EvidenceProf Blog

No Virtual Impeachment: First Circuit Affirms Opinion Precluding Impeachment Of Hearsay Declarant Despite Disagreeing On Rationale

Either through deliberate tactical choices, or simply as a result of precedent and inertia, our traditional approach to hearsay and confrontation is mired in exclusionary thinking. Whether one consults reported case law, or basic texts on trial advocacy, little is said of the impeachment of hearsay declarants. John G. Douglass, Beyond Admissibility:  Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 GEO. WASH. L. REV. 191, 252 (1999).

As Douglass, now the Dean of the University of Richmond School of Law, went on to note in his seminal 1999 law review article, "[t]hat omission, however, is not born of impossibility," with Federal Rule of Evidence 806 and many state counterparts providing that:

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

According to Douglass, this Rule allows for "virtual cross-examination." The problem, though, is that this Rule is "seldom used," meaning that both attorneys and judges often do not know when it applies (and when it doesn't). One clear example of this problem can be found in the recent opinion of the First Circuit in United States v. Rodriguez-Berrios, 573 F.3d 55 (1st Cir. 2009).

In Rodriguez-Berrios, Eddie Samir Rodríguez-Berríos was found guilty of committing a carjacking that resulted in the death of his ex-wife. At trial, the prosecution called a co-worker and friend of the victim to testify about statements she made accusing Rodríguez-Berríos of abuse and indicating that she was afraid of him. Over Rodríguez-Berríos' objection, the district court admitted these statements under the excited utterance (Rule 803(2)) and state of mind (Rule 803(3)) exceptions to the rule against hearsay (on appeal, the First Circuit actually found that these exceptions did not apply but found harmless error). Thereafter, Rodríguez-Berríos sought to introduce tape recordings of the victim talking to passengers in her vehicle to impeach her hearsay statements.

The district court, however, found these recordings inadmissible for two reasons: "The court first ruled that the tapes could not be used under Rule 806 to impeach the victim's allegations because she was not a 'declarant,' stating that '[t]he definition of declarant under the rules of evidence specifically 801, is a person who takes the witness stand." Second, "[t]he court later stated that the evidence was inadmissible to impeach the victim under Rule 806 because the statements [Rodríguez-Berríos] sought to impeach were not hearsay but rather 'exceptions to hearsay.'"  

After Rodríguez-Berríos was convicted, he appealed, claiming, inter alia, that the district court erred in precluding this impeachment. The First Circuit agreed with Rodríguez-Berríos that the reasoning used by the district court was incorrect but found that its ultimate conclusion was correct. First, it found that the district court erred by finding that a declarant is "a person who takes the witness stand." The First Circuit correctly noted that under Federal Rule of Evidence 801(b), a declarant is merely "a person who makes a statement;" there is no requirement that the declarant take the witness stand. Indeed, Federal Rule of Evidence 804(a)(4) and Federal Rule of Evidence 804(a)(5) set forth situations where declarants are "unavailable" because they do not take the witness stand. Second, the appellate court found that the district court erred in finding that the victim's statements were not hearsay, noting that statements deemed admissible under an exception to the rule against hearsay are necessarily hearsay as defined in Federal Rule of Evidence 801(c).

So, why did the First Circuit affirm? The court noted, "[W]e are 'not wedded to the lower court's rationale, but, rather, may affirm its order on any independent ground made manifest by the record.'" The problem for Rodríguez-Berríos in this regard was that he claimed that the tape recordings contained prior inconsistent statements by the victim, but the recordings actually corroborated the hearsay statements admitted at trial. According to Rodríguez-Berríos, it was not the substance of the victim' statements on the recordings but her tone and attitude as reflected on the recordings which revealed that she was not scared of  Rodríguez-Berríos and rendered the statements inconsistent. The First Circuit rejected this argument, finding that there was nothing on the tapes indicating that Rodríguez-Berríos did not abuse the victim or that she was not afraid of him.      

Without hearing that tapes myself, I have no basis for agreeing or disagreeing with the court, but the opinion does raise an interesting question: Can a prior statement be deemed inconsistent with trial testimony (or hearsay statements admitted at trial) based on tone, not substance? If a defendant testifies that he was watching a football game at the time of the crime for which he was charged, could the prosecution impeach him through evidence that he sarcastically told a friend that he was watching a football game at the time of the crime? It's an interesting question which the court in Rodriguez-Berrios did not have to address, but I could see it arising in a case down the road.

-CM

The Lone Ranger And Tonto Fistfight In Heaven, Take 7: Supreme Court Denied Cert In Benally v. United States

Today, the Supreme Court denied cert in Benally v. United States, the case in which I submitted an amicus brief. The post containing my brief has links to all of my posts on the case, which dealt with whether racist statements by jurors against Native Americans during deliberations could be used to impeach a verdict entered against a Native American defendant and/or to prove that jurors lied on voir dire when they claimed that they did not harbor racial prejudice. Unfortunately, all we have is the denial of cert, so we don't know why the Court denied cert. For instance, one argument raised by the Solicitor General was that the Court should not grant cert because Benally had not yet been sentenced. If that's the case, I am hopeful that the Court will resolve the issue in the future.

-CM

EvidenceProf Blog On Twitter: http://twitter.com/EvidenceProf

You can now follow EvidenceProf Blog on twitter at http://twitter.com/EvidenceProf. On twitter, I will tweet the headline (or an abbreviated version) and a link to each new post on here. I also plan to do tweets about evidentiary issues in pop culture and evidentiary developments that didn't quite make it on the blog, but which I think might interest readers.

-CM

True Lies: Ohio Defendant Acquitted Despite Evidence Of Failed Polygraph Test Being Presented To Jury

As I have noted before on this blog, "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." A large part of the reason polygraph results are usually deemed inadmissible is because courts fear that jurors presented with a defendant's failed polygraph test will automatically find the defendant guilty and jurors presented with a defendant's passed polygraph test will automatically find that defendant not guilty. A recent case out of Ohio indicates otherwise. In that case, a man was charged with raping and molesting a former girlfriend's daughter, and the defense and the prosecution agreed that the defendant would take a polygraph test with the results being admissible at trial. The defendant's gamble appeared to be a losing bet as he failed the polygraph. Surprisingly, however, the jury still found that defendant not guilty. And that makes me wonder: Are polygraph results as persuasive as courts think them to be?

The defendant in the Ohio case was 30 year-old Christian Rios, who could have been sentenced to life imprisonment if found guilty. According to an article on the case, Rios' taking of the polygraph test was allowed pursuant to

a little-used Ohio statute [which] says [that] jurors can be provided the results if both the defense and prosecution agree to it before a trial starts and before the test is given. The judge still has the discretion to ban the results.   

Indeed, the statute is so little-used that I couldn't even find it. I did find a Supreme Court of Ohio opinion, State v. Souel, 372 N.E.2d 1318 (Ohio 1978), authorizing the practice, but that opinion makes no reference to a statute. Apparently, in defense circles in Ohio, the practice of taking a polygraph under these circumstances is called "'Take a poly for a nolle,' which rhymes with 'dolly.' A nolle prosequi is Latin for a dismissal." 

According to the article, though, when a defendant passes a polygraph under this practice, the usual outcome is not a dismissal but the defendant accepting a favorable plea bargain. Meanwhile, when a defendant fails a polygraph test, the usual result is a conviction, but that wasn't the case with Rios, with the main problem for the prosecution being that the jury simply didn't believe the testimony of the ex-girlfriend. This meant that, despite the judge telling the jurors about the result of Rios' failed polygraph, he is now a free man.

This case has made me wonder whether courts should rethink their positions on polygraph results generally. If defendants passing polygraphs in Ohio usually reach plea deals, this tells me that they are not confident that they will be acquitted even when that evidence is presented to the jury. And, as Rios' case makes clear, a failed polygraph test does not always result in a conviction. Now, this is mostly anecdotal evidence, but I wouldn't be surprised if an empirical study revealed that jurors don't trust polygraph results as much as courts think that they do. Maybe I will do such a study some day.

-CM 

Rescue 911: Court Of Appeals Of Mississippi Stretches To Finds Statements Triggered Crime-Fraud Exception To Attorney-Client Privilege

Mississippi Rule of Professional Coduct 1.6(a) provides that:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).  

Meanwhile, Mississippi Rule of Professional Coduct 1.6(b)(1) provides that "[a] lawyer may reveal such information to the extent the lawyer reasonably believes necessary...to prevent reasonably certain death or substantial bodily harm."  Additionally, Mississippi Rule of Evidence 502(b), Mississippi's attorney-client privilege provides that:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.  

So, what happens when a client's behavior triggers Mississippi Rule of Professional Coduct 1.6(b)(1) but is still covered by Mississippi Rule of Evidence 502(b)? It is an interesting question, but one which the Court of Appeals of Mississippi found that it did not have to address in its recent opinion in Shorter v. State, 2009 WL 4043361 (Miss.App. 2009). I agree with the court's conclusion but disagree with its reasoning.

In Shorter, Johnny Charles Shorter was found guilty of murder after allegedly killing Kenneth Boutwell, whom Shorter suspected was sleeping with his wife. Two important pieces of evidence used to convict Shorter were two 911 calls made by Gill Baker, an attorney whom Shorter had hired to represent him in divorce proceedings against his wife, and who thought that Shorter was planning to shoot Jim Beckman, another man whom Shorter suspected was sleeping with his wife. 

Baker first called 911 at approximately 1:00 a.m...., shortly before Shorter's wife, Angelique, called 911 about Boutwell being shot. Baker told the 911 dispatcher that he "just got a call from a client who said he was fixin' to drive about two miles down the road, stick a gun to a man's head, and kill him." Later in the conversation, the police dispatcher asked Baker, "You know what it's about?" Baker responded, "He [Shorter] was coming to see me about a divorce." Baker provided law enforcement with Beckman's name, whom Baker suspected Shorter intended to kill. Baker said he would call back with Beckman's contact information.

Shortly thereafter, Baker again called 911, and the following exchange took place:

Baker: I was just speaking with someone out there about a possible murder about to happen....

Baker: Johnny was drunk; he had found out about his wife and Mr. Beckman ... over the last couple days. He was supposed to come see me in the morning about a divorce, and that's all I know about it.... He said he had nothing to lose.

911 dispatcher: Oh yeah he does.

Baker: Yeah, that's what I'm trying to convince him.

After Shorter was convicted, he appealed, claiming, inter alia, that the trial court admitted these calls by finding that Mississippi Rule of Professional Coduct 1.6(b)(1) applied and without reference to Mississippi Rule of Evidence 502(b). According to Shorter, this was problematic because "the attorney-client privilege cannot be waived by virtue of a rule of ethics." 

The court, however, found that the trial court did make reference to the attorney-client privilege and found that it was satisfied in Shorter's case because the crime-fraud exception applied. That exception, contained in Mississippi Rule of Evidence 502(d)(1), provides that:

There is no privilege under this rule...[i]f the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

The Court of Appeals of Mississippi agreed, finding that Baker's 911 calls revealed

that Shorter, whom Baker refers to as his "client," did not merely tell Baker what he intended to do and then immediately hang up the phone. Rather, the recording depicts that the two had a conversation about Shorter's proposed actions. While, according to Baker, Shorter contended he had nothing to lose, Baker attempted, albeit unsuccessfully, to persuade Shorter otherwise and to point out the potential consequences of Shorter's actions.

Our supreme court has instructed that when a client seeks the attorney's services to engage in a future crime or fraud, there must be "proof that the crime or fraud actually occurred."...This burden was undoubtedly met, given the abundant proof that Shorter called his attorney, revealed his intention to commit a murder, and shortly thereafter went through with it.

I agree that there was proof that the crime - the murder -- actually occurred, but I don't see the proof that Shorter called Baker to use his services to aid him to plan or commit that crime. Shorter was not calling his attorney and asking him how to dispose of the victim's body or make the death look like a suicide. Instead, it seems to me that Shorter merely felt close to his attorney -- a divorce attorney -- and felt that he was someone he could tell what he was going to do. Indeed, the fact that Shorter told Baker that he had nothing to lose makes it seem clear that he was not seeking assistance in completing or covering up the crime.

Of course, if this were he case, it wouldn't change the outcome because Shorter's statements to Baker simply wouldn't be covered by the attorney-client privilege. As noted, that privilege only applies to "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client." While I don't think that Shorter sought assistance from Baker in completing or covering up the crime, I also don't think that he made the statements to facilitate the rendition of professional legal services. Again, I think that Shorter just wanted someone whom he could tell what he was going to do.

-CM

Black Friday Felony: Court Precludes Defendant From Withdrawing Guilty Plea To Charges In Connection To Black Friday Robbery Of Wal-Mart

Black Friday, the day after Thanksgiving, is the biggest shopping day of the year, with merchants and the media now referring to it as the start of the period in which retailers go from being in the red to being in the black (for more on the origins of the term, click here). It thus seems like a day that criminals, like consumers, could mark on their calendars because retailers coffers will be clogged with customers' cash. That certainly seemed to be the case in United States v. Young, 2008 WL 163045 (E.D. Pa. 2008). In Young, Christopher Young pleaded guilty to crimes in connection with the robbery of a Wal-Mart in Philadelphia (where the phrase Black Friday was coined) in the early morning hours after Black Friday. He then tried to withdraw that plea but was faced with a problem faced by many Black Friday customers: a "no return" policy.

In Young, Christopher Young was charged with Hobbs Act robbery, conspiracy, using a firearm during or in relation to a crime of violence, and aiding and abetting in connection with the robbery of $334,763 from a Wal-Mart in Philadelphia in the early morning hours following Black Friday in 2006. Young first pleaded not guilty but eventually pleaded guilty on all counts pursuant to a plea agreement with the government. Young thereafter sought to withdraw his guilty plea.

The United States District Court for the Eastern District of Pennsylvania found that the issue was governed by Federal Rule of Criminal Procedure 11(d)(2)(B), which provides that

[a] defendant may withdraw a plea of guilty or nolo contendere:...

(2) after the court accepts the plea, but before it imposes sentence if:...

(B) the defendant can show a fair and just reason for requesting the withdrawal.

The court then noted that courts in the Third Circuit apply a three part test for determining whether a defendant can withdraw a guilty plea under these circumstances, under which

The Court must consider: “(1) whether the defendant asserts [his] innocence; (2) whether the government would be prejudiced by the withdrawal; and (3) the strength of the defendant's reason to withdraw the plea."

Young's argument under the first factor was that "two witnesses to the robbery did not identify him as the person who robbed them." The problem for Young was that this evidence was disclosed to Young before he pleaded guilty, leading the court to conclude that

Young's bald claim of innocence [wa]s insufficient. First, although Young generally direct[ed] the Court to discovery that was provided to him, he d[id] not point to the specific evidence justifying his defense. Moreover, Young offer[ed] no reason to explain why he took a contradictory position before the Court, despite having possessed the evidence allegedly supporting his innocence before changing his plea to guilty.

Under the second factor, the court first noted generally that if Young were allowed to withdraw his guilty plea "'the government would be prejudiced by having to reschedule the trial, to provide once again protection for the endangered witnesses, and to expose these witnesses to further risk.'" More specifically, the court then found that

Young [wa]s one of four co-defendants who were to be tried together. One co-defendant pled not guilty, and, after a trial, was convicted on all counts. The other two co-defendants pled guilty and have been sentenced. Therefore,...Young...improperly previewed the Government's case against him, and the Government may [have] face[d] significant difficulty in obtaining the cooperation of the co-defendants who ha[d] been sentenced. Moreover, at the earlier trial of a co-defendant, one key witness was visibly apprehensive about testifying in this case, and another witness was threatened. Under these circumstances,...the Government would [have] be[en] prejudiced by having to once again protect these potential witnesses from danger.

Finally, under the third factor, the court indicated that Young's argument was that 

his attorney erroneously advised him that he was a Career Offender under the Guidelines and thus subject to a sentencing enhancement. Young contend[ed] that, had he known that he was not a Career Offender, and thus of his reduced sentence exposure, he would not have pled guilty, but rather would have gone to trial.

The court found, though, that Young's argument was meritless because he was, in fact a Career Offender. Thus, the court precluded Young from withdrawing his guilty plea.

-CM

Turkey Of An Opinion: Court Precludes Jury Impeachment Despite Foreperson Blocking Door To Prevent Juror From Reporting "Not Guilty" Vote In Thanksgiving Related Case

Federal Rule of Evidence 606(b) 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.

As the language of this Rule makes clear, jurors cannot impeach verdicts based upon allegations that jurors engaged in threats of violence or actual violent acts against other jurors. But, as I noted in a previous post, Minnesota courts do permit jury impeachment based upon such allegations, and, as I argued in that post, I think that other courts should permit such jury impeachment as well as impeachment based upon psychological intimidation or coercion between jurors. If you disagree with me, I ask you to consider the facts of Panella v. Marshall, 2009 WL 2475007 (E.D. Cal. 2009).

In Marshall, Michael Panella was convicted of first-degree murder based upon the death of his 22 month-old child. There were several facts in Marshall, but the basics are as follows: Panella allegedly shoved the child's head into a truck window and later refused to allow his girlfriend -- the child's mother -- to use his truck to take the child to a doctor when he appeared to be sick on Thanksgiving, November 25th. The girlfriend eventually got her sister to take her son and her to the hospital, but, after waiting three hours, she left the hospital before her son was seen by a doctor, and she later lied about her son seeing a doctor. The child eventually died on November 27th. The jury subsequently convicted Panella after they rejected his defense that his girlfriend was responsible for the child's death.

Okay, so we have a defendant who certainly does not appear to be very sympathetic, but he still deserved a fair trial. And, to me, he didn't receive one based upon several forms of jury misconduct, only one of which I will highlight here. According to one juror's declaration:

Throughout the deliberations I was subjected to harassment and verbal abuse by the other jurors. Specifically, the inferences I derived from the evidence were called “stupid.” I was yelled at and intimated by other jurors and repeatedly told I should vote guilty. I was scolded for being “close-minded.” I told them that I was considering the evidence objectively. I was accused of voting “not guilty” because I had a bias against the district attorney's office.

On the third day of deliberation, I told the Foreperson I had taken enough abuse and to inform the judge that the jury could not reach a unanimous verdict. I stated I wanted to leave the jury room, "now" and that I could no longer tolerate being everyone's target. Juror No. 12 agreed we could not reach unanimous agreement. Upon telling the Foreperson I wanted to leave the room and that he should inform the judge of the impasse, the Foreperson stood between the exit door and where I was seated. I was intimidated and felt I was not free to leave the room. I began sobbing. I could not understand why the Foreperson would not inform the judge that we could not reach a unanimous verdict. One of the jurors asked for a break. After the break, I felt I could no longer endure any further mental abuse and that continued insistence that the Foreperson advise the judge of the impasse was futile. Regrettably, I decided to change my vote to “guilty”.

I believe the defendant is “not guilty” of the crimes charged. I changed my verdict only because of the Foreperson's refusal to declare a deadlocked jury and because of continuous badgering and harassment by the other jurors. I felt that if I continued to insist upon my opinion based on the evidence, that the defendant was not guilty, it would have been futile and would only subject me to further abuse by other jurors.

At the time the judge polled the jury, I did not know it was appropriate to inform the court that the verdict of “guilty” I had rendered was not freely and voluntarily rendered or that it was appropriate to inform the court of the behavior of the other jurors during the trial and during the deliberation process.

After Panella was convicted and exhausted his appeals in the California state court system, he brought a petition for writ of habeas corpus with the United States District Court for the Eastern District of California, claiming, inter alia, that he was entitled to relief based upon this juror misconduct. That court denied him relief, finding that

Petitioner's allegations of juror harassment insufficient for habeas relief. Of course, intimidation of jurors is certainly not to be condoned. Yet again, the state court carefully considered this claim and decided that Petitioner did not suffer prejudice as a result of the jurors' conduct. After the heated exchange between the jurors, the jury took a break from deliberations and came to a unanimous decision. When polled, the allegedly intimidated juror confirmed that her verdict was “guilty.” The Court sees no reason to disturb the state court's finding. Moreover, Federal Rule of Evidence 606(b) "clearly bars consideration of [a] declaration's allegation that [a] juror said that she was subjected to pressure by other jurors for being a ‘holdout for acquittal.'"...Accordingly, the Court may not even be able to consider the juror's declaration on the allegation of intimidation.

Really? Do readers agree that the Panella suffered no prejudice? Here's the way I see it. The juror submitting the declaration decided that Panella was not guilty. The only thing that prevented her from having her decision reported, and Panella getting a mistrial, was a combination of physical and psychological coercion by other jurors, including the foreperson. Sure, as the court noted, the jury reached a verdict after this heated exchange and a break. As the juror submitting a declaration noted, (s)he now felt like resistance was futile and that (s)he could no longer deal with mental abuse. And even if (s)he could, what would stop the foreperson from again blocking the juror's exit, and what would stop jurors from possibly retaliating if the juror ere allowed to leave?  

One of the main goals behind Federal Rule of Evidence 606(b) is to ensure that jurors are not subjected to harassment after trial by the losing party. It seems to me, though, that until courts allow jury impeachment based upon physical and psychological coercion, they are turning a blind eye to the harassment of jurors by other jurors.

-CM

Article of Interest: The Danger to Confidential Communications in the Mismatch between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges By Professors Mosteller And Broun

In Rob Reiner's classic movie "The Princess Bride" (based upon William Goldman's equally classic book), the following exchange occurs:

Vizzini:  HE DIDN'T FALL? INCONCEIVABLE.

Inigo Montoya:  You keep using that word. I do not think it means what you think it means.

In their forthcoming article, The Danger to Confidential Communications in the Mismatch between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges, University of North Carolina School of Law Professors Robert P. Mosteller and Kenneth S. Broun argue that the Supreme Court of North Carolina played the role of Vizzini in a recent opinion. In that opinion, State v. Rollins, 675 S.E.2d 334 (N.C. 2009), the North Carolina Supremes found that statements which Mickey Rollins made to his wife when she visited him in prison, and which she surreptitiously recorded for authorities, were not privileged under N.C.G.S. Section 57(c), North Carolina's privilege for confidential marital communications.

The authors problem with the court's opinion was not so much the result. As they note in the introduction to their article, 

Had the majority simply ruled under these facts, that Mr. Rollins‘ attempts to ensure confidentiality were insufficient, its narrow holding would not have threatened the policies behind the marital communications privilege.  However, the majority did not rule narrowly.  

Instead, their problem is that court made the unprecedented move of importing Fourth Amendment analysis into privilege analysis and requiring Rollins to prove that he had a reasonable expectation of privacy while in prison. Of course, Rollins could not make this showing because, for Fourth Amendment purposes, individuals cannot have a reasonable expectation of privacy in prisons, open fields, public building hallways, and any other spaces which they do not own or control. 

Before Rollins, however,

privilege law ha[d] permitted individuals to create privileges outside of space they own or control.  Privilege permits pockets of temporarily constructed confidentiality to follow the communicators as long as reasonably effective precautions are taken to provide physical privacy.  It does so because it depends on the similar, but distinct, concept of reasonable expectation of confidentiality. 

So, what supported the Supreme Court of North Carolina's gambit? Well, according to the court, it was in part relying upon the authors' writings. In Rollins, the court cited, among other sources,

the treatise of Robert Mosteller and his co-authors, North Carolina Evidentiary Foundations, for the proposition that ―a confidential communication requires (1) physical privacy, and (2) an intent on the holder‘s part to maintain secrecy; and

Kenneth S. Broun and his co-authors in McCormick on Evidence [for the proposition that] [t]he rationale that the spouses may ordinarily take effective measures to communicate confidentially tends to break down where one or both are incarcerated.  However, communications in the jailhouse are frequently held not privileged, often on the theory that no confidentiality was or could have been expected.

According to the authors, allegedly relying upon this authority,

[t]he Court then took a momentous and unfortunate step.  The State had argued that the defendant had no reasonable expectation of privacy under the Fourth Amendment in any area in the prison facility, citing numerous authorities that clearly establish the accuracy of that well recognized initial proposition under the federal Constitution.65  The momentous step was the Court‘s agreement with the State‘s conclusion from this authority: because there was no Fourth Amendment protection, there was also no evidentiary privilege.

The authors' response: We do not think what we mean what you think we mean. For them, the problem is that the court confused the Fourth Amendment's requirement of a reasonable expectation or privacy with the confidentiality requirement for privileges. This is problematic because

subjective expectation of privacy and objectively reasonable efforts to maintain that privacy are necessary components of the Fourth Amendment‘s ―reasonable expectation of privacy, but they are not sufficient.  This is where the Fourth Amendment and privilege concepts diverge.  For courts other than the North Carolina Supreme Court in Rollins, satisfying the subjective expectation of confidential and taking reasonably effective (objective) efforts to maintain that confidentiality are not only necessary, but they are also sufficient.  Policy and values also limit the application of privileges, such as the loss of privilege for many statements when the confidential communications are made to facilitate commission of a future crime, but these concepts do not rest on privacy limitation.

The authors end by concluding that

There are a number of reasons for concern about the impact of a holding that the confidential nature of privileged communications is lost if a party to the communication lacks Fourth Amendment protection because he or she lacks a reasonable expectation of privacy. Important process issues, albeit not the most serious problems with the Rollins holding, afflict this decision.  Rollins confuses the law160 and potentially cedes aspects of what has previously been a matter of state law and careful nuance to the single voice of the United States Supreme Court, which often decides Fourth Amendment issues in the shadow of important police practices to control crime and security efforts to thwart terrorism.  A second and more important reason for concern can be found in the handling of eavesdroppers, whether private snoops under privilege law or public investigations under the Fourth Amendment.  The lenient treatment of the latter in part flows from the stunning inability of the Fourth Amendment to deal comprehensively and effectively with the technological changes that are part of the communications revolution in the digital age and the types of third party interactions we depend upon to live our modern lives and communicate messages and information.

I agree with the reasoning of the article and strongly recommend it to readers of this blog, either in its current form on SSRN or in the Campbell Law Review when it is published in December. I asked Professor Mosteller what led Professor Broun and he to write the article, and he responded:

I guess the primary reason we wrote about it was it seemed so misguided to me, particularly as to its potential larger implications.

I am teaching a seminar in advanced criminal procedure and one of the topics we covered in the spring of 2009 was the impact of technology on the Fourth Amendment rights of modern communication.  The mismatch between established Fourth Amendment precedent and a sense of privacy is rather dramatic.  Although statutes may give us some protection, the Fourth Amendment tends to lose its protective power when we communicate in the ways we do now.

Privilege law has its quirks, but no one suggests it cannot operate reasonably effectively in the modern world of communication.  I was struck when I read the case that it was wrongly decided.  However, I was most struck by its very unfortunate effect if the North Carolina Supreme Court really meant that the Fourth Amendment concept of "reasonable expectation of privacy," with its limitations, were to be incorporated into the confidentiality concept of privilege law.

The article should be published in December 2009.       

-CM

Trust Me: Supreme Court Of Appeals Of West Virginia Reverses Murder Conviction Based Upon Expert Opinion Testimony On Credibility

A man is on trial for first degree murder and felony conspiracy, and the primary witnesses against him are a police corporal and another corporal's girlfriend. Defense counsel cross-examines these witnesses for the prosecution about factual discrepancies in their testimony but does not engage in a broad based attack on the credibility of either witness. In response, the prosecution has the chief investigator for the State testify that, in his opinion, these two witnesses were telling the truth. As the recent opinion of the Supreme Court of Appeals of West Virginia in State v. Martin makes clear, there are two fundamental problems with this line of questioning by the prosecution.

The facts in Martin were as described above, with Michael Martin being the defendant and Corporal William Reynolds and Jasminda Gonzales being the witnesses for the prosecution. Here are some excerpts of the interrogation of the chief investiagtor:

Q. From your  — well, first of all, in your 24 years of experience as a West Virginia State Policeman have you had experience throughout those 22 years in conducting witness interviews and particularly eyewitness interviews? 

A. That’s correct. 

Q.  Have you, in those 22 years, had substantial experience in conducting such interviews in cases of violent crimes being homicide or sexual assaults, for example. 

A.   That’s correct. 

Q.   And in your experience in those 22 years, is it rare – is it usual or unusual that your eyewitnesses will have discrepancies in some of the details? 

A. Usual....

Q. Now, as to your investigation of this case and coupled with your 22 years of experience as a law enforcement officer and captain of the State Police, from your entire investigation of this case, have you 

determined Officer Will Reynolds to be credible? 

 

A.  Yes. 

Mr. Daniell: Objection, Your Honor.  That’s  – that I think is where we are out of bounds. 

The Court: I am going to overrule the objection, but I’ll preserve your exception. 

(By Ms. Keller): 

Q.   And based upon your investigation in this case and years of experience and your present position with the West Virginia State Police, have you also determined Jasminda Gonzales to be credible and believable in this 

case? 

Mr. Daniell: Same objection, Your Honor. 

The Court: All right. And the same ruling. 

The Witness: Yeah.  

After Martin was convicted, he appealed, claiming that, inter alia, this testimony was improperly received. That appeal eventually reached the Supreme Court of Appeals of West Virginia, which first found a problem with the testimony under West Virginia Rule of Evidence 608(a), which provides that

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

In other words, credibility must be attacked before it can be bolstered, and, according to the court, "[w]hile both witnesses were subjected to cross-examination regarding various factual discrepancies, the questioning never crossed the bounds into any type of attack on the character of either witness." The court, however, found that even if there had been such attack, the credibility of the witnesses could not have been bolstered by expert opinion testimony. The court noted that

Even more significantly, the law in West Virginia does not allow an expert to give an opinion regarding the credibility of a witness. It is a well-established legal principle in this State that “[t]he jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.”...Under West Virginia case law, because the credibility of witnesses falls within the province of the jury and not an expert witness, the circuit court erred in allowing the Appellee to engage in this line of questioning regarding credibility.  

The West Virginia Supremes thus reversed, and, based upon my review of precedent from across the country, I think that (almost) any other court would have reached the same conclusion.

-CM

A Taxing Matter: Fifth Circuit Finds Exception To Confidential Marital Communications Privilege Applied In Tax Fraud Appeal

Federal courts recognize a confidential marital communications privilege, under which (according to most courts) a spouse can prevent a testifying spouse from testifying about confidential marital communications and/or a testifying spouse can refuse to testify about confidential marital communications. Some federal courts, however, have an exception to this privilege for confidential marital communications about crimes in which the spouses are jointly participating. But what happens when a spouse proposes criminal activity that would implicate both spouses and the other spouse advises against that criminal activity, but the proposing spouse nonetheless engages in the criminal activity? Should the exception apply? That was the issue faced by the Fifth Circuit in its recent opinion in United States v. Miller, 2009 WL 3924052 (5th Cir. 2009). I think that the court got it wrong.

In Miller, Dr. Garland Miller was a general practitioner who employed six staff members, including his then-wife, Rhonda Miller, a registered nurse who worked with him to manage the practice. Dr. Miller was indicted on two counts of tax evasion. Specifically, Dr. Miller allegedly earned taxable income in 2000 and 2001 for which taxes were due, but attempted to evade the tax by: (1) failing to timely file tax returns; (2) failing to pay tax on the income; (3) "converting...payments to him or his wife to cash and money orders"; and (4) "embezzling payments due to DeSoto [Regional Medical System]...which he then converted...to cash and money orders."

At trial, Dr. Miller's now ex-wife testified, Inter alia, about discussions she had with Dr. Miller during their marriage wherein they disagreed about his decision not to file taxes. After he was convicted, Dr. Miller appealed, claiming, among other things, that his ex-wife's testimony should have been excluded under the confidential marital communications privilege.

The Fifth Circuit disagreed. First, it noted that the confidential marital communications privilege potentially applied despite the facts that the Millers were no longer married because "[t]he confidential communications privilege survives the [end of a] marriage and may be asserted by either spouse with respect to communications that occurred during the marriage even after the marriage has terminated." But the problem for Dr. Miller, according to the court, was that

We have recognized an exception to the confidential marital communications privilege for those "conversations between husband and wife about crimes in which they are jointly participating...."....The testifying spouse need not be charged with a crime, so long as the testimony conveys joint criminal activity.

According to the court, the testimony of Dr. Miller's ex-wife "involved conversations about a joint criminal activity and thus [wa]s not protected by the confidential marital privilege." Really? I'm not convinced that this was joint criminal activity. If Dr. Miller had proposed the criminal activity and his wife agreed, there would have been communication regarding crimes in which the spouses were jointly participating. But Dr. Miller's ex-wife testified that she disagreed with Dr. Miller about his decision not to file taxes. Now, Dr. Miller ostensibly ignored that advice and committed tax fraud, which presumably subjected his wife to liability as well. That, however, came later. I don't see how, at the time of the subject communication, Dr. Miller and his wife were engaged in joint criminal activity when his wife told him to file taxes.

Moreover, even if the court found that Dr. Miller and his wife were engaged in communications about crimes in which the spouses were jointly participating, I still don't think that the aforementioned exception applied. Why? The major case cited by the court on the exception issue was United States v. Ramirez, 145 F.3d 345, 355 (5th Cir. 1998), in which the Fifth Circuit noted that "[t]his circuit adopted the Seventh Circuit's approach to the joint participation exception when it announced that where both spouses are substantial participants in a patently illegal activity, even the most expansive marital privilege should not bar testimony."

Even if we credit the Fifth Circuit's conclusion that Dr. Miller's wife was a participant in the tax evasion, I don't see how it could find that she was a "substantial participant" in that tax evasion, especially at the time of the subject communications. She disagreed with her husband about his decision not to file taxes and then failed to report his failure. At most, this makes her a "tacit participant," not a "substantial participant."

-CM 

Summary Judgement: First Circuit Finds Summary Evidence Summarizing Testimony Admissible Under Rule 1006 In Tax Appeal

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

In its recent opinion in United States v. McElroy, 2009 WL 3932266 (1st Cir. 2009), the First Circuit had to decide whether and when this Rule applies to summary evidence that summarizes testimony as opposed to summary evidence that summarizes documents.

In McElroy, Daniel McElroy and Aimee King McElroy were indicted by a grand jury on one count of conspiring to defraud the United States of employment and income taxes and to commit insurance fraud by use of the mails, three counts of mail fraud, and fourteen counts of procuring false tax returns. At trial,

IRS Special Agent Joseph Guidoboni testified as a summary witness about the defendants' reporting obligations to the IRS. He testified that, based on his review of the companies' business records, the defendants paid taxes on the payroll they distributed in check form, but paid no taxes on the payroll they distributed in cash. He concluded that the total amount of unpaid federal taxes from 1997 to the first quarter of 2001 was $9,982,690.51. An insurance fraud investigator, Neil Johnson, also testified as a summary witness about employers' obligations to maintain workers' compensation insurance and how insurers calculate premiums based, in part, on reported payroll. He concluded that the total loss in insurance premiums to the workers' compensation companies was $6,457,500.  

Apparently, both of these witnesses provided testimony that summarized testimony as well as documents. After the defendants were convicted, they appealed, claiming that Federal Rule of Evidence 1006 "only allows the introduction of summary evidence that summarizes documents, as opposed to evidence that summarizes testimony." The First Circuit disagreed, noting that it has urged caution with regard to the admission of summary evidence that summarizes testimony but that it has generally allowed such testimony in the context of tax cases. According to the court,

With regard to summary witness testimony, we have urged caution, noting that such witnesses are allowed only in limited situations....We noted: "The reluctance of courts to allow the government an additional opportunity to present its case in a tidy package at the end of its presentation of evidence, even when the summary evidence is, by definition, completely consistent with the rest of the trial record, confirms that the imprimatur problem with such repetitive testimony is inescapable whether that testimony comes at the beginning or end of the government's case."...Nevertheless, we have found summary witnesses to be appropriate within the context of tax cases: "We have recognized as a general proposition that testimony by an IRS agent that allows the witness to apply the basic assumptions and principles of tax accounting to particular facts is appropriate in a tax evasion case."...We held that "in a tax evasion case, a summary witness may be permitted to summarize and analyze the facts of record as long as the witness does not directly address the ultimate question of whether the accused did in fact intend to evade federal income taxes.

Based upon my review of precedent, I think that this ruling is fairly consistent with the decisions reached by courts across the country. Indeed, the court noted in a footnote accompanying the above block quote that

Our cases are generally consistent with other circuits' treatment of summary witness evidence offered in complex cases. See, e.g., United States v. Harms, 442 F.3d 367, 375-76 (5th Cir. 2006); United States v. Pree, 408 F.3d 855, 869-72 (7th Cir. 2005); United States v. Sabino, 274 F.3d 1053, 1067 (6th Cir. 2001), modified on other grounds, 307 F.3d 446 (6th Cir. 2002); United States v. Pinto, 850 F.2d 927, 935 (2d Cir. 1988); see also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 611.02[2][a][vii] (2d ed.2009); 6 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 1006.08[4] (2d ed. 2009). 

-CM

Double Impact: Article Reveals That Indiana Precludes Victim Impact Statements In Cases Where The Death Penalty Or Life Without Parole Could Be Imposed

I have written several posts on this blog about the ever controversial topic of victim impact statements (previous posts can be found here, here, here, here, here, here, and here). Those posts have dealt with topics such as the type of music that can accompany such statements, whether such statements can invoke religious authority, whether such statements are admissible in cases of defendants found not guilty by reason of insanity, and whether the admission of such statements should be mandatory (in Ireland). This post deals with the near converse of the proposed Irish rule: whether such statements should be per se prohibited in cases that could result in the death penalty or life without the possibility of parole being imposed. As a recent article makes clear, that is (in essence) currently the law in Indiana.

According to that article, Desmond Turner was convicted to life without parole plus 88 years after being convicted of killing three children and four adults during a home-invasion robbery at Hamilton Avenue. The article also notes that the prosecutor was able to procure this sentence after getting Turner to waive his right to a jury trial, leaving the determination of guilt and the imposition of sentence to Superior Court Judge Robert Altice. Victim impact statements, however, played no role in sentencing. The article contended that

Ironically, the heart-wrenching statements from the survivors of the Hamilton Avenue victims played no role in the sentencing of the convicted man. Indiana law doesn't allow judges to consider victim impact statements in cases that could bring the death penalty or life in prison without parole.  

The article goes on to note that "Indiana is one of a few states still limiting the use of victim impact statements in death penalty cases. Victims are allowed to address the court, but their statements technically play no role in the sentencing." The article is mostly accurate. As John Blume noted in Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 Cornell L. Rev. 257, 268-69 (2003),

Indiana and Mississippi are the only two states that appear to significantly restrict the admission of VIE. Although neither jurisdiction finds VIE per se inadmissible, both states claim to utilize a higher standard of relevance. Indiana, for example, prohibits VIE unless it is relevant to one of the statutory aggravating factors. The Indiana Supreme Court has never upheld a trial court's admission of VIE. However, when confronted with a case in which VIE was erroneously admitted, the court has often found the error harmless.

Mississippi requires that VIE be "proper and necessary to a development of the case” and further requires the prosecution to demonstrate that the evidence "could not serve in any way to incite the jury." Mississippi was one of the few states that initially hesitated to adopt Payne's holding, stating that "Payne...is properly phrased in terms of the constitutionally permissible, not the mandatory, and in prudence, we should await another day to explore the full reach of our rediscovered freedom." However, the state court later held that a prosecutor's statement that "injustice would be hard to bear by the family and friends of the victim" had some probative value and then opined that, taking the trial as a whole, the comments were not overly prejudicial. Thus, although Mississippi technically considers VIE inadmissible, it does not bar all VIE or argument, and trial courts appear to have discretion to determine whether, under the circumstances of the case, the prosecution may introduce VIE.

As the above excerpt indicates, Indiana does in fact limit the use of victim impact statements in death penalty cases and has, in practice, imposed a sort of constructive ban on their admission. But, technically, Indiana does not have an official per se ban on the admission of victim impact statements in cases where the death penalty or life without parole could be imposed. Instead, as the Supreme Court of Indiana noted in Veal v. State, 784 N.E.2d 490, 493 (Ind. 2003), "victim impact evidence is admissible under the death penalty statute [but] only where it is 'relevant to the death penalty statute's aggravating and mitigating circumstances.'...Cases in which life without parole is sought are governed by the same [standard]."

Personally, I like the Indiana approach. It (technically) allows victim impact evidence when the prosecution can establish that it is relevant to the sentencing decision but excludes it when it is merely presented to inflame the passions of the jury or judge. It would be interesting to see whether there is any empirical evidence out there about whether there is disparate sentencing in Indiana and Mississippi compared to the other states that might be attributed to victim impact evidence.

-CM

Judge Advocate?: Court Of Appeals Of Ohio Finds Judge Didn't Abuse Discretion By Asking 89 Questions To Witness In Domestic Violence Trial

Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Similarly, Ohio Rule of Evidence 614(B) provides that "[t]he court may interrogate witnesses, in an impartial manner, whether called by itself or by a party." But when does a court go too far? In the words of the Ohio rule, when does the judge overstep his power and transform from an impartial interrogator into a partisan advocate? That was the question that the Court of Appeals of Ohio, Eighth District had to answer in its recent opinion in State v Redon, 2009 WL 3765971 (Ohio App. 8 Dist. 2009). And I am not entirely satisfied with its answer.

In Redon, Kenneth Redon appealed from his convictions for kidnapping and domestic violence based upon acts that he allegedly committed against his wife, Shawnta Redon. According to the prosecution, Keith

arrived home in the early morning hours of May 12, 2008 after spending time visiting his daughter at his daughter's mother's house. At approximately 2:30 in the morning, [Keith] woke his wife, Shawnta Redon, by trying to kiss her. After Mrs. Redon rebuffed [Keith]'s advances, an argument ensued involving the location of the television remote control. In the course of this argument, Mrs. Redon was trying to locate her cell phone using the house telephone line. [Keith] snatched the phone from Mrs. Redon and hit her several times, with blows landing on her face and arms.

At Keith's trial,

Mrs. Redon testified that she was hit at least once in the face and several times on her arms as she raised them to protect her head. Photographs taken by the Bedford police department were introduced at trial, which showed injuries to Mrs. Redon's arm. She further testified that the argument calmed down, and she and [Keith] sat on the couch for a few minutes. Then Mrs. Redon went upstairs to the bathroom to survey the damage done by [Keith]. The court, while questioning Mrs. Redon about inconsistences in her prior statement to the Bedford police the next day, elicited testimony that she was in the bathroom for a few hours, during which time [Keith] was standing at the door preventing her from leaving. [Keith]'s car was also blocking Mrs. Redon's car, further preventing her from leaving the premises. [Keith] finally left the home to deliver newspapers. Mrs. Redon then called her mother and packed a bag, planning to stay at her mother's house. Upon finding her car blocked in, she called [Keith], who arrived an hour later to move his car. Mrs. Redon was also unable to locate her keys, which were conveniently found by [Keith] upon arriving at the home to move his car. Mrs. Redon left the home and reported the incident to the Bedford police later that day. (emphasis added).

In all, the trial judge asked Mrs. Redon 89 questions. After he was convicted, Keith appealed, claiming, inter alia, that the trial judge abused his discretion in engaging in this rigorous interrogation. According to the Court of Appeals, the issue was governed by Ohio Rule of Evidence 614(B). The court held that, under this Rule, 

"A judge abuses his discretion when he plays the part of an advocate, but the rule is not so restrictive that [a] judge is not permitted to participate in a search for the truth."...A trial court "may interrogate witnesses, in an impartial manner, whether called by itself or by a party."  

For the court, it was important that Keith was subjected to a bench trial, not a jury trial. The court noted that

In the case at bar, a bench trial was conducted where “a trial judge is ordinarily accorded greater flexibility” in the questioning of witnesses....This is because “when there is no jury, there is no one to be prejudicially influenced by the judge's demeanor."

Of course, a party such as Keith can still be prejudiced by a judge's questions, but the court found that the trial judge's 89 questions were not sufficiently prejudicial. According to the court,

While 89 questions is a substantial number, the majority were to clear up contradictions and ambiguities between Mrs. Redon's testimony in court and her prior statement to the police. [Keith]'s trial counsel introduced those inconsistencies on cross-examination. The court was simply trying to arrive at the truth when confronted with differing versions of events and a recalcitrant witness. As the trial court noted, victims of domestic violence are often reticent to testify at trial against their abuser. The court took great pains to go over Mrs. Redon's prior statement and ask her the same questions that were posed by police officers. The court determined that the testimony of Mrs. Redon was consistent with her prior statement, even if Mrs. Redon was hesitant to tell the full extent of the events when first questioned by the prosecution.  

I have no problem with any of the above analysis. But I do have a problem with the last part of the court's analysis. The court concluded by noting that

In an effort to prove prejudice, [Keith] point[ed] to testimony drawn out by the court that was not adduced on direct examination by the prosecution. This should be expected because the testimony that was drawn out was in regard to the prior statement, which the prosecution was forbidden to use on direct examination. A party cannot attack the credibility of its own witness absent a showing of surprise and damage to its case....Here, there was no adverse testimony by Mrs. Redon that would amount to surprise. However, on cross-examination, [Keith] used the prior inconsistent statement to attack Mrs. Redon's veracity. This opened the door for the court to question Mrs. Redon about her prior statement and to try to determine why there were differences in her prior statement and her court room testimony and which of those was the truth.  

This makes it seem like the judge not only could, but needed to, step in and question Mrs. Redon to clear up inconsistencies in her statements because the prosecution could not have done so; however, once defense counsel impeached Mrs. Redon through her prior inconsistent statement on cross-examination, the prosecution could easily have questioned her to clear up inconsistencies in her statements during redirect examination. I'm not sure how big of a role this part of the court's reasoning played in its holding, but if it played a large role, the court's ruling was likely erroneous. Of course, without seeing the transcript of the judge's questions, it is difficult to reach any definitive conclusion.

-CM

Compromising Position: Court Of Appeals Of Texas Notes That Rule 606(b) Precludes Jury Impeachment Regarding Compromise Verdict

Texas 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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

As the recent opinion of the Court of Appeals of Texas, Texarkana, in  Orange v. State, 2009 WL 3851068 (Tex.App.-Texarkana 2009), makes clear, like its federal counterpart, Texas Rule of Evidence 606(b) does not permit jury impeachment on the issue of whether the jury reached a compromise verdict.

In Orange, Charles Eugene Orange was convicted by a jury of indecency with a child by contact. Orange, however, was acquitted by the jury on the charge of aggravated sexual assault. After trial, Orange learned how the jurors reached these results. Apparently, "the verdict was reached by compromise; that is, because the jury could not agree on a unanimous verdict, they agreed to find Orange guilty of indecency with a child (the lesser offense) and then recommend community supervise." Orange presented the affidavits of two jurors to this effect on appeal, but the Court of Appeals found that it was precluded from considering them under Texas Rule of Evidence 606(b). According to the court,

This rule plainly forbade the trial court from considering the juror affidavits to the extent they discussed matters occurring in deliberations. See State v. Krueger, 179 S.W.3d 663, 665-66 (Tex.App.-Beaumont 2005, no pet.) (trial court granted motion for new trial based on informal discussions between court, attorneys, and jurors following trial; court of appeals reversed because jurors' statements not competent evidence under Rule 606(b)); Davis v. State, 119 S.W.3d 359, 365-66 (Tex.App.-Waco 2003, pet. ref'd) (testimony of jury's consideration of parole application not permitted under Rule 606(b) at hearing on motion for new trial); Hines v. State, 3 S.W.3d 618, 621 (Tex.App.-Texarkana 1999, pet. ref'd) (stating under Rule 606(b), jurors not competent to testify “that they decided the verdict by lot, that they decided the case based on another juror's incorrect statement of the law, or that they discussed the defendant's failure to testify and used that failure as a basis for convicting him”). The affidavits from the jurors could not be considered to attack any matter within the jury's deliberations.

Indeed, the Advisory Committee's Note to Federal Rule of Evidence 606(b) (the model for Texas Rule of Evidence 606(b)) makes this point clearer. According to that Note, Federal Rule of Evidence 606(b) is based upon federal precedent in which "testimony or affidavits of jurors ha[d] been held incompetent to show a compromise verdict...."  

-CM 

Feigned Surprise Or The Real Thing?: Ohio Opinion Helps Explain Limits On Rule 607 Impeachment

Federal Rule of Evidence 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." The federal rule eliminated the old "voucher rule," under which the party calling a witness was deemed to have vouched for his credibility and thus could not impeach him. A party, however, cannot call a party for the sole purpose of impeaching him through his prior inconsistent statement(s) as is made clear by cases such as United States v. Ince, 21 F.3d 576 (4th Cir. 1994). This fact is made even clearer in Ohio Rule of Evidence 607(A) as can be seen from the recent opinion of the Court of Appeals of Ohio, Twelfth District, in State v. Stevens, 2009 WL 3808375 (Ohio.App. 12 Dist. 2009).

In Stevens, Craig Stevens was convicted on three counts of rape based upon the following facts established at trial:

A.K., who was 19 years old at the time, went to visit her friend, C.S., [Stevens'] 17-year-old daughter, at [Stevens']...residence. After watching television,...C.S. told A.K. that she should spend the night. A.K. agreed...and joined C.S. in her bed....

Sometime after the girls went to sleep, [Stevens], who had since returned from a bar, entered his daughter's bedroom and asked A.K. if that was her car parked outside. A.K. responded affirmatively.  [Stevens] then informed A.K. that she could spend the night and left the room. When asked if she noticed anything unusual about [Stevens] that morning, A.K. stated that he was "intoxicated" and that she “could smell the alcohol.”

Several minutes later, [Stevens] came back into the girls' bedroom, walked to the side of the bed where A.K. was sleeping and started "rubbing" her. A.K., who was "halfway sleeping," thought it was "weird," but started to “doze back off .” However, when [Stevens] continued “touching” her, A.K. became scared and tried to wake up C.S. who was sleeping next to her. [Stevens] continued to touch A.K. for approximately a minute before he exited the room and began pacing in the hallway. While [Stevens] was gone, A.K. testified that she told C.S. that she was scared.

Shortly thereafter, [Stevens] again entered the girls' bedroom, "tried to crawl into bed," and began[engaging in more aggressive non-consensual sexual touching of A.K.]....

After [Stevens] left the room for the final time, A.K. called Tom Mapes, [Stevens] neighbor and husband of Dina Mapes, A .K.'s boss and close friend, and asked him to unlock his front door. A.K. then left [Stevens] house and ran across the street to the Mapes residence. Upon her arrival, Tom Mapes testified that A.K. was crying and acting "hysterical." Later that morning, A.K. called the police and went to the hospital where she submitted to a sexual assault evaluation.

After the incident, C.S. made a statement to police in which she indicated, inter alia, that she was "scared" after her father started touching A.K., that A.K. was "pinching [her] and kept nudging [her]" during the sexual encounter, and that A.K., in fact, did make a phone call that morning. When the prosecution called C.S. at trial, however, C.S. testified that A.K. never tried to wake her up, that A.K. never called the Mapes, and that, although she was "disgusted” by it, the entire sexual encounter between Stevens and A.K. was consensual.

The prosecution thereafter impeached C.S. through her prior inconsistent statement to the police, and this evidentiary ruling later formed part of the basis for Stevens' appeal. According to Stevens the trial court should not have permitted this impeachment under Ohio Rule of Evidence 607(A), which provides in relevant part that:

The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.

According to Stevens, the case before the court was a case of "feigned surprise" to the testimony of C.S. by the prosecution, which, inter alia, "had notice that her testimony would be inconsistent because he "formally placed the state on notice that he intended to call [C.S.] as a witness," and because the state knew that C.S. and A.K. were "no longer friends because of the incident." The appellate court agreed with Stevens in principle but not in practice, finding that Stevens failed to prove that the prosecution had express notice that C.S. had changed her tune. According to the court,

As the Fifth District Court of Appeals recently found, a trial court does not abuse its discretion by finding that the state was surprised even though it was aware of the possibility that its witness may change her story where there has been no express notice by the witness that she would wholly deny her prior statement provided to the police....As a result, because C.S. never provided express notice to the state of her intention to recant her original statement, the trial court did not err, let alone abuse its discretion, by allowing the state to impeach C.S.'s credibility by means of her prior inconsistent statement.

-CM

California Split: Retaliatory Termination Case Reveals Split Between California And Federal Rules Of Evidence On Settlement Evidence

In relevant part, Federal Rule of Evidence 408 provides that

Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority (emphasis added).

In other words, for evidence relating to settlement negotiations to be deemed inadmissible under the federal rule, those negotiations must come after a claim, which means a lawsuit or at least actions from which the two sides could reasonably anticipate litigation. As the recent opinion of the Court of Appeal, Sixth District, California, in Mangano v. Verity, Inc., 2009 WL 3807485 (Cal.App. 6 Dist. 2009), makes clear, California's counterpart is not so constrained.

In Mangano, Thomas Mangano brought an action for retaliatory termination in violation of California's Fair Employment and Housing Act (FEHA) against respondent Verity, Inc. after Verity terminated his employment. 

At the time it terminated Mangano's employment, Verity presented Mangano with a letter proposing "terms of the separation agreement...which Verity...is offering to you to aid in your employment transition.” In the proposed separation agreement, Verity offered to pay Mangano a lump sum equivalent to 17 weeks of salary in exchange for Mangano's agreement to a "Nonsolicitation" clause, a "Nondisparagement" clause, a "Release" clause, an "ADEA Waiver" clause, a "Section 1542 Waiver" clause, and a "No Voluntary Adverse Action" clause.

Mangano declined the proposed separation agreement and sought to present evidence of the agreement at trial. The trial court, however, excluded this evidence. Mangano thereafter appealed, relying upon a Ninth Circuit case which had allowed for the admission of evidence of a similar separation agreement based upon similar facts. But the problem for Mangano, according to the court, was that the Ninth Circuit case was decided pursuant to Federal Rule of Evidence 408. In other words, the agreement in that case was deemed admissible because there was not yet a claim that was disputed as to validity or amount.

Conversely, Mangano's case was being heard under the California Evidence Code, and California Evidence Code Section 1152 provides in relevant part that

Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.

According to the court, this was fatal to Mangano's claim because Federal Rule of Evidence 408,

unlike Evidence Code Section 1152, expressly applies only where a "claim" was "disputed" at the time of the offer. Evidence Code Section 1152, on the other hand, says nothing about any claim, does not require the preexistence of a dispute, and expressly applies to a prospective loss. The trial court did not abuse its discretion in concluding that the proposed separation agreement fell within Evidence Code Section 1152's broad scope.

-CM 

Statements Against Interest And The Confrontation Clause: Professor James Duane Uncovers Troubling Statement In Advisory Committee Note To Amendment To Rule 804(b)(3)

I have written previously on this blog about the upcoming amendment to Federal Rule of Evidence 804(b)(3), the statement against interest exception to the rule against hearsay. I have also written previously about the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), and its holding 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. So, it seems natural that the 2009 Advisory Committee Note to the amendment would mention the Confrontation Clause implications of the new Rule 804(b)(3). Apparently, though, that is not the case as Regent Law School Professor James Duane notes in a very interesting and compelling e-mail to the Evidence professor listserv. Below is that e-mail, which I fully endorse:

An open (and respectful) letter to the Evidence Rules Advisory Committee: Is it really true that "statements against interest" are never testimonial?

Dear friends and colleagues:

 

I recently looked for the first time at the 2009 Advisory Committee Notes to the imminent amendment to Rule 804(b)(3), which contain the following line that caught my eye:

 

“The Committee found no need to address the relationship between Rule 804(b)(3) and the Confrontation Clause, because the requirements of this exception assure that declarations admissible under it will not be testimonial.”

 

I suspect that it may now be too late in the process to stop that line from going into effect along with the proposed amendment, and it would probably not do a great deal of mischief if that is the case.  But I do not believe that this line is even close to accurate.  (Indeed, the point seems so obvious that I cannot believe I am the first to point this out.)  The Committee gave no explanation for this assumption.  My best guess is that the Committee had in mind the many statements admissible under this exception where the declarant was confessing his criminal conduct to a trusted friend or accomplice.  But this exception has never been so limited, has it?

 

For example, there are “many circumstances in which Rule 804(b)(3) does allow … [e]ven the confessions of arrested accomplices” to be admitted against the declarant’s partners in crime, as long as “they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor.”  Williamson v. United States, 512 U.S. 594, 603-04 (1994) (noting that some portions of the “confession” made by a criminal suspect to the police after his arrest in that case “would clearly have been admissible under Rule 804(b)(3)”).  Are there not many circumstances in which such confessions are clearly “testimonial”? See Crawford, 541 U.S. at 51 (listing “an accuser who makes a formal statement to government officers” as an example of that which is clearly testimonial). 

 

Indeed, the hearsay statement that was deemed to be testimonial and which led to reversal in Crawford was admitted by the lower courts as a “statement against interest” under Washington’s version of Rule 804(b)(3).  Crawford, 541 U.S. at 40.  The Supreme Court’s opinion in that case did not, of course, need to consider the propriety of that ruling on an issue of state law – but it is noteworthy that the Court’s opinion contained no hint of any impression that the lower court’s ruling was a surprising or unlikely interpretation of the ordinary requirements of that hearsay exception.

 

Here’s another example:  before Crawford, the Circuit Courts deemed it “well-settled … that plea allocutions of unavailable co-conspirators are admissible at trial as statements against interest.”  United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007).  See also id. at 129 (“Prior to Crawford, we regularly approved the admission of an unavailable witness's plea allocution to prove the existence and scope of a conspiracy…”)  And yet the Supreme Court, in listing examples of “plainly testimonial statements,” specifically cited the formerly common federal practice of admitting evidence of a “plea allocution” by the accused’s codefendant for the purpose of “showing [the] existence of a conspiracy.”  Crawford, 541 U.S. at 64; see also Davis, 126 S.Ct. at 2275 (citing “guilty pleas” as evidence arising out of “the testimonial context”). This may have been technically dictum, but the lower courts have shown no hesitation in concluding after Crawford that plea allocutions are testimonial, since they are made in open court, under oath, and in response to structured questioning by the trial judge or the prosecutor.  The Second Circuit has made this point in reversing a considerable number of convictions even though the evidence was properly admitted under Rule 804(b)(3) under controlling Second Circuit precedent and Williamson before Crawford was decided.  United States v. Riggi, 541 F.3d 94, 102 n.2 (2d Cir. 2008); United States v. Becker, 502 F.3d 122, 127-29 (2d Cir. 2007); United States v. Hardwick, 523 F.3d 94, 98 (2d Cir. 2008);  United States v. Reiffer, 446 F.3d 65, 86-87 (2d Cir. 2006); United States v. Al-Sadawi, 432 F.3d 419, 425-26 (2d Cir. 2005); United States v. Zhou, 428 F.3d 361, 374 (2d Cir. 2005); United States v. Jones, 393 F.3d 107, 110-11 (2d Cir. 2004); United States v. McClain, 377 F.3d 219, 221-22 (2d Cir.2004).  My view has always been that those cases are surely correct. 

 

Indeed, these cases are part of the reason why I once wrote, based on an extensive review of just about every reported appellate federal Crawford decision written before Melendez-Diaz, that: “Which criminal cases will be most affected by the new constitutional standard established by Crawford and Davis?  It may be too early to predict with certainty, but those cases will almost surely have the greatest impact on the admissibility of statements in two classes of cases: (1) testimonial reports to the police that were admitted under the exceptions for present sense impressions and excited utterances, and (2) testimonial confessions, including guilty pleas, that formerly were admitted under the hearsay exception for statements against the interest of the declarant.  In almost every federal case decided since Crawford in which some statement was held to have been erroneously admitted in violation of the Confrontation Clause, the statement was admitted under one of these hearsay exceptions.  These are the cases in which defense counsel must now be especially vigilant to watch for a possible constitutional objection.”  Weissenberger & Duane, Federal Rules of Evidence: Rules, Legislative History, Commentary and Authority 443-44 (6^th ed. 2009).  I have never seen anything to change my view of that matter.

 

This leads me to pose two important questions to this group:

 

1.      Does anyone else out there agree with me (and at least the Second Circuit Court of Appeals) that some of these well-settled precedents plainly authorize the admission of statements against interest under Rule 804(b)(3) – at least in civil cases, for example – under circumstances where such statements would clearly qualify as “testimonial” under Crawford?   

 

2.      If not, can anyone explain to me why you would agree with the Advisory Committee’s contrary insistence that “the requirements of this exception assure that declarations admissible under it would never be testimonial”?  If there is some valid reason why that sentence might be true, I honestly cannot even imagine what it might be.

 

If my objection is sound, some might say, it makes no big difference.  Probably true.  Even if this proposed new line from the Committee Notes is certainly mistaken, as I believe it is, no good court will be misled into thinking that the Advisory Committee had effectively overruled, for example, the long line of Second Circuit cases that have held that plea allocutions otherwise admissible under Rule 804(b)(3) are “testimonial.”  The opinions of the Committee are of course not controlling on constitutional questions, even though they are entitled to much respect as persuasive authority. 

 

But still, if I am correct, it would seem to be a good idea – if it’s not yet too late? – to withdraw this line from publication, even if only for the following two reasons:

 

(1) to minimize the risk that some less talented judges might be confused by this passage into mistakenly inferring, as the Advisory Committee has apparently done, that any statement that is truly “testimonial” would never meet the requirements for admissibility under this Rule (such a court would be compelled to adopt either an erroneously narrow view of what this Rule allows or an unduly truncated view of what Crawford forbids), and

 

(2) because, all else being equal, it is a good idea for the Committee Notes to be free from plain errors, especially when so many of us require our students to read those Notes. 

 

Professor James Joseph Duane

-CM

Make Me Whole, Take 2: Court Of Appeals Of Minnesota Gets Impeachment Ruling Right, Other Rulings Wrong In Second-Degree Murder Appeal

Minnesota Rule of Evidence 609(a)(1) states,

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. 

Previously on this blog, I have stated my displeasure with Minnesota's "whole person" approach to Rule 609(a)(1), under which Minnesota courts usually admit prior conviction evidence without much consideration of unfair prejudice under the theory that it permits the jury to see the "whole person" of the testifying witness. The recent opinion of the Court of Appeals of Minnesota in State v. Thelen, 2009 WL 3735430 (Minn.App. 2009), is the exception to that rule, and I agree with its Rule 609(a)(1). But other parts of the opinion give me pause.

In Thelen, Antonio Thelen was convicted of second-degree murder after a late-night shooting in which Thelen was the driver of a vehicle that intercepted another vehicle driven by the victim. A jury found Thelen guilty for shooting the victim after engaging in an altercation with him. The evidence at trial established that either Thelen or the passenger in his car shot the victim, and the main evidence supporting Thelen's conviction was (1) the testimony of the passenger indicating that Thelen shot the victim, and (2) the testimony of a police officer eyewitness who testified that the driver of Thelen's vehicle shot the victim and then got into the driver's seat and drove away from the murder scene.

Another piece of evidence supporting Thelen's conviction was his 1995 conviction for dangerous discharge of a firearm, which the prosecution admitted to impeach him. The district court admitted this conviction under the "whole person" approach to Rule 609(a)(1), but the Court of Appeals of Minnesota disagreed. According to the appellate court,

the key factor at issue here is...the similarity of the prior conviction to the present offense. The district court ruled that this factor favored admission; we disagree. As the identity of the person who shot [the victim] was the essential issue for the jury to decide and the evidence at trial limited the choice of the shooter to either [Thelen] or [his passenger-, any evidence suggesting that [Thelen] owned a gun or had a propensity to shoot a gun was highly prejudicial....Thus, even though [Thelen]'s prior conviction was somewhat dissimilar to the current offense because it did not involve shooting a person, the prior conviction could have suggested or indicated that [Thelen] had a familiarity with weapons and that he might have been in possession of a weapon or have a propensity to shoot a weapon.

Nonetheless, the appellate court did not reverse, finding that the district court's error in admitting the conviction was harmless because the verdict reached in this case was “surely unattributable to the error." The court reached this conclusion because

[a]t trial, the evidence establishe[d] that either [Thelen] or [his passenger] shot the victim. A police officer eyewitness testified that the driver of [Thelen]'s vehicle shot [the victim] and then got into the driver's seat and drove away from the murder scene. When [Thelen] testified, he admitted that he drove the vehicle when leaving the murder scene. In light of this evidence of [Thelen]'s guilt, any error in the admission of the prior conviction was harmless. 

Really? So, basically, the only strong evidence of Thelen's guilt was the eyewitness testimony of a single person (the passenger's testimony was obviously biased). And, as I have noted before, eyewitness testimony, and especially uncorroborated eyewitness testimony, has been found to be pretty unreliable. But wait a second; the appellate court also found that the district court did not err in precluding Thelen from calling Dr. Otto Maclin to testify as an expert on memory recall and the inaccuracy of eyewitness testimony. 

Instead, according to the Court of Appeals of Minnesota, under Minnesota Rule of Evidence 702, such testimony would not "assist the trier of fact to understand the evidence or to determine a fact in issue." Instead, according to the court, "jurors need to refer only to their own experience in evaluating the testimony of an eyewitness." Indeed, as the court noted, this is the majority rule in state courts across the country. But that doesn't make it right. Do courts really think that the average juror has an understanding of all of the studies showing the unreliability of eyewitness testimony? Do courts really think that jurors are aware of just how many inmates freed based upon DNA evidence were wrongfully convicted based upon inaccurate eyewitness testimony? It seems to me that courts would need to have a pretty high opinion of the average juror to exclude the opinion of experts in the area.

-CM 

A Body Treatise: Court Of Appeals Of Minnesota Finds Learned Treatise Exception Didn't Apply To Amnesty International Report

Like its federal counterpart, Minnesota Rule of Evidence 803(18) provides an exception to the rule against hearsay for "statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice" to the extent that those statements are "called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination." The Rule goes on to provide, however, that "[i]f admitted, the statements may be read into evidence but may not be received as exhibits." The problem for the appellant in In re Welfare of G.S.G., 2009 WL 3736134 (Minn.App. 2009), was that he could not meet the requirements of this hearsay exception.

In G.S.G., G.S.G. appealed from an order certifying him for adult prosecution on first-degree murder charges. 

The charges against...G.S.G. arose out of an incident in which [G.S.G.] stabbed and beat his neighbor to death. In a statement to police, [G.S.G.] reported that early one evening, the victim had touched [his] penis and tried to pull down [his] pants. Several hours later, [G.S.G.], who was 15 years old at the time, went to the victim's house and waited until the victim was alone. [G.S.G.] entered the victim's home, stabbed him repeatedly, and then choked him. [G.S.G.] was charged with first-degree premeditated murder, and the state moved to certify [G.S.G.] for adult prosecution....

[G.S.G.]'s mother is Native American, and his father is Latino. His mother is a member of the Standing Rock Sioux Tribe, and [G.S.G.] has lived in Minnesota and on the Standing Rock Indian Reservation in South Dakota. [G.S.G.]'s father had difficulty finding work on the reservation, so he frequently returned to Minneapolis to work....[G.S.G.] sometimes accompanied his father to Minneapolis.   

When [G.S.G] lived on the reservation, his mother and half-sisters used alcohol and drugs to excess and often physically abused [G.S.G.]. [G.S.G.] began regularly using alcohol and marijuana when he was between eight and ten years old. [G.S.G.], who was subjected to racial taunting by peers, was involved in numerous fights. [G.S.G.] estimated that he was in about 30 fights on the reservation and admitted using weapons, including rocks, bricks, and glass bottles....While visiting his grandmother sometime between the fall of 2006 and the spring of 2007, [G.S.G.] was sexually assaulted by his uncle, who penetrated [G.S.G.] anally.

At trial, G.S.G. "intended to call a witness to testify about [G.S.G.]'s family history, including the prevalence of rape, and how intergenerational trauma affected [G.S.G.] and tied into []his case." The problem for G.S.G. was that this witness "was ill at the time of trial." G.S.G. thus "sought to introduce a 103-page report by Amnesty International, titled Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, which included excerpts about the Standing Rock Reservation."  

According to the district court judge, G.S.G's problem in this regard was that the report did not qualify for admission under Minnesota Rule of Evidence 803(18). The judge found that

[E]ven if [[G.S.G]'s intended witness] were testifying, going back to the exact same rule that [[G.S.G.]'s counsel] started reading from, the Rule of Evidence 803, Subd. 18, the article would never have been admissible even if [the witness] testified because that rule ends by stating, "statements can be read into evidence that may not be received as exhibits," and those statements were from inside of a larger publication that the expert relied on.

And so I would not have been able to accept that article into evidence, as a whole anyway, under that Rule of Evidence. And I couldn't find any other Rule of Evidence that applied to the admissibility of publications, only to foundation. And, I agree, I can take judicial notice that that's a learned treatise, but it doesn't make it admissible, itself.

Upon G.S.G.'s subsequent appeal, the Court of Appeals of Minnesota agreed with the district court judge, finding that G.S.G.

cites no authority showing that the district court erred in its analysis of rule 803(18) and does not cite any other rule of evidence that applies to the Amnesty International publication. Therefore, we conclude that [G.S.G.] has not met his burden of demonstrating that the district court clearly abused its discretion in refusing to admit the publication, and we affirm the district court's evidentiary rulings.

-CM

Facebook Status -- Exonerated: Suspect's Facebook Update Corroborates Alibi In Brooklyn Robbery

I have written several posts on this blog (here, here, here, here, and here) about cases dealing with the admissibility of evidence from MySpace pages. A case out of New York, however, gives me my first opportunity to address the admissibility of evidence from a Facebook page. And indeed, it appears to be the first case in which a Facebook update has been used as alibi evidence.

On October 18th, 19 year-old Rodney Bradford learned that police were looking for him in connection with a robbery committed in Brooklyn at 11:50 a.m. the day before. Bradford claimed that he was in Harlem, visiting his father at the time, a claim supported by Mr. Bradford’s father, Rodney Bradford Sr., and his stepmother, Ernestine Bradford. As it turns out, Bradford had even stronger evidence corroborating his alibi.

According to Bradford, he was updating his Facebook page from a computer in his father's apartment in Harlem at the time of the robbery. Bradford's claim led the district attorney to subpoena Facebook for documentation that Bradford had updated his Facebook page from his father's apartment at the relevant time. The subpoena was successful as it uncovered that Bradford posted the message, "ON THE PHONE WITH THIS FAT CHICK......WHERER MY IHOP," at 11:49 a.m. on October 17th from his father's computer. 

According to defense attorney Robert Reuland, "It all corroborated our alibis....The Facebook thing was really the icing on the cake. I think, ultimately, it's what prompted the DA to dismiss." For their part, Facebook officials said they were "pleased" they were "able to serve as a constructive part of the judicial process." Meanwhile, according to attorney John Browning, "This is the first case that I’m aware of in which a Facebook update has been used as alibi evidence....We are going to see more of that because of how prevalent social networking has become."  

That's not to say, though, that the use of this type of evidence is new. As an article on the case noted,

With more people living their lives online and out loud, social media sites like Facebook, MySpace and Twitter, and online Web communications including photos and videos, are providing evidence in legal battles ranging from murder trials to employment lawsuits.

Up to now, social networking transactions have mostly been used as prosecutorial evidence, Mr. Browning said. He cited a burglar in September in Martinsburg, Pa., where the alleged burglar checked his Facebook page — and left it open. The police followed the digital trail to Jonathan G. Parker, 19, of Fort Loudoun, Pa., who was arrested.

That's also not to say that this type of evidence is uncontroversial. Joseph Pollini, who teaches in the Department of Law, Police Science and Criminal Justice Administration at John Jay College of Criminal Justice, said prosecutors should not have been so quick to drop the charges.

"With a username and password, anyone can input data in a Facebook page," he said. "Some of the brightest people on the Internet are teenagers," he said. "They know the Internet better than a lot of people. Why? Because they use it all the time. "So they could develop an alibi," he said. "They watch television, the movies, there is a multitude of reasons why someone of that age would have the knowledge to do a crime like that."

That said, Reuland challenged this argument, contending,

“This implies a level of criminal genius that you would not expect from a young boy like this; he is not Dr. Evil,"...adding that the Facebook entry was just “the icing on the cake,” since his client had the other alibis.

It will certainly be interesting to see how these types of social networking evidentiary issues play out of the next couple of years.

(Hat tip to my colleague Shahram Dana for the link)

-CM