EvidenceProf Blog

What Are Your Intentions?: Seventh Circuit Finds Prior Drug Crimes Admissible To Prove Intent Under Rule 404(b) In New Year's Eve Related Case

Federal Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

So, can the prosecution present evidence of a defendant's prior drug conviction(s) in a subsequent drug prosecution where intent is an element? That was the question faced by the Seventh Circuit in its recent opinion in United States v. Harris, 587 F.3d 861 (7th Cir. 2009). The court's answer? There is tension in its case law on the issue in general, but evidence of a defendant's prior drug conviction is always admissible in cases in which the defendant, while admitting possession of a drug, denies the intent to distribute it.

In Harris, 

a citizen approached three Chicago police officers on patrol and told them about suspicious activity in a nearby alley. The officers drove to the alley in their unmarked police car. There, the officers saw that after Jerome Harris noticed their car, he threw a clear plastic bag to the ground and began to walk away. The officers picked up the bag and discovered that it had twelve individual bags inside it. Each contained a white, rock-like substance. Harris was arrested on the suspicion, later confirmed, that the substance was illicit...

Harris told the officers that he knew of an apartment where guns and drugs were kept. Police went to the address Harris provided and found an inoperable .32 revolver. Harris also told one of the officers that he had stored two firearms that morning at the residence of his girlfriend, Porsche Andrews....Officers went to Andrews's apartment....After the officers' initial search did not yield any guns, the officers brought a handcuffed Harris into the home. Harris indicated the location of the guns to the officers, and the officers recovered a loaded .40 semi-automatic handgun and a loaded .45 pistol from a storage container inside Andrews's bedroom. In response to an officer's question of whether the guns were operable, Harris responded with something along the lines of, "Hell, yeah, they work. I shot them both on New Year's Eve."

Harris was thereafter convicted of being a felon in possession of a handgun and possession with the intent to distribute a mixture containing cocaine base in the form of crack cocaine. Harris subsequently appealed, claiming, inter alia, that the district court erred in allowing the prosecution to present evidence at trial that he had sold drugs on at least five occasions before his arrest. 

The Seventh Circuit disagreed, finding that the evidence of these prior drug crimes was admissible to prove Harris' intent under Federal Rule of Evidence 404(b). The court did acknowledge that "there is tension in our case law as to whether prior drug convictions are always admissible in a subsequent drug prosecution where intent is an element." The court found, however, that it did not need to resolve this tension because tension because Harris admitted that he possessed cocaine and simply denied that intended to distribute it. According to the court,

Under the circumstances of Harris's case, however, our cases are in harmony. "The most obvious justifiable situation in which prior convictions are admissible in drug prosecutions on the issue of intent are in those situations in which the defendant, while admitting possession of the substance, denies the intent to distribute it.  

I'm not sure that I agree with this conclusion because I think that jurors will use this evidence to conclude, "Once a drug dealer, always a drug dealer." But, as things stand, the Seventh Circuit will always find this evidence admissible.

-CM

Rejecting The Twinkie Defense: Court Of Appeals Of Utah Finds Expert Testimony On Intoxication Inadmissible To Establish Diminished Capacity

Probably the most famous trial where a defendant raised the defense of diminished capacity was the trial of Dan White for the shooting deaths of Mayor George Moscone and Supervisor Harvey Milk. This defense is much maligned because most people think that White was able to convince the jury that he was merely guilty of voluntary manslaughter and not murder in the first degree by using the "Twinkie defense" to prove diminished capacity, i.e., that he should not have been held fully responsible for the killings because he was "suffering" from the sugar rush of eating a lot of Twinkies. But that's not actually what happened. Instead, as Michael R. Dreeben notes in The Right to Present a Twinkie Defense, 9 Green Bag 2d 347, 348 n.5 (2006),

The "Twinkie defense" owes its name to the 1979 trial of Dan White in San Francisco for the shooting deaths of Mayor George Moscone and Supervisor Harvey Milk. In fact, White did not use a “junk food” defense, but instead argued diminished capacity because of his episodes of depression. White's allegedly poor diet played only a small part in his lawyers' attempt to explain his plunge into a depressed state that led him to snap. Nevertheless, the phrase "Twinkie defense" has entered the lexicon to describe a seemingly absurd defense strategy that somehow works. 

In its recent opinion in State v. Argumendo-Rodriguez, 2009 WL 4681285 (Utah. App. 2009), the Court of Appeals of Utah was presented with a quasi-Twinkie defense, but the court found the defense to be without merit.

In Argumendo-Rodriguez, Jesus Argumedo-Rodriguez was convicted for disarming a police officer. This disarming occurred after Argumedo-Rodriguez was pulled over on suspicion of driving under the influence, and "[t]here [wa]s no dispute that Argumedo-Rodriguez was extremely intoxicated when arrested and that he was physically impaired as a result." At trial, the court precluded Argumedo-Rodriguez from presenting the testimony of  expert witness, Dr. James L. Poulton, who he claimed would have testified "regarding the effect of alcohol on Argumedo-Rodriguez's intent to commit the crime."  

On Argumedo-Rodriguez's appeal, the Court of Appeals of Utah disagreed, finding that

testimony from Dr. Poulton was not germane to Argumedo-Rodriguez's defense of diminished capacity. To prevail on a diminished capacity or voluntary intoxication defense, Argumedo-Rodriguez had the burden to show that his "intoxication deprived him of the capacity to form the mental state necessary" for conviction on the charge of disarming a police officer....Thus, to prevail on a defense of diminished capacity, Argumedo-Rodriguez had to prove that, due to his intoxicated state, he did not intentionally attempt to take Officer Freir's weapon.

Dr. Poulton's testimony could not assist the trial court, as the trier of fact, in determining whether Argumedo-Rodriguez's level of intoxication negated the existence of Argumedo-Rodriguez's intent to take the gun. Rather than testifying as to Argumedo-Rodriguez's mental capacity, Dr. Poulton [would have] offered evidence about the effects of the alcohol on Argumedo-Rodriguez's physical ability to "follow through with any intent that he formed." That testimony is simply not relevant to whether Argumedo-Rodriguez was capable of forming the requisite intent.

In other words, under Utah Rule of Evidence 702, Dr. Poulton's testimony would not have "assist[ed] the trier of fact to understand the evidence or to determine a fact in issue," rendering it inadmissible.

-CM

As I Lay (Not Quite) Dying: Ohio Opinion Reveals Why Excited Utterance Exception Is Useful Backup To Dying Declaration Exception

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

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

Also like its federal counterpart, Ohio Rule of Evidence 804(B)(2) provides an exception to the rule against hearsay, in a prosecution for homicide of in a civil action or proceeding, for:

a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impeding death.  

The recent opinion of the Court of Appeals of Ohio, Seventh District, in State v. McGee, 2009 WL 4547716 (Ohio App. 7 Dist. 2009), underscores the fact that if you can't quite get a statement admitted as a dying declaration, you likely can get it admitted as an excited utterance.

In McGee, Gregory McGee was convicted of one count of murder and other crimes based upon the shooting death of Charles Bush. 

At a motions hearing..., the trial court received the testimony of Detective Douglas Bobovnyik for the purpose of ruling on [McGee]'s motion in limine to exclude Bush's alleged "dying declaration." According to his testimony, he responded to a call on the police radio involving a shooting....He found Bush lying on his back in the living room. He was the first officer on the scene....

According to Bobovnyik, there was one woman and two or three men in the room with Bush, including Mr. Tondo....Bush appeared to be shot in the chest just below the armpit on his left side....There was no bleeding outside of his body, but he was struggling to breathe. Based upon the location of the bullet wound, Bobovnyik believed that Bush was going to die....

Bobovnyik testified that he told Bush that he was shot in the side and "[t]hat's real serious."...He told Bush that he may not recover from his wounds, and Bush acknowledged that he was hurt "real bad" and that he might die...Bush identified "Greg McGee" as the man who shot him.

Based upon Bobovnyik's testimony, the court denied McGee's motion. Neither Martina Moore nor William Tondo testified at the motions hearing. Thereafter, at trial, 

Moore testified that Bobovnyik told Bush that, "it doesn't look good and he may not make it," but that Bush did not respond to Bobovnyik's statements....Tondo testified that Bobovnyik's conversation with Bush consisted of little more than the acknowledgement that "Greg McGee" was the man who shot him.  

After he was convicted, McGee appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial counsel failed to subpoena Moore or Tondo to testify at the motions hearing, which would have led to Bush's statement being deemed inadmissible at trial. According to McGee, their testimony would have contradicted Bobovnyik's testimony and shown that Bush's statements were not made while he believed his death to be impending.

The Court of Appeals disagreed, finding that "Even assuming that the trial court would have refused to admit Bush's statement as a dying declaration, the statement could have been admitted as an excited utterance." In other words, the startling event was the shooting, Bush was under the stress of the shooting when he spoke, and his statement concerned the shooting, rendering it admissible as an excited utterance.

As you can see from McGee, the excited utterance exception typically applies when the dying declaration doesn't quite apply. So, if you face a case where a speaker is knocking on heaven's door, but the door isn't yet open, you should be able to admit the speaker's statements as excited utterances even if they don't quite qualify as dying declarations.

-CM

Expert In Lay Witness Clothing: Louisiana Opinion Reveals Rule 704 Problem With Police Officers Testifying As Lay Witnesses

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

As the Advisory Committee Note to the amendment to Rule 701 makes clear, Rule 701(c) was added in the wake of the Supreme Court's opinion in Daubert v. Merrdll Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." I am equally worried now, however, that prosecutors are evading the requirements set forth in Federal Rule of Evidence 704 and state counterparts through the simple expedient of proffering an expert in lay witness clothing. A good example of this can be found in the recent opinion of the Court of Appeal of Louisiana, Fifth Circuit, in State v. Collins, 2009 WL 4640646 (La. App. 5 Cir. 2009).

In Collins, Dwight Collins, Jr., appealed his conviction of possession with intent to distribute heroin. That heroin (along with a razor, scale, sandwich bags, and money) was recovered by Detective David Canas and other employees of the Jefferson Parish Sheriff's Office from a hotel room from which Collins had just left.

After discussing his background, the prosecutor asked Detective Canas what he believed the packaging of the heroin was indicative of, based on his experience as a narcotics detective for six years and in making numerous narcotics arrests. Defense counsel objected, stating that the witness had not been qualified as an expert and could not render an opinion. The prosecutor said, "I'm asking his experience [sic] of six years as a narcotics detective, has he come across that type of packaging, and what has it meant to him." The trial judge said the witness could answer that question. Afterwards, Detective Canas testified, "That's for distribution purposes."

Detective Canas later testified without objection that, based on his experience, the scale and the razor were indicative of the sale of narcotics. Defense counsel did object when the prosecutor began to ask what the presence of sandwich bags indicated to him based on his experience. However, there was no ruling on that objection, and the detective continued his testimony, noting the sandwich bags were indicative of possession with intent to distribute.

The prosecutor subsequently asked Detective Canas what he believed was occurring when he saw the razor blade, digital scale, money, and the other items in the hotel room. The detective responded that he thought that narcotics were being sold. When asked why he arrested all three people, the detective replied that anyone who walked into that room would have knowledge that illegal narcotics activity was going on, as the drugs were in plain view and in sandwich bags. Furthermore, the detective stated he knew there were three people in the room.

On cross-examination, Detective Canas testified that he arrested the Defendant for possession with intent to distribute because of the way the heroin was packaged, "and the baggies, the scale, and all that."

After he was convicted, Collins appealed claiming, inter alia, that Detective Canas' testimony was improperly received under Louisiana Code of Criminal Procedure article 704, which provides that:

Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

According to the Court of Appeal of Louisiana, however, Collins faced a fundamental problem in this regard: Detective Canas was not qualified as an expert witness and thus testified as a lay witness. Now, I am not going to get into the issue of whether Detective Canas should have been able to offer the above testimony as a lay witness. Assuming, though, that he should have been able to offer this testimony, he clearly was a quasi-expert, and I don't see any reason why he should have been able to express opinions as to the guilt of the accused simply because he was an expert in lay witness clothing.

-CM 

Unlimited: Court Of Appeals Of Texas Opinion Reveals That Most Hearsay Admitted Under An Exception Is Not Subject To A Limiting Instruction

Texas Rule of Evidence 105(a) provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

As the recent opinion of the Court of Appeals of Texas, Houston, in Green v. State, 2009 WL 4575146 (Tex.App.-Houston [14 Dist.] 2009), makes clear, however, statements offered under an exception to the rule against hearsay are usually admissible for all purposes, meaning that they are not subject to limiting instructions.

In Green, Curtis Green, Jr. was convicted of murder after he allegedly stabbed Patrick Gims. Someone who allegedly saw the stabbing then called 911 and said, ostensibly with regard to the victim: (1) "That man ain't never did nothing to nobody. He may be drunk all the time but that man ain't never did nothing to nobody[;]" (2) "[t]hat man never did nothing to nobody, dog[;]" and (3) "[h]e never did nobody no harm." The trial court admitted these statements under the present sense impression exception to the rule against hearsay.

Now, obviously, these statements contained character evidence, but the trial court found that Green opened the door for their admission by injecting the issue of character into trial, and the Court of Appeals agreed. Green also "requested an oral limiting instruction telling the jury 'that they can only consider [the 9-1-1 tape] as the present-sense impression of the witness and you can't consider this as testimony for you to rely upon in convicting the defendant.'"  

The trial court refused to give such an instruction, and the Court of Appeals affirmed that decision on appeal. The Court of Appeals correctly found that

Statements admitted as present sense impressions or excited utterances are admissible for all purposes and are not subject to a limiting instruction. See Green v. State, No. 07-06-0367-CR, 2007 WL 923081, at *2 (Tex.App.-Amarillo March 28, 2007, no pet.) (mem. op., not designated for publication) (“Being an excited utterance, [the statement] was admissible free of any limiting instruction despite its supposed hearsay nature.”); Cockrell v. State, No. 04-05-00767-CR, 2006 WL 2955325, at *3 (Tex.App.-San Antonio Oct. 18, 2006, pet. ref'd) (mem. op., not designated for publication) (“A statement admissible as an excited utterance is admissible as an exception to the hearsay rule. Accordingly, if the trial court admitted the statements as excited utterances, the statements were admissible for all purposes and were not subject to a limiting instruction.”); Alli v. State, No. 01-04-00448-CR, 2005 WL 428231, at *3 (Tex.App.-Houston [1st Dist.] Feb. 24, 2005, no pet.) (mem. op., not designated for publication) (“The record shows that Magdalene's statements to the peace officers were admissible as excited utterances. A limiting instruction would thus have been improper because her statements were admitted for all purposes at trial and could be properly used by the jury as primary evidence of appellant's guilt.”). Therefore, the trial court did not err in denying appellant's request for a limiting instruction.

In other words, when a statement meets a hearsay exception, it is admissible to prove the truth of the matter asserted, not anything less. Thus, there typically is no basis for requesting a limiting instruction when hearsay is admitted under an exception to the rule against hearsay.

-CM

Without Prejudice: Court Of Criminal Appeals Of Tennessee Finds Trial Court Improperly Failed To Weigh Prejudice In Felony Impeachment Ruling

Yesterday's post noted that Minnesota's "whole person" approach fails to take into account the particular probative value of a prior conviction. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Hall, 2009 WL 4642585 (Ten.Crim.App. 2009), dealt with the opposite problem: a court failing to take into the particular prejudicial effect of a prior conviction.

In Hall, a jury convicted Charles Hall, of two counts of aggravated robbery, and the trial court sentenced him to life without parole as a repeat violent offender. Hall thereafter appealed, claiming, inter alia, that that the trial court erred in ruling that eight prior aggravated robbery convictions would be admissible should the he choose to testify.

The Court of Criminal Appeals of Tennessee noted that the issue was governed by Tennessee Rule of Evidence 609(a), which states that:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:

(1) The witness must be asked about the conviction on cross-examination. If the witness denies having been convicted, the conviction may be established by public record. If the witness denies being the person named in the public record, identity may be established by other evidence.

(2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.

(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.

With impeachment, probative value is directly correlated to how much bearing the prior conviction has on witness (dis)honesty. Conversely, prejudicial effect is inversely correlated to how similar the prior conviction is to the crime charged. Why? The more similar the two, the more likely that the jury will misuse the prior conviction as propensity character evidence. Thus, in Hall, Hall's prior robbery convictions were highly prejudicial in his robbery trial because the jury likely would have used them to conclude, "Once a robber, always a robber."

The problem in Hall was that

[t]he trial court did not consider the similarity between the instant charge and the prior convictions when balancing probative value versus prejudicial effect....While crimes involving dishonesty are probative of the defendant's credibility, the probative value may not always outweigh the prejudicial effect. We conclude that the trial court erred in not considering whether the defendant's prior convictions were so similar that the jury might use the convictions as propensity evidence....

Nonetheless, the appellate court found that the prosecution presented overwhelming evidence of Hall's guilt and thus found harmless error and affirmed his conviction.

-CM

Just Forget It: Oklahoma Court Finds Calendar Entry About Nike Air Max 2 Shoe Purchase Admissible As A Recorded Recollection In Christmas Related Case

Like Federal Rule of Evidence 803(5), 12 O.S.2001 Section 2803(5) provides an exception to the rule against hearsay for:

A record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. The record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.  

As the recent opinion of the Court of Criminal Appeals of Oklahoma in Sanchez v. State, 2009 WL 4797497 (Okla.Crim.App. 2009), makes clear, the exact wording of this rule is very important. In order for a "recorded recollection" to be admissible, the witness does not need a significant lack of recollection, just an insufficient recollection to testify fully and accurately.

In Sanchez, Anthony Castillo Sanchez was convicted of murder in the first degree, rape in the first degree, and forcible sodomy based upon acts allegedly committed against Jewell Jean "Juli" Busken at her apartment after she had returned from exchanging Christmas gifts with her college friends.  At trial, evidence was presented

tending to show that shoe prints at the scene of the Busken murder were similar to a pair of Nike shoes owned by [Sanchez]. Investigators observed and photographed two pairs of shoe prints in the soil leading to where Juli Busken's body was found. One pair of shoe prints correlated to hiking boots worn by Ms. Busken. The other pair of shoe prints led down to the killing scene and then back toward the road. Police compared photographs of these prints to a variety of shoes and came to believe the soles were similar to the Nike Air Max 2. Photographs of the questioned shoe print were admitted at trial, along with inked imprints and acetate overlays of the Nike Air Max 2 shoes provided by the Nike Corporation. The State then presented testimony from [Sanchez]'s ex-girlfriend, Christin Sezter, who read to the jury an October 14, 1996, entry from her personal calendar indicating that she and [Sanchez] had purchased matching Nike shoes that day. The District Court also admitted the page from Ms. Setzer's calendar in evidence.

After he was convicted, Sanchez appealed, claiming, inter alia, that the prosecution failed to establish that Sezter had insufficient recollection before admitting her calendar entry as a recorded recollection. The Court of Criminal Appeals of Oklahoma disagreed, finding that

The witness testified that she remembered, independent of her calendar entry, the purchase of matching Nike shoes with [Sanchez] in 1996. On cross-examination, defense counsel elicited that police had shown the witness a pair of Nike Air Max 2 shoes and asked her if the shoes were similar to the ones bought by [Sanchez] in 1996. She testified the shoes shown to her by police were similar to [Sanchez]'s, but she could not positively say the shoes were the exact model purchased by [Sanchez]. While the evidence of [Sanchez]'s purchase of the shoes came from the witness' personal knowledge, it is apparent that the witness could not have remembered the specific date in October, 1996, on which the shoes were purchased over a decade earlier, without reference to the entry in her calendar. For this purpose, the witness' reading of the calendar entry was admissible under the hearsay exception for a past recollection recorded.

In other words, even though Sezter did not have significant lack of recollection, she had an insufficient recollection to testify fully and accurately, rendering the calendar note admissible as a recorded recollection. Of course, as the above language of the rule makes clear, this merely meant that the prosecution could have had Sezter read the note to the jury; the prosecution should not have been allowed to admit the note as an exhibit to the jury. The Court of Criminal Appeals thus acknowledged that the trial court erred in this regard but found that this error was harmless.

-CM

Later On, We'll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions

Like its federal counterpart, Indiana Rule of Evidence 801(d)(2)(E) provides that

[a] statement is not hearsay if...[t]he statement is offered against a party and is... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

As the text of this Rule makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated. And that is exactly what the Court of Appeals of Indiana found in determining that the trial court erred in admitting an alleged co-conspirator admission in its recent opinion in French v. State, 2009 WL 4842607 (Ind.App. 2009). I thus agree with the court's conclusion on that issue, but I am not sure that I agree with the court's conclusion that this error was harmless.

In French, Anthony French was convicted of murder and conspiracy to committ murder. The victim of that murder was Teresa French, Anthony's estranged wife, and the evidence presented at trial established that

French told [Jess David] Woods about the situation with Teresa and that the way to end his problems was to have Teresa killed. Woods...told French he could help him. French told Woods that he wanted Teresa killed in the garage at the Cromer Street residence because "he didn't want the house shot up or blood all over the place."...French wanted Teresa killed before all of his property was sold and his marriage was dissolved. He also wanted her killed while the three children were out of the house, and while he was at work. [Oren] Johnson lent French $2500.00, which French gave to Woods as a down payment on the killing. Johnson overheard the agreement that French would pay Woods $5000.00 to "tak[e] Teresa off the face of this earth."

Woods later showed French a .22 caliber pistol with a homemade silencer and an attached canvas bag that caught the ejected shells. French and Woods shot off the gun in Johnson's backyard in early May 1993. French told Woods that this was the gun that would help them get away with murder. French also told Woods to lure Teresa into the garage by posing as a housing inspector who needed to look at the garage for his report.

In the spring of 1993, French told long-time friend Rick Engle and co-worker Joe Haskins that Teresa had filed a dissolution petition and that he was going to kill her. He also told Hank Roe, a neighbor at the Cromer Street residence, that he was losing his house and boat and that he was going to kill Teresa so he could have everything. French also told Roe to keep his girlfriend away from the Cromer Street house.

The closing for the sale of the Cromer Street house was scheduled for May 14, 1993, and the final dissolution hearing was scheduled for June 8, 1993. On the morning of May 13, 1993, Teresa was at home alone. Her two youngest children were out of town with her mother, and her oldest child was at school. French was at work at Borg Warner. At approximately 10:25 a.m., Teresa was talking on the phone to her friend Ginger Engle when a man wearing a suit knocked at the door. Engle overheard the man tell Teresa he was an inspector. Teresa told Ginger she would call her back. Teresa's body was found later that day in the garage. She had been shot multiple times in the head and chest with a .22. No shell casings were found at the scene.

The French opinion doesn't tell us exactly how all of these facts were established, but it does tell us that

at trial, the court allowed Woods' former spouse, Mary Dabbs, to testify over French's objection that in 1997, she and Woods went to Johnson's house and she overheard Johnson and Woods talking about Teresa's murder. On the way home, Dabbs asked Woods what he had been talking about. Woods pushed Dabbs against the car window and told her that he had killed Teresa and that he would kill her too if she ever told anyone what had happened. Woods told Dabbs that he went over to the Frenches' house dressed in a suit, and that Teresa thought he was some kind of inspector. He further told Dabbs that he killed Teresa in the garage. Dabbs also testified that she and Woods subsequently visited Terry Fisher in Indianapolis who was supposed to have gotten rid of the gun for Woods. Fisher still had the gun, and Woods told him to "move it on down the line, get rid of it."

After he was convicted, French appealed, claiming that Dabbs' testimony was improperly admitted because Woods' statements did not constitute co-conspirator admissions. The Court of Appeals of Indiana agreed, finding that

Here, Teresa was murdered several years before Woods made the statements about which Dabbs was permitted to testify. Thus, the statements were made after the conspiracy had been effected and the crime had been perpetrated, not during its course. The trial court therefore erred in allowing Dabbs to testify about these statements.

Nonetheless, the court found that this error was harmless, concluding "that Dabbs' testimony was merely cumulative of other testimony that Woods impersonated a housing inspector and murdered Teresa in the garage." Now if this other testimony was testimony by eyewitnesses who saw the crime or testimony by witnesses who heard a similar admission, I would agree. But if the other testimony was not that strong, I have difficulty agreeing with a finding of harmless error.

-CM 

Mistaken Identification: Supreme Court Of Utah Reverses Past Precedent, Allows Expert Testimony On Inaccuracy Of Eyewitness Identifications

I have done several posts on this blog (here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.

In Clopten, Deon Lomax Clopten, an African-American man,

was convicted of first-degree murder for the shooting of Tony Fuailemaa outside a Salt Lake City nightclub. At trial, Clopten maintained that someone else-a man named Freddie White-was responsible for the shooting. The testimony of several individuals who witnessed the murder and who identified Clopten as the perpetrator countered this assertion. In the absence of strong physical or forensic evidence against Clopten, the State leaned heavily on the eyewitness testimony to secure  

While the trial court admitted this eyewitness identification testimony, it precluded Clopten from presenting the testimony of

Dr. David Dodd, an expert on eyewitness identification. Clopten intended to elicit testimony from Dr. Dodd regarding various factors that can affect the accuracy of eyewitness identifications, including cross-racial identification, the impact of violence and stress during an event, the tendency to focus on a weapon rather than an individual's facial features, and the suggestive nature of certain identification procedures used by police.

On Clopten's subsequent appeal, the Supreme Court of Utah noted that prior Utah precedent had created a de facto presumption against the admission of expert testimony on eyewitness (mis)identification. In State v. Long, 721 P.2d 483, 490 (Utah 1986), the Utah Supremes did acknowledge that “[a]lthough research has convincingly demonstrated the weaknesses inherent in eyewitness identification, jurors are, for the most part, unaware of these problems.” Nonetheless, despite recognizing that "a cautionary instruction regarding the accuracy of the identification" was plainly not a panacea, the court "left undisturbed previous holdings that discouraged the use of expert testimony as an alternative to jury instructions."  

In Clopten, the Utah Supremes determined that this presumption had to end. According to the court,

"'[T]he vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.'"...Decades of study, both before and particularly after Long, have established that eyewitnesses are prone to identifying the wrong person as the perpetrator of a crime, particularly when certain factors are present....For example, people identify members of their own race with greater accuracy than they do members of a different race....In addition, accuracy is significantly affected by factors such as the amount of time the culprit was in view, lighting conditions, use of a disguise, distinctiveness of the culprit's appearance, and the presence of a weapon or other distractions....Moreover, there is little doubt that juries are generally unaware of these deficiencies in human perception and memory and thus give great weight to eyewitness identifications....Indeed, juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy....That the empirical data is conclusive on these matters is not disputed by either party in this case and has not been questioned by this court in the decisions that followed Long.  (emphasis added).

That left the court with the question of "whether expert testimony is generally necessary to adequately educate a jury regarding these inherent deficiencies" or whether the existing methods -- cross-examination of eyewitnesses and cautionary instructions -- are sufficient. According to the court, expert testimony is generally necessary and 

performs two beneficial functions. First, it teaches jurors about certain factors-such as “weapon focus” and the weak correlation between confidence and accuracy-that have a strong but counterintuitive impact on the reliability of an eyewitness. In other words, the testimony enables jurors to avoid certain common pitfalls, such as believing that a witness's statement of certainty is a reliable indicator of accuracy. Second, it assists jurors by quantifying what most people already know. An expert may discuss, for example, the degree to which accuracy is affected by a disguise or a long lapse between the crime and the identification. Importantly, expert testimony does not unfairly favor the defendant by making the jury skeptical of all eyewitnesses. In fact, when a witness sees the perpetrator under favorable conditions, expert testimony actually makes jurors more likely to convict. When expert testimony is used correctly, the end result is a jury that is better able to reach a just decision.

The court found that these functions were essential because (a) cross-examination may be ineffective when the eyewitness has made a mistaken identification in good faith, and (b) "research...has shown that a cautionary instruction does little to help a jury spot a mistaken identification." The court also found that the majority of other courts at the state and federal levels had recognized that eyewitness expert testimony is both reliable and helpful to the jury. This finding thus allowed the court to conclude that eyewitness testimony by a qualified expert is in accord with Utah Rule of Evidence 702.

Applying this conclusion to the case before it, the Supreme Court of Utah found that the trial court abused its discretion by precluding Dr. Dodd from testifying, holding that

the circumstances found in the Clopten trial are exactly those under which the testimony of an eyewitness expert is most helpful to a jury. Dr. Dodd, the proffered expert in this case, could have testified about research into how eyewitness identification of a stranger is affected by stress, disguises, darkness and length of exposure. He could have quantified the impact of factors such as weapon focus and cross-racial identification. Dr. Dodd could also have testified as to the impact that comments made by police officers may have on an eyewitness making an identification. Additionally, he could have discussed a common phenomenon in which witnesses fill gaps in their memory with information obtained later and thus, over time, become more and more certain of identifications that may be inaccurate. All of these factors were present here, and thorough testimony by a qualified expert as to their nature would have significantly assisted the jury in evaluating the accuracy of the State's most important witnesses. In addition, the critical importance of the eyewitnesses here forces the conclusion that the proffered testimony might have had a "substantial influence in bringing about a different verdict." It was therefore unreasonable for the trial court to rule that such expert testimony would be superfluous. While we acknowledge that the trial court followed established precedent, we hold that the court of appeals erred in concluding that the exclusion of Dr. Dodd's testimony was not an abuse of discretion.

-CM

The Best Of Everything, Take 3: Evidence Professors Submit Amicus Brief In Best Evidence Case

A few days ago, I posted an entry about the filing of a petition for a writ of certiorari with the Supreme Court in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009), the case in which I think that the Fourth Circuit made an erroneous Best Evidence ruling. Thereafter, Matthew R. Segal, the Assistant Public Defender who filed the petition, forwarded me an amicus brief submitted in support of the petition by Georgetown University Law Center  Professor Paul Rothstein and University of California, Berkeley, School of Law Professor Eleanor Swift. I strongly agree with the points made in the brief and have provided a link below from which reader can download the brief.

Download Amicus Brief

-CM

Make Me Whole, Take 4: Court Of Appeals Of Minnesota Calls Out Supreme Court Of Minnesota Over "Whole Person" Approach To Impeachment

Wow! I have railed against Minnesota's "whole person" approach to the felony conviction impeachment rule on several occasions, with my my most recent post on the topic coming a few days ago. Well, it appears that someone agrees with me. That someone? The Court of Appeals of Minnesota in its recent opinion in State v. Peters, 2009 WL 4795971 (Minn.App. 2009).

In Peters, Melvin Peters was convicted of third-degree burglary. At trial, after Peters testified, the trial court permitted the prosecution to impeach Peters through evidence of his prior felony conviction for violating an order for protection obtained against him by D.H., the same person whose home Peters allegedly burglarized. On appeal, Peters claimed that the trial court admitted this conviction in violation of Minnesota Rule of Evidence 404(a), which states that Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion."  

The Court of Appeals of Minnesota, however, noted that evidence of the conviction could have been admissible under Minnesota Rule of Evidence 609(a)(1), which states that:

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

So, according to the Court of Appeals, how much probative value did the conviction have for impeachment purposes? Its answer: "None." According to the court, 

Under a strict approach to rule 609(a)(1)..., it is not readily apparent that the crime of violation of an order for protection has any impeachment value. We strain to imagine how such a conviction can reflect on the likelihood that a witness will testify truthfully.

So the court reversed, right? Wrong. The appellate court proceeded to find that it could not

fault the district court for allowing this impeachment evidence because Minnesota generally has chosen to follow an impeachment rule that likely is at odds with rule 609(a)(1). In St. Paul v. DiBucci, 304 Minn. 97, 1000, 229 N.W.2d 507, 508 (1975), a case decided before the adoption of the code of evidence, the supreme court held that the rationale for allowing evidence of a prior conviction for impeachment is that the jury is entitled to see the "whole person" of the witness. That certainly appears to be a character-evidence rationale, for it invites the jury to see the witness as a criminal who committed a previous crime, or maybe crimes, and has done so again. In contrast,  rule 609 permits the jury to see a "limited person," that is, a person who has committed a crime that logically and reasonably shows something of the person's ability, capacity, or disposition for truth telling. Despite our view, DiBucci remains the law in Minnesota, and Peters's prior conviction of violation of an order for protection shows something of his "whole person" and does not run afoul of that law. The district court did not abuse its discretion in allowing the prior conviction into evidence for impeachment.

I will say it again. Wow! The Court of Appeals of Minnesota called out the Supreme Court of Minnesota. It held that the "whole person" approach is at odds with Minnesota Rule of Evidence 609(a)(1). And it held that by using this approach, Minnesota courts are improperly allowing for the admission of propensity character evidence. And you know what? It was absolutely right. Let's hope that the Minnesota Supremes finally realized that the emperor has no clothes and repudiates DiBucci and the "whole person" approach.

-CM 

Incomplete Ruling: Third Circuit Opinion Implies That Violations Of Rule 106 Can Never Lead To A Reversal On Appeal

Federal Rule of Evidence 106, the rule of completeness, provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

There is a split among courts as to whether this is merely a rule regarding timing or also a rule regarding admissibility. In other words, all courts agree that when a party introduce a writing or recorded statement or a part thereof, the Rule allows the opposing party to contemporaneously present any other part or any other writing or recorded statement, as long as the part or statement is otherwise admissible. Some courts claim, however, that the Rule also allows for the admission of any other part or any other writing or recorded statement, regardless of whether the part or statement is otherwise admissible. In other words, these courts find that the Rule can transform otherwise inadmissible evidence into admissible evidence. Other courts disagree with this conclusion, but, as noted, all courts agree that the Rule is a rule regarding timing. And yet, in its recent opinion in United States v. Evans, 2009 WL 4810545 (3rd Cir. 2009), the Third Circuit seemed to imply that an erroneous ruling precluding a party from contemporaneously presenting evidence can never form the basis for a reversal.

In Evans, Kenneth A. Evans was convicted of three counts of filing false tax returns and two counts of tax evasion. To prove that Evans committed these crimes, the prosecution presented into evidence, inter alia, the "Employee's Withholding Allowance Certificate," IRS Form W-4, completed by Evans in the years 2002, 2003, and 2004. Meanwhile, the trial court denied Evans' motion to contemporaneously "admit letters and a videotape Evans attached to his W-4s, including letters to his employer explaining his view that he had no income tax liability and instructing his employer not to withhold any taxes."

On Evans' subsequent appeal, the Third Circuit noted that the issue was governed by Federal Rule of Evidence 106 and noted that the contemporaneous admission of additional evidence is compelled under the Rule "'if it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.'" 

The Third Circuit acknowledged Evans' argument "that failure to include his writings and the video with the Form W-4s gave the jury a distorted and misleading view, as Evans incorporated them specifically to provide his reasoning for completing the forms in the manner he did." Nonetheless, the Third Circuit agreed with the trial court that "the Form W-4 alone was not so misleading or unfairly prejudicial as to warrant application of Rule 106."

I have no problem with this holding of the court, but I do have a problem with the court's later conclusion. According to the court,

Even were we to assume this was an abuse of discretion, any conceivable error was harmless....Here, one of the letters attached to a Form W-4 was discussed in detail during cross-examination of Evans' employer's corporate counsel....Moreover, Evans testified about various letters he wrote to the IRS containing largely the same arguments he made in letters attached to the Form W-4s. Evans opined at length at trial about his reasons for completing the Form W-4s as he did. Therefore, any error was harmless.

What the court seemed to be saying was that any error by the district court in not allowing Evans to contemporaneously present evidence of his attachments to his W-4s was necessarily harmless because he was allowed to present this evidence at other points during trial. But the whole point of the rule of completeness is that, in some circumstances, it is unduly prejudicial to disallow an opposing party from giving the jury a contemporaneous, complete understanding of a statement introduced by the proponent. I thus question whether the Third Circuit would ever find that a violation of the Rule would ever lead to a reversal.

-CM

Article Of Interest: No Strict Rules Of Evidence In Labor And Employment Arbitration, By Professor Michael Z. Green

I have written several previous posts on this blog about cases in which the Federal Rules of Evidence or state counterparts do not apply (see, e.g., here, here, here, here, and here). What I have found in most of these cases, though, is that the judge will still look to the principles underlying the rules of evidence in making evidentiary rulings. For instance, in disability adjudications, many Administrative Law Judges make an inquiry similar to the Rule 702 inquiry in determining whether to admit vocational expert testimony (although there is a split on the issue). In a Board of Veterans' Appeals case from earlier this year, a court looked to Federal Rule of Evidence 803(7) for persuasive guidance on an evidentiary issue. And, under the residuum rule, many administrative judges will end up applying the hearsay rules to determine the propriety of administrative proceedings.

Before reading the recent terrific article, No Strict Rules of Evidence in Labor and Employment Arbitration, 15 Tex. Wesleyan L. Rev. 533 (2009), by Texas Wesleyan University School of Law Professor Michael Z. Green, I would have expected that the same held true in labor and employment arbitration proceedings. As the article makes clear, however, this has not been the case, and arbitrators need to change their ways.

In the introduction to the article, Professor Green lays out the the thesis for the article and what led him to write it. According to Professor Green,

As an evidence law professor and a labor and employment arbitrator, I have examined the complexity in applying the rules of evidence in an arbitration setting. My experience and research revealed a clear need to identify the appropriate considerations when applying the rules of evidence in arbitration proceedings. Both advocates and arbitrators can benefit from this clarity.

Professor Green then opens Part II of the article by noting that the issue of "[w]hether an arbitrator applies the rules of evidence usually depends on whether the parties have contractually agreed to do so." Of course, this begs the question of whether the rules of evidence should apply at arbitration proceedings, and Professor Green contends that "when arbitration occurs, as with bench trials, the need for strict compliance with the rules of evidence is obviated by the fact that there is no jury to be shielded from certain types of evidence." 

In fact, in Part II of the article, Professor Green contends that if arbitrators were to place too much emphasis on formal rules of evidence, it would take

away from some of the key reasons that parties agree to pursue resolution of their disputes through arbitration including informality, shorter time, and less costs. If the rules of evidence had to be strictly applied, this would make the arbitration process much more formalistic and it would add to the time and expense of completing the process which detracts from the purported benefits of arbitration.

As an example, Professor Green notes that

it has been argued that because of the therapeutic value of arbitration as a form of workplace dispute resolution, employees should be allowed to have some voice by telling their story even if it involves some aspects of information that would be excluded under the rules of evidence.

At the same time, Professor Green argues that 

this therapeutic value should also be balanced with the arbitrator's obligation to provide a fair and efficient hearing to all parties. The arbitrator should not allow all forms of evidence merely for its therapeutic value when this action could be perceived as acting with partiality to one side or to the arbitrator who benefits by receiving more compensation by extending the time for the hearing.

In Part IV of the article, however, Professor Green indicates that arbitrators are not engaging in this balancing. Rather, when an advocate objects to the admission of evidence during an administrative proceeding, the typical arbitrator response is to overrule the objection and merely say, "I'll take it for what it's worth." According to Professor Green, such rulings causes advocates to "lose confidence in the fairness or the arbitration process" and are "counterproductive to the goals of certainty along with the relatively inexpensive costs and speed in choosing arbitration to resolve the dispute." Professor Green thus posits that

arbitrators must say more than "I'll take it for what it is worth." Instead, arbitrators should tell the parties what he or she feels about the quality of the evidence based upon the arguments presented. An arbitrator could say the following in response to a hearsay objection: "Under the circumstances, this evidence will be admitted. However, based upon the arguments presented, this evidence will have little weight given its unreliability as hearsay that appears to have no appropriate exception."

Professor Green then concludes that

By admitting and considering the evidence for its limited value and communicating that to the parties, the arbitrator does not unnecessarily exclude evidence based upon rote application of the rules of evidence. The arbitrator also recognizes the underlying principles of various rules of evidence and informs the parties of how those principles may guide the arbitrator in assessing the evidence presented during the hearing. In adopting this approach, strict compliance with the rules of evidence would not be a component of arbitration. But, arbitrators could certainly apply the principles underlying the rules of evidence and respond to thorough evidentiary objections made by the parties' advocates by giving guidance as to how those principles will shape the arbitrator's consideration of the evidence in issue at the hearing. Then the benefits of informality, less costs, and certainty can still be adequately achieved in arbitration while recognizing that lack of judicial review, a focus on juror considerations, and the need for flexibility demands that literal application of the rules of evidence should not occur in labor and employment arbitration.

I highly recommend the article to those interested in this area of the law, and I especially hope that arbitrators read it and alter the way that they handle evidentiary issues. I sent an e-mail to Professor Green asking about what led him to write the article, and he responded,

I had joined a panel for one of the private ADR service providers a couple of years ago as a labor arbitrator and the service provider held a training session where they brought in advocates who represent both employers and unions.  One of their pet peeves involved concerns about arbitrators not responding to their legitimate evidentiary objections and merely saying, "I'll take it for what it is worth."  That was what led me to want to write the article. 

-CM

Make Me Whole, Take 3: Minnesota Opinion Involves Yet Another Disastrous Application Of Minnesota's "Whole Person" Rationale

I have done a couple of previous posts (here and here) about Minnesota's wrongheaded "whole person" approach to felony conviction impeachment, and I am going to continue posting about it until Minnesota courts abandon this horribly misguided approach. The latest example of Minnesota's miscarriage of justice is the opinion of the Court of Appeals of Minnesota in State v. Atkinson, 2009 WL 4573726 (Minn.App. 2009).

In Atkinson, Kenneth Atkinson, Jr. was convicted of first-degree criminal sexual conduct. At trial, "the prosecutor sought to impeach [Atkinson] with evidence of his two felony convictions, one for a weapons offense and the other for a terroristic-threats offense." The trial court held "that allowing evidence of both convictions would be unfairly prejudicial but allowed the evidence of the terroristic-threats conviction." 

After he was convicted, Atkinson appealed, claiming, inter alia, that the court improperly permitted this impeachment.  According to the Court of Appeals of Minnesota, the issue was governed by Minnesota Rule of Evidence 609(a), which states that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.    

Like many courts, Minnesota courts apply a five factor test for determining whether such a conviction is admissible for impeachment purposes:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue. 

As they say, though, the devil is in the details. In analyzing the first factor, most courts analyze how much bearing the prior crime has on witness (dis)honesty. Thus, crimes of violence are thought to have low impeachment value and property crimes are thought to have high(er) probative value. Atkinson might have found some success in these courts because he argued on appeal that "his prior conviction d[id] not involve dishonesty, and, therefore, its impeachment value was minimal, at best."  

Minnesota courts, however, do not follow this approach. Instead, in State v. Brouillette, 286 N.W. 2d 702, 707 (Minn. 1979), the Supreme Court of Minnesota found that "[j]ust because a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value." The court then explained "that impeachment by prior crime aids the jury by allowing it 'to see 'the whole person' and thus to judge better the truth of his testimony.'" In other words, according to Minnesota courts, any felony conviction, regardless of whether it has any relation to truth or falsity, has impeachment value, making the first factor (almost) always favor admission.

According to the court in Atkinson, Atkinson

argued that this "whole person" rationale has been criticized and that overly permissive use of prior convictions for impeachment may lead to erroneous convictions. But knowledge that a jury may improperly use evidence of a prior conviction does not permit us to disregard supreme court precedent. Under Brouillette, [Atkinson]'s prior conviction is probative of credibility.

This makes no sense. What is the point of the first factor if it (almost) always favors admission? One of the critics of Minnesota's "whole person" rationale is William Mitchell College of Law Professor Ted Sampsell-Jones, who wrote in Minnesota's Distortion of Rule 609, 31 Hamline L. Rev. 405, 415-16 (2008), that "especially in more recent cases, Minnesota courts do not even recognize in passing that various crimes have varying degrees of probative value. Rather, they simply cite the whole person doctrine and conclude that the first factor favors admission--period."

-CM

Not So Refreshing, Take 2: Minnesota Opinion Reveals Difference Between Minnesota And Federal Rule of Evidence 612

Federal Rule of Evidence 612 provides that if a "writing" is used to refresh a witness' recollection,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

The recent opinion of the Court of Appeals of Minnesota in State v. Mashek, 2009 WL 4573703 (Minn.App. 2009), reveals an important distinction between Minnesota Rule of Evidence 612 and its federal counterpart.

In Mashek, Dellrae Mashek was convicted of of two counts of first-degree arson in connection with a fire at her deli and variety store.

On February 3, 2006, [Mashek] was interviewed by [Fire Marshal John] Steinbach and Officer Jeff Stadum. The interview was taped and a transcript was prepared. During trial, the prosecutor asked Steinbach and Officer Stadum about the statements [Mashek] made during the February 3 interview. When counsel for [Mashek] cross-examined Officer Stadum about the statements, the transcript of the February 3 interview was marked as an exhibit. The transcript was then used by Officer Stadum to refresh his memory during re-direct by the state.

After the close of the state's case, [Mashek] moved to introduce the recording of [Mashek]'s February 3 interview. [Mashek] claimed that it was not being offered for proof of the matter asserted, but "to show the context in which the statement was given." The prosecutor objected on the basis that her statements could not be admitted without [Mashek] being subject to cross-examination. The district court agreed and denied [Mashek]'s motion to admit the recording.

After Mashek was convicted, she appealed, but the Court of Appeals of Minnesota agreed with this ruling. The problem for Maskek is that Minnesota Rule of Evidence 612 merely provides that if a "writing" is used to refresh a witness' recollection,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and if otherwise admissible to introduce in evidence those portions which relate to the testimony of the witness (emphasis added).

The bolded portion of the Minnesota rule distinguishes it from its federal counterpart, which allows the adverse party to introduce the refreshing "writing," regardless of whether it is "otherwise admissible." I prefer the federal rule. Clearly, in Mashek, the prosecution used the transcript to refresh the recollection of Officer Stadum and allow him to present substantive testimony implicating Mashek. That being the case, why should Mashek be limited to using the transcript to cross-examine him? It seems that fairness would require that Mashek be allowed to use the transcript for the same purpose as the prosecution.

-CM

Not So Refreshing: New Jersey Opinion Reveals Key Difference Between Federal And New Jersey Rule of Evidence 612

Federal Rule of Evidence 612 indicates that:

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

As the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Kirk, 2009 WL 4547584 (N.J.Super.A.D. 2009), makes clear, there is an important distinction between New Jersey Rule of Evidence 612 and its federal counterpart.

Now, the facts in Kirk itself were pretty confusing and involved a co-defendant's admission which otherwise would have been inadmissible under the Bruton doctrine, but which the prosecution was allowed to use to refresh the recollection of the other defendant after he opened the door by referencing the confession himself. The court's opinion found some problems with the method of refreshment used by the prosecution but ultimately affirmed the defendant's conviction. All that I really care about, though, is that the court referenced New Jersey Rule of Evidence 612, which indicates that:

Except as otherwise provided by law in criminal proceedings, if a witness while testifying uses a writing to refresh the witness' memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing for inspection and use in cross-examining the witness. The adverse party shall also be entitled to introduce in evidence those portions which relate to the testimony of the witness but only for the purpose of impeaching the witness. If it is claimed that the writing contains material not related to the subject of the testimony, the court shall examine the writing in camera and excise any unrelated portions. If the witness has used a writing to refresh the witness' memory before testifying, the court in its discretion and in the interest of justice may accord the adverse party the same right to the writing as that party would have if the writing had been used by the witness while testifying. (emphasis added).

As the bolded language makes clear, when a party uses a(n otherwise inadmissible) "writing" to refresh the recollection of a witness under New Jersey Rule of Evidence 612, the opposing party can only introduce those portions which relate to the testimony of the witness for the purpose of impeaching the witness. Conversely, when a party uses a(n otherwise inadmissible) "writing" to refresh the recollection of a witness under Federal Rule of Evidence 612, the opposing party can introduce those portions which relate to the testimony of the witness for the purpose of impeaching the witness and to prove the truth of the matter asserted in the "writing."

Contrasting the two Rules, I think that I agree more with the federal rule. If a party is going to use a "writing" to refresh the recollection of a witness and allow the witness to provide substantive testimony, I think that opens the door for the adverse party to use the "writing" substantively if the "writing" would help its case. 

-CM

The Best Of Everything, Take 2: Federal Public Defender Files Petition For Writ Of Certiorari With Supreme Court In Best Evidence Case

Back in June, I posted an entry about the Fourth Circuit's recent opinion in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009). In Smith, Cordell Smith was convicted of possessing with intent to distribute a quantity of crack cocaine, using and carrying one or more firearms during and in relation to a drug-trafficking crime, and possessing one or more firearms, having been previously convicted of a felony. To prove the interstate nexus element of the felon in-possession count, the government presented the testimony of Special Agent Andrew Cheramie of the ATF that firearms recovered from Smith's apartment had been manufactured in states other than North Carolina. Smith's attorney objected to the proposed testimony of Special Agent Cheramie on the ground that it would violate Federal Rule of Evidence 1002. He argued that Cheramie's testimony, which was based on written reference materials and ATF computer databases, none of which were offered into evidence, violated the Best Evidence Rule. The district court overruled the objection and allowed Cheramie to testify without requiring him to introduce any reference materials into evidence. 

The Fourth Circuit subsequently affirmed, and I disagreed with its holding, concluding that:

Clearly, the government sought to prove the contents of the writings and other materials from which Cheramie learned that firearms recovered from Smith's apartment had been manufactured in States other than North Carolina. As Smith noted, Cheramie had no independent personal knowledge of where those firearms were manufactured. Instead, his knowledge of where those firearms were manufactured was dependent on the writings and other materials. Thus, his testimony was, in effect, proving the contents of the writings and other materials because he had no personal knowledge of where the firearms were manufactured. Accordingly, Cheramie's testimony triggered the Best Evidence Rule, and the Fourth Circuit's conclusion was erroneous.   

Well, yesterday, I got an e-mail from Matthew R. Segal, an Assistant Public Defender, who informed me that he has filed a petition for writ if certiorari with the Supreme Court for Smith. You can download a copy of the petition by clicking on the link below:

 

Download Smith_Cert_Petition-As_Filed[1]

I agree with the points made in the petition and continue to believe that Cheramie's testimony was received in violation of the Best Evidence Rule. According to Segal, "The government has waived its right to file an opposition brief, so the case has been distributed for the Supreme Court's conference of January 8, 2010."

-CM

Waiving Away Uniformity: D.C. Opinion Reveals Why Rule 502 Will Not Harmonize Privilege Waiver Practices

The new Federal Rule of Evidence 502(b) provides that:

When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

1. the disclosure is inadvertent;

2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and

3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

The new Rule was intended to bring "uniformity across the circuits to their once differing treatment of the effect of certain inadvertent disclosures of privilege materials." As can be seen from the recent opinion of the United States District Court for the District of Columbia in Amobi v. District of Columbia Department of Corrections, 2009 WL 4609593 (D.D.C. 2009), however, the Rule is unlikely to bring the desired uniformity.

In Amobi, 

Stephen I. Amobi, an officer with the Department of Corrections..., was involved in an altercation with an inmate....After the altercation, an official at the correctional institution, also a named defendant, called the Metropolitan Police Department....An MPD officer then arrived at the jail and arrested Amobi. Compl....Defendants moved for Amobi's summary removal....Amobi had a right to a hearing on his removal, and the hearing officer determined that Amobi should be reinstated....The hearing officer reversed her decision on remand....The Superior Court first dismissed the criminal case against Amobi and then acquitted Amobi in the second criminal case brought against him....Amobi appealed his removal to an arbitrator....During arbitration, the removal hearing officer admitted originally to have recommended Amobi's reinstatement, but [Amobi] claim[ed]that the hearing officer was pressured to change her recommendation....Amobi won the arbitration and was reinstated....Amobi and his wife [thereafter brought an action to seek retribution for the injuries suffered as a direct and proximate result of defendants' actions.

During discovery in connection with that action, the plaintiffs served the defendants with document requests. 

When it made its production, the District disclosed a memorandum prepared by attorney advisor Repunzelle Johnson on the eve of the arbitration proceedings....After realizing what they had done, defendants' counsel sent a letter to plaintiffs asking for the return or destruction of the confidential document....Plaintiffs...sequestered the document but...refused to destroy it.

The defendants thereafter requested that the court order the plaintiff to return the memorandum and preclude them from using it in connection with their action. The United States District Court for the District of Columbia found that the memorandum was entitled to work product protection but found that:

Just over a year ago, parties in defendants' position in this Circuit would have no argument to protect against waiver; they would simply be dead in the water with an inadvertent disclosure. The District of Columbia Circuit found that any disclosure automatically constitutes waiver, even in the case of inadvertent disclosure.

The court noted, however, that this all changed with Federal Rule of Evidence 502(b), which requires court to apply a three-part test and find that a disclosure does not constitute waiver of the attorney-client privilege or work product protection if:

(1) the disclosure was inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error.

The court then proceeded to apply this test and illustrate why the desired uniformity will not be achieved. The court first noted that the Rule does not provide any guidance on the issue of who has the burden of proving waiver and decided to follow its pre-Rules practice of placing the burden on the proponent of the privilege." Other courts, of course, place the burden on the party opposing the privilege.

The court then considered the first part of the test and noted that, before the Rule, some courts

considered a number of factors to determine inadvertency, including the number of documents produced in discovery, the level of care with which the review for privilege was conducted and even the actions of the producing party after discovering that the document had been produced.  

Some of these courts have continued to follow this practice after the enactment of Rule 502(b); however, "[o]ther courts have found that Rule 502(b) provides for a more simple analysis of considering if the party intended to produce a privileged document or if the production was a mistake." The court sided with these latter courts, again illustrating why the desired uniformity will not be achieved. 

As for the analysis in Amobi, the court did find that the disclosure was inadvertent but found that the defendants did not take reasonable steps to prevent disclosure because "the efforts taken are not even described, and there is no indication of what specific efforts were taken to prevent disclosure, let alone any explanation of why these efforts were, all things considered, reasonable in the context of the demands made upon the defendants."

-CM

Curiosity Killed The Jury, Take 3: Baltimore Sun Lists Several Instances Of Technology-Assisted Jury Misconduct

Is the jury system broken? I've done several posts over the last year about how new technologies are causing (or should be causing) mistrials across the country. Back in March, I posted an entry about jurors improperly exchanging e-mails during trial and "wonder[ed] whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Later that month, I posted an entry about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing.  In May, I  posted an entry about a mistrial being declared after a witness engaged in text-messaging while he was on the witness stand. And in November, I posted an entry about three more instances of curiosity killing the jury. More recently, an article in Sunday's Baltimore Sun lists several other instances of such jury misconduct.

According to the article:

-Last week, a Maryland appeals court upended a first-degree murder conviction because a juror consulted Wikipedia for trial information;

-Earlier this year, the appeals judges erased a conviction for three counts of assault because a juror did cyberspace research and shared the findings with the rest of the jury;

-In a third recent trial, a juror's admission to using his laptop for off-limits information jeopardized an attempted-murder trial;

-On Friday, lawyers for Baltimore Mayor Sheila Dixon  asked for a new trial in part because five of the jurors who convicted her of embezzlement Dec. 1 were communicating among themselves on Facebook  during the deliberations period - and at least one of them received an outsider's online opinion of what the verdict should be. 

More specifically,

Last week, the Court of Special Appeals voided the 2008 first-degree murder conviction of Allan Jake Clark, accused of beating a man to death in 2007.

In the jury room, a bailiff in the Anne Arundel County Circuit Court trial had found printouts of Wikipedia explanations of scientific terms. Judge Paul A. Harris Jr. denied the defense's request for a mistrial.

Writing for a panel of the Court of Special Appeals that overturned the conviction, Judge Charles E. Moylan Jr. said that an "adverse influence on a single juror compromises the impartiality of the entire jury panel."

Particularly important was that the Wikipedia definitions discussed details of how the settling of blood after death can help determine the time and place of death - which were issues at Clark's trial.

In May, the court erased the 2007 conviction in Baltimore of Zarzine Wardlaw on three counts of assault. During deliberations, a jury note advised the judge that one juror told the rest of having researched "oppositional defiant disorder" online and that ODD is associated with lying. That was critical to the credibility of a person who made allegations against Wardlaw, the appellate judges wrote.

In November, a juror in the attempted-murder trial of Jerold Raymond Burks in Anne Arundel County admitted during deliberations to having Web-surfed to read news stories about the case. But not everything he shared with fellow jurors was still accurate. Neither the prosecution nor defense sought a mistrial. The jurors were told correct information - but that subject had not been part of Burks' trial. He was found not guilty.

In the Dixon trial, Judge Dennis M. Sweeney warned jurors repeatedly not to text, tweet or in any way discuss the case outside the deliberations room. But five apparently became Facebook "friends" and their postings on one another's public Facebook walls mention the case.

In addition to detailing these acts of jury misconduct, the article paints a pretty accurate picture of other ways in which curiosity can now kill the jury. According to the article,

A decade ago, jurors who wanted to see the neighborhood where a crime took place had to go there; now, they can see it on Google Earth from a BlackBerry. They can check out a defendant's criminal past on Web sites, witnesses on Facebook, and what users think about a company on consumer blogs - all information that probably was excluded from evidence. Sharing thoughts about a pending case now may include jurors' social media posts that anyone can read.

The article also lists ways in which courts and litigants are trying to prevent such jury misconduct. The article notes that:

Concern has grown so much nationwide that legal experts, including in Maryland, are rewriting model jury instructions to specifically tell jurors that online searches, texting and social media - the things they routinely do on laptops, cell phones and BlackBerrys - are out. Maryland's rules are expected to be published next year, and the ones on that subject are still being drafted....

"More and more states are including an expanded and more specific instructions [to jurors] that they shouldn't do it and it's improper. Newer-pattern jury instructions around the country will refer to Twitter and Facebook and all of these new things that the younger generation is so familiar with," said Irma S. Raker, retired judge of the Maryland Court of Appeals, who chairs a panel updating Maryland's instructions.

-CM

Forfeit Victory: Florida Opinion Reveals That Florida Has Not Adopted The Forfeiture By Wrongdoing Doctrine

Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing doctrine, provides an exception to the rule against hearsay for 

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

As the recent opinion of the District Court of Florida, First District, in Chavez v. State, 2009 WL 4591048 (Fla.App. 1 Dist. 2009), makes clear, however, the common-law hearsay exception of forfeiture by wrongdoing is not authorized under Florida's Evidence Code, unlike numerous other states' evidence codes.

In Chavez, Daniel Chavez challenged his conviction for the first-degree murder of his wife, Kathy Chavez. The evidence presented at trial established that

Seven months after their marriage, Mrs. Chavez moved out of the marital residence, leaving behind her wedding ring. Mrs. Chavez told her mother, Teresa Hemanes, that [Daniel] told her that if he could not have her as his wife, then nobody else could; she told a friend that [Daniel] told her that he was going to stab her; and three weeks before her death, she told another friend that she and [Daniel] had argued and [Daniel] said that if she left him, he would stab her to death and no one would have her. Mrs. Chavez moved in with Patsy Haley, a friend to whom she also relayed [Daniel]'s threat that if he could not have her as his wife, then nobody would.

The trial court admitted Kathy Chavez's statements by finding that "they were admissible under the common-law hearsay exception of forfeiture by wrongdoing." After he was convicted, Daniel appealed on this issue, and the District Court of Florida reversed in part, finding that the common-law hearsay exception of forfeiture by wrongdoing is not authorized under Florida's Evidence Code, unlike numerous other states' evidence codes."   

Moreover, the court noted that even if Florida had recognized the doctrine of forfeiture by wrongdoing, it would not have applied because the Supreme Court found in Giles v. California that statements are "not admissible under the doctrine of forfeiture by wrongdoing unless the defendant specifically intended to prevent that witness from testifying." Because the prosecution did not present (and, indeed, could not have presented) evidence of such specific intent, the forfeiture by wrongdoing doctrine would not have applied even if it existed in Florida.

Of course, that leaves the question of whether Florida should recognize the forfeiture by wrongdoing doctrine, and I direct readers to Timothy M. Moore, Forfeiture by Wrongdoing:  A Survey and an Argument for its Place in Florida, 9 Fla. Coastal L. Rev. 525 (2008), for comprehensive analysis of the issue.

-CM