EvidenceProf Blog

Mommie Dearest: Supreme Court Of Wisconsin Gives Appellant New Trial After Judge Failed To Grant Motion to Strike Judge's Mother From The Jury Pool

You are a judge, and your mother is a prospective juror. Based upon the relationship, defense counsel moves to strike the mother for cause. The prosecution opposes the motion. What do you do? Well, according to a circuit court judge in Wisconsin, you deny the motion. And according to the recent opinion of the Supreme Court of Wisconsin in State v. Tody, 2009 WL 1151985 (Wis. 2009), that was the wrong decision.

In Tody, Mark H. Tody, Jr. was charged with taking and driving a vehicle without the owner's consent, as a party to a crime. During the jury selection process, it was revealed the a prospective juror was the judge's mother, leading defense counsel to move to strike her for cause, claiming “we have a Ceaser's [sic] wife situation here where even the very fact of the close relationship I think, it's per se a prejudicial matter."   

Defense counsel seemed concerned that the circuit court judge would misinterpret defense counsel's motion as implying criticism of the judge's mother. Defense counsel asked that the judge's mother be excused for cause from the jury pool “with all due respect” and stated that he “certainly [was] not in any way implying that [the judge's mother] cannot be a fair and impartial juror....” Defense counsel also stated that the situation regarding the judge's mother was a "very sensitive matter." 

Meanwhile, the prosecutor opposed the motion, opining that the judge's mother had "raised an individual who looks at facts and tries to find the truth" and that the judge's mother presumably would do the same as a juror." The judge suggested a preference for granting defense counsel's motion, stating that he was "not necessarily excited about having [his mother] on the panel" and acknowledging that he “[could] see the possibility of questions arising” and particularly worrying that he might “be called into a position where I would have to rule on some type of juror misconduct involving my mother[.]" Nonetheless, the judge reluctantly denied the motion, concluding, “I don't think I have any legal basis for excusing her." 

Subsequently, neither side used a peremptory challenge on the mother, and she served on the jury that convicted the Tody. Thereafter, Tody appealed, claiming, inter alia, that the judge's (in)action violated his right to an impartial jury under the Sixth Amendment of the U.S. Constitution and Article I, Section VII of the Wisconsin Constitution. And the Supreme Court of Wisconsin agreed, concluding that

[t]he circuit court judge erroneously concluded that although there were practical reasons for striking his mother from the jury, he had no legal basis for doing so. The correct principle of law that should have guided the circuit court judge is that a circuit court judge should err on the side of dismissing a challenged juror when the challenged juror's presence may create bias or an appearance of bias.  

And the court found such bias, noting that

[t]he judge's mother has an interest in the case, namely her familial relationship with the judge, that is extraneous to the evidence on which the jury is to base its decision. A reasonable person in the position of the judge's mother would not have been able to set aside her relationship to the presiding judge when discharging her duties as a juror.

Indeed, the court was able to reach this conclusion without a finding of actual bias by the mother because "[a] presiding judge's mother as a juror is a special circumstance so fraught with the possibility of bias that objective bias must be found regardless of the particular juror's assurances of impartiality." Furthermore, because the presence of a biased juror is a structural error not subject to a harmless error analysis, the court was automatically able to award Tody a new trial.

(Hat tip to my colleague Dave Schwartz for the link)

-CM

Check Your Speed: Hawai'i Court Finds Speed Check Card Was Properly Admitted At Speeding Trial

Federal Rule of Evidence 803(8)(B) (like most state counterparts) provides an exception to the rule against hearsay for 

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel. 

What happens, though, when the prosecution seeks to present into evidence records of routine, nonadversarial matters made in a nonadversarial setting by police? There's a split among courts, with some finding that such records can be admitted as business records under Federal Rule of Evidence 803(6) because they are not the type of records intended to fall under Federal Rule of Evidence 803(8)(B)'s criminal trial exclusion and other courts applying the Rule's language to exclude such records. The recent opinion of the Intermediate Court of Appeals of Hawai'i in State v. Fitzwater, 2009 WL 1112602 (Hawai'i App. 2009), reveals that Hawai'i courts fall in the former camp.

In Fitzwater, Zachariah Fitzwater appealed from his conviction for excessive speeding, claiming that the trial court improperly allowed the prosecution to introduce into evidence a speed check card. Now, some courts would have agreed with Fitzwater. For instance, in United States v. Oates, 560 F.2d 45 (2nd Cir. 1977), the Second Circuit found that a chemist's report and worksheet were inadmissible under Federal Rule of Evidence 803(8)(B) and that once a record/report is deemed inadmissible as a public record under Federal Rule of Evidence 803(8)(B), it cannot be "back-doored" into evidence as a business record under Rule 803(6). 

(Most) other courts have disagreed, however, finding that Federal Rule of Evidence 803(8)(B) does not preclude the admission of "records of routine, nonadversarial matters made in a nonadversarial setting" by police under Rule 803(6). Underlying these courts' decisions is the Advisory Committee's Note to Federal Rule of Evidence 803(8)(B), which states in relevant part that the House  

excluded from the hearsay exception reports containing matters observed by police officers and other law enforcement personnel in criminal cases. Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases. (emphasis added).

The Intermediate Court of Appeals of Hawai'i agreed with these other courts, finding that the speed check card was admissible as a business record under Hawai's version of Federal Rule of Evidence 803(6) because such cards are nonadversarial because  “the record-makers of speedometer calibrations have no motive to falsify the records."

The court also rejected Fitzwater's argument that admission of the speed check card violated his rights under the Confrontation Clause, and, well, if the Supreme Court ever decides Melende Diaz, we will see whether that ruling remains correct.

-CM

Everything's Bigger In Texas?: Opinion Reveals Four Key Differences Between Federal And Texas Statement Against Interest Exceptions

The recent opinion of the Court of Appeals of Texas in Chaney v. State, 2009 WL 1086952 (Tex.App.-Houston [1 Dist.] 2009), reveals that Texas' statement against interest exception to the rule against hearsay is different from its federal counterpart in four material regards. 

In Chaney, Jermaine Chaney appealed from his conviction for murder. The prosecution procured Chaney's conviction in large part through the testimony of Antoinette Miller, who testified at trial that the victim had stolen cocaine from her husband and that he had sent Chaney to kill the victim. After Chaney was convicted, he appealed, claiming, inter alia, that Miller's testimony was improperly admitted.

The Court of Appeals of Texas thus had to address whether Miller's testimony was admissible under Texas Rule of Evidence 803(24), the statement against interest exception to the rule against hearsay, which provides that:

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Conversely, Federal Rule of Evidence 804(b)(3), the federal statement against interest exception to the rule against hearsay, provides that, when a declarant is "unavailable" as defined in Federal Rule of Evidence 804(a):

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.  

There are thus three clear material differences between the two hearsay exceptions. First, the federal exception requires that the declarant be unavailable while the Texas exception does not. Second, the federal exception only covers statements (a) contrary to the declarant's pecuniary or proprietary interest, (b) tending to subject the declarant to civil or criminal liability, or (c) that would render invalid a claim by the declarant against another. The Texas exception covers these statements as well as statements that would "make the declarant an object of hatred, ridicule, or disgrace." Third, the federal exception only requires "corroborating circumstances" when a statement tending to expose the declarant to criminal liability is offered to exculpate a criminal defendant. The Texas exception requires "corroborating circumstances whenever a statement tending to expose the declarant to criminal liability is offered at a criminal trial.

In Chaney, however, two of these differences might have been relevant. First, the opinion makes no mention of the husband being "unavailable," which would have rendered the federal exception, but not the Texas exception, inapplicable. Second, the husband's statement tended to expose him to criminal liability but was not offered to exculpate Chaney. Thus, "corroborating circumstances" would not have been required under the federal exception, but they were required (and found) under the Texas exception.

So, the Court of Appeals of Texas found that Miller's testimony was properly received, and a court using the Federal Rule of Evidence 804(b)(3)..., well it would have reached a different conclusion, which brings me to the fourth key difference between the two rules. You see, in Williamson v. United States, 512 U.S. 594 (1994), the Supreme Court found that Federal Rule of Evidence 804(b)(3) does not allow for the admission of portions of statements against interest by a declarant which also implicate the defendant.

In Bingham v. State, 909 S.W.2d 903 (Tex.Crim.App. 1994) (which was subsequently withdrawn), a concurring judge noted Williamson's holding and noted that Texas precedent did allow for the admission of portions of statements against interest by a declarant which also implicate the defendant. But while that judge called for overruling of the inconsistent Texas precedent, as far as I can tell, this Texas precedent has not been overruled, which is why the court found that Miller's testimony was properly received.

-CM      

 

It's Settled: Sixth Circuit Finds Rule 408 Doesn't Bar Settlement Negotiation Evidence From Being Used To Prove Minimum Contacts

In order for a forum state (and thus its federal courts) to have personal jurisdiction over a nonresident defendant even though the defendant was not personally served within the forum state, the defendant must, inter alia, have minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Meanwhile, Federal Rule of Evidence 408 states:

(a) Prohibited uses.--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.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution

In SunCoke Energy, Inc. v. MAN Ferrostaal Aktiengesellschaft, 2009 WL 1034990 (6th Cir. 2009), the Sixth Circuit had to address the question of whether evidence of settlement negotiations is admissible to establish the aforementioned minimum contacts. The Sixth Circuit found that it is, and I agree.

In SunCoke Energy, SunCoke brought an action for injunctive relief in federal district court in Tennessee, seeking the return of confidential trade information generated and provided by it to MAN Ferrostaal, a German engineering and construction company. That court, however, found that it lacked personal jurisdiction over MAN Ferrostaal after precluding SunCoke from presenting evidence of settlement negotiations between MAN Ferrostaal and it in Knoxville, Tennessee before the action was brought to establish that MAN Ferrostaal had the requisite minimum contacts with Tennessee.

In so doing, the district court cited to Nationwide Mutual Insurance Co. v. Tryg Intern. Ins. Co., Ltd., 91 F.3d 790 (6th Cir. 1996), where the Sixth Circuit had found in dicta that

attributing significance (for the purposes of determining whether personal jurisdiction exists) to a single entry into the state in order to negotiate a resolution of a prior dispute would create a disincentive for foreign corporations to pursue a resolution in what may be the most efficient manner possible, namely, travelling to an adversary's headquarters and negotiating there.

Now, frankly, in reading this passage, I don't get the sense that the Sixth Circuit was applying Federal Rule of Evidence 408 to preclude evidence of settlement negotiations from the minimum contacts analysis, but the Sixth Circuit read it that way after SunCoke appealed and found that there is no

rational basis for the dicta in the Nationwide Mutual Insurance case that in effect converts Federal Rule of Evidence 408 (“conduct or statements made in compromise negotiations” may not be used “to prove liability for, invalidity of, or amount of a claim”) into a rule of personal jurisdiction under the Due Process clause. Why should these contacts be discounted for the entirely separate question of constitutional contacts? We should not constitutionalize this rule of evidence.

One dissenting (in part) judge disagreed, concluding that "[u]nder Nationwide Mutual Insurance Co....,the parties' settlement negotiations cannot be used as a contact to establish personal jurisdiction on the 2001 contract."

Now, unfortunately, nether side explained itself especially well, but it seems clear to me that the the dissenting judge was incorrect. Federal Rule of Evidence 408 makes clear that evidence of settlement negotiations, etc. is inadmissible only "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." Using evidence of settlement negotiations to prove minimum contacts/personal jurisdiction is neither using that evidence to prove any of these impermissible purposes nor even using that evidence to prove anything related to the merits of the case. 

-CM      

The Shield And The Sword: Supreme Court Of New Hampshire Incorrectly Finds No Waiver Of Attorney-Client Privilege In Implied Covenant Appeal

It is well established that evidentiary privileges cannot be used as both a shield and a sword. For example, a criminal defendant cannot seek to selectively or partially disclose exculpatory statements that he made to his attorney in confidence (sword) while still invoking the attorney-client privilege to preclude the prosecution from discovering incriminatory statements that he made to the same attorney in confidence (shield). And yet, in its recent opinion in Livingston v. 18 Mile Point Drive, Ltd., 2009 WL 1098455 (N.H. 2009), this is excatly what the Supreme Court of New Hampshire allowed the plaintiff to do.

Now, unfortunately, the opinion in Livingston does not provide us with many facts, but here are the basics. Anthony L. Livingston exercised an option to purchase a 1.5 acre lot from 19 Mile Point Drive, Ltd. but he did not technically comply with the option agreement, which "specified that to exercise the option, the plaintiff was required to give written notice to the defendants by certified mail, return receipt requested, and that the option would become effective upon receipt of this notice." Livingston attempted to explain why he did not technically comply with the option agreement by "rel[ying] upon [his attorney's] testimony concerning his preparation for the 2002 closing, the closing itself and his actions on the plaintiff's behalf." The trial court, however, precluded the defendant from discovering other communications between Livingston and his attorney. Thereafter, the trial court found that, notwithstanding Livingston's failure to comply with the terms of the option agreement, the defendant violated the implied covenant of good faith and fair dealing (by failing to point out Livingston's non-compliance to him) and thus awared specific performance to Livingston.

The defendant subsequently appealed, claiming, inter alia, that the trial court improperly denied its discovery request. The Supreme Court of New Hampshire disagreed, finding that the communications that the defendant sought were protected by New Hampshire Rule of Evidence 502, the lawyer-cient privilege. Moreover, the court found that the exception contained in New Hampshire Rule of Evidence 502(d)(3) for "communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer" did not apply because Livingston had not brought an action against his attorney. The court also found that Livingston had not placed his communications "at issue" in the sense that they had become "actually required for "resolution of [an] issue."   

The court, however, did not address the shield and the sword. But the opnion of the First Circuit in United States v. Desir, 273 F.3d 39 (1st Cir. 2001), provides a nice explanation of how a party impliedly waives the attorney-client privilege by trying to use it as a shield and a sword:

The district court's finding that the attorney-client privilege  did not apply was based upon a theory of implied waiver. See 1 McCormick on Evidence § 93 (John W. Strong, ed., 5th ed.1999) (noting that client's conduct, such as partial disclosure , may constitute waiver where it would be “unfair for the client to invoke the privilege thereafter”); see also 3 Weinstein's Federal Evidence § 503.41 (Joseph M. McLaughlin, ed., 2d ed.1997) (waiver by implication may occur whenever party takes a position that makes it unfair to protect attorney-client communications, such as when a client testifies about portions of such communications or client relies on attorney's advice as element of claim or defense); United States v. Workman, 138 F.3d 1261, 1263-64 (8th Cir.1998) (implied waiver is to prevent defendant from “selectively assert[ing] the privilege to block the introduction of information harmful to his case after introducing other aspects” of attorney-client communications that are beneficial; "attorney client privilege cannot be used as both a shield and a sword”); United States v. Rakes, 136 F.3d 1, 5 (1st Cir.1998) (waiver “is directed against selective disclosures by reserving protection for only those communications that the privilege holder himself is prepared to keep confidential”).

This is clearly what Livingston did, and the Supreme Court of New Hampshire thus should have allowed the defendant to discover other communications betwee Livingston and his attorney.

-CM

I Put A Spell On You: Supreme Court Of Illinois Reveals That The State Per Se Precludes Hypontically Refreshed Testimony By Any Witness Besides The Criminal Defendant

In Rock v. Arkansas, 483 U.S. 44 (1987), 

Vicki Rock was charged with manslaughter in connection with the shooting death of her husband.  When Vicki could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis to refresh her memory. Vicki was thereafter hypnotized by a neuropsychologist and subsequently "recalled" that she had a gun in her hand that accidentally discharged when her husband grabbed her arm during a struggle. At trial, however, based upon the prosecution's motion, the court only allowed Vicki to testify concerning what she remembered before she was hypnotized because it "decided to follow the approach of States that ha[d] held hypnotically refreshed testimony of witnesses inadmissible per se."   

The Supreme Court reversed, finding that the application of a per se rule precluding the admission of hypnotically refreshed testimony by a criminal defendant violates the right to present a defense. The Court's opinion, however, did not address the issue of whether courts can apply per se rules precluding the admission of hypnotically refreshed testimony by anyone besides criminal defendants, and the recent opinion of the Supreme Court of Illinois in People v. Sutton, 2009 (Ill. 2009), reveals that Illinois has such a per se rule.

In Sutton, Darryl Sutton was convicted of seven counts of murder for the sexual assault and fatal shooting of Monica Rinaldi and was sentenced to four 100-year extended-term prison sentences and three natural life sentences. The prosecution's sole eyewitness to the crime was David Janik, and his testimony/identification came only after his memory was hypnotically refreshed by Dr. Steven Ries. After he was convicted, Sutton appealed, claiming that Janik's testimony was improperly admitted, and his appeal eventually reached the Supreme Court of Illinois. That court agreed with Sutton, noting that it had previously adopted a per se rule precluding the admission of hypnotically refreshed testimony by any witness besides the criminal defendant in People v. Zayas, 456 N.E.2d 513, 519 (Ill. 1989). Specifically, after laying out this rule, the court in Zayas found that 

The ruling in this case is also consistent with the recent Supreme Court ruling in  Rock v. Arkansas....There, the Supreme Court ruled that a defendant may, by right, introduce hypnotic evidence because the defendant's right to testify on his own behalf, among other rights, outweighs the State's interest in excluding prejudicial evidence, and certain procedural safeguards will protect the integrity of the court. Our case, however, involves a witness for the State, not the defendant himself wishing to testify. As such, there are no constitutional implications and, therefore, Rock does not affect the decision in this case. While the Supreme Court did implicitly acknowledge that hypnotic evidence can have some probative value, its decision does not preclude this court from adopting a per se rule excluding the hypnotically enhanced testimony of a witness other than the defendant.

Applying this rule to the case before it, the court in Sutton noted that 

Janik testified that his memory of the offense and offender came back in bits and pieces during his therapy with Dr. Ries, until he regained his memory of the entire evening. Janik also testified that he did not regain any more memories of the offense after he stopped seeing Dr. Ries. In Zayas, this court recognized the problem with admitting hypnotically refreshed recollections, stating that, "having been hypnotized, the subject gains complete confidence in his 'restored' memory, forgets how it was 'restored,' and is unable to differentiate between that which he was able to recall before hypnosis and that which the hypnosis elicited...." Given that Janik's memory of the offense and the offender was restored solely through hypnosis, it follows that Janik's lineup identification of defendant was tied to his hypnosis therapy with Dr. Ries, even if that identification took place seven years after Janik discontinued therapy. Therefore,...Janik's identification of defendant was influenced by hypnosis making it per se inadmissible under Zayas.

The Illinois rule, as applied to witnesses for the prosecution, makes sense to me. That said, I would be very interested to see what might happen of appeal if a defendant claimed that application of this rule to preclude the testimony of a defense witness violated the right to present a defense.

-CM

Gangster No. 1: Court of Appeals of Minnesota Finds Statements Made During Concealment Phase Of Conspiracy Qualify As Co-Conspirator Admissions

Minnesota Rule of Evidence 801(d)(2)(E) indicates that a statement is not hearsay if the statement is offered against a party and is

a statement by a coconspirator of the party.  In order to have a coconspirator’s declaration admitted, there must be a showing, by a preponderance of the evidence, (i) that there was a conspiracy involving both the declarant and the party against whom the statement is offered, and (ii) that the statement was made in the course of and in furtherance of the conspiracy.

And, as the recent opinion of the Court of Appeals of Minnesota in State v. Neiss, 2009 WL 1046515 (Minn.App. 2009), makes clear, a statement is made "in furtherance of" a conspiracy even if it is made during the concealment phase of the conspiracy.

In Neiss, according to the state's evidence,

George Neiss asked Marsh for permission to look at Marsh's handgun. When Marsh handed it over, George Neiss removed the bullets and returned the handgun and the bullets to Marsh. George Neiss and Marsh then began to argue about Marsh's claim that he was affiliated with the Gangster Disciples. Marsh claimed that he was a member of the Gangster Disciples, but George Neiss claimed that Marsh was not. George Neiss punched Marsh in the head, which caused Marsh to fall to the ground. As Marsh lay on the ground, appellant, George Neiss, and T.W. repeatedly kicked him and yelled at him for lying. T.W. removed Marsh's shoes and threw them in the fire and then stomped on Marsh's bare feet. Appellant stood over Marsh with Marsh's gun and hit Marsh on the head several times with the gun. Marsh asked appellant not to kill him. Appellant put one bullet in the gun and asked Marsh if he wanted to play Russian roulette. Appellant pointed the gun at Marsh's head and pulled the trigger, and the gun fired the bullet into Marsh's head.

Appellant, George Neiss, T.W., and M.C. then fled. George Neiss called his girlfriend, T.D., and asked her to pick them up, and she did so. T.D. and M.C. testified that, as the group was riding in T.D.'s car, George Neiss told T.D. that they had killed Marsh and that appellant was "a gangster now." T.D. also testified that appellant repeated George Neiss's statement by saying, "I'm a 

gangster now."

 

The appellant was subsequently charged with murder and convicted after, inter alia, testimony was received concerning George's statement that they had just killed Marsh and that the appellant was "a gangster now." In addressing the appellant's appeal, the Court of Appeals of Minnesota found that these statements were admissible against the appellant as adoptive admissions under Minnesota Rule of Evidence 801(d)(2)(B) because the appellant responded to them by saying, "I'm a gangster now."   

The admissibility of a statement that George made the day after the murder was a closer call. Evidence was admitted at trial indicating that

the day after the murder, T.D. drove appellant and George Neiss back to the [murder scene] because George Neiss said that he had forgotten something. After returning to the car, George Neiss told T.D. that Marsh's body was still lying on the ground near a tree and that he had taken care of the crime scene so that “as long as [T.D.] and [M.C.] didn't say anything, [they would] be fine.

 

As noted, though, the court found that Minnesota Rule of Evidence 801(d)(2)(E) covers not only statements made during the commission phase of a conspiracy but also statements made during the concealment phase of a conspiracy, and because it found that George's statement was indeed made during the concealment phase, it concluded that the trial court committed no error.

-CM