EvidenceProf Blog

Sine Qua Nah: Court Of Appeals Of Minnesota Opinion Fleshes Out Specifics Of Rule 807

Like its federal counterpart, Minnesota Rule of Evidence 807 provides in relevant part that

A statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

In its 1985 opinion in State v. Ortlepp, 2009 WL 2015404 (Minn. 1985), the Supreme Court admitted a non-judicial prior consistent statement as substantive evidence based upon four factors:

(1) the witness was available for cross-examination regarding the statement, thereby assuaging any confrontation problems; (2) there was proof that the prior statement was made; (3) the statement was against the declarant's penal interest, a fact that increases its reliability; and (4) the statement was consistent with all the other evidence introduced.

Since, Ortlapp, Minnesota courts have referred to these as the Ortlepp factors, but are they the sine qua non of such a statement being admissible under Rule 807, or are there other factors that can lead to its admission?

In Coleman, 

Officer Brent Petersen was dispatched to C.A.'s residence. Upon his arrival, Officer Petersen noted that C.A. seemed frightened and upset and looked as if she had been crying. In a recorded statement, C.A. told Officer Petersen that she had been outside walking her dog when she was confronted by appellant Christopher Coleman, a friend of hers with whom she had a brief sexual relationship. According to C.A., appellant was upset because he thought C.A. may have given him a sexually transmitted disease (STD). C.A. claimed that she told him to leave, but appellant responded by pushing her to the ground, and choking her. C.A. claimed that appellant told her that he had an appointment the next day and that if he found out that he had a STD, he was going to shoot and kill her.    

Coleman was thereafter charged with terroristic threats and two counts of domestic assault. At trial, C.A. testified that Coleman and she had been friends and that the two had a brief sexual relationship. When questioned about the assault, however, C.A. stated that she did not remember the details of the assault because it occurred two years ago. Although C.A. agreed that she was assaulted, she testified that she did not remember being choked, having neck pain, or seeing Coleman on that date. A break was subsequently taken to allow C.A. to review her prior statement to Officer Petersen. After reviewing the statement, C.A. testified that she still could not remember the details of the assault, but that she believed she told Officer Petersen the truth. C.A.'s recorded statement was later played for the jury.

C.A. was also questioned regarding an application that she filled out for a harassment restraining order against Coleman. C.A. claimed that she could not remember when she filled out the application, but conceded that she must have filled it out shortly after the assault. The affidavit and petition for harassment restraining order were subsequently admitted into evidence. In the affidavit, C.A. claimed that Coleman assaulted her and threatened to kill her.

After Coleman was convicted, he appealed, claiming, inter alia, that the trial court erred by allowing the prosecution to introduce C.A.'s recorded statement as substantive evidence. And the Court of Appeals of Minnesota agreed with him that the recorded statement could only be admitted as impeachment evidence, and not as substantive evidence, under Minnesota Rule of Evidence 613. 

Coleman also argued that the statement was not admissible under Minnesota Rule of Evidence 807 because it did not satisfy all of the Ortlepp factors in that 

the statement (1) was not a sworn statement; (2) was not a statement against her interest; and (3) was of questionable reliability in light of her sworn testimony that she could no longer accuse appellant of being her assailant due to a failing memory.

On this point, the court disagreed, noting that the Ortlepp factors "provide guidance," but "are not an exclusive list of the indicia of reliability. Instead, the court found that C.A.'s recorded statement was sufficiently trustworthy, and thus admissible, because

(1) C.A. admitted making the statement, testified that she believed she was telling the truth when she made the statement, and was available for cross-examination; (2) there was no dispute that she made the statement; (3) the statement was very detailed and made shortly after the assault; (4) C.A. had no apparent motive to lie to Officer Petersen: (5) the statement was consistent with [another witness'] testimony...; (6) C.A.'s statement about being choked was corroborated by the pictures taken by Officer Petersen, which show red marks on C.A.'s neck; and (7) the statement was consistent with the sworn affidavit in support of her application for a harassment restraining order against appellant that C.A. submitted a few days after the assault.

-CM

Not That I'm Biased: Court Of Appeals Of Minnesota Misapplies Rule 408 In Automobile Accident Appeal

Like its federal counterpart, Minnesota Rule of Evidence 408 provides that:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations is likewise not admissible.  This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.  This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

So, clearly evidence of settlement negotiations can be admissible to prove bias, but when is such evidence probative on the issue of whether a witness is biased? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in Lallas v. Paquette, 2009 WL 2015821 (Minn.App. 2009), and I think that it answered the question incorrectly.

In Paquette, 2009 WL 2015821 (Minn.App. 2009), 

In 2003, respondent Drake Lallas was involved in two automobile accidents. The first accident occurred in August, and the second in November, when a vehicle driven by appellant Lolita Paquette struck Lallas's vehicle from behind. Approximately two weeks after the August accident, Lallas started a job that required physical labor. Although Lallas experienced lower-back aches and soreness, his daily activities were not limited. Following the November accident, however, Lallas experienced severe back pain and was prescribed pain medication. Lallas attended physical therapy, as recommended by his physician, but reported no improvement. He was referred to Midwest Spine Institute, where ultimately he was seen by Louis Saeger, M.D., the clinic's pain specialist.

Lallas subsequently sued the owner of the vehicle in the August accident and Paquette in a single action, but the district court granted a motion to sever, and Lallas settled her claims related to the August accident. Meanwhile, the jury in the trial against Paquette "found both drivers negligent, and attributed 75% of the fault to Paquette and 25% to Lallas. The jury also found that Lallas had sustained a permanent injury, was entitled to past medical expenses and lost wages, and was entitled to $286,110 for future medical expenses."  

This verdict came after the trial judge precluded Paquette from introducing evidence that Lallas reached a settlement with the owner of the vehicle in the August accident. And after the entry of that verdict, Paquette appealed, claiming, inter alia, that this evidence should have been admissible to prove bias by Lallas, as Lallas "had every reason to minimize his injuries from the [August] accident, for he had already settled his claim with regard to that accident."

The Court of Appeals of Minnesota disagreed, concluding that

[t]he jury was not kept from hearing about the August accident or about Lallas's physical condition thereafter. Indeed, the jury accounted for the August accident when it reduced the award for future medical expenses by 15%, which is consistent with the expert's apportionment. Further, evidence of the prior settlement would not serve to demonstrate bias in any way in which that evidence about Lallas's injuries from the August accident did not.

What? Paquette seems close to me to the paradigmatic case where evidence of settlement negotiations is admissible to prove bias. This paradigmatic case, which I use in my Evidence class, is a car accident involving Alice, Bob, and Carol. Alice and Bob settle and subsequently sue (or are sued by) Carol. Alice and Bob both testify that Carol was (primarily) at fault for the accident. In this case, Carol is entitled to present evidence of the settlement between Alice and Bob because it proves their bias. In other words, having already reached a settlement, it does not benefit, and only harms, Alice to pin the blame on Bob and vice versa. Instead, based on their settlement it is in the best interests of Alice and Bob to pin the blame on Carol and hope that this leads to a large award of monetary damages.

The same (basically) applied to Lallas. Having already settled with the owner in the vehicle in the August accident, it did not benefit, and would have only harmed, him to pin the blame on him. Instead, based on his settlement, it was in his best interest to pin the blame on Lallas. Moreover, contrary to the court's conclusion, this evidence would have demonstrated bias in a way that the evidence about Lallas's injuries from the August accident did not. The simple fact that Lallas was in another accident did not prove that he would try to pin the blame on Paquette; if the other case went to trial, Lallas would have had no incentive to pin the fault (primarily) on Paquette because it would have hurt his chance of winning the other case. It was the fact that there was a settlement in the other case that established bias.

-CM

Gone Fishin'?: Eastern District Of Pennsylvania Denies Evidentiary Hearing Into Juror Misconduct In State Senator's Case

Federal Rule of Evidence 606(b) 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.

What this means is that if a defendant has enough evidence that the jury's verdict was tainted by extraneous prejudicial information, the court should conduct an evidentiary hearing to determine the precise, nature, quality, and extent of the jury breach. In its recent opinion in United States v. Fumo, 2009 WL 1977715 (E.D. Pa. 2009), the United States District Court for the Eastern District of Pennsylvania did not award the defendant such a hearing, and I'm not sure that this was the correct decision.

In Fumo, former Pennsylvania state senator was convicted   in connection with five areas of wrongdoing: (1) fraud and conspiracy to defraud the Pennsylvania Senate; (2) fraud and conspiracy to defraud Citizens Alliance for Better Neighborhoods; (3) conspiracy to defraud the United States Internal Revenue Service (“IRS”); (4) fraud related to the Independence Seaport Museum (“ISM”); and (4) obstruction of justice and conspiracy to obstruct justice. 

Fumo eventually filed a second motion for new trial.

As described in an Affidavit submitted by Fumo's trial counsel, Dennis Cogan, Esq., journalist Ralph Cipriano contacted Cogan regarding information he obtained during post-verdict interviews with several jurors. In these interviews, Cipriano purportedly learned of several extrajudicial influences upon the jury. First, by the morning of Monday, March 16, 2009-the day the verdict was delivered-all of the jurors allegedly heard media reports describing both juror Eric Wuest's improper use of social networking sites during trial and the fact that he was being questioned by the Court. Second, one of the jurors indicated that, while at her workplace on a Friday during trial, several co-workers informed her of Fumo's prior prosecution and the conviction and imprisonment of John Carter, former president of the Independence Seaport Museum. In light of this newly-discovered information, Defendant Fumo s[ought] both an evidentiary hearing on the juror exposure to extraneous information and, in turn, a new trial.

Cipriano also used the information he obtained to write the article, Fumo, After The Fall. Despite this evidence, the Eastern District of Pennsylvania refused to order an evidentiary hearing, concluding that

[t]he Defendant's hearing request is precisely the sort of “fishing expedition” against which our jurisprudence has cautioned. Initially, it is worth noting the circumstances behind the claimed new evidence. According to the government, Ralph Cipriano, an independent journalist who was present for the duration of the trial, conducted interviews with several jurors in preparation of an article to be published in Philadelphia Magazine. Upon learning of the jurors' awareness of extraneous information, he immediately contacted defense counsel Dennis Cogan, without ever extending the same courtesy to Government counsel. When Government counsel attempted to speak with him regarding this new evidence, Cipriano, both directly and through his editor, declined to reveal any information about his interviews or the identity of the juror. By doing so, Cipriano and Philadelphia Magazine oddly chose not to balance the scales upon discovery of information that could affect the widely-publicized trial and conviction of a high-profile public figure.

Really? When I think of a fishing expedition, I think of a party with either vague or no allegations seeking a hearing to see what he can uncover. And that clearly wasn't the case here. Here, there were specific allegations, and Fumo was merely seeking the evidentiary hearings to figure out the details. I also don't see why the (mis)behavior of the journalist should be imputed to Fumo and hurt his chances of obtainingan evidentiary hearing. Was the court saying that if Cogan had extended the same courtesy to the Government, it might have granted the hearing?

I find much more persuasive the court's second reason for denying the hearing, which was that 

the defense opted not to rely on either an affidavit from any particular juror or on the affidavit of Cipriano, but rather on the affidavit of Cogan, who learned of the alleged juror misconduct only through Cipriano. Aside from the fact that such an affidavit is double hearsay, it far from constitutes the clear, strong, substantial, and incontrovertible evidence that a specific, nonspeculative impropriety occurred, sufficient to justify a post-verdict interrogation of jurors.

-CM

Human Behavior: Eighth Circuit Construes Expressions Of Desire As "Sexual Behavior" For Rape Shield Purposes

Federal Rule of Evidence 412(a), the Rape Shield Rule, provides that

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

But what exactly constitutes sexual behavior? Well, as the recent opinion of the Eighth Circuit in United States v. Papakee, 2009 2066797 (8th Cir. 2009), makes clear, courts have construed this phrase, and thus Federal Rule of Evidence 412(a)'s proscription, broadly.

In Papakee, LaMont William Papakee and Connie Frances Blackcloud were convicted by a jury of committing sexual abuse against a Native American woman, L.D., in Indian country. Both men subsequently appealed, with Papakee claiming, inter alia, that the trial court "abused its discretion at trial by excluding evidence designed to attack L.D.'s credibility." Specifically, "Papakee sought to introduce testimony from Wesley Sebetka, a deputy in the Tama County Sheriff's Office, that while he was interviewing L.D. about the sexual abuse [shortly after it allegedly occurred], L.D. told him that he was 'cute' and asked him if he wanted to 'crawl into bed' with her."

The trial court had found this evidence to be inadmissible under Federal Rule of Evidence 412(a) (and that it would fail the Rule 403 balancing test even if it were not barred by the Rape Shield Rule), and the Eighth Circuit agreed. The Eighth Circuit rejected Papakee's argument that the subject evidence was not evidence of other "sexual behavior" by L.D., noting that

[t]he ordinary meaning of "behavior" extends to the manner in which a person conducts herself, Webster's Third New International Dictionary 199 (2002), and when a person undertakes conduct aimed at engaging in sexual activity, that conduct is naturally understood to be "sexual behavior." There is no reason to believe that the rule is limited to sexual intercourse or sexual contact. To the contrary, the advisory committee's notes explain that the word “behavior” should be construed to include “activities of the mind,” such as fantasies or dreams. Fed.R.Evid. 412 advisory committee's notes; see also Wilson v. City of Des Moines, 442 F.3d 637, 639-40, 643-44 (8th Cir. 2006) (concluding that female employee's statements about vibrators and male sex organs constituted “sexual comments and behavior” that was governed by Rule 412). If a person's unexpressed desire to engage in sexual activity is inadmissible, then surely her expression of that desire to another person also comes within the scope of the rule.

The Eighth Circuit also rejected Papakee's argument that the trial court's exclusion of the subject evidence violated his rights under the Confrontation Clause, finding that "Rule 412 serves important purposes of preventing harassment or embarrassment of sexual abuse victims, and the proffered evidence was of little or no probative value."

-CM

Confession(s) To Make: Florida Court Orders Separate Trials Of Former Football Players Based Upon Bruton Issues

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. This so-called "Bruton doctrine" explains why former high school football players in Bradenton, Florida were informed on Friday that they will have separate murder trials. 

Former Palmetto High School football players Ta Heem Blake, 17, and Marquis Sanders, have been charged with murder in connection with a deadly home invasion that took the life of 55 year-old Maria Lerma. Part of what led to the charges against the two were their own incriminatory statements: Blake made statements that incriminated both himself and Sanders, and Sanders made statements that incriminated both himself and Blake.  

What this meant was that, pursuant to Bruton, the prosecution could have faced a significant problem if it tried Blake and Sanders jointly. If it held such a joint trial and Blake invoked his Fifth Amendment privilege against self-incrimination, his incriminatory statements would have been inadmissible because they incriminated Sanders. And if there were a joint trial and Sanders invoked his Fifth Amendment privilege against self-incrimination, his incriminatory statements would have been inadmissible because they incriminated Blake.

Furthermore, as the Supreme Court found in Cruz v. New York, 481 U.S. 186 (1987), it doesn't matter that Blake and Sanders ostensibly made something akin to "interlocking confessions" because Bruton still applies, even when both defendants have made confessions. 

-CM 

No Collateral: Tenth Circuit Finds Extrinsic Evidence Of Child Abuse Was Properly Admitted In International Parental Kidnapping Appeal

Federal Rule of Evidence 608(b) provides in relevant part that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The reason this Rule precludes the use of extrinsic evidence is that the (un)truthfulness of a witness is collateral to the substantive issues at trial. What this means, as is made clear by the Tenth Circuit's recent opinion in United States v. Rizvanovic, 2009 WL 2105231 (10th Cir. 2009), is that when extrinsic evidence of specific instances of conduct is relevant not only to a witness' (un)trustworthiness but also relevant to the substantive issues at trial, Rule 608(b)'s proscription does not apply.

In Rizvanovic, Vojko Rizvanovic was charged with, inter alia, one count of international parental kidnapping. The evidence adduced at trial indicated that

Defendant had two young daughters, one born in 2002 and the second born in 2005, and that he and their mother had lived together from the late 1990s until the fall of 2006. In October 2006, the children's mother left the apartment in which she had been living with Defendant and took the children with her to a shelter. In subsequent custody proceedings, a state court judge found that Defendant had committed emotional and domestic abuse against the children and their mother, and the court awarded sole custody of the children to their mother. Defendant was permitted to have his first unsupervised visit with his daughters in December 2006. In February 2007, he was permitted his first overnight visit with his children, but he did not return them as scheduled. In March 2007, law enforcement officers learned that Defendant and the girls had been in Australia for the past three weeks and would soon be flying to Macedonia. Defendant was arrested on a layover in the Vienna airport, and the girls were returned to their mother.

At trial, Rizvanovic conceded all of the elements of the kidnapping offense but asserted that his motivation fell within the statutory affirmative defense in 18 U.S.C. Section 1204(c)(2), which applies when a parental kidnapper "was fleeing an incidence or pattern of domestic violence." Specifically, 

he testified that he had observed the children's mother abuse the children on several occasions when they were living together. He testified that her abuse became worse following her involuntary hospitalization for mental health reasons in the spring of 2005. He further testified that his main reason for taking the children was to protect them and prevent their mother from hurting them.

On cross-examination, the prosecution cross-examined Rizvanovic as to whether he had abused his children and their mother, and the court allowed extrinsic rebuttal evidence tending to disprove his answers. After the jury found Rizanovic guilty of international parental kidnapping, he appealed, claiming, inter alia, that the trial judge erred by allowing the prosecution to introduce extrinsic evidence tending to disprove his answers because Rule 608(b) deems such evidence inadmissible. 

The Tenth Circuit disagreed, noting that Rule 608(b)'s proscription applies only when the extrinsic evidence is solely relevant to the collateral issue of the witness' (un)truthfulness. Conversely, the court found that Rule 608(b) "does not bar extrinsic evidence to the extent it goes to substantive issues, and here the rebuttal evidence tended to disprove Defendant's affirmative defense that he took the children to free them from domestic violence." The Tenth Circuit thus found that the trial judge did not err and affirmed Rizanovic's conviction.

-CM

Rape Shield Redux: Eighth Circuit Holds That District Court Properly Excluded "Other Source" Evidence In Rape Shield Appeal

Federal Rule of Evidence 412(a), the Rape Shield Rule, indicates that

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

Federal Rule of Evidence 412(b)(1)(A), however, indicates that

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

As this latter Rule makes clear, such evidence of other sexual behavior is not automatically admissible; instead, it must be "otherwise admissible under the rules of evidence. This qualifying language was the problem for tha appellant in United States v. Seed, 2009 WL 2045690 (8th Cir. 2009).

In Seed, a jury found Jason Adam Pumpkin Seed guilty of the sole count of an indictment charging him with aggravated sexual abuse and attempted aggravated sexual abuse. This sexual abuse was allegedly committed against Heather Red Cloud, and at trial, the prosecution proved its case in part through presenting evidence of Red Cloud's extragenital injuries resulting from the alleged abuse.

In turn, Pumpkin Seed sought to introduce evidence that those injuries could have been caused by two sexual encounters that Red Cloud with different men within days of the alleged rape. The district court excluded this evidence, prompting Pumpkin Seed's appeal. In that appeal, the Eight Circuit noted that Pumpkin Seed's evidence was arguably admissible under Federal Rule of Evidence 412(b)(1)(A), but only if the evidence was "otherwise admissible" under the rules of evidence.

The Eighth Circuit found, however, that it was not otherwise admissible because 

First, Pumpkin Seed did not make any offer of proof concerning the circumstances of Red Cloud's past sexual activity from which the district court could assess the likelihood of her injuries being caused by her consensual sexual activity....Absent such an offer of proof, we cannot say that the district court abused its discretion in determining that the type and extent of physical injuries present on Red Cloud are generally inconsistent with consensual sexual intercourse, thereby suggesting that the disputed evidence concerning Red Cloud's consensual relationships has little or no probative value in providing an alternate source for her injuries....Second, the probative value of this evidence is substantially outweighed by the high risk of unfair prejudice and confusion of the issues posed by admitting evidence that Red Cloud was involved in at least two sexual encounters with different men, one of whom was married, within days of the alleged rape.

The court thus found that the evidence failed the Rule 403 balancing test and affirmed the district court's opinion.

-CM