EvidenceProf Blog

Ordeal By Innocence, The Aftermath: Alaska Adopts Wrongful Incarceration/Execution Exception To Attorney-Client Confidentiality

Last summer, the Northwestern University Law Review Colloquy published my essay, Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. I wrote the essay largely in response to the Alton Logan story. As I noted in the essay,

In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's.  What the jury that convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed.  The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession.  Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan dwere given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit: being locked up—Logan in a prison cell; the affidavit in a lock box.  Pained by guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

The thrust of my essay was that such injustices occur because,

[u]ntil recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted.  And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent "reasonably certain death or substantial bodily harm," the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example[]. Conversely, Massachusetts Rule of Professional Conduct 1.6(b)(1) explicitly permits attorneys to disclose client information to, inter alia, "prevent the wrongful execution or incarceration of another." Th[e] Essay argue[d] that the twenty-six states that have adopted some form of amended Model Rule 1.6(b)(1) can and should read an implied wrongful incarceration/execution exception into their existing rules while the remaining twenty-three states (and the District of Columbia) that have not adopted some form of amended Model Rule 1.6(b)(1) should amend their rules to create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exceptions.

At the time of my essay, Alaska was one of the twenty-three states that had not adopted some form of amended Model Rule 1.6(b)(1). But, as Andrew Perlman over at Legal Ethics Forum reported earlier this month, this all changed on tax day, 2009. On that day, Alaska adopted new Alaska Rule of Professional Conduct 1.6(b)(1)(C), which provides that "a lawyer may reveal a client's confidence or secret to the extent the lawyer reasonably believes necessary...to prevent reasonably certain...wrongful execution or incarceration of another."

And the Alaska Comment to the change makes clear that the Massachusetts rule was the model for the new Alaska rule. According to that Comment,

In paragraph (b)(1)(C), the court included an additional limited exception to the normal rule requiring lawyers to preserve the confidences and secrets of their clients.  This provision is modeled on the similar Massachusetts rule; its core purpose is to permit a lawyer to reveal confidential information in the specific situation in which that information discloses that an innocent person has been convicted of a crime and has been sentenced to imprisonment or execution.

Nice work, Alaska. Hopefully, this change will not be an isolated incident, and we will see several other states start to adopt wrongful incarceration/execution exceptions to attorney-client confidentiality.

-CM

Protecting Against The Google Mistrial: Supreme Court Of Michigan Revises Court Rule To Address Technologically Enhanced Jury Misconduct

Yesterday, I posted an entry about the Supreme Court of Michigan's adoption of a new rule of evidence providing that judges "shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons." Well, the Michigan Supremes also revised Michigan Court Rule 2.516, and the revision addresses an issue that I have given much attention on the blog: How do we deal with the increasing problem of jurors using cell phones, computers, and other devices to discuss and discover information relating to the case that they are hearing. But it didn't go all the way.

If the Michigan Supremes adopted the revision to Michigan Court Rule 2.516 in full, it would have read as follows, in relevant part:

(B)  Instructing the Jury. 

(1) After the jury is sworn and before evidence is taken, the court shall give such preliminary instructions regarding the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to enable the jury to understand the proceedings and the evidence.  MCR 2.516(D)(2) does not apply to such preliminary instructions.  The court shall specifically instruct the jurors that they shall not: 

(a) discuss the case with others until deliberation begins, except as otherwise authorized by the court; 

(b) read or listen to any news reports about the case; 

 

(c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation; 

(d) use a computer, cellular phone, or other electronic device  with communication capabilities to obtain information about the case when they are not in court.  As used in this subsection, information about the case includes, but is not limited to, the following: 

(i) seeking information about the criminal record of a party or witness; 

(ii) reviewing news accounts of the case; 

 

(iii) conducting research on any topics raised or testimony offered by any witness; 

 

(iv) researching any other information the juror might think would be helpful, such as an aerial map of the scene. 

(e) Any juror who observes or has reason to believe that another juror has used an electronic device in violation of this rule shall immediately inform the court of the violation.

As an article in The Detroit News makes clear, however, the Michigan Supremes "refused to adopt [the] portion of the proposed rule that would have ordered jurors to report on other jurors caught using communication devices in court. They did, however, pass the rest of the proposed revision, which "was spurred by county prosecutors across the state who claimed jurors have been using the Internet to research issues and to check on criminal backgrounds of defendants and witnesses in criminal cases."

-CM

What Not To Wear, Religious Edition: Supreme Court of Michigan Adopts Rule Allowing Judges to Exercise "Reasonable Control Over the Appearance of Parties and Witnesses" Based Upon Niqab Case

Yesterday, by a 5-2 vote, the Supreme Court of Michigan adopted an amendment to Michigan Rule of Evidence 611. This amendment created Michigan Rule of Evidence 611(b), which provides as follows:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons. 

The amendment was crafted in response to a lawsuit brought by Muslim woman Ginnah Muhammad. Muhammad had gone to court to contest a $3,000 charge from a rental company to repair a vehicle that she said thieves had broken into. When Muhammad appeared in court, District Judge Paul Paruk ordered her to remove her niqab, or face covering, but she refused, ostensibly because "[s]ome Muslim leaders interpret the Quran to require that women wear a headscarf, veil or burqa in the presence of a man who is not their husband or close relative." 

Based upon Muhhamad's refusal, Judge Paruk dismissed her case, and she subsequently sued him, claiming that he violated her religious and civil rights (that lawsuit is still pending). Meanwhile, the Michigan Judges Association and Michigan District Judges Association got behind a statewide court rule giving judges "reasonable" control over the appearance of parties and witnesses to observe their demeanor and ensure they can be accurately identified. This was the rule adopted by the Michigan Supremes yesterday.

I'm not sure whether we are going to get anything written from the Michigan Justices. According to the Chicago Tribune, "Majority justices did not comment on their vote Wednesday, but [Justice] Markman said last month that 'judges are not theologians,' and they should not be forced to decide whether a witness is exempted from requirements imposed on everybody else."  Meanwhile, the dissenting Justices (Chief Justice Marilyn Kelly and Diane Hathaway) apparently voted "no" because the rule did not have a religious exception endorsed by the ACLU of Michigan and religious groups.

Meanwhile, there is the question of how discretionary (or mandatory) the rule really is. On the one hand, ACLU attorney Jessie Rossman stressed that the rule "allows -- but does not force -- judges to ask Muslim women to remove their headscarves."  Meanwhile, Eugene Volokh over at The Volokh Conspiracy speculates that the rule may be a mandatory wolf in discretionary sheep's clothing.

I think that it would be unfair for me to address any of these issues without knowing whether and when we will get anything more from the Justices explaining the rationales and intended impact of their ruling. But, regardless of what the Michigan Supremes say, one thing is clear: Their decision cuts against a pretty consistent line of precedent in this country which had established that judges are not entitled to tell witnesses what not to wear when such an order implicates religious liberty.

This much is made clear by the opinion of the Intermediate Court of Appeals of Hawai'i in State v. Fergerstrom, 101 P.3d Hawai'i App. 2004). In Fergerstrom, Harry Fergerstrom appealed from his conviction for automobile-related offenses, claiming, inter alia, that the trial judge violated his right to due process and his right to present a defense by ordering a defense witness to wear western clothing, thus precluding him from wearing only a malo (loincloth) and kihei (rectangular tapa garment worn over one shoulder and tied in a knot).  

The court partially agreed, concluding that

In our view, absent a mode of dress that is obscene, disruptive, distractive, or depreciative of the solemnity of the judicial process, or that will create an atmosphere of unfairness, a party or a witness may decide what to wear in court. We agree with Ryslik that any positive or negative potential bias that might be caused by any other attire worn by the party or the witness can and should be addressed during the jury selection process, the trial, and in the instructions to the jury.

(The court found that there was not enough information in the trial court transcript to determine whether the trial judge acted properly and found that even if the judge acted improperly, such error was harmless).

The Ryslik opinion referenced in this block quote was the opinion of the Superior Court of New Jersey, Appellate Division, in Ryslik v. Krass, 652 A.2d 767 (N.J.Super.A.D. 1995), one of several opinions that the court cited in support of its conclusion. In Ryslik, the court found that the trial court abused its discretion in ordering a new trial based on the fact that a priest testified while wearing clerical garb, finding that the priest should not have been ordered to remove his clerical garb because

Any potential bias that could be caused by defendant's religious garb can be and here actually was addressed during the jury selection process and generally should be reiterated during the jury charge. This is a less intrusive alternative than restricting defendant's manner of dress and impinging on his possible constitutional right to free exercise of religion.

In State v. Allen, 832 P.2d 1248 (Or.App. 1992), the Court of Appeals of Oregon reversed a defendant's conviction for theft in the second degree because the trial court refused to allow her husband to testify while wearing his religious headgear, finding that

Although considerations of proper attire may go beyond the mere maintenance of a dress code, a trial judge's desire simply to maintain a general dress code cannot justify an infringement of a criminal defendant's right to present an exculpatory witness, unless the attire worn by a witness would be disruptive or would create an atmosphere of unfairness.

In Close-It Enters., Inc. v. Mayer Weinberger, 407 N.Y.S.2d 587 (N.Y.A.D. 1978), the New York Supreme Court, Appellate Division, Second Judicial Department, reversed a trial court's ruling that the defendant could not wear a yarmulke in front of the jury, concluding that

The defendant should not have been placed in the situation of having to choose between protecting his legal interests or violating an essential element of his faith.

And in In re Palmer, 386 A.2d 1112 (R.I. 1978), the Supreme Court of Rhode Island noted that the trial court had precluded the defendant from wearing a takia, a prayer cap which covers the top of the head and is a religious symbol among Sunni Muslims indicating that its wearer is in constant prayer. The Rhode Island Supremes found that,

assuming that the petitioner's beliefs are sincere, the state would bear a heavy burden of establishing how such actions threaten any compelling interest that the state may have in maintaining decorum in the courtroom.

Of course,  it could be argued that, unlike in these cases, judges have a compelling interest in having a witness remove a niqab because the finder of fact cannot observe the wearer's face and determine her credibility. 

There are at least two responses to this potential argument. The first is that the decision of the Michigan Supremes might still be out of line with precedent from across the country. Last December, the Fifth Circuit decided Boyd v. Texas, 2008 WL 5129645 (5th Cir. 2008). In Boyd, Karwana Boyd claimed that a trial judge in Texas' Second Administrative District ordered her to leave his courtroom because she refused to remove a head scarf that she was wearing in observance of hijab. Boyd quickly sued the judge, and the Chief Judge of the District just as quickly sent a letter to all of the judges in the District

reminding judges to be sensitive to the constitutional rights of people in the courtroom and specifically noting that people who wear religious clothing or head wear are not required to remove their religious clothing or head wear upon entering the courtroom. 

Second, the validity of the demeanor rationale is questionable. I direct readers to Aaron J. Williams excellent comment, The Veiled Truth: Can the Credibility of Testimony Given by a Niqab-Wearing Witness be Judged Without the Assistance of Facial Expressions?, 85 U. Det. Mercy L. Rev. 273 (2008), for a full and fair discussion of the issue.

-CM

Prior Authorization: Eleventh Circuit Finds Threat Conveyed To Witness' Girlfriend Didn't Constitute An Authorized Admission

Federal Rule of Evidence 801(d)(2)(C) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a person authorized by the party to make a statement concerning the subject.

But what must a party seeking to admit such a statement present to establish such authorization? Must there be explicit words of authorization or can authorization be implied by the statement itself? Both Federal Rule of Evidence 801 and the Eleventh Circuit's recent opinion in United States v. Docampo, 2009 WL 1652910 (11th Cir. 2009), tell us that authorization cannot be implied (solely) by the statement itself, but I am not sure that I agree.  

In Docampo, John Andrew Docampo, Jr. appealed from his convictions for conspiracy to possess with intent to distribute cocaine, possession of firearms in furtherance of the conspiracy, and conspiracy to possess firearms in furtherance of a drug trafficking crime. According to the testimony of Edwardo Lorenzo at trial, Docampo invited him to participate in the subject conspiracy, but Lorenzo declined. Lorenzo also testified at trial about a phone call Docampo made to Lorenzo's girlfriend during which Docampo told Lorenzo's girlfriend that "[e]ither bad things would happen to [Lorenzo] or somebody that [he] was close to if [he] was to testify." Docampo's attorney objected to this testimony as hearsay, but the district judge found that Docampo had opened the door to this testimony.

On Docampo's subsequent appeal, however, the Eleventh Circuit found that Docampo had not opened the door, which left the State scrambling to find an alternate rationale for the admission of Lorenzo's testimony. And the State's main argument was that Lorenzo's testimony concerning Docampo's statement to Lorenzo's girlfriend was admissible under Federal Rule of Evidence 801(d)(2)(C) because Docampo implicitly authorized Lorenzo's girlfriend to relate his threat to Lorenzo. The Eleventh Circuit disagreed (although it deemed the district court's error harmless), noting that Federal Rule of Evidence 801 provides that

The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

I understand the rationale of this sentence for statements arguably covered by Federal Rule of Evidence 801(d)(2)(D) and Federal Rule of Evidence 801(d)(2)(E). Federal Rule of Evidence 801(d)(2)(D) covers employee admissions, and, obviously, the proponent of an alleged employee admission must present evidence besides the alleged employee's statement to prove, inter alia, that the person making the admission was in fact the employee of a party. Meanwhile Federal Rule of Evidence 801(d)(2)(E) covers co-conspirator admissions, and, obviously, the proponent of an alleged co-conspirator admission must present evidence besides the alleged co-conspirator's statement to prove, inter alia, that the person making the statement was in fact the co-conspirator of a party.

But the same doesn't seem to work with authorized admissions under Federal Rule of Evidence 801(d)(2)(C). If Al tells Bob, "Tell Chris I am going to kill him," he he has authorized Bob to repeat the statement to Chris. Why, in this situation, would the statement not be sufficient to establish the authorization under Federal Rule of Evidence 801(d)(2)(C)? And what other evidence could the prosecutor even introduce besides the statement to prove the authorization? 

The situation in Docampo is a little more complicated because Docampo apparently didn't explicitly authorize Lorenzo's girlfriend to repeat his threat to Lorenzo. But it seems clear to me that it was implied in Docampo's threat that he wanted, and thus authorized, Lorenzo's girlfriend to repeat his threat to Lorenzo. Otherwise, why would he have made the threat?  It thus seems to me that Docampo's statement should have been deemed admissible, notwithstanding the aforementioned language from Federal Rule of Evidence 801.

-CM

What Are Your Intentions?: Sixth Circuit Finds No Plain Error In DEA Agents Drug Quantity Testimony

Federal Rule of Evidence 704(b) provides that

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.

Does this rule prevent DEA agents from testifying that the quantities of drugs recovered from a defendant are consistent with intent to distribute? The answer is "no" according to the Sixth Circuit in its recent opinion in United States v. Alford, 2009 WL 1587267 (6th Cir. 2009), at least if the defendant does not object to such testimony.

In Alford, one bag containing 2.7 grams of cocaine hydrochloride, or powder cocaine, and another bag containing 5.7 grams of cocaine base, or crack cocaine, were recovered from Daniel Alford. Alford was later charged with possession with intent to distribute five grams or more of crack cocaine. At trial, the prosecution presented the testimony of Agent Dave Lewis with the DEA, who

testified as an expert witness in narcotic drug trafficking practices. Lewis testified that a street-level crack dealer generally possesses numerous rocks of crack cocaine to sell to individual buyers, whereas a user will typically obtain only one or two crack rocks at a time. Lewis explained that, because crack is such a highly addictive drug, a person who uses crack becomes instantly addicted, cannot function in society, cannot maintain employment, and will use all of his money to buy crack. Further, a crack addict generally has no money except the amount necessary to buy the next rock.

Lewis testified that crack possessed for personal use generally will be a “very small quantity” that can be consumed in one sitting. A user of crack will possess one or two crack rocks, as well as a pipe or glass tube, and will go to the nearest location to smoke it after purchasing it. Lewis testified that, based on his experience, persons who distribute crack possess sums in denominations of $20 bills since crack rocks are sold for $20 and $40 apiece.

On cross-examination, Defendant asked whether Lewis's opinion would be different if Lewis knew that Defendant had a "$300 to $500 a day habit" using crack cocaine. Lewis responded that if Defendant had such a drug addiction, he would not have had the cash he possessed and he would not have both powder and crack cocaine. Lewis also stated that, in his experience, crack users generally are not in possession of both sums of cash and drugs at the same time.

After he was convicted, Alford appealed, claiming, inter alia, "that the district court plainly erred because Lewis improperly stated an opinion as to Defendant's mental state, which is barred by Fed.R.Evid. 704(b)." The court, however, noted that it had failed to find plain error when officers had rendered similar testimony in similar cases and noted that

Moreover, the statements Defendant complains of were elicited by Defendant on cross-examination when Lewis was repeatedly asked if Defendant could have possessed the crack for his personal use. Under these circumstances there is no plain error.

I agree with the Sixth Circuit and would add that Lewis' testimony appears to me to be pretty benign. It seems to me that Lewis merely provided general testimony about how people with different quantities of drugs tend to act, not specific testimony about Alford's consent. Under these circumstances, it seems clear to me that the district court did not commit plain error.

-CM

(In)Competently Put?: Court Of Appeals Of Mississippi Rejects Competency Challenge To Excited Utterance

It is well established in the American court system that only competent witnesses may testify in open court, If an individual cannot understand the difference between right and wrong, respond intelligibly to cross-examination, etc., he cannot render testimony before a jury. And, understandably, the same generally applies to hearsay declarants. If a witness cannot take the stand because he is incompetent, surely his out-of-court-statements cannot be introduced through the testimony of another witness. But, while this is the general rule, many courts, such as the Court of Appeals of Mississippi in its recent opinion in Eubanks v. State, 2009 WL 1520108 (Miss.App. 2008), find that there is an exception for excited utterances.

In Eubanks, Darrius Eubanks was convicted of capital murder, with the underlying felony of felonious child abuse. That conviction was based upon alleged acts that Eubanks committed against the children of his girlfriend, four-year-old Daviyon Johnson ("Doc") and two-year, eleven-month-old Inecia McNeil, who referred to Eubanks as "Daddy." The facts adduced at trial indicated that Eubanks' girlfriend, returned from visiting her sick grandmother one day and 

found Daviyon lying on the floor with Eubanks standing beside him. Inecia was standing against a wall, not moving, and she appeared "scared." Johnson asked Eubanks what was wrong, and he replied that he did not know. Johnson moved into her bedroom and called for her son to get up. When Daviyon failed to respond, Johnson went back into the children's bedroom. Eubanks picked Daviyon up, and Johnson described the child as limp "like a little Raggedy Ann doll." Johnson testified she took Daviyon into the bathroom, where she observed that "the whole side of [his] face was just black and blue and red." Johnson testified she asked Eubanks what had happened. He again told her that he did not know, but he added that the children had both reverted from their toilet training and soiled their clothing. Johnson also testified that Eubanks told her that Inecia had hit her older brother in the head with a stick that had been used to secure the apartment's patio door.

Johnson then went to a neighbor's apartment to telephone her mother and aunt. She asked them to come to get her and Daviyon and take them to CMMC. She then returned to the apartment, where she undressed Daviyon, washed him thoroughly, wrapped him in a blanket, and threw on a coat to meet her mother at the door. Johnson then took her daughter to an upstairs neighbor, Emma Robinson. When her mother arrived, Johnson testified that Eubanks said he would stay and clean up the apartment; Johnson was surprised he did not accompany them to the hospital. Johnson, Daviyon, her mother, and her aunt then left for the nearby CMMC.

CMMC could not stabilize Daviyon, and about an hour later, Daviyon was sent by ambulance to the University of Mississippi Medical Center (UMMC). Johnson returned to the apartment to pick up her daughter before continuing on to UMMC. Johnson testified that during the ride to UMMC, Inecia appeared "[q]uiet, scared. Like she was terrified." Johnson observed that ordinarily Inecia "never stopped talking," but she had been silent since Johnson returned home. In the car, Johnson asked the child, "Raja[,] what happened?" Johnson testified, over the objection of the defense, that Inecia responded, "[D]addy hit Doc with the stick in the head a lot of times[,] and he hit me too. Then Doc started crying[,] and [D]addy wouldn't stop hitting him. And then Doc stopped crying[,] and he didn't move no [sic] more."

The trial judge overruled the defense's objection because it found Inecia's statement to be admissible as an excited utterance under Mississippi Rule of Evidence 803(3) as it was "[a] statement relating to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition." And after Eubanks was convicted, he appealed claiming, inter alia, "that the trial court should have held a competency hearing to determine whether Inecia was competent to testify." The Court of Appeals of Mississippi, however, rejected this argument, concluding that "an excited utterance is admissible notwithstanding the availability of the declarant at trial."  

Indeed, this was not an anomalous opinion. As the Court of Appeals of Nebraska held in State v. Stithem, 1993 WL 500607 (Neb.App. 1993), 

[i]n litigation involving children, there is an exceedingly important exception to the rule that a hearsay declarant be competent at the time of an out-of-court statement. The great majority of decisions hold that an excited utterance is admissible despite the fact that the declarant is incompetent when the out-of-court statement is made. The rationale for this exception is that excited utterances draw their reliability from the circumstances in which they are uttered, not from the trustworthiness of the declarant.

I disagree with the vast majority of decisions for two reasons. First, I don't see how the above analysis distinguished excited utterances from statements falling under any other hearsay exceptions. Second, there are reasons to doubt the reliability of excited utterances. As David Crump noted in The Case foe Selective Abolition of the Rules of Evidence, 35 Hofstra L. Rev. 585, 615 (2006),

the exception for an "excited utterance' admits hearsay if it is spoken while under the stress of an exciting event.The theory is that the required element of stress reduces the sincerity risk, because a person under stress does not have the time or presence of mind to make up a false story. In the first place, we do not know whether this is so, or whether it is true to some degree only. In the second place, and more importantly, stress does not guarantee against defects in perceptivity, qualification, expression, or bias. In fact, the psychology of perception under conditions of stress points in precisely the opposite direction from this exception, indicating that hearsay of this kind is distinctly unreliable. The experiments show that stress results in distorted perception and reporting--it produces lesser accuracy, not greater. The ironic result of this exception for excited utterances, however, is that a court would be much more likely to admit evidence of Leake's son's hearsay statement if he had made it under stress--if it had been uttered right after the accident, for example, or in response to a shocking revelation by the insurance investigator--even though we would then have less reason to credit the statement, and even though the statement as actually uttered, which the rules excluded, had greater indicia of truth.

Nonetheless, the decision by the Court of Appeals of Mississippi appears to be the law of the land in most courts and one that is unlikely to change in the near future.

-CM

The Best Of Everything: Fourth Circuit Erroneously Finds That Best Evidence Rule Doesn't Apply In Firearms Appeal

Federal Rule of Evidence 1002, the Best Evidence or Original Document Rule, indicates that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. 

As I tell my Evidence students, this Rule is oft misunderstood, not only by law students, but also by lawyers and even judges. The recent opinion of the Fourth Circuit in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009), is a good example of judges completely misunderstanding the Best Evidence Rule.

In Smith, Cordell Smith was convicted of possessing with intent to distribute a quantity of crack cocaine, using and carrying one or more firearms during and in relation to a drug-trafficking crime, and possessing one or more firearms, having been previously convicted of a felony. To prove the interstate nexus element of the felon in-possession count, the government presented the testimony of Special Agent Andrew Cheramie of the ATF that firearms recovered from Smith's apartment had been manufactured in states other than North Carolina. Smith's attorney objected to the proposed testimony of Special Agent Cheramie on the ground that it would violate Federal Rule of Evidence 1002. He argued that Cheramie's testimony, which was based on written reference materials and ATF computer databases, none of which were offered into evidence, violated the Best Evidence Rule. The district court overruled the objection and allowed Cheramie to testify without requiring him to introduce any reference materials into evidence. 

Smith subsequently appealed, and the Fourth Circuit disposed of his appeal as follows:

Smith argues that "the materials on which Cheramie relied were clearly 'writings' or 'recordings' under Rule 1001" and therefore "Cheramie's testimony plainly sought to prove the content of writings or recordings because Cheramie himself had no independent, first-hand knowledge of where the firearms were manufactured,” in violation of Rule 1002....

Smith's argument, however, appears to rest on a misconception of the "best evidence rule" and Rule 1002. In asserting that Cheramie should not have been allowed to testify to the fact of a firearm's place of manufacture without introducing the writings and other materials from which he learned that fact, Smith suggests that the best evidence rule required the government to introduce the best evidence of that fact, i.e., the writings and other materials from which Cheramie learned the fact, especially when Cheramie did not have personal first-hand knowledge of the fact. But Federal Rule of Evidence 1002 is not nearly so broad.

Federal Rule of Evidence 1002 provides in pertinent part: "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required." As the Rule's language states, the Rule applies to the circumstance where the proponent seeks "to prove the content" of a document. The Rule exists to afford guarantees against inaccuracies and fraud by requiring that the original of the document be offered, subject to exceptions....

In this case, the government never sought to prove the content of any writing or recording relating to the firearms or their places of manufacture. It sought only to prove the fact that the firearms were manufactured in States other than North Carolina, where they were recovered during the search of Smith's apartment. The place of the firearms' manufacture was a fact existing independently of the content of any book, document, recording, or writing. Just because Special Agent Cheramie consulted books and computer databases in reaching his conclusion about the firearms' place of manufacture does not mean that his testimony was offered “to prove the content” of the books and computer files. Accordingly, Rule 1002 did not require submission of the books and computer files into evidence.  

With due respect to the Fourth Circuit judges who decided Smith, they were the ones who had the misconception regarding the "best evidence rule" and Rule 1002. Clearly, the government sought to prove the contents of the writings and other materials from which Cheramie learned that firearms recovered from Smith's apartment had been manufactured in States other than North Carolina. As Smith noted, Cheramie had no independent personal knowledge of where those firearms were manufactured. Instead, his knowledge of where those firearms were manufactured was dependent on the writings and other materials. Thus, his testimony was, in effect, proving the contents of the writings and other materials because he had no personal knowledge of where the firearms were manufactured. Accordingly, Cheramie's testimony triggered the Best Evidence Rule, and the Fourth Circuit's conclusion was erroneous.  

-CM