EvidenceProf Blog

Questioning The Jury: Tennessee Court Finds Trial Court Applied Proper Jury Questioning Procedure In 4th Of July Case

I have written a few posts on this blog (here, here, here, and here) about the propriety of allowing jurors to ask questions during trial. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. James, 2009 WL 1579236 (Tenn.Crim.App. 2009), makes clear that Tennessee allows juror questioning in criminal cases and also clarifies a key detail about how that questioning works.

In James, Ralphelle James was convicted of theft of property valued at $1,000 or more and aggravated burglary. The property valued at $1,000 or more was a 19998 Toyota RAV4, which James allegedly stole from Maxine Bailey on July 3, 2007, and one of the key pieces of evidence against James was the testimony of his girlfriend, who claimed that on July 4th, James told her that he had bought the vehicle from a woman for $1,2000. This proved that James had the vehicle in his possession, and other evidence, such as testimony by a detective, established that the vehicle was stolen.

After the testimony of both the girlfriend and the detective, jurors submitted written questions to the court, and the court, after a bench conference with counsel, permitted counsel to ask the jurors' questions. After he was convicted, James appealed, claiming that the court abused its discretion by allowing these questions by jurors, but the Court of Criminal Appeals of Tennessee disagreed, noting that the trial court followed the procedure laid out in Tennessee Rule of Criminal Procedure 24.1(c), which provides in relevant part that

In the court’s discretion, the court may permit a juror to ask a question of a witness. The following procedures apply:

(1) Written Submission of Questions. The juror shall put the question in writing and submit it to the judge through a court officer at the end of a witness' testimony. A juror’s question shall be anonymous and the juror's name shall not be included in the question.

(2) Procedure After Submission. The judge shall review all such questions and, outside the hearing of the jury, shall consult the parties about whether the question should be asked. The judge may ask the juror's question in whole or part and may change the wording of the question before asking it. The judge may permit counsel to ask the question in its original or amended form in whole or part.

James also claimed that even if the juror questions were proper, the trial court erred by allowing the prosecution to engage in re-direct examinations of these witnesses after the jury questions were asked. The basis for this question was that  Tennessee Rule of Criminal Procedure 24.1(c)(1) provides that jury questions can be submitted "at the end of a witness' testimony," meaning that there can be no further questioning of the witness thereafter.

The court disagreed, finding that

In Tennessee, "the propriety, scope, manner and control of the examination of witnesses is a matter within the discretion of the trial judge, subject to appellate review for abuse of discretion."...The trial court has well-established authority to permit cross-examination and to control the scope of such questioning. Further, even under the defendant's contention that juror questions are only permitted at the conclusion of a witness's testimony, we note that permitting a witness to be recalled is a decision resting in the sound discretion of the trial judge.

-CM

Summary Judgment: Seventh Circuit FInds Audit Report Admissible Under Rule 1006

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for 

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

But what happens when a party seeks to introduce a report that was not made in the course of regularly conducted business activity, but that report was made from documents that themselves qualify as business records under Federal Rule of Evidence 803(6)? The answer, as the Seventh CIrcuit found in its recent opinion in Trustees of the Chicago Plastering Institute Pension Trust v. Cork Plastering Company, 2009 WL 1873516 (7th Cir. 2009), is that the report is admissible under Federal Rule of Evidence 1006.

In Cork Plastering Company,

Beginning in 1984, G and J Plastering Company ("G & J") operated as a plastering contractor in Cook County, Illinois, and surrounding counties. Its employees were represented by multiple unions, among them the Journeymen Plasterers' Protective and Benevolent Society of Chicago, Local 5 ("Local 5"), until a November 2002 election, when the employees selected a union other than Local 5 as their one and only bargaining representative. As a consequence of that election, G & J "exited" from the collective bargaining agreement with Local 5 and ceased making contributions to the various fringe benefit trust funds serving Local 5 members (the "Local 5 Funds"). When the Local 5 Funds conducted an exit audit of G & J's records to determine whether G & J had any outstanding liability to the Funds, they determined that G & J had not made the appropriate contributions to the Local 5 Funds for work performed within Local 5's jurisdiction. They filed suit against G & J pursuant to section 301 of the Labor Management Relations Act of 1947...and section 502(a)(3)  of the Employee Retirement Income Security Act of 1974.  

In support of their claims, the Local 5 introduced the audit report mentioned above. After a verdict that satisfied neither side completely, both parties appealed, with G & J claiming, inter alia, that the audit report was inadmissible as a business record under Federal Rule of Evidence 803(6) because it was not made in the course of regularly conducted business activity. The Seventh Circuit agreed on this front, but it also found that the audit report was a summary of records prepared by G & J in the course of regularly conducted business activity, making it admissible under Federal Rule of Evidence 1006, which states that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. 

-CM

Something Special In The Verdict: Rule 606(b) Precludes Jury Impeachment On Workers' Compensation Issue In Case Against American Airlines

Judges often make rulings excluding evidence to avoid confusing the jury. Indeed, Federal Rule of Evidence 403 explicitly provides that judges may exclude even relevant evidence if its probative value is substantially outweighed by the danger of confusion of the issues. Sometimes, however, in an attempt to prevent juror confusion, the judge ends up causing that very confusion. But even when a party can prove that this confusion caused a misguided verdict, Federal Rule of Evidence 606(b) will preclude the verdict from being disturbed, as was the case with the recent opinion of the United States District Court for the Southern District of New York in Severino v. American Airlines, 2009 WL 1810014 (S.D.N.Y. 2009).

In Severino, Maria Severino claimed that while she was a janitor at JFK Airport, she slipped and fell in a stairwell in Terminal 9, which was leased and maintained by American Airlines. Severino thereater sued American Airlines, with her principal contention being that American Airlines was negligent in its maintenance of Terminal 9 because it failed to keep the roof of the building free from leaks, which, according to Severino, caused water to accumulate on the stairwell where she fell a few days after heavy rains. Specifically, Severino claimed that on the day of the accident she was assigned to clean in Terminal 9 for the first time, and when she entered a stairwell to find the employee lunchroom in Concourse "D," she slipped, fell, and severely injured her back.

Meanwhile, American Airlines claimed that Severino was not credible, noting that her former supervisor contradicted her and that, despite her claims to the contrary, she reported falling in the lobby of her apartment building two weeks before she allegedly fell at the airport. Initially, however, the parties were in agreement on at least one matter: The parties agreed to submit Severino's voluminous workers' compensation file as a joint exhibit. But American Airlines thereafter withdrew its proposed exhibit and opposed Severino's introduction of the entire workers' compensation file because the medical records in the file were cumulative. American Airlines was willing to stipulate to the amount that workers' compensation paid for medical treatment, but the judge commented that he intended to avoid "confusing the jury with Workers' Comp. issues."

Thereafter, no mention was made of Severino receiving workers' compensation, and the jury eventually returned a verdict in favor of American Airlines. 

Following the jury's verdict, Severino's attorneys spoke on separate occasions with two of the jurors. According to the affirmation of attorney Steven Hoffner, Juror No. 8 informed Mr. Hoffner that the jury discussed the issue of workers' compensation and the absence of testimony about Plaintiff receiving workers' compensation payments led them to conclude that she was not in fact injured in Terminal 9. Attorney Affirmation of Steven Hoffner, dated February 11, 2009. Attorney Jan Blau spoke with Juror No. 2 by telephone. According to Blau's affirmation, Juror No. 2 concurred that the issue of Plaintiff receiving workers' compensation payments had been discussed in the jury room. 

Based, inter alia, upon these jurors' allegations, Severino moved for a new trial, but the Southern District of New York found that it could not consider these jurors' allegations based upon Federal Rule of Evidence 606(b), which provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon 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. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Therefore, even though the judge likely played a significant role in a mistaken jury verdict, Severino's motion for a new trial needed to be denied.

-CM

Chicken Little Or Canary In The Coal Mine?, Take 3: Could Briscoe v. Virginia Lead To An Immediate Overturning Of Melendez-Diaz?

Last week, I wrote a post about the Supreme Court's new opinion in Melendez-Diaz v.Massachusetts, in which it found in a 5-4 vote that certificates of state laboratory analysts were "testimonial" and thus covered by the Sixth Amendment. One of the five Justices in the majority was Justice Souter, who, of course, will soon be gone from the Court, likely to be replaced by Sonia Sotomayor. What this means is that the Melendez-Diaz opinion could soon be invalidated if the Court hears a case that leads it to reassess Melendez-Diaz, and the new Justice agrees with the four dissenting Justices in Melendez-Diaz. And, as SCOTUS Blog, recently noted, the Court has just granted cert in just such a case. 

The subject case is Briscoe v. Virginia, which will address the following question:

“If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”

In other words, the Justices in Briscoe v. Virginia will address the Constitutionality of so-called "notice and demand statutes, which, as I noted in my initial post, the majority and dissenting opinions addressed in dicta in Melendez-Diaz. But, you have to imagine that if the four dissenting Justices from Melendez-Diaz can convince the new Justice on the block to join their ranks, we will get not only an opinion dealing with the Constitutionality of notice and demand statutes, but also an opinion striking down Melendez-Diaz. As I learn more about Briscoe v. Virginia, I will write more posts about it. For now, here are links to the opinion of the Supreme Court of Virginia (here; scroll down to 070762); the cert petition; the brief in opposition; and the petitioner's reply.

-CM   

Ex Post Handcuffs, Take 2: Sixth Circuit Opinion Also Shows Immediate Impact Of Arizona v. Gant

Yesterday, I did a post about the immediate impact of the United States Supreme Court's recent opinion in Arizona v. Gant, 129 S.Ct. 1710 (2009), and its holding that officers cannot search the passenger compartment of an arrestee's vehicle incident to the arrest "after the arrestee has been secured and cannot access the interior of the vehicle." In that post, I cited the Eighth Circuit's opinion in United States v. Hraskey, 2009 WL 1606642 (8th Cir. 2009), as "[t]he first o[pinion] that I have seen at the federal appellate level" striking down such a search in the wake of Arizona v. Gant. Well, after a little more searching, I actually came across the Sixth Circuit's opinion in United States v. Lopez, 2009 WL 1507294 (6th Cir. 2009), which did the same about a week earlier.

In Lopez, 

On September 27, 2006, Kentucky State Police Trooper Tommy Cromer clocked [Juan] Lopez driving 106 miles per hour on I-75 in Rockcastle County, Kentucky. Cromer gave chase and eventually arrested Lopez for reckless driving. After securing Lopez in the back of the patrol car, Cromer searched the passenger area of Lopez's car. Under the driver's seat, Cromer found a brake-shoe box containing 73 grams of crack cocaine, a set of digital scales, and a Glock .40 caliber handgun loaded with ten rounds of ammunition.

Under the way basically all federal courts had interpreted the Supreme Court's opinion(s) in New York v. Belton, 453 U.S. 454 (1981), this search would have been constitutional because they read New York v. Belton as holding that  "the interior of a car is always within the immediate control of an arrestee who has recently been in the car," making it searchable as an incident to the arrestee's lawful arrest.

Of course, that all changed with the Supreme Court's recent opinion in Arizona v. Gant. And indeed, after citing the language Gant included in the introduction to this post, the Sixth Circuit held that

That standard is not met here. Lopez was not within reaching distance of his vehicle's passenger compartment at the time of the search, but was instead handcuffed in the back seat of the patrol car by then. There was no reason to think that the vehicle contained evidence of the offense of arrest, since that offense was reckless driving. The search of Lopez's vehicle, therefore, violated the Fourth Amendment as interpreted in Gant.   

As I noted in my post yesterday, I expect to see many such decisions in the near future, and it will be interesting to see how the police modify their behavior in the wake of Gant.

-CM

Ex Post Handcuffs: Eighth Circuit Opinion Shows Immediate Impact Of Arizona v. Gant

In 1969, the Supreme Court established the boundaries of proper search incident to a lawful arrest in California v. Chimel, 395 U.S. 752 (1969). According to the Court,

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape....And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. 

Okay, so according to Chimel as part of a search incident to a lawful arrest, an officer can search the suspect and the area into which he might reach. But then came the Court's 1981 opinion in New York v. Belton, 453 U.S. 454 (1981).

In Belton, an officer arrested four men in a car on the New York Thruway, split the men onto four separate areas on the Thruway, and then searched the passenger compartment of the car, uncovering drugs. Was the passenger compartment of the car within the reach of the arrestee's? As a practical matter, the answer was clearly, "no," but the Supreme Court's answer was "yes." According to the Court, lower courts had been across the board in determining whether the passenger compartment of an arrestee's car is within his reach, leading to problems both for suspects, and police, who necessarily have to make split second judgments. In response, the Court decided to craft a per se rule, "hold[ing] that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile."  

But it actually wasn't the majority's opinion that (really) became the law of the land. Instead, courts glommed on to Justice Brennan's dissenting opinion, which actually disparaged the majority's opinion. According to Brennan, the majority "adopt[ed] a fiction-that the interior of a car is always within the immediate control of an arrestee who has recently been in the car." Indeed, according to Brennan, the majority's opinion was actually stranger than fiction' he argued that 

Under the approach taken today, the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car before placing them under arrest, and even if his search had extended to locked luggage or other inaccessible containers located in the back seat of the car.

Courts agreed with Brennan resulting in opinions finding searches incident to lawful arrests constitutional despite it being clear that, as a practical matter, the areas being searched were beyond the reach of the arrestees. Then came this April's opinion in Arizona v. Gant, 129 S.Ct. 1710 (2009). In Gant, the Court recognized that Justice Brennan's reading of the majority opinion in Belton had predominated, and it explicitly rejected it. Specifically, the Court "reject[ed] this reading of Belton and h[e]ld that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search."  

Unlike Belton, Gant doesn't seem to give lower courts much wiggle room in terms of defining the proper scope of an automobile search incident to a lawful arrest (Conversely, as I noted in an earlier post, I think that Gant could have a large impact in how lower courts define the proper scope of a search incident to a lawful home arrest; I have an upcoming article that will address this issue in more detail). Sure, lower courts might quibble about when exactly an arrestee is secured (e.g., does he have to be handcuffed) and when he is within reaching distance of the passenger compartment of the car (what is the maximum distance), but the scope seems pretty clear: If an arrestee is at least several feet from his car and being restrained by an officer or handcuffs, an officer likely cannot search his car.

Indeed, unless officers change their behavior based upon Gant (which is a distinct possibility), I expect most officers will follow the exact behavior outlined by Brennan, meaning that they won't be able to conduct automobile searched incident to lawful arrests, and if they do, they will be deemed unconstitutional.

Indeed, we are already seeing pre-Gant searches being deemed unconstitutional based upon reliance upon Belton. The first one that I have seen at the federal appellate level is the Eighth Circuit's opinion in United States v. Hraskey, 2009 WL 1606642 (8th Cir. 2009). In Hraskey, on July 2, 2004, an officer properly stopped the vehicle of Zachary Hrasky, arrested Hrasky, and handcuffed him and put him in his squad car. The officer then searched the passenger compartment of Hrasky's vehicle and uncovered two handguns, leading to Hrasky being charged with unlawful possession of a firearm as a previously convicted felon. And Hraskey pleaded guilty to that crime before filing a petition for hearing, and while that petition was pending the Supreme Court decided Gant. And Gant, by the government's own admission, meant that the handguns needed to be suppressed.

-CM

Expert Commitment: New Jersey Appellate Court Affirms Civil Commitment Based Upon Reasonable Expert Reliance

New Jersey Rule of Evidence 703 indicates that

[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

And because the experts in In re Civil Commitment of W.X.C., 2009 WL 17505433 (N.J.Super.A.D. 2009), relied upon inadmissible evidence that is nonetheless reasonably relied upon by experts in their field in forming opinions, the Superior Court of New Jersey, Appellate Division affirmed W.T.C.'s commitment to the Adult Diagnostic and Treatment Center for sex offender treatment.

In In re Civil Commitment of W.X.C.,

[t]he crimes that led to W.X.C.'s...commitment all took place in 1992 when W.X.C. was twenty-five years old. W.X.C. burglarized his first victim's home twice when she was not in the house. On April 17, 1992, W.X.C. entered the home for a third time and, at knifepoint, raped the victim, a young woman. After committing the assault, W.X.C. demanded money and, when the victim had none, stole her VCR. According to various psychological reports, W.X.C. found it sexually exciting to be in the victim's home during the first two burglaries, even while she was not there.

On June 4, 1992, W.X.C. entered another home, this time using a key he had found outside, and raped a woman after telling her he had a gun. W.X.C. then made her drive him to an ATM machine, where he forced her to withdraw and give him approximately $600. He also stole two of the victim's rings. On October 22, 1992, W.X.C. entered a rest home and overpowered a female employee. He dragged her into an empty bedroom and demanded that she perform an oral sex act on him. The police were called and W.X.C. attempted to flee but was apprehended.

At W.X.C.'s civil commitment hearing, only two witnesses testified, Dr. Brian Friedman and Dr. Evan Feibusch.

Dr. Friedman testified that in rendering his opinion, he reviewed “all of the police documents, investigation reports, presentence reports, Judgments of Conviction, [and] victim statements.” He also examined W.X.C.'s statement to police, his prison records, and “reports completed over the years by different evaluators....” Dr. Friedman diagnosed W.X.C. with antisocial personality disorder [and]...paraphilia NOS (non-consenting)....

Dr. Feibusch [also] based his opinion on various psychological reports prepared on prior occasions, police reports, and clinical risk assessment tests....Dr. Feibusch [also] diagnosed W.X.C. with antisocial personality disorder, paraphilia NOS, and possibly sexual sadism.

After he was committed, W.X.C. appealed, claiming, inter alia, that the testimony of these doctors was improperly admitted because it was based upon inadmissible data, such as the "evaluations prepared by non-testifying experts."  The court disagreed, finding that their testimony was admissible under New Jersey Rule of Evidence 703 because

[h]ere, the testifying experts relied on reports concerning W.X.C.'s mental health, his criminal history, police reports, and clinical tests in rendering their opinions. Both doctors testified that these sources of information were of the type typically relied upon by experts in performing risk assessment. The trial judge considered the experts' opinions, but did not allow the "wholesale and uncritical admission of prior forensic evaluations."...To the contrary, she properly used the hearsay reports "as background in evaluating the opinions of the ... experts, who testified that they considered these reports in reaching their own diagnoses."

-CM