May 16, 2009
The Cherry On Top Of The Prosecutorial Sundae: Why Improperly Admitted Rule 704 Evidence Will Almost Never Lead To A Reversal
Federal Rule of Evidence 704 provides that
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
After reading the recent opinion of the Fifth Circuit in United States v. Setser, 2009 WL 1299562 (5th Cir. 2009), I made a realization regarding this Rule: Testimony improperly admitted under it will almost never lead to a reversal.
In Setzer, siblings
Gregory and Deborah Setser...were convicted of involvement in a Ponzi scheme focused on soliciting funds from Christian groups for largely mythical deals involving real estate and retail products. As in a classic Ponzi scheme, as new investments came in (eventually totaling $173 million), some of the new money was used to pay earlier investors. The take-home for the personal use of the Setsers and their co-conspirators was shown to be about $58 million.
After they were convicted, Deborah appealed her sentence and Gregory appealed his conviction. As part of his appeal, Gregory alleged that the district court improperly allowed the court appointed receiver to testify at trial that his operations constituted "security fraud" and a "Ponzi scheme." According to Gregory, these claims were improper legal conclusions under Federal Rule of Evidence 704(a), and the government even conceded that the receiver should not have referred to Gregory's operations as "security fraud."
Indeed, the district court agreed as well, and after the receiver rendered this testimony, the court gave cautionary instructions "both specifically informing the jury not to draw inferences about Setser's state of mind from the receiver's testimony, and emphasizing that the jury was not bound by the receiver's conclusions and must undertake an independent evaluation of the evidence." (This seems to indicate to me that the district court found the receiver's testimony objectionable under both Federal Rule of Evidence 704(a) and Federal Rule of Evidence 704(b)).
After he was convicted, Gregory claimed that these cautionary instructions were insufficient and that he was entitled to a new trial, but the Fifth Circuit disagreed, finding that "[t]he government's evidence against Setser was considerable, with numerous other witnesses whose testimony could independently have allowed the jury to convict," rendering the admission of the receiver's testimony harmless error. As support, the court cited to two previous Fifth Circuit opinions (which were actually cited by Gregory), which had found that district court errors in admitting evidence under Federal Rule of Evidence 704 were harmless.
This got me thinking that testimony improperly admitted under Federal Rule of Evidence 704 will almost never lead to a reversal. Why? Well, Rule 704 testimony is the cherry on top of the prosecutorial sundae. In other words, the classic case where Rule 704 testimony is admitted involves facts like Setzer: The prosecution has gobs of evidence and testimony overwhelmingly showing the defendant's guilt, but then a prosecution witness crosses the line by putting a bow on top of the package and telling the jury that the defendant committed "fraud." On appeal, the defendant can then point to the trial court's error in admitting this testimonial conclusion, but, based upon the overwhelming evidence supporting that conclusion, the court is almost certainly going to find harmless error and affirm the conviction.
May 15, 2009
I Need You To Aid And Abet Me: Court Precludes Jury Impeachment In Aiding And Abetting Appeal
In Hunter v. Felker, 2009 WL 1246691 (N.D. Cal. 2009), David Hunter brought a federal habeas action in the United States District Court for the Northern District of California, seeking relief from his convictions for assault with a firearm and being a felon in possession of a firearm. Hunter, however, ran into a popular obstacle on this blog: Federal Rule of Evidence 606(b).
In Felker, the chief witness for the prosecution was David Devlin. According to Devlin, "a street-level drug dealer,"
[Hunter] and co-defendant Victor Hernandez called [Devlin] at his girlfriend's residence in San Leandro during the early morning hours of April 10, 2003, and arranged to purchase methamphetamine. They all met at the residence and they moved to the backyard. [Devlin] gave Hernandez a half-ounce bag of methamphetamine to inspect. Hernandez made some comments about the drugs while [Hunter] excused himself to urinate. [Hunter] walked towards a nearby fence. Moments later, [Hunter] returned pointing what appeared to be a semiautomatic pistol at [Devlin], ordering him to hand over his money. [Devlin] instead rushed [Hunter] and wrestled with him. [Hunter] fired his gun twice, missing [Devlin]. While the two continued to wrestle, they moved closer to a gazebo. [Devlin] threw [Hunter] into the gazebo, causing [Hunter] to fall to the ground. [Devlin] got on top of [Hunter] and began hitting him. Hernandez then walked toward them with a handgun and fired once at [Devlin], striking him in the left buttock. [Devlin] let go of [Hunter], who then fled with Hernandez over the fence into a nearby apartment complex.
The only other eyewitness was
14-year-old Eli Mahoney who lived with his mother in the residence where the shooting took place. He recalled hearing an argument, followed by a demand from [Hunter] to "give me your money." Eli Mahoney saw [Hunter] and [Devlin] "punching each other" while Hernandez pulled out a gun and fired it three times at [Devlin]. Eli Mahoney testified he did not see [Hunter] with a gun, although he "wasn't really looking at him."
As noted above, Hunter was convicted of assault with a firearm and being a felon in possession of a firearm, but Hunter was also charged with robbery with the court declaring a mistrial on that count based upon the jury deadlocking. The jury found Hunter guilty under an aiding and abetting theory after the court gave a jury instruction that ended as follows:
You are not required to agree unanimously as to what, as to which originally contemplated crime the defendant aided and abetted so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted in the commission of and [sic] identified and defined target crime, and that crime [sic] assault with a firearm was a natural and probable consequence of the commission of that target crime.
According to Hunter, this last
paragraph improperly failed to require unanimity as to the target offense, and that the deadlock on the robbery charge (which was identified in the first quoted paragraph) left the jury able to find him guilty based on any crime or even noncriminal activity, i.e., he contends he could have been held liable based on an assault with a firearm that was a natural and probable consequence of any unidentified crime or even noncriminal activity.
The court, however, found no problem with this instruction, which led Hunter to seek the evidentiary hearing to prove that, regardless of the propriety of the instruction, jurors convicted him under an impermissible aiding and abetting theory. The problem for Hunter, however, was Federal Rule of Evidence 606(b), which precludes jurors from impeaching their verdicts based upon anything internal to the jury deliberation process, such as misunderstood jury instructions or even misapplications of the law. Therefore, even if the juror misunderstood the instruction or misapplied the law, Hunter could not get relief.
May 14, 2009
Caller ID: Supreme Court Of Tennessee Finds That Anonymous Statements Cannot Qualify As Statements Against Interest
Like its federal counterpart, Tennessee Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
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.
But what happens when the statement at issue was made anonymously? That was the question presented to the Supreme Court of Tennessee in State v. Kiser, 2009 1313564 (Tenn. 2009). And, like many other courts, Tennessee's highest court found that anonymous statements cannot qualify as statements against interest for hearsay purposes.
In Kiser, a jury convicted Marlon Duane Kiser, of first degree premeditated murder and two counts of first degree felony murder, all involving the same victim, Hamilton County Deputy Sheriff Donald Bond. What the jury did not hear was the tape recording of anonymous call made to a public defender in which the caller said that he could not let an innocent man go to jail, that the witnesses against Kiser had actually committed the subject crimes, and that he had been pressured to keep his information quiet. Kiser was prepared to have two witnesses testify that the voice on the recording belonged to a man named Mack Heard, but the trial judge precluded their testimony and admission of the recording, finding that it constituted inadmissible hearsay.
After Kiser was convicted, he appealed, claiming, inter alia, that the recording was admissible as a statement against interest under Tennessee Rule of Evidence 804(b)(3), and his appeal eventually reached the Supreme Court of Tennessee. And that court acknowledged that the caller's statements could in one sense be construed as against his penal interest because the caller placed himself at risk for prosecution for the federal crime of misprision of a felony and conspiracy to obstruct justice.
But the problem for Kiser was that Tennessee Supremes noted that most courts had found that anonymous statements cannot constitute statements against interest, including the Court of Criminal Appeals of Tennessee in State v. Wilhoit, 962 S.W.2d 482, 487 (Tenn.Crim.App. 1997), which found that information provided by an anonymous citizen "raises heightened concerns about the reliability of the information" because of the possibility of false reports or reports from vindictive or unreliable informants.
The court adopted the reasoning of these courts and rejected Kiser's argument that "in this day and age, it is forseeable that one's telephone calls to public agencies would be tape-recorded and captured on caller-ID," finding that
Even if this argument has some merit, we are not persuaded that it changes our analysis. Caller-ID may (or may not) identify the phone number from which a call is being placed; it does not identify who is speaking into the phone, however. And if the caller thinks that his call may be recorded and that his voice may then be subjected to efforts at identification, he may simply attempt to disguise his voice in some manner. He may also be convinced for other reasons that his voice will remain unidentified. In all of these events, the anonymous caller will likely lack the crucial concern that he will be called to answer for his statements: otherwise, he would not take efforts to conceal his identity in the first place.
The court also found
an additional reason that the anonymous phone call was not admissible as a statement against penal interest. The caller told [the public defender] that he could not let an innocent man go to jail. He also told her that he had been pressured to keep his information quiet. Obviously, he was presenting himself as an ally in the pursuit of justice. As commentators have noted, statements should not be admitted under Rule 804(b)(3) "if the declarant actually believed that he or she was saying something that would be helpful...." In that event, “reliability is questionable and the statement should not be admitted under this hearsay exception."
May 13, 2009
I'd Rather Be Fishing: Court Refuses To Allow Jury Impeachment Based Upon Juror Changing Vote To Guilty To Make Annual Fishing Trip
In State v. Miller, 2009 WL 1081745 (Wis.App. 2009), James D. Miller appealed from his conviction for first-degree reckless injury while armed with a dangerous weapon and aggravated battery while armed with a dangerous weapon, alleging, inter alia, juror misconduct. His claim: One of the jurors found him guilty so that he could be dismissed in time for his annual fishing trip. Unfortunately for Miller, the Court of Appeals of Wisconsin didn't take the bait.
At the outset of Miller's trial, the court informed the jury that the trial was expected to last two days. When, at the end of the second day, it became clear that the trial would run long, the court asked jurors if they would be able to return the following day. One juror informed the court that he had planned to leave town the following day at 3:00 p.m. for an annual fishing trip. The court advised the juror that the case would likely be sent to the jury by noon, but the case did not go to the jury until 4:12 p.m. the following day, with the jury returning a guilty verdict at approximately 8:30 that night. As part of his appeal, Miller presented an affidavit alleging that the fishing-trip juror later told an investigator that he switched his vote from "innocent" to "guilty" to end jury deliberations so that he could leave for the trip.
The problem for Miller, however, was that Wisconsin Stat. Section 906.06(2) provides that
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror's 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 on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.
According to the court, the problem for Miller was that he wanted the fishing-trip juror to impeach the verdict based upon the effect of the fishing trip upon his mind or emotions as influencing him to assent to the verdict. This meant that the proposed testimony fell squarely under Wisconsin Stat. Section 906.06(2), making it inadmissible.
Miller tried to get around this conclusion by claiming that the fishing-trip juror's "impending departure for his annual trip, and no doubt the chiding he could expect from his buddies," was an outside influence improperly brought to bear upon the juror. The court, however, "conclude[d] that the scheduled fishing trip, and any criticism the juror might expect to receive from his fishing buddies for missing the trip, was not, as a matter of law, an "outside influence" within the meaning of WIS. STAT. § 906.06(2).
I'm not sure that I agree with this conclusion, but in reviewing this post this morning, I see that the court withdrew its opinion yesterday, so I will have to see what the court now does before reaching any final conclusions.
May 12, 2009
13 Going On 30: Illinois Man Becomes Youngest Person In The U.S. To Be Wrongfully Convicted And Exonerated
More than 16 years ago, 13 year old Thaddeus Jimenez was arrested for a street gang murder on Chicago's Northwest side. At the time, the judge sentenced him to 50 years imprisonment, describing Jimenez as a "little punk, probably too young to shave, but old enough to commit a vicious murder." The judge was wrong. On May 1, Jimenez became what his lawyers say is likely to be the youngest person in U.S. history to be wrongfully convicted of a crime and exonerated after Cook County Criminal Court Judge Joseph Claps vacated Jimenez's conviction and released him at the age of 30.
The murder for which Jimenez was convicted happened Feb. 3, 1993, when 19- year-old Eric Morro was gunned down as he walked east in the 3100 block of West Belmont with a 14 year-old friend. Jimenez was identified within hours as the one who fired the gun and was convicted twice of Morro's murder: in 1994 and in 1997. In 2005, attorneys and students from the Northwestern University Center on Wrongful Convictions and attorneys from Katten Muchin Rosenman LLP began to reinvestigate Jimenez's case, and when two key witnesses recanted their statements that Jimenez fired the fatal shot, the group in August 2007 contacted the state's attorney's office, which opened its own investigation.
That investigation led to the arrest of suspected shooter Juan Carlos Torres, and, eventually, Jimenez's exoneration. But this was not the first time that the police, the prosecution, and the court were aware of Torres. Instead, at the time of Jimenez's convictions, "there was substantial evidence" that Torres had committed the murder with which Jimenez was charged. That evidence consisted of Torres' confession to a witness named Ezequiel (and may have also included Torres' tape recorded confession to the crime although I'm not sure when exactly it was recorded) The jury, however, never heard about those confessions at either trial.
Why? Well, let's look at the 1996 opinion of the Appellate Court of Illinois, First District, Fifth Division, in People v. Jimenez, 672 N.E.2d 914 (Ill.App. 1 Dist. 1996), which reversed Jimenez's conviction before Jimenez was convicted again in 1997. That court reversed Jimenez's conviction because "the trial court committed reversible error by refusing to ask prospective jurors whether defendant's gang affiliation would prevent them from giving defendant a fair trial." As part of that appeal, Jimenez also asked the court to deem Ezequiel's confession admissible on remand, but the court disagreed, noting that the confession was hearsay and that the court could not determine whether the confession qualified as a statement against interest.
The court began by laying out Illinois precedent on the statement against interest exception to the rule against hearsay, and, well, it is muddled. Basically, Illinois applies some version of Federal Rule of Evidence 804(b)(3), which provides an exception to the rule against hearsay for
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.
Exactly what version of this Rule Illinois courts apply is a matter of considerable uncertainty, as I noted in a post last July (The big problem is that Illinois does not have codified rules of evidence, but we're working on it. I just finished a 100 page document comparing each Federal Rule of Evidence to its counterpart in Illinois case law, statutes, etc. for the Supreme Court of Illinois, which is in the process of developing Illinois Rules of Evidence). But what is clear is that Illinois requires some type of corroborating circumstances to allow for the admission of a statement against interest, and that is where Jimenez ran into a problem.
Jimenez actually had a witness named Victor Romo (it's unclear whether he is related to Ezequiel) testify that Torres killed the victim, which the court found provided some corroboration for Torres alleged confession. But the problem for Jimenez was that his
offer of proof provided no details of the confession, except that Torres admitted the shooting. This confession may not incriminate Torres, if he also reported details that make the shooting constitute self-defense. The lack of detail concerning, for example, Torres' appearance, makes impossible the determination of the extent to which the alleged confession corroborates the testimony of the other eyewitnesses. Defendant in the offer of proof also gave no indication of the nature of the relationship between Torres and Ezequiel Romo, and Romo's unspecified questions may deprive the confession of spontaneity.
The court did find, though, that "[o]n remand, defendant may present in full the circumstances surrounding Torres' statements for an evaluation of their trustworthiness." Unfortunately, I haven't been able to track down anything after this opinion to see what Jimenez presented at his subsequent trial, so I can't say whether the judge acted correctly on retrial.
May 11, 2009
Into the Dawn To Montana, Take 2: House Bill 295 Dies In The Senate Judiciary
(1) prior sexual assaults against criminal defendants charged with sexual assault, (2) prior acts of child molestation against criminal defendants charged with child molestation, and (3) prior acts of sexual assault and child molestation against civil parties in actions in which a claim for damages or other relief is predicated on that party's alleged commission of conduct constituting the offense of sexual assault or child molestation.
When I wrote my February post, it looked these new rules would be an inevitability. House Bill 295 had passed by an 89-11 vote, and, as I noted, the Supreme Court of Montana's opinion in State v. Aakre, 46 P.3d 648 (Mont. 2002), seemed to foreclose the possibility of a constitutional challenge to these new rules if they passed the state senate.
The problem for the bill's advocates, though, was that the bill never made it past the state senate. In a strange turn of events, despite the overwhelming support for the bill in the state house and the lack of opposition to the bill, it died in the Senate Judiciary after a 5-7 vote. Unfortunately, I can't find any coverage of why the bill was voted down. Perhaps, like the court in Aakre, the Montana state senators realized that these rules allow for the convictions based upon aphorisms such as "Once a rapist, always a rapist" or "Once a child molester, always a child molester," rather than based upon evidence that the defendant actually committed the crime at issue.
May 10, 2009
Immune System: Supreme Court Of Minnesota Finds That Court-Appointed Experts Are Entitled To Immunity From Lawsuits
Federal Rule of Evidence 706(a) (and many state counterparts) provides in relevant part that "[t]he court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection." So, let's say that the court appoints one of these experts and that expert acts in a manner that would constitute malpractice or breach of contract if the expert were retained by one of the parties? This was the situation presented to the Supreme Court of Minnesota in Peterka v. Dennis, 2009 WL 1228506 (Minn. 2009). Its conclusion? Court-appointed experts are entitled to immunity and cannot be sued by litigants.
Dennis involved divorce proceedings between Catherine Peterka and her husband. As part of those proceedings, the trial judge appointed Stephen G. Dennis, CPA, to value marital property in the form of business assets. And, according to Peterka, Dennis applied an incorrect method to value that marital property (Peterka also unsuccessfully claimed that Dennis was not appointed under Minnesota Rule of Evidence 706). Peterka thus sued Dennis and his employer Baune Dosen & Co LLP, for professional malpractice and breach of contract.
While the district court found that Dennis (and thus his employer) was protected by quasi-judicial immunity, the court of appeals reversed, landing the case in the laps of the Supreme Court of Minnesota. According to the Minnesota Supremes,
We have not previously considered whether experts appointed under Rule 706 are protected by immunity. A review of the reasoning from previous cases in which we have found entitlement to immunity suggests that extending immunity to Rule 706 experts is appropriate because public policy supports protecting such experts from harassing litigation and because such experts exercise discretionary judgment and provide assistance to the court.
In extending immunity to Rule 706 experts, the court focused on three factors:
According to the court,
The integrity and independence of the judiciary depends on the ability of court-appointed experts to make decisions “uninfluenced by any fear or apprehension of [personal] consequences....” Extending immunity also ensures that qualified experts will continue to serve the court, as otherwise “[n]o [person] would willingly serve ... or feel free to render an unpopular verdict...." The public policy concerns identified above support extending immunity to Rule 706 experts whose participation must not be chilled and who must be free to render independent and unbiased advice to the court without fear of harassing litigation by dissatisfied parties. Such experts provide an important service to the court and extending immunity to them will encourage their continued participation.
According to the court,
"When judicial immunity is extended to officials other than judges, it is because their judgments are 'functional[ly] comparab[le]' to those of judges-that is, because they, too, 'exercise a discretionary judgment' as a part of their function...." Discretionary judgment is not limited to the exercise of final adjudicatory decision-making; rather, we have extended quasi-judicial immunity to those who exercise discretionary judgment within government or legal proceedings....In Imbler, the United States Supreme Court explained the importance of extending immunity to prosecutors, as they must be free to make discretionary decisions about what suits to bring and how to bring them without fear of potential suits brought by disgruntled parties....In contrast, the Supreme Court has not extended immunity to court reporters, as their job is to accurately record what transpires in court and does not require any discretionary decision-making....As in Imbler, experts appointed under Rule 706 are appointed by the court to exercise discretionary judgment in advising the court.
Assistance to the Court
According to the court,
The Third Circuit has articulately distinguished court-appointed neutral experts from privately retained experts, explaining that privately retained experts contract with a party, are paid by that party, and are expected "to some extent ... to provide a recommendation that favors their client...." In contrast, a court-appointed neutral evaluator is appointed to assist the court in performing its neutral judicial function, and they are "accountable to the court alone for the performance of [their] duties."
Based on these three factors, it seems to me that the court made the right decision, but I need to do some more research into the issue before reaching my own final conclusion.