EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, March 14, 2009

Mississippi Mistake: Court Of Appeals Of Mississippi Misapplies Felony Conviction Impeachment Rule In Drug Appeal

The recent opinion of the Court of Appeals of Mississippi in Young v. State, 2009 WL 596660 (Miss.App. 2009), is the latest example of a court incorrectly applying the felony conviction impeachment rule.

In Young, Elliot Young appealed from his conviction on two counts of unlawful sale of cocaine to an undercover informant. That conviction came after the jury rejected Young's entrapment defense, which his attorney first raised in his opening statement when he made the remark that "these charges are preposterous, and it's a set-up situation and [Young] certainly did not sell cocaine to the confidential informant."

Before Young testified, he sought to preclude the prosecution from impeaching him through, inter alia, evidence that he had a prior felony conviction for possession of cocaine seven years before trial. The trial court rejected this argument, concluding that the conviction was admissible under Mississippi Rule of Evidence 609(a)(1), which states in relevant part that:

For the purpose of attacking the credibility of a witness,...evidence that...a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party

As I note in my article, Impeachable Offenses, courts generally consider five factors in making this determination:

(1) The impeachment value of the prior crime;

(2) The point in time of the conviction and the witness' subsequent history;

(3) The similarity between the past crime and the charged crime;

(4) The importance of the defendant's testimony; and

(5) The centrality of the credibility issue.

The trial court applied these factors and found that:

the probative value of admitting the evidence outweighs any prejudicial effect. The crime has impeachment value, given the posture of the case, and given the remarks of counsel for Defense in opening statement. It was within the last I guess seven years, around seven years ago, so the timeliness of it weighs in favor of the admissibility. There's a similarity between that and the act charged here which, as far as prejudicial effect, weighs in the Defendant's favor-the third factor in Peterson, but the importance of the Defendant's testimony and the centrality of the credibility issue I think very clearly tipped the scales in favor of admissibility, and it has great-it has probative value, and the prejudicial effort would be minimal, if any.

The Court of Appeals of Mississippi gave this decision the rubber stamp of approval, but it should not have. First, drug possession convictions are thought to have low impeachment value because they are "thought to have little necessary bearing on veracity." (and I don't see how the remarks in the opening statement change anything, given that the prior conviction was not for selling drugs). Second, a gap of seven years between prior conviction and present trial generally cuts against admissibility. See, e.g., People v. Lester, 432 N.W.2d 433, 435 (Mich.App. 1988). Third, because both the prior conviction and Young's present trial involved drug offenses, the prior conviction was extremely prejudicial. Fourth, the fact that Young's testimony was very important means that the approval of his prior conviction for impeachment purposes was prejudicial because it could have led Young to refrain from testifying. Only the court's analysis under factor five was correct. And clearly, when balancing these factors, the courts should have found that the prior conviction's probative value did not outweigh its prejudicial effect.


March 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, March 13, 2009

Sunshine Cleaning: New Movie Prompts Questions (And Answers) About Crime Scene Clean-Up

Today marks the limited release of Christine Jeffs' (Sylvia) well-reviewed film, Sunshine Cleaning. Rotten Tomatoes describes the plot as follows:

Once the high school cheerleading captain who dated the quarterback, Rose Lorkowski (Amy Adams) now finds herself a thirty something single mother working as a maid. Her sister Norah, (Emily Blunt), is still living at home with their dad Joe (Alan Arkin), a salesman with a lifelong history of ill-fated get rich quick schemes.

Desperate to get her son into a better school, Rose persuades Norah to go into the crime scene clean-up business with her to make some quick cash. In no time, the girls are up to their elbows in murders, suicides and other…specialized situations. As they climb the ranks in a very dirty job, the sisters find a true respect for one another and the closeness they have always craved finally blossoms. By building their own improbable business, Rose and Norah open the door to the joys and challenges of being there for one another--no matter what--while creating a brighter future for the entire Lorkowski family.

Why, you might ask, would such a crime scene clean-up business be needed? Well, the answer to that question and many more can be found at "How Crime-scene Clean-up Works." And that answer is that:

The police, the fire department and the crime-scene investigators who arrive at a crime scene perform crucial tasks in the aftermath of a violent death. But they don't, as a general rule, clean up.

Here are a couple more fun facts:

-These companies charge anywhere from $100 to $600 an hour depending on the "degree of trauma" and the a mount of hazardous or biohazardous material the cleaners have to handle and dispose of. Cleaning up a homicide in a single room with a lot of blood can run from $1,000 to $3,000.

-This service is often covered under auto, homeowner's or business insurance, and many crime-scene clean-up companies will handle the insurance paperwork for their clients. In the case of homicide, the company usually sends the bill to the federal Crime Victim Reparations agency, which pays for the clean-up (or they send it to a relevant state counterpart, such as Texas' Crime Victims' Compensation Fund, which allows for the awarding of benefits for, inter alia, "crime scence clean-up").

-Crime scene clean-up is called CTS Decon -- crime and trauma scene decontamination. There are no national regulations for the CTS Decon industry, but there are organizations that promote standards as well as certain government regulations that cleaners have to follow, including the OSHA Bloodborne Pathogens Standards, which are guidelines for handling biohazardous material and the proper use of personal protection equipment, and individual state guidelines for crime-scene clean-up.

-CTS Decon is a quickly growing field (what Martin Blank might call a "growth industry")

-Many crime scene cleaners come from medical fields that prepare them for the gore -- they may have been EMTs or emergency room nurses. A construction background is helpful, too, because some clean-ups (especially meth labs) require walls and built-in structures to be removed.

-The most common clean-up scenes include: Violent death (homicide/suicide/accidental), Decomp (a decomposing body), and Methamphetamine labs.

-Crime scene cleaners burn out pretty quickly, and both employers and employees need to be on the lookout for signs of Critical Incident Stress Syndrome (CISS) and Secondary Traumatic Stress Disorder (STSD).

According to Jeffs, the movie contains a realistic portrayal of a crime scene clean-up business.  When she was interviewed while the movie was premiering at Sundance, the following exchange took place:

Now, the cleaning business itself is the catalyst, the backdrop of the story, but it’s not the most important thing. When you were preparing to do the movie, did you really want to focus on getting that accurate?

It was absolutely important to get it accurate. We met with a real crime scene cleaner, a guy named Enrique who works in Albuquerque. Our art department did extensive research, and he was a resource to us all the way through the film. It’s very important that it.

Yeah, it didn’t seem right to throw a bloody mattress in the garbage.

Yeah, but it was interesting finding out there were rules about that kind of stuff. As the film goes on they start to grow. In the supermarket she says, “Oh, it’s just like cleaning houses, but with a bit of blood there.” And that’s how they get started, completely naive.

After reading about the movie, I expected to find some case law in which crime scene cleaners had to testify at trials in which there were questions regarding the crime scene and/or the destruction of evidence, but I surpisingly found only one.  In State v. Shumway, 63 P.3d 94 (Utah 2002), the Supreme Court of Utah, inter alia, reversed a defendant's conviction for tampering with evidence based upon his alleged concealment or destruction of a second murder weapon.  In reversing, the court noted that:

Other reasonable explanations exist why the instrument was not found. It could have fallen behind or underneath pieces of furniture in the living room where officers missed it in their search. It could have been found and discarded by the crime scene cleaners. Officers did not contact the crime scene cleaners after the clean-up to inquire whether they had found any such instrument.

I wonder whether the increase in crime scene cleaners will lead to an increasing number of trials in which there cleaners are involved and/or whether there will be any national regulations enacted to govern the industry.  What I do know is that Sunshine Cleaning is a must see based upon its glowing reviews and the presence of Adams, one of the best actresses working today.


March 13, 2009 | Permalink | Comments (2) | TrackBack (0)

Thursday, March 12, 2009

My Conspiracy?: Supreme Court Of Georgia Erroneously Finds That The Confrontation Clause Doesn't Apply To Res Gestae

The recent opinion of the Supreme Court of Georgia in Butler v. State, 669 S.E.2d 118 (Ga. 2008), contains a horribly misguided extension of the co-conspirator admission "exception" to the Confrontation Clause.

In Butler, Marquce Butler appealed from his convictions for felony murder and conspiracy to commit aggravated sodomy based upon, inter alia, the following facts adduced at his trial:

around midnight on February 21, 2004, a guard at the Lee Arrendale State Prison in Alto, Georgia, was alerted to a medical emergency in Butler's jail cell. Once there, the guard found the window on the cell door obstructed, and, when the obstruction was removed, the guard could see Butler and a second inmate, Maurice Tobler, seated on the bed. The guard also saw a third inmate, Wayne Boatwright, lying on the floor, slumped against a radiator, and apparently unconscious. The presence of other inmates in Butler's cell violated internal prison policies.

After entering the cell and handcuffing Butler and Tobler, the guard discovered that Boatwright was not breathing, had no pulse, and had blood running from his nose. At that point the guard made the comment that, if Butler and Tobler had meant to kill Boatwright, they had done a good job. Tobler immediately and voluntarily replied, "[w]e didn't mean to kill him." Attempts to revive Boatwright were unsuccessful, and he died at the scene.

After Butler was convicted, he appealed, claiming, inter alia, that the trial court improperly allowed the guard to testify regarding Tobler's statement in violation of his rights under the Confrontation Clause.  Butler's appeal eventually reached the Supreme Court of Georgia, which found that

Tobler's voluntary utterance at the scene was admissible pursuant to the res gestae exception to the rule against hearsay. See OCGA Section 24-3-3  ("Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae").

The Georgia Supremes then cited to their previous opinion in Burgess v. State, 602 S.E.2d (Ga. 2004), which it found stood for the proposition that the Confrontation Clause (via the Bruton doctrine) is inapplicable when an exception to the hearsay rule applies.  The only problem is that Burgess did not (indeed, could not) have said that.  Instead, Burgess found that

when the State introduces a non-custodial statement (as opposed to a confession) of a co-defendant that implicates the defendant, Bruton is inapplicable and the appropriate analysis is whether the statement was admissible against the defendant under the co-conspirator exception to the rule against hearsay.

And this makes sense.  As I have noted before on this blog, when a court deems a statement by a co-conspirator a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E), it is finding, in effect, that the admission was made by all co-conspirators.  Consequently, any of those co-conspirators cannot claim that the admission of the admission violates his rights under the Confrontation Clause because the admission is, in effect, his admission (and also possibly non-testimonial).

But there is no general hearsay exception to the Confrontation Clause because such an exception would render the Confrontation Clause meaningless.  Moreover, Tobler's statement was not a co-conspirator admission because it was certainly not made in furtherance of (and possibly not during the course of) the conspiracy.


March 12, 2009 | Permalink | Comments (0) | TrackBack (1)

Wednesday, March 11, 2009

What's My Motivation?: Ninth Circuit Applies Former Testimony Hearsay Exception To Grand Jury Testimony

The recent opinion of the Ninth Circuit in United States v. McFall, 2009 WL 579508 (9th Cir. 2009), addressed an issue that has split the circuits: When, if ever, can grand jury testimony be admitted under the former testimony exception to the rule against hearsay?

In McFall, Monte D. McFall, a former lobbyist and local elected official, appealed from his convictions on nine counts of attempted extortion and conspiracy to commit extortion, six counts of honest services mail fraud, and two counts of attempted witness tampering. Those convictions resulted from alleged corrupt profiteering among a group of state and local officials in San Joaquin County, California, including McFall and Neat Allen Sawyer, a former prosecutor in the San Joaquin County District Attorney's Office. For instance, evidence was adduced at trial that:

In late 2001, the state [Office of Criminal Justice Planning (OCJP)] awarded a $400,000 grant to the Digital Angel Corporation...to fund a pilot project whereby the California Department of Corrections would utilize the company's electronic tracking devices. In January 2002, Sawyer and McFall met with Robert Levy, a lobbyist for Digital Angel, in Sacramento to discuss potential collaboration. Digital Angell was seeking additional funding from OCJP, and Sawyer indicated that McFall could be of assistance.

A few weeks after the meeting, Levy received a draft memorandum of understanding ("MOU") from McFall's daughter proposing an agreement between Digital Angel's parent company and the Stagecoach Corporation (an entity McFall created and controlled). Under the proposed MOU, Digital Angel would pay a $100,000 fee to a consultant that Stagecoach would later name. Levy complained about the agreement to Sawyer, who urged him to work with McFall and, according to Levy, stated that OCJP funding would not materialize without McFall's help. Digital Angel did not agree to the terms of the MOU and had no further dealings with McFall. The indictment charged that McFall's and Sawyer's conduct amounted to conspiracy to commit extortion under color of official right.

Well, at least that was the account given by Levy. McFall denied these allegations in his testimony. Sawyer also denied these allegations, testifying that the notion that he and McFall conspired to deny state grant funds to Digital Angel unless the company paid a consulting fee to McFall's daughter-the crux of the charge against McFall-was "ridiculous." But Sawyer only provided this testimony before the grand jury; when McFall called him at trial, he invoked his Fifth Amendment right against self-incrimination.

The question thus became whether McFall could introduce Sawyer's grand jury testimony under Federal Rule of Evidence 804(b)(1), which provides an exception to the rule against hearsay for:

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

The district court answered that question in the negative, finding, inter alia, "that that the motive for obtaining Mr. Sawyer's testimony before the Grand Jury was completely different from what it would be today." On McFall's subsequent appeal, the Ninth Circuit noted that there was some authority to support the district court's conclusion. To wit, in United States v. DiNapoli, 8 F.3d 909, 913 (2nd Cir. 1993), the Second Circuit found that the motive to develop a witness' testimony before the grand jury is not similar to the motive to develop his testimony at trial (making Federal Rule of Evidence 804(b)(1) inapplicable), declaring that

because of the low burden of proof at the grand jury stage, even the prosecutor's status as an "opponent" of the testimony does not necessarily create a motive to challenge the testimony that is similar to the motive at trial. At the grand jury, the prosecutor need establish only probable cause to believe the suspect is guilty. By the time the exonerating testimony is given, such probable cause may already have been established to such an extent that there is no realistic likelihood that the grand jury will fail to indict. That circumstance alone will sometimes leave the prosecutor with slight if any motive to develop the exonerating testimony in order to persuade the grand jurors of its falsity.

But the Ninth Circuit noted that there is a split on this issue, with some courts taking the Second Circuit's "comparison of motives at a fine-grained level of particularity" and other courts comparing "respective motives at a high level of generality." For instance, the Ninth Circuit cited to United States v. Miller, 904 F.2d 65, 68 (D.C. Cir. 1990), where the D.C. Circuit found that the prosecution's motive to develop the testimony of an alleged co-conspirator was similar to its motive to develop his testimony at trial (making Federal Rule of Evidence 804(b)(1) applicable) because the testimony of the unavailable co-conspirator "was to be directed to the same issue-the guilt or innocence" of the defendants.

The Ninth Circuit:

agree[d] with the D.C. Circuit's elaboration of the "similar motive" test and conclude that the government's fundamental objective in questioning Sawyer before the grand jury was to draw out testimony that would support its theory that McFall conspired with Sawyer to commit extortion-the same motive it possessed at trial. That motive may not have been as intense before the grand jury, but Rule 804(b)(1) does not require an identical quantum of motivation.

The Ninth Circuit thus found that the district court abused its discretion by exclude Sawyer's testimony and found that the error was not harmless because:

As a result of the grand jury testimony's exclusion (and Sawyer's Fifth Amendment invocation at McFall's trial), the jury heard only two versions of the disputed events-Levy's and McFall's. Sawyer's excluded grand jury testimony would have largely corroborated McFall's account.

In the end, I'm not sure which I approach I prefer, and perhaps that is because of the unique facts of McFall. As the Ninth Circuit noted,

the unique circumstances of this case present an additional reason why the district court's refusal to permit McFall to introduce Sawyer's grand jury testimony was an abuse of discretion. Under Sawyer's plea agreement, the government had the right to require Sawyer to testify pursuant to the agreement's cooperation clause. Thus, Sawyer was unavailable only to the defendant, McFall. Once Sawyer's grand jury testimony was read to the jury, the government could have called Sawyer in its rebuttal case to testify and pursued whatever line of impeachment or any other legitimate line of questioning it desired.


March 11, 2009 | Permalink | Comments (2) | TrackBack (2)

Tuesday, March 10, 2009

Mutiny On The Bounty?: Tenth Circuit Holds That Bounty Hunters Are Not State Actors For 4th Amendment Purposes

The recent opinion of the Tenth Circuit in United States v. Poe, 2009 WL 514069 (10th Cir. 2009), addressed a question of first impression in that circuit: Are bounty hunters state actors for Fourth Amendment purposes? According to the Tenth Circuit, they are not.

In Poe, among other things,

a bail bonds company hired five bounty hunters to apprehend Aaron Poe for jumping bail in an Oklahoma state criminal case. The bounty hunters surveilled the home of Kim Wilson, who they believed to be Poe's girlfriend. Around 10:30 p.m., the bounty hunters observed Wilson exit her house and drive away. Two of the bounty hunters, David DeWitt and Lawrence Sanders, followed her to the AutoZone where she worked to question her about Poe. Wilson indicated that Poe was at her home and agreed to return with DeWitt and Sanders....

Upon returning to the house, DeWitt and Sanders staked out the back door.... From their position, DeWitt and Sanders were able to positively identify Poe....[Thereafter,] Sanders went into the home to apprehend Poe, and a struggle ensued. As Sanders wrestled Poe to ground, two pit bulls entered the room and attacked Sanders. Sanders "tased" one of the pit bulls, then both dogs retreated to another room and Poe gave up resisting.

After Poe was subdued, DeWitt observed in plain view in the same room what he believed to be methamphetamine, methamphetamine-related paraphernalia, and a black nine-millimeter pistol. DeWitt emptied the pistol's chamber and removed its magazine, both of which were loaded. Sanders then called the Oklahoma City Police Department.

Officer James Geery of the Oklahoma City Police Department responded to Sanders's call, arriving at Wilson's home shortly after 11:00 p.m. After speaking with the bounty hunters, Officer Geery advised Poe of his Miranda rights. Poe said that he understood his rights, and before Officer Geery asked him another question Poe said, "The dope and the gun are mine."

Because Poe was an overnight guest of Wilson, he had standing to object to the warrantless entry of the bounty hunters into Wilson's home (he also had standing to object to Geery's entry, but Geery was justified in entering in response to Sanders' call). The question was thus whether the bounty hunters were state actors, making the Fourth Amendment and the exclusionary rule applicable, or private actors, making them inapplicable.

The Tenth Circuit properly reached the latter conclusion. It noted that it applies a dual-pronged inquiry to decide if a search by a private individual constitutes state action within the meaning of the Fourth Amendment:

First, we determine "whether the government knew of and acquiesced in the [individual's] intrusive conduct...." Second, we consider "whether the party performing the search intended to assist law enforcement efforts or to further his own ends...." Both prongs must be satisfied considering the totality of the circumstances before the seemingly private search may be deemed a government search."

The problem for Poe was that neither of these prongs were satisfied. First, "Poe d[id] not and c[ould not] assert that the government 'knew of or acquiesced in' the bounty hunters' entry and search of Wilson's home...[because] the police did not become involved until Sanders called them, after he and DeWitt had entered Wilson's house, apprehended Poe, and discovered the firearm, drugs, and paraphernalia." The Tenth Circuit also rejected Poe's argument that "Oklahoma's extensive statutory regulation of the bail bonds industry, coupled with conferring the powers of arrest, conclusively establishe[d] the bondsmen's conduct [wa]s chargeable to the State." Instead, it found that "involvement in the bail bonds industry is insufficient to satisfy this inquiry; we require knowledge of or acquiescence in the challenged search. Because the government agent did not know of the bounty hunters' search until after it was complete, Poe's challenge fails under the first prong of Souza."

The Tenth Circuit also found that Poe could not satisfy the second prong

because the bounty hunters primarily "intended...to further [their] own ends"-their financial stake in Poe's bail-rather than to assist state officials. These bounty hunters were hired to apprehend Poe by the bail bonds company, which was responsible for the bond it posted on Poe's behalf. Poe's argument that law enforcement and the bail bonds industry have a "symbiotic relationship,"...is unpersuasive. We do not inquire if the police benefitted from the private conduct, but if the bounty hunters had a "legitimate, independent motivation" to conduct the search....Financial gain motivated these bounty hunters; they had apprehended Poe and completed the search before calling the police. Indeed, they "would have [conducted the search] even if the police had not responded to [their] call...." Because the bounty hunters did not intend to assist law enforcement, they are not state actors under the second prong.

I was unable to find any other precedent on this issue, but the Tenth Circuit seems to me to have reached the correct conclusion, and law review articles on the issue seem to agree. See, e.g., Jonathan Drimmer, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. 731 (1996).


March 10, 2009 | Permalink | Comments (0) | TrackBack (1)

Monday, March 9, 2009

Can I Get A(n Eye) Witness: 60 Minutes Story Exposes Problems With Eyewitness IDs

Those of you who watched 60 Minutes last night saw the interesting story, Eyewitness: How Accurate is Visual Memory? And the answer is, "Not very." The story detailed how Jennifer Thompson misidentified Ronald Cotton as her rapist, leading to his wrongful incarceration for 11 years, before he was exonerated by DNA evidence. The story then went on to note that 75% of prisoners exonerated based upon DNA evidence were convicted in part based upon incorrect eyewitness testimony and pondered why that testimony was inaccurate.

Readers of this blog know the answer. As I noted in reviews of articles by Sandra Guerra Thompson and Robert P. Mosteller, there are problems when an eyewitness is shown every individual in a lineup or photo array at the same time rather than one at a time, there are problems when the eyewitness is not told that the suspect might be absent from the lineup or photo array, and there are problems when the person conducting the lineup or photo array knows the identity of the suspect. These and other problems have led the innocence movement to set forth six recommendations:

(1) only one suspect should be in each lineup or photo array; (2) the suspect should not “stand out”; (3) the witness should be cautioned that the perpetrator might not be in the the lineup or array; (4) those in the lineup or array should be displayed sequentially rather than simultaneously; (5) the person who administers the identification procedure should not know whether the suspect is in the lineup or array and certainly should be ignorant of the identity of the suspect (“double-blind testing”); and (6) a statement regarding the witness's confidence should be collected at the time any identification is made.

And as the 60 Minutes story last night noted, North Carolina, the state where Cotton was wrongfully convicted, was actually "the first in the country to mandate reforms by law, showing victims lineup photos one at a time and emphasizing that the right answer may be none of the above, having lineups conducted by a person who doesn't know who the suspect is, or not by a person at all."

Indeed, that law is North Carolina General Statutes Section 15A-284.52 (effective March 1, 2008), and it provides in relevant part:

(b) Eyewitness Identification Procedures. Lineups conducted by State, county, and other local law enforcement officers shall meet all of the following requirements:

(1) A lineup shall be conducted by an independent administrator or by an alternative method as provided by subsection (c) of this section.

(2) Individuals or photos shall be presented to witnesses sequentially, with each individual or photo presented to the witness separately, in a previously determined order, and removed after it is viewed before the next individual or photo is presented.

(3) Before a lineup, the eyewitness shall be instructed that:

a. The perpetrator might or might not be presented in the lineup,

b. The lineup administrator does not know the suspect's identity,

c. The eyewitness should not feel compelled to make an identification,

d. It is as important to exclude innocent persons as it is to identify the perpetrator, and

e. The investigation will continue whether or not an identification is made.

The eyewitness shall acknowledge the receipt of the instructions in writing. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the acknowledgement and shall also sign the acknowledgement.

(4) In a photo lineup, the photograph of the suspect shall be contemporary and, to the extent practicable, shall resemble the suspect's appearance at the time of the offense.

(5) The lineup shall be composed so that the fillers generally resemble the eyewitness's description of the perpetrator, while ensuring that the suspect does not unduly stand out from the fillers. In addition:

a. All fillers selected shall resemble, as much as practicable, the eyewitness's description of the perpetrator in significant features, including any unique or unusual features.

b. At least five fillers shall be included in a photo lineup, in addition to the suspect.

c. At least five fillers shall be included in a live lineup, in addition to the suspect.

d. If the eyewitness has previously viewed a photo lineup or live lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the current suspect participates shall be different from the fillers used in any prior lineups.

(6) If there are multiple eyewitnesses, the suspect shall be placed in a different position in the lineup or photo array for each eyewitness.

(7) In a lineup, no writings or information concerning any previous arrest, indictment, or conviction of the suspect shall be visible or made known to the eyewitness.

(8) In a live lineup, any identifying actions, such as speech, gestures, or other movements, shall be performed by all lineup participants.

(9) In a live lineup, all lineup participants must be out of view of the eyewitness prior to the lineup.

(10) Only one suspect shall be included in a lineup.

(11) Nothing shall be said to the eyewitness regarding the suspect's position in the lineup or regarding anything that might influence the eyewitness's identification.

(12) The lineup administrator shall seek and document a clear statement from the eyewitness, at the time of the identification and in the eyewitness's own words, as to the eyewitness's confidence level that the person identified in a given lineup is the perpetrator. The lineup administrator shall separate all witnesses in order to discourage witnesses from conferring with one another before or during the procedure. Each witness shall be given instructions regarding the identification procedures without other witnesses present.

(13) If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning the person before the lineup administrator obtains the eyewitness's confidence statement about the selection. There shall not be anyone present during the live lineup or photographic identification procedures who knows the suspect's identity, except the eyewitness and counsel as required by law.

(14) Unless it is not practical, a video record of live identification procedures shall be made. If a video record is not practical, the reasons shall be documented, and an audio record shall be made. If neither a video nor audio record are practical, the reasons shall be documented, and the lineup administrator shall make a written record of the lineup.

(15) Whether video, audio, or in writing, the record shall include all of the following information:

a. All identification and nonidentification results obtained during the identification procedure, signed by the eyewitness, including the eyewitness's confidence statement. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the results and shall also sign the notation.

b. The names of all persons present at the lineup.

c. The date, time, and location of the lineup.

d. The words used by the eyewitness in any identification, including words that describe the eyewitness's certainty of identification.

e. Whether it was a photo lineup or live lineup and how many photos or individuals were presented in the lineup.

f. The sources of all photographs or persons used.

g. In a photo lineup, the photographs themselves.

h. In a live lineup, a photo or other visual recording of the lineup that includes all persons who participated in the lineup.

(Surprisingly, however, the story last night failed to mention possibly the biggest reason why Thompson's identification of Cotton was likely wrong: the general inaccuracy of cross-racial identifications)


March 9, 2009 | Permalink | Comments (1) | TrackBack (2)

Sunday, March 8, 2009

In Birmingham, They Love The Governor: HealthSouth Appeal Prompts Interesting Hearsay And Jury Impeachment Rulings

The recent opinion of the Eleventh Circuit in United States v. Siegelman, 2009 WL 564659 (11th Cir. 2009), contains interesting co-conspirator admission and jury impeachment conclusions.

In Siegelman, Don Eugene Siegelman, the former governor of Alabama, and Richard Scrushy, the former CEO of HealthSouth Corporation were convicted of federal funds bribery and five counts of honest services mail fraud and conspiracy (Siegelman was also convicted of obstruction of justice):

The defendants' bribery convictions were based on allegations that they made and executed a corrupt agreement whereby Scrushy gave Siegelman $500,000 in exchange for Siegelman's appointing him to Alabama's Certificate of Need Review Board (the "CON" Board). The honest services mail fraud convictions incorporated the same bribery allegations, but also alleged that Scrushy used the CON Board seat obtained from Siegelman to further HealthSouth's interests. Siegelman's obstruction of justice conviction [wa]s based on allegations that he corruptly influenced another to create a series of sham check transactions to cover up a "pay-to-play" payment to him.

Siegelman and Scrushy subsequently appealed, alleging nine errors at trial, and the Eleventh Circuit affirmed in part and reversed in part. I will address two of those allegations in this post, and you can check out the rest in the Eleventh Circuit's opinion.

The first alleged error involved the admission of an alleged co-conspirator admission made by Eric Hanson, an outside lobbyist for HealthSouth, to Mike Martin, the former Chief Financial Officer of HealthSouth. Apparently, at a HealthSouth retreat, after Martin had procured the first $250,000 of the $500,000, Hanson bragged to him about the fact that he was able to get HealthSouth a spot on the CON Board with the help of the $250,000.

Federal Rule of Evidence 801(d)(2)(E), the co-conspirator admission rule, indicates that:

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."

The big question for the Eleventh Circuit was whether Hanson's statement to Martin was in furtherance of the conspiracy, and the Eleventh Circuit noted that it:

applies a liberal standard in determining whether a statement was in furtherance of a conspiracy...."The statement need not be necessary to the conspiracy, but must only further the interests of the conspiracy in some way...." "[I]f the statement 'could have been intended to affect future dealings between the parties,' then the statement is in furtherance of a conspiracy...." Finally, "[s]tatements between conspirators which provide reassurance, serve to maintain trust and cohesiveness among them, or inform each other of the current status of the conspiracy further the ends of the conspiracy...." Even defendants concede that boasting or bragging is in furtherance of a conspiracy if the statements are directed at obtaining the confidence or allaying the suspicions of coconspirators.

Applying this "liberal standard," the Eleventh Circuit easily found that the statement was in furtherance of the conspiracy because:

Hanson's statement at the HealthSouth retreat furthered the conspiracy. We agree with the government that, given Martin's own involvement in the conspiracy..., Hanson's bragging to him about purchasing the CON Board seat "with the help of" the IHS check informed Martin that their plan had worked and that Martin's involvement had helped. This alone is sufficient to permit its introduction under Ammar....Additionally, however, the statement is easily seen to affect the coconspirators future dealings because Martin's assistance might be needed in connection with the second $250,000 donation and Hanson knew this.

The second alleged error involved jurors allegedly exchanging e-mails both during trial and during deliberations. Such e-mails would have been improper as both premature jury deliberation and deliberation by fewer than all the jurors. But because this was merely alleged intra-jury misconduct rather than anything external being brought to bear upon the jurors, the Eleventh Circuit found that it could not form the proper predicate for jury impeachment under Federal Rule of Evidence 606(b). This was undoubtedly the correct decision under the Rule, but I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point.


March 8, 2009 | Permalink | Comments (0) | TrackBack (0)