EvidenceProf Blog

Ford Tough?: Sixth Circuit Reverses Excited Utterance Ruling Against Ford Based Upon Odd Test

The recent opinion, Maggard v. Ford Motor Company, 2009 WL 928604 (6th Cir. 2009), makes it clear that the Sixth Circuit has added one foundation factor to the excited utterance exception to the rule against hearsay and subtracted another. In looking at the way in which that court analyzes excited utterances, however, I would characterize the result more as strange than unsettling.

In Maggard, Ford appealed from a jury verdict finding the company strictly liable for injuries suffered by Dawn Maggard after her leg was trapped under her Ford Windstar van as it unexpectedly began to roll backwards out of her driveway. In reaching this verdict, the jury apparently relied upon the version of events relayed to them through Dawn and her ten-year old daughter Holly (via deposition) that the Ford Windstar van began moving while the gearshift was in the park position. And they really had no choice. No alternate version of events was presented because the trial judge precluded Ford from presenting into evidence the report of a responding officer whom spoke with Holly 30-40 minutes after the accident and wrote:

[T]he witness, the driver's ten-year-old daughter...stated her mother was going to drive her and her little sister to Walgreens. Witness stated her mother was getting in the driver's seat while she and her sister walked around to the passenger side. Witness stated her mother was halfway in the van when she slipped. Witness stated her mother grabbed the gearshift [sic] as she slipped and the van went into reverse. The van was parked at the top of driver's inclined driveway and began rolling backwards. Witness stated her mother could not keep up to get in and, as she struggled, the van turned and the driver's leg was pulled under the front and dragged...and victim fell out of the van and was trapped under the van as it came to rest in the ditch across the street.  

In the report, the officer also provided the following description of Holly's demeanor at the time that she spoke with him: 

“I don't recall her being very upset and having difficulty talking to me, I mean, other than naturally being upset about what had just happened. And I do kind of recall thinking that she probably didn't really know at the time the seriousness of it."  

Holly was initially named as a plaintiff but was later voluntarily dismissed because the elder Maggards (or their attorney) presumably realized that it she were a plaintiff, her statements to the officer would have been admissible under Federal Rule of Evidence 801(d)(2)(A) as the admission of a party opponent. And the strategy worked, at least in the short term, because the district judge also found that Holly's statements to the officer were not admissible as present sense impressions under Federal Rule of Evidence 803(1) or excited utterances under Federal Rule of Evidence 803(2). 

While the Sixth Circuit agreed on the former exception, it disagreed on the latter and thus reversed. Initially, the court noted that Federal 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." The Sixth Circuit then noted that an "excited utterance" is admissible under this exception only if three foundation factors are fulfilled:

(1) there [is] an event startling enough to cause nervous excitement;

 

(2) the statement [is] made before there is an opportunity to contrive or misrepresent; and 

(3) the statement [is] made while the person [is] under the stress of the excitement caused by the event.  

There are two problems with this conclusion. First, the text of the rule makes it apparent that the "requirement" that the statement at issue be "made before there is an opportunity to contrive or represent" is not in fact a requirement under the excited utterance exception. Instead, what matters is that the proponent prove that the statement was made while the person was still under the stress of the startling event/condition (the third element), which then leads to the conclusion that it was reliable. Second, the text of the rule clearly requires that the subject statement be related to the startling event/condition, yet the Sixth Circuit does not list this requirement as a foundation factor.

So, why did I say above that the Sixth Circuit's test is more strange than unsettling? Well, it seems as if that court does basically the same analysis under factor two as it does under factor three. In finding that factor two supported admission in Maggard, the court considered the "passage of time" and the "circumstances of the event," including the substance of Holly's statements and the fact that nobody had counseled her before she spoke with the officer. Similarly, in finding that factor three supported admission in Maggard, the court considered

“(1) the lapse of time between the event and the declarations; (2) the age of the declarant; (3) the physical and mental state of the declarant; (4) the characteristics of the event; and (5) the subject matter of the statements."  

In other words, the Sixth Circuit's second factor seems merely duplicative of its third factor and thus meaningless. Moreover, as noted, the Sixth Circuit considered the "substance of Holly's statements," finding that "[w]hen the subject matter of the statement involves the startling event itself, the subject matter supports a finding that the declarant was still under the stress of the statement." I interpret this as the Sixth Circuit reading the requirement that the subject statement be related to the startling event/condition into its foundation factors. It thus seems to me that while the Sixth Circuit's test for the admissions of excited utterances is confusing, it is not (that) different from the test called for by Federal Rule of Evidence 803(2). 

(Hat tip to William Woodruff for the link to the opinion).

-CM

Potential Vs. Actual: Third Circuit Finds That Rule 408 Doesn't Apply To General Release Signed By Age Discrimination Plaintiff

 Federal Rule of Evidence 408 states in relevant part that

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

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

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

There are thus two foundational elements that must be satisfied for evidence of alleged settlement negotations to be deemed inadmissible: (1) there must have been a claim, and (2) that claim must have been disputed as to validity or amount. And the problem for the plaintiff in Seasonwein v. First Montauk Securities Corp., 2009 806637 (3rd Cir. 2009). was that the general release he claimed that he executed during settlement negotations was executed before a claim existed.

In Seasonwein, Jerome Seasonwein brought an action against First Montauk Securities, alleging that he was terminated because of his age in violation of the Age Discrimination in Employment Act and the New Jersey Law Against Discrimination. The district judge, however, dismissed the latter claim based upon lack of subject matter jurisdiction and granted First Montauk's motion for summary judgment dismissing the first claim.

Seasonwein subsequently appealed, claiming, inter alia, that the district judge erred by admitting evidence that he signed a general release, under which he agree to waive all of his claims against First Montauk in exhange for his acceptance of a severance package (The district judge actually found that the release did not contain language required by the Older Workers Benefits Protection Act, rendering it ineffective, but she still considered it while deciding First Montauk's motion for summary judgment).    

But Seasonwein's problem, according to the Third Circuit, was that 

[a]t the time Seasonwein signed the release, he had not yet alleged-or even considered alleging-any claims against First Montauk. As a result, the agreement signed by Seasonwein merely affected a general release-it did not settle any specific claims, as there were no claims at issue that could have been settled.  

In other words, because there was no claim, there were no settlement negotiations, and  Federal Rule of Evidence 408 was inapplicable. Or, as some courts have put it, Seasonwein only had a potential claim and not an actual claim, and the latter is required for Federal Rule of Evidence 408 to apply.

-CM

I Won't Be The Judge Of That: Texas Appeal Reveals That The Lone Star State Doesn't Allow For Judicial Interrogation

The recent opinion of the Court of Appeals of Texas in Clark v. State, 2009 WL 857607 (Tex.App.-Deaumont 2009), reveals that, unlike the Federal Rules of Evidence, the Texas Rules of Evidence do not allow for judicial interrogation of witnesses. And while I disagree with the Texas approach, I think that it tells us something important about the role of the judge at trial.

In Clark, Nathaniel Dywane Clark appealed from his conviction for murder. One of the grounds for Clark's appeal was that the trial judge improperly interrogated two witnesses, an officer who testified regarding the scene of the crime and a ballistics expert. And he was right. The Court of Appeals of Texas noted that while Federal Rule of Evidence 605 precludes testimony by judges in cases over which they are presiding because it make make them look partial, Federal Rule of Evidence 614(b) indicates that "[t]he court may interrogate witnesses, whether called by itself or by a party." But the court also noted that while Texas does have a state counterpart to Federal Rule of Evidence 605, it does not have a state counterpart to Federal Rule of Evidence 614(b) because "[i]t would be almost impossible for the court to take part in the examination of witnesses without impressing the jury with the belief that the court believed or disbelieved the testimony of the witnesses, whether the court intended to make such an impression or not."  

Now, this is certainly an extreme position. I think that most people would agree that judges should at least be able to ask some questions to witnesses, and as far as I know, Oregon is the only other state that does not allow for judicial interrogation. But I'm not going to argue with the Texas position because I think that the Lone Star state is correct that judicial questioning can give off the appearance of judicial bias (or show actual judicial bias). I just think that Texas applied the wrong part of  Federal Rule of Evidence 605 to judicial interrogation.

You see, Clark did not object to the judge's interrogation of the two witnesses, so the Court of Appeals of Texas found that he had not preserved the issue for appeal. Therefore, the court could not have reversed for abuse of discretion and could only have reversed for plain error, which it did not find because "[n]one of the trial judge's questions to the witnesses in front of the jury in this case tainted the defendant's presumption of innocence or suggested partiality."

So, what do I mean when I say that Texas applied the wrong part of  Federal Rule of Evidence 605 to judicial interrogation? Well, there are two parts to Federal Rule of Evidence 605. The first says that judges cannot testify at trials over which they preside, and the second says that"[n]o objection need be made in order to preserve the point." As Clark makes clear, Texas precludes judicial interrogation but requires an objection to such interrogation to preserve the issue for appeal, as does Federal Rule of Evidence 614(b).

As I noted above, I think that most people would agree that judges should at least be able to ask some questions of witnesses, which is why I think that Texas wrongfully proscribes judicial interrogation. But, why does Federal Rule of Evidence 605 not require an objection to judicial testimony? Well, according to the Advisory Committee Note to Rule 605,

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

Wouldn't the same apply when a party objects to judicial questioning? Why do the Rules (both federal and Texas) require an objection to judicial interrogation but not require an objection to judicial testimony? The only justification that I can see is that while an objection to judicial testimony would lead the judge to conclude that his integrity had been attacked, an objecton to judicial interrogation would not. But I don't think that judges (would) make that distinction. But I'm sure that the issue is more complicated than that, so I have started to research the issue with an eye toward completing an article on the topic, which I will post here when it is completed.

-CM 

In Treatment?: Supreme Court Of Mississippi Finds Medical Treatment/Diagnosis Applied To Mother's Statements Identifying Child's Sexual Abuser

The recent opinion of the Supreme Court of Mississippi in Valmain v. State, 2009 WL 863471 (Miss. 2009), addressed two important aspects of the statements for purposes of medical treatment/diagnosis exception to the rule against hearsay: (1) Do the statements at issue have to come from the (prospective) patient, and (2) are statements identifying a child sexual abuser inadmissible if the abuser does not live with the child? The court answered each question in the negative, and I agree with each conclusion.

In Valmain, Paul Clark Valmain appealed from his conviction for sexual battery based upon his alleged sexual penetration of a five-year-old girl, C.A. This alleged sexual battery occurred while Valmain was babysitting C.A., and after C.A. returned home, she began complaining of, inter alia, genital pain. C.A.'s mother, Christy Allen, subsequently went to Dusty Brown, a counselor at C.A.'s school, for advice and later took her daughter to Rush Foundation Hospital, where she was examined by Shalotta Sharp, a registered nurse and sexual-assault examiner. At trial, after the prosecutor asked Sharp to testify as to the medical history she had obtained with regard to C.A., the following exchange occurred:

A. The patient presented with the mother stating that she had been babysat by a neighbor, and upon coming home from this neighbor, complained of a genital pain. The mother questioned the child-I'm sorry. The school counselor, the child had revealed to the school counselor that she had been touched inappropriately, and the mother had stated that the child had genital pain and some behavior changes and that DHS was contacted and she was referred for an exam.

Q. Did the history also determine or advise you as to who this neighbor was?

A. Yes.

Q. And who was the neighbor?

A. Paul Valmain.  Paul Valmain.

After Valmain was convicted, he appealed, claiming that Sharp's testimony was improperly admitted because it relayed the hearsay statements of Allen to the jury. In addressing this argument, the Supreme Court of Mississippi noted that its analysis was guided by Mississippi Rule of Evidence 803(4), which provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the  proffered statements were made under circumstances substantially indicating their trust worthiness.

Valmain first claimed that this exception did not apply because the statements at issue came from the patient's mother and not from the patient herself. The court, however, noted that Rule 803(4) contains no requirement that the statements at issue come from the patient herself. Instead, the court noted that the reason for the exception is the "selfish treatment motivation," i.e., the belief that patients will be honest with medical service providers for fear that false information will lead to misdiagnosis and/or mistreatment. The court noted that this same motivation applies when a parent seeks treatment for her child and noted that its "finding [wa]s supported by a majority of the state and federal courts which have addressed the question."  

Valmain also claimed that this exception did not allow for the admission of any statements identifying him as the alleged abuser because such statements of identification are generally inadmissible under Rule 803(4). One relevant exception to this general rule, however, is the statement of identification in a child sexual abuse case because “the paramount concern in treatment of sexual abuse is to ensure that a child is not returned to the environment that fostered, allowed, or permitted the abuse." Valmain contended that this exception did not apply because he was not a member of C.A.'s household, but the court rebuffed this argument, citing a prior opinion for the proposition that 

[H]earsay testimony identifying the perpetrator is admissible under  Miss. R. Evid. 803(4) regardless of whether he or she is a member of the child's immediate household. The overriding question making the inquiry necessary is, "Will the perpetrator have access to the child in the future that would allow the sexual abuse to continue?" Because the inquiry is necessary for treatment, the answer is admissible under the rule."

The court then found that this was the case in the case before it because

Although Valmain was not an immediate family member living in the same home as C.A., the record shows that he saw the victim and her brother “pretty much on a daily basis.” The record reveals that Valmain visited the children's home often, helping bathe and dress the children. Allen testified that Valmain was a friend and that she had left the children with him on other occasions. Valmain testified that he was a part of the kids' lives.

-CM

An Analog Rule in a Digital World?: Court of Appeals of Indiana Precludes Jury Impeachment Based Upon Text Message Found in Defendant's Cell Phone

(Cross-posted on PrawfsBlawg)

I noted in my first post here that I planned to do all of my posts this month on the grading and evaluation of students, but I came across an opinion today that I wanted to share with the wider audience of PrawfsBlawg because it deals with an issue that is becoming impossible to ignore:  How do we deal with the increasing intersection between adavnced technology and the right to trial by jury? A recent New York Times story identified the Google mistrial, i.e., the increasing use of Blackberrys and iPhones  by jurors gathering information about cases and wreaking "havoc on trials around the country, upending deliberations and infuriating judges." Last week, CrimProf Blog did a post about the judge in the trial of Brooke Astor's son prohibiting Blackberry use by jurors.  The week before the New York Times article, I had posted an entry on my blog about an appeal in which the Eleventh Circuit refused to allow jurors to impeach their verdict after trial through allegations that "jurors allegedly exchang[ed] e-mail both during trial and during deliberations." At the time I mused that "[t]his was undoubtedly the correct decision under [Federal Rule of Evidence 606(b)], but I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." 

Well, today, I read the recent opinion of the Court of Appeals of Indiana in Hape v. State, 2009 WL 866857 (Ind.App. 2009), and while it deals with a slightly different issue, it prompts me to wonder whether judges are as ill-equipped as Rule 606(b) to address what courts should do when technology has encroached upon the jury deliberation process. The issue: What should be done when a juror comes forward after trial and claims that jurors retrieved incriminating text messages from a cell phone that was admitted into evidence, but without either party or the court knowing that the messages existed.  According to the Court of Appeals of Indiana, the answer was "nothing." And according to me, that answer was wrong.

In Hape, Darby L. Hape appealed from his convictions for possession of methamphetamine with the intent to deliver and resisting law enforcement (Hape was also improperly found to be a habitual offender). One of the grounds for Hape's appeal was that he learned from a juror after trial that the jurors were able to turn on one of the cell phones taken from Hape during a search of him incident to a lawful arrest, which was admitted as an exhibit, and recover several text messages, including one from "Brett," which stated:

Hey man do you think you can do something 4 one of what I gave you the other night. I could care less about ours right now but my other dude keeps asking & I don't even have the funds to pay him back I guess I will freakin tell him to get it off the water tower.

Hape claimed that the trial court erred by denying his motion to poll the jury to determine the effect of this unadmitted text message on their verdict, but the Court of Appeals of Indiana found that this denial was improper pursuant to Indiana Rule of Evidence 606(b), which indicates that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occuring 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, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror's affidavit concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

Indiana Rule of Evidence 606(b) is mostly similar to Federal Rule of Evidence 606(b), but the key difference that divides them explains the erroneous decision of the Court of Appeals of Indiana. You see, in Tanner v. United States, 483 U.S. 107 (1987), defendants sought to have jurors impeach their verdict through allegations that jurors were drunk, high, and sleepy during trial and deliberations. The Supreme Court found that the lower courts properly precluded such impeachment because there is an external/internal dichotomy in Federal Rule of Evidence 606(b), pursuant to which jurors cannot impeach their verdicts based upon anything internal or intrinsic to the jury deliberation process (such as misunderstood jury instructions or inferring guilt based upon the defendant's choice not to testify) but can impeach their verdicts based upon anything external or extrinsic to the jury deliberation process, whether it be external evidence (extraneous prejudicial information such as a biased newspaper article about the case finding its way to the jury room) or external influence (improper outside influence such as a threat from a family member of a party to a juror).

In explaining the common law precedent leading to the adoption of Federal Rule of Evidence 606(b), the Court noted that

Lower courts used this external/internal distinction to identify those instances in which juror testimony impeaching a verdict would be admissible. The distinction was not based on whether the juror was literally inside or outside the jury room when the alleged irregularity took place; rather, the distinction was based on the nature of the allegation. Clearly a rigid distinction based only on whether the event took place inside or outside the jury room would have been quite unhelpful. For example, under a distinction based on location a juror could not testify concerning a newspaper read inside the jury room. Instead, of course, this has been considered an external influence about which juror testimony is admissible....Similarly, under a rigid locational distinction jurors could be regularly required to testify after the verdict as to whether they heard and comprehended the judge's instructions, since the charge to the jury takes place outside the jury room. Courts wisely have treated allegations of a juror's inability to hear or comprehend at trial as an internal matter.

The Court then applied this dichotomy to the allegations at hand and concluded that there could be no jury impeachment in the case before it because, inter alia, "[h]owever severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an 'outside influence' than a virus, poorly prepared foor, or a lack of sleep." In other words, the jurors' alleged conditions were conditions caused by them, not something that was improperly presented to them. 

What's clear from Tanner is that, unlike Indiana Rule of Evidence 606(b), Federal Rule of Evidence 606(b), does not contain an exception for post-verdict juror testimony concerning drug or alcohol use by jurors, and I'm betting that Indiana's rule, which was enacted in 1994, was a response to the Court's 1987 opinion in Tanner. Nonetheless, the Court of Appeals of Indiana in Hape adhered to Tanner's internal/external dichotomy, albeit in what I regard as a nonsensical manner.  According to the court in Hape, Hape's jury impeachment argument failed because

the text messages are intrinsic to the cellular telephone. The jury discovered the text messages at issue by turning on a cellular telephone that was admitted into evidence without objection....First, the text messages themselves are not extraneous to the cellular telephone. We agree with the State that text messages are intrinsic to the cellular telephones in which they are stored. "Intrinsic," as defined by Black's Law Dictionary, means "[b]elonging to a thing by its very nature; not dependent on external circumstances; inherent; essential." Black's Law Dictionary 842 (8th ed.2004). We conclude that the text messages at issue here are part and parcel of the cellular telephone in which they were stored, just as pages in a book belong to the book by their very nature, and thus they are intrinsic to the telephone. 

This ruling mischaracterizes the Tanner internal/external dichotomy. Under that dichotomy, the question is whether the information/influence at issue was intrinsic or extrinsic to the jury deliberation process, not whether it was intrinsic or extrinsic to something that was properly in the jury deliberation room. As the Court of Appeals of Indiana correctly noted, the text message was never authenticated and thus never deemed admissible, and as the United States District Court for the Southern District of New York noted in collecting cases in Benjamin v. Fischer, 248 F.Supp.2d 251, 261 (S.D.N.Y. 2002), "extrinsic information does not transform itself into admissible evidence simply because it is hidden within a properly admitted exhibit introduced into evidence without restrictions." As I noted above, the only quesion for the Court of Appeals of Indiana in Hape should have been whether the text message was something that was improperly presented to the jurors, and based upon Benjamin v. Fischer, that the answer is a clear "yes."

But even using the logic of the Court of Appeals of Indiana, do you agree that an incoming text message is "intrinsic" to a cell phone? Using the same definition as the court, is an incoming text message something that "[b]elong[s] to [it] by its very nature; not dependent on external circumstances; inherent; essential?" Again, the answer seems to me to be a clear "no," and an extension of the court's logic would lead to scary results. For instance, let's say that a friend sent a text message to a juror indicating that a news story just revealed that the defendant failed a polygraph test. According to the Court of Appeals of Indiana, this text message would be intrinsic to the cell phone and could not form the proper predicate for jury impeachment. Such a conclusion would be both nonsensical and troubling.

All of this leads me to believe that the Supreme Court of Indiana might reverse Hape's conviction, but what about cases with intra-jury e-mailing, which is indeed intrinsic under Federal Rule of Evidence 606(b)? Well, one of the arguments in my new article, Dismissed with Prejudice, is that courts should find that the Rule violates the right to present a defense, at least in criminal cases.  But what do readers think?  Is it, to paraphrase John McClane, an analog rule in a digital world? Or does it still make sense?   

-CM    

Her Own Private Idaho: Supreme Court Of Idaho Applies State Of Mind Exception To Omitted Spouse Appeal

Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. 

Prior to last week, I had never seen a court apply the last clause of Federal Rule of Evidence 803(3) or a state counterpart. That all changed, however, with the recent opinion of the Supreme Court of Idaho in In re Estate of Montgomery, 2009 863105 (Idaho 2009). 

In Montgomery, Jim Montgomery was married and the father of two sons when he met Nancy Montgomery in late 1986. Jim later divorced his wife in November 1987. On July 5, 1990, Jim executed a will in which he bequeathed a house to Nancy and left his remaining property to his sons in equal shares.  Jim and Nancy subsequently married on October 17, 1991 and remained married until his death on December 2, 2003.  Before Jim's death, he sold the house but never changed his will. When Jim's will was admitted to probate, Nancy thus, inter alia, filed a petition in the probate proceedings seeking an intestate share of Jim's estate as an omitted spouse.

One of Jim's sons opposed Nancy's petition, both sides moved for summary judgment, and both sides raised various evidentiary objections to materials submitted in connection with the cross-motions for summary judgment. Rather than explicitly decide the evidentiary issues, the magistrate judge decided to give the evidence "whatever weight" ge determined to be appropriate. The magistrate judge then granted summary judgment against Nancy, and the district judge affirmed. 

Nancy's appeal eventually reached the Supreme Court of Idaho, which properly held that the magistrate judge acted improperly.  And in reversing in remanding, the Idaho Supremes noted that a certain category of evidence submitted by Nancy would be admissible.  That evidence consisted of proposed witness testimony concerning Jim's statements about the effect of his marriage to Nancy on his will. According to Nancy, these witnesses would testify that Jim indicated that

-his marriage voided his will;

-one of his sons, who was a devisee in his will, would never inherit one cent from him because of his spendthrift habits, drug addiction, and jail time; and

-"Nancy would inherit everything he owned."

In finding this proposed testimony to be admissible, the Supreme Court of Idaho relied upon Idaho Rule of Evidence 803(3), which, like its federal counterpart, provides an exception to the rule against hearsay for statements relating to the execution, revocation, identification, or terms of declarant's will. Therefore, Nancy might be successful based upon the combination of Idaho Rule of Evidence 803(3) and I.C. Section 15-2-301(a), which indicates that

If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.

-CM

Refreshing Refresher: Supreme Court Of Idaho Opinion Nicely Lays Out Contours Of Refreshing Recollection Rule

The recent opinion of the Supreme Court of Idaho in Thomson v. Olson, 2009 884940 (Idaho 2009), contains a nice explanation of how litigants can and cannot use "documents" to refresh the recollection of a witness.  It also teaches the important but oft-forgotten lesson that the party using a "document" to refresh a witnesses recollection cannot introduce that document into evidence while the opposing party can.

In Olson, in late December 2002, Kenneth Thomson underwent shoulder surgery, with an MRI taken after the surgery revealing a small benign periocardial cyst inside his chest. Thomson elected to have surgery to remove the cyst, and Dr. Craig Olsen performed the elective surgery in February 2003 in Boise, Idaho. After the surgery, Thomson was diagnosed with a paralyzed left hemidiaphragm, which treating physicians believed was caused by injury to his phrenic nerve during Dr. Olsen's cyst removal surgery. Thomson thereafter sued Dr. Olsen for medical malpractice.

At trial, Thomson sought to prove his claim in part through the testimony of Dr, Shuman, a thoracic surgeon from California.  According to Dr. Shuman, he became familiar with the applicable standard of care in Boise, Idaho through a telephone conversation with Dr. Cushman, a physician in Boise, Idaho, and could conclude that Dr. Olsen violated that standard of care. The problem for Thomson is that Dr. Cushman subsequently testified that he never discussed the applicable standard of care with Dr. Shuman. 

In order to impeach Dr. Cushman's testimony, Thomson sough to introduce, inter alia, Exhibit 85, a letter from his attorney to Bonnie Lee, Dr. Cushman's secretary, which stated, in relevant part, 

"Bonnie: I have attached the Operative Report, the Mayo Clinic Report and the C.V. of Dr. Shuman. Dr. Cushman would potentially talk by telephone with Dr. Shuman regarding the surgical case....Dr. Shuman simply needs to talk with Dr. Cushman and see what he thinks of the phrenic nerve compromise that caused the paralyzed diaghram [sic] in this unfortunate fellow."  

The trial court, however, found that exhibit was inadmissible hearsay, but Thomson's attorney argued that it could be used to refresh the recollection of Lee, who said she did not remember the letter. pursuant to Idaho Rule of Evidence 612. After using the exhibit in this manner with partial success, Thomson's attorney sought to introduce the exhibit into evidence, but the trial court refused, and a verdict was eventually entered in favor of Dr. Olsen.

Thomson subsequently appealed, but the Supreme Court of Idaho eventually affirmed, and in so doing, it nicely laid out the contours when and how Rule 612 can be used:

First, the witness must exhibit the need to refresh his or her memory and, second, the witness must confirm that the notes will assist in refreshing his or her memory....The witness may not testify directly from the notes, but can use them to assist in recollection....The purpose of Fed.R.Evid. 612 is "to promote the search of credibility and memory...." The court must ensure that the witness actually has a present recollection and is not to allow inadmissible evidence to inadvertently slip in for its truth....Two safeguards have been devised for this purpose....First, the district court has broad discretion in determining whether the witness is truly using the writing to refresh his or her memory, or whether he or she is effectively offering the writing for its truth....Second, Fed.R.Evid. 612 gives opposing counsel the right to inspect at trial whatever is used to refresh recollection, to cross-examine the witness on it and to introduce relevant portions into evidence.    

This last sentence explains why Thomson was not allowed to introduce Exhibit 85 into evidence.  His attorney used the letter to refresh the recollection of Lee, meaning that he could not have the letter admitted.  But, if for some reason, Dr. Olsen thought that the letter benefitted his case, his counsel could have had the letter admitted into evidence.

-CM