EvidenceProf Blog

Layering Effect: Ninth Circuit Finds Public Record With Hearsay Within Hearsay Was Improperly Admitted

The recent opinion of the Ninth Circuit in United States v. Marguet-Pilado, 2009 WL 792500 (9th Cir. 2009), addresses a topic that I just covered in my Evidence class yesterday: If a business or public record contains statements made by someone outside the business or public agency, you have hearsay within hearsay, and each level of hearsay must be admissible under some applicable exception.

In Marguet-Pilado, Carlos Jesus Marguet-Pillado (Carlos Marguet) appealed from his conviction under 8 U.S.C. Section 1326(a) for being a removed alien who was found in the United States. As part of his appeal, Carlos Marguet claimed, inter alia, that the trial court improperly allowed for the admission of the Application from his immigration file (A-file), in which he applied for permanent resident status on the basis of his relationship to Michael Marguet, who was not his biological father but who was named as his father on a Mexican birth certificate. At the time that this application was filled out, Carlos Marguet was just a five-year-old boy, and the document was filled out and signed by Michael Marguet. In it, Michael Marguet declared that Carlos Marguet was born in Mexico and was a citizen of that country.

On appeal, Carlos Marguet claimed that this Application was inadmissible hearsay, but the State countered that it was admissible under either the business records or the public records exception to the rule against hearsay.  The Ninth Circuit found that either of these exceptions were probably at least partially applicable, especially the latter, because "the Application c[ould] be said to document the activities of a governmental agency and to document the observations of a responsible government officer to some extent."  

The problem for the State, however, was that both of these exceptions only cover statements made by members of the business or public agency because they have a duty to report, and it is generally expected that they do so accurately and reliably.  Conversely, a private citizen outside the business or public agency has no such duty, and "the only part of the document truly relevant...[wa]s Michael Marguet's hearsay statement that Carlos Marguet was born in and was a citizen of Mexico."  Therefore, Michael Marguet's statements on the Application were hearsay within hearsay under Federal Rule of Evidence 805 and only admissible if they also met some applicable hearsay exception.  The problem for the State was that no such exception applied, and the Ninth Circuit thus reversed.  Of course, if Carlos Marguet filled out the Application himself, his statements on the form would have been the admissions of a party-opponent, and there would have been no hearsay problem.

-CM   

Gang Related?: Michigan Court Precludes Jury Impeachment Despite Disturbing Juror Behavior

Federal Rule of Evidence 606(b) generally precludes courts from peering behind the jury room curtain after a verdict has been rendered.  Well, to put it more specifically, the Rule does not preclude courts from such peering, but it does preclude litigants from using what is found to challenge the verdict.  And, as the recent opinion of the United States District Court for the Western District of Michigan in Torrez v. McKee, 2009 WL 528950 (W.D. Mich. 2009), makes clear, what courts find is frequently disturbing.

In McKee, Jose Torres brought a petition for writ of habeas corpus after he was unsuccessful in appealing his convictions for assault with intent to commit murder, possession of a firearm during the commission of a felony, and assault with intent to commit great bodily harm in the Michigan state court system.  Part of the basis of Torres' motion was that the Michigan courts improperly refused to reverse the jury's verdict, despite post-trial allegations by juror Catherine Jacobs that

-she and three other jurors believed that the verdict most properly should be guilt on the offense of assault with intent to commit great bodily harm, rather than assault with intent to murder. 

-the foreman repeatedly told the other jurors that intent was irrelevant and that the only issue was whether an ordinary person would pull out a gun and fire at people;

-various jurors concluded that Petitioner was in a gang and expressed their beliefs that gang members wanted to kill people;

-one juror expressed her belief "that these kids are all alike, that they are angry, and that they think that society owes them, and she said she's seen people like the Defendant before;"

 

-another juror stated, "Oh, this country's going to hell because people get let off, and they let all the bad guys go free;" and

-the day that the verdict was rendered was long, with jurors not having a dinner break, and that she felt worn down by the other jurors, one of whom was angry that the trial had continued so long that he would miss a big band concert. 

The Western District of Michigan denied Torres' petition, noting that Jacobs allegations could not be used to disturb the jury's verdict pursuant to Federal Rule of Evidence 606(b), which states that

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

According to the Western District of Michigan, because "the allegations in the instant case involve[d] matters intrinsic to the jury's deliberations..., the jury's verdict [wa]s not subject to impeachment by evidence from one of the jurors."  Undoubtedly, this ruling was correct under Rule Evidence 606(b), but I can't imagine that many people are completely satisfied with this result.

-CM

Recalculating, Take 4: Court Of Appeals Of New York Hears Oral Argument In Warrantless GPS Tracking Appeal

On several previous occasions on this blog (here, here, and here), I have addressed the issue of whether police are required to obtain a search warrant before attaching a GPS device to a suspect's vehicle.  In the second of those posts, I addressed the case of People v.Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), where 

a police officer, in the course of investigating a series of burglaries and acting without a warrant, attached a GPS device under the bumper of Scott Weaver's van while it was parked on a public street. Based upon the data retrieved from this device and other evidence, Weaver and a codefendant were arrested and charged with burglary in the third degree and grand larceny in the second degree in relation to a theft from a K-Mart Store, as well as burglary in the third degree and petit larceny in relation to a theft from a meat market six months earlier. After he was convicted of these crimes, Weaver appealed to the appellate division, claiming, inter alia, that the trial court erred in denying his motion to suppress all of the evidence obtained against him as a result of the warrantless placement of the GPS device on his van. 

In affirming, the Third Department noted that New York precedent on the issue was split but decided to affirm Weaver's conviction because "where there is no legitimate expectation of privacy, there is no search or seizure" under the Fourth Amendment. The court noted that pursuant to federal precedent (such as United States v. Knotts, 460 U.S. 276), a defendant can neither reasonably expect privacy in the publicly accessible exterior of his or her vehicle, nor in the location of his or her vehicle on public streets. Therefore, the court found that the warrantless attachment of the GPS to Weaver's vehicle was legal because collecting information about the movement of a vehicle on public thoroughfares by means of an electronic device attached to a vehicle's undercarriage, which does not damage the vehicle or invade its interior, does not constitute a search or seizure in violation of the Fourth Amendment.

While I feel uncomfortable with this conclusion, I think that it was the right one under federal precedent such as Knotts.  That said, nothing precludes states from affording citizens greater rights under their state constitutions, and that is exactly what Justice Stein did in his dissenting opinion in Weaver, concluding:

"Specifically, I would reject the 'premise...that information legitimately available through one means may be obtained through any other means without engaging in a search....'  Instead, I would adopt the principle that 'a privacy interest...is an interest in freedom from particular forms of scrutiny'...and would find that '[a]ny device that enables the police quickly to locate a person or object anywhere ... day or night, over a period of several days, is a significant limitation on freedom from scrutiny'...and upon a person's reasonable expectation of privacy, even if it occurs in a place where an expectation of privacy would not be considered reasonable under other circumstances. Stated otherwise, while the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause."   

Well, these disputes among New York courts and justices should soon be resolved.  On Tuesday, the Court of Appeals of New York (the equivalent of most states' supreme courts) heard oral arguments in Weaver. In presenting Weaver's case to the court, his attorney argued, "Your honors, we are here today to decide the most important constitutional case of this young 21st century." Meanwhile, the State's attorney countered, "When you're out in public, you're in public....People can watch you, you can be monitored, cameras can watch you." 

The response from the justices seemed mixed.  One asked Weaver's attorney, "Isn't this just a more efficient way of doing the same thing that's been done by police for a long time; namely, tailing somebody or following somebody?" Meanwhile, the Chief Justice cautioned that "We have to also consider the opportunity for abuse."  

I couldn't get it to play, but it appears that Capital News Nine has some video of the arguments or least analysis of them here. The court's ruling is expected in April. 

-CM

The Lone Ranger And Tonto Fistfight In Heaven, Take 4: Tenth Circuit Denies En Banc Request In Juror Racism Appeal

Readers of this blog are intimately acquainted with the plight of Kerry Dean Benally.  Last December, I wrote a post which laid out the basic details of his trial and its aftermath:

An officer spotted Kerry Dean Benally, a Native American man, who was allegedly driving erratically in the White Mesa area in southeastern Utah. The officer than followed Benally to his residence. At this point, according to the officer, Benally, who appeared to be intoxicated, punched the officer and struck him in the face with a flashlight. Benally was charged with assault on a federal officer, and trial began and ended quickly with the jury finding Benally guilty as charged. 

After the verdict was entered, however, a problem soon arose.  When the jury was selected to hear the case, all seated jurors denied that they had any preconceived notions about Native Americans. According to juror Karen Cano, however, some jurors were either fooling the court or fooling themselves.  Cano came forward after the verdict and told the court that the jury foreman told the other jurors that he had lived on or near a reservation and that he told the other jurors, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent." According to Cano, a female juror then seemed to agree with the foreman, saying something about what happens when "they get drunk." Cano also claimed that two other jurors talked about wanting to send a message to the reservation. 

Notwithstanding Federal Rule of Evidence 606(b), the anti-jury impeachment rule, the United States District Court for the District of Utah allowed for the admission of Cano's affidavit and vacated Benally's conviction. At the time, I noted, "The Benally case...appears to be the first case in which a court in the Tenth Circuit has considered post-verdict evidence of juror racial bias in reversing a verdict."

And the Tenth Circuit wasn't very happy with the district court's decision.  It subsequently reversed, finding that:

(1) Rule 606(b) only permits jury impeachment based upon allegations of extraneous prejudicial information or improper outside influences, and allegations of juror bias fit in neither box;

(2) An inquiry into whether a juror lied on voir dire is constructively an inquiry into the validity of a verdict, which is precluded under Rule 606(b); and

(3) The Supreme Court found in Tanner v. United States, 483 U.S. 107 (1987), that the application of Rule 606(b) to allegations of an incompetent (drunk/high/sleepy) juror does not violate the Sixth Amendment right to a competent jury, so the application of Rule 606(b) to allegations of a biased (racist) juror does not violate the Sixth Amendment right to an impartial jury.

Well, unfortunately, on Monday, the Tenth Circuit denied Benally's en banc request in United States v. Benally, 2009 WL 738393 (10th Cir. 2009), but there were some interesting and compelling dissenting opinions.  In his dissenting opinion, Judge Briscoe noted that Rule 606(b) only precludes post-trial juror testimony "[u]pon an inquiry into the validity of a verdict," not to prove that a juror lied during voir dire. According to Briscoe,  

If, as Mr. Benally asserts, one or more jurors failed to honestly respond to the district court's questions during voir dire, then Mr. Benally would have established the existence of a structural defect in his trial, i.e., the deprivation of his Sixth Amendment right to an impartial jury.  

I agree.  Indeed, this is one of the points that I make in my new article, Dismissed with Prejudice.  But, I am not alone.  Instead, as I note in my article, “[c]ourts have universally held that [Rule 606(b)]…do[es] not preclude evidence to show that a juror lied on voir dire." Well, at least courts had universally come to this conclusion before Benally. So, where did the Tenth Circuit go wrong? Well, as I note in my article and as Briscoe noted in his dissent, the Tenth Circuit relied upon the opinion in Williams v. Price, 343 F.3d 223 (3rd Cir. 2003), where the Third Circuit merely found (because it was dealing with a habeas petition), that there was no Supreme Court precedent clearly establishing that jurors could testify concerning juror deliberations to prove that a juror lied during voir dire. And the Third Circuit was correct.  There is no Supreme Court precedent on the issue (yet).  But before Benally, circuit courts universally had allowed such testimony, meaning that the Tenth Circuit created a circuit split based upon a flawed reading of Price. 

Judge Briscoe also claimed that even if Cano's affidavit were potentially precludable under Rule 606(b), it was admissible because juror bias/racism constitutes "extraneous prejudicial information," a proper predicate for jury impeachment under the Rule.  I wish that I could agree with Judge Briscoe on this point, but as I noted in my last post on Benally, "extraneous prejudicial information" covers external evidence (such as a newspaper article about a failed polygraph test finding its way to the jury), not information, however, biased, that comes from a juror himself.

I do, however, agree with the third part of Judge Briscoe's dissent, in which he found that the Tenth Circuit improperly conflated the Sixth Amendment right to a competent jury with the Sixth Amendment right to an impartial jury.  In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court found that the application of Rule 606(b) to allegations that jurors got drunk, got high, and slept through parts of trial did not violate the the Sixth Amendment right to a competent jury.  According to the Tenth Circuit, this meant that the application of Rule 606(b) to allegations that jurors used racial slurs during deliberatoons did not violate the Sixth Amendment right to an impartial jury.  As I do in my article, Judge Briscoe disagreed, finding that there is a fundamental difference between the two rights because "the Sixth Amendment right to an impartial jury is itself a 'structural feature' of the justice system, and..., as a consequence, a violation of this right is not susceptible to harmless error review."  

Judge Murphy also dissented, noting that there is a circuit split on the issue(s) raised by Benally, meaning that it was "undoubtedly worthy of en banc review."  The question then becomes whether Benally will try to get heard by the Supreme Court and whether the Supremes will grant cert. I certainly hope so, and maybe if they do, they will find, as I argue in my article, that the application of Rule 606(b) to allegations of juror racism violates the right to present a defense.

-CM

Cross The Pages Of The Magazine: Court Notes That Consumer Complaints Are Often Admissible Under The Residual Hearsay Exception

When litigants are unsuccessful in introducing statements under the traditional exceptions to the rule against hearsay, they typically attempt to rely upon Federal Rule of Evidence 807, the residual exception, as a last resort.  Usually, courts rebuff such attempts, but as the recent opinion of the United States District Court for the Western District of Pennsylvania in F.T.C. v. Magazine Solutions, 2009 WL 690613 (W.D. Pa. 2009), makes clear, courts generally have found that consumer complaints qualify for admission under Rule 807.

In Magazine Solutions, the Federal Trade Commission brought an action against Magazine Solutions, alleging that they

violat[ed] the FTC Act and the Telemarketing Sales Rule (TSR) by calling consumers and telling them they were eligible to receive "valuable coupons" for groceries and other items, when in fact they were luring them into signing up to purchase unwanted magazine subscriptions. The Commission’s complaint state[d] that the defendants, collectively known as Magazine Solutions, often did not tell consumers up-front that to get the coupons they had to buy the subscriptions, and sometimes claimed the magazines were free or that the consumers only had to pay shipping and handling. When consumers tried to cancel their orders, many found it was nearly impossible to do, and were stuck with subscriptions to magazines they never wanted in the first place.

The problem for the F.T.C. was that it had numerous consumer complaints and declarations concerning Magazine Solutions, but none of these documents were covered by any of the traditional exceptions to the rule against hearsay included in Federal Rules of Evidence 803 and 804. Nonetheless, the F.T.C. claimed that these documents were admissible under Federal Rule of Evidence 807, the residual exception to the rule against hearsay, which provides that    

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

The court agreed.  First, the court found that the complaints and declarations were trustworthy because the consumers were known and named, their allegations were based upon personal knowledge, the allegations corroborated each other, and the allegations "were made to governmental agencies and/or consumer agencies with the apparent expectation that action would follow based upon the representations."  Second, the court found that the complaints and declarations were evidence of a material fact because they

contain[d] evidence...of the Defendants' representations regarding the value of the coupons promised and the value actually received. The evidence will also be probative regarding representations about the cancellation policy, the consumers' obligation to pay for services and the Defendants' intentions to pursue legal action. Because the complaints also show the widespread nature of the Defendants' representations, they are material with respect to the issue of customer redress as well.

Third, the court found that the complaints and declarations were (more) probative (than any other evidence) because Magazine Solutions itself admitted that it "failed to retain all records of customer complaints" and "all letters they themselves sent to consumers." Fourth, the court found that "the general purpose of the Rules of Evidence and the interests of justice would best be served by the admission of the complaints because they would assist this Court in determining the truth."  Finally, the court found that "the Defendants were given fair and adequate notice of the FTC's intent to use this evidence." 

As noted in the introduction, this was not a landmark ruling.  Instead, in reaching the conclusion that these consumer complaints/declarations were admissible under Rule 807, the court noted that other courts, such as the Ninth Circuit, "have also found consumer complaints to have sufficient guarantees of trustworthiness under Rule 807 to permit admission."

-CM

Bringing Good Things To Light?: Action Against GE Healthcare Reveals That Illinois Still Uses The "Control Group" Test For Corporate Attorney-Client Privilege Claims

In Upjohn v. United States, 449 U.S. 383 (1981), the Supreme Court explicitly rejected the "control group" test for determining which communications between a lawyer and members of a corporation are protected from disclosure by the attorney-client privilege.  And while Upjohn was not binding upon the application of state rules of evidence/privilege, many states subsequently reached the same result.  But as the recent opinion of the United States District Court for the Northern District of Illinois in Resurrection Healthcare and Factory Mutual Insurance Company v. GE Healthcare, 2009 WL 691286 (N.D. Ill. 2009), makes clear, Illinois is not one of those states.

In GE Healthcare, Resurrection Healthcare (does anyone else find this name odd?) and Factory Mutual Insurance Company sued GE Healthcare (GEHC) in Illinois state court before GEHC removed the action to federal court based upon diversity jurisdiction.  In their complaint, the plaintiffs claimed that GEHC employees, who were contracted to operate a bio-medical department in a Resurrection-affiliated hospital, negligently allowed mercury to spill on the hospital's floor and improperly disposed of the mercury after the spill was discovered. Before trial, the plaintiffs sought production of interviews of GEHC employees who were present at the hospital at the time of the spill; a written statement by one of those employees; and documentation of a site visit by another GEHC employee.  

In addressing this issue, the Northern District of Illinois first noted that it had to apply Illinois privilege law pursuant to Federal Rule of Evidence 501 because the basis for federal court jurisdiction was diversity jurisdiction.  It then found that:

In the corporate context, Illinois applies the "control group" test to determine whether communications by corporate representatives are cloaked with the privilege....Under this test, a communication is not privileged unless it is made by a member of the control group, which includes top management as well as "an employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority."

As noted, if the basis for the federal court's subject matter jurisdiction were federal question jurisdiction, the court could not have applied this "control group" test and instead would have applied a case-by-case balancing approach similar to the "subject matter" test, under which:

the attorney-client privilege is applicable to an employee's communication if: (1) the communication was made for the purpose of securing legal advice; (2) the employee making the communication did so at the direction of his corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of the employee's corporate duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Whether you agree or disagree with the propriety of the "control group" approach, it certainly makes things simple(r).  All that the Northern District of Illinois had to do was determine whether the GEHC employees at issue were members of the "control group" and whether the communications at issue originated in a confidence that they would not be disclosed, were made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, and remained confidential.  Using this test, the court found that some of the aformentioned interviews/statements/dcouments were privileged while other were not.

-CM

The Things We Do For Love: Tenth Circuit Refuses To Craft "Homosexual Exception" To Bias Questioning

The recent opinion of the Tenth Circuit in United States v. Baldridge, 2009 WL 692107 (10th Cir. 2009), reveals that lawyers are given wide latitude to inquire into potential biases that witnesses harbor against or in favor of the parties in a lawsuit.  And according to the court in Baldridge, that latitude extends to questions regarding a homosexual relationship between witness and party.

In Baldridge, Randy Lee Baldridge, a former elected county commissioner of Rogers County Oklahoma, appealed from his conviction on eight counts of conspiracy, fraud and misapplication of funds by a local government official, mail fraud, money laundering, and corrupt persuasion of a person to obstruct a federal investigation.  Specifically, the prosecution alleged at trial that "Baldridge abused his position as commissioner by engaging in a scheme to file false claims with the County for payment."  

One of the witnesses whom Baldridge called during his defense case was his fried, Brian Slover. During its cross-examination of Slover, however, the prosecution sought to establish that Baldridge and Slover were more than friends and that they were in fact involved in a homosexual relationship.  On appeal, Baldridge claimed that this line of questioning constituted prosecutorial misconduct because it was "treacherously calculated," but the government responded that its "cross-examination of Slover were proper and sought only to establish Slover's 'obvious potential bias in favor of [Baldridge].'"  

The Tenth Circuit sided with the State.  According to the court,

It is permissible impeachment to expose a witnesses' bias....At common law, bias describes the relationship between a witness and a party which might cause the witness to slant his testimony for or against the party....Certainly, if Baldridge and Slover had been having an intimate relationship, Slover's testimony might well have been slanted in favor of Baldridge. And Slover could have been biased in favor of Baldridge even if their relationship was not sexual, but merely close. Baldridge claims this situation is exceptional because an insinuation of homosexuality in rural Oklahoma is incendiary, not likely to be forgotten or forgiven by the jurors. Even if true, it is not a reason to craft a 'homosexual exception' to a hallowed rule of evidence allowing wide latitude for the jury to assess possible witness bias. At most it would be a factor for the trial judge to consider upon a proper Rule 403  objection, absent here. Viewed in the context of the entire trial, we perceive no error in the prosecutor's questioning of Bentz and Slover.  

I agree with the court.  Sure, an insinuation of homosexuality is extremely prejudicial, especially in certain parts of the country (although I don't have any personal knowledge about rural Oklahoma).  But evidence of a romantic relationship between witness and party is extremely probative of a potential bias tainting the witness' testimony.  Because evidence can only be excluded under Federal Rule of Evidence 403 when its probative value is substantially outweighed by its prejudicial effect, it is easy to see why the Tenth Circuit ruled against Baldridge.

-CM