EvidenceProf Blog

Plea Agreement As Improper Influence: New Jersey Appellate Court Finds Prior Consistent Statement Were Properly Admitted In Drug Appeal

New Jersey Rule of Evidence 607 indicates that

Except as otherwise provided by Rules 405 and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility, except that the party calling a witness may not neutralize the witness' testimony by a prior contradictory statement unless the statement is in a form admissible under Rule 803(a)(1) or the judge finds that the party calling the witness was surprised. A prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence.

As the recent opinion of the New Jersey Superior Court, Appellate Division in State v. Davis, 2009 WL 1974509 (N.J.Super.A.D. 2009), makes clear, however, the "improper influence" need not be improper in the sense that we usually think of the word but can include events such as a witness' entry into a plea agreement.

In Davis, Gary Davis was charged with a plethora of drug-related crimes: possession of a controlled dangerous substance (CDS) in the third-degree; possession of a CDS in the third-degree with intent to distribute; distribution of a CDS in the third-degree; third-degree possession of a CDS on or within 1000 feet of school property with the intent to distribute; and third-degree distribution of a CDS on or within 1000 feet of school property. 

Kurt T. Stamp and Richard Ink were allegedly involved in Davis' criminal activities, reached plea agreements, and testified against Davis at his trial. After they tesified, defense counsel "suggest[ed] to the jury that their testimony was not trustworthy because it was given in exchange for a plea agreement." Thereafter, the prosecution introduced written statements made by Stamp and Ink after their arrests which were consistent with their trial testimony and before they were offered plea agreements.

After Davis was convicted, he appealed claiming, inter alia, that the trial court erred by admitting these written statements. The New Jersey Superior Court, Appellate Division disagreed, finding that these statements were admissible under New Jersey Rule of Evidence 607. Davis had argued that this Rule was inapplicable because "his trial counsel was very careful to avoid alleging that Stump or Ink had engaged in a 'recent fabrication,'" but the court concluded that Davis read the Rule "too narrowly." According to the Court, claiming that the testimony of Stamp and Ink was not trustworthy because it was given in exchange for plea agreements was a sufficient "improper influence" to allow for the admission of their prior consistent statements.

-CM

Fresh Enough: Western District Of Wisconsin Finds Statement Created Months After Harassment Qualifies As Recorded Recollection

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.

My post yesterday addressed two important aspects of this "recorded recollection" exception to the rule against hearsay: (1) When does a witness have insufficient recollection, and (2) When does a witness need to adopt a memorandum/record? My post today, and the recent opinion of the United States District Court for the Western District of Wisconsin in Vorwald v. 3M Co., 2009 1970694 (W.D. Wis. 2009), both address a third aspect: When is a matter fresh in a witness' memory?

In Vorwald, Lori Vorwald worked at 3M Company's manufacturing facility in Menomonie, Wisconsin from December 2005 until July 2007, when she went on medical leave. She contended that 3M violated Title VII of the Civil Rights Act of 1964  by first subjecting her to a hostile work environment because of her sex and because she complained about harassment and then making conditions so unbearable that she was forced to take medical leave.

3M subsequently moved for summary judgment, and the problem for Vorwald was that "she [wa]s unable to recall the date of nearly any incident of harassment." To overcome this problem, however, Vorwald cited a statement she created dated November 19, 2007 in which she did provide dates for incidents of harassment. 3M countered that this statement was inadmissible, but the Western District of Wisconsin disagreed, finding that the statement was admissible under Federal Rule of Evidence 803(5). And in finding that the incidents of harassment were fresh in mind when Vorwald created the statement, the court concluded that she "created the document shortly after she took medical leave, when the events of the previous year would have been much fresher in her mind" and that the Seventh Circuit had found in United States v. Green, 258 F.3d 683 (7th Cir. 2001), that a "statement may be admissible under Rule 803(5) even if it was made several months after [the] incident."

-CM  

Record(ing) Recollection: Minnesota Case Reveals Two Important Aspects Of Recorded Recollection Exception To Rule Against Hearsay

Like its federal counterpart, Minnesota Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.

The recent opinion of the Court of Appeals of Minnesota in State v. Stone, 2009 WL 1919005 (Minn.App. 2009), addressing two important aspects of this "recorded recollection" exception: (1) When does a witness have insufficient recollection, and (2) When does a witness need to adopt a memorandum/record? 

In Stone, Shane Stone was charged with aiding and abetting first-degree aggravated robbery based upon a crime committed at the house of D.B., A.J., their two young children, and A.J.'s father, G.J. The morning after the robbery, G.J. made a statement to police, which was recorded and reduced to writing, and during which, inter alia, he was asked "And did you get a good look at his face?" and answered, "Yeah he had glasses and he's light complected." Several days later, G.J. (as well as D.B. and A.J.) identified Stone as one of the robbers during a photo lineup. 

At Stone's trial, G.J. testified, and he never responded to any questions by saying, "I don't remember" or "I don't know."  G.J. initially testified that he did not get a good look at the man without a mask, but after being shown statements that he made during his police interview, he stated, “I can't say for sure right now." G.J. also had difficulty remembering details of the physical description of the intruder that he gave to the police, even after he was shown his prior statements. But G.J. agreed that the witness statement shown to him was “an accurate reproduction of the questions [that he was] asked and the answers that [he gave]."

Thereafter, over defense counsel's objection, the prosecution introduced into evidence the audio recording of G.J.'s statement. After Stone was convicted, he appealed, claiming, inter alia, that the audio recording was improperly admitted under Minnesota Rule of Evidence 803(5). Stone first claimed that because G.J. never answered any questions at trial by saying "I don't remember" or "I don't know," he lacked the insufficient recollection necessary for Minnesota Rule of Evidence 803(5) to apply.

The Court of Appeals of Minnesota disagreed, finding that

Rule 803(5) does not require that a witness realize and claim that his recollection is insufficient; it requires that a witness "has insufficient recollection to testify fully and accurately." G.J.'s statement, "[t]hat's all I remember right now," indicated insufficient recollection if the audio-recorded police interview contained evidence that G.J. had not been able to remember at trial.

Second, Stone claimed "that the recording of G.J.'s police interview was inadmissible because it was not shown that G.J. adopted the recording." According to Stone, because G.J. did not make the recording, the state needed to show that he had reviewed and adopted the recording at a time when the robbery was fresh in his memory. The court rejected this argument as well, finding that

there [wa]s no real dispute that G.J. made the statements on the audio recording. There is no claim that the voice on the recording is not G.J.'s voice or that the recording does not accurately reflect what G.J. said during the interview.

In other words, if the prosecution were introducing the written statement prepared by a police officer based upon what G.J. told police, G.J. would have needed to adopt that writing to ensure it accurately captured what G.J. said. But because the prosecution introduced the audio recording of what G.J. actually said, there was no need for G.J. to adopt that recording.

-CM

In The Maine: District Of Maine Refuses To Apply Maine's Peer Review Privilege In Disparate Treatment Case

Federal Rule of Evidence 501 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.

What this means, as is made clear by the recent opinion of the United States District Court for the District of Maine in Thayer v. Eastern Maine Medical Center, 2009 WL 1686673 (D.Me. 2009), is that when a plaintiff brings federal claims against a defendant in a federal court located in a particular state, the court is not bound by the state's rules of privilege.

In Thayer, Kristine Thayer, formerly a physician with Eastern Maine Medical Center (EMMC), sued her former employer, alleging gender discrimination and whistleblower retaliation, based on, among other things, disparate treatment in connection with the medical peer review process set forth in the Maine Health Security Act. To prove these claims, Dr. Thayer sought to discover all of the records and documents generated in connection with peer review proceedings associated with her professional competence. She also sought to discover all of the records collected with regard to peer review or evaluation of Dr. Mohammad Tabbah, a physician with a similar professional practice area who received, according to Dr. Thayer, significantly better working conditions, privileges, and treatment in general from EMMC than she did, for no apparent reason other than his sex or gender. EMMC and Dr. Tabbah objected to these discovery requests, claiming that peer review records were subject to confidentiality pursuant to Subchapter 1 of the Maine Health Security Act, 24 M.R.S. Section 2510-A, which provides in relevant part that

[A]ll professional competence review records are privileged and confidential and are not subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity and are not admissible as evidence in any civil, judicial or administrative proceeding. Information contained in professional competence review records is not admissible at trial or deposition in the form of testimony by an individual who participated in the written professional competence review process. 

But the problem for the defendants was that Dr. Thayer raised federal claims, meaning that the District of Maine did not need to apply this "peer review privilege" pursuant to Federal Rule of Evidence 501, which the court construed as "ensur[ing] that, where federal claims are concerned, state law privileges will not override the public's 'right to every man's evidence,' unless the privilege 'promotes sufficiently important interests to outweigh the need for probative evidence.'" 

And, in the case before her, Magistrate Judge Margaret Kravchuk concluded,

I am not persuaded by the argument that the truth-seeking process served by civil discovery should give way to a medical peer review privilege, particularly as the Court has the power to restrict further dissemination of materials beyond what is necessary for the presentation of evidence at trial. I recognize that some federal district courts have recognized the privilege, as cited in the defendants' written support for its objection..., but I agree with the rationales expressed by the Courts of Appeals for the Fourth, Seventh, and Eleventh Circuits that the presumption against privileges is not overcome when the medical peer review privilege is weighed against the discovery of evidence necessary to support the potential vindication of important federal rights, such as the rights protected by Title VII of the Civil Rights Act of 1964, and that the interests served by the privilege can be preserved through means falling short of a total ban on discovery.

Therefore, she "overrule[d] the defendants' objections to the plaintiff's first and seventeenth requests for production, both of which discovery initiatives are necessary to demonstrate Dr. Thayer's claim that EMMC subjected her and Dr. Tabbah to disparate treatment based on gender."

-CM

A Foolish Consistency: Supreme Court Of New Hampshire Opinion Misapplies Prior Consistent Statement Rule

Like its federal counterpart, New Hampshire Rule of Evidence 801(d)(1)(B) provides that:

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

As the recent opinion of the Supreme Court of New Hampshire in State v. White, 2009 WL 1955235 (N.H. 2009), makes clear, however, this rule does not provide the sole method for admitting prior consistent statements into evidence. But it seems to me that the method that the court applied was not, in fact, applicable.

In White, Delvin White was charged with aggravated felonious sexual assault and one count of felonious sexual assault because he, inter alia, allegedly digitally penetrated the vagina of his friend's eight year-old daughter, M.G., with his finger. At trial, M.G. testified against White, claiming that he put his finger inside her. Later, during defense counsel's cross-examination of he daughter, the following exchange took place:

Q: Do you remember what you said to your dad was that Delvin put his hand on your genital area, not in. Do you remember that?

A: Yes.

Q: And later that night when the policeman came and the policeman talked to you that night, right?

A: Yes.

Q: And you talked to other policemen later, right?

A: Yes.

Q: But that night you talked to at least one policeman?

A: Yes.

Q: And you told that policeman that Delvin put his hand on your genital area. Right?

A: Yes.

Thereafter,

[t]o rehabilitate M.G.'s credibility, the State later called Detective Kelley as a rebuttal witness. Detective Kelley testified that officers responding to the scene of an alleged sexual assault do not generally conduct detailed interviews of victims, but rather make an initial report and refer the matter to a trained juvenile investigator. Detective Kelley stated that he had the opportunity to conduct an in-depth, follow-up interview with M.G. the day after the incident. The prosecutor then asked: “Did she at some point tell you whether or not she had been digitally penetrated by Delvin White?” Detective Kelley responded, "Yes, she did."

Subsequently, White was convicted, and he appealed, claiming that the trial court erred by allowing Detective Kelley to testify regarding M.G.'s statement, which he construed as hearsay. And the Supreme Court of New Hampshire found that Detective Kelley's testimony regarding M.G.'s statement was not admissible under New Hampshire Rule of Evidence 801(d)(1)(B) because defense counsel made no express or implied charge against M.G. of recent fabrication or improper influence or motive. 

The court, however, found that "[n]otwithstanding New Hampshire Rule of Evidence 801(d)(1)(B), our common law rule allows the admission of prior consistent statements for the limited purpose of rehabilitation when a witness's credibility has been impeached by the use of prior inconsistent statements." The court then found that the common law rule applied to the case before it and found that the trial court did not err.

But wait a second. How was M.G.'s statement to Detective Kelley the day after the alleged assault a prior consistent statement. M.G. testified at trial that she was digitally penetrated. Defense counsel introduced evidence of prior inconsistent statements M.G. made the night of the alleged assault. The statement to Kelley was after those prior inconsistent statements the day after the assault. How does it makes any sense to introduce these as prior consistent statements?

-CM 

Leave The Falling To Us: Seventh Circuit Affirms Exclusion Of Employee Report In Case Against Metra

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

[a] statement is not hearsay if...The statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

Like all admissions, employee admissions are generally admissible under Rule 801(d)(2)(D) notwithstanding the personal knowledge requirement of Federal Rule of Evidence 602. But, as the recent opinion of the Seventh Circuit in Mister v. Northeast Illinois Commuter R.R. Corp., 2009 WL 1956333 (7th Cir. 2009), makes clear, courts can still find employee admissions made without personal knowledge inadmissible pursuant to Federal Rule of Evidence 403.

In Mister, after a long work day, Gary Mister walked toward his car, slipped, fell, and sued his employer, the Northeast Illinois Commuter Railroad Corporation (Metra), under the Federal Employers Liability Act. At the hospital, Mister could not discuss the incident with Metra Safety Officer Kirk Kroner because he was in pain, but Kroner discussed the fall with Mister's supervisors, who were present at the hospital but did not witness the fall. Kroner handwrote a report of his findings, which also included a statement that another employee had fallen the previous week at the same spot.

According to the report, “[Metra] had a similar incident less then [sic] a week earlier in the same spot.” This statement referred to a slip and fall reported by another Metra employee, Wally Wyman. Apparently, Wyman parked in the same unpaved lot and also slipped on ice. No one knew the details of Wyman's fall. More importantly, despite stating that it was in the same spot, Kroner did not know where either Mister's or Wyman's fall had taken place.

At trial, Mister attempted to introduce this report as an employee admission under Federal Rule of Evidence 801(d)(2)(D), but the district court found it inadmissible because (1) it was not based upon personal knowledge, making it inherently unreliable, and (2) it was inadmissible under Federal Rule of Evidence 403 because its was lacking in probative value based upon Kroner's lack of personal knowledge.

After the jury subsequently found for the defendant, Mister appealed, claiming that the district court erred in deeming the report inadmissible. And the Seventh Circuit agreed with him that the district court erred in finding the report inadmissible under Rule 801(d)(2)(D). The court rejected Metra's contention that employee admissions must be based upon personal knowledge, concluding,

Metra would have us exclude a great chunk of corporate testimony from employees because they rely on information that other people have told them in the course of the job. Briefly, Kroner's report meets all of the Rule's criteria to be classified as non-hearsay. Undisputably, the report that was offered by Mister against his employer Metra, was prepared in the usual course of business, by Metra's Safety Officer (the agent) investigating Mister's work accident. Rule 801(d)(2)(D) does not require anything else along the lines of internal verification of the report's contents.

But the Seventh Circuit found that the district court did not abuse its discretion in excluding the report under Federal Rule of Evidence 403, finding that Rule 403

requires that a district court determine whether the prejudicial effect of admitting such evidence outweighs its probative value and thereby renders it inadmissible....What we have here is a non-hearsay report that is derived from multiple levels of hearsay. Although the report stated that a similar fall occurred in the "same spot," no one knew what spot. No one knew exactly where Wyman had fallen and there is absolutely no basis to conclude that Mister slipped and fell in the same location as Wyman.

-CM

A Matter Of Credibility?: New Hampshire Case Involves Important Impeachment, Rape Shield Issues

An upcoming sexual assault trial provides a good illustration of the rape shield rule and a couple of rules of evidence dealing with the impeachment of witnesses. 

Hai Phuoc Tran, the owner of Queen Nails, will soon stand trial, facing charges of felonious sexual assault, criminal restraint, sexual assault, simple assault and kidnapping. Those charges stem from an alleged attack Tran committed on a 22-year-old customer; according to the customer, Tran forced her into the back of his salon and sexually assaulted her.

Tran's attorney and his defense investigator interviewed the alleged victim's friends and acquaintances and, based upon what they said, hoped to have them testify at Tran's trial. Those friends and acquaintances allegedly described her as "promiscuous, manipulative and abusive and said she has claimed to have been sexually assaulted before." Tran's attorney also sought to introduce into evidence the fact that the alleged victim had been unfaithful to a boyfriend and also had been arrested for assaulting a boyfriend. According to Tran's attorney, such evidence had to be admitted because there are no witnesses to the alleged crime besides Tran and the alleged victim, making the issue of her credibility crucial.

Tran's attorney was wrong. First, the trial judge found that the proposed evidence regarding the alleged victim being promiscuous, having cheated on a boyfriend, and having made similar claims before was inadmissible under New Hampshire Rule of Evidence 412, its rape shield rule, which provides in relevant part that

Except as constitutionally required, and then only in the manner provided in (b), below, evidence of prior consensual sexual activity between the victim and any person other than the defendant shall not be admitted into evidence in any prosecution or in any pretrial discovery proceeding undertaken in anticipation of a prosecution under the laws of this state.  

Second, the judge found that the proposed evidence regarding the alleged victim being manipulative and abusive and having assaulted a boyfriend to be inadmissible to impeach her under New Hampshire Rule of Evidence 607-609 because none of this evidence related to her veracity as a witness.

Conversely, the judge did find that the alleged victim's friends and acquaintances can testify that, in their opinion, they believe that she is untrustworthy because such testimony is admissible under New Hampshire Rule of Evidence 608, which provides in relevant part that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) The evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Also, the judge found that, depending on the alleged victim's testimony at trial on certain issues, defense counsel may be able to impeach her based upon prior inconsistent statements that she made to a nurse when reporting the subject crime pursuant to New Hampshire Rule of Evidence 613. 

-CM