EvidenceProf Blog

Now (Un)Available: Court Of Appeals Of Ohio Finds Appellant Failed To Prove Declarant Unavailability In Bank Robbery Appeal

Like its federal counterpart, Ohio Rule of Evidence 804(B)(3) provides an exception to the rule against hearsay for

A statement that was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true.

Like its federal counterpart, Ohio's Rule only applies if the declarant is "unavailable" at trial, with one ground for a court finding a declarant being unavailable being that the declarant "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." And, as the recent opinion of the Court of Appeals of Ohio in State v. Thornton, 2009 WL 2231791 (Ohio App. 12 Dist. 2009), makes clear, courts strictly construe this ground.

In Thornton, Kevin Thornton was convicted of aggravated robbery and related crimes based upon his alleged robbery of a Cash Express near the Edgecombe Apartments in Milford, Ohio at gunpoint in September, 2007. After Thornton was convicted, he moved for a new trial based on the affidavit of one of his fellow jail inmates, Gary Vanover, who alleged that another inmate, Kris Dawson, told him that he had "used a black revolver to * * * rob[ ] a check cashing business located near the Edgecombe Apartments in Milford, Ohio," sometime in the fall of 2007.

Thornton, however, failed to present any evidence that Dawson would have been unavailable to testify at Thornton's new trial, so the court denied his motion. On appeal, Thornton argued that the trial court erred in finding that he failed to prove that Dawson was unavailable for purposes of Evid.R. 804(B)(3) "because generally a witness who invokes his privilege against self-incrimination is considered unavailable for purposes of that rule, and defense counsel 'could not ethically approach a criminal defendant represented by other counsel to urge him to incriminate himself[.]'"  

The Court of Appeals of Ohio disagreed, concluding that

Thornton failed to demonstrate that Dawson was unavailable to testify about Vanover's claim that Dawson had confessed to the robbery. Thornton's assertions to the contrary are based merely on his speculation that Dawson would assert his privilege against self-incrimination, yet there was no evidence presented to show that he would have invoked that privilege in this cirumstance.

In other words, the proponent of a statement against interest must establish the declarant's actual, and not merely his possible, unavailability.

-CM

Mississippi Mud: Supreme Court Of Mississippi Opinion Reveals Anomalous Nature Of Its Marital Privilege

Mississippi Rule of Evidence 504(b) provides that

In any proceeding, civil or criminal, a person has a privilege to prevent that person’s spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse. 

Mississippi Rule of Evidence 504(d)(1), however, indicates that

There is no privilege under this rule in civil actions between the spouses or in a proceeding in which one spouse is charged with a crime against (1) the person of any minor child.

But what constitutes a crime against the person of any minor child? That was the question that the Supreme Court of Mississippi had to address in its recent opinion in Hood v. State, 2009 WL 2259937 (Miss. 2009).

In Hood, Melissa Hood, the wife of Ronald Hood, found a videotape

in a box of her husband's belongings within an extra bedroom at their home. She decided to view the tape on her VCR to determine its contents. Melissa testified that when she witnessed the videotape she became sick to her stomach. The videotape depicted nude male children, and Melissa believed the children to be between the ages of five and seven years old.

This videotape eventually formed the basis for the State bringing exploitation of children charges against Ronald, and at his ensuing trial, he was convicted based upon, inter alia, the testimony of Melissa. Ronald subsequently appealed, claiming, among other things, that the trial court should have precluded Melissa's testimony pursuant to Mississippi Rule of Evidence 504(b).

According to Ronald, the exception contained in Mississippi Rule of Evidence 504(d)(1) did not apply to his case; he claimed that "exploitation of children is not a 'crime against the person of any minor child,' and only those crimes specifically listed in Title 97, Chapter 3 of the Mississippi Code [crimes against the person] are such crimes."

The Supreme Court of Mississippi disagreed, noting that in Fisher v. State, 690 So.2d 268 (Miss. 1996),

this Court recognized that "Miss. R. Evid. 601(a)(2) indicates an obvious growing concern about sexual and violent abuse against children,” and as a result, amended Rule 504(d) to "reflect the same."...Rule 504(d) was amended to reflect the same intentions as Rule 601(a)(2); therefore, prosecution for “a criminal act against any child” absolves the husband-wife privilege as set out in Rule 504. There is no indication that Rule 504(d) was intended to apply only to the crimes listed in Title 97, Chapter 3 of the Mississippi Code, as crimes against persons, as Hood contends to this Court. Exploitation of children is a crime against the persons of minor children; therefore, the trial judge did not abuse her discretion in admitting Melissa's testimony.

I have no problem with this broad construction of the phrase "crime against the person of any minor child." But what seems odd to me is that the Mississippi Rule uses this particular phrase. Every other marital privilege I have seen merely provides an exception in a case where a spouse is charged with a crime against the minor children of either spouse. For instance, Arkansas Rule of Evidence 504(d)[1](2) provides an exception to its marital privilege "in a proceeding in which one [1] spouse is charged with a crime against the person or property of...a child of either." And Alaska Rule of Evidence 505(a)(2)(D)(i) provides an exception to its marital privilege "[i]n a proceeding in which one spouse is charged with...[a] crime against the person or the property of the other spouse or of a child of either, whether such crime was committed before or during marriage.

And this makes sense to me. The purpose of marital privileges is to protect the marital union, and there is no point in protecting a marital union when it involves a spouse committing crimes against the minor children of one or both of the spouses. But why should the privilege not apply when a spouse is charged with a crime involving minor children, but not either of the spouse's marital children? How is this any different than a spouse being charged with a crime against an unrelated adult?

-CM 

Efficiency Expert: Supreme Court Of Kansas Opinion Reveals Differences Between Kansas And Federal Rules Of Evidence On Expert Testimony

Federal Rule of Evidence 703 provides in relevant part that

The 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 in order for the opinion or inference to be admitted.

As the recent opinion of the Supreme Court of Kansas in In re Colt, 2009 WL 1974517 (Kan. 2009), K.S.A. 60-456(b), is quite different from its federal counterpart, but in a way that was ultimately not relevant to the court's opinion.  

In Colt, John Colt was indefinitely civilly committed as a sexually violent predator under K.S.A. 59-29a01 et seq. Colt was committed in large part based upon the testimony of clinical psychotherapist Rex Rosenberg, who diagnosed Colt with Paraphilia Not Otherwise Specified  Paraphilia; alcohol dependence; partial sustained remission in a controlled environment; cannabis dependence; impartial sustained remission in a controlled environment; and antisocial personality disorder. Rosenberg also opined that Colt had serious difficulty controlling his behavior and would be at a high risk to commit a future sex offense. 

According to Colt in his subsequent appeal, however, one of the problems with Rosenberg's testimony was that it was largely based upon records of Colt's prior convictions which were inadmissible. This being the case, Colt claimed thatRosenberg could not have relied upon them in forming his expert opinion pursuant to K.S.A. 60-456(b), which provides that

If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.  

And the Supreme Court of Kansas generally agreed with Colt, noting, "In contrast to the federal rule, Kansas has adopted the traditional approach to the question whether an expert may rely on reports from third parties, such as other experts, if the reports do not fall within any hearsay exception. Under the Kansas rule, experts' opinions based upon hearsay are not admissible in any court proceedings.

The court went on to note, however, that with regard to the subject records,

the parties not only stipulated to their foundation but also agreed that the records' admission was unnecessary, as concerns about their content could "be appropriately addressed simply by asking [Rosenberg] to refer specifically to a specific record if he has testified about something that he claims is from the record." Admission of unreliable statements by out-of-court declarants to prove the truth of the matter asserted is exactly what the hearsay rule is designed to prevent; this agreement appears to have eliminated any useful purpose our enforcement of the rule might serve; waived any initial objection to the Rosenberg's reliance on and reference to the records; and, to the extent admission of his opinion was error, invited it.

The court thus found no error with the proceedings below and affirmed Colt's civil commitment.

-CM

Avoiding Confrontation: New Jersey Appellate Court Finds Admission Of Excited Utterance Did Not Violate Confrontation Clause

Like its federal counterpart, New Jersey Rule of Evidence 803(c)(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.

It seems clear to me that the Superior Court of New Jersey, Appellate Division, in its recent opinion in State ex re. B.S., 2009 2140031 (N.J.Super.A.D. 2009), correctly found that the trial court properly admitted the victim's "excited utterance" under this rule. And it only seems somewhat less clear to me whether the appellate court made the right call in finding that this "excited utterance" was admissible notwithstanding the Confrontation Clause.

In B.S., 

Camden Police Officer A. Hoskins was on patrol near Whitman Park when she was flagged down at the intersection of Pershing and Chase Streets by an older man. The officer noticed the man was out of breath and his face was swollen. The man related that he had a pacemaker and was in pain. He told Officer Hoskins he had been assaulted and robbed at the corner of Carl Miller Boulevard and Pershing Street. The man explained that he was riding his bicycle when he heard footsteps running up behind him. He was then struck from behind and fell from his bicycle. His assailants took two dollars. The man remembered two tall, young males watching him as he counted his money, and described one as wearing a gray sweater and tan pants and the other wearing a green sweatshirt and blue jeans.

B.S., a juvenile, and another individual were later apprehended in connection with the incident, and B.S. was eventually tried for acts that, if committed by an adult, would constitute second degree robbery. The victim did not testify at trial, but the State did call Officer Hoskins to testify with regard to the victim's description of his assailants. The court eventually entered an adjudication of delinquency against B.S., prompting his appeal.

One ground for B.S.' appeal was that the victim's description of his assailants was hearsay, rendering Officer Hoskins' testimony improperly admitted. The Superior Court of New Jersey, Appellate Division, quickly disposed of this issue, finding that

Here, moments after being assaulted from behind and robbed, surely a "startling event," the breathless and visibly injured victim flagged down Officer Hoskins. The officer immediately put the victim in her patrol car, where the victim continued to describe the attack and his assailants. The victim's excited state surely continued during this period. Consequently, the trial judge properly admitted the hearsay statements of the non-testifying victim relating the event and describing the assailants as excited utterances under N.J.R.E. 803(c)(2).

B.S. also claimed that the admission of the victim's statements through the testimony of Officer Hoskins violated his rights under the Confrontation Clause pursuant to Crawford v. Washington, 541 U.S. 36 (20040, because the statements were "testimonial," i.e., "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." The court, however, noted that in Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court found that "[n]ontestimonial statements are those made under circumstances 'objectively indicating that the[ir] primary purpose...is to enable police assistance to meet an ongoing emergency.'" Under this standard, the court was able to find that the victim's statements were nontestimonial, concluding:

Here, when the victim flagged down Officer Hoskins, he had just been attacked and robbed, surely a startling event. The victim was out of breath and in pain. His statements describing the attack and his assailants were intended to secure help for himself. Those statements were nontestimonial, and their admission did not impinge on B.S.'s right to confront the witness against him.

-CM

Money For Nothing: Court Of Appeals Of Texas Upholds Excited Utterance Ruling In Elder Theft Appeal

Like its federal counterpart, Texas Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Usually, the startling event or condition triggering this "excited utterance" exception is something along the lines of a physical or verbal assault (event) or an illness or injury (condition); however, as the recent opinion of the Court of Appeals of Texas in Arriaga v. State, 2009 WL 2045220 (Tex.App.-San Antonio 2009), makes clear, the startling event can be something along the lines of somebody without authorization withdrawing money from your bank account.

In Arriaga, Flor E. Arriaga was convicted of one count of theft from an elderly individual, $500-$1500, and three counts of debit card abuse based upon the following facts adduced at trial:

In 2005, [Mary] Kelley was an eighty-year-old woman who, after a surgery in early 2005, needed the help of caregivers. Thus, she hired Domestic Agency to provide caregivers for her. Domestic Agency sent Arriaga to work for Kelley. In October 2005, Arriaga had been working for Kelley for a couple of months when Kelley accused Arriaga of stealing her money by fraudulently using her ATM debit card.

Kelley, however, died before trial, and Arriaga's defense at trial was that Kelley gave her consent to use her debit card. Obviously, Kelley was not available to contradict this testimony at trial, so the prosecution called Patricia Sandusky, an employee at Kelley's bank, who testified

that as a result of a call from her bank, Kelley learned that her account was missing $800. Sandusky testified that Kelley was very upset when she arrived at the bank, claiming that money was missing from her account. When Sandusky and Kelley identified the three transactions made without her consent, Sandusky asked Kelley if she had the card in her possession at all times. Kelley said that she did. Sandusky then asked her if anyone could have taken the card without her knowledge. Sandusky testified that Kelley did not want to believe that her caretaker could do such a thing.

After she was convicted, Arriaga appealed, claiming, inter alia, that Kelley's statements constituted inadmissible hearsay. The Court of Appeals of Texas disagreed, finding that Kelley's statements qualified as excited utterances under Texas Rule of Evidence 803(2) because "the evidence show[ed] a frail, eighty-year-old woman, who was recovering from heart surgery and needed help at all times, learning that someone had taken money out of her account and then on arriving at the bank, learning that her caretaker could be the responsible party.

-CM

Arizona v. Gant: A Windfall For The Government?

In Chimel v. California, 395 U.S. 752 (1969) the Supreme Court held that a search incident to a lawful home arrest may only include "the area 'within [an arrestee's] immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." According to the Court, there were two justifications for allowing such searches: (1) "When an arrest is made, it is reasonable for the arresting officer to search the person arrested [and the area within his immediate control] in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape;" and (2) "it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person [or within his immediate control] in order to prevent its concealment or destruction." The Court, however, was quick to note that "[t]here is no comparable justification...for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself."

In reaching this last conclusion, the Supreme Court was expressly repudiating its prior opinions in United States v. Harris, 331 U.S. 145 (1947), and United States v. Rabinowitz, 339 U.S. 56 (1950), which had ruled the search incident to a lawful arrest for approximately two decades and allowed such broader searched incident to lawful arrests. Twelve years after Chimel, in New York v. Belton, 453 U.S. 454 (1981), a majority of the Court found 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." It was, however, Justice Brennan's construction of the majority opinion in his dissent that his since predominated. 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." While in Belton, a single officer searched a vehicle when there were four unsecured arrestees, Justice Brennan found that the majority's conclusion "would presumably be the same even if Officer Nicot 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."  

All of this changed with the Court's recent opinion in Arizona v. Gant, where it "reject[ed] this reading of New York v. 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." So, Gant was a victory for criminal defendants, right? This is is certainly what commentators, including myself, said in the wake of the Court's opinion.

But now, I'm not so sure. You see, the above language in Gant was not the Court's sole holding. Instead, relying upon Justice Scalia's concurrence in Thornton v. United States, 541 U.S. 615 (2004), which in turn relied upon Harris and Rabinowitz, the Court held:

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton, 541 U. S., at 632 (SCALIA, J., concurring in judgment).  In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence....But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein. 

So, what does "reasonable to believe" mean? Seeing as how this language from Gant came from Scalia's concurrence in Thornton, and seeing as how Scalia relied upon Rabinowitz, it seems to me that the answer should be "probable cause." Why? Well, in upholding the arresting officers' search of the arrestee's desk, safe, and file cabinets in that case incident to his lawful arrest, the Court concluded

In the instant case the search was not general or exploratory for whatever might be turned up. Specificity was the mark of the search and seizure here. There was probable cause to believe that respondent was conducting his business illegally. The search was for stamps overprinted illegally, which were though upon the most reliable information to be in the possession of and concealed by respondent in the very room where he was arrested, over which room he had immediate control and in which he had been selling such stamps unlawfully. (emphasis added). 

Of course, "reasonable to believe" is a lot closer to "reasonable suspicion" than it is to "probable cause," and, because the automobile exception already allowed automobile searches based upon probable cause, it seems likely that courts will merely require reasonable suspicion. While it is not difficult to establish reasonable suspicion, an officer would still have to be able point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. And I don't see how the officer in People v. Osborne, 2009 WL 2026328 (Cal. App. 1 Dist. 2009), established reasonable suspicion.

In Osborne, officers arrested Christopher Osborne, hadcuffed him and recovered a loaded nine-millimeter semiautomatic handgun from him, and then searched his Lexus, removing from it a pouch containing drugs. Osborne moved to suppress the drugs, but the trial court denied his motion, and the appellate court affirmed on Osborne's appeal, finding that

Although the firearm found on defendant was loaded, it was reasonable to believe that the vehicle might contain additional items related to the crime of gun possession such as more ammunition or a holster. Thus we find that the search of the passenger compartment was reasonable under the Fourth Amendment....Contrary to defendant's assertions on appeal, it matters not whether the officers had probable cause to believe the automobile contained evidence of a crime or contraband, or whether the officer believed the car to be stolen. Such factors would have permitted the search of the vehicle under the automobile exception, but are not required for a search of the car incident to defendant's arrest. The Gant court specifically requires only a "reasonable basis to believe" the vehicle contains relevant evidence, a standard less than full probable cause.

Really? According to this reading of Gant, it seems to me that whenever officers arrest someone in a car and recover a weapon from him, they have reason to believe evidence relevant to the crime of arrest might be found in the vehicle. And if that's the case, Gant is a victory for the government, not criminal defendants.

-CM

Garden State (Of Mind): Connecticut Federal Court Finds Psychotherapist-Patient Privilege Waived Even Under Narrow View Of Waiver

All federal courts and most states recognize some version of the psychotherapist-patient privilege, under which a patient has the privilege to refuse to disclose confidential communications made to a psychotherapist for the purpose of diagnosis or treatment. I have posted a couple of entries on this blog (here and here) about the two different interpretations of when a party waives the psychotherapist-patient privilege.

Under the "broad" view, "the mere allegation of emotional distress was viewed as sufficient to justify discovery into that party's psychological records to determine whether events other than the challenged conduct may have caused or exacerbated the party's distress."...

In contrast, under the "narrow" view, a plaintiff is not deemed to have waived the privilege by alleging only “garden variety” emotional distress....Courts using the narrow approach "must distinguish between garden variety claims and claims for more 'severe' emotional distress, such as those involving a diagnoses of a specific psychiatric disorder."..."Garden variety claims refer to claims for 'compensation for nothing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized.'"

In In re Sims, 534 F.3d 117, 132 (2nd Cir. 2008), the Second Circuit became one of the courts adopting some version of the "narrow view" of waiver. Even under that "narrow view," however, the United States District Court for the District of Connecticut still found that the plaintiff had waived the psychotherapist-patient privilege in its recent opinion in Jacobs v. Connecticut Community Technical Colleges, 2009 WL 2046016 (D.Conn. 2009). 

In Jacobs, Gary Jacobs brought an action against Connecticut Community Technical Colleges, claiming that it discriminated against him on the basis of his sex and sexual orientation in violation of Title VII of the Civil Rights Act of 1964 and "that as a result of such discrimination, he 'has suffered and continues to suffer economic losses and emotional distress.'" After Jacobs commenced the action, he sought a protective order covering "all documents and information regarding medical and health records pertaining to the plaintiff."  

According to Jacobs, the psychotherapist-patient privilege covered such documents becaue while he alleged that he "suffered and continues to suffer economic losses and emotional distress" as a result of the discrimination, he did not plead a separate cause of action for emotional distress." And the court found that if it "were to confine its analysis to the pleadings alone it would conclude...that the plaintiff had not waived the privilege because his complaint assert[ed] no more than a garden variety claim for emotional distress."

The court, however, looked beyond the pleadings and noted that

in response to the defendant's interrogatories, the plaintiff identifie[d] Bruce S. Rothschild, M.D., Naomi Neurwirth, L.C .S.W., and Elliot Strick, M.A., L.M.F.T., as physicians, psychologists, or social workers from whom he "received medical (including psychiatric) treatment...for the injuries alleged in the Complaint."...The responses also state[d] that Strick treated him for "depression and anxiety caused by the plaintiff's work environment."...The responses further indicate[d] that "[p]rior to the events relevant to this complaint, the plaintiff has not suffered from any other physical or mental disease, disability or defect," that the plaintiff ha[d] not recovered from the injuries alleged in the complaint, and "presently suffers from the following conditions; insomnia, depression ... and an inability to focus and concentrate."...In addition, in response to the defendant's requests for production of documents, the plaintiff disclosed letters from two of his treating psychotherapists that were addressed to his attorney.

According to he court, these actions constituted waiver of the psychotherapist-patient privilege because "the plaintiff's interrogatory responses and disclosed letters identif[ied] diagnoses of specific psychiatric disorders. It is precisely such diagnoses which distinguish a claim for severe emotional distress from a mere garden variety claim."

-CM