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August 31, 2009
Requiem For Admission: Supreme Court Of New Hampshire Finds Evidence Of Defendant's Drug Addiction Admissible To Prove Motive To Steal
Like its federal counterpart, New Hampshire Rule of Evidence 404(b) provides that
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In its recent opinion in State v. Costello, the Supreme Court of New Hampshire had to answer of question of first impression under this Rule: Is evidence of a defendant's drug addicition admissible to prove a motive to steal?
In Costello, Kurt Costello was charged with burglary, and the trial court allowed the prosecution to introduce evidence that Costello was a heroin addict and unemployed, giving him a motive to steal. After Costello was convicted, he appealed, claiming, inter alia, that this evidence was improperly admitted, and his appeal eventually reached the Supreme Court of New Hampshire. That court noted that the issue of "[w]hether a defendant's drug addiction is relevant to show motive to steal is an issue of first impression," with courts in other jursidictions addressing the issue being "divided."
The New Hampshire Supremes then sided with those courts allowing admission but not before noting that there would be some cases in which evidence of a defendant's drug addication would not be admissible to prove motive. According to the court,
Where the State seeks to introduce drug addiction without first establishing a defendant's identity as the culprit, his drug addiction has no relevance or probative value as to the motive of an otherwise unknown culprit. In other words, without a sufficient identification of the defendant as the intruder, the necessary chain of reasoning breaks and we need not reach the relationship between drug addiction and motive. In the absence of some identification of the defendant as the intruder, his heroin addiction, though introduced to show motive, would necessarily fill in the missing logical gaps that Rule404(b) requires a prosecutor to fill.
This was not, however, an issue in Costello because, inter alia, an occupant of the home that was burglarized identified Costello as the perpetrator, and "the State was able to introduce strong circumstantial evidence identifying the defendant as the perpetrator."
The court then noted that even those courts allowing for the admission of drug addiction to prove motive to steal required prosecutors to "establish a nexus between the defendant's financial motive to commit the theft offense and his ongoing need to purchase drugs to satisfy his addiction." The court found no problem on this front as well, concluding that
In this case, there was evidence that in July 2006, the defendant had a heroin “habit” and was a “junkie,” which was sufficient to establish the first foundational requirement. There was also evidence that in July 2006, the defendant had recently lost his job and was “usually broke,” which was sufficient to establish the second foundational requirement.
Thus, after finding that the probative value evidence of Costello's drug addiction was not substantially outweighed by the danger of unfair prejudice, the New Hampshire Supremes found no error in its admission.
-CM
August 31, 2009 | Permalink | Comments (1) | TrackBack
August 30, 2009
Credible Witness?: Court Of Criminal Appeals Of Alabama Makes Seemingly Erroneous Rule 704 Ruling
Alabama Rule of Evidence 704 provides that
Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.
Under this Rule, it is well established that "the credibility of a witness is a question solely for the jury's determination.” So, how could the Court of Criminal Appeals of Alabama explain its recent opinion in Foster v State, 2009 WL 2657615 (Ala.Crim.App. 2009)? The answer: It didn't.
In doing a Westlaw search for "Rule 704," I came upon 2009 WL 2657615, the dissenting opinion in Foster v. State. That dissenting opinion indicated that the conviction of the defendant, Travis Jay Foster, was "AFFIRMED BY UNPUBLISHED MEMORANDUM." It also laid out some of the details of Foster's trial and the basis for his appeal.
Apparently, Foster was accused of raping the victim, and Investigator Fred Sharp testified that the victim told her that Foster raped her and also rendered the following testimony:
"Q. [Prosecutor] Sir, I believe you had told us earlier you did interview [the victim] in this case, correct?
"A. [Inv. Sharp] Yes, sir, I did."Q. You did do what you classify as a forensic interview; is that correct?"A. Yes."Q. You did look for those characteristics and things you've been taught in your training and experience to look for in determining whether a disclosure's credible or not; is that correct?"A. Yes, sir.
Q. Based upon your forensic interview with [the victim], were you able to make a determination as to whether you felt that her disclosure was credible or not?
“A. Yes, sir, I was.“Q. What was that?
"[Defense counsel]: Objection, Your Honor, same as stated previously. FN1
FN1 Foster had previously objected on grounds that Investigator Sharp's proposed testimony, vouching for the credibility of the victim, would invade the province of the jury and would violate the ultimate-issue rule. (R. 139-44.)
“THE COURT: I understand. Overruled.
“Q. What was that determination?
“A. I believe that [the victim] was credible in her disclosure.”
According to the dissenting judge, this testimony should have been deemed inadmissible under Alabama Rule of Evidence 704 because "the credibility of a witness is a question solely for the jury's determination.”
That judge indicated, however, that the majority reached the opposite conclusion by relying upon the court's previous opinion in Sanders v. State, 986 So.2d 1230 (Ala.Crim.App.2005). In Sanders, however, the court had found no problem with a forensic investigator's testimony that the victim was raped because "the ultimate issue...is whether the defendant had sexually abused the child, not whether the child had in fact been sexually abused." Conversely, in Foster, Sharp testified that the victim's disclosure that Foster had raped her was credible, which did go to the ultimate issue, albeit indirectly.
But just because Sharp's testimony did so indirectly did not make it admissible. In another part of Sanders, the court found that the trial court committed error (albeit harmless error) by allowing the defendant's ex-wife to testify that the victim's allegation that the defendant raped her was credible. The reason? The same reason used by the dissenting judge in Foster: The credibility of a witness is solely for the jury's determination.
-CM
August 30, 2009 | Permalink | Comments (0) | TrackBack
August 29, 2009
Horton Hears A Hearsay: Appeals Court Of Massachusetts Makes Interesting Ruling Concerning Statements Against Interest
Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
Massachusetts does not have codified rules of evidence but it has recognized this statement against interest exception to the rule against hearsay in its case law. And, pursuant to the Supreme Court's opinion in Williamson v. United States, 512 U.S. 594 (1994), when a declarant makes a broadly self-inculpatory confession which also contains some self-exculpatory statements, courts will admit only the self-inculpatory statements and excise the self-exculpatory statements under the statement against interest exception. But what happens when a declarant makes a broadly self-exculpatory statement which also contains some self-inculpatory statements? That was the question addressed by the Appeals Court of Massachusetts in Commonwealth v. Dejarnette, 2009 WL 2595871 (Mass.App.Ct. 2009).
In Dejarnette, after searching an apartment in which the Nickolas Dejarnette was staying, police found a Doctor Seuss backpack with the his name written inside containing cocaine, ecstasy, and ammunition. Dejarnette was thereafter tried and convicted of trafficking in cocaine, possession of ecstacy with intent to distribute, and possession of a firearm and ammunition without an FID card.
Dejarnette's conviction was likely based in part on the admission of hearsay statements made by William Coleman, the boyfriend of the lawful owner of the apartment. The admission of Coleman's statements, however, was partially Dejarnette's own doing. Coleman was in the apartment on the day it was searched, and he thereafter made a statement to police in which he admitted to using some of the drugs in the apartment and that his fingerprints would thus likely be some of the drugs. Dejarnette wanted to use these statements to prove that the drugs seized could have belonged to Coleman and not him.
The problem for Dejarnette, however, was these self-inculpatory statements were small parts of an overall self-exculpatory statement by Coleman. Coleman also told the police, inter alia, that he had heard that Dejarnette was a drug dealer who dealt coke, that he had seen Dejarnette with a small gun, and that he had seen Dejarnette use a closet which contained a safe in which a gun and drugs were found.
The Commonwealth thus argued that if some of Coleman's statement to the police came in, all of it should come in, and the trial court found that the "Commonwealth might have the right to put in other statements damaging to the defendant 'in an effort not to give the jury a distorted version of what [Coleman] said.'" Thereafter, "[d]efense counsel did not object and, after consulting with the defendant, he agreed that '[b]y right, if I allude to a portion of this, the whole thing should come in.'"
Nonetheless, after Dejarnette was convicted, he appealed, with part of the basis for his appeal being that the trial court erred and that he was given the ineffective assistance of counsel based upon the admission of the entirety of Coleman's statement. In addressing this argument, the Appeals Court of Court of Massachusetts noted that Coleman's statement was broadly self-exculpatory and found that
In these circumstances, the trial judge was understandably hesitant to allow the narrowly self-inculpatory statements in as declarations against interest. This was a close call and it would have been within his discretion either to declare the statement proposed by defense counsel regarding smoking marijuana and touching the bag of cocaine to be inadmissible in the circumstances because it was not actually a declaration against interest, or to allow it in with some limited “necessary surrounding context” to prevent its significance from being distorted by defense counsel....Nevertheless, the solution proposed by the prosecution, and agreed to by the defendant, to allow the whole statement in evidence was erroneous.
The court, however, found that the admission of the whole statement was harmless error because the "[s]tatements by Coleman incriminating the defendant could be portrayed as self-serving attempts to shift blame," and they merely "duplicated other evidence." The court also rejected Dejarnette's ineffective assistance of counsel claim, finding that the compromise accepted by his attorney was not "manifestly unreasonable."
I agree with the court's overall conclusion that there was not reversible error, but I also don't think that there was error by the court, or at least error attributable to it. First, because Dejarnette's attorney agreed that if he alluded to a portion of Coleman's statement, the whole thing should come in,'" the admission of the entire statement could have fallen under the invited error doctrine, rendering it not subject to appeal. Second, there is a good argument that admission of the entire statement was required under the rule of completeness, which provides that
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
-CM
August 29, 2009 | Permalink | Comments (0) | TrackBack
August 28, 2009
Privileged: Supreme Court Of Nevada Finds Judicial Proceeding Communication Privilege Applies To Nonlawyers
It is a “long-standing common law rule that communications [made] in the course of judicial proceedings [even if known to be false] are absolutely privileged." Does this privilege, however, extend to instances where a nonlawyer makes an allegedly defamatory communication in response to threatened litigation or during a judicial proceeding? In its recent opinion in Clark County School District v. Virtual Education Software, Inc., 2009 WL 2414820 (Nev. 2009), the Supreme Court of Nevada answered this question of first impression in the affirmative.
In Virtual Education Software, the Clark County School District (CCSD) and the Clark County Education Association (CCEA), the local teachers' union, were parties to a collective bargaining agreement, which included a provision for teachers to enhance their salaries by obtaining additional degrees, taking either upper-division, graduate-level courses or completing professional development courses offered by CCSD. However, educational courses that were not credit bearing toward a degree could be excluded from the courses eligible for salary enhancement, and CCSD could deny credit for courses that it deemed were of a frivolous nature."
CCSD decided that courses offered by Virtual Education Software, Inc. (VESI), a Nevada corporation that markets and sells computer-based instruction for educators and business professionals, did not comply with the requirements of the collective bargaining agreement. Therefore, it denied teachers salary enhancements for taking VESI courses. Subsequently, VESI learned of this and wrote several e-mails to CCSD, essentially demanding that CCSD accept the courses “before legal means need to be pursued."
I have researched the VESI courses that you offer for graduate credit from the following universities: Chapman, University of Phoenix, and Southern Utah University. These courses are not credit bearing toward any degree offered by these universities. In addition, some of the courses can be completed in three to five hours and the tests can be successfully passed without reading the material, as evidenced by at least two of my employees. There is no safeguard to determine that the candidate is the one who actually takes the tests. The tests are largely consistent of factual information that can be memorized or copied as notes from the slides and do not require the analysis, synthesis and application levels usually required for graduate coursework.
VESI thereafter sued CCSD, with one cause of action sounding in defamation based in part on this letter. The Supreme Court of Nevada eventually held, however, that the letter was privileged under the privilege for communications made in the course of, or in anticipation of, judicial proceedings. The court noted that it had previously only applied this privilege to communications made by lawyers, but it found two reasons to extend the privilege to nonlawyers:
First, there is no good reason to distinguish between communications between lawyers and nonlawyers. Second, it is anticipated that potential parties to litigation will communicate before formally retaining counsel.
-CM
August 28, 2009 | Permalink | Comments (0) | TrackBack
August 27, 2009
Confronting Fear: Tenth Circuit Finds Excited Utterances Aren't Per Se Excluded From Scope Of Confrontation Clause
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.
August 27, 2009 | Permalink | Comments (0) | TrackBack
August 26, 2009
What Not To Wear, Religious Edition, Take 2: Supreme Court Of Michigan Finalizes Attire Rule Of Evidence, With Lawsuit To Follow
Back in June, I posted an entry about the Supreme Court of Michigan's adoption of an amendment to Michigan Rule of Evidence 611 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.
As I noted at the time, the amendment was crafted after a judge dismissed a Muslim woman's case when she refused to comply with his order that she remove her niqab and was inconsitent with "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." Well, yesterday, the Supreme Court of Michigan issued the order impliementing this amendment, effective September 1st. And now, the woman, along with the Michigan chapter of the Council on American-Islamic Relations (CAIR), plans to sue the judge in federal court.
At the start of this post, I would like to clarify a few points which I didn't realize at the time of my initial post. First, I thought that the niqab obscured large portions of the woman's face, which would have made the judge's claim that he needed her to remove the niqab to observe her demeanor and temperament more plausible. But, as this Youtube clip makes clear, the niqab mostly only covered her hair and did not cover her eyes or face.
Second, I had thought that the plaintiff flatly refused to remove her niqab. Instead, it appears that the plaitiff merely told the male judge that she would only remove the niqab in front of a female judge, with the judge thereafter informing her that no female judge was available. Third, it appears that the plaintiff actually did remove her niqab (allegedly based upon the judge's intimidation), but apparently not at a time or in a way that avoided the judge dismissing her case.
Given these facts, I think that the plaintiff has a solid chance of success in her lawsuit. According to a CAIR staff attorney, "This judge targeted a Muslim woman's religious attire, but he could just as easily have demanded the removal of a Sikh turban, a Jewish yarmulke or a Catholic nun's habit." Given that the cases I cited in my previous post found that judges could not compel litigants to remove yarmulkes, prayer caps, and othe religious headgear, I don't see how the judge could have ordered the plaintiff to remove her niqab, at least prior to the amendment of Michigan Rule of Evidencd 611 .
Indeed, last month, "the Judicial Council of Georgia adopted a policy allowing religious head coverings in the state's courtrooms." Hopefully, Michigan realizes the error of its ways and reaches a similar conclusion.
-CM
August 26, 2009 | Permalink | Comments (0) | TrackBack
August 25, 2009
S-U-C-C-E-S-S: Third Circuit Finds Settlement Offers Admissible As Evidence Of Degree Of Success Obtained For Fees And Costs Analysis
Federal Rule of Evidence 408 states
(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
In Lohman v. Duryea Borough, 2009 WL 2183056 (3rd Cir. 2009), the Third Circuit resolved an issue of first impression under the Rule, the issue of "whether and to what extent the trial court may consider settlement negotiations when awarding fees."
In Duryea Borough,
Nicholas Lohman brought an action asserting numerous claims relating to his discharge from employment with Duryea Borough. Only three First Amendment retaliation claims survived summary judgment and proceeded to trial. Defendants made three settlement offers after trial commenced, including one for $75,000.00. Lohman rejected each of these offers. The jury found for Lohman on one of the three claims, and awarded him $12,205.00 in lost wages and nominal damages. Lohman moved for attorney's fees and costs of $112,883.73.
The district court thereafter "granted the motion in part, awarding $30,000.00 in attorney's fees and $4,251.77 in costs." In awarding an amount of attorney's fees and costs that was substantially lower than what Lohman requested, the court relied upon the settlement offers to determine "the degree of success obtained" by Lohman. According to the court, the fact that Lohman recovered substantially less at trial than he would have recovered under the settlement offers meant that he had a low degree of success, thus reducing the amount of fees and costs he should recover.
Lohman subsequently appealed, claiming, inter alia, that the evidence of settlement offers should have been deemed inadmissible under Federal Rule of Evidence 408. The Third Circuit disagreed, finding that
While evidence of settlement negotiations is inadmissible to prove the merit or lack of merit of a claim, the use of such evidence as bearing on the issue of what relief was sought by a plaintiff does not offend the clear terms of Rule 408. Such evidence can be relevant when comparing what a plaintiff “requested” to what the plaintiff was ultimately "awarded."
This part of the opinion makes sense to me because it seems clear that the evidence of settlement offers was not used for a precluded purpose under Rule 408. The court went on to note, however, that the admission of the evidence of the settlement offers did not go against the public policy goal of encouraging settlements served by Rule 408 because
the thought that settlement discussions will not now occur because an attorney could be penalized if he or she achieves less than was demanded makes little sense. In fact, permitting settlement negotiations to be considered would encourage reasonable and realistic settlement negotiations. In addition, there has been no argument made that a plaintiff's naming or rejection of a number is anything other than an indication of what the plaintiff is seeking. It comports with established law to consider what was sought as compared to what was awarded. Accordingly, the policy considerations asserted by Lohman lack a solid footing in any real policy.
I disagree with this conclusion because it seemingly implies that Rule 408 should not apply when parties make unreasonable or unrealistic statements or offers during settlement. It seems to me, though, that the very purpose of Rule 408 is to make unreasonable or unrealistic statements or offers during settlement inadmissible. When party makes reasonable or realistic statements or offers during settlement, there would (often) be little to no damage if these statements or offers were introduced into evidence because they would likely be consistent with the party's claim at trial. Usually, it would only be unreasonable or unrealistic statements during settlement that would contradict a party's claim at trial, which is why they should be deemed inadmissible under Rule 408.
Nonetheless, because the settlement offers in Duryea Borough were not offered for a precluded purpose under Rule 408, I think that the Third Circuit reached the correct conclusion.
-CM
August 25, 2009 | Permalink | Comments (0) | TrackBack
August 24, 2009
The Lone Ranger And Tonto Fistfight In Heaven, Take 6: The Final Version Of My Amicus Brief For Benally
I have written five previous posts (here, here, here, here, and here) about the plight of Kerry Dean Benally, the Native American man who was convicted of assaulting a Bureau of Indian Affairs Officer with a deadly weapon and later learned that juror racial bias against Native Americans played a role during jury deliberations. In my last post on the subject, I noted that, as a result of my forthcoming article, Dismissed with Prejudice, I was asked to write an amicus curiae brief in support of Benally's petition for writ of certiorari with the Supreme Court. That brief was submitted on Friday, and you can download a copy by clicking this link:
I would like to thank all of the fine folks at Jenner & Block with whom I worked on preparing the brief, such as Marc Goldman, Elaine Goldenberg, Carrie Apfel, Sarah Maguire. I would also like to thank all of the Evidence professor who agreed to sign on to the brief.
-CM
August 24, 2009 | Permalink | Comments (0) | TrackBack
August 23, 2009
Noisy Withdrawal: Third Circuit Finds That Involuntarily Withdrawn Guilty Plea Is Not Covered By Rule 410
On Friday, I posted an entry about the Eighth Circuit enforcing a clause in a plea agreement against a criminal defendant despite the fact that no court would enforce a similar clause in a contract between parties in a civil case. In that entry, I argued that this decision was indefensible, especially in light of the fact that ambiguities in plea agreements are construed against the government. The recent opinion of the Third Circuit in United States v. Jenkins, 2009 WL2518529 (3rd Cir. 2009), is questionable on similar grounds.
In Jenkins, in August 2003, New Jersey law enforcement authorities arrested Kevin Jenkins based on his alleged involvement in a home invasion and vehicle theft incident which had occurred several months earlier. In January 2004, Jenkins reached a plea agreement with the government and pleaded guilty to robbery in state court. After Jenkins entered his plea, federal authorities informed the state officials that, based on a federal investigation, Jenkins and his co-defendants had intended not only to steal a vehicle but also to rob a bank. As a result of this new information, the state officials concluded that Jenkins had not been truthful and withdrew his plea.
In September of that year, a grand jury in the Eastern District of Pennsylvania returned a superceding indictment charging Jenkins with one count of conspiracy to commit armed bank robbery, one count of using and possessing a firearm in furtherance of the conspiracy to commit armed bank robbery, one count of conspiracy to commit carjacking, one count of carjacking, and one count of using and possessing a firearm in furtherance of the conspiracy to commit carjacking.
During Jenkins' trial, the district judge permitted the prosecution to admit evidence relating to Jenkins' state court guilty plea. Thereafter, the jury acquitted Jenkins' on the carjacking charge but found him guilty of all of the other charges. Jenkins subsequently appealed, claiming, inter alia, "that the District Court committed reversible error by permitting the admission of evidence relating to his state court guilty plea, which had subsequently been withdrawn by the state prosecution, asserting that Federal Rule of Evidence 410 disallows the admission of such evidence."
Jenkins had a good argument. Federal Rule of Evidence 410(3) indicates that
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas.
The Third Circuit, however, noted that Jenkins did not raise this issue at trial, meaning that it could only reverse for plain error. And it couldn't find such plan error because it cited 2 Weinstein's Federal Evidence § 410.09[7] (2d ed.1997), for the proposition that "it is not clear whether the Rule applies in circumstances such as those presented here, where the defendant fails to fulfill his end of the plea bargain and the state withdraws it in response."
I can see why some courts hold that Federal Rule of Evidence 410 is inapplicable in this situation. It makes sense to make a defendant's withdrawn guilty plea inadmissible against him when it is the defendant who voluntarily withdraws the plea, but it seems to make less sense to do so when the plea is involuntarily withdrawn based upon the defendant's breach of the plea agreement.
That said, there is nothing in Rule 410 distinguishing between these two circumstances. And, as noted in my previous entry, courts have been receptive to clauses that the government places in plea agreements under which defendants waive certain protections. This being the case, it seems to me that when the government does not insert such a clause, courts should construe Rule 410 broadly and find that it protects defendants unless the plain language of the Rule provides otherwise.
-CM
August 23, 2009 | Permalink | Comments (1) | TrackBack
August 22, 2009
Avoiding A Confrontation: Court Of Appeals Of Texas Deals With Intersection Between Rules Of Evidence And Confrontation Clause In Assault Appeal
In relevant part, Federal Rule of Evidence 608(b) provides 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.
Texas Rule of Evidence 608(b), however, provides that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
That's not to say, however, that a criminal defendant is automatically precluded from impeaching a witness for the prosecution through inquiry into specific instances of (mis)conduct by the witness as is made clear by the recent opinion of the Court of Appeals of Texas in Aguilar v. State, 2009 WL 2476628 (Tex.App.-Austin 2009).
In Aguilar,
Jonathan Senovio Aguilar was drinking at a friend's apartment with some friends and acquaintances. Disputes arose over gang affiliation and, although each witness offered varying explanations as to how the disputes arose, they agree[d] that the disputes eventually escalated into physical violence, including Aguilar stabbing Mark Tovar multiple times.
Aguilar was later charged with aggravated assault. During the ensuing trial, Tovar testified that he had used drugs but that he did not, and never had dealt drugs. Aguilar thereafter sought to cross-examine him about whether, in 1998, during a search leading to a prior felony conviction for possession of marijuana, police recovered two ounces of marijuana pre-packaged for sale, weight scales, drug ledgers, and $274 in cash.
The trial court precluded this line of interrogation, and Aguilar was subsequently convicted. Aguilar thereafter appealed, and the Court of Appeals affirmed, first noting that the proposed interrogation was not permitted under Texas Rule of Evidence 608(b). It then noted, however, that "the Confrontation Clause of the Sixth Amendent may require admission of evidence that Rule 608(b) would otherwise bar. According to the court,
In weighing whether evidence must be admitted under the Confrontation Clause, the trial court maintains broad discretion and should balance the probative value of the evidence sought to be introduced against potential risks of its admission, including harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence.
This was the problem for Aguilar. The court first noted that the evidence from 1998 merely implied, but did not prove that Aguilar had sold drugs. Second, despite Aguilar's claims to the contrary, the court found that this evidence of Aguilar's possible drug dealing was collateral to the main issues at trial and did not add much impeachment value beyond the already admitted evidence that he had a prior felony conviction for marijuana possession.
-CM
August 22, 2009 | Permalink | Comments (0) | TrackBack
August 21, 2009
Call for Articles and Essays: Recent Developments in New York Law
Call for Articles and Essays: Recent Developments in New York Law
Proposals due October 1, 2009.
The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to our second annual issue addressing recent developments in New York law to be published in Spring 2010.
This issue will explore a wide range of recent developments in the laws of New York State, including but not limited to areas of criminal law, civil litigation, family law, property law, constitutional law, tax law, bankruptcy law, and municipal law. Authors may also discuss proposed changes to New York law, at the state or local level.
Please submit proposals of no more than 500 words by attachment to plr@law.pace.edu by October 1, 2009. All proposals should include the intended author’s name, title, institutional affiliation, contact information, and should relate to an area of New York State law. Authors are also welcome, but not required, to submit a CV. We expect to make publication offers by October 8. We encourage clear, concise, and accessible writing that will be of use to lawmakers, attorneys, and students.
Completed manuscripts will be due November 24, 2009.
August 21, 2009 | Permalink | Comments (0) | TrackBack
Not What He Bargained For: Eighth Circuit Enforces Questionable Clause In Plea Agreement After Defendant's Breach
Al and Bob enter into a contract under which Al agrees to paint Bob's house for $500. Al breaches the contract by not painting Bob's house. Bob thereafter sues Al for breach of contract. Finding that Al breached, the judge orders Al to paint Bob's house and finds that Bob does not have to pay him a cent in exchange. The reason? The contract contained a clause stating that, in the event of a breach, Bob would be released from his obligations, but Al would "remain bound by the terms of the agreement."
I think that we can all agree that this would never happen. The judge might award Bob damages and could possibly award specific performance of the contract, but not without compensation to Al. And yet, in its recent opinion in United States v. Sisco, 2009 WL 2477235 (8th Cir. 2009), the Eighth Circuit enforced just such a clause in a plea agreement against a criminal defendant, a result which was far from anomalous. I would also argue that the opinion was far from convincing.
In Sisco, Anthony Sisco pleaded guilty to possession with intent to distribute five grams or more of cocaine base as part of a written plea agreement. This plea agreement contained a waiver of Sisco's appellate rights and contained a clause stating,
If the defendant commits any crimes, violates any conditions of release, or violates any term of this plea agreement between the signing of this plea agreement and the date of sentencing, or fails to appear for sentencing, or if the defendant provides information to the Probation Office or the Court that is intentionally misleading, incomplete, or untruthful, or otherwise breaches this plea agreement, the United States will be released from its obligations under this agreement. The defendant, however, will remain bound by the terms of the agreement, and will not be allowed to withdraw his plea of guilty.
Thereafter, "[b]efore sentencing and while on pre-trial release, Sisco was charged with first degree murder, first degree assault, and two counts of armed criminal action in connection with a shooting that occurred in Kansas City, Missouri." Based upon Sisco's conduct, the government filed a motion to withdraw from the plea agreement based upon Sisco's breach, and Sisco did not oppose the government's motion to withdraw."
Thereafter, the government sought entry of a sentence against Sisco that was higher than the sentence in the plea agreement, and the court agreed, sentencing him to the statutory maximum of 480-months incarceration. Sisco thereafter appealed, claiming, inter alia, "that because the plea agreement did not outline his appellate rights in the event of a breach, the agreement should be construed against the government." The Eighth Circuit agreed with Sisco that “ambiguities [in the plea agreement] are construed against the government," but found that the above clause was "not ambiguous."
According to the court, the clause clearly stated that
Sisco "will remain bound by the terms of the agreement" even if he breaches the agreement. The agreement is unambiguous. Sisco's breach of the agreement did not absolve him of his duties thereunder.
Sisco's breach of his plea agreement released the government from its duty to not seek an enhanced sentence, but it did not restore to Sisco the appeal rights he expressly waived. Sisco's actions did not render the entire plea agreement a legal nullity.
How is this fair? If the government breaches a plea agreement, the criminal defendant is limited to typical contract remedies: specific performance or the opportunity to withdraw from the plea agreement. See, e.g., United States v. Lovelace, 565 F.3d 1080, 1085-86 (8th Cir. 2009). So, why should the government get a one-sided remedy not available to parties to other contracts? While courts have not fully accepted Justice Brennan's contention in Ricketts v. Adamson, 483 U.S. 1, 16 (1987) (Brennan, J., dissenting), that "plea agreements are constitutional contracts," the Eighth Circuit itself made clear that it gives criminal defendants every benefit of the doubt under plea agreements. Given this, how can such clauses be enforced?
-CM
August 21, 2009 | Permalink | Comments (0) | TrackBack
August 20, 2009
The "Phantom" Blue Corvette And New Jersey's Hearsay Exception For Trustworthy Statements By Deceased Declarants
New Jersey Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for
Trustworthy statements by deceased declarants. In a civil proceeding, a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy.
This is an odd exception; indeed, as far as I know, there is no state that has a similar hearsay exception in its rules of evidence. In a sense, it is the complement to a Dead Man's Statute, which precludes an interested party from testifying about any communication, transaction, or promise made to him by a now deceased or incapacitated person when the testimony would go against the decedent's estate. And the recent opinion of the Superior Court of New Jersey, Appellate Division in Estate of Nick Hanges v. Metropolitan Property & Casualty Insurance Company, 2009 WL2496810 (N.J.Super.A.D. 2009), provides a nice illustration of how the exception works.
In Byrd, Nick Hanges was involved in an automobile accident and reported to police that he was cut off by a "phantom" Blue Corvette, causing him to lose control and strike an underpass. Two physicians later treated Hanges for his physical injuries, and a therapist treated him for his psychological injuries; Hanges repeated his claims regarding the "phantom" blue Corvette to all three. Harges later committed suicide, and his estate thereafter claimed coverage under the uninsured motorist provision of an automobile insurance policy issued to him by Metropolitan Property & Casualty Insurance Company.
The estate's claim was that the driver of the "phantom" Blue Corvette should be treated as an uninsured motorist, entitling Hanges to coverage. Metropolitan Property countered by moving for summary judgment, claiming that the only evidence that there was a "phanton" blue Corvette -- Hanges' statements -- was inadmissible hearsay. The trial court agreed with Metropolitan Property and granted its motion, finding that Hanges' statements were not admissible under New Jersey Rule of Evidence 803(c)(2) as excited utterances, New Jersey Rule of Evidence 803(c)(6) as business records, New Jersey Rule of Evidence 803(c)(6) as statements made for the purpose of medical diagnosis or treatment, or New Jersey Rule of Evidence 804(b)(6) as trustworthy statements by a deceased declarant.
In addressing the estate's appeal, the Superior Court of New Jersey, Appellate Division agreed with the first three rulings but disagreed with the fourth, at least with regard to Hanges' statement to the police officer. The appellate court noted that under Rule 804(b)(6), “[a] trial court must make particularized findings of good faith, personal knowledge and trustworthiness...." It then noted that the trial court had deemed Hanges statements inadmissible under Rule 804(b)(6) because
[T]he Estate has failed to show that...the decedent's statement was made in good faith or it was...trustworthy. The decedent had reason to not be forthcoming in this situation. He crashed his car into an underpass and there was no other evidence of any other vehicles involved. A person in these circumstances has much to gain if he or she can successfully shift the blame to some other non-verifiable cause. Thus under the circumstances in which the statement was made there is great incentive for a driver to skew the facts in [his] favor. For this reason the statements do not possess the requisite trustworthiness or reliability to be admitted under the hearsay exception [ ] for unavailable declarants....
The appellate court disagreed, concluding that
The declarant was clearly deceased and there does not appear to be any dispute that his statement regarding the "phantom vehicle" was made from his personal knowledge. There is nothing in the record, moreover, to indicate that the statement was not made in good faith or that it was otherwise lacking in reliability or trustworthiness. The trial court need not find the statement absolutely trustworthy before it may be admitted under the Rule; it need only find a probability that the statement is trustworthy from the circumstances surrounding its making....The factors relevant in consideration of trustworthiness include: whether the statement was made under oath; the duration of the time between the event and the statement; whether the declarant had first-hand knowledge; and the credibility of the declarant....
Although the decedent was not under oath, the statement was made immediately after the accident to the police officer and there is nothing in the record to suggest that the decedent had any motive to falsify his statement to the officer. Indeed, that is a credibility issue solely within the province of the jury and not subject to the trial court's determination on a motion for summary judgment.
I think that the appellate court was probably right, which leads me to believe that the "trustworthy statements by a deceased declarant" is wrong, or at least that it allows for the admission of statements which are not (necessarily) sufficientluy reliable to overcome the general rule against hearsay.
-CM
August 20, 2009 | Permalink | Comments (0) | TrackBack
August 19, 2009
Welcome To The Blogosphere, Snitching Blog
snitching = when police or prosecutors offer lenience to criminal suspects in exchange for information or cooperation
Snitching Blog is devoted to a part of our criminal system that most people know little or nothing about: criminal informants, or "snitches." At any given moment, thousands of informants are in the system trying to work off their own criminal liability by giving information to the government. These informants may be in court, in prison, on the street, or in the workplace. Police and prosecutors often rely heavily on information obtained from snitches. This is especially true in drug enforcement, but also for investigations of white collar crime, organized crime, and terrorism. In fact, it is impossible to fully understand the U.S. legal system without understanding snitching. Nevertheless, snitching remains shrouded in secrecy and confusion.
This blog does a number of things:
- How it all works. Snitching Blog discusses how snitching works, how it shapes the legal system, and how it affects the lives of ordinary people. Snitching Blog offers news analysis, legal commentary, cultural insights, and more. If you want the complete story, you can read my book, SNITCHING: CRIMINAL INFORMANTS AND THE EROSION OF AMERICAN JUSTICE (NYU Press, 2009).
- Resources. Snitching Blog provides resources for individuals, lawyers, organizations, law enforcement, legislators, and others who want information about the law and public policies associated with snitching. There are links to government documents, reports, and sample court filings that may be educational or useful. Snitching Blog does not provide legal advice.
- Current events. Snitching Blog shares informant-related stories, new legal developments, and other current events. If you know of a news story that might be of interest to other readers, please pass it on.
- Share your stories. Snitching Blog is the first public forum for people who have encountered snitching first-hand and who want to share their experiences. Many people have had their lives touched, sometimes ruined, by criminal informants or the practices associated with snitching. Many law enforcement professionals have important insights about how the practice works or could be improved. But because snitching is so secretive and "off the books," there is typically no way to share these experiences and insights with others. This blog provides that opportunity through the "Testimonials" section, in which individuals can submit brief descriptions of their experiences for others to read.
I hope you find this site interesting and useful. I look forward to your comments.
August 19, 2009 | Permalink | Comments (0) | TrackBack
2009 Legal Educator Blog Census, Version 1.0 (Schools N-Z)
Syracuse University College of Law
August 19, 2009 | Permalink | Comments (0) | TrackBack
2009 Legal Educator Blog Census, Version 1.0 (Schools A-M)
A Bill for taking a census has passed the House of Representatives, and is within the Senate. It contained a schedule for ascertaining the component classes of the Society, a kind of information extremely requisite to the Legislator, and much wanted for the science of Political Economy. A repetition of it every ten years would hereafter afford a most curious and instructive assemblage of facts. It was thrown out by the Senate as a waste of trouble and supplying materials for idle people to make a book. Judge by this little experiment of the reception likely to be given to so great an idea as that explained in your letter of September.
-Letter from James Madison to Thomas Jefferson, February 14, 1970
Schools A-M
Kenneth Anderson's Law of War and Just War Theory Blog
Opinio Juris
Benjamin N. Cardozo School of Law
University of Denver Sturm College of Law
DePaul University College of Law Vincent G. Rinn Law Library
Golden Gate University School of Law
Hamline University School of Law
The Harvard Law School Forum on Corporate Governance and Financial Regulation
The Harvard Law School Forum on Corporate Governance and Financial Regulation
The Harvard Law School Forum on Corporate Governance and Financial Regulation
The Harvard Law School Forum on Corporate Governance and Financial Regulation
August 19, 2009 | Permalink | Comments (4) | TrackBack
August 18, 2009
My New Article: Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional
Two days after the Supreme Court's opinion in Arizona v. Gant back in April, I wrote a post contending that the opinion could be read as invalidating the suspicionless search incident to a lawful (home) arrest authorized by the Court in Buie v. Maryland. As I started investigating the issue some more, I realized that the issue was important and complex enough for it to become my summer project. The result is my new article, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. Here is the abstract:
In its 1990 opinion in Maryland v. Buie, the Supreme Court held that as an incident to a lawful (home) arrest, officers can “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” While this holding was actually dictum, thereafter courts categorically concluded that Buie authorizes suspicionless searches of sufficiently large spaces not only in arrest rooms, but also in rooms immediately abutting arrest rooms and connected to arrest rooms by hallways.
Buie was one of three Supreme Court opinions expansively reading the scope of searches incident to lawful arrests after it circumscribed their scope in 1969 in Chimel v. California. The other two opinions were Belton v. New York and Thornton v. United States, and, in its 2009 opinion in Arizona v. Gant, the Court expressly overruled Belton and rebuked Thornton as an application of Chimel, which it reaffirmed as continuing to define the boundaries of searches incident to lawful arrests. This article argues that, even without Gant, courts should have realized that they had grossly misconstrued the scope of suspicionless Buie searches, and that now, defendants and appellants should be able to raise Arizona v. Gant to argue that the reaffirmation of Chimel and the destruction of the Belton fiction together invalidate the suspcionless Buie search.
The article can be downloaded from SSRN by clicking this link.
-CM
August 18, 2009 | Permalink | Comments (0) | TrackBack
August 17, 2009
Welcome The Blogosphere (Relaunched) CrimProf Blog
Lawrence A. Alexander (The Philosophy of Criminal Law, Criminal Liability for Omissions: An Inventory of Issues)Donald A. Dripps (Sixth-Amendment Originalism's Collision Course with the Right to Counsel: What's Titanic, What's Iceberg?, The 'New' Exclusionary Rule Debate: From 'Still Preoccupied with 1985' to 'Virtual Deterrence)Yale Kamisar (Dickerson v. United States: The Case that Disappointed Miranda's Critics - And then its Supporters, On the Fortieth Anniversary of Miranda: Why We Needed It, How We Got It - and What Happened To It)
In my time at the University of San Diego School of Law, I’ve had the privilege of working with highly talented colleagues across a broad range of subject matters. In my own areas of special interest--criminal law and procedure--I have been especially fortunate, and I am delighted that my current CrimProf colleagues have joined me in assuming the editorship of the CrimProf blog. We hope to continue the success of the previous editors in making this blog a valuable resource for teachers and others in these fields.
CrimProf hopes to provide for criminal law and procedure types the same convenient method for keeping up with recent SSRN posts that my former San Diego colleague, Larry Solum, provides for the general legal theory crowd on his Legal Theory Blog. I cannot hope to read every manuscript about which there might be sufficient interest to justify posting an abstract, but when I do have something more to say than "Here is the abstract," I will signal that fact by designating the manuscript as a "featured download." Of course, this designation should be taken more as an indication of my own personal interests than as an opinion about how the manuscript stacks up against all those that I haven't read.
August 17, 2009 | Permalink | Comments (0) | TrackBack
Another Habit Like An Unwanted Friend: Court Of Appeals Of Kentucky Affirms Trial Court's Habit Ruling
Like its federal counterpart, Kentucky Rule of Evidence 406 provides that
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
include going down a particular stairway two stairs at a time, giving the hand signal for a left turn, alighting from railway cars while they are still moving,...reacting with extreme violence to any contact with a uniformed police officer,...and placing a gun in your belt every morning. United States v. Morris, 2008 WL 382859 at **4.
In Gaines, store owners believed that McClellan Gaines and Vivian Leigh tried to make purchases at their store with counterfeit money, wrote down their license plate number, and called he police. Officers later stopped the vehicle with that license plate number, searched Gaines, uncovered marijuana, and searched the vehicle, uncovering a backpack filled with counterfeit money, men's clothing, and documents with Gaines' name on them. Bizarrely, however, "[t]he backpack, some of the papers, and clothing were not kept as evidence, nor were pictures taken."
This made it difficult for the State to prove that Gaines was guilty of criminal possession of a forged instrument at his ensuing trial. The arresting officers did testify that Gaines admitted that the backpack was his, but this might not have been enough to convict Gaines by itself. This was where the testimony of Gaines' ex-girlfriend came into play.
According to Gaines' ex-girlfriend, Rebecca Hicks, "in the three months they dated, [Gaines] always carried a backpack with him. Also, she testified that in the backpack [Gaines] would keep a change of clothing and any important papers he might need." After Gaines was convicted, he appealed, claiming, inter alia, that Hicks' testimony was improperly received, but the Court of Appeals of Kentucky found that it was properly admitted as habit evidence under Kentucky Rule of Evidence 406 and that it was "supportive of the testimony of the police officers that in addition to the counterfeit money, papers containing Appellant's name and men's clothing were also found in the backpack and indicative of his ownership."
-CM
August 17, 2009 | Permalink | Comments (0) | TrackBack
August 16, 2009
Great Wall Of Hearsay: New Jersey Appellate Court Finds Recorded Recollection Was Improperly Introduced As An Exhibit
Like its federal counterpart, New Jersey Rule of Evidence 803(c)(5) provides an exception to the rule against hearsay for
A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness himself or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection.
A key but often forgotten part of this hearsay exception is the last part as was the case in the recent opinion of the Superior Court of New Jersey, Appellate Division, in Business Computer Resources, Inc. v. Great Wall of Tinton Road, Inc., 2009 2426344 (N.J.Super.A.D. 2009).
In Great Wall, Business Computer Resources, Inc., a computer services and supply company, sued defendant, Great Wall of Tilton Road, Inc., i/p/a Great Wall Chinese Food, a neighboring business in the strip mall both shared, alleging it had sustained property damage as the result of defendant's negligently-caused fire. During trial, over defendant's objection, the judge admitted into evidence a computer-generated spreadsheet, prepared by plaintiff's principals, of inventory, fixtures and other personal property lost or damaged in the fire. After trial, the jury awarded the plaintiff $52,000 in damages, to which the judge added pre-judgment interest and allowable costs.
The defendant subsequently appealed, claiming, inter alia, that the spreadsheet was improperly admitted. The appellate court noted that an initial potential reason that the spreadsheet might have been inadmissible under New Jersey Rule of Evidence 803(c)(5) was that the witness who substantially prepared it was never asked whether she needed the spreadsheet to testify because she lacked “insufficient present recollection” of the damaged items and their worth. The court noted, however, that its "review of the record convince[d it] that had the proper predicate questions been posed, in all likelihood the spreadsheet would have qualified as “recorded recollection” under N.J.R.E. 803(c)(5). It contained over 600 line items on nineteen pages, and thus it was unlikely that [the witness] could have possessed a present memory of every item and its value."
The real problem, however, was that the spreadsheet was admitted into evidence as an exhibit over the defendant's objection. As the last part of New Jersey Rule of Evidence 803(c)(5) makes clear, this action was improper. Nonetheless, the appellate court found that the erroneous admission of this exhibit as well as another exhibit containing hearsay was harmless error and thus affirmed.
-CM
August 16, 2009 | Permalink | Comments (0) | TrackBack
