EvidenceProf Blog

It's So Juvenile: Minnesota Case Reveals Difference Between Minnesota And Federal Rule Of Evidence 609(d)

Federal Rule of Evidence 609(d) indicates that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Minnesota Rule of Evidence 609(d), however, is different, and that difference made all the difference for the defendant in State v. Bishop, 2009 WL 1750631 (Minn.App. 2009). 

In Bishop, Elmer Bishop appealed from his first and second degree assault convictions, claiming, inter alia, that that the prosecutor wrongfully failed to disclose evidence of the victm's prior juvenile adjudication for possession of a dangerous weapon on school grounds. Bishop claimed that if the prosecutor disclosed this adjudication to him, he could have used it to impeach the testimony of the victim at trial. 

And, if his case were being heard under the Federal Rules of Evidence, he might have been right. As noted above, he could have used the juvenile adjudication to impeach the victim under Federal Rule of Evidence 609(d) if he could have established that the offense underlying that adjudication was be admissible to attack the credibility of an adult and that its admission was necessary for a fair determination of the issue of guilt or innocence.

But Bishop's case was heard under the Minnesota Rules of Evidence, and Minnesota Rule of Evidence 609(d) indicates that

Evidence of juvenile adjudications is not admissible under this rule unless permitted by statute or required by the state or federal constitution.  

Because no statute or constitutional provision applied, Bishop was not entitled to impeach the victim through his juvenile adjudication, the prosecution did not err in failing to disclose that adjudication, and the Court of Appeals of Minnesota affirmed Bishop's convictions.

-CM

Juror's Curiosity Killed The Verdict: Court Of Appeals Of Arkansas Upholds Granting Of New Trial Based Upon Juror's Accident Scene Visit

Similar to its federal counterpart, Arkansas Rule of Evidence 606(b) indicates 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 his or any other juror's mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions 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. 

And, as the recent opinion of the Court of Appeals of Arkansas in Campbell v. Hankins, 2009 WL 1685164 (Ark.App. 2009), makes clear, when a juror, against the judge's instructions, visits the accident/crime scene and relays what he saw to the other jurors, what he saw is extraneous prejudicial information which forms the proper predicate for jury impeachment.

In Hankins, Ms. Michael Hankins sued Mr. Leed Campbell for damages arising out of a vehicle collision that took place at an intersection in Pine Bluff, Arkansas. Hankins' vehicle, which was not subject to a stop sign, struck the side of Campbell's vehicle, which had a stop sign, and the basis for Hankins' lawsuit was that Campbell was negligent in failing to stop at the stop sign, failing to maintain a proper look out, and failing to yield the right of way to her.

Prior to deliberations, the judge instructed the jurors "to determine the facts from the evidence produced in this trial." But despite this instruction, a juror apparently visited the accident scene. After the jury returned a general verdict signed by ten of the twelve jurors finding against Michael Hankins, the two holdout jurors submitted identical affidavits, which each stated,

I attest that a fellow juror [McDaniel] made an independent investigation into the facts of the case in that he reported during the deliberations that he went to the scene of the accident during the lunch break. Juror McDaniel reported the results of his investigation and his opinions regarding the same to the other jurors during the deliberations. Juror McDaniel was a juror voting in favor of the defendant and I believe his actions contributed to the verdict being handed down in favor of the defendant....

Based upon these affidavits, the trial court granted Hankins' motion for a new trial, prompting Campbell's appeal. And, in addressing that appeal, the Court of Appeals of Arkansas noted that juror accident scene visits are extraneous to the jury deliberation process, meaning that they form the proper predicate for jury impeachment notwithstanding Arkansas Rule of Evidence 606(b). It then noted that it had previously found in Diemer v. Dischler, 852 S.W.2d 793 (Ark. 1993), that there are four factors to consider in determining whether a juror's visit to the accident scene warrants a new trial:

(1) whether the trial court instructed the jury not to visit the site of the accident; (2) whether the juror offender simply voiced an opinion or engaged in an experiment relating to a crucial issue; (3) whether the offending juror's observations impugned a fact presented by a party; (4) whether the affiant describes the alleged juror with sufficient specificity, which would include identifying the names of the jurors who engaged in the acts complained of.

Applying these factors to the case before it, the court concluded that,

[h]ere, the offending juror, McDaniel, was named. Further, prior to deliberations, the jury was instructed to determine the facts from the "evidence produced in this trial." Despite this instruction, a juror went to the scene of the accident. McDaniel then "made an independent investigation of the facts of the case" and "reported the results of his investigation and his opinions regarding the same to the other jurors during the deliberations." We note that comparative negligence was at issue, and there is a reasonable possibility that McDaniel's observations and report thereon impugned facts presented by the parties. 

The Court of Appeals of Arkansas thus found that the trial court properly granted a new trial because

In its findings of fact, the court concluded that the jury failed to follow the court's instructions and considered evidence not introduced into evidence. There was a reasonable possibility that a view of the scene of the collision could have swayed jurors on the issue. Moreover, the affidavits were found by the trial court to be uncontroverted, and there is no indication in the record that any of the jurors may have already been familiar with the accident scene, as Campbell did not file any competing affidavit. We simply cannot say that the trial court's decision to grant a new trial in this case constituted a manifest abuse of discretion. 

-CM

Chicken Little Or Canary In The Coal Mine, Take 2: Professor Friedman's Initial Reaction To Melendez-Diaz

Professor Richard Friedman over at The Confrontation Blog has a typically great post setting forth his initial reaction to Melendez-Diaz. I recommend that readers check it out as well as his upcoming post which will focus on the dissent.

-CM

Chicken Little Or Canary In The Coal Mine?: Supreme Court Finally Issues Opinion In Melendez-Diaz, Finding Certificates Of State Laboratory Analysts To Be "Testimonial"

Today, the Supreme Court finally decided Melendez-Diaz v. Massachusetts, finding in a 5-4 vote that certificates of state laboratory analysts were "testimonial" and thus covered by the Confrontation Clause. And, if you believe Justice Kennedy, the result of the decision will be the sky falling on many criminal prosecutions; if you believe Justice Scalia, Justice Kennedy is Chicken Little.

You can get the full facts of Melendez-Diaz from the Court's opinion, but here are the basics. Police arrested Luis Melendez-Diaz, took what was apparently cocaine from him, and charged him with distributing cocaine and trafficking in cocaine in an amount between 14 and 28 grams. At trial, the police introduced into evidence

three "certificates of analysis" showing the results of the forensic analysis performed on the seized substances.  The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine."...The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health.

The analysts who conducted the forensic analysis, however, did not testify, and Melendez-Diaz claimed that their failure to testify violated his rights under the Confrontation Clause. The trial court disagreed, Melendez-Diaz was convicted, and his appeal eventually reached the Supreme Court.

In finding that the introduction of the certificates of analysis violated the Confrontation Clause, Justice Scalia, in his majority opinion, noted that the Court's analysis was guided by its opinion in Crawford v. Washington, 541 U.S. 36 (2004), which held that the Confrontation Clause is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.

Scalia then noted that the Crawford opinion set forth various formulations of what is testimonial as follows:

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial state-ments...contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

As I have noted before on this blog, however, the formulation that most courts have adopted is the one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."  And in Melendez-Diaz, Scalia leaned on this formulation to a large degree in reaching his conclusion, finding that

not only were the affidavits "'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,'"...but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight" of the analyzed substance....We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits themselves.

Scalia also, however, construed certificates of analysis as affidavits and noted that in the "formulations" block quote from Crawford, "[o]ur description of that category mentions affidavits twice." Indeed, Scalia, noted that "[t]here is little doubt that the documents at issue in this case fall within the 'core class of testimonial statements' thus described." All of this makes me wonder what took the Court so long to issue its opinion, and my guess is that Justice Thomas, who wrote a concurring opinion, was the swing vote.

Indeed, most of Scalia's opinion was not directed at the issue of whether certificates of analysis are "testimonial," but instead addressed various objections raised by the respondent and Kennedy's dissent: (1) that the analysts are not subject to confrontation because they are not “accusatory” witnesses; (2) that the analysts should not be subject to confrontation because they are not "conventional" (or "typical" or "ordinary") witnesses of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh; (3) that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is "prone to distortion or manipulation," and the testimony at issue here, which is the "resul[t] of neutral, scientific testing;" (4) that the analysts’ affidavits are admissible without confrontation because they are "akin to the types of official and business records admissible at common law;" (5) that the Court should have found no Confrontation Clause violation in this case because petitioner had the ability to subpoena the anaylists.

I agree with Scalia's points for the most part and thus will leave readers to the Court's opinions to see whether they side with Scalia or Kennedy. To me, though, the most interesting question is whether Scalia is correct that the Court's opinion will not have a substantial negative impact on criminal prosecutions. According to Scalia, inter alia,

Perhaps the best indication that the sky will not fall after today’s decision is that it has not done so already. Many States have already adopted the constitutional rule we announce today,11 while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report....Despite these widespread practices, there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst’s appearance at trial. Indeed, in Massachusetts itself, a defendant may subpoena the analyst to appear at trial,...and yet there is no indication that obstructionist defendants are abusing the privilege.  

Moreover, Scalia contended that

defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case.  It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis.  Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counseldoes not intend to rebut in any fashion. 

Meanwhile, with regard to Scalia's first argument, Kennedy retorted that

Even what the Court calls the “simplest form” of burden-shifting statutes do impose requirements on the defendant, who must make a formal demand, with proper service, well before trial.  Some statutes impose more requirements, for instance by requiring defense counsel to subpoena the analyst, to show good cause for demanding the analyst’s presence, or even to affirm under oath an intent to cross-examine the analyst....In a future case, the Court may find that some of these more onerous burden shifting statutes violate the Confrontation Clause because they "impos[e] a burden...on the defendant to bring...adverse witnesses into court."

And, with regard to Scalia's second argument, Kennedy claimed that

The instant case demonstrates how zealous defense counsel will defend their clients. To convict, the prosecution must prove the substance is cocaine. Under the Court’s new rule, apparently only an analyst’s testimony suffices to prove that fact.  (Of course there will also be a large universe of other crimes, ranging from homicide to robbery, where scientific evidence is necessary to prove an element.) In cases where scientific evidence is necessary to prove an element of the crime, the Court’s rule requires the prosecution to call the person identified as the analyst; this requirement has become a new prosecutorial duty linked with proving the State’s case beyond a reasonable doubt. Unless the Court is ashamed of its new rule, it is inexplicable that the Court seeks to limit its damage by hoping that defense counsel will be derelict in their duty to insist that the prosecution prove its case.  That is simply not the way the adversarial system works.

I'm not sure who has the better of this argument, and it will be interesting to see how it plays out in courtrooms across the country.

-CM

Alternate Ending: Supreme Court Of Indiana Opinion Reveals That Indiana Courts Consider Alternate Juror (Mis)Behavior An Improper Outside Influence For Jury Impeachment Purposes

Similar to its federal counterpart, Indiana Rule of Evidence 606(b) indicates 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 that 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 (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

(Federal Rule of Evidence 606(b) does not allow jurors to impeach their verdicts through allegations of juror drug or alcohol use, but it does allow jurors to impeach their verdicts based upon transcription mistakes). But what happens when an alternate juror participates, or distracts from, the jury deliberation process. Should this be considered something internal to the jury deliberation process and thus not a proper predicate for jury impeachment, or is it an improper outside influence and thus something that can form the predicate for jury impeachment? As the recent opinion of the Supreme Court of Indiana in Henri v. Curto, 2009 WL 1685134 (Ind. 2009), makes clear, Indiana courts have found that alternate jurors are improper outside influences, meaning that jurors can testify about their misconduct to impeach their verdicts.

In Curto, 

Susana Henri and Stephen Curto were students at Butler University in Indianapolis in March 2004, when they met for the first time at an off-campus party. They drank alcohol, left the party together, went to a dorm room, and engaged in sexual intercourse. Alleging lack of consent, Ms. Henri subsequently sued Mr. Curto, seeking civil damages for rape. Denying the rape allegation, Mr. Curto, who had been temporarily suspended from the university in the aftermath of the incident, counterclaimed for tortious interference with his contract with the university. The parties presented their evidence to a...jury, which found against Ms. Henri on her claim and in favor of Mr. Curto on his counterclaim, awarding him damages of $45,000. Ms. Henri appealed, and a divided panel of the Court of Appeals, issuing three separate opinions, reversed and remanded for a new trial because of errors during the jury's deliberations.

Curto then appealed to the Supreme Court of Illinois. One of the errors during the jury's deliberations that apparently led to reversal was the (mis)behavior by an alternate juror during deliberations. This (mis)behavior consisted of 

the alternate juror communicated with the regular jurors during deliberations by making noises and gestures "that suggested she wanted to speak, but had caught herself," precipitating other jurors to "giggle or snicker."...The affidavit also asserted that the alternate juror used "gestures and nonverbal noises to interrupt during times when statements were made that were supportive of [Ms. Henri's] case," and that the alternate juror paced back and forth and eventually "got on the floor and began exercising," causing other jurors to laugh. 

The Supreme Court of Indiana noted that pursuant to Griffin v. State, 754 N.E.2d 899 (Ind. 2001), it had previously found that (mis)behavior by an alternate juror constituted an improper outside influence, meaning that the appellate courts properly considered the alternate's misbehavior in rendering its opinion. But the problem for Henri was that Indiana Rule of Evidence 606(b) only deals with the issue of whether evidence of such (mis)conduct is admissible, not whether it should lead to reversal. And the court found that for there to be a reversal, there had to be gross misconduct by the alternate or probable harm. On this ground, the court found the appellate court's opinion lacking because

[h]ere, while the alleged behavior of the alternate is disappointing and immature, it does not rise to gross misconduct that was likely injurious to Ms. Henri. The juror's affidavit does not demonstrate a likelihood that the antics of the alternate juror affected the decision of the regular jurors. Unlike Griffin, in which the alternate spoke about the merits of the case, this alternate was at worst an irresponsible and impolite distraction. We decline to find that the alternate's conduct amounted to gross misconduct that rendered a fair trial unlikely.

The Court thus reinstated the trial court's opinion.  

-CM

Duty To Defend: Diversity Case Reveals Interesting Aspect Of Illinois' Attorney-Client Privilege

Similar to most states' attorney-client privileges, Illinois' attorney-client privilege allows a client to prevent his attorney from disclosing a statement he made to his attorney in court if

(1) the statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential. 

As the recent opinion of the United States District Court for the Northern District of Illinois in Cars R Us Sales and Rentals, Inc. v. Ford Motor Co., 2009 WL 1703123 (N.D. Ill. 2009), makes clear, however, Illinois has an additional component to its attorney-client privilege, albeit one that was not relevant to the court's opinion.

In Cars R Us,  

[o]n February 24, 2005, a fire allegedly occurred in the dashboard of a 1997 Ford Escort owned by Linda Farther....At the time of the fire, the car was parked inside a building owned by [Cars R Us Sales and Rentals]....[Cars R Us] allege[d] that the fire occurred because [Ford] negligently designed, manufactured, and sold the car....Plaintiffs brought [a] diversity action against [Ford] on December 12, 2008, alleging that the fire caused damage to [its]' real, personal, and business property.

General Casualty provided a policy of insurance covering Cars R Us' property at the time of the fire, and, during discovery, Cars R Us produced two documents, each titled a document titled, "Litigation Agreement." The Litigation Agreement was

“between [General Casualty], [Cars R Us], and Smith Amundsen LLC ('Attorneys')."...Paragraph one of the Litigation Agreement simply authorize[d] Smith Amundsen to represent General Casualty and [Cars R Us]....Paragraph three require[d] [Cars R Us] to cooperate with the Attorneys and to assist them in preparation of the trial....Paragraph five relate[d] to the payment of attorneys' fees and costs in this litigation....The remainder of the document regards the relationship between General Casualty and [Cars R Us] in settlement, and the priorities in the potential distribution of settlement funds.

Cars R Us claimed that this Litigation Agreement was covered by attorney-client privilege, and Ford disagreed. The Northern District of Illinois found that the issue was governed by Illinois privilege law pursuant to Federal Rule of Evidence 501, which provides that 

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

And the court noted that, in addition to the the typical attorney-client privilege that applies when the aforementioned three elements are satisfied, "[i]n Illinois, the privilege also extends to communications between an insurer and an insured, 'where the insurer is under an obligation to defend the insured.'" Of course, in Cars R Us, Cars R Us was the plaintiff meaning that there was no obligation to defend and thus no insurer-insured privilege.

But, here's the part of the opinion with which I don't agree. According to the court,

Although the Litigation Agreement was executed with assistance from attorneys and purports to represent an agreement entered into by the parties and the parties' attorneys, [Cars R Us] admit[s] that nothing in this document constitutes an 'explicit attorney-client communication of advice or opinion.'...More accurately, the document memorializes the rights and responsibilities agreed to between General Casualty and [Cars R Us] in this litigation. Because the document does not reflect or represent communications made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, it is not protected by the attorney-client privilege.

Huh? This seems to to be exactly the type of communication that is covered by the attorney-client privilege. This ruling ended up being irrelavant because the court found that the Litigation was work product, but it seems to me that the court was wrong on the privilege issue.

-CM 

Going Unnoticed: Texas Appeal Illustrates Difference Between Texas And Federal Rule Of Evidence 609(b)

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible [to impeach a witness] if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Texas Rule of Evidence 609(b) contains the first sentence of its federal counterpart, but it does not contain the second sentence, and this omission apparently made the difference in the recent opinion of the Court of Appeals of Texas in Gore v. State, 2009 WL 1688196 (Tex.App.-Hous. [1 Dist.] 2009).

In Gore, Keeln Gore was charged with second offender assault to a family member.

During cross-examination of [Gore], the State asked if appellant was the same person who had been convicted of unauthorized use of a motor vehicle (UUMV) on two previous occasions. At that point, [Gore]'s attorney objected by stating, "Judge, the State did not give notice under 609. Additionally, the prior convictions are more than ten years old.” [Gore]'s attorney further stated, “We would also object to remoteness, Judge; they're more than ten years old."

The judge, however, found that the probative value of this conviction substantially outweighed its prejudicial effect and thus admitted it under Texas Rule of Evidence 609(b), which provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Now, the court did not squarely address the notice requirement, and I think that the comparison between Texas Rule of Evidence 609(b) and Federal Rule of Evidence 609(b) explains the reason why. Texas Rule of Evidence 609(b) does not have a notice requirement like Federal Rule of Evidence 609(b). Texas Rule of Evidence 609(f) does indicate that

Evidence of a conviction is not admissible if after timely written request by the adverse party specifying the witness or witnesses, the proponent fails to give to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

As is clear from this Rule, however, notice only need be given after a timely written request, and I am guessing that in Gore, defense counsel did not submit such a written request.

-CM

The Harmless Conspiracy: Court Finds Harmless Error Despite Improperly Admitted Co-Conspirator Admission

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

[a] statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

As both the plain language of this Rule and the recent opinion of the United States District Court for the Eastern District of Michigan in Rodriguez v. Jones, 2009 WL 1619969 (E.D. Mich. 2009), make clear, a statement is not admissible under this rule merely because it was made by a party's co-conspirator; instead, the statement must be made both during the course of the conspiracy and in furtherance of it. And in Jones, the co-conspirator's statement was neither.

In Jones, Frank C. Rodriguez was convicted of conspiracy to deliver 650 or more grams of cocaine, possession with intent to deliver 50 to 224 grams of cocaine, and two counts of delivery of less than 50 grams of cocaine. These convictions were procured in part based upon the testimony of Mary Chopski, who claimed that Rodriguez's co-defendant, Tico Porter, told her that Rodriguez was the biggest drug dealer in Oakland County.

After he was convicted in Michigan state court and unsuccessfully appealed through the Michigan state court system, Rodriguez filed a pro se application for the writ of habeas corpus with the Eastern District of Michigan under 28 U.S.C. Section 2254, claiming, inter alia, that Porter's alleged statement was inadmissible hearsay. The court found that the issue was governed by Federal Rule of Evidence 801(d)(2)(E) and that Porter, as Rodriguez's co-defendant, was clearly his co-conspirator. The problem for the prosecution, however, was that it could neither prove that Porter's statement was made during the course of the subject conspiracy nor that it was made in furtherance of the conspiracy; instead, it was apparently an offhanded comment in no way connected to the crimes for which Rodriguez was convicted.

Nonetheless, there was a fundamental problem for Rodriguez.

A close friend of [Rodriguez]...testified that [Rodriguez] had admitted to being the biggest drug dealer in the area..., and [another witness] conceded at trial that [Rodriguez] might have said he was the biggest dope dealer around....Thus, even though Mary Chopski's hearsay testimony that co-defendant Porter had said that [Rodriguez] was the biggest cocaine dealer in the county might [have] amount[ed] to constitutional error, the error was harmless, and defense counsel's failure to object to Chopski's testimony did not amount to ineffective assistance.

-CM

Total Recall: Court Dismissed Lawsuit Against Harley-Davidson Based Upon Rule 407

Federal Rule of Evidence 407 states that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

In other words, if a plaintiff is going to sue a company such as Harley-Davidson for making a defective product that caused her to suffer injuries, her sole method of proof cannot be that the company recalled the product after her accident as is made clear by the recent opinion of the United States District Court for the Southern District of Mississippi in Rutledge v. Harley-Davidson Motor Co., 2009 WL 1635762 (S.D. Miss. 2009). 

In Rutledge, on December 13, 2006, Donna Rutledge purchased a new model XL883L motorcycle designed and manufactured by Harley-Davidson. On December 29, 2006, Rutledge was unable to steer the motorcycle through a curve in the road, crashed, and sustained serious injuries. Thereafter,

[a]pproximately one month after the accident, on January 22, 2007, [Harley-Davidson] mailed the first of two recall notices stating that it had "decided that a defect relating to motor vehicle safety exists on certain 2007 XL model motorcycles" built during a specific six month period in 2006. The list of affected models included the XL883L, and the notice stated, “Our records indicate that you purchased one of the model motorcycles listed above that may have the condition involved in this recall.” More specifically, the notice indicated that certain motorcycles had a voltage regulator which, due to its size and location and under certain circumstances, could come into contact with the front fender, impeding the operator's ability to steer the vehicle.

Rutledge thereafter sued Harley-Davidson for negligence, breach of warranty, and strict products liability, and the company moved for summary judgment. Now, what Rutledge should have done was obtained documents from Harley-Davidson indicating how they determined that the XL883L was defective. Such evidence would have been perfectly admissible and undoubtedly sufficient to create a triable issue of fact and avoid summary judgment. But Rutledge didn't do this.

Instead, Rutledge relied 

exclusively on the recall notices and her own description of the accident to prove [Harley-Davidson] breached its duties. She argue[d] that through the recall notices, "Harley-Davidson admits that these motorcycles were 'built with voltage regulator part number 74546-07 which, as a result of a greater body thickness than used in previous model years, may contact the front fender under certain conditions.'" 

And the problem with this reliance was that Harley-Davidson "issued the recall notices after [Rutledge]'s accident, and they would have made injury less likely (assuming the alleged defect actually caused the injury)," meaning that fell squarely under Federal Rule of Evidence 407 and were inadmissible. Thus, although the court indicated that it couldn't "help but feel empathy for Ms. Rutledge" because "[s]he clearly suffered a significant injury," it had to grant Harley-Davidson's motion.

-CM