EvidenceProf Blog

EvidenceProf Blog's 3rd Annual Halloween Movie Pick: John McNaughton's "Henry: Portrait of a Serial Killer"

It's Halloween again, which means that it's time for EvidenceProf's Blog's third annual Halloween movie pick (after "The Gift" and "Homecoming"). For this year's pick, I'm again digging into the archives from my days reviewing DVDs and pulling out a review. This one is of John McNaughton's "Henry: Portrait of a Serial Killer," a film loosely based upon real life serial killer Henry Lee Lucas, the only man that George W. Bush granted clemency while he was governor.

"Henry: Portrait of a Serial Killer"

When Maljack Productions commissioned John McNaughton to direct "Henry: Portrait of a Serial Killer," they expected a standard slasher flick, much like Morgan Creek presumed Paul Schrader, the man who created Travis Bickle, would make its "Exorcist" prequel into the type of schlocky horror flick Renny Harlin eventually crapped out. Instead, McNaughton subverted serial killer movies against the backdrop of mid-80s Chicago, just as "Taxi Driver"  deconstructed "Death Wish" vigilante thrillers in mid-70s Manhattan. In fact, "Taxi Driver" director Martin Scorsese was so taken by this directorial debut that he later produced McNaughton's "Mad Dog and Glory," which personalized the gangster genre by focusing on the connections between a kingpin, his mol, and a lonely cop.

Henry is loosely based upon real life serial killer Henry Lee Lucas, and it also hones in on a trio: Henry, his scuzzy apartment-mate Otis, and Otis' newly arriving sister Becky, who jumped out of the frying pan of an abusive relationship and into their crossfire. It's ironic that "serial killer chic" flicks like "Saw" practically beg audiences to root for the quirky sociopath and get R or even PG-13 ratings, while the objective and unglamorous Henry was slapped with an X rating based on "disturbing moral content" for strapping the audience into the passenger seat of Henry's beat-up green sedan and forcing us to question our reactions to violence.

McNaughton doesn't even cede us establishing shots, instead dropping us into scenes with tight shots that slowly retract and rotate to give us context, such as during the first act's dystopian tableaux of Henry's victims whose grotesqueness is only gradually revealed. It's an unsettling technique later tweaked by Ray Lawrence to open his twisty "Lantana." Ratcheting up the disquiet is Robert McNaughton's score of throbbing drums and shrill piano as he contrasts the lifelessness of Henry's corpses with the imprint of their reverberating screams. The only false notes struck are some synthesizer riffs that date the film (like "Manhunter").

McNaughton and the film's co-writer Richard Fire had documentary and theater backgrounds respectively, and they create a Cinéma vérité feel in scenes unfolding in flatly lit Chicago backalleys, while the spareness of Henry and Otis' mouldering apartment allows for the intimacy and emotional rawness of a stage production. Michael Rooker ("Eight Men Out") plays Henry as affable but affectless, a sharp duality that matches his soft yet gravelly voice. Like Owen Wilson's serial killer in "The Minus Man," he's scary precisely because he's the low-key guy sitting next to you at the diner, not a hockey-masked or muzzled monster.

The intentionally grainy film is presented in a full screen transfer from its original 16mm print with Dolby Digital 2.0. Two documentaries and a commentary track by the director and moderator David Gregory are engrossing and comprehensively cover the making of the film and Henry Lee Lucas' life. McNaughton also provides keen commentary on about 20 minutes worth of deleted scenes, which don't have sound, and there's also a still gallery and a superb collection of storyboards.

-CM

Don't Rock The Boat, Take 2: Supreme Court Of Iowa Opinion Reveals That Iowa And Federal Rules On Subsequent Remedial Measures Aren't That Different

Back in March, I posted an entry about the opinion of the Court of Appeals of Iowa in Scott v. Dutton-Lainson Co., 2009 WL 398488 (Iowa App. 2009), and how it revealed the differences between Federal Rule of Evidence 407 and Iowa Rule of Evidence 5.407. Well, in its recent opinion in Scott v. Dutton-Lainson Co., 2009 WL 3415937 (Iowa 2009), the Supreme Court of Iowa reversed the Court of Appeals of Iowa, revealing that the two rules aren't that different.

As I noted in my previous post,

In Scott, Stephen Scott, the manager of a boat dealership, was injured when the swivel jack on a boat trailer collapsed as he attempted to move the boat and trailer, with the tongue of the trailer landing on his foot. He thereafter sued the trailer manufacturer and the trailer jack manufacturer, Dutton-Lainson, alleging, inter alia, that the jack failed due to defects in its design and manufacture. The trial court, however, precluded Scott from presenting certain evidence, such as evidence that Dutton-Lainson modified the pin of the swivel jack following his injury. After the jury returned a verdict in favor of Dutton-Lainson, Scott appealed, claiming, inter alia, that the trial court improperly precluded the jack modification evidence.

The Court of Appeals of Iowa held that the issue was governed by Iowa Rule of Evidence 5.407, which states 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 rule does not require the exclusion of evidence of subsequent measures when offered in connection with a claim based on strict liability in tort or breach of warranty or for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

This language is different from the language in Federal Rule of Evidence 407, which states that:

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

As the Supreme Court of Iowa noted in Scott, one clear difference between these two rules is that "Iowa Rule of Evidence 5.407 allows introduction of evidence of subsequent remedial measures in strict liability claims while Federal Rule of Evidence 407 specifically prohibits it." The Court of Appeals of Iowa, however, had gone one step further. It also found that Iowa Rule of Evidence 5.407 allows introduction of evidence of subsequent remedial measures in cases involving products liability claims which are not strict liability claims and thus deemed the jack modification evidence admissible.

In its recent opinion in Scott, the Iowa Supremes disagreed, finding that 

[t]he standards for design defect and failure to warn claims-as recognized by the Third Products Restatement and Wright-require consideration of reasonableness and therefore incorporate negligence principles....Scott seeks to introduce evidence of a subsequent remedial measure to do exactly what the rule forbids: prove negligence or culpable conduct.  

The court thus vacated the opinion of the Court of Appeals of Iowa and reinstated the trial court's conclusion that the jack modification evidence was inadmissible.

-CM

The Art Of The Steal: The EvidenceProf Blog Review Of The "White Collar" Pilot

Last Friday, USA aired the pilot of its new series "White Collar." The second episode airs tomorrow at 10/9c. If the pilot is a harbinger of things to come, this might be the rare show that I recommend that law students watch. Here is the EvidenceProf Blog review:  

In the early twentieth century, Upton Sinclair coined the phrase "white collar," and he exposed the New York City white collar criminal in "The Moneychangers," his fictionalized account of the Wall Street panic of 1907. The pilot episode of "White Collar" reveals why it is appropriate, especially in the post-Madoff milieu, that the USA Network show takes its name from the famed muckraker's musings.

The pilot opens by introducing us to the two principals. Matthew Bomer ("Chuck") is Neal Caffrey, a jack-of-all-cons, escaping from a supermax prison in a breezy manner that matches the tone of the network's latest entry in its "Characters Welcome" coterie. Tim McKay ("Carnivàle") is FBI agent Peter Burke, the by-the-book G-man who put Caffrey behind bars but who has just had his latest search for another crack con -- the Dutchman -- (literally) blow up in his face.

Caffrey flew the coop four months early in an attempt to reconnect with former flame Kate, but his flight was two days late as all he finds is her deserted apartment and a reunitement with Burke and his jail cell. Facing another four years in the pokey, Caffrey makes a deal with Burke (relying upon "precedent" and "case law"): He'll trade his jail time for straight time and serve as the con man to Burke's straight man by using his skills to help Burke track down white collar criminals. And those skills are ample. The pilot sets up Caffrey as every bit as conversant in the confidence game as USA stablemate Michael Westen ("Burn Notice") is in the spy game. The catch? A GPS device cum plot device that will go off if Caffrey veers outside a two mile radius in Manhattan in an attempt to find Kate, a quest that sets itself up to be a season-long B-story like Westen's attempt to find out who "burned" him.

As with "Burn Notice," "White Collar" gains a great deal of credibility by doing location shooting, giving off a great NYC vibe. But, despite using Russell Lee Fine, a frequent DP for "The Wire," the show feels more like a slick Rat Pack era throwback than a gritty, urban drama, much like the BBC's flimflammy "Hustle." Indeed, the pilot has Caffrey charming his way out of a dingy hotel and into a palatial mansion (much like Hank Lawson in USA's "Royal Pains") by sharing an appreciation of Sy Devore suits with the mansion's widow. Caffrey later dons period garbs, and the show is leavened with 1960s era staples such as "Get Ready" (played during Caffrey's escape) and "The Good Life." You won't find any handheld shaky cam work in the show; it's all dolly shots, evoking shows from a bygone era such as "It Takes a Thief," which inspired this update of the cat(burglar) and mouse genre.

The show was also inspired by "Catch Me If You Can," in which Leonardo DiCaprio's Frank Abagnale, Jr. reveals that the one con that he didn't pull was passing the Louisiana bar exam; he simply studied really hard. The resolution of the pilot of "White Collar" similarly ends with Caffrey cracking a Criminal Procedure casebook and navigating his way around the pesky search warrant requirement, which leads to the grounding of the flying Dutchman and Burke giving a fairly accurate explanation of the doctrine of exigent circumstances (and the plain view doctrine). Series creator Jeff Eastin ("Hawaii") has enlisted the consulting services of Tom Barden, the head of the New York Field Office of the FBI's white collar crime division for fifteen years, and it seems to be paying early dividends with a show that appears that it will not invite the typical "spot the legal inaccuracies" skepticism.     

-CM

Absence Of Malice: Court Vacates Second Degree Murder Conviction Because Juror Read Dictionary Definitions Of "Malice" To Other Jurors

A man is charged with, among other things, second degree murder, which means that the prosecution needs to prove beyond a reasonable doubt that the man acted with malice in order for the jury to convict him. Legally,

Malice is a necessary element which distinguishes second degree murder from manslaughter. Malice arises when an act which is inherently dangerous to human life is intentionally done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.

Of course, the word malice is also used outside the legal context, with its usual definition being "desire to cause pain, injury, or distress to another" or "intent to commit an unlawful act or cause harm without legal justification or excuse." 

So, what would happen in the above case if a juror decides to bring a dictionary into the jury room and reads the dictionary definition of malice, with the defendant eventually being convicted of second degree murder? The answer, according to the recent opinion of the United States District Court for the Eastern Middle District of North Carolina in Bauberger v. Haynes, 2009 WL 3450967 (M.D.N.C. 2009), is that the jury can impeach its verdict, leading to the defendant being awarded a new trial.

In Haynes,

On February 3, 2002, [William] Bauberger consumed in excess of ten beers over the course of approximately five hours at a Super Bowl party and then left via his car to visit a friend. En route, he drove the wrong way down an exit ramp of U.S. Highway 421 in Winston-Salem, North Carolina, and collided with a car driven by William Foy. Tragically, Foy's wife, a passenger, died within minutes of the crash.

In order to establish that Bauberger acted with malice as defined above,

the state presented evidence that Bauberger (1) admitted to driving with a blood alcohol level of .20 on the night of the crash; (2) had at least two prior convictions for Driving While Intoxicated, as well as other driving offenses such as reckless driving; (3) disregarded road signs and other warnings on the night of the crash; (4) disregarded prior court orders not to drive; (5) drove that night despite having had his license revoked; and (6) acted in a profane manner to emergency personnel and others at the scene of the crash.

The jury eventually found that Bauberger acted with the requisite malice and thus found him guilty of, inter alia, second degree murder, but not until after a juror checked out Webster's New Collegiate Dictionary, brought it to the jury room, and read its definitions of "malice" to the other jurors.

After Bauberger was convicted, he learned of this fact and sought to have his verdict vacated via jury impeachment. The United States District Court for the Eastern Middle District of North Carolina noted that the issue was governed by Federal Rule of Evidence 606(b), which states, inter alia, 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.

The court found that the dictionary definitions were indeed an "extraneous influence" because they competed with the legal definition of malice and thus vacated Bauberger's conviction because it found that this influence was not harmless. According to the court,

When juries resort to self-help in assessing the law-even when well-intentioned, they jeopardize the deliberative process and a defendant's fundamental rights under the Constitution to an impartial jury. The purpose of these rights is to “protect[ ] individuals from unconstitutional convictions and help to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair.”...As reprehensible as is Bauberger's conduct, he is entitled to the protections of the Sixth Amendment and thus a new trial as to the second-degree murder charge.

-CM

The Love Letter: Colorado Judge To Determine Admissibility Of Love Note From Ex-Boyfriend In Second Degree Murder Trial

A man allegedly shoots and kills his girlfriend and is charged with second-degree murder. In order to establish the man's motive for the shooting, the prosecution seeks to introduce a love note allegedly written to the girlfriend by an ex-boyfriend. Should the court admit the note, or should it exclude it as inadmissible hearsay? That's the question that a judge in Colorado is about to answer.

Justin Moore is the man alleged to have shot his girlfriend, and Adam Clark is the man who allegedly wrote the love note. The prosecution has indicated its intent to have Clark testify regarding the note, and "Judge Dave Williams said Tuesday there is precedent from case law very similar to the situation involved in Moore's second-degree murder trial that he thinks makes the note admissible." I'm not sure what precedent Judge Williams is referencing, but I think that he generally could be correct.

Colorado Rule of Evidence 801(c) defines hearsay as "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." It seems like the prosecution could legitimately claim that it is not using the note to prove the truth of the matter asserted in it -- that Moore still pined after his ex-girlfriend. Instead, the prosecution can claim that it is using the note to show its likely effect upon Moore. In other words, regardless of whether Clark was honest and/or accurate when he wrote the note, Moore, upon reading the note, would have every reason to believe the note's contents, causing strain upon his relationship and a possible motive for murder.

Of course, this all depends upon proof that Moore actually read the note, and the prosecution has not indicated whether Moore was aware of the note and its contents when his girlfriend was fatally shot. This thus seems to create a conditional relevance issue under Colorado Rule of Evidence 104(b), meaning that the prosecution would have to establish that a reasonable jury could find the conditional fact, that Moore had knowledge of the note's contents, by a preponderance of the evidence before the note could be admitted. Of course, the prosecution hasn't been entirely clear about the purpose for which it is offering the note, and defense counsel has not yet stated why he thinks that the note should be deemed inadmissible, so it is possible that the admissibility decision could hinge on other factors.

-CM 

Hook Me Up: Court Of Appeals Of Indiana Addresses Admissibility Of Polygraph-Related Statements

There's an odd dichotomy under the Federal Rules of Evidence and state counterparts. Evidence of polygraph test results are per se inadmissible (except in New Mexico) unless both sides stipulate to their admission before the test is taken. Conversely, according to some courts, in some circumstances, a defendant can introduce evidence that he volunteered to take a polygraph test to prove his innocent state of mind. As the recent opinion of the Court of Appeals of Indiana in Nugent v. State, 2009 WL 3415318 (Ind.App. 2009), noted, however this opens the door for the prosecution to present evidence calling into question just how willing the defendant was to take the test.

In Nugent, Terry Wayne Nugent appealed his convictions for two counts of sexual misconduct with a minor and one count of sexual misconduct with a minor. At trial, "Nugent introduced the subject of polygraphs by asking Detective Hunnicutt about his request that Nugent submit to a polygraph. Later, on direct examination, Nugent testified that he had been willing to take a polygraph and was still willing to take a polygraph." Subsequently, the State questioned Nugent about his out of court statements that he was afraid to take a polygraph." After the court overruled Nugent's objection to the question, "Nugent then admitted that he had told two people on separate occasions that he was afraid to take a polygraph examination."

Nugent thereafter appealed, claiming that the State violated his fundamental rights by cross-examining him regarding his willingness to take a polygraph test. The Court of Appeals of Indiana began by laying out the basics of the polygraph analysis, noting that

Our supreme court has explicitly discouraged the admission of polygraph evidence because of the procedure's unreliability combined with its likelihood of undue influence upon a jury's decision....This is why the “[p]roof of the fact that a polygraph examination was taken or refused is, in the absence of waiver or stipulation, inadmissible in a criminal prosecution.”...“A defendant is prohibited from stating he offered to take a polygraph test and the State is equally prohibited from referring to such a test.”...However, a party may “open the door” to the admission of evidence regarding polygraphs in some narrow circumstances.

The problem for Nugent, according to the court, was that it found that when a defendant is allowed to open the door and present evidence that he volunteered to take a polygraph test, the door remains open, meaning the prosecution can respond with "evidence that he may not have been as willing as he claimed." Therefore, the court concluded that "because Nugent first presented the testimony that he was willing to take a polygraph examination, the State was fully justified to elicit an admission from Nugent that he had told two persons that he was afraid to take a polygraph examination."  

-CM

We The Jury: Eastern District Of Louisiana Finds Rule 606(b) Precludes Jury Impeachment On Issue Of Whether Unanimous Verdict Was Reached

Federal Rule of Evidence 606(b) provides that

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

In Imperial Trading Co., Inc. v. Travelers Property Cas. Co. of America, 2009 WL 2922307 (E.D. La. 2009), the plaintiffs claimed that evidence that the jury failed to reach a unanimous verdict fell under the exception contained in subsection (3). They were wrong.

In Imperial Trading, the United States District Court for the Eastern District of Louisiana

presided over a six-day jury trial regarding an insurance dispute that arose from commercial property damaged by Hurricane Katrina....During closing statements, plaintiffs asked that the jury award (1) over $10 million in damages for defendant's alleged breach of the insurance policy between the parties, (2) bad-faith penalties...for arbitrary and capricious failure to pay over $12 million within thirty days of receiving a satisfactory proof of loss, and (3) further bad-faith penalties...for the $3.6 million in consequential damages plaintiffs allegedly suffered from defendant's failure to pay within sixty days of receiving a proof of loss....On August 13, the jury returned a verdict of $1,757,588 in damages for breach of contract....The jury also awarded penalties under § 22:658 for arbitrarily and capriciously failing to pay $1,250,000 within thirty days of receiving a satisfactory proof of loss. The jury did not award any bad-faith penalties.

Thereafter,

According to plaintiffs, one of the jurors in the case visited plaintiffs' property later that afternoon and spoke to Freddie Bailey and Gabe Corchiani, employees of plaintiffs who testified during trial. During this interaction, the juror explained that she did not agree with the amounts announced in open court, and she did not understand how the amounts were calculated.

The plaintiffs thus moved for leave to interview the three jurors “for the purpose of obtaining sworn statements regarding the failure of the jury to render a unanimous verdict.” According to the plaintiffs, if these jurors confirmed that the jury had not reached a unanimous verdict, they could impeach the jury's verdict under Federal Rule of Evidence 606(b)(3) because there was a mistake in entering the verdict onto the verdict form.

The Eastern District of Louisiana disagreed, noting that Federal Rule of Evidence 606(b)(3) only applieswhen the jurors unanimously agree upon a verdict but then incorrectly enter that verdict on the verdict form. So, if the jury agreed to award the plaintiffs $3 million but accidently wrote $2 million of the verdict form, there could be jury impeachment.

Conversely, the court noted that Federal Rule of Evidence 606(b) precludes jury impeachment on the issue of whether a verdict was unanimous. This conclusion is correct and borne out by the Advisory Committee Note to Federal Rule of Evidence 606(b), which states that the Rule was based upon the common law rule that prevented jurors from testifying that they had reached a compromise verdict, i.e., a decision made by a jury in which the jurors split the difference between the high amount of damages which one group of jurors feel is justified and the low amount other jurors favor, or quotient verdict, i.e., an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be.

-CM

Deflating The Conspiracy Theory: Article Wrongfully Claims That Mother's Admission Will Qualify As Co-Conspirator Admission In Potential "Balloon Boy" Trial

Like its federal counterpart, New Mexico Rule of Evidence 11-801(D)(2)(e) defines as nonhearsay "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." An article in the Examiner yesterday notes regarding the "balloon boy" brouhaha that 

Mayumi Heene told Larimer County investigators that she and her husband, Richard Heene, knew that their 6-year-old son, Falcon, was hiding at their Fort Collins home the entire time, even as police and military scrambled to search for the boy.

The article then concludes that Mayumi's statement to investigators would be admissible in a trial against Richard as a co-conspirator admission. But if you look at the above language from New Mexico Rule of Evidence 11-801(D)(2)(e), I think that you can see why this conclusion is wrong.

Specifically, according to the article,

No doubt Mayumi broke the rule and let the helium out of the balloon in exchange for immunity for the conspiracy charges. Her statements would be admissible as a co-conspirator statement in furtherance of a conspiracy. The officers could certainly testify.

When we look at this conclusion, though, it makes no sense. Initially, it is arguable whether the conspiracy was still active at the time that Mayumi made her statement to investigators. Depending of what you view as the objective of the conspiracy, it could have ended when the balloon fell to earth or when the son was discovered. If either of these were the case, Mayumi's statement was not made during the course of the conspiracy, rendering it inadmissible as a co-conspirator admission. That said, it is arguable that because the goal of the conspiracy was to trick the public and the authorities into believing that there was a "balloon boy," the conspiracy was still active when Mayumi made her statement. Moreover, some courts have found that statements can still qualify as co-conspirator admissions if they are made during the cover up stage of a conspiracy. See, e.g., United States v. Wolf, 839 F2d 1387, 1392 (10th Cir. 1988).

But I am not going to belabor or even resolve this question because it is clear that Mayumi's statement was not in furtherance in the conspiracy. In fact, it was the opposite. When Mayumi made her admission, she was not furthering the conspiracy; she was destroying it. She was giving herself and her husband up. This is the opposite of a co-conspirator admission. If the conspiracy were active when Mayumi spoke with investigators, a co-conspirator admission would have consisted of Mayumi trying to cover up the crime but inadvertently saying something incriminatory. Because Mayumi ostensibly made her statement with the intention of spilling the beans, her statement was not an attempt to further any remaining conspiracy and thus could not qualify as a co-conspirator admission.

-CM  

As I Lay Dying: Court Of Criminal Appeals Of Texas Artfully Explains Dying Declaration Exception

Like its federal counterpart, Texas Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay for 

A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. 

(An important distinction between the two rules is that the federal rule only applies in civil cases and criminal homicide cases, whereas it appears that the Texas rule applies in any case). In describing this rule to students, I always say that courts admit these statements under the theory that a person doesn't want to die with a lie on his lips, supplying the necessary reliability (and then I explain how people who have been shot or stabbed are often in a hypoxic or anoxic state, meaning that modern science gives us reasons to doubt the reliability of such statements). 

In its recent opinion in Gardner v. State, 2009 WL 3365652 (Tex.Crim.App. 2009), the Court of Criminal Appeals of Texas explained the dying declaration in an especially artful and clear way, and I think that I will use its two part explanation in teaching the rule to students in future classes,

In Gardner, John Gardner was convicted of capital murder for shooting his wife, Tammy Gardner, in the course of committing or attempting to commit burglary or retaliation. John Gardner was convicted in large part based upon the testimony of Erin Whitfield, who testified that he received a 911 call on the night of the shooting from a person identifying herself as "Tammy," who  

said that she needed an ambulance. She said that her husband, Steven Gardner, had shot her, and that he had left in a white pickup truck with Mississippi license plates (exactly the type of truck that appellant was driving that night). When police and paramedics finally arrived at the location that the caller had given them, they found Tammy Gardner in her bed, bleeding profusely from a gunshot wound to her head.

After John Gardner was convicted, he appealed, claiming that Whitfield's testimony was improperly admitted under the dying declaration exception because Whitfield could not identify the caller as Tammy Gardner and because there was insufficient evidence to establish that the caller believed that her death was impending. The Court of Criminal Appeals disagreed on the first point, noting that the caller identified herself as "Tammy," that the caller referenced Steven Gardner as well as his truck, and that Tammy Gardner was at the location passed along by the caller. The court also disagreed on the second point, finding that the following facts supported a finding that Tammy believed her death to be imminent:

(1) The single bullet entered her right temple, went through her brain, and exited below her left ear. This was a mortal wound;

(2) Ms. Whitfield testified that Tammy's voice was very slurred and hard to understand;

(3) Tammy kept repeating that her head hurt and that she could not hear very well “because her ears were ringing from the gunshots”;

(4) She said that her husband had shot her, there was blood everywhere, and she needed an ambulance;

(5) Before the phone disconnected, Ms. Whitfield heard what sounded like Tammy choking and vomiting;

(6) When the first deputy arrived, he found Tammy on the blood-soaked bed, trying to sit up; she appeared to be in shock and was bleeding badly from both the back and top right of her head;

(7) There was a trail of blood leading into the bathroom, around the toilet, and in the trash can;

(8) When the paramedics finally arrived, Tammy was “spitting up a lot of blood” and mumbling incomprehensibly;

(9) She was in a vegetative state and died at the hospital two days later.

Meanwhile, in describing the basis for the dying declaration, the court set forth this artful explanation:

It is both (1) the solemnity of the occasion-the speaker peering over the abyss into the eternal-which substitutes for the witness oath, and (2) the necessity principle-since the witness had died, there was a necessity for taking his only available trustworthy statements-that provide the underpinning for the doctrine.  

I like the sound of that explanation, and I plan to pass it along to students in the future.

-CM

You've Got Mail: Eastern District Of Pennsylvania Finds Plaintiff's E-Mails Admissible In Sexual Harassment Case Despite Rape Shield Rule

A woman sues her employer, claiming, inter alia, sexual harassment based on an arguably hostile work environment. Specifically, she claims that her superior stared at her breasts on two separate occasions and made the following comment to her, with regard to a dessert, in front of her colleagues, including her superiors, at a work-sponsored dinner: "I heard it's really good if you go down deep, into the chocolate, with your berry." Should the employer be able to present evidence of e-mails sent by the plaintiff to a non-work friend from her work account, which, according to the court itself, contained sexual "jokes and stories about generic topics, made-up characters or representative figures (e.g. Santa Claus)"?

According to the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Seybert v. International Group, Inc., 2009 WL 3297304 (E.D.Pa. 2009), the answer is "yes." I strongly disagree.

The facts listed above (among others) were the facts in Seybert. The judge noted that the plaintiff's e-mails were covered by the rape shield rule, meaning that they were only admissible if they fell under the exception contained in Federal Rule of Evidence 412(b)(2), which states that

In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.  Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

So, what was contained in the plaintiff's e-mails? Well, the court only explains one. According to the court, the plaintiff e-mailed to her non-work friend "a photograph of an elderly man wearing only a Santa hat and boots, resting on his stomach, with the caption, “Just Roll Me Over Darlin...'cause I'm Layin On Yer Present."" You can view a copy of the photo by clicking this link. According to the court, "[t]he remaining emails containing sexual content all make similar attempts at humor."

So, why did the court find that these e-mails were admissible? Well, according to the court,

Here, the emails with sexual content involve the same general type of humor as [the superior's] comment at the Recognition Dinner-a humor rooted in sexual innuendo and supposed euphemisms. For instance, [the superior's] alleged comment about going "down deep into the chocolate [dessert] with your berry" presumably could be likened to...[the Santa phooto]....In both cases, creative imagery and base sexual wordplay are being used to construct metaphors in an apparent attempt to titillate, amuse, entertain, instruct, or simply "gross out" (in the phrase of some generations)others.

Moreover, the court found that by exchanging the Santa e-mail and other e-mails,

Mrs. Seybert may have been sanctioning the humor that the emails contained-a humor that may be found to be similar to the supposed humor underlying [her superior's] comment at the Recognition Dinner. Accordingly, IGI is entitled to pursue the argument that the emails are relevant to Mrs. Seybert's possible appreciation of this type of humor, and specifically, whether she was subjectively offended by [her superior's] comment. The risk of prejudice here is low, given that the emails mostly contain jokes and stories about generic topics, made-up characters or representative figures (e.g. Santa Claus). They do not bear on Mrs. Seybert's own sexual history or personal sexual conduct, but only on the issue of whether she appreciates or is offended by possibly crass sexual humor in the workplace. Therefore, the Court cannot conclude that the emails are inadmissible at this time, at least with respect to the issues presented at thus juncture.

Here are my thoughts. As noted, before admitting evidence under Federal Rule of Evidence 412(b)(2), courts must determine that its "probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party." As is clear from the above block quote, the court considered the "risk of prejudice" to the plaintiff, i.e., the risk that her action would be unfairly decided based upon the admission of the e-mails.

The court, however, failed to address the danger of harm to the plaintiff. As the Advisory Committee Note to the Rule indicates, by adding the danger of harm to the analysis, "[t]he rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process."

So, let me conduct my own analysis. First, disclosing the plaintiff's e-mails in open court seems to me to be a serious invasion of her privacy. And second, by the court's own admission, the plaintiff's e-mails contained sexual innuendo." Clearly, then, the e-mails had a significant potential to cause the plaintiff embarrassment and to lead the jury engaging in stereotypical thinking. This being the case, the e-mails needed to have extremely high probative value for that value to substantially outweigh the danger of harm to the plaintiff.

They clearly didn't. First, quite simply, I don't see how the Santa photo is even remotely in the same league as the comment that the superior made at the dinner. Indeed, according to the court itself, the plaintiff's emails mostly contained jokes and stories about generic topics, made-up characters or representative figures" and nothing about herself. Meanwhile, the superior's comment was a crass comment directed at the plaintiff.

That leads to my second point. How could a plaintiff's e-mail to a friend concerning a sexual juke indicate that she condones the making of crass comments to her by a superior in front of other employees? I could e-mail my friend that it was funny when Michael Scott obliviously made a racist remark on The Office, but that doesn't mean that I would condone my boss making such a comment at the workplace. So why in this case did the court presume that sexual jokes of a general nature shared by the plaintiff to her friend meant that she condoned a crass comment made to her by her superior at work?

-CM

Against Interest: Article Discusses Proposed Change To Statement Against Interest Hearsay Exception

Federal Rule of Evidence 804(b)(3) currently provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

As far as I know, the Rule is unique among the Federal Rules of Evidence as the only Rule that makes it more difficult for a criminal defendant to introduce evidence than it is for the prosecution to admit evidence (Compare my earlier post about how almost all of the Federal Rules of Evidence make it at least as difficult to admit evidence against a criminal defendant as it is to admit evidence against a civil defendant). Presently, criminal defendants trying to present statements against interest to exculpate themselves must present evidence of corroborating circumstances, but prosecutors trying to present statements against interest to incriminate criminal defendants need not provide such evidence. It appears, though, that this disparity is about to change.

As the Wisconsin Law Journal reported yesterday, last month, the Judicial Conference of the United States adopted the recommendation of the Advisory Committee on Evidence Rules to amend Federal Rule of Evidence 804(b)(3) so that prosecutors, as well as defendants, need to present evidence of corroborating circumstances before admitting statements against interest. This change is based upon opinions by certain courts already adding this requirement, such as the Seventh Circuit in United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990), and the Fifth Circuit in United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).

The article notes that the proposed rule change was not controversial because "It operates only against the government, and the government did not oppose it." The government's lack of opposition was likely based upon the fact that the proposed rule is clearly fair. As the Committee Note to the proposed rule change states, “A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception." 

Importantly,

[t]he note also states that, in assessing whether corroborating circumstances exist, courts should not consider the credibility of the witness who relates the statement. "To base admission or exclusion of a hearsay statement on the witness’s credibility would usurp the jury’s role of determining the credibility of testifying witnesses."  

-CM

 

Forfeit Victory, Take 11: California Appellate Court Finds Forfeiture By Wrongdoing Doctrine Applies To Attempts To Prevent Victims From Reporting Abuse

Last year, I did a series of posts on the Supreme Court's opinion in Giles v. California, which construed the scope of the forfeiture by wrongdoing doctrine. Under that doctrine, there is an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

In Giles, the Court held that application of the forfeiture by wrongdoing doctrine requires a specific intent on the part of a criminal defendant to render a witness unavailable for trial (e.g., the witness tampering situation), meaning that the doctrine does not apply in a case where, for instance, a man allegedly murders a woman and then stands trial for her murder. But what if a man murders a woman (at least in part) to prevent her from reporting domestic violence and/or to prevent her from testifying against him at his trial for domestic violence? Can the man raise a hearsay/Confrontation Clause objection to the admission of the woman's prior statements at his trial for murdering the woman? Well, that's an interesting question and one which I previously answered incorrectly, if dicta from the recent opinion of the California Court of Appeal, Second District, in People v. Banos, 2009 WL 3337673 (Cal.App. 2 Dist. 2009), is accurate.

In Banos, Manuel Banos was convicted of the second degree murder of his ex-girlfriend, Mary Ann Cortez, and two counts of first degree burglary. Before Cortez was murdered, she made a couple of statements to authortities concerning acts of domestic violence committed against her by Banos. At the time that Cortez was killed, there was a pending hearing on Banos' violation of a restraining order that Cortez had gotten against him. The trial court admitted these statements under California's version of the forfeiture by wrongdoing doctrine, and the California Court of Appeal, Second District, subsequently affirmed.

How could it reach this conclusion if Banos could not have had the specific intent to render Cortez unavailable at his murder trial at the time that he allegedly killed her (because there could be no murder trial until the killing was completed)? Well, as I noted in one of my posts on Giles, the Supreme Court in Giles seemed to adopt a transferred intent theory of forfeiture by wrongdoing, meaning that, as long as a defendant specifically intends to render a prospective witness unavailable to testify against him at some trial, that intent can transfer to another trial (e.g., the defendant's trial for murdering the prospective witness), making the forfeiture by wrongdoing doctrine applicable. I based this conclusion on a portion of the Court's opinion, which stated that

Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution-rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.

In other words, if a defendant specifically intends to render a domestic violence victim unavailable at ongoing criminal proceedings by killing her, that intent can transfer to his subsequent trial for murdering the victim, making the forfeiture by wrongdoing doctrine applicable. Now, some commentators, such as Lyle Denniston at SCOTUSblog, speculated that the Court's holding was even broader and that courts could find transferred intent even when the defendant's initial intent was only to prevent the victim from reporting abuse.

I can certainly see how the above block quote would support this conclusion, and this is indeed what the California Court of Appeal, Second District, found in dicta in Banos. According to the court, the Supreme Court's use of the disjunctive "or" in the above block quote

reflect[ed] the court's intent to designate two alternative ways of satisfying the factual predicate for application of the forfeiture by wrongdoing doctrine: evidence that the defendant (1) intended to stop the witness from reporting abuse to the authorities; or (2) intended to stop the witness from testifying in a criminal proceeding.

As I noted in my earlier post, however, at other points in its opinion, the Court clearly noted that the forfeiture by wrongdoing doctrine only applies "when the defendant engaged in conduct designed to prevent the witness from testifying." (emphasis added). Thus, notwithstanding the language above, I think that  "evidence of ongoing criminal proceedings at which the victim would have been expected to testify" appears to be the sine qua non for application of the forfeiture by wrongdoing doctrine.

But according to at least one appellate court in California, I am wrong. Then again, it was the broad interpretation of the forfeiture by wrongdoing doctrine by California which led to Giles and the Supreme Court's more restrictive reading of the doctrine, so it will be interesting to see whether other courts follow suit.

-CM

Beast Of Burden: Court Of Appeals Of Michigan Seemingly Misapplies Rule 609(c) In Admitting Defendant's Prior Conviction For Impeachment Purposes

Michigan Rule of Evidence 609(c) provides that 

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.

Meanwhile, other portions of Michigan Rule of Evidence 609 allow for the admission of evidence of certain prior convictions that are no more than ten years old. So, what should happen in the following case? A defendant is on trial in 2006 and has a previous conviction from 1992 for armed robbery. Neither the prosecution nor the defendant presents any evidence regarding the date of the defendant's release from confinement imposed for that conviction. Under Michigan Rule of Evidence 609(c), should the conviction be inadmissible because the prosecution failed to prove that the conviction was no more than ten years old, or should the conviction be potentially admissible because the defendant failed to prove that the conviction was more than ten years old? In its recent opinion in People v. Watts, 2009 WL 3321511 (Mich.App. 2009), the Court of Appeals of Michigan chose the latter option. I disagree.

In Watts, the facts were as listed above, with Roosevelt Watts, Jr. facing charges of first-degree murder, possession of a firearm during the commission of a felony (felony-firearm), and being a felon in possession of a firearm. The trial court concluded that Watts' prior conviction was admissible concluding,

As to the age of the armed robbery conviction, the conviction took place in 1992 and the alleged offense in the instant case took place in 2006. Although almost 14 years had passed since defendant's conviction for armed robbery, MRE 609(c) prohibits a witness from being impeached with a conviction if more than 10 years have passed from the date of the conviction or from the date the witness was released from the confinement imposed for the conviction. Defendant did not establish that more than 10 years had passed since he was released from confinement for the armed robbery conviction. Thus, the prosecution was not prohibited on that basis from impeaching defendant with the armed robbery conviction. Further, although a significant amount of time had passed since the conviction itself, it was not so remote as to have no probative value.

After Watts was convicted, he appealed to the Court of Appeals of Michigan, which agreed with the trial court, finding that Watts' "prior armed robbery conviction satisfie[d] the time limit in MRE 609(c)."

My response: What!? The case that basically established the modern Rule 609 framework was United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976), in which the Seventh Circuit held, inter alia, that

In the future, to avoid the unnecessary raising of the issue of whether the judge has meaningfully invoked his discretion under Rule 609, we urge trial judges to make such determinations after a hearing on the record....

The hearing need not be extensive. Bearing in mind that Rule 609 places the burden of proof on the government, Cong. Rec. 12254, 12257 (daily ed., December 18, 1974) (remarks of House conferees)..., the judge should require a brief recital by the government of the circumstances surrounding the admission of the evidence, and a statement of the date, nature and place of the conviction. The defendant should be permitted to rebut the government's presentation, pointing out to the court the possible prejudicial effect to the defendant if the evidence is admitted. (emphasis added).

In other words, it is well established that the burden is on the prosecution to establish all of the details necessary for a conviction to be admitted for impeachment purposes. And it is only when the prosecution has presented sufficient evidence that the defendant needs to rebut the government's presentation. It seems to me that the Michigan courts in Watts fundamentally misapplied MRE 609(c) by placing the burden on Watts and thus improperly admitted evidence of Watts' prior conviction.

-CM

Pregnant Pause: District Of Idaho Finds Declarant Unavailable Based Upon Late Stage Pregnancy

In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In its recent opinion in McKinney v. Fisher, 2009 WL 3151106 (D. Idaho 2009), the United States District Court for the District of Idaho had to decide whether a declarant in the latter stages of an at-risk pregnancy was "unavailable" for Confrontation Clause purposes. The court answered the question in the affirmative, and I agree.

In Fisher, Randy McKinney was convicted of murder in the first degree, robbery, conspiracy to commit murder, and conspiracy to commit robbery. Despite evidence that McKinney's girlfriend, Dovey Small, was involved in these crimes as well, the State did not charge her initially, "but she was nevertheless held in custody as a material witness until she agreed to be deposed in exchange for her release....Her deposition was taken in McKinney's presence and subject to his counsel's cross-examination." At McKinney's trial, Small did not testify, but the prosecution did introduce her deposition testimony. After a complicated procedural history in both state and federal courts, the United States District Court for the District of Idaho finally heard McKinney's petition for writ of habeas corpus, in which he alleged, inter alia, that the admission of the deposition testimony violated his rights under the Confrontation Clause because the prosecution failed to prove Small's unavailability (which is required under both Crawford and its predecessor, Ohio v. Roberts).

The court disagreed, finding "that Small was not available to testify because she was in the latter stages of an at-risk pregnancy, and her doctor was treating her 'for fear she may have a miscarriage.'" As support for this conclusion, the court cited to the Ninth Circuit's opinion in United States v. McGuire, 307 F.3d 1192 (9th Cir. 2002). In McGuire, the court found that a witness in the seventh month of a pregnancy under Federal Rule of Evidence 804(a)(4), which states that a witness is unavailable if she "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." According to the Ninth Circuit, "[t]hese risks in late pregnancy, when attested to by a physician, are an ‘infirmity’ within the meaning of the Rule." The  United States District Court for the District of Idaho agreed with the Ninth Circuit, concluding that "[a]lthough the Federal Rules of Evidence were at issue in McGuire rather than the Confrontation Clause, there is no reason why the Ninth Circuit's conclusion as to what constitutes unavailability would be any different under the Constitution."

-CM

Judging Judges: Third Circuit Denies Appeal Based Upon Judicial Comment And Questioning

A defendant is on trial for being a felon in possession of a firearm. While a witness for the prosecution is on the stand, the prosecution engages in direct and redirect examinations, and defense counsel engages in cross and re-cross examinations. During defense counsel's questioning of the witness, the judge makes a negative comment regarding the interrogation. Moreover, at the end of re-cross, the judge is not completely satisfied with these four examinations and decides to step in and ask the witness a few more questions, eliciting testimony that incriminates the defendant. After the defendant is convicted, he appeals, claiming that the judge should not have asked these questions because he became, in effect, a second prosecutor. Should the court grant the defendant a new trial? According to the Third Circuit in its recent opinion in United States v. Holder, 2009 3287534 (3rd Cir. 2009), the answer is "no," as long as the judge did not overstep the bounds of prudential judicial conduct.

In Holder, the facts were as listed above, with Alfonso Holder being the defendant. The gun ostensibly recovered from Holder was a.40 caliber semiautomatic pistol, but the police apparently incorrectly described the gun as a 9mm on the property receipt. At Holder's trial, while defense counsel was cross-examining one of the officers who recovered the gun regarding the mistaken identification of the firearm, the trial judge commented to defense counsel, “I think you're confusing what it is that caused the problem here." Unfortunately, the Third Circuit's opinion doesn't provide any details regarding defense counsel's line of questioning. It is also unfortunate that the Third Circuit's opinion merely tells us that, after re-cross, the trial judge asked the officer "a short series of questions regarding the incorrect description of the .40 caliber gun," but does not tell us the substance of those questions.

What we do know is that Holder appealed his conviction based upon these two actions of the judge. The court's easier ruling was on the issue of judicial interrogation. The court noted that under Federal Rule of Evidence 614(b), "[t]he court may interrogate witnesses, whether called by itself or by a party." Therefore, the Third Circuit found no problem with the trial judge's questions because it was

not apparent that the District Court's short succession of questions overstepped the bounds of prudent judicial conduct....Moreover, because Holder "fail[ed] to point out any facts which convince[d] th[e] Court that there was actual bias on the part of the trial judge," any error, to the extent one exists, [wa]s harmless.  

The court's more difficult ruling was on the issue of judicial comment. According to the court,

Since trial counsel never lodged a contemporaneous objection to the interruption, we review this particular complaint under the plain error standard....Therefore, the viability of this argument depends on whether the error is "'grievous', or 'so fundamental in nature as to deprive a party of fundamental justice', or otherwise constitut[e] a 'manifest miscarriage of justice.'"...Here, an examination of the record shows that no plain error was committed; the judge's brief comment to defense counsel was not so prejudicial as to deprive Holder of a fair trial. To the contrary, defense counsel was immediately permitted to proceed with her examination of the officer. 

Now, as I said before, the Third Circuit's opinion doesn't tell us what questions by defense counsel led to this comment by the judge, so I can't evaluate the prejudice caused by the trial judge's comment. What I can say, however, is that I am not buying the Third Circuit's explanation that the judge's comment was insufficiently prejudicial because defense counsel was allowed to proceed with her examination of the officer. Basically, defense counsel was interrogating the officer, the judge commented that defense counsel was confusing the issue, and then defense counsel was allowed to continue to pursue this line of questioning. It seems to me that a juror hearing the judge's comment would discredit this line of questioning based upon the judge's comment but would not have done so in the absence of the comment (of course, maybe the line of questioning was irrelevant, meaning that the jury would have disregarded it anyway, but, again, the court's opinion doesn't provide us with this information).

My final point is that the Third Circuit should not have required Holder to prove plain error. Under Federal Rule of Evidence 605, judges are not allowed to testify, and an objection is not required to preserve the issue for appeal. Why? Well, according to the Advisory Committee Note to Rule 605,

To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector.

Now, this Rule only covers judicial testimony and not judicial comment, but if we look at the logic in the Advisory Committee Note, why should the two be treated differently? If defense counsel objected to the judge's comment, wouldn't she have worried that the judge would feel that his integrity was attacked by her? Does any reader have an explanation for treating the two situations differently?

-CM 

In Good Hands?: Court Of Appeals Of Kentucky Opinion Reveals Danger Of Using Privileged Documents To Refresh Recollection

Like its federal counterpart, Kentucky Rule of Evidence 612 indicates that

Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.

In other words, as the recent opinion of the Court of Appeals of Kentucky in Hager v. Allstate Insurance Company, 2009 WL 3320938 (Ky.App. 2009), makes clear, if you have a document that you want to keep privileged, don't use it to refresh the recollection of a witness.

In Hager, 

Thomas LaPointe, who was insured by Allstate, rear-ended the Hagers' vehicle. Mr. Hager, Geneva's husband, was driving, and Geneva Hager was a passenger. According to LaPointe's recorded statement of the accident, his brakes failed as he approached the Hagers' truck. In response, he shifted his vehicle from second gear to first gear and turned off the motor. While in second gear, LaPointe estimated that he was going approximately fifteen miles per hour. After gearing down, he thought he was going around five miles per hour when he rear-ended the Hager vehicle. LaPointe described the impact like unexpectedly hitting a speed bump.

Geneva's insurance claim was thereafter handled by Allstate's Minor Impact Soft Tissue (“MIST”) unit, and she later brought an action against Allstate, claiming that it handled her claim in bad faith. After trial, the jury returned a verdict in favor of Allstate, prompting Hager's appeal.

One of the grounds for Hager's appeal was that the trial court erred in entering an order requiring her to disclose privileged communications between her counsel and an expert witness, the Honorable James E. Keller, including an engagement letter. This letter 

was a five-page letter of the factual background of the matter authored by Hager's counsel. The letter became an issue at Justice Keller's deposition when he stated that he believed he asked for a letter from Hager's counsel setting forth the facts relating to the case. When asked in more detail regarding the letter by Allstate's counsel, Justice Keller asked for a recess during his deposition to review the letter to refresh his recollection. Thereafter, he did so.

According to the Court of Appeals of Kentucky, because Hager's counsel used the letter to refresh Justice Keller's recollection under Kentucky Rule of Evidence 612, Allstate was entitled to have the writing produced. Moreover, the appellate court found that the trial court followed the proper procedure under Kentucky Rule of Evidence 612 because it 

ordered the letter to be produced in camera and under seal. After reviewing it, the court ordered Hager to produce it, ruling that Allstate was entitled to the communications and documents provided to Justice Keller from Hager's counsel “upon which the expert relied in formulating his opinions, and any revisions thereto...."

-CM

Chicken Little Or Canary In The Coal Mine, Take 4: Article Speculates That Melendez-Diaz Could Have Substantial Negative Impact In Military Justice System

I have written three previous posts (here, here, and here) on this blog about the Supreme Court's recent opinion in Melendez-Diaz v. Massachusetts. Basically, this opinion held that certificates of state laboratory analysts were "testimonial" and thus covered by the Sixth Amendment. I titled each of these posts, "Chicken Little or Canay in the Coal Mine" because of the differing views of the impact of the opinion offered by Justices Scalia and Kennedy in their majority and dissenting opinions, respectively. According to Scalia, the opinion will not have a substantial negative impact on criminal prosecutions, but Kennedy disagreed. According to a new article by Patrick McClain, one place where the opinion might have a substantial negative impact is in the military justice system.

McClain notes that 

To enforce drug policies and ensure compliance by servicemembers, the military has an expansive testing system. Drug testing is most commonly conducted at random, but the military also has the authority to require probable cause testing, unit/command sweep testing and commander-directed testing.

Once a urine sample has been collected, it is sent to one of the military testing facilities across the country to determine if the servicemember has violated the military's drug policy. If the results are positive, the servicemember will be subject to discipline for violating the military's policies, which generally has resulted in a court martial....

In bringing evidence against a servicemember for failing a urinalysis test, the military has allowed prosecutors to introduce a "documentary" or "litigation" package concerning the lab test results. The documentary package usually includes the lab report itself and in-court testimony from a representative of the lab (sometimes referred to as a "surrogate") who is familiar with the personnel and procedures of the lab that conducted the testing.

However, it appears that the use of a documentary package in urinalysis cases is no longer constitutional under Melendez-Diaz. While the decision left it unclear which analyst would have to be available for in-court testimony, the military may have to bring in every analyst who was involved in the testing process.

If the military is required to do this, it could greatly increase the time and expense of prosecuting drug cases. Rather than using a documentary package with one person's testimony, the prosecution may have to bring in everyone who was involved in the collection and evaluation of the urine sample. Labs across the country already are dealing with resource constraints, burdened with heavy workloads and long hours. Requiring the analysts to prepare the reports and to be available for in-court testimony will only further add to this burden and increase the backlog in these overworked laboratories.

McClain speculates that 

Because of this increased burden, Melendez-Diaz also could ultimately result in expanded use of administrative separation proceedings rather than court martial to handle drug cases. Administrative separations are not punitive in nature; these proceedings cover both voluntary and involuntary separations. However, such a result would be at the detriment of servicemembers facing drug charges.

The administrative process has a lower standard of proof (probable cause) and defendants are afforded fewer legal rights and protections than in a court martial....Given the great impact the result of an administrative separation proceeding can have on a person's career, handling urinalysis cases in proceedings with fewer rights and legal protections seems inappropriate at best.

Of course, McClain notes that all of the above is just speculation and that 

Some commentators believe the opinion ultimately will not have much impact on the way urinalysis cases are prosecuted and believe the military will distinguish the Melendez-Diaz opinion in a way that allows them to continue using documentary packages. Others, however, fear the ruling could greatly impact the military justice system and increase the costs of prosecuting urinalysis cases.

Another reason why worrying about the effect of Melendez-Diaz now might be premature is because, as I have noted before, the Supreme Court recently granted cert in Briscoe v. Virginia, and the Supremes (especially with the new addition of Sotomayor) may very well overrule Melendez-Diaz or at least limit its application.

-CM

It's My Space. That's Why They Call It MySpace, Take 4: Supreme Court of Indiana Seemingly Errs in Deeming MySpace Evidence Admissible In Murder Appeal

I have written three previous posts on this blog (here, here, and here) about court rulings addressing the admissibility of evidence on parties' MySpace pages. The latest court to weigh in on the issue was the Supreme Court of Indiana in its opinion in Clark v. State. In my opinion, the Indiana Supremes, got it wrong.

In Clark, a jury found Ian J. Clark guilty of murdering a two year-old left in his care. You can get the full facts in the opinion of the Supreme Court of Indiana, but here are some of the basics:

Ian J. Clark was living...with his fiancée Matara Muchowicz and her daughter Samantha. Samantha typically stayed with a friend while Clark and Matara were at work, but Clark had been laid off at some point during the month and in an effort to save money Matara began leaving Samantha with Clark for the day.

When Matara arrived home on May 25th, around 2 p.m., she found Clark lying on the couch with Samantha on his chest, naked and blue. Matara approached the couch and noticed blood on the blanket that was covering up Clark. After being questioned about the blood, Clark sat up and then fell and stumbled into the coffee table, dropping Samantha on the ground. Clark told Matara that Samantha was breathing. Matara tried to wake Samantha, but she was cold. Samantha’s head was thrown back and she was gurgling. Matara took Samantha and went to call 911. Clark told Matara to put the phone down and that Samantha was "brain dead" and then lit a cigarette and turned on the television.

Matara dialed 911, but Clark grabbed the phone out of her hand. Clark told Matara there was nothing wrong with Samantha and that she was breathing. He kept telling Matara that Samantha was fine. Matara told Clark they needed to call an ambulance. Clark continued to try to prevent Matara from calling 911. Clark took the phone from Matara and tried to drag her away from the phone. When Matara managed to dial 911 and ask the operator for help, Clark struck Matara in the back of the head with his fist.

Matara managed to make a second call to 911....[Officers later arrived and] arrested Clark and transported him to the hospital with blood on his shirt. While waiting in an exam room with police, Clark told a detective that ― I will f. . .ing kick your ass. I will send the Hell’s Angels to kill you. F. . . it. It’s only a C felony. I can beat this.

[Samantha was leter declared dead]. Samantha suffered at least twenty separate injuries, more than one of which would be lethal, and she was still alive when she sustained many of them. An emergency room doctor described Samantha’s "fresh" injuries as the worst he had observed in twenty years. Neither one fall, nor multiple falls, nor multiple household accidents, could possibly have caused Samantha’s injuries. The official cause of death was by multiple blunt force injuries and the official manner of death was ruled a homicide.

Muchowicz had helped Clark create a MySpace Page, and the prosecution admitted evidence of this page at trial, such as Clark's own description of himself:

Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I’m glad to say I have helped you people in my past who have done something and achieved on the other hand, I’m sad to see so many people who have nowhere. To those people I say, if I can do it and get away. B. . . sh. . . . And with all my obstacles, why the f. . . can't you.

After he was convicted, Clark appealed, claiming, inter alia, that the evidence from his MySpace Page was impermissible character evidence. That appeal eventually reached the Supreme Court of Indiana, which disagreed, noting that Indiana Rule of Evidence 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." The court found that this rule was not applicable to the evidence from Clark's MySpace Page because it "contained only statements about himself and in reference to himself" and was not evidence of "prior criminal acts."

Here's where I think that the court went wrong. Indiana Rule of Evidence 404(a) (read in conjunction with Indiana Rule of Evidence 405(a)) also precludes opinion and reputation evidence concerning a person's character. And this rule precludes the admission of even a defendant's own opinions concerning his own character. See, e.g., State v. Jalowiec, 744 N.E.2d 163 (Ohio 2001).

Now, the Supreme Court of Indiana seemed to be trying to argue that it could get around this issue by holding that Clark "made his character a central issue" in his trial, allowing the prosecution to respond in kind under the mercy rule contained in Indiana Rule of Evidence 404(a)(1). The problem with this holding is that I think that it is inaccurate. According to the court, Clark made his character a central issue by testifying "about his state of mind, suggesting his intent could only have been 'reckless' and not criminal."   

The problem with this argument is that such testimony is not character evidence. It is evidence about whether Clark was reckless at the time of the crime charged, not whether he was generally a reckless (or violent) person. Thus, Clark did not inject the issue of character into his trial, and the prosecution should have been precluded from presenting evidence from his MySpace Page at trial (Looking at the rest of the evidence in the case, though, I think that there was sufficient evidence to support a conviction even in the absence of this evidence).

-CM

Picture (Im)Perfect?: Second Circuit Finds Wearing Of T-Shirts With Victim's Photograph Not Inherently Prejudicial In Murder Appeal

A defendant is on trial for murdering a victim. During trial, the victim's relatives wear t-shirts displaying the victim's photograph. If the defendant is convicted of murder, should he be awarded a new trial based upon the t-shirts being inherently prejudicial? According to the Second Circuit in its recent opinion in United States v. Farmer, 2009 WL 3200690 (2nd Cir. 2009), the answer is "no," at least based upon the particular factual context with which it was presented.

In Farmer, Laval Farmer was convicted by a jury of murdering Jose Angel White and attempting to murder Jacquel Patterson “for the purpose of...maintaining or increasing [Farmer's] position” within the Bloods street gang as well as conspiring to assault with a dangerous weapon and discharging firearms during the murder and the attempted murder.

On the fourth day of trial, defense counsel requested “that nobody be permitted in this courtroom with T-shirts with a picture of Jose White for the jury to see.” Counsel explained that he had not noticed the shirts [on White's relatives] during the first three days of trial, but that he found out when his wife read about them in the newspaper.

Judge Platt responded that he had seen several spectators “[o]ne of the first days” and that it appeared “there was a picture.” But he was not sure if jurors had sufficiently good eyesight to see the photographs or if “they would be affected by the picture,” because he “couldn't recognize that they had a picture, even with [his] glasses on.” As to Farmer's request, Judge Platt opined that “[p]eople are free to walk into a courtroom with whatever they want on their clothing, and I'm reluctant to adopt a different rule.” Nonetheless, he “urge[d] the prosecutors to urge them not to come into this courtroom with shirts with pictures.

After he was convicted, Farmer appealed, claiming, inter alia, that, pursuant to the Supreme Court's opinions in Estelle v. Williams, 425 U.S. 501, 505 (1976) and Holbrook v. Flynn, 475 U.S. 560, 562 (1986), the t-shirts were so inherently prejudicial as to pose an unacceptable threat to his right to a fair trial, necessitating a new trial. In particular, Farmer relied upon two Ninth Circuit cases, including Musladin v. Lamarque, 427 F.3d 653, 657-58, 661 (9th Cir. 2005), which held that a defendant was inherently prejudiced when the victim's family members sat in the front row at trial wearing buttons with the victim's photograph.

The problem for Farmer, according to the Second Circuit, was that the Supreme Court overruled Lamarque in Carey v. Musladin, 549 U.S. 70, 72 (2006), in which it noted that both Estelle v. Williams and Holbrook v. Flynn involved "state-sponsored courtroom practices" and identified but did not resolve a circuit split over whether courtroom displays by private spectators can ever be "inherently prejudicial." According to the Second Circuit,

Carey v. Musladin, in effect, wiped the slate clean and left it to lower courts to address claims such as Farmer's in the first instance. However, the circumstances of this case do not require us to decide whether courtroom displays by private actors can ever be “inherently prejudicial.” Defense counsel did not observe the relatives' T-shirts for three days, the trial judge could not make out the picture, and the imagery and its import only became known because a reporter providing daily coverage of the trial interviewed White's relatives for his story....On these facts, we cannot conclude that “what [the jurors] saw was so inherently prejudicial as to pose an unacceptable threat to [the] defendant's right to a fair trial.”...

Moreover, once defense counsel called the T-shirts to the district court's attention, the court instructed the government “to urge [Farmer's family] not to come into this courtroom with shirts with the picture.” There was no further objection from defense counsel, and there is no indication in the record that the government or Farmer's family ignored the court's request. This intervention fulfilled the obligation of trial judges to “take careful measures to preserve the decorum of courtrooms."

-CM

Lacking Consistency: Court Of Appeals Of Texas Seemingly Errs In Deeming Prior Consistent Statements Admissible In Sexual Assault Appeal

Like Federal Rule of Evidence 801(d)(1)(B), Texas Rule of Evidence 801(e)(1)(B) provides that

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

In other words, if a witness says something at trial and opposing counsel presents evidence that the witness' testimony is the product of some recent event giving the witness an improper motive to lie, the party calling the witness can thereafter present a consistent statement preceding the event to challenge this "product" argument. In its recent opinion in Hutson v. State, 2009 WL 3210704 (Tex.App.-Dallas 2009), the Court of Appeals of Texas, Dallas, found that Texas Rule of Evidence 801(e)(1)(B) was applicable in a sexual assault trial. I disagree.

In Hutson, Timothy Hutson was convicted of aggravated sexual assault of a child under fourteen years of age based upon acts he allegedly committed against his stepdaughter. The stepdaughter testified to these acts at trial, and, after defense counsel cross-examined the stepdaughter, the court allowed for the admission of prior consistent statements that she made to the police.

On appeal, Hutton claimed that these prior consistent statements were wrongfully admitted because, inter alia, "there was no cross-examination accusing [the stepdaugher] of recent fabrication." The court, however, disagreed, noting that "the charge of recent fabrication may be either express or implied" and that the Court of Criminal Appeals of Texas had found in Hammons v. State, 239 S.W.3d 798 (Tex.Crim.App. 2007) that

a reviewing court, in assessing whether the cross-examination of a witness makes animplied charge of recent fabrication or improper motive, should focus on the “purpose of the impeaching party, the surrounding circumstances, and the interpretation put on them by the [trial] court.” Courts may also consider clues from the voir dire, opening statements, and closing arguments. From the totality of the questioning, giving deference to the trial judge's assessment of tone, tenor, and demeanor, could a reasonable trial judge conclude that the cross-examiner is mounting a charge of recent fabrication or improper motive? If so, the trial judge does not abuse his discretion in admitting a prior consistent statement that was made before any such motive to fabricate arose.  

The court then noted that this standard had been met in the case before it because 

appellant's cross-examination of the complainant focused on her counseling and punishment for lying, her repeated denials to counselors and investigators that she had been sexually assaulted, and what appellant asserted were inconsistent statements in the earlier trial that appellant had not assaulted her. Appellant also questioned the other witnesses about the complainant's lying. In his opening statement, appellant's counsel stated the complainant “has had a chronic, severe problem of lying.” In his argument to the jury, appellant's counsel stated the complainant “had a habitual, a pathological problem with lying.” After “giving deference to the trial judge's assessment of tone, tenor, and demeanor,” we conclude the trial court could determine that appellant's counsel was “mounting a charge of recent fabrication."

Here's my problem. According to the court itself, "the charge of recent fabrication may be either express or implied." (emphasis added). Does this look like a charge of recent fabrication to readers? It sure doesn't to me. Instead, it looks to me like defense counsel was labeling the stepdaughter as a "chronic," "habitual," and "pathological" liar. Moreover, even if defense counsel were raising a charge of recent fabrication, as the Court of Criminal Appeals of Texas noted in Hammons, the prosecution could have only admitted "a prior consistent statement that was made before any...motive to fabricate arose." My question is: What was the motive in Hutson, and when did it arise? To admit the stepdaughter's consistent statements, the court(s) needed to establish the date that a motive to fabricate arose and establish that the consistent statements were prior to that date. They didn't.

-CM