EvidenceProf Blog

Analog Rules In A Digital Age: Nigeria Seeks To Amend Its Evidence Act To Allow Admissibility Of Electronic Evidence

Here in the United States, there have been several major amendments to the Federal Rules of Evidence since they were became effective in 1975. Conversely, since its enactment 64 years ago, Nigeria's Evidence Act has only been subject to three minor amendments. The Nigerian government recently realized that, without more significant amendments, some of its evidentiary rules have become analog rules in a digital age. That might be about to change.

Currently, Nigeria's Evidence Act "does not recognize any computer generated document as either primary or secondary evidence in court." This is contrary to the practice in many countries, such as the United States, which have recognized the indispensability and ubiquity of computer technology and made computer generated documents admissible under their rules of evidence. This, and other evidentiary anachronisms led Senator Sola Akinyede to claim that "the bottom line is that today our evidence law is anachronistic and obsolete and totally out of touch with global reality."

That may, however, all change soon. A bill seeking to amend the Evidence Act to allow the admissibility of electronic evidence in Nigerian courts passed through its second reading at the Senate yesterday. Under that bill, inter alia, the  word "document" would include electronic records, the phrase "bankers books" would include electronic records, writings and recordings, and the word "original" would include computer printouts. It will be interesting to see whether Nigeria ends up enacting these changes in whole or in part as there might be some changes that would be beneficial to add to our own rules of evidence.

-CM 

Submission Guide for Online Law Review Supplements, Version 2.0 (9/30/2009), Now Available On SSRN

Back in May, I posted my initial Submission Guide for Online Law Review Supplements. At the time, I promised to update the guide annually and as law reviews create new online supplements. Since then, I have learned of two other supplements:  Maryland Law Review Endnotes and Texas Tech Law Review Addendum. Also, a few online supplements have changed their sites and/or the types of pieces they accept. The former Yale Law Journal Pocket Part is now Yale Law Journal Online, and it has expanded the list of submissions its accepts. Michigan's First Impressions has changed its website and now accepts original essays in addition to symposium pieces. Finally, Connecticut's CONNtemplations has changed its website.

All of these additions and changes are recorded in Submission Guide for Online Law Review Supplements, version 2.0 (9/30/2009), which you can download for free from SSRN. Finally, I wanted to alert readers that the Denver University Law Review just launched an online supplement, DU Process, but it is still in the trial phase, with details to be sorted out. When they are, I will add that information to the guide.

-CM 

Baked Alaska: Supreme Court Of Alaska Opinion Shows Oddness In Expert Witness Contention

Like its federal counterpart, Alaska Rule of Evidence 702(a) provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 

Meanwhile, Section Section 1912(f) of the Indian Child Welfare Act provides that 

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.  

The Supreme Court of Alaska recently found that "ICWA § 1912(f) heightens the requirements for an expert's qualifications beyond those normally required to qualify an expert." You wouldn't know it, however, based upon that court's recent opinion in Sandy B. v. State, Dept. of Health & Social Services, Office of Children's Services, 2009 WL 3049721 (Alaska 2009).

In Sandy B., "[t]he Office of Children's Services (OCS) removed three girls, who are Indian children under the Indian Child Welfare Act, from the care of their parents in three separate alcohol-related incidents between September 2005 and December 2007."  Thereafter, "[f]ollowing a three-day termination trial, the trial court issued two written orders terminating their parental rights to all three children." 

This ruling was based in large part upon the testimony of Dr. Raymond Droby, who testified as OCS's ICWA- required expert. Dr. Droby had master's and doctorate degrees in clinical psychology and was qualified as an expert in psychology. At trial, Dr. Droby addressed the psychological harm that the children had suffered and would likely continue to suffer if they were returned to their parents' care and their parents continued to drink."  

The parents thereafter appealed, and their appeal eventually reached the Alaska Supremes. And that court noted that the parents were correct that it had recently found in Marcia V. v. State, Office of Children's Services, 201 P.3d 496, 504 (Alaska 2009), that "ICWA § 1912(f) heightens the requirements for an expert's qualifications beyond those normally required to qualify an expert." Except that it didn't. Instead, in Marcia V., the court noted that

Federal ICWA guidelines describe the three types of experts that are “most likely” to meet ICWA's requirements: (1) a member of the child's tribe recognized by the tribal community as knowledgeable in tribal customs pertaining to family organization and childrearing practices, (2) a lay expert with substantial experience and knowledge regarding relevant Indian social and cultural standards and childrearing practices and the delivery of child and family services to Indians, or (3) “ [a] professional person having substantial education in the area of his or her specialty.” 

In Marcia V., the court found an expert witness qualified based upon his substantial education. And in Sandy B.,, the court found the same with regard to Dr. Droby. And you know what? It would have found the same thing under Alaska Rule of Evidence 702(a). If Dr. Droby did not have substantial education in the field of clinical psychology, he could not have been qualified as an expert under either Alaska Rule of Evidence 702(a) or Section 1912(f) of the Indian Child Welfare Act. Based upon his education, he could have been qualified as an expert under either Alaska Rule of Evidence 702(a) or Section 1912(f) of the Indian Child Welfare Act. I thus don't see how "ICWA § 1912(f) heighten[ed] the requirements for an expert's qualifications beyond those normally required to qualify an expert." 

-CM

I Need A Remedy: Court Of Appeals Of Wisconsin Finds Subsequent Remedial Measure Rule Inapplicable In Criminal Cases

Like (but not exactly like) its federal counterpart, Wisconsin Stat. Section 904.07 provides that

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment....

In its recent opinion in State v. Conley, 2009 WL 3018121 (Wis.App. 2009), the Court of Appeals of Wisconsin had to answer the following question: Does this rule apply in criminal cases? It answered the question in the negative. I disagree.

In Conley, Dale Conley was convicted of two counts of first-degree sexual assault of a child and two counts of incest of a child based upon crimes that he allegedly committed against his twelve year-old daughter. After the daughter told her mother, Conley's wife, about the second of these alleged acts, the mother told Conley to put a lock on the inside of the daughter's bedroom door which would prevent anyone from entering her room when it was locked. Conley thereafter installed such a lock.

At trial, and without objection, the prosecution presented evidence about Conley's installation of the lock and later contended during closing that the act was evidence of Conley's "consciousness of guilt." Defense counsel countered that Conley installed the lock merely to satisfy his wife.

After Conley was convicted, he appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial counsel failed to object to evidence of his installation of the lock, which he claimed was inadmissible as a subsequent remedial measure under Wisconsin Stat. Section 904.07. In other words, according to Conley, after an event -- the sexual assault of his daughter -- he took a measure -- the installation of the lock -- which, if previously taken, would have made the event less likely to occur, rendering evidence of the lock inadmissible to prove his criminal culpability in connection with the event.

The problem for Conley was that the Court of Appeals of Wisconsin found that Wisconsin Stat. Section 904.07 "is not applicable in criminal cases." And it did so for a few reasons. First, the court found "guidance in the fact that this rule of evidence is patterned after Federal Rule of Evidence 407, which was drafted to limit the use of subsequent remedial measures to prove negligence in civil litigation." As support for this claim, the court cited to the Advisory Committee Note to the Rule, which states, inter alia, that the Rule

incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault. The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence....(2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.

I have two problems with this argument. First, both the Advisory Committee Note and the Rule talk about subsequent remedial measures being inadmissible to prove negligence or other culpable conduct, meaning that the Rule was not drafted solely to limit the use of subsequent remedial measures to prove negligence. Second, even if the Rule was drafted solely to apply in civil cases, why should the court not apply it in criminal cases if the extension makes sense? After all, the original Federal Rule of Evidence 407 did not indicate that the Rule applied to products liability actions, but a majority of circuits found that the rule did apply to such actions, leading to the Rule being amended.

Now, in fairness, Wisconsin never amended Wisconsin Stat. Section 904.07 and has found that it does not apply to products liability actions, see, e.g., Huss v. Yale Materials Handling Corp., 538 N.W.2d 630, 634-35 (Wis.App. 1995), although it has deemed evidence of subsequent remedial measures inadmissible in such actions on other grounds. But it seems to me that the Court of Appeals of Wisconsin could not ignore the way in which federal circuit courts extended Federal Rule of Evidence 407 when its next argument in Conley was that

the scope of Rule 407 is "quite narrow."...We have found no published decision in which § 904.07 or FED.R.EVID. 407 FED.R.EVID. 407 is applied in a criminal case.       

My review of the case law leads me to believe that this last statement is technically correct, but my response is, "Who cares?" In published opinions, federal courts have certainly implied that they would apply Rule 407 in an appropriate criminal case. See, e.g., United States v.Koppers Co., Inc., 652 F.2d 290, 299 (2nd Cir. 1981) ("This evidence went directly to the question of whether or not a conspiracy ever existed; it therefore does not fall within the rubric of “subsequent remedial measures,” Fed.R.Evid. 407, as urged by Koppers."). Moreover, federal courts have found that Rule 407 applies in criminal cases, just not in published opinions. See, e.g., United States v. Kyle, 2003 WL 22999295 (4th Cir. 2003) (affirming the district court's exclusion of evidence of subsequent remedial measures under Rule 407 and finding that even if the Rule were inapplicable in criminal cases, the evidence still could have been excluded)

 

Additionally, several state courts have found that their versions of Rule 407 apply in criminal cases. See, e.g., Penley v. State, 2 S.W.3d 534, 541 (Tex-App.-Texarkana 1999). Moreover, military courts have found that Military Rule of Evidence 407, which is similar to Federal Rule of Evidence 407, applies in criminal cases. See, e.g., United States v. Casey, 45 M.J. 623, 628-29 (N.M.Ct.Crim.App. 1996). Now, in fairness to the Court of Appeals of Wisconsin, some courts have found that Rule 407 is inapplicable in criminal cases. See, e.g., United States v. Wittig, 425 F.Supp.2d 1196, 1233 (D. Kan. 2006). But it seems to me that the court in Conley needed to explain why a rule which does not by its terms apply only to civil cases should be inapplicable in criminal cases and not simply rely on one line of precedent.

 

Again, in fairness, the court in Conley did try to explain itself, but its explanation was so weak that a stiff breeze could knock it over. According to the court, in D.L. by Friederichs v. Huebner, 329 N.W.2d 890 (Wis. 1983), the Supreme Court of Wisconsin "revealed its lack of faith altogether in the exclusionary rule and pointed out that many commentators view it to be 'unsound' even in civil law." Okay, and so the solution by the Court of Appeals of Wisconsin was not to find the rule inapplicable in civil cases against civil defendants but to find it inapplicable in criminal cases against criminal defendants?

 

This makes no sense to me, especially when considered in the context of other rules of evidence. As far as I know, excluding Rule 407, as read by the Court of Appeals of Wisconsin and some other courts, every other rule of evidence makes it at least as difficult to admit evidence against a criminal defendant as it is to introduce evidence against a civil defendant. (Federal Rule of Evidence 404(a) does allow propensity character evidence to be admitted against criminal and not civil defendants, but this "mercy" rule benefits criminal defendants who get to decide whether character evidence can be injected into their trials, a luxury not shared by civil defendants). Moreover, some rules of evidence make it more difficult to admit evidence against a criminal defendant than it is to introduce evidence against a civil defendant. See, e.g., Federal Rule of Evidence 609(a)(1), Federal Rule of Evidence 803(8).

 

I also don't see the civil/criminal distinction drawn by the court. Conley easily could have been (and might have been) sued civilly based upon his alleged acts. Because the court ostensibly found that the installation of the lock was a subsequent remedial measure, it presumably would have deemed that evidence inadmissible to prove his culpability. How does the analysis change any when Conley is being criminally prosecuted? Similarly, if a defendant is sued for wrongful death and prosecuted for criminally negligent homicide based upon the same act, what justification could be given for excluding evidence of his subsequent remedial measures in his civil trial but not in his criminal trial? I can't think of any. Can readers?

 

(EDIT, 5:00 P.M.: Professor James Duane wrote me this e-mail in response to an e-mail I sent to the Evidence Listserv regarding this post:

Funny you would ask; what you say is almost entirely true.   As you observed, there is a very well-settled aspect of evidence law, with a number of examples, which provides that evidence is almost always at least as freely admissible (if not more so) when offered against a civil defendant than it would be when offered against the same individual or some other defendant in a criminal prosecution.  One of the reasons “for treating civil and criminal cases differently is that the stakes are higher in criminal cases, where liberty or even life may be at stake, and where the government's sole interest is to convict.”  Mitchell v. United States, 526 U.S. 314, 328 (1999) (citation omitted; explaining why defendant’s silence may be used as evidence against him in a civil trial but not at a criminal trial arising out of the same allegations).  

At least until recently, the Federal Rules of Evidence contained no exceptions to this principle – until the unfortunate adoption of the 2006 amendment to FRE 408(a)(2), which now provides that incriminating statements made by a civil defendant while trying to compromise a civil claim can (depending on the identity of the plaintiff) sometimes be used against him at a later criminal trial, but not at the civil trial arising out of the same allegations or at any other civil trial.  The Advisory Committee did not even try to furnish any coherent justification for this anomalous result, and common sense confirms that none is available.  The Committee Notes posit that “Where an individual makes a statement in the presence of government agents, its subsequent admission in a criminal case should not be unexpected” – at least, I suppose, when it is offered against an accused who was not laboring under the disadvantage of knowing only what this rule said for 25 years before its most recent amendment.   But that logic, such as it is, would obviously apply with even great force to support an amendment based on the assumption that a civil defendant who makes a statement in the presence of the plaintiff’s lawyer during settlement negotiations should not be too surprised when that statement is later offered against him by that same lawyer in that same case.  This is one of the many reasons (there are others) why this aspect of the 2006 amendment to Rule 408 was a bad idea and very poorly reasoned, and why it was opposed in the public comments submitted by literally every professional and judicial and academic observer other than the United States Department of Justice – the only party in the nation which benefited from the adoption of this particular provision.

)

-CM 

Still Haven't Found What I'm Looking For: Court Of Appeals Of Texas Finds Prosecution Made Reasonable Attempt To Locate Witness In Murder Retrial For Former Testimony Purposes

Like its federal counterpart, Texas Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for 

testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

And, like its federal counterpart, Texas Rule of Evidence 804(b)(1) only applies when the proponent can prove declarant unavailability under Rule 804(a), which includes situations in which the declarant 

is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.

But what constitutes reasonable means? That was the question presented to the Court of Appeals of Texas, Houston, in Reed v. State, 2009 WL 3050825 (Tex.App.-Houston [1 Dist.] 2009).

In Reed, Keaaron Reed was convicted of the murder of Fred Porter. This conviction, however, cam at the end of Reed's second trial; his first trial ended in a mistrial despite the eyewitness testimony of Samantha Stewart. Stewart did not testify at Reed's second trial, but the prosecution was able to present her testimony from the first trial to the jury pursuant to Texas Rule of Evidence 804(b)(1).

Reed subsequently appealed, claiming that the trial court erred in admitting this former testimony. Of course, he did not dispute that he had an opportunity and similar motive to develop the testimony of Stewart at his first trial; however, he did claim that the prosecution failed to establish that it was unable to procure Stewart's attendance or testimony by process or other reasonable means. The Court of Appeals disagreed, noting that an investigator for the D.A.'s office made unsuccessful attempts to locate Stewart that were

sufficient to show the State made good-faith efforts to obtain Stewart for trial. The record shows repeated efforts by Jones to produce Stewart for trial. Jones exhausted his contacts among Stewart's family and friends and had no knowledge of her whereabouts, except for the speculation she might be in Chicago. Any further efforts could reasonably have been deemed futile by the trial court. Because Jones could not determine where Stewart could be located, a writ of attachment would have been futile because the writ would not have brought the witness to trial. 

-CM

The Devil Is In The Dictum: Second Circuit Makes Troubling Statements In Dictum In Rape Shield Ruling

A female employee allegedly flashes her breasts to co-workers at the workplace. That female employee later brings a sexual harassment action against her superior, claiming that he touched her thighs and breasts, offered her job security in return for sex, and showed up uninvited at her residence. The superior, who was not present during the alleged breast flashing, seeks to present evidence of this flashing in his defense. How should the court rule? Clearly, the answer should be to deem the evidence inadmissible. And indeed, that is what the United States District Court for the Southern District of New York held in hearing a case with these facts: Basile v. Spagnola. Moreover, the Second Circuit recently affirmed that decision in its recent opinion in Basile v. Spagnola, 2009 WL3015489 (2nd Cir. 2009). So, what's the problem? Well, in this case, the devil is in the dictum.

The facts in Spagnola were basically the facts listed above. Julia Basile brought a sexual harassment action against her superior, Walter Spagnola, and

presented testimony from herself and two other witnesses about multiple incidents of inappropriate behavior by Spagnola. These witnesses detailed inappropriate behavior by Spagnola, including touching Basile's thighs and breasts, offering her job security in return for sex, and showing up uninvited at Basile's residence.

In an attempt to defend against these claims,

Spagnola sought to introduce testimony that Basile had flashed her breasts at the workplace when Basile was offduty. Spagnola did not witness the event himself, relying on hearsay from a co-worker. The court declined to admit the evidence, finding that the prejudicial effect of the evidence outweighed the probative value.

The Second Circuit affirmed this ruling, but not because it agreed with the district court's conclusion. Instead, according to the Second Circuit, the district court

stated that the ruling was merely a preliminary one, and provided Spagnola the opportunity to produce eyewitnesses who could testify as to the incident. He failed to do so. In light of this, it was not an abuse of discretion for the court to deny Spagnola's motion in limine and preclude evidence of Basile's sexual conduct.

The Second Circuit should have just affirmed the district court's ruling. Instead, the appellate court implied that the problem with Spagnola's argument was that he was relying upon hearsay rather than eyewitness testimony, not that the evidence he sought to admit was completely irrelevant to the issues at trial.

The Second Circuit noted that the rape shield rule -- Federal Rule of Evidence 412 -- applies to sexual harassment lawsuits. And the court noted that, unlike in criminal cases, evidence of past sexual behavior by a civil plaintiff is almost never admissible under an exception to the rape shield rule because such evidence is only admissible "if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party."

I can't think of how evidence of Basile's alleged breast flashing would have any probative value on the issue of whether Spagnola sexually harassed Basile, especially when he wasn't even present for the alleged act (not that his presence would have changed things). Meanwhile, the admission of such evidence would greatly harm Basile and cause unfair prejudice to her case. It thus seems to me that the district court was completely correct in finding that the problem with the evidence Spagnola sought to introduce was its substance, not its form. Conversely, I don't know what the Second Circuit was thinking.

-CM

Like A Good Witness: Supreme Court Of South Carolina Applies "Substantial Connection" Test To Evidence Of Insurance Offered To Prove Bias

Like its federal counterpart, South Carolina Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

That's not to say, though, that evidence of liability insurance is automatically admissible to prove bias as it must still pass the Rule 403 balancing test. And the recent opinion of the Supreme Court of South Carolina in Todd v. Joyner, 2009 WL 2988904 (S.C. 2009), reveals the test that South Carolina courts use to make that determination.

In Joyner, A car driven by Barbara Joyner collided with a car in which Frances Todd was a passenger, and Todd sustained injuries and sued for damages. State Farm, Joyner's insurer, defended her at trial, during which she admitted negligence and the trial court directed a verdict on liability; consequently, the sole issue before the jury was the amount of damages owed to Todd. In disputing Todd's claimed damages, Joyner presented Dr. Richard J. Friedman as an expert in orthopedic surgery. Dr. Friedman testified that Todd suffered no permanent impairment from the auto accident and that any treatment she received more than roughly four months after the accident was not reasonable and necessary or proximately caused by the accident.

At trial, Todd sought to introduce evidence that Joyner was insured by State Farm to prove bias by Dr. Friedman, whom was paid between $50,000 and $60,000 by the insurance company for work on eighteen different claim numbers during calendar years 2003-2005. The trial court, however, deemed this evidence inadmissible, and the jury only awarded Todd $37,191.11, the amount of medical bills presented at trial.

Todd subsequently appealed, and her appeal eventually reached the South Carolina Supremes, who noted that in Yoho v. Thompson, 548 S.E.2d 584, it had decided to follow the analysis of "[a] majority of jurisdictions" and apply the "substantial connection" test to determine whether evidence of liability insurance passes the Rule 403 balancing test when offered to prove bias. In other words, when there is a substantial connection between an expert witness and an insurance company, evidence of liability insurance passes the Rule 403 balancing test. In Yoho, the court found such a "substantial connection" because he maintained an employment relationship with Nationwide Insurance, consulted for Nationwide in other cases, gave lectures to Nationwide's agents and adjusters, devoted 10-20% of his practice to reviewing records for insurance companies, including Nationwide, and had his yearly salary based in part on his insurance consulting work.

Conversely, the court found that Dr. Friedman did not have a "substantial connection" with State Farm because

Todd showed...that Dr. Friedman earned approximately $50,000 from State Farm during calendar years 2003-2005 based on work on eighteen claims, but presented no evidence as to Dr. Friedman's total earnings during that period. Moreover, unlike Yoho, the evidence appear[ed] to show that Dr. Friedman was paid an expert fee rather than having an employment relationship with State Farm. In short, the evidence presented by Todd d[id] not show as strong a connection between the expert and the insurance company as in Yoho and [the court could not] conclude that the Court of Appeals erred in affirming the trial court.

-CM 

Better Evidence Or Best Evidence?: Second Circuit Affirms Bank Fraud Convictions Despite Best Evidence Rule

Federal Rule of Evidence 1002, the Best Evidence Rule, states that

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

And it was the "except as otherwise" portion of the rule that got the appellant in United States v. Whittingham, 2009 WL 3004345 (2nd Cir. 2009). 

In Whittingham, Nadine Whittingham, a former Bank of America employee, was convicted of bank fraud and conspiracy to commit bank fraud based upon evidence that she accessed, without authorization, several accounts at the bank where she was employed, and shared information about those accounts with co-conspirators for the purpose of fraudulently obtaining the funds in those accounts, resulting in a loss in excess of $1 million. During Whittinham's trial, "the district court admitted a series of still images printed from surveillance videos that allegedly show[ed] Whittingham at her desk at approximately the times when the government argued she was illegally accessing customer accounts." The government only introduced these still photographs because the Bank of America fraud investigator lost the original videotapes.

After Whittingham was convicted, she appealed, claiming, inter alia, that the admission of the still images violated the Best Evidence Rule because the government failed to produce the original videotapes. The Second Circuit disagreed, noting that, pursuant to Federal Rule of Evidence 1004(1),

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.

And the problem for Whittingham was that she made "no allegations that the government lost or destroyed the originals in bad faith, and indeed, it was the Bank of America fraud investigator, not the government, who lost the videotapes." Whittingham also claimed that the still images were not properly authenticated, but the Second Circuit quickly turned that argument aside, finding that "the government adequately authenticated the photographs through the testimony of the bank employees regarding how the videos were recorded, collected, and time-stamped, as well as the circumstantial evidence placing the defendant at her desk during those times.  

-CM

The Case-In-Chief Waiver: Fifth Circuit Becomes Third Federal Appellate Court To Read Mezzanatto In Broadest Sense

In relevant part, Federal Rule of Evidence 410 provides 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:....

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a criminal defendant can waive Rule 410 protection and make his otherwise excludable plea statements admissible to impeach him should he make contradictory statements at trial. The Court left open the question of whether a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence. Thereafter, a handful of federal appellate courts found that a defendant could make such a waiver by presenting evidence at trial contradicting his otherwise excludable plea statements, which would allow the prosecution to use his statements substantively to rebut the evidence elicited, i.e., the "rebuttal waiver."

Until a few days ago, however, only two federal appelate courts had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence  even when he did not present evidence at trial contradicting his otherwise excludable plea statements. But after the opinion of the Fifth Circuit in United States v. Sylvester, that number has risen to three.

In Sylvester, Donald Sylvester was charged with murder in connection with the killing of a federal witness. AUSA Maurice Landrieu explained to Sylvester that the Attorney General had the discretion to seek capital punishment and proposed that, in return for a full confession, Landrieu would ask permission to seek life imprisonment instead. Sylvester then waived his objection to the admission of incriminating statements at trial in the event that plea negotaitions failed and confessed, and Landrieu made the promised recommendation to the Attorney General. Thereafter, however, Sylvester changed his mind and decided to take his chances at trial.

After a full evidentiary hearing, the district judge then determined that the prosecution could admit Sylvester's incriminatory plea statements during its case-in-chief as substantive evidence of Sylvester's guilt. Sylvester was subsequently convicted, prompting his appeal to the Fifth Circuit on this evidentiary issue, leading that court to deal with a question of first impression for it: "whether the government may use a defendant's statements made in teh course of plea negotiations in its case-in-chief, when the defendant, as a condition to engaging in negotiations with the government, knowingly and voluntarily waived all rights to object to such use."  

The court then noted that only two federal appellate courts -- the Eighth and D.C. Circuits -- had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence during the prosecution's case-in-chief. According to the Fifth Circuit, however, these courts were right. The Fifth Circuit noted that the main purpose of Rule 410  is to encourage plea negotiations so that criminal cases can be "settled" rather than going to trial. And, according to the court, "case-in-chief" waiver would not (really) discourage defendants from engaging in plea negoations any more than "impeachment waiver" or "rebuttal waiver." According to the court,

it seems unlikely to us that any significant number of defendants would draw fine distinctions as to whether statements made in the course of plea negotiations could be used in the government's case-in-chief or only for impeachment or rebuttal. Even with such an exacting decisionmaker, the choice is somewhat illusory.

I fundamentally disagree. First, I disagree with the leap from "impeachment waiver" to "rebuttal waiver." A defendant, or more importantly, his attorney, could easily think that it is is worth it to make an "impeachment waiver" to get to the plea bargaining table, but not a "rebuttal waiver." Why? Well, the defendant doesn't have to testify at trial, and many defendants, especially those with prior records, indeed do not testify at trial. Therefore, it could easily make sense for a defendant to make an "impeachment waiver" with the knowledge that whatever he says during plea negotiations cannot be used against him at trial as long as he does not testify (and never be used against him substantively).

Second, I disagree with the leap from "rebuttal waiver" to "case-in-chief waiver." In Sylvester, the defendant claimed that the difference between the two was that the former would not allow for the admission of otherwise excludable plea statements if the defendant limited his defense to credibilty impeachment of government witnesses or essentially declines to wage a defense at all. The Fifth Circuit rejected this distinction with the conclusory conclusion that Sylvester had not conviced it that the distinction would be meaningful to a significant number of defendants.

My first response is, "Why not?" My second response is that there are more differences. Let's say that during plea negotiations, a defendant charged with murder admits to being at the crime scene but decides to end those negotiations before admitting guilt. With a "rebuttal waiver," the defendant's incriminatory statement cannot be introduced unless he presents evidence that he was not at the crime scene. Conversely, with a "case-in-chief" waiver, his incriminatory statement can be introduced even if the defendant presents no evidence on the issue. In other words, if the defendant stops short of admitting to committing the crime charged during plea negotiations, he can mount some type of defense and keep some of his plea statements out even with a "rebuttal waiver." With a "case-in-chief waiver," he cannot.

-CM

 

If You Catch My Drift: Innocence Project Of Texas Publishes: Dog Scent Lineups A Junk Science Injustice

I have written a couple of previous posts (here and here) about the tests that courts have used to determine whether evidence of tracking by a dog is admissible. Now, The Innocence Project of Texas has weighed in on a somewhat related issue by publishing a special report, Dog Scent Lineups A Junk Science Injustice.

The report was written by Jeff Blackburn, the Chief Counsel of The Innocence Project of Texas, and it covers the following topics:

1. What is "Junk Science"?

2. Junk Science in Texas

3. Dog Scent EVidence

4. Dog Scent Evidence - The Science

5. Dog Science Evidence - The Junk

6. The Strange and Awful Career of Deputy Keith Pikett

7. What Has to Be Done

Here are some of the main arguments main in each section:

In What is "Junk Science"?, Blackburn asserts that 

In case after case, prosecutors have used phony "experts" with little or no training or education, false results from shoddy labs and dubious '"theories" with no basis in fact to get convictions. Taken together, these abusive practices have come to be known as the use of "junk science." The use of this "evidence" is not limited to the courtrooms; law enforcement agencies have come more and more to rely on it in making arrests and getting indictments.

In Junk Science, Texas Style, Blackburn contends that Texas prosecutors have used a variety of "junk science" without much circumspection, including bogus arson expert evidence, false autopsies, and inaccurate hair and fiber evidence. In Dog Scent Evidence and "Scent Lineups," Blackburn identifies the subject of the report: "cases in which dog handlers claim that their dogs have distinguished between different odors among people, identified one, and matched to evidence from a crime scene."  

 

In The Science of Scent Lineups, Blackburn notes that

If there is a developing consensus about the use of scent lineups, it comes down to this:

1. Scientific methods have to be used;

2. Rules based upon those methods have to be precisely followed;

3. Even if proper methods and rules are used the scent lineup has very limited value as "scientific evidence" and cannot be solely relied upon.

In The Junk of Scent Lineups, notes that "[a]t least two other jurisdictions besides Texas have routinely relied on unscientific scent lineups": Florida and Cuba, both with undesirable results. In The Strange and Awful Career of Keith Pikett, Blackburn notes that the leading "expert" in Texas on scent lineups is Keith Pikett, who "has indicated that it is not important for him to receive any formal training, that he does not need to follow any rules or protocols established by scientists in the field, and that he rejects the importance of scientific studies concerning scent lineups."  

In Some Conclusions About Scent Evidence, Blackburn concludes that scent lineups "are not founded on a reliable scientific methodology and that

[t]he science of scent lineups in Texas has no rules, procedures, or performance standards. It is being practiced by "experts without expertise according to no rules except their own.

Finally, in What Has to Be Done, Blackburn calls on the government to do seven things, including calling on all police agencies to stop using scent lineups immediately and calling on the Forensic Science Commission of the State of Texas to conduct a full investigation into the use of scent lineups and to prohibit them from being used.

 

-CM

The Guy Is So Dangerous: Supreme Court Of Virginia Finds Virginia Courts Did Not Err In Future Dangerousness Rulings In Death Penalty Appeal

A man is convicted of murder. During the capital sentencing hearing, the prosecution presents evidence regarding the man's future dangerousness, i.e., evidence that the man would present a future danger if not given the death penalty. This danger, however, would be limited to the danger presented to prison guards and other inmates because the jury's only sentencing options are the death penalty and life imprisonment without the possibility of parole. The man wants to drive this point home to the jury by having the court appoint him an expert to, inter alia, testify that his opportunities for serious violence toward others would be greatly reduced based upon the conditions of his confinement. The court denies his motion. Has the court acted properly?

According to the recent opinion of the Supreme Court of Virginia in Morva v. Commonwealth, 2009 WL 2973006 (Va. 2009), the answer is "yes." In Morva, William Charles Morva brought such a motion, seeking to have forensic psychologist Dr. Mark D. Cunnigham (or a similar expert) appointed on his behalf "to rebut the Commonwealth's claim that Morva was a future danger to society and to provide the jury with an assessment of the likelihood that Morva would commit violence if he were sentenced to life in prison." 

In Dr. Cunningham's declaration, provided as an attachment to the motion, Dr. Cunningham stated, "A reliable individualized assessment can be made of the likelihood that Mr. Morva will commit acts of serious violence if confined for life in the Virginia Department of Corrections." He further acknowledged that he would testify concerning "[g]roup statistical data (i.e., base rate data)” because the “rates of violence in similarly situated groups is critically important to a reliable violence risk assessment and forms the anchoring point of any individualized risk assessment.” If appointed, he would testify that “[r]isk is always a function of context,” and consideration of interventions that can be brought to bear on inmates in the Virginia Department of Corrections would be an important part of the violence risk assessment he would perform. He would also testify that “[t]here are conditions of confinement available in the Virginia Department of Corrections that substantially negate the potential/occurrence of serious violence” and that “[s]hould Mr. Morva be identified as a disproportionate risk of violent or disruptive conduct by the Virginia Department of Corrections, super-maximum confinement could be brought to bear.”

Dr. Cunningham further stated “it is necessary to specify the conditions of confinement in order to make a reliable violence risk assessment and to address the implicit inference of the Commonwealth in alleging [a] continuing threat that it is incompetent to securely confine the defendant in the future.” He noted that he would testify that “[u]nder an administrative maximum level of confinement at Red Onion or other ultra-high security unit, an inmate is single-celled and locked down twenty-three hours daily, with individual or small group exercise, and shackled movement under escort. Under such conditions of security, opportunities for serious violence toward others are greatly reduced.” He opined that “[s]uch increased security measures would act to significantly reduce the likelihood of Mr. Morva engaging in serious violence in prison.”

In the letter from Dr. Cunningham accompanying the motion to reconsider, Dr. Cunningham stated that group statistical data regarding similarly situated inmates interpreted in light of characteristics specific to Morva is relevant to future prison conduct. He also expounded upon the scientific validity of making individual assessments based upon group data. He reiterated that risk is always a function of context or preventative interventions and that increased security measures could significantly reduce the likelihood that Morva would engage in serious violence in prison. He opined that informing the jury of the capabilities of the Virginia Department of Corrections to bring higher levels of security to bear was necessary to provide an individualized risk assessment.

After the lower courts denied this motion, the Supreme Court of Virgina agreed, noting that, pursuant to Virginia statutes,

[t]o be admissible, evidence relating to a prison environment must connect the specific characteristics of the particular defendant to his future adaptability in the prison environment....It must be evidence peculiar to the defendant's character, history, and background in order to be relevant to the future dangerousness inquiry....Conditions of prison life and the security measures utilized in a maximum security facility are not relevant to the future dangerousness inquiry unless such evidence is specific to the defendant on trial and relevant to that specific defendant's ability to adjust to prison life....

Increased security measures and conditions of prison life that reduce the likelihood of future dangerousness of all inmates is general information that is irrelevant to the inquiry....The generalized competence of the Commonwealth to completely secure a defendant in the future is not a relevant inquiry. Our precedent is clear that a court should exclude evidence concerning the defendant's diminished opportunities to commit criminal acts of violence in the future due to the security conditions in the prison.

According to the Virginia Supremes, this fact proved fatal to Morva's claim because

[t]he fact that being an inmate in a single cell, locked down twenty-three hours a day, with individual or small group exercise, and shackled movement under escort would greatly reduce opportunity for serious violence toward others, is not particular to Morva. It is true for any other inmate as well, and it is evidence of the effectiveness of general prison security, which is not relevant to the issue of Morva's future dangerousness. Whether offered by an expert, or anyone else, evidence of prison life and the security measures used in a prison environment are not relevant to future dangerousness unless it connects the specific characteristics of a particular defendant to his future adaptability in the prison environment....

According to Dr. Cunningham, general factors concerning prison procedure and security that are not individualized as to Morva's prior history, conviction record, or the circumstances of his offense are essential to Dr. Cunningham's expert opinion on prison risk assessment. Pursuant to our precedent, Dr. Cunningham's proposed testimony concerning prison life is inadmissible.

Two justices, however, dissented, finding that

while the "focus" of the future dangerousness determination is statutorily directed to the defendant's past criminal record, prior history, and circumstances surrounding the commission of the offense, these statutes do not, and in [our] view constitutionally could not, limit the defendant's right to produce relevant evidence either in defense of the Commonwealth's assertions regarding the future dangerousness determination by the jury or the jury's ultimate consideration to impose the death sentence rather than a life sentence without the possibility of parole.

I think that I side with the dissenting justices. Regardless of the wording of the applicable statutes, I don't see how a court could prevent a defendant from presenting evidence regarding the conditions of his confinement to rebut the prosecution's contentions of future dangerousness (especially when death is on the line). It would seem to me, at a minimum, that mechanistically applying statutes to exclude this evidence would violate a defendant's right to present a defense.

-CM

The Unspecified Prior Conviction: Court Of Appeals Of Minnesota Precludes Sanitized Impeachment In Order Of Protection Violation Appeal

Like its federal counterpart, Minnesota Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect.

When the prosecution seeks to impeach a criminal defendant through a prior conviction, the court considers five factors, such as how much bearing the crime leading to the prior conviction has on the defendant's honesty and the similarity between the crime leading to the prior conviction and the crime charged. Previously, when courts used to find that a specific conviction would not be admissible to impeach a defendant because its admission would be too prejudicial, they usually still allowed for the defendant (or another witness) to be impeached through evidence that he had some unspecified prior conviction. As the recent opinion of the Court of Appeals of Minnesota in State v. Utter, 2009 WL 2926510 (Minn.App. 2009), makes clear, however, the modern trend is away from this practice.

In Utter, Thomas Edward Utter, Jr. was charged with violating a harassment restraining order, and the prosecution sought to impeach him through his prior conviction for violating an order of protection. Based upon the similarity between the two crimes, the court determined that there was a substantial danger that the jury could misuse the prior conviction as propensity character evidence; however, rather, than exclude evidence of the conviction, the court allowed Utter to be impeached through evidence that he had a prior conviction, without the jury being informed of the crime leading to his prior conviction.

Utter subsequently appealed, and the Court of Appeals of Minnesota noted that "Minnesota appellate courts have not addressed the issue of whether evidence of an unspecified prior conviction is admissible, and other jurisdictions are split on the issue." The court then noted that Michigan had deemed unspecified prior conviction evidence inadmissible but also noted that

in a 1990 Illinois case, a concurring judge observed that "Michigan [was] the only state that expressly disallow[ed] impeachment by an unspecified felony," and that Florida, Idaho, Kentucky, Montana, Nebraska, Nevada, New Mexico, Washington, and Wisconsin allowed the "mere fact" of a felony conviction to be admissible, while Alaska, Connecticut, Oregon, and South Dakota considered the issue a matter of the trial court's discretion.  

According to the court, though, "since 1990, other jurisdictions have followed Michigan's rejection of the use of unspecified prior convictions for impeachment purposes, and, in 1999, the Illinois Supreme Court rejected what it called the 'mere fact' rule, reasoning that 'it is the nature of a past conviction, not merely the fact of it, that aids the jury in assessing a witness' credibility." The court then indicated that in its opinion in Bells v. State, 759 A.2d 1149, 1155 (Md.Ct.Spec.App. 2000), the Maryland Court of Special Appeals had found that

Although a rule permitting a sanitized use of similar convictions has some appeal, we are disinclined to graft such an extension onto the existing rule. Here, the court properly found that, in this case, the use of the prior convictions would in balance be more prejudicial than probative. We do not believe that the sanitized version was any less so.... [W]e hold that the lower court erred in permitting sanitized prior convictions to impeach Bells.

The Court of Appeals of Minnesota agreed with this reasoning and thus reversed, finding that

The court's solution substantially reduced the risk of admitting a prior conviction to impeach that is identical or similar to the current conviction, namely that the jury may conclude that because the defendant “did it before, he most likely has done it again.” But the court's solution also discarded the measure by which the jury could assess the impeachment value of the prior conviction. The impeachment value of the prior crime varies with the nature of the offense....By shielding the jury from the nature of appellant's prior conviction, the district court allowed the jury to speculate that the prior crime had much greater impeachment value than it may actually have had.

-CM

I Need A Remedy: SDNY Finds That Change In Employment Practice Constitutes Subsequent Remedial Measure

Federal Rule of Evidence 407 provides that

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

Usually, this rule applies when an instrumentality causes an injury and the defendant subsequently makes the instrumentality safer. For instance, if a patron falls on the front steps at a restaurant, evidence that the restaurant subsequent changed the lighting or added a handrail to the steps would be inadmissible under the rule. And if a child chokes on a toy, evidence that the manufacturer subsequently made the toy bigger would be inadmissible under the rule. As the recent opinion of the United States District Court for the Southern District of New York in Hamilton v. City of New York, 2009 WL 2973007 (S.D.N.Y. 2009), makes clear, however, the rule also applies to changes to allegedly discriminatory hiring practices.

In Hamilton, the plaintiffs were four current and former employees of the NYPD Crime Laboratory who claimed they were discriminated against based on their race and national origin and, as to two of the four, gender. These plaintiffs claimed they were denied promotions and demoted while promotions were given to less qualified Caucasian males who were born in the United States. Specifically, these plaintiffs alleged, inter alia, that when two new Criminalist IV positions were created, employees were not notified that they could apply for these positions, nor were interviews conducted. Instead, their supervisor merely offered these positions to Caucasian males and did not consider seniority in choosing candidates for promotion.

In support of their claims, the plaintiffs sought to present evidence that, "after the 2005 promotions, defendants changed their practices, and began posting new positions so that any interested applicant could apply, which plaintiffs argue is evidence that defendants knew their previous practices were discriminatory and unfair." The court, however, found that this evidence was inadmissible because it constituted a subsequent remedial measure under Federal Rule of Evidence 407. As support for this conclusion, the court relied upon two prior opinions that had similarly found that changes in employment practices after alleged discrimination are inadmissible under the rule because they constitute subsequent remedial measures.

-CM

Lie To Me: Colorado Supreme Court Denies Cert in Rule 703/Polygraph Case

Recently, in People ex rel. M.M., Jr. v. M.M., 2009 WL 2917036 (Colo. 2009), the Colrado Supreme Court denied a petition for writ of certiorari from People ex rel. M.M., Jr., 2009 WL 1012910(Colo.App. 2009), but a dissenting justice would have granted cert on, inter alia, the following issue:

Whether the court of appeals incorrectly applied Colorado Rule of Evidence 703 in holding that expert testimony about opinions based in part upon the results of polygraph examinations should not be admitted.

This seemed interestingto me, so I went back to the opinion of the Colorado Court of Appeals, Division III, and I'm think that I disagree with the Court of Appeals' reasoning.

In M.M., Jr., M.M. appealed from the judgment terminating the parent-child legal relationship between him and his son, M.M., Jr., and daughter, A.M. That judgment came after, inter alia, expert witnesses such as a therapist and a case worker testified that efforts to reunite the family should be terminated in part because M.M. failed polygraph questions asking whether he had abused his children. The Colorado Court of Appeals, Division III found that polygraph test results are generally inadmissible and that the issue of whether the experts' testimony made in reliance upon those results was admissible was governed by Colorado Rule of Evidence 703, which states 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 him 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. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert¹s opinion substantially outweighs their prejudicial effect.

The court then cautioned, however, that

expert testimony must be grounded in the methods and procedures of science, not on a subjective belief or unsupported speculation....Expert testimony must be reliable, which requires that the scientific principles used by the expert be reasonably reliable and that the expert is qualified to opine on the matters....Testimony lacking an analytically sound basis is speculative opinion testimony which is unreliable and inadmissible....A court determines the reliability of a scientific method by considering the totality of the circumstances....However, when, as here, the underlying basis for the expert opinions and recommendations is not accepted as reliable by the courts, the expert's testimony itself is inadmissible.  

I don't think that I agree with this reasoning. Under Rule 703, the facts or data underlying an expert merely need to be of a type reasonably relied upon by experts in their particular field, not those reasonably relied upon by the courts. After all, if the facts or data underlying an expert's testimony needed to be of a type reasonably relied upon by the courts, how could Rule 703 allow for experts to rely upon inadmissible facts and data?

Moreover, therapists as well as the government and private investigators frequently use polygraph tests. Now, is this enough to establish reasonable reliance? I'm not sure, but it is a question that I would have liked to have seen the Colorado Supremes address.

-CM

Finding Consistency: Arizona Case Provides Good Example Of Prior Consistent Statement Rule

Like its federal counterpart, Arizona Rule of Evidence 801(d)(1)(B) indicates 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.

And the recent opinion of the Arizona Court of Appeals, Division 2 in State v. Georgatos, 2009 WL 2883059 (Ariz.App. Div. 2 2009), provides a good example of when the rule applies.

In Georgatos, Thomas Georgatos was convicted of three counts, each of involving a minor in a drug offense and sexual conduct with a minor under the age of fifteen, based upon the following facts adduced at trial:

On January 1, 2007, seventeen-year-old D. and her friends L. and T., both fourteen years old at the time, went with Georgatos and another man to a hotel room, where Georgatos gave them methamphetamine. After the group smoked the methamphetamine, D. left the hotel room with the other man. L. and T. stayed behind with Georgatos and, except for a trip to a gas station, L. and T. remained at the hotel for approximately the next twenty-four hours. While there, they ingested more drugs Georgatos had given them and, according to the girls, Georgatos had sexual contact with each of them.

Some of these facts came from the testimony of L, whom initially had denied sexual contact with Georgatos in interviews with police in January 2007. Defense counsel sought to discredit L. though these denials and by asserting that L. had first claimed sexual contact with Georgatos "[e]ight, nine, ten months" after the incident. Specifically, defense counsel speculated she had lied about the contact because she was "not getting enough attention in this whole thing."

The problem for Georgatos in this regard was that L. had actually told her mother in January 2007 that she had sexual contact with Georgatos.  Therefore, because defense counsel had raised a charge against L. of recent fabrication or improper influence or motive, the prosecution was able to respond by admitting L.'s statements to her mother pursuant to Arizona Rule of Evidence 801(d)(1)(B).  

-CM

My New Essay: Crossing Over: Why Attorneys (And Judges) Should Not Be Able To Cross-Examine Witnesses Regarding Their Immigration Statuses For Impeachment Purposes

Last December, I posted an entry about the Eighth Circuit finding that a district judge did not commit plain error by extensively interrogating defense witnesses about their immigrations statuses. In January, I followed up on that post with an entry about the United States District Court for the Southern District of New York similarly finding that a civil plaintiff could be cross-examined regarding his immigration status. At the time, I noted that I thought that the judges had reached the wrong conclusions. I decided to follow up that posts with an essay, which became Crossing Over: Why Attorneys (and Judges) Should Not Be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes. The final version of the essay will be published in the Northwestern University Law Review Colloquy in November, and you can download my initial draft now on SSRN. Here is the abstract for the essay:

In two recent opinions, courts authorized the impeachment of witnesses through cross-examination regarding their immigration statuses. They allowed such impeachment pursuant to Federal Rule of Evidence 608(b), which only permits specific act impeachment if based upon acts that are directly probative of (un)truthfulness. This essay argues that immigration status is an improper subject for impeachment because it is most akin to trespassing, which is not an impeachable offense under Rule 608, and fundamentally dissimilar from the acts related to crimen falsi, which are generally the only impeachable offenses under the Rule.

Moreover, even if immigration status were an impeachable offense under Rule 608, courts should foreclose immigration interrogation for impeachment purposes because of its capacity to divide and prejudice jurors and discourage illegal aliens from bringing legitimate lawsuits for fear of being deported. Finally, if an attorney seeks to impeach a witness based upon his alleged commission of some crime, such as fraudulently obtaining documentation, and not simply based upon his immigration status, that witness should be able to invoke his Fifth Amendment privilege against self-incrimination.  

-CM 

Rape Shield Redux: Supreme Court Of Nevada Finds Rule 26 Applies Where Rape Shield Law Doesn't

Unlike its federal counterpart, NRS 50.090 -- Nevada's rape shield law -- only applies in criminal cases. Does that mean, however, that judges in civil cases are precluded from precluding discovery regarding a civil plaintiff's sexual history? According to the recent opinion of the Supreme Court of Nevada in Sonia F. v. Eighth Judicial Dist. Court, 2009 WL 2900770 (Nev. 2009), the answer is "no."

In Sonia F., Sonia F. the guardian ad litem for fourteen year-old J.M., filed a civil complaint against Amir Ahmad,

alleging various causes of action, all of which stem[med] from Ahmad's alleged rape of J.M. Specifically, Sonia F. claim[ed] that on the morning of July 5, 2006, Ahmad, who was 20 years old, forcibly raped her 14-year-old daughter, J.M., in Ahmad's parent's home. As a result of Ahmad's conduct, Sonia F. allege[d] that J.M. suffered and continues to suffer physical, emotional, and mental harm. Ahmad admit[ted] having sexual intercourse with J.M. but contend[ed] that it was consensual.

Ahmad thereafter filed a motion to compel J.M. to submit to an independent medical examination which would have involved questions about J.M.'s sexual history. Sonia F. responded by moving for a protective order, but the district court found that such questioning could proceed, prompting Sonia F. to file an emergency petition to the Supreme Court of Nevada seeking clarification of Nevada's rape shield law to civil cases.

The problem for Sonia F. was that the court found that NRS 50.090 plainly and unambiguously "applies to criminal prosecutions but not to civil trials." And the Supreme Court of Nevada "defer[red] to the Legislature to determine whether the public policy underlying the criminal rape shield law should be extended to include civil cases."

But that wasn't the end of the court's analysis. Instead, the court stated,

Nevertheless, in civil sexual assault cases, we conclude that discovery should not be unlimited. Rather, the district court should use its sound discretion to determine whether the discovery sought is consistent with NRCP 26(b)(1), which provides that inquiries must be relevant and "reasonably calculated to lead to the discovery of admissible evidence."

The court then suggested that the district court on remand could grant Sonia F.'s protective order, identifying D.S. v. Depaul Institute, 32 Pa. D. & C. 4th 328 (Ct.Com.Pl. 1996), as instructive on the issue. According to the Nevada Supremes,

Although the DePaul court concluded that Pennsylvania's criminal rape shield law did not apply in civil cases, it determined that discovery of a plaintiff's entire sexual history in a civil action was inappropriate....The court differentiated between the plaintiff's history of consensual sexual relationships from history of traumatic experiences,...and thereafter emphasized that while consensual relationships may impact a person's emotions, "[t]he law should not force plaintiffs...to disclose their entire [consensual] sexual...histories whenever they claim that they have sustained psychiatric problems from a traumatic event.

The court did "not adopt a steadfast rule related to discovery in all civil proceedings for sexual assault," but it did "stress that a district court has the broad discretion under NRCP 26 to determine, on a case-by-case basis, whether an alleged sexual assault victim's sexual history is discoverable." I think that this is the right analysis and hope that, at a minimum, other states with rape shield laws that only apply in criminal cases adopt a similar analysis.

-CM

Requiem For Residuum: Court Of Appeals Of Utah Finds Ruling Against Nurse Didn't Violate Residuum Rule

It is well established that rules of evidence do not apply at administrative proceedings. That is not to say, however, that such rules are irrelevant at such proceedings. For instance, hearsay is admissible at administrative proceedings, but under the residuum rule, factual findings at such a hearing cannot be exclusively based on inadmissible hearsay, as was made clear by the recent opinion of the Court of Appeals of Utah in Benitez v. Department of Health, Div. of Health Care Financing, 2009 WL 2902518 (Utah.App. 2009).

In Benitez, the Department of Health, Division of Health Care Financing conducted a formal hearing regarding allegations that Ruben Benitez, while working as a certified nursing assistant (CNA), had sexually abused a patient, N.M. After that hearing, at which the only evidence presented against Benitez were N.M.'s allegations, the Department concluded that the allegations were substantiated, and a negative finding for Benitez was placed on the state Nurse Aide Registry, which effectively precluded him from working as a CNA in Utah.

Benitez thereafter appealed, claiming that if the court set aside all hearsay evidence that was presented at the hearing, there was no residuum of evidence remaining to support the decision made by the Department. The Court of Appeals of Utah agreed with Benitez's construction of the residuum rule, but it did not agree that N.M.'s allegations were inadmissible hearsay. Instead, the court found that N.M.'s allegations were admissible as excited utterances pursuant to Utah Rule of Evidence 803(2), which 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.

In deeming Benitez's allegations to be excited utterances, the court focused on such facts as the startling nature of sexual abuse and the fact that N.M. made her allegations no more than an hour and a half after the alleged abuse. Thus, because the allegations were admissible, there was no problem under the residuum rule.

-CM

Welcome To The Blogosphere, (Relaunched) Civil Procedure & Federal Courts Blog

Last Wednesday marked the relaunch of the renamed Civil Procedure & Federal Courts Blog. The blog, which used to be run by W. Jeremy Counseller and Rory Ryan of Baylor, is now being run by

-Robin Effron (Event Jurisdiction and Protective Coordination: Lessons from the September 11th Litigation, Disaster-Specific Mechanisms for Consolidation) of Brooklyn;

-Cynthia L. Fountaine (Have License, Will Travel:  An Analysis of the New ABA Multijurisdictional Practice Rules, 81 WASHINGTON UNIVERSITY LAW QUARTERLY 737 (2003), Article III and the Adequate and Independent State Grounds Doctrine, 48 AMERICAN UNIVERSITY LAW REVIEW 1053 (1999)) of Texas Wesleyan; and

-Adam Steinman (The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy, What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?)) of Cincinnati.

In the first post on the relaunched blog, the authors state:

Hello, and welcome to the renovated Civil Procedure & Federal Courts Blog on the Law Professor Blogs Network. There have been a number of changes recently, the most large-fonted of which is the addition of "& Federal Courts" to our name. This expansion recognizes the often blurry line between civil procedure issues and federal courts/federal jurisdiction issues, for both academics and practitioners. But the new name does not mean we'll be covering only federal civil procedure. We're interested in civil procedure in all its forms--state, federal, foreign, transnational.

We hope you find the Civil Procedure & Federal Courts Blog to be a valuable resource. And if readers come across bloggable developments that we've missed, please feel free to let any (or all) of us know; our contact info appears at the left. Folks who are interested in guest blogging are also encouraged to contact us.

Enjoy!  

I'm sure that we can expect a number of terrifics posts from these knowledgeable folks that will be helpful to litigants, judges, students, and professors like me who teach civil procedure. Indeed, there are already interesting posts on the blog concerning recent Ninth Circuit preemption opinions, Iqbal, and military commission trials.

-CM

The Sleeping Juror: Eastern District Of California Denies Habeas Relief To Petitioner Despite Non-Juror Evidence Of Sleeping Juror

In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court held that post-trial juror testimony that, during trial, jurors were falling asleep, drinking alcohol, and using and selling drugs was inadmissible under Federal Rule of Evidence 606(b), which provides in relevant part that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon 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.

According to the Court, this was the case because none of the alleged juror misconduct constituted extraneous prejudicial information or an improper outside influence. The court did note, however, that the Rule only precluded post-trial impeachment of verdict by jurors, not post-trial impeachment of verdicts by non-jurors. And in the recent opinion of the United States District Court for the Eastern District of California in Anderson v. Terhune, 2009 WL 2462398 (E.D. Cal. 2009), the petitioner had non-juror evidence that a juror fell asleep during portions of his trial. And yet, the court somehow found that this evidence was insufficient to award the petitioner relief.

In Terhune, Arthur Anderson was convicted of two counts of first degree murder and one count of attempted murder. After he was convicted and unsuccessfully appealed in the California state court system, Anderson brought a petition for writ of habes corpus with the United States District Court for the Eastern District of California, alleging, inter alia, that he received constitutionally ineffective assistance of counsel when his trial counsel failed “to adequately investigate and present evidence that Juror Bruce Moon fell asleep for minutes at a time, several times each day throughout the trial, and thereby missed cumulatively significant portions of trial testimony, and that Mr. Moon suffered from an undiagnosed disorder that caused him to slip into a sleep state when in sedentary situations” in connection with petitioner's motion for a new trial.

In response, the Eastern District of California noted that the issue was governed by California Evidence Code Section 1150(a), California's counterpart to Federal Rule of Evidence 606(b), which rendered any juror testimony regarding the sleeping juror inadmissible. But the court noted that

Petitioner has also presented non-juror evidence of Mr. Moon's sleeping, including declarations from petitioner's mother, petitioner's two sisters, and two friends of petitioner's family, all of whom averred that they observed Mr. Moon appear to fall asleep during portions of the trial. In addition, petitioner has presented an expert declaration from David Claman, M.D. concerning whether Mr. Moon suffered from a sleep disorder and the probable impact of such a disorder "on his ability to perceive trial testimony."...Dr. Claman's declaration is based substantially, though not entirely, on juror affidavits, testimony and interviews....It is also based on the nonjuror declarations filed by petitioner in this action.

The court found that this evidence was not covered by California Evidence Code Section 1150(a), but it found that this evidence was insufficient to award Anderson relief because "the United States Supreme Court held in Tanner that evidence that 'some jurors were 'falling asleep all the time during trial'' did not establish juror incompetence sufficient to justify further post-verdict inquiry."

The problem that I have with this holding is that this is not what the Court found in Tanner. Instead, the Court in Tanner found that the allegations of sleeping jurors "would not suffice to bring this case under the common-law exception allowing post-verdict inquiry when an extremely strong showing of incompetency has been made." But Anderson wasn't trying to establish that his evidence fit into the common-law incompetency exception to the anti-jury impeachment rule. Instead, it was undisputed that the non-juror evidence regarding Moon sleeping was admissible; the only question was what effect Moon's sleeping (likely) had on the verdict.

-CM