May 9, 2009
Speaking Ill Of The Dead: Supreme Court Of Minnesota Dodges Question Of Whether Dying Declaration Declarants Can Be Impeached Through Prior Convictions
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
The clear language of this rule makes the recent opinion of the Supreme Court of Minnesota in State v. Hall, 2009 WL 1228555 (Minn. 2009), confusing.
French did not involve the precise issue before us-a defendant's attempt to impeach with prior convictions. Rather, the defendant in French was attempting to impeach the dying declaration with an inconsistent statement....We need not resolve whether French applies in Hall's case because we conclude that even if Hall should have been allowed to impeach Moore's dying declaration, the district court's refusal to let him do so was harmless error.
May 8, 2009
Razing Arizona: Court Of Appeals Of Arizona Disastrously Mischaracterizes Amendment To Plea Bargaining Portion Of Rule 410
In 2006, I wrote the article Caveat Prosecutor: Where Courts Went Wrong in Applying Robertson's Two-Tiered Analysis to Plea Bargaining, and How to Correct Their Mistakes, 32 New Eng. J. on Crim. & Civ. Confinement 209 (2006). The article concerned Federal Rule of Evidence 410, which renders inadmissible, inter alia, statements made during plea negotiations and argued that courts "should adopt a version of 'caveat prosecutor' under which a prosecutor, who does not procure a waiver of the accused's rights or affirmatively explain to the accused that a meeting is not a plea discussion, assumes the risk that the accused's statements are inadmissible because they were made during plea bargaining or an attempt to open plea bargaining." In its recent opinion in State v. Campoy, 2009 WL 1124384 (Ariz.App. Div. 2 2009) the Court of Appeals of Arizona decided to construe its state counterpart to Federal Rule of Evidence 410, "narrowly, consistent with its original intent," i.e., against the defendant. The court got it wrong.
In Campoy, Leland Crockwell was charged by indictment with conspiracy to commit possession and/or transportation of marijuana for sale and possession of marijuana for sale. Subsequently, his attorney received a letter from the County Attorney indicating that if Crockwell wanted to negotiate a plea agreement, he would be required to participate in "a debriefing" or "free talk" with detectives and that once the state had the opportunity to evaluate the information he provided, a decision would be made on a plea agreement.
Crockwell subsequently met with two detectives, made a statement, and was given a plea agreement provided that he would truthfully cooperate with the investigation and prosecution of, inter alia, "any co-defendants or co-conspirators." Crockwell subsequently made a second statement to the detectives and then gave a third statement that was inconsistent with his first two statements. Therefore, pursuant to the terms of the plea agreement, the judge allowed the prosecution to withdraw from the plea agreement because Crockwell was being untruthful and/or uncooperative. The terms of the plea agreement also permitted the prosecution under these circumstances to use Crockwell's incriminating statements against him, but it was unclear whether the prosecution could only use these statements to impeach Crockwell in the event that he testified or whether it could use them as substantive evidence regardless of whether he testified.
Even though Crockwell decided not to testify, the Court of Appeals found that it did not have to address this issue because Crockwell's second and third statements were not covered by Arizona Rule of Evidence 410. And how did it reach this conclusion? Well, the court noted that Federal Rule of Evidence 410 provides in relevant part that
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Meanwhile, Arizona Rule of Evidence 410, which is somewhat different, provides that
Except as otherwise provided by applicable Act of Congress, Arizona statute, or the Arizona Rules of Criminal Procedure, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere or no contest, or an offer to plead guilty, nolo contendere or no contest to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers is not admissible against the person who made the plea or offer in any civil or criminal action or administrative proceeding.
Part of the reason for this difference is that Federal Rule of Evidence 410 was amended in 1979, and Arizona Rule of Evidence 410 was based upon the pre-amendment Federal Rule of Evidence 410. While Arizona never adopted some version of the post-amendment Federal Rule of Evidence 410, the court in Campoy construed the 1979 amendment as correcting court opinions which had interpreted the federal rule "more broadly than had been intended." Thus, while the court found that Crockwell's first statement to the detectives was covered under Arizona Rule of Evidence 410, it found that the second and third statements were not, using the 1979 amendment to conclude, "[W]e construe our Rule 410 narrowly, consistent with its original intent."
Here's where the court went wrong. The 1979 amendment was, at least in part, intended to correct lower court opinions construing Federal Rule of Evidence 410 too broadly, but not in a way that was relevant to Campoy. Before the amendment, some lower courts had applied Federal Rule of Evidence 410 to statements made to law enforcement officials not working as agents of the prosecution. This is why Federal Rule of Evidence 410 now covers only statements made to an attorney for the prosecuting authority, with courts also determining that statements made to an agent of the prosecution are covered by the Rule.
Now, Arizona Rule of Evidence 410 does not contain this limiting language, and obviously, the court found that Crockwell's first statement to the detectives was covered by the Rule. This means either that Arizona Rule of Evidence 410 either does not have the same requirement as its federal counterpart or that the court found that the detectives were agents of the County Attorney.
In either case, the limiting language was not relevant to Campoy because the court did not find that Crockwell's statements were made to the wrong person; instead, it found that they were made at the wrong time, i.e., after Crockwell had already entered into a plea agreement. And how did it reach this conclusion? Well, it noted that the 1979 amendment changed Federal Rule of Evidence 410, which used to cover statements made "in connection with, and relevant to plea discussions" so that it now covers statements made "in the course of plea discussions."
The court then concluded, "Clearly, this was intended to narrow the interpretations of the rule," citing portions of the Advisory Committee's Note to the 1979 amendment which did not actually support this conclusion. And why did these portions not support the court's conclusion? Well, as I noted above, the court got it wrong. Here's is the relevant portion of that Note:
The language of the amendment identifies with more precision than the present language the necessary relationship between the statements and the plea or discussion. See the dispute between the majority and concurring opinions in United States v. Herman, 544 F.2d 791 (5th Cir. 1977), concerning the meanings and effect of the phrases "connection to" and "relevant to" in the present rule. Moreover, by relating the statements to "plea discussions" rather than "an offer to plead," the amendment ensures "that even an attempt to open plea bargaining [is] covered under the same rule of inadmissibility." United States v. Brooks, 536 F.2d 1137 (6th Cir. 1976).
For a fuller discussion of this issue, you can check out my article, but I think that the last sentence from this block quote makes it clear that the Advisory Committee intended to loosen the time requirement of Federal Rule of Evidence 410 so that it covered more than statements made during the actual plea bargaining process. Frankly, I'm baffled by the Court of Appeals of Arizona's conclusion that this change was "[c]learly...intended to narrow the interpretations of the rule." Normally, I would assume that the court simply skipped the Advisory Commitee's Note, but as noted above, the court actually cited to other portions of the Note in its opinion. I thus have no idea how the court so drastically mischaracterized the purpose of this change of language in the 1979 amendment.
May 7, 2009
Recalculating, Take 5: Is GPS Evidence Too Unreliable To Be Admitted Into Evidence?
I have written four posts on this blog (here, here, here, and here) about court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle. Those opinions and articles dealt with the Fourth Amendment (and state counterpart) implications of such "unwarranted" behavior, but a new article in InformationWeek calls into question whether GPS data is reliable enough to be admissible as expert evidence.
In the article, GPS Evidence Too Unreliable For Legal Purposes, Thomas Claburn provocatively opens by noting:
While the U.S. Supreme Court has yet to weigh in on the constitutionality of warrantless GPS tracking, a more fundamental question may be whether GPS data is reliable enough to be admissible in court.
According to the article, it likely is not. Claburn notes that:
Todd Glassey, chief scientist of Certichron, a time data trust service, and founder of the U.S. Time Server Foundation, argues that GPS devices can be easily jammed and that their data can be spoofed, particularly when tied to cellular systems -- as offender tracking bracelets may be.
He then notes that this isn't a novel concern because "[t]he U.S. Department of Defense has forbidden the use of L1 GPS -- the version of GPS available to civilians [and used by many law enforcement entities] -- for military purposes since 1998, owing to data integrity and security shortcomings." The article also cites to a research paper by member os the Los Almos National Laboratory Vulnerability Assessment team, which concluded that "Civilian Civilian Global Positioning System (GPS) receivers are vulnerable to attacks such as blocking, jamming, and spoofing."
All of this might come to a head with the D.C. Circuit's upcoming opinion in United States v. Jones, a case involving the warrantless placement of a GPS device on a suspect's car. In a technical brief submitted by Glassey in that case, he argued that
"The knowledge of the use of GPS test equipment to alter or affect the readings inside of GPS receivers has already made the jump from the technology community to the hacker community such that commercial products and general knowledge of how to spoof L1 GPS systems is available everywhere."
We should soon see whether the court agrees.
May 6, 2009
CSI Alabama: Alabama Court Finds Detective Could Offer Crime Scene Conclusions As A Lay Witness
After a man is shot, his shooter is charged with attempted murder and claims that he was acting in self-defense. The prosecution responds by calling a detective, who is not qualified as an expert witness in the area of crime-scene investigation or reconstruction, to testify as a lay witness that the shooting could not have happened the way that the defendant claimed it did. The per curiam opinion finds that this testimony was not impermissible "ultimate issue" testimony. A dissenting (in part) judge counters that the detective's conclusion was a "meaningless assertion." My conclusion: Both sides missed the key issue in the case.
The case was Lewis v. State, 2009 WL 1164966 (Ala.Crim.App. 2009), recently decided by the Court of Criminal Appeals of Alabama. The man charged was Joseph Lewis, who
gave several statements to police concerning the events leading to the shooting. Lewis first said that he and [Leon] Dunklin were "tussling," that Dunklin had a gun, that Lewis grabbed it, and that the gun went off, hitting Dunklin. He then said that Dunklin came out of a room with a gun, that he grabbed it, and that the gun went off. There were also discrepancies in Lewis's statements to police concerning where the shooting occurred. Lewis first said that Dunklin came into Lewis's room with a gun. Next Lewis said that he was in the kitchen when Dunklin came into that room with a gun. Finally, Lewis said that he was in Edwards's room when Dunklin came into that room waving a gun.
Lewis made these statements to Detective Mack Hardeman, and at trial, the prosecution called Hardeman as a lay witness and asked him questions such as:
Based on the facts surrounding the statements [Lewis] gave you, based on your investigation and the physical evidence recovered at the scene, physical evidence seen at the scene, based on the story he told you about where they were situated at the time of the shooting, and based on your experience as a homicide detective, taken as a whole, did you make a determination as to whether you believe the events occurred as [Lewis] claimed they did?
After the judge overruled several objections by defense counsel, Hardeman answered, "The question was, in my opinion, could the events have happened the way he said they did? No."
After Lewis was convicted, he appealed, claiming that Hardman's testimony was improperly received. But the Court of Criminal Appeals of Alabama rejected his argument in a per curiam opinion. On the one hand, the opinion noted that, unlike Federal Rule of Evidence 704(a), Alabama Rule of Evidence 704 does not allow for the admission of opinion or inference testimony that embraces an ultimate issue to be decided by the trier of fact. Nonetheless, the court noted that "[c]ase law in Alabama, however, may be categorized as having drifted away from a literal application of the traditional 'ultimate issue rule" and thus found that Hardeman's testimony was thus not problematic on this ground.
Meanwhile, Judge Welch dissented in part, concluding that
The opinion elicited by the prosecution's question was not testimony regarding the facts; rather, the objectionable question and testimony followed the detective's complete exposition of the pertinent facts. The elicited testimony was purely a meaningless assertion that amounted only to “choosing up sides” and was improper.
I side with Judge Welch, but I don't think that he even needed to reach that issue. Instead, it seems clear to me that Hardeman's testimony was testimony concerning a matter about a subject jurors are not familiar with, meaning that it required expert testimony. Now, readers of this blog know that some courts have been lenient in allowing law enforcement agents to testify as lay witness about borderline subjects, but it seems crystal clear to me that only an expert could have given an answer to he question(s) posed by the prosecutor.
May 5, 2009
Call The Doctor: New Hampshire Court Finds That Opponent Bears Burden Of Proving That Author Of Business Record Is Not An Expert
In relevant part, Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
Under this Rule, the opponent of a business record bears the burden of proving that “the source of information or the method or circumstances of preparation lack trustworthiness." Meanwhile, in relevant part, Federal Rule of Evidence 702 indicates that opinion testimony is admissible by a witness qualified as an expert by knowledge, skill, experience, training, or education." Under this Rule, the proponent of such opinion testimony bears the burden of proving that the person who will render it is in fact an expert.
So, when a party seeks to intrdouce into evidence an alleged expert's business record, who bears the burden of proof? Does the proponent have to prove that the person preparing the report is in fact an expert, or does the opponent have to prove that the source of information indicates lack of trustworthiness? According to the recent opinion of the United States District Court for the District of New Hampshire in Aumand v. Dartmouth Hitchcok Medical Center, 2009 WL 1164548, the answer in the opponent, and I strongly disagree.
In Aumand, the executor of the estate of Katherine Coffey and Coffey's widower, Francis Coffey, sued Dartmouth Hitchcock Medical Center (DHMC) alleging that it provided negligent medical care to Coffey during her hospitalization there, leading to an infection, the amputation of parts of her hand, and ultimately her death." DHMC subsequently brought a motion in limine, seeking to preclude the plaintiff from introducing a note written by a physician who saw Coffer the day before she died.
The district court disagreed, noting that the plaintiff properly established, and DHMC did not dispute, that the note was admissible as a business record under Federal Rule of Evidence 803(6). Instead, DHMC claimed that the plaintiff failed to establish that the physician was properly qualified as an expert witness under Federal Rule of Evidence 702. The court rejected this argument as well, finding that
most authorities take the view that a party offering a document admissible as a "report of regularly conducted activity" under Rule 803(6)...-as medical records generally are-...need not also show, under Rule 702, the qualifications of the document's author to render any opinions in the report....Instead, to exclude the opinion, the adverse party bears the burden to show that “the source of information or the method or circumstances of preparation lack trustworthiness,” as provided by Rule 803(6) itself.
This didn't sound right to me at all, so I decided to read the opinions cited by the court in support of this proposition. The first problem is that both were issed in 1979, well before Daubert drastically changed the expert testimony landscape. The second problem is that, to paraphrase Inigo Montoya, I do not think they mean what the district court thinks they mean. The first case cited by the court was Forward Communications Corp. v. United States, 608 F.2d 485, 511 (Ct. Cl. 1979), where the United States Court of Claims found that an appraisal report was inadmissible because the proponent of the report failed to disclose the identity of the expert who prepared it. The second case cited by the court was United States v. Licavoli, 604 F.2d 613 622-23 (9th Cir. 1979), the Ninth Circuit found that an appraisal report which was relied upon by the defendant's insurance company was admissible, concluding
We see no reason to adopt an inflexible rule that every case requires the proponent of a business record containing expert opinion to affirmatively establish the qualifications of the person forming the opinion....In this case, [the defendant] failed to alert the district court to specific facts raising any doubt concerning Aranoff's qualifications as an appraiser. Moreover, the insurer's reliance on Aranoff's appraisal is affirmative evidence of the reliability of the appraisal. It was in the interest of the insurance company to pay no more on Charna Signer's claim than the painting was actually worth; had the insurer doubted Aranoff's qualifications or entertained a belief that the Lucretia was worth significantly less than $10,000, it is unlikely that the insurer would have adopted Aranoff's appraisal. The trial judge did not abuse his discretion in admitting the business record into evidence.
Forward Communications Corp. clearly doesn't stand for the proposition that the district court ascribed to it, and Licavoli merely says that the proponent of a business record does not need to establish that the person preparing the report is in fact an expert in "every case." And I see nothing in Aumand similar to the insurer's reliance in Licavoli that would obviate this requirement.
Moreover, I don't see the logic in Aumond's holding. Federal Rule of Evidence 702 requires the proponent of expert opinion testimony to prove the the qualifications of an expert. Federal Rule of Evidence 803(6) requires the opponent of a business record to prove that the source of the information in it lacks trustworthiness. The only way that the latter rule can trump the former Rule is if a lack of trustworthiness is the same as a lack of qualifications, and I don't think that it is.
I can go to a recent medical school graduate and find him to be a trustworthy guy and yet still get a second opinion from a more experienced doctor based upon the recent grad's lack of experience. And if I see that recent grad so that he can prepare an expert report for my lawsuit against a defendant after a car accident, the defendant should bear the burden of proving that the doctor/report is untrustworthy. But I should bear the burden of proving that the recent grad is sufficiently qualified to render expert opinions.
May 4, 2009
Excuse Me: Seventh Circuit Finds That Rule 703 Does Not Create An Expert Exception To Witness Sequestration
Federal Rule of Evidence 615(3) states that
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of...(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.
Meanwhile Federal Rule of Evidence 703 states in relevant part that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." In its recent opinion in United States v. Olofson, 2009 WL 1162468 (7th Cir. 2009), the Seventh Circuit had to answer the question of whether Rule 703 is...an...exemption for expert witnesses from Rule 615 sequestration." And it answered that question in the negative.
In Olofson, David Olofson was charge with knowingly transferring a machinegun on violation of 18 U.S.C. Section 922(o) based upon the jury's conclusion that a modified Colt AR-15rifle seized from him pursuant to a search warrant met the definition of a machine gun under 28 U.S.C. Section 5845(b) in that it was:
weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
The jury reached this conclusion after hearing the testimony of the prosecution's expert witness, who:
testified that he used military-grade ammunition the first time he test-fired the AR-15 with the selector switch in the unmarked position and that the gun fired only one round. Later, using civilian-grade ammunition, he conducted two more test-fires of the weapon in the unmarked mode. In one of those tests, he held the trigger down and the gun fired all of its ammunition (twenty rounds) before stopping. He also emptied two twenty-round magazines in five- or ten-round bursts by depressing, holding, and releasing the trigger several times. The government's expert stated that such firing capabilities did not result from a “hammer-follow” malfunction but rather were intended features of the gun.
One person who did not hear this testimony was Olofson's gun expert, Len Savage because the court granted the prosecution's motion, over Olofson's objection to exclude him from the courtroom during its expert's testimony pursuant to Federal Rule of Evidence 615. In affirming this ruling, the Seventh Circuit rejected Olofson's argument that Federal Rule of Evidence 703 creates an automatic exemption for expert witnesses from Rule 615 sequestration, concluding that "merely because Rule 703 contemplates that an expert may render an opinion based on facts or data made known at trial does not necessarily mean that an expert witness is exempt from a Rule 615 sequestration order."
Moreover, the Seventh Circuit rejected Olofson's argument that Savage's presence during the prosecution expert's testimony was "essential" in this particular case because
Olofson did not tell the district court (as he tells us on appeal) that Savage's presence was of critical import to his highly-technical defense that the AR-15 malfunctioned. Even assuming that he did make the argument, Olofson did not carry his burden of demonstrating essentiality. The defendant stated that Savage should be allowed to hear the government expert's testimony so that Savage could "rebut or add information" to any inaccurate testimony about malfunctions, but Olofson did not tell the district court why Savage's presence was necessary to achieve that end. Indeed, much of the data and malfunction information relied upon by the government's expert was already known to Savage due to the pre-trial disclosure of the government expert's reports, and Savage had the opportunity to respond to such materials during the defendant's case. Regarding any information which was not included in the reports but may have come into evidence during the testimony of the government's expert, Olofson had ample opportunity on direct examination for Savage to rebut, add to, or opine on the implications of such information by asking him to assume its existence. Although it might have been helpful or desirable for Savage to hear the government expert's testimony, Olofson did not show that Savage's presence was essential to the presentation of his case.
May 3, 2009
Reefer Madness: Judge Precludes Impeachment Based Upon Witness' Assurance That Marijuana Did Not Impair His Observations
The recent opinion of the Court of Appeals of Texas in Woodard v. State, 2009 WL 1124385 (Tex.App.-Hous. 2009), reveals that, unlike Federal Rule of Evidence 608(b), Texas Rule of Evidence 608(b) does not permit an attorney to cross-examine a witness regarding specific instances of (mis)conduct probative of the credibility of the witness. However, the opinion also makes clear that this proscription does not apply when the (mis)conduct is contemporaneous with the crime at issue. But, what if the misconduct is pot smoking, and a witness tells the court that his pot smoking earlier in the day did not "in any way affect" what he saw that night? According to the judge in Woodard, you believe him.
In Woodard, a jury convicted Ray Davon Woodard of aggravated robbery based in part of the testimony of eyewitness Casey Parker. At trial, Woodard was precluded by the judge from impeaching Parker through evidence that Parker had consumed an alcoholic beverage and smoked a marijuana cigarette earlier in the day, before the robbery, which occurred at night. The judge's ruling, however, was not predicated on Texas Rule of Evidence 608(b), which states that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of a crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
Instead, the court noted that
an exception to [Rule 608(b) permits such impeachment if there is a showing that intoxication from alcohol or drug use impaired the witness's ability to perceive the events in question at the time they occurred.
The problem for Woodard was that, when he made his offer of proof that Parker had consumed an alcoholic beverage and smoked a marijuana cigarette, Parker responded that smoking a marijuana cigarette and drinking an alcoholic beverage earlier in the day did not “in any way affect” what he saw that night. The court thus prevented Woodard from impeaching Parker through this evidence, concluding that "the State produced uncontradicted evidence that [Parker]'s ability to perceive the offense was [not] impaired by drug or alcohol intoxication at the time of the offense."
Now, unfortunately, the Woodard opinion doesn't disclose when exactly the marijuana was smoked and when exactly the robbery was committed, but even if those times were 10:00 A.M.and 10:00 P.M., I would have a problem with the court's opinion. Of course Parker claimed that he was not impaired by marijuana. But anyone who has been to a party with alcohol knows that plenty of people think that they are "good to drive" when the reality is that they are not even good to walk. In other words, why should the judge take a witness at face value when he wouldn't do the same to a guest at a party?
The research seems consistent that the ingestion of marijuana has adverse effect on memory that lasts, not hours, but days or even weeks. It seems clear to me that a judge in a case such as Woodard should not rely upon the assurances of a witness and should instead rely upon such research to find that witnesses can always be impeached, at a minimum, through evidence that they smoked marijuana on the same day as the day that they observed crimes.