May 30, 2009
Balanced Opinion: Third Circuit Applies Balancing Test To Hearsay Admitted At Revocation Hearing
Pursuant to Federal Rule of Evidence 1101(d)(3), the Federal Rules of Evidence do not apply in revocation hearings. This does not, however, mean that hearsay evidence is per se admissible at such hearings as the Third Circuit made clear in its recent opinion in United States v. Lloyd, 2009 1459216 (3rd Cir. 2009).
While on supervised release for a crime he committed in the United States Virgin Islands, [Ashbert] Lloyd pleaded guilty in Duval County, Florida to possession of a firearm by a convicted felon in violation of Florida law. After the Virgin Islands probation office was notified of Lloyd's guilty plea, the District Court summoned Lloyd to St. Thomas for a revocation hearing.
At that hearing and over Lloyd's objection, the State introduced, inter alia, a violation report prepared by a Duval County probation officer. In preparing his report, the officer relied on information provided by an officer of the Duval County Sheriff, who described a physical altercation between Lloyd and his pregnant girlfriend during which Lloyd brandished a gun at a passerby; however, neither the probation officer who authored the report nor any representative of the Duval County Sheriff testified at Lloyd's revocation hearing. After the hearing, the district court concluded that Lloyd had violated the terms of his supervised release.
Lloyd subsequently appealed, claiming, inter alia, that the district court erred by admitting the probation officer's report because it contained inadmissible hearsay. The Third Circuit began by noting that the Federal Rule of Evidence 1101(d)(3) indicates that the Federal Rules of Evidence do not apply in revocation hearings but found that this does not make hearsay evidence ipso facto admissible. Instead, as the Supreme Court found in Morrissey v. Brewer, 471 U.S. 471, 489 (1971), a parolee's liberty cannot be revoked without due process, and the minimum requirements of a revocation proceeding include "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)."
Unless waived by the person, the court must hold the revocation hearing within a reasonable time in the district having jurisdiction. The person is entitled to...an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.
Moreover, the Advisory Committee's Note to that Rule
recognize[s] that the court should apply a balancing test at the hearing itself when considering the releasee's asserted right to cross-examine adverse witnesses. The court is to balance the person's interest in the constitutionally guaranteed right to confrontation against the government's good cause for denying it.
Following the lead of several other circuit courts of appeal, the Third Circuit decided to follow the language of this Note and found that that a district court
"should apply a balancing test [in revocation hearings] when considering the releasee's asserted right to cross-examine adverse witnesses," and that "[t]he court is to balance the person's interest in the constitutionally guaranteed right to confrontation against the government's good cause for denying it."
Applying this test to Lloyd's case, the Third Circuit found that (1) Lloyd's aggravated domestic battery violation was supported solely by unreliable hearsay, and that (2) the State made no attempt to show cause for the declarants' absence. The court thus (properly, in my view) vacated the lower court's ruling.
May 29, 2009
Drag Me To Hell: Court Finds Discriminatory Remarks Not Precluded By Rule Against Hearsay In Employment Discrimination Suit
Federal Rule of Evidence 801(c) indicates that
"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
But, as the United States District Court for the Middle District of Pennsylvania found in its recent opinion in E.E.O.C. v. Schott North America, 2009 WL 310897 (M.D. Pa. 2009), discriminatory remarks made about the suitability of particular employees which serve as circumstantial evidence of a discriminatory atmosphere in an employment discrimination suit are not hearsay because such statements are not offered to prove the truth of the matters asserted.
the 2004 reorganization of glassmaking operations at a plant in Duryea, Pennsylvania operated by Defendant Schott North America....Prior to the reorganization, glassmaking production had been divided into two sets of jobs. Jobs on the "cold end" of the production line were largely staffed by women, while those on the "hot end" of the line were largely performed by men. The reorganization resulted in the elimination of one type of glass production from the factory and a downsizing of the workforce. The division of production between the "hot end" and "cold end" was eliminated. In order to staff the reorganized production line, defendant created the new position of "Melting Line Operator" ("MLO"). Plaintiffs contend[ed] that the system that defendant developed and used to assign the new MLO-referred to here as "the matrix"-resulted in unlawful discrimination on the basis of sex. They contend[ed] that the matrix as designed and implemented by defendant both enshrined a long history of discrimination against women in training and job assignment and improperly valued the skills most likely possessed by men. Plaintiffs raise[d] both a disparate impact and a direct sex discrimination claim.
In support of their claims, the plaintiffs sought to introduce testimony indicating, inter alia, that Schott employee Lenny Cushner claimed that the plant would “go to hell” if women had jobs traditionally held by men. Schott brought a motion in limine which, inter alia, sought to preclude testimony concerning Cushner's statement under Federal Rule of Evidence 802 because it constituted hearsay under Federal Rule of Evidence 801(c).
The court disagreed, noting that
[c]ourts have concluded that discriminatory remarks made about the suitability of particular employees which serve as circumstantial evidence of a discriminatory atmosphere in an employment discrimination suit are not hearsay, since “the statements were not offered to prove the truth of the matters asserted.”
Applying this principle to Schott, the court found that "Cushner's statement [wa]s not hearsay, since plaintiffs d[id] not attempt to prove the truth of the matter that the workplace would 'go to hell' if too many women had particular jobs." This seems to me to be a correct (non)application of the rule against hearsay.
May 28, 2009
Public Enemy?: Eleventh Circuit Finds No Plain Error In Business Records Ruling In Health Care Fraud Appeal
The recent opinion of the Eleventh Circuit in United States v. Hoffman-Vaile, 2009 WL 1458567 (11th Cir. 2009), raised but did not resolve an interesting question: Do the records of a private administrator that processes and reviews claims for Medicare qualify as business records under Federal Rule of Evidence 803(6) or public records under Federal Rule of Evidence 803(8)? And the reason that the question is interesting is that the classification of such records could have drastic consequences in terms of their admissibility at criminal trials.
Dr. Marsha Lynn Hoffman-Vaile [wa]s a dermatologist who practiced in Florida and regularly sought reimbursement from Medicare for surgical procedures she performed on her patients. Dr. Hoffman-Vaile submitted her Medicare claims to First Coast Service Options, a private contractor that administers the Medicare program in Florida. First Coast reviewed the claims prepared by Dr. Hoffman-Vaile and approved payments to her based on the Current Procedural Terminology Code that she identified on each claim. First Coast regularly reviewed claims submitted by physicians and code usage to detect unusual diagnosis patterns or statistical anomalies that might suggest fraudulent billing.
First Coast eventually flagged potentially fraudulent billing by Dr. Hoffman-Vaille, and she was later convicted of 44 counts of health care fraud, 44 counts of filing false claims, and one count of obstruction of justice. Those convictions were secured in part through the prosecution's introduction into evidence of reports prepared by First Coast in the processing and reviewing of Medicare claims by Dr. Hoffman-Vaille. At trial, Dr. Hoffman-Vaile did not object to the admission of these reports, which the district court deemed admissible under Federal Rule of Evidence 803(6), which 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.
After she was convicted, however, Dr. Hoffman-Vaile appealed, claiming, inter alia, that the reports actually fell under Federal Rule of Evidence 803(8), which 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 (A) the activities of the office or agency, or (B) 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, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Specifically, Dr. Hoffman-Vaile claimed that these records fell under Federal Rule of Evidence 803(8)(B), which meant that they should have been inadmissible at her criminal trial. According to the Eleventh Circuit, however, the (main) problem for the doctor was that she did not object to the admission of the records at trial, which meant that it could only reverse for plain error under Federal Rule of Evidence 103(d). And, according to the court,
[a]ny error in the admission of the reports was not plain. First Coast is a private administrator that processes and reviews claims for Medicare, and Dr. Hoffman-Vaile cites no controlling authority about the reports of a similar private entity.
I agree with the Eleventh CIrcuit that there was no plain error by the district court, but I wonder what result the court would have reached if Dr. Hoffman-Vaile preserved the issue for appeal. My inclination is to guess that the records of a private administrator that processes and reviews claims for Medicare do not qualify as public records, but I am not aware of much case law on the issue of whether records are public or private.
May 27, 2009
In The Impala: Court Allows Defendant To Introduce Reverse 404(b) Evidence In Drug Possession Trial
In relevant part, Federal Rule of Evidence 404(b) provides that
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Usually, a prosecutor seeks to introduce Rule 404(b) evidence to prove that a criminal defendant committed the subject crime, but sometimes a defendant seeks to introduce so-called reverse-Rule 404(b) evidence to prove that somebody else committed the subject crime. In its recent opinion in United States v. Duran-Moreno, 2009 WL 1290010 (D.N.M. 2009), the United States District Court for the District of New Mexico addressed this latter scenario.
In Duran-Moreno, Ricardo Duran-Moreno was charged with possession with intent to distribute 500 or more grams of methamphetamine and possession with intent to distribute cocaine. Duran-Moreno was charged after large amounts of methamphetamine and cocaine were found hidden in the bumper of his Impala.The prior owner of that Impala was Santos Salazar, who had previously been convicted of possessing with intent to deliver methamphetamine in 2008. The State, knowing this fact, believed that Duran-Moreno would try to introduce evidence of Salazar's conviction to prove that the drugs found in the Impala belonged to Salazar and not him; consequently, it moved to preclude Duran-Moreno from introducing evidence of the conviction.
The United States District Court for the District of New Mexico disagreed, noting that most courts have allowed criminal defendants to introduce so-called reverse-Rule 404(b) evidence. Indeed, the court noted that just last year it had admitted such evidence in United States v. Moreau, 2008 WL 2229467 (D.N.M. 2008). Of course, the court noted that Duran-Moreno could not simply introduce Salazar's conviction as propensity character evidence, but it found that he could use the conviction to show Salazar had the intent, opportunity, ability, and know-how to place the drugs in the Impala-...a permissible purpose under rule 404(b). Indeed, the court noted that the Tenth Circuit has suggested, but not yet specifically held, that courts should more readily find reverse-Rule 404(b) evidence admissible than regular Rule 404(b) evidence because of the absence of the fear of an innocent man being convicted.
May 26, 2009
Submission Guide for Online Law Review Supplements Now Available On SSRN
In the beginning of March, a colleague, knowing that I had published two pieces in online law review supplements (here and here), asked if I had a list of online law review supplements because she was interested in possibily writing a piece for one of them. In writing my prior pieces, I actually had created a list of sorts and sent it to her. At the time, though, I realized that she would not be able to submit her proposed original piece to some of these supplements because they only accepted responses to pieces published in their print law reviews. I thus decided it would be useful to create a submission guide for online law review supplements similar to the one that Allen Rostron and Nancy Levit created for traditional law reviews, which would contain information about the types of pieces accepted, submission information, and submission format.
I started by creating a rough draft of a submission guide from information culled from each online supplement's website and then sent that draft to the editors of each journal for additions, deletions, and revisions. The product of that work is the Submission Guide for Online Law Review Supplements, available for download for free from SSRN. The Guide will be updated an an annual basis and as law reviews created new online supplements. Indeed, since the start of this project, two law review have created new online supplements -- Cardozo Law Review's de∙novo and Minnesota Law Review's Headnotes -- so I expect updates to the Guide to be fairly frequent (Mitchell Rubinstein over at Adjunct Law Prof Blog also posted a list of online law review supplements, which includes some speciality journals not included in my Guide, which only covers general online law reviews). Of course, if any reader is aware of any new online supplements or supplements I missed, please let me know.
May 25, 2009
Competent Opinion: Supreme Court Of Ohio Removes Requirement From Rule 807 In Memorial Day Case
An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child is not excluded as hearsay under Evid. R. 802 if...[,inter alia,]...the following apply:
(1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to Evid. R. 803 and 804....
(2) The child's testimony is not reasonably obtainable by the proponent of the statement.
(3) There is independent proof of the sexual act or act of physical violence.
In State v. Said, 644 N.E.2d 337 (Ohio 1994), the Supreme Court of Ohio added a requirement to Ohio Rule of Evidence 807: the requirement that the child declarant be evaluated at a competency hearing to determine whether the child was "competent" at the time that he made the out-of-court statement. In State v. Silverman, 2009 WL 961431 (Ohio 2009), the Court removed this requirement.
During Memorial Day weekend in 2006, appellant Doron Silverman and his family visited his parents and sister Batya Silverman in Indianapolis. After dinner, Batya went back to her apartment with Silverman's four-year-old son, M.S., who stayed the night with her.
Batya and M.S. spent the next day at the apartment complex's swimming pool. After going back to her apartment, Batya decided to bathe M.S. to wash off the chlorine from the pool. Batya, whom M.S. called "Poti," was undressing M.S. when he pulled on his penis, pointed to it, and said to her, "Poti, put your mouth on it."Batya was shocked by this statement because it was the first time M.S. had ever said anything like that to her. She asked her boyfriend, Joe Farber, to come in and hear what M.S. had said. Farber first asked M.S., to no avail, why he said that to Batya. He then questioned M.S. whether he had ever seen that in a movie; M.S. answered no. M.S. also said no when Farber inquired whether he had ever seen his parents do that. Finally, when Farber asked where M.S. learned it, M.S. responded, "Daddy did it. No more talk." With that, Batya and Farber decided not to pressure M.S. any more at that time, and they finished up the bath.Silverman and his wife came over to Batya's that night, but M.S.'s earlier comment was not mentioned. M.S. again stayed the night at Batya's, and the next day Farber and Batya asked M.S. if he remembered what he had told them in the bathroom the previous day. M.S. said that he did, and they asked M.S. again if he had learned it from watching a movie or his parents, to which M.S. replied that daddy had done it. When asked if he did it to his father too, M.S. said yes. Batya explored this line of questioning, and when she asked M.S. if he had kissed his father's penis, he answered, "No, I lick it." M.S. further indicated that Silverman was the only person who did this to him, that it was a secret, and that he did not want to talk any more because he would get in trouble. By the end of the conversation, M.S., who had been coloring, was stabbing the paper with his pen and shaking his clenched fists.
After a police investigation, Silverman was charged with rape and gross sexual imposition. Before trial, however, Silverman's wife set fire to the couple's residence, with M.S. dying in the fire. During trial, witnesses testified concerning M.S.'s aforementioned statements, which the trial court deemed admissible under Ohio Rule of Evidence 807. Silverman was eventually convicted of gross sexual imposition and appealed, claiming, inter alia, that M.S.'s statements were inadmissible under Ohio Rule of Evidence 807 because M.S. was not evaluated at a competency hearing to determine whether he was competent at the time that he made his out-of-court statements.
In addressing Silverman's appeal, the Supreme Court of Ohio noted its prior holding Said that a child declarant must be evaluated at a competency hearing before his out-of-court statements can be admitted under Ohio Rule of Evidence 807. But upon reconsideration, the Court found the dissenting opinion in that case more persuasive. That dissent had
recognized that "[t]he effect of instituting the majority's position * * * will be to preclude the admission of otherwise qualified out-of-court statements into evidence. For example, in those situations where the abused victim falls into a coma or dies at some point after making statements to a parent or therapist concerning the source of his or her abuse, the statements would not be admissible, given the child's inability to attend a competency hearing. That result surely defeats the obvious purpose for which Evid. R. 807 was adopted.”
In Silverman, the Supreme Court of Ohio now agreed with this dissenting opinion and repudiated the majority opinion, concluding:
We now hold that the better approach is to return to the plain text of Evid. R. 807. The rule says absolutely nothing about a child declarant's competence. Despite the fact that the text of the rule lacks this requirement, Said imposed a judicially created rule that contravenes both the language and intent of Evid. R. 807.
--- N.E.2d ----, 2009 WL 961431
May 24, 2009
Broken Record? Court Of Appeals Of North Carolina Finds Tape Recorded Statements Can Be Admissible Under Rule 803(5)
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.
It seems clear that this Rule covers something written by a witness, but does it also cover a tape recorded statement by a witness? That was the question recently presented to the Court of Appeals of North Carolina in State v. Wilson, 2009 1373205 (N.C.App. 2009).
In Wilson, David Reed Wilson was convicted of first-degree murder in large part based upon the testimony of Raymond Morgan. According to Wilson, however, that testimony was inconsistent with statements that Morgan made to Tecolia Daughtridge. The problem for Wilson at trial, however, was that when he called Daughtridge, she claimed that she had no recollection of any statements Morgan made to her regarding the murder.
At this point, Wilson sought to introduce a tape recorded statement that Daughtridge made to Detective Terry Green, in which she recounted what Morgan had told her. When Wilson's attorney asked Daughtride whether she remembered making the statement to Detective Green, she testified that he did not recall making a statement to police. Thereafter, when Daughtridge was asked about whether she fabricated any statement made to the police, she responded:
I didn't say I made anything up and you're not going to get me to say I made nothing up. My mental state and my physical health as far as my head, I'm liable to say anything. So, I'm not really-me sitting up here, anything I say is not going to be credible because really my mental state, I'm liable to say anything....
I'm liable to say anything. Truthfully. I'm a patient at Mental Health. I'm liable to say anything.
Over Wilson's objection, the trial judge ruled that this recording was inadmissible, and Wilson was subsequently convicted. He later appealed to the Court of Appeals of North Carolina, claiming, inter alia, that the recording was admissible as a recorded recollection under North Carolina Rule of Evidence 803(5).
Initially, that court noted that it had found no North Carolina precedent interpreting the language "memorandum or record" in N.C.R. Evid. 803(5) as encompassing a tape recorded statement. The court, however, found no North Carolina precedent interpreting "memorandum or record" as not encompassing a tape recorded statement. Instead, it cited Brandis & Broun on North Carolina Evidence § 224 at 201 (6th ed.2004) for the proposition that
Though most of the cases speak of a “writing,” it seems that a tape or similar recording should equally qualify. Indeed, if the witness dictated the recording and testifies that she then knew her dictation to be accurate and identified her voice, the probability of trustworthiness is higher than in the situations [involving written recordings by a third party].