distress was viewed as sufficient to justify discovery into that party's psychological records to determine whether events other than the challenged conduct may have caused or exacerbated the party's distress."...

In contrast, under the "narrow" view, a plaintiff is not deemed to have waived the privilege by alleging only “garden variety” emotional distress....Courts using the narrow approach "must distinguish between garden variety claims and claims for more 'severe' emotional distress, such as those involving a diagnoses of a specific psychiatric disorder."..."Garden variety claims refer to claims for 'compensation for nothing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized.'"

In In re Sims, 534 F.3d 117, 132 (2nd Cir. 2008), the Second Circuit became one of the courts adopting some version of the "narrow view" of waiver. Even under that "narrow view," however, the United States District Court for the District of Connecticut still found that the plaintiff had waived the psychotherapist-patient privilege in its recent opinion in Jacobs v. Connecticut Community Technical Colleges, 2009 WL 2046016 (D.Conn. 2009). 

In Jacobs, Gary Jacobs brought an action against Connecticut Community Technical Colleges, claiming that it discriminated against him on the basis of his sex and sexual orientation in violation of Title VII of the Civil Rights Act of 1964 and "that as a result of such discrimination, he 'has suffered and continues to suffer economic losses and emotional distress.'" After Jacobs commenced the action, he sought a protective order covering "all documents and information regarding medical and health records pertaining to the plaintiff."  

According to Jacobs, the psychotherapist-patient privilege covered such documents becaue while he alleged that he "suffered and continues to suffer economic losses and emotional distress" as a result of the discrimination, he did not plead a separate cause of action for emotional distress." And the court found that if it "were to confine its analysis to the pleadings alone it would conclude...that the plaintiff had not waived the privilege because his complaint assert[ed] no more than a garden variety claim for emotional distress."

The court, however, looked beyond the pleadings and noted that

in response to the defendant's interrogatories, the plaintiff identifie[d] Bruce S. Rothschild, M.D., Naomi Neurwirth, L.C .S.W., and Elliot Strick, M.A., L.M.F.T., as physicians, psychologists, or social workers from whom he "received medical (including psychiatric) treatment...for the injuries alleged in the Complaint."...The responses also state[d] that Strick treated him for "depression and anxiety caused by the plaintiff's work environment."...The responses further indicate[d] that "[p]rior to the events relevant to this complaint, the plaintiff has not suffered from any other physical or mental disease, disability or defect," that the plaintiff ha[d] not recovered from the injuries alleged in the complaint, and "presently suffers from the following conditions; insomnia, depression ... and an inability to focus and concentrate."...In addition, in response to the defendant's requests for production of documents, the plaintiff disclosed letters from two of his treating psychotherapists that were addressed to his attorney.

According to he court, these actions constituted waiver of the psychotherapist-patient privilege because "the plaintiff's interrogatory responses and disclosed letters identif[ied] diagnoses of specific psychiatric disorders. It is precisely such diagnoses which distinguish a claim for severe emotional distress from a mere garden variety claim."

-CM

Sine Qua Nah: Court Of Appeals Of Minnesota Opinion Fleshes Out Specifics Of Rule 807

Like its federal counterpart, Minnesota Rule of Evidence 807 provides in relevant part that

A statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

In its 1985 opinion in State v. Ortlepp, 2009 WL 2015404 (Minn. 1985), the Supreme Court admitted a non-judicial prior consistent statement as substantive evidence based upon four factors:

(1) the witness was available for cross-examination regarding the statement, thereby assuaging any confrontation problems; (2) there was proof that the prior statement was made; (3) the statement was against the declarant's penal interest, a fact that increases its reliability; and (4) the statement was consistent with all the other evidence introduced.

Since, Ortlapp, Minnesota courts have referred to these as the Ortlepp factors, but are they the sine qua non of such a statement being admissible under Rule 807, or are there other factors that can lead to its admission?

In Coleman, 

Officer Brent Petersen was dispatched to C.A.'s residence. Upon his arrival, Officer Petersen noted that C.A. seemed frightened and upset and looked as if she had been crying. In a recorded statement, C.A. told Officer Petersen that she had been outside walking her dog when she was confronted by appellant Christopher Coleman, a friend of hers with whom she had a brief sexual relationship. According to C.A., appellant was upset because he thought C.A. may have given him a sexually transmitted disease (STD). C.A. claimed that she told him to leave, but appellant responded by pushing her to the ground, and choking her. C.A. claimed that appellant told her that he had an appointment the next day and that if he found out that he had a STD, he was going to shoot and kill her.    

Coleman was thereafter charged with terroristic threats and two counts of domestic assault. At trial, C.A. testified that Coleman and she had been friends and that the two had a brief sexual relationship. When questioned about the assault, however, C.A. stated that she did not remember the details of the assault because it occurred two years ago. Although C.A. agreed that she was assaulted, she testified that she did not remember being choked, having neck pain, or seeing Coleman on that date. A break was subsequently taken to allow C.A. to review her prior statement to Officer Petersen. After reviewing the statement, C.A. testified that she still could not remember the details of the assault, but that she believed she told Officer Petersen the truth. C.A.'s recorded statement was later played for the jury.

C.A. was also questioned regarding an application that she filled out for a harassment restraining order against Coleman. C.A. claimed that she could not remember when she filled out the application, but conceded that she must have filled it out shortly after the assault. The affidavit and petition for harassment restraining order were subsequently admitted into evidence. In the affidavit, C.A. claimed that Coleman assaulted her and threatened to kill her.

After Coleman was convicted, he appealed, claiming, inter alia, that the trial court erred by allowing the prosecution to introduce C.A.'s recorded statement as substantive evidence. And the Court of Appeals of Minnesota agreed with him that the recorded statement could only be admitted as impeachment evidence, and not as substantive evidence, under Minnesota Rule of Evidence 613. 

Coleman also argued that the statement was not admissible under Minnesota Rule of Evidence 807 because it did not satisfy all of the Ortlepp factors in that 

the statement (1) was not a sworn statement; (2) was not a statement against her interest; and (3) was of questionable reliability in light of her sworn testimony that she could no longer accuse appellant of being her assailant due to a failing memory.

On this point, the court disagreed, noting that the Ortlepp factors "provide guidance," but "are not an exclusive list of the indicia of reliability. Instead, the court found that C.A.'s recorded statement was sufficiently trustworthy, and thus admissible, because

(1) C.A. admitted making the statement, testified that she believed she was telling the truth when she made the statement, and was available for cross-examination; (2) there was no dispute that she made the statement; (3) the statement was very detailed and made shortly after the assault; (4) C.A. had no apparent motive to lie to Officer Petersen: (5) the statement was consistent with [another witness'] testimony...; (6) C.A.'s statement about being choked was corroborated by the pictures taken by Officer Petersen, which show red marks on C.A.'s neck; and (7) the statement was consistent with the sworn affidavit in support of her application for a harassment restraining order against appellant that C.A. submitted a few days after the assault.

-CM

Not That I'm Biased: Court Of Appeals Of Minnesota Misapplies Rule 408 In Automobile Accident Appeal

Like its federal counterpart, Minnesota Rule of Evidence 408 provides that:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations is likewise not admissible.  This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.  This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

So, clearly evidence of settlement negotiations can be admissible to prove bias, but when is such evidence probative on the issue of whether a witness is biased? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in Lallas v. Paquette, 2009 WL 2015821 (Minn.App. 2009), and I think that it answered the question incorrectly.

In Paquette, 2009 WL 2015821 (Minn.App. 2009), 

In 2003, respondent Drake Lallas was involved in two automobile accidents. The first accident occurred in August, and the second in November, when a vehicle driven by appellant Lolita Paquette struck Lallas's vehicle from behind. Approximately two weeks after the August accident, Lallas started a job that required physical labor. Although Lallas experienced lower-back aches and soreness, his daily activities were not limited. Following the November accident, however, Lallas experienced severe back pain and was prescribed pain medication. Lallas attended physical therapy, as recommended by his physician, but reported no improvement. He was referred to Midwest Spine Institute, where ultimately he was seen by Louis Saeger, M.D., the clinic's pain specialist.

Lallas subsequently sued the owner of the vehicle in the August accident and Paquette in a single action, but the district court granted a motion to sever, and Lallas settled her claims related to the August accident. Meanwhile, the jury in the trial against Paquette "found both drivers negligent, and attributed 75% of the fault to Paquette and 25% to Lallas. The jury also found that Lallas had sustained a permanent injury, was entitled to past medical expenses and lost wages, and was entitled to $286,110 for future medical expenses."  

This verdict came after the trial judge precluded Paquette from introducing evidence that Lallas reached a settlement with the owner of the vehicle in the August accident. And after the entry of that verdict, Paquette appealed, claiming, inter alia, that this evidence should have been admissible to prove bias by Lallas, as Lallas "had every reason to minimize his injuries from the [August] accident, for he had already settled his claim with regard to that accident."

The Court of Appeals of Minnesota disagreed, concluding that

[t]he jury was not kept from hearing about the August accident or about Lallas's physical condition thereafter. Indeed, the jury accounted for the August accident when it reduced the award for future medical expenses by 15%, which is consistent with the expert's apportionment. Further, evidence of the prior settlement would not serve to demonstrate bias in any way in which that evidence about Lallas's injuries from the August accident did not.

What? Paquette seems close to me to the paradigmatic case where evidence of settlement negotiations is admissible to prove bias. This paradigmatic case, which I use in my Evidence class, is a car accident involving Alice, Bob, and Carol. Alice and Bob settle and subsequently sue (or are sued by) Carol. Alice and Bob both testify that Carol was (primarily) at fault for the accident. In this case, Carol is entitled to present evidence of the settlement between Alice and Bob because it proves their bias. In other words, having already reached a settlement, it does not benefit, and only harms, Alice to pin the blame on Bob and vice versa. Instead, based on their settlement it is in the best interests of Alice and Bob to pin the blame on Carol and hope that this leads to a large award of monetary damages.

The same (basically) applied to Lallas. Having already settled with the owner in the vehicle in the August accident, it did not benefit, and would have only harmed, him to pin the blame on him. Instead, based on his settlement, it was in his best interest to pin the blame on Lallas. Moreover, contrary to the court's conclusion, this evidence would have demonstrated bias in a way that the evidence about Lallas's injuries from the August accident did not. The simple fact that Lallas was in another accident did not prove that he would try to pin the blame on Paquette; if the other case went to trial, Lallas would have had no incentive to pin the fault (primarily) on Paquette because it would have hurt his chance of winning the other case. It was the fact that there was a settlement in the other case that established bias.

-CM

Gone Fishin'?: Eastern District Of Pennsylvania Denies Evidentiary Hearing Into Juror Misconduct In State Senator's Case

Federal Rule of Evidence 606(b) 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 that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

What this means is that if a defendant has enough evidence that the jury's verdict was tainted by extraneous prejudicial information, the court should conduct an evidentiary hearing to determine the precise, nature, quality, and extent of the jury breach. In its recent opinion in United States v. Fumo, 2009 WL 1977715 (E.D. Pa. 2009), the United States District Court for the Eastern District of Pennsylvania did not award the defendant such a hearing, and I'm not sure that this was the correct decision.

In Fumo, former Pennsylvania state senator was convicted   in connection with five areas of wrongdoing: (1) fraud and conspiracy to defraud the Pennsylvania Senate; (2) fraud and conspiracy to defraud Citizens Alliance for Better Neighborhoods; (3) conspiracy to defraud the United States Internal Revenue Service (“IRS”); (4) fraud related to the Independence Seaport Museum (“ISM”); and (4) obstruction of justice and conspiracy to obstruct justice. 

Fumo eventually filed a second motion for new trial.

As described in an Affidavit submitted by Fumo's trial counsel, Dennis Cogan, Esq., journalist Ralph Cipriano contacted Cogan regarding information he obtained during post-verdict interviews with several jurors. In these interviews, Cipriano purportedly learned of several extrajudicial influences upon the jury. First, by the morning of Monday, March 16, 2009-the day the verdict was delivered-all of the jurors allegedly heard media reports describing both juror Eric Wuest's improper use of social networking sites during trial and the fact that he was being questioned by the Court. Second, one of the jurors indicated that, while at her workplace on a Friday during trial, several co-workers informed her of Fumo's prior prosecution and the conviction and imprisonment of John Carter, former president of the Independence Seaport Museum. In light of this newly-discovered information, Defendant Fumo s[ought] both an evidentiary hearing on the juror exposure to extraneous information and, in turn, a new trial.

Cipriano also used the information he obtained to write the article, Fumo, After The Fall. Despite this evidence, the Eastern District of Pennsylvania refused to order an evidentiary hearing, concluding that

[t]he Defendant's hearing request is precisely the sort of “fishing expedition” against which our jurisprudence has cautioned. Initially, it is worth noting the circumstances behind the claimed new evidence. According to the government, Ralph Cipriano, an independent journalist who was present for the duration of the trial, conducted interviews with several jurors in preparation of an article to be published in Philadelphia Magazine. Upon learning of the jurors' awareness of extraneous information, he immediately contacted defense counsel Dennis Cogan, without ever extending the same courtesy to Government counsel. When Government counsel attempted to speak with him regarding this new evidence, Cipriano, both directly and through his editor, declined to reveal any information about his interviews or the identity of the juror. By doing so, Cipriano and Philadelphia Magazine oddly chose not to balance the scales upon discovery of information that could affect the widely-publicized trial and conviction of a high-profile public figure.

Really? When I think of a fishing expedition, I think of a party with either vague or no allegations seeking a hearing to see what he can uncover. And that clearly wasn't the case here. Here, there were specific allegations, and Fumo was merely seeking the evidentiary hearings to figure out the details. I also don't see why the (mis)behavior of the journalist should be imputed to Fumo and hurt his chances of obtainingan evidentiary hearing. Was the court saying that if Cogan had extended the same courtesy to the Government, it might have granted the hearing?

I find much more persuasive the court's second reason for denying the hearing, which was that 

the defense opted not to rely on either an affidavit from any particular juror or on the affidavit of Cipriano, but rather on the affidavit of Cogan, who learned of the alleged juror misconduct only through Cipriano. Aside from the fact that such an affidavit is double hearsay, it far from constitutes the clear, strong, substantial, and incontrovertible evidence that a specific, nonspeculative impropriety occurred, sufficient to justify a post-verdict interrogation of jurors.

-CM

Human Behavior: Eighth Circuit Construes Expressions Of Desire As "Sexual Behavior" For Rape Shield Purposes

Federal Rule of Evidence 412(a), the Rape Shield Rule, provides that

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

But what exactly constitutes sexual behavior? Well, as the recent opinion of the Eighth Circuit in United States v. Papakee, 2009 2066797 (8th Cir. 2009), makes clear, courts have construed this phrase, and thus Federal Rule of Evidence 412(a)'s proscription, broadly.

In Papakee, LaMont William Papakee and Connie Frances Blackcloud were convicted by a jury of committing sexual abuse against a Native American woman, L.D., in Indian country. Both men subsequently appealed, with Papakee claiming, inter alia, that the trial court "abused its discretion at trial by excluding evidence designed to attack L.D.'s credibility." Specifically, "Papakee sought to introduce testimony from Wesley Sebetka, a deputy in the Tama County Sheriff's Office, that while he was interviewing L.D. about the sexual abuse [shortly after it allegedly occurred], L.D. told him that he was 'cute' and asked him if he wanted to 'crawl into bed' with her."

The trial court had found this evidence to be inadmissible under Federal Rule of Evidence 412(a) (and that it would fail the Rule 403 balancing test even if it were not barred by the Rape Shield Rule), and the Eighth Circuit agreed. The Eighth Circuit rejected Papakee's argument that the subject evidence was not evidence of other "sexual behavior" by L.D., noting that

[t]he ordinary meaning of "behavior" extends to the manner in which a person conducts herself, Webster's Third New International Dictionary 199 (2002), and when a person undertakes conduct aimed at engaging in sexual activity, that conduct is naturally understood to be "sexual behavior." There is no reason to believe that the rule is limited to sexual intercourse or sexual contact. To the contrary, the advisory committee's notes explain that the word “behavior” should be construed to include “activities of the mind,” such as fantasies or dreams. Fed.R.Evid. 412 advisory committee's notes; see also Wilson v. City of Des Moines, 442 F.3d 637, 639-40, 643-44 (8th Cir. 2006) (concluding that female employee's statements about vibrators and male sex organs constituted “sexual comments and behavior” that was governed by Rule 412). If a person's unexpressed desire to engage in sexual activity is inadmissible, then surely her expression of that desire to another person also comes within the scope of the rule.

The Eighth Circuit also rejected Papakee's argument that the trial court's exclusion of the subject evidence violated his rights under the Confrontation Clause, finding that "Rule 412 serves important purposes of preventing harassment or embarrassment of sexual abuse victims, and the proffered evidence was of little or no probative value."

-CM

Confession(s) To Make: Florida Court Orders Separate Trials Of Former Football Players Based Upon Bruton Issues

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. This so-called "Bruton doctrine" explains why former high school football players in Bradenton, Florida were informed on Friday that they will have separate murder trials. 

Former Palmetto High School football players Ta Heem Blake, 17, and Marquis Sanders, have been charged with murder in connection with a deadly home invasion that took the life of 55 year-old Maria Lerma. Part of what led to the charges against the two were their own incriminatory statements: Blake made statements that incriminated both himself and Sanders, and Sanders made statements that incriminated both himself and Blake.  

What this meant was that, pursuant to Bruton, the prosecution could have faced a significant problem if it tried Blake and Sanders jointly. If it held such a joint trial and Blake invoked his Fifth Amendment privilege against self-incrimination, his incriminatory statements would have been inadmissible because they incriminated Sanders. And if there were a joint trial and Sanders invoked his Fifth Amendment privilege against self-incrimination, his incriminatory statements would have been inadmissible because they incriminated Blake.

Furthermore, as the Supreme Court found in Cruz v. New York, 481 U.S. 186 (1987), it doesn't matter that Blake and Sanders ostensibly made something akin to "interlocking confessions" because Bruton still applies, even when both defendants have made confessions. 

-CM 

No Collateral: Tenth Circuit Finds Extrinsic Evidence Of Child Abuse Was Properly Admitted In International Parental Kidnapping Appeal

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.

The reason this Rule precludes the use of extrinsic evidence is that the (un)truthfulness of a witness is collateral to the substantive issues at trial. What this means, as is made clear by the Tenth Circuit's recent opinion in United States v. Rizvanovic, 2009 WL 2105231 (10th Cir. 2009), is that when extrinsic evidence of specific instances of conduct is relevant not only to a witness' (un)trustworthiness but also relevant to the substantive issues at trial, Rule 608(b)'s proscription does not apply.

In Rizvanovic, Vojko Rizvanovic was charged with, inter alia, one count of international parental kidnapping. The evidence adduced at trial indicated that

Defendant had two young daughters, one born in 2002 and the second born in 2005, and that he and their mother had lived together from the late 1990s until the fall of 2006. In October 2006, the children's mother left the apartment in which she had been living with Defendant and took the children with her to a shelter. In subsequent custody proceedings, a state court judge found that Defendant had committed emotional and domestic abuse against the children and their mother, and the court awarded sole custody of the children to their mother. Defendant was permitted to have his first unsupervised visit with his daughters in December 2006. In February 2007, he was permitted his first overnight visit with his children, but he did not return them as scheduled. In March 2007, law enforcement officers learned that Defendant and the girls had been in Australia for the past three weeks and would soon be flying to Macedonia. Defendant was arrested on a layover in the Vienna airport, and the girls were returned to their mother.

At trial, Rizvanovic conceded all of the elements of the kidnapping offense but asserted that his motivation fell within the statutory affirmative defense in 18 U.S.C. Section 1204(c)(2), which applies when a parental kidnapper "was fleeing an incidence or pattern of domestic violence." Specifically, 

he testified that he had observed the children's mother abuse the children on several occasions when they were living together. He testified that her abuse became worse following her involuntary hospitalization for mental health reasons in the spring of 2005. He further testified that his main reason for taking the children was to protect them and prevent their mother from hurting them.

On cross-examination, the prosecution cross-examined Rizvanovic as to whether he had abused his children and their mother, and the court allowed extrinsic rebuttal evidence tending to disprove his answers. After the jury found Rizanovic guilty of international parental kidnapping, he appealed, claiming, inter alia, that the trial judge erred by allowing the prosecution to introduce extrinsic evidence tending to disprove his answers because Rule 608(b) deems such evidence inadmissible. 

The Tenth Circuit disagreed, noting that Rule 608(b)'s proscription applies only when the extrinsic evidence is solely relevant to the collateral issue of the witness' (un)truthfulness. Conversely, the court found that Rule 608(b) "does not bar extrinsic evidence to the extent it goes to substantive issues, and here the rebuttal evidence tended to disprove Defendant's affirmative defense that he took the children to free them from domestic violence." The Tenth Circuit thus found that the trial judge did not err and affirmed Rizanovic's conviction.

-CM

Rape Shield Redux: Eighth Circuit Holds That District Court Properly Excluded "Other Source" Evidence In Rape Shield Appeal

Federal Rule of Evidence 412(a), the Rape Shield Rule, indicates that

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

Federal Rule of Evidence 412(b)(1)(A), however, indicates that

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

As this latter Rule makes clear, such evidence of other sexual behavior is not automatically admissible; instead, it must be "otherwise admissible under the rules of evidence. This qualifying language was the problem for tha appellant in United States v. Seed, 2009 WL 2045690 (8th Cir. 2009).

In Seed, a jury found Jason Adam Pumpkin Seed guilty of the sole count of an indictment charging him with aggravated sexual abuse and attempted aggravated sexual abuse. This sexual abuse was allegedly committed against Heather Red Cloud, and at trial, the prosecution proved its case in part through presenting evidence of Red Cloud's extragenital injuries resulting from the alleged abuse.

In turn, Pumpkin Seed sought to introduce evidence that those injuries could have been caused by two sexual encounters that Red Cloud with different men within days of the alleged rape. The district court excluded this evidence, prompting Pumpkin Seed's appeal. In that appeal, the Eight Circuit noted that Pumpkin Seed's evidence was arguably admissible under Federal Rule of Evidence 412(b)(1)(A), but only if the evidence was "otherwise admissible" under the rules of evidence.

The Eighth Circuit found, however, that it was not otherwise admissible because 

First, Pumpkin Seed did not make any offer of proof concerning the circumstances of Red Cloud's past sexual activity from which the district court could assess the likelihood of her injuries being caused by her consensual sexual activity....Absent such an offer of proof, we cannot say that the district court abused its discretion in determining that the type and extent of physical injuries present on Red Cloud are generally inconsistent with consensual sexual intercourse, thereby suggesting that the disputed evidence concerning Red Cloud's consensual relationships has little or no probative value in providing an alternate source for her injuries....Second, the probative value of this evidence is substantially outweighed by the high risk of unfair prejudice and confusion of the issues posed by admitting evidence that Red Cloud was involved in at least two sexual encounters with different men, one of whom was married, within days of the alleged rape.

The court thus found that the evidence failed the Rule 403 balancing test and affirmed the district court's opinion.

-CM

Plea Agreement As Improper Influence: New Jersey Appellate Court Finds Prior Consistent Statement Were Properly Admitted In Drug Appeal

New Jersey Rule of Evidence 607 indicates that

Except as otherwise provided by Rules 405 and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility, except that the party calling a witness may not neutralize the witness' testimony by a prior contradictory statement unless the statement is in a form admissible under Rule 803(a)(1) or the judge finds that the party calling the witness was surprised. A prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence.

As the recent opinion of the New Jersey Superior Court, Appellate Division in State v. Davis, 2009 WL 1974509 (N.J.Super.A.D. 2009), makes clear, however, the "improper influence" need not be improper in the sense that we usually think of the word but can include events such as a witness' entry into a plea agreement.

In Davis, Gary Davis was charged with a plethora of drug-related crimes: possession of a controlled dangerous substance (CDS) in the third-degree; possession of a CDS in the third-degree with intent to distribute; distribution of a CDS in the third-degree; third-degree possession of a CDS on or within 1000 feet of school property with the intent to distribute; and third-degree distribution of a CDS on or within 1000 feet of school property. 

Kurt T. Stamp and Richard Ink were allegedly involved in Davis' criminal activities, reached plea agreements, and testified against Davis at his trial. After they tesified, defense counsel "suggest[ed] to the jury that their testimony was not trustworthy because it was given in exchange for a plea agreement." Thereafter, the prosecution introduced written statements made by Stamp and Ink after their arrests which were consistent with their trial testimony and before they were offered plea agreements.

After Davis was convicted, he appealed claiming, inter alia, that the trial court erred by admitting these written statements. The New Jersey Superior Court, Appellate Division disagreed, finding that these statements were admissible under New Jersey Rule of Evidence 607. Davis had argued that this Rule was inapplicable because "his trial counsel was very careful to avoid alleging that Stump or Ink had engaged in a 'recent fabrication,'" but the court concluded that Davis read the Rule "too narrowly." According to the Court, claiming that the testimony of Stamp and Ink was not trustworthy because it was given in exchange for plea agreements was a sufficient "improper influence" to allow for the admission of their prior consistent statements.

-CM

Fresh Enough: Western District Of Wisconsin Finds Statement Created Months After Harassment Qualifies As Recorded Recollection

Federal 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 the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.

My post yesterday addressed two important aspects of this "recorded recollection" exception to the rule against hearsay: (1) When does a witness have insufficient recollection, and (2) When does a witness need to adopt a memorandum/record? My post today, and the recent opinion of the United States District Court for the Western District of Wisconsin in Vorwald v. 3M Co., 2009 1970694 (W.D. Wis. 2009), both address a third aspect: When is a matter fresh in a witness' memory?

In Vorwald, Lori Vorwald worked at 3M Company's manufacturing facility in Menomonie, Wisconsin from December 2005 until July 2007, when she went on medical leave. She contended that 3M violated Title VII of the Civil Rights Act of 1964  by first subjecting her to a hostile work environment because of her sex and because she complained about harassment and then making conditions so unbearable that she was forced to take medical leave.

3M subsequently moved for summary judgment, and the problem for Vorwald was that "she [wa]s unable to recall the date of nearly any incident of harassment." To overcome this problem, however, Vorwald cited a statement she created dated November 19, 2007 in which she did provide dates for incidents of harassment. 3M countered that this statement was inadmissible, but the Western District of Wisconsin disagreed, finding that the statement was admissible under Federal Rule of Evidence 803(5). And in finding that the incidents of harassment were fresh in mind when Vorwald created the statement, the court concluded that she "created the document shortly after she took medical leave, when the events of the previous year would have been much fresher in her mind" and that the Seventh Circuit had found in United States v. Green, 258 F.3d 683 (7th Cir. 2001), that a "statement may be admissible under Rule 803(5) even if it was made several months after [the] incident."

-CM  

Record(ing) Recollection: Minnesota Case Reveals Two Important Aspects Of Recorded Recollection Exception To Rule Against Hearsay

Like its federal counterpart, Minnesota 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 testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.

The recent opinion of the Court of Appeals of Minnesota in State v. Stone, 2009 WL 1919005 (Minn.App. 2009), addressing two important aspects of this "recorded recollection" exception: (1) When does a witness have insufficient recollection, and (2) When does a witness need to adopt a memorandum/record? 

In Stone, Shane Stone was charged with aiding and abetting first-degree aggravated robbery based upon a crime committed at the house of D.B., A.J., their two young children, and A.J.'s father, G.J. The morning after the robbery, G.J. made a statement to police, which was recorded and reduced to writing, and during which, inter alia, he was asked "And did you get a good look at his face?" and answered, "Yeah he had glasses and he's light complected." Several days later, G.J. (as well as D.B. and A.J.) identified Stone as one of the robbers during a photo lineup. 

At Stone's trial, G.J. testified, and he never responded to any questions by saying, "I don't remember" or "I don't know."  G.J. initially testified that he did not get a good look at the man without a mask, but after being shown statements that he made during his police interview, he stated, “I can't say for sure right now." G.J. also had difficulty remembering details of the physical description of the intruder that he gave to the police, even after he was shown his prior statements. But G.J. agreed that the witness statement shown to him was “an accurate reproduction of the questions [that he was] asked and the answers that [he gave]."

Thereafter, over defense counsel's objection, the prosecution introduced into evidence the audio recording of G.J.'s statement. After Stone was convicted, he appealed, claiming, inter alia, that the audio recording was improperly admitted under Minnesota Rule of Evidence 803(5). Stone first claimed that because G.J. never answered any questions at trial by saying "I don't remember" or "I don't know," he lacked the insufficient recollection necessary for Minnesota Rule of Evidence 803(5) to apply.

The Court of Appeals of Minnesota disagreed, finding that

Rule 803(5) does not require that a witness realize and claim that his recollection is insufficient; it requires that a witness "has insufficient recollection to testify fully and accurately." G.J.'s statement, "[t]hat's all I remember right now," indicated insufficient recollection if the audio-recorded police interview contained evidence that G.J. had not been able to remember at trial.

Second, Stone claimed "that the recording of G.J.'s police interview was inadmissible because it was not shown that G.J. adopted the recording." According to Stone, because G.J. did not make the recording, the state needed to show that he had reviewed and adopted the recording at a time when the robbery was fresh in his memory. The court rejected this argument as well, finding that

there [wa]s no real dispute that G.J. made the statements on the audio recording. There is no claim that the voice on the recording is not G.J.'s voice or that the recording does not accurately reflect what G.J. said during the interview.

In other words, if the prosecution were introducing the written statement prepared by a police officer based upon what G.J. told police, G.J. would have needed to adopt that writing to ensure it accurately captured what G.J. said. But because the prosecution introduced the audio recording of what G.J. actually said, there was no need for G.J. to adopt that recording.

-CM

In The Maine: District Of Maine Refuses To Apply Maine's Peer Review Privilege In Disparate Treatment Case

Federal Rule of Evidence 501 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.

What this means, as is made clear by the recent opinion of the United States District Court for the District of Maine in Thayer v. Eastern Maine Medical Center, 2009 WL 1686673 (D.Me. 2009), is that when a plaintiff brings federal claims against a defendant in a federal court located in a particular state, the court is not bound by the state's rules of privilege.

In Thayer, Kristine Thayer, formerly a physician with Eastern Maine Medical Center (EMMC), sued her former employer, alleging gender discrimination and whistleblower retaliation, based on, among other things, disparate treatment in connection with the medical peer review process set forth in the Maine Health Security Act. To prove these claims, Dr. Thayer sought to discover all of the records and documents generated in connection with peer review proceedings associated with her professional competence. She also sought to discover all of the records collected with regard to peer review or evaluation of Dr. Mohammad Tabbah, a physician with a similar professional practice area who received, according to Dr. Thayer, significantly better working conditions, privileges, and treatment in general from EMMC than she did, for no apparent reason other than his sex or gender. EMMC and Dr. Tabbah objected to these discovery requests, claiming that peer review records were subject to confidentiality pursuant to Subchapter 1 of the Maine Health Security Act, 24 M.R.S. Section 2510-A, which provides in relevant part that

[A]ll professional competence review records are privileged and confidential and are not subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity and are not admissible as evidence in any civil, judicial or administrative proceeding. Information contained in professional competence review records is not admissible at trial or deposition in the form of testimony by an individual who participated in the written professional competence review process. 

But the problem for the defendants was that Dr. Thayer raised federal claims, meaning that the District of Maine did not need to apply this "peer review privilege" pursuant to Federal Rule of Evidence 501, which the court construed as "ensur[ing] that, where federal claims are concerned, state law privileges will not override the public's 'right to every man's evidence,' unless the privilege 'promotes sufficiently important interests to outweigh the need for probative evidence.'" 

And, in the case before her, Magistrate Judge Margaret Kravchuk concluded,

I am not persuaded by the argument that the truth-seeking process served by civil discovery should give way to a medical peer review privilege, particularly as the Court has the power to restrict further dissemination of materials beyond what is necessary for the presentation of evidence at trial. I recognize that some federal district courts have recognized the privilege, as cited in the defendants' written support for its objection..., but I agree with the rationales expressed by the Courts of Appeals for the Fourth, Seventh, and Eleventh Circuits that the presumption against privileges is not overcome when the medical peer review privilege is weighed against the discovery of evidence necessary to support the potential vindication of important federal rights, such as the rights protected by Title VII of the Civil Rights Act of 1964, and that the interests served by the privilege can be preserved through means falling short of a total ban on discovery.

Therefore, she "overrule[d] the defendants' objections to the plaintiff's first and seventeenth requests for production, both of which discovery initiatives are necessary to demonstrate Dr. Thayer's claim that EMMC subjected her and Dr. Tabbah to disparate treatment based on gender."

-CM

A Foolish Consistency: Supreme Court Of New Hampshire Opinion Misapplies Prior Consistent Statement Rule

Like its federal counterpart, New Hampshire Rule of Evidence 801(d)(1)(B) provides that:

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

As the recent opinion of the Supreme Court of New Hampshire in State v. White, 2009 WL 1955235 (N.H. 2009), makes clear, however, this rule does not provide the sole method for admitting prior consistent statements into evidence. But it seems to me that the method that the court applied was not, in fact, applicable.

In White, Delvin White was charged with aggravated felonious sexual assault and one count of felonious sexual assault because he, inter alia, allegedly digitally penetrated the vagina of his friend's eight year-old daughter, M.G., with his finger. At trial, M.G. testified against White, claiming that he put his finger inside her. Later, during defense counsel's cross-examination of he daughter, the following exchange took place:

Q: Do you remember what you said to your dad was that Delvin put his hand on your genital area, not in. Do you remember that?

A: Yes.

Q: And later that night when the policeman came and the policeman talked to you that night, right?

A: Yes.

Q: And you talked to other policemen later, right?

A: Yes.

Q: But that night you talked to at least one policeman?

A: Yes.

Q: And you told that policeman that Delvin put his hand on your genital area. Right?

A: Yes.

Thereafter,

[t]o rehabilitate M.G.'s credibility, the State later called Detective Kelley as a rebuttal witness. Detective Kelley testified that officers responding to the scene of an alleged sexual assault do not generally conduct detailed interviews of victims, but rather make an initial report and refer the matter to a trained juvenile investigator. Detective Kelley stated that he had the opportunity to conduct an in-depth, follow-up interview with M.G. the day after the incident. The prosecutor then asked: “Did she at some point tell you whether or not she had been digitally penetrated by Delvin White?” Detective Kelley responded, "Yes, she did."

Subsequently, White was convicted, and he appealed, claiming that the trial court erred by allowing Detective Kelley to testify regarding M.G.'s statement, which he construed as hearsay. And the Supreme Court of New Hampshire found that Detective Kelley's testimony regarding M.G.'s statement was not admissible under New Hampshire Rule of Evidence 801(d)(1)(B) because defense counsel made no express or implied charge against M.G. of recent fabrication or improper influence or motive. 

The court, however, found that "[n]otwithstanding New Hampshire Rule of Evidence 801(d)(1)(B), our common law rule allows the admission of prior consistent statements for the limited purpose of rehabilitation when a witness's credibility has been impeached by the use of prior inconsistent statements." The court then found that the common law rule applied to the case before it and found that the trial court did not err.

But wait a second. How was M.G.'s statement to Detective Kelley the day after the alleged assault a prior consistent statement. M.G. testified at trial that she was digitally penetrated. Defense counsel introduced evidence of prior inconsistent statements M.G. made the night of the alleged assault. The statement to Kelley was after those prior inconsistent statements the day after the assault. How does it makes any sense to introduce these as prior consistent statements?

-CM 

Leave The Falling To Us: Seventh Circuit Affirms Exclusion Of Employee Report In Case Against Metra

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

[a] statement is not hearsay if...The statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

Like all admissions, employee admissions are generally admissible under Rule 801(d)(2)(D) notwithstanding the personal knowledge requirement of Federal Rule of Evidence 602. But, as the recent opinion of the Seventh Circuit in Mister v. Northeast Illinois Commuter R.R. Corp., 2009 WL 1956333 (7th Cir. 2009), makes clear, courts can still find employee admissions made without personal knowledge inadmissible pursuant to Federal Rule of Evidence 403.

In Mister, after a long work day, Gary Mister walked toward his car, slipped, fell, and sued his employer, the Northeast Illinois Commuter Railroad Corporation (Metra), under the Federal Employers Liability Act. At the hospital, Mister could not discuss the incident with Metra Safety Officer Kirk Kroner because he was in pain, but Kroner discussed the fall with Mister's supervisors, who were present at the hospital but did not witness the fall. Kroner handwrote a report of his findings, which also included a statement that another employee had fallen the previous week at the same spot.

According to the report, “[Metra] had a similar incident less then [sic] a week earlier in the same spot.” This statement referred to a slip and fall reported by another Metra employee, Wally Wyman. Apparently, Wyman parked in the same unpaved lot and also slipped on ice. No one knew the details of Wyman's fall. More importantly, despite stating that it was in the same spot, Kroner did not know where either Mister's or Wyman's fall had taken place.

At trial, Mister attempted to introduce this report as an employee admission under Federal Rule of Evidence 801(d)(2)(D), but the district court found it inadmissible because (1) it was not based upon personal knowledge, making it inherently unreliable, and (2) it was inadmissible under Federal Rule of Evidence 403 because its was lacking in probative value based upon Kroner's lack of personal knowledge.

After the jury subsequently found for the defendant, Mister appealed, claiming that the district court erred in deeming the report inadmissible. And the Seventh Circuit agreed with him that the district court erred in finding the report inadmissible under Rule 801(d)(2)(D). The court rejected Metra's contention that employee admissions must be based upon personal knowledge, concluding,

Metra would have us exclude a great chunk of corporate testimony from employees because they rely on information that other people have told them in the course of the job. Briefly, Kroner's report meets all of the Rule's criteria to be classified as non-hearsay. Undisputably, the report that was offered by Mister against his employer Metra, was prepared in the usual course of business, by Metra's Safety Officer (the agent) investigating Mister's work accident. Rule 801(d)(2)(D) does not require anything else along the lines of internal verification of the report's contents.

But the Seventh Circuit found that the district court did not abuse its discretion in excluding the report under Federal Rule of Evidence 403, finding that Rule 403

requires that a district court determine whether the prejudicial effect of admitting such evidence outweighs its probative value and thereby renders it inadmissible....What we have here is a non-hearsay report that is derived from multiple levels of hearsay. Although the report stated that a similar fall occurred in the "same spot," no one knew what spot. No one knew exactly where Wyman had fallen and there is absolutely no basis to conclude that Mister slipped and fell in the same location as Wyman.

-CM

A Matter Of Credibility?: New Hampshire Case Involves Important Impeachment, Rape Shield Issues

An upcoming sexual assault trial provides a good illustration of the rape shield rule and a couple of rules of evidence dealing with the impeachment of witnesses. 

Hai Phuoc Tran, the owner of Queen Nails, will soon stand trial, facing charges of felonious sexual assault, criminal restraint, sexual assault, simple assault and kidnapping. Those charges stem from an alleged attack Tran committed on a 22-year-old customer; according to the customer, Tran forced her into the back of his salon and sexually assaulted her.

Tran's attorney and his defense investigator interviewed the alleged victim's friends and acquaintances and, based upon what they said, hoped to have them testify at Tran's trial. Those friends and acquaintances allegedly described her as "promiscuous, manipulative and abusive and said she has claimed to have been sexually assaulted before." Tran's attorney also sought to introduce into evidence the fact that the alleged victim had been unfaithful to a boyfriend and also had been arrested for assaulting a boyfriend. According to Tran's attorney, such evidence had to be admitted because there are no witnesses to the alleged crime besides Tran and the alleged victim, making the issue of her credibility crucial.

Tran's attorney was wrong. First, the trial judge found that the proposed evidence regarding the alleged victim being promiscuous, having cheated on a boyfriend, and having made similar claims before was inadmissible under New Hampshire Rule of Evidence 412, its rape shield rule, which provides in relevant part that

Except as constitutionally required, and then only in the manner provided in (b), below, evidence of prior consensual sexual activity between the victim and any person other than the defendant shall not be admitted into evidence in any prosecution or in any pretrial discovery proceeding undertaken in anticipation of a prosecution under the laws of this state.  

Second, the judge found that the proposed evidence regarding the alleged victim being manipulative and abusive and having assaulted a boyfriend to be inadmissible to impeach her under New Hampshire Rule of Evidence 607-609 because none of this evidence related to her veracity as a witness.

Conversely, the judge did find that the alleged victim's friends and acquaintances can testify that, in their opinion, they believe that she is untrustworthy because such testimony is admissible under New Hampshire Rule of Evidence 608, which provides in relevant part that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) The evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Also, the judge found that, depending on the alleged victim's testimony at trial on certain issues, defense counsel may be able to impeach her based upon prior inconsistent statements that she made to a nurse when reporting the subject crime pursuant to New Hampshire Rule of Evidence 613. 

-CM