August 15, 2009
Fighter's Chance: Utah Court Of Appeals Affirms Dismissal Of Charges Against Alleged Football Brawler After City Fails To Produce Original Recordings
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
As I noted in my article, Even Better than the Real Thing, courts very rarely find genuine questions raised as to the authenticity of originals, meaning that mechanically produced duplicates are almost never excluded under the Best Evidence Rule. In its recent opinion in American Fork City v. Asiata, 2009 WL 2392496 (Utah.App. 2009), the Utah Court of Appeals did in fact find duplicates inadmissible, but it didn't (really) do so by relying on Utah Rule of Evidence 1003.
In Asiata, a fight broke out between high school football players in the closing minutes of a game, and Williams Asiata, a spectator, allegedly ran on the field and kicked one of the players twice in the head. During the ensuing investigation, the police came into possession of several video recordings of the incident obtained either through police investigation or by way of a request that was broadcast by the local media. According to the police, the created copies of these recordings and, with the exception of one recording identified as the Bangerter video, returned the originals to their owners.
The City later charged Asiata with assault, and, during discovery, Asiata obtained the City's duplicate recordings and became concerned that the recordings appeared to be incomplete and perhaps had portions edited out. Asiata thus asked to view the original recordings, but the CIty responded that it could not produce the original recordings for any video besides the Bangerter video and that it did not possess the names and addresses of the owners of the other videos.
Asiata thus filed a motion to suppress all of the video recordings, and the City responded that it was not obligated to produce the original recordings because they contained no exculpatory evidence. The court agreed with Asiata and ordered the City to produce the original recordings, as well as the names and contact information of the owners, with noncompliance with the order resulting in dismissal of the City's case against Asiata. After the CIty failed to produce the original recordings, the court dismissed the CIty's case against Asiata, prompting the City's Appeal to the Utah Court of Appeals.
In that appeal, the City claimed that, regardless of Utah Rule of Evidence 1003, it was entitled to introduce secondary evidence to prove the contents of the original recordings because, pursuant to Utah Rule of Evidence 1004(1)-(2), which states that
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or(2) Original not obtainable. No original can be obtained by any available judicial process or procedure.
According to the City, because Asiata never alleged bad faith by the City or that the original recordings were obtainable by the City, it was entitled to introduce the duplicate recordings. The Utah Court of Appeals, however, found that the trial court had not dismissed the case based upon the inadmissibility of the duplicate recordings under Utah Rule of Evidence 1003 or Utah Rule of Evidence 1004(1)-(2); instead, it dismissed the case because the CIty failed to comply with a discovery order issued under Utah Rule of Civil Procedure 26(b)(1), which provides that
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action....It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
The court found that because Utah Rule of Evidence 1003 or Utah Rule of Evidence 1004(1)-(2) do not limit the court's broad discretion to order discovery of relevant materials, the dismissal was proper, regardless of whether they were admissible under the Best Evidence Rule. Furthermore, the Utah Court of Appeals found that the trial court was concerned with both possible bad faith on the part of the police and with the ultimate accuracy of the available video evidence because, at the suppression hearing, it stated:
I'm not going to suppress it now. But I'll give you, you know, seems to me that a, what concerns me is public safety getting rid of evidence. That's what it amounts to. It's not their decision. Once they have it in their possession and they see everything and they should have consulted you before they got rid of the originals. And they may have been useless to the defendant. But until we know what was in the originals we cannot presume it wasn't doctored. We don't make presumptions here. That's, that's an issue that's tied into this case that, that can shock the conscience. And I'm sure you would have, you and your office would have told them well wait, wait, wait, you keep everything, don't return it.
August 14, 2009
The Glowers Of Guatemala: Eleveth Circuit Deems Internet Press Release Inadmissible In Forum Non Conveniens Appeal
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(1) , or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
It is my belief that the Eleventh Circuit badly misconstrued this "business records" exception to the rule against hearsay in its recent opinion in Aldana v. Del Monte Fresh Produce N.A., Inc., 2009 WL 2460978 (11th Cir. 2009).
In Aldana, seven plaintiffs sued Del Monte and Bandegua, a wholly owned subsidiary of Del Monte, in the United States District Court for the Southern District of Florida, asserting causes of action for torture under both the Torture Victim Protection Act and the Alien Tort Statute after a protracted labor dispute in Guatemala and its aftermath. After an equally protracted procedural history, the district court finally granted the defendant's motion to dismiss on grounds of forum non conveniens because Guatemala afforded the plaintiffs an adequate alternative forum for the resolution of their claims.
In reaching this conclusion, the court refused to consider
"new and recent evidence”"of violence against union leaders like the [plaintiffs]. Specifically, they point[ed] to the alleged murder of Marco Ramirez, who, like the plaintiffs, was a member of SITRABI [a Guatemalan national trade union of plantation workers]. As evidence of the murder, the [plaintiffs]...submitted to the District Court a copy of a press release from The Center for Labor Solidarity in Guatemala, which stated that: “Ramirez's murder is the most recent in a series of threats and attacks against SITRABI and its leaders."
This refusal prompted the plaintiffs' appeal to the Eleventh Circuit, during which they claimed that "the press release should be viewed as a business record because 'it was issued by the Solidarity Center in the ordinary course of its business as a well-respected, nongovernmental organization that frequently issues such releases.'" The Eleventh Circuit, however, noted that "this press release was taken from the group's Internet website" and found that the press release was inadmissible because "the [plaintiffs] cite[d] no case, and we have been unable to find any, in which a press release from an Internet website qualified as a business record within the meaning of the exception."
I don't see the court's point. Press releases on internet websites are still relatively new, so it is not surprising that there is no case law on the issue. But unless the court found case law convincingly deeming such evidence inadmissible, shouldn't the court have addressed the issue rather than skirting it? Moreover, if regular press releases are admissible as business records, cf. Ellis ex rel. Lanthrn v. Jamerson, 174 F.Supp.2d 747, 753 (E.D. Tenn. 2001), shouldn't the same hold for internet business records?
Well, apparently not, according to the Eleventh Circuit, which found that "the press release lack[ed] the indicia of reliability that are typically required of evidence admitted under an exception to the hearsay rule." Now, I'm not sure what the court was saying because it didn't explain this holding. Was the press release lacking sufficient indicia of reliability because it was on the internet? Because it was from a foreign country? While I don't know the basis for the court's holding I do know that it applied the wrong standard. For the court to deem the press release inadmissible under Federal Rule of Evidence 803(6), it had to find that "the source of information or the method or circumstances of preparation indicate[d] lack of trustworthiness" in the press release, not simply that the release lacked sufficient indicia of reliability. While it might seem like I am parsing words, the key point is that, under the court's reading, the plaintiffs had to prove that the press release was reliable while under the correct reading, the court had to explain why the release was unreliable, which it did not.
August 13, 2009
The Lone Ranger And Tonto Fistfight In Heaven, Take 5: First Draft Of My Amicus Curiae Brief
I have written four previous posts (here, here, here, and here) about the plight of Kerry Dean Benally. Basically, Benally was convicted of assaulting a Bureau of Indian Affairs Officer with a deadly weapon. After Benally's conviction, however, a juror came forward and submitted an affidavit indicating that, contrary to jurors' claims during voir dire that race would not play a factor during their deliberations, several jurors made racially derogatory comments during deliberations (you can get more details in my prior posts). The United States District Court for the District of Utah found this affidavit to be admissible and vacated Benally's conviction, but the Tenth Circuit reversed, finding the affidavit to be inadmissible under Federal Rule of Evidence 606(b); it then later denied Benally's en banc request.
Benally's case played a large role in prompting me to write my forthcoming article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense. Well, now Benally has filed a petition for writ of certiorari with the United States Supreme Court, and I was approached last week to write an amicus curiae brief in support of him. Here is a link to my first run at that brief, which will be edited and made to conform with rules for submission of amicus curiae briefs before the deadline of August 21st:
I post this now so that any professors who read this blog and agree with the general arguments in it can e-mail and let me know if they want to join in on the brief. Those interested can e-mail me at firstname.lastname@example.org.
Just The Facts, Ma'am: Court Of Appeals Of Minnesota Notes Distinction Between Legal And Factual Testimony Under Rule 704
Like Federal Rule of Evidence 704(a), Minnesota Rule of Evidence 704 provides that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." The Committee Comment to that Rule goes on to state that "[e]xpert and lay witnesses will not be precluded from giving an opinion merely because the opinion embraces an ultimate fact issue to be determined by the jury." Instead, the Comment indicates that "If the witness is qualified and the opinion would be helpful to or assist the jury as provided in rules 701-703, the opinion testimony should be permitted." In turn, Minnesota Rule of Evidence 701 states that lay opinion testimony is only admissible if it is "helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue." These are the basic principles governing the admission of lay opinion testimony on ultimate issues, and, as the recent opinion of the Court of Appeals of Minnesota in State v. Ngacah, 2009 WL 2431994 (Minn.App. 2009), makes clear, the Committee Comment to Rule 704 also provides the answer to the ultimate answer to whether lay opinion testimony embracing an ultimate issue is admissible.
In Ngacah, a jury convicted Arthur Gacheru Ngacah of domestic assault inflicting bodily harm based on evidence that he slapped the face of a woman who was reported to be his girlfriend. At trial, Officer Alison Mickman, who responded to the 911 call reporting the assault,
testified that the victim had a mark “right above her cheekbone near her eye, and I would say maybe two inches across and an inch down. There was no bruising yet but it was very red.” The prosecutor then asked the officer, “And in your opinion, based on your training and experience, was that consistent with someone who had just been hit?” Officer Mickman answered, "Yes."
After he was convicted, Ngacah appealed, claiming that Officer Mickman's testimony was "expert opinion testimony that [wa]s inadmissible on the ground that it [went] to an ultimate issue." First, the court disagreed that Officer Mickman was an expert witness, concluding, "The state made no effort to establish her qualifications as an expert witness, and we do not regard the substance of her testimony to be a matter of "scientific, technical, or other specialized knowledge.'"
Second, the court rejected Ngacah's argument that Officer Mickman's testimony was inadmissible because it embraced an ultimate issue, noting that such testimony is permissible under Minnesota Rule of Evidence 704. That is not to say, however, that all ultimate issue testimony is admissible under the Rule. Instead, the court noted that the Committee Comment to Rule 704 provides that
In determining whether or not an opinion would be helpful or of assistance under these rules a distinction should be made between opinions as to factual matters, and opinions involving a legal analysis or mixed questions of law and fact. Opinions of the latter nature are not deemed to be of any use to the trier of fact.
This distinction is similar to the distinction that many federal courts make between testimony embracing ultimate issues, which is admissible, and testimony embracing ultimate legal conclusions, which is not. And because the court found that Officer Mickman's testimony was strictly factual, it was admissible under Minnesota Rule of Evidence 704.
August 12, 2009
Can I See Some Identification?: Death Of Victim Precludes Admission Of Pre-Trial Identifications
Sometimes, the legal system works in troubling ways. If defendants shoot a victim, and the victim identifies the defendants as his shooters before trial (during a lineup, photo array, etc.), that identification would be admissible at the defendants' trial as long as the victim testifies at trial. But, as in the case of two Memphis men, if the victim identifies the defendants as his shooters before trial and then dies before trial, that identification would be inadmissible in the defendants' murder trial because the victim could not testify and be subject to cross-examination.
In Septmeber 2006, 21 year-old Bryson Lewis was shot in what might have been payback for Lewis robbing one of the shooters three nights before. Monkeith Gunn and his brother Travis Mull soon became suspects in the shooting, and Lewis eventually identified Gunn and Mull as his shooters while he was in the hospital. Lewis later died six days after the shooting, which led to the State charging Gunn and Mull with first-degree murder but also led to this key identification evidence being inadmissible at trial and Gunn and Mull being able to accept plea agreements.
Evidence of Lewis' identification was governed by Tennessee Rule of Evidence 803(1.1), which provides an exception to the rule against hearsay for "[a] statement of identification of a person made after perceiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement." And as the Advisory Commission Comment to the Rule reiterates: "Note that the declarant must also be a witness, affording at least delayed cross-examination as to the extrajudicial statement."
Conceptually, this requirement makes sense because criminal defendants do have a right to confront the witnesses against them. Moreover, historically the hearsay exception for prior statements of identification only allowed for the admission of pre-trial identifications to bolster the credibility of in-court identifications, with it merely being the modern trend to allow admission of these earlier IDs to prove the truth of the matter asserted. But something just seems wrong about defendants being able to benefit (at least legally) from the fact that their murder attempt was successful rather than unsuccessful.
August 11, 2009
Chain Of Command: Military Case Reveals Interesting Exception To Military Rule Of Evidence 606(b)
The recent opinion of the United States Court of Appeals for the Armed Forces in United States v. Matthews, 68 M.J. 29 (U.S. Armed Forces 2009), was fairly straightforward with regard to Military Rule of Evidence 606(b). An appellant who was convicted by a military judge sitting alone as a general court-martial appealed to the United States Army Court of Criminal Appeals. As part of that appeal, the military judge testified regarding his deliberations, which later resulted in the United States Court of Appeals for the Armed Forces remanding the case because it held that the portions of the military judge's testimony in which he explained his deliberative process and reasoning at the court-martial were unreviewable evidence that could not have been considered by the Court of Criminal Appeals (The court did not reverse because it did not know the extent to which the Court of Criminal Appeals considered the military judge's testimony). Before reaching this conclusion, the court rejected the argument that the military judge's testimony was inadmissible under Military Rule of Evidence 606(b). This makes sense because Federal Rule of Evidence 606(b) is the anti-jury impeachment rule, and its military counterpart, Military Rule of Evidence 606(b), is the anti-military commission member (i.e., military juror) impeachment rule, and the military judge was a judge. What is interesting about Military Rule of Evidence 606(b), though, is that it has one
Military Rule of Evidence 606(b) provides that
For the most part, Military Rule of Evidence 606(b) mirrors Federal Rule of Evidence 606(b), although the latter contains a new exception which the former does not. Military Rule of Evidence 606(b), however, has an exception that Federal Rule of Evidence 606(b) does not have. This is the exception for "unlawful command influence."
And military courts have used this exception. For instance, in United States v. Carr, 18 M.J. 297 (CMA 1984), military commission members were allowed to impeach their verdict after they found James Carr guilty of rape and possession of marijuana. This was because there was evidence "that the president of the court-martial had pressured the other members to vote for conviction, contrary to the instructions they had received." The court found that this evidence formed the proper predicate for jury impeachment because "[t]he president's exercise of the influence of his rank on the members of the court would fall within th[e] exception" for "unlawful influence command."
August 10, 2009
Without Prejudice: Colorado Court Of Appeals Find Jurors Were Not Exposed To Extraneous Prejudicial Information In Car Crash Appeal
But what exactly constitutes extraneous prejudicial information? The recent opinion of the Colorado Court of Appeals in Kendrick v. Pippin, provides maybe the best (or at least the most comprehensive) answer to that question that I have seen in a judicial opinion.
In Pippin, Holly Pippin drove her pickup truck into a car driven by Cheryl Kendrick, but the result of Kendrick's subsequent lawsuit against Pippin was a jury verdict deeming Pippin not negligent in causing the accident. Subsequently, Kendrick moved for a new trial based, inter alia, on the affidavit of a consultant she hired who interviewed jurors after the verdict and who averred that
• during deliberations, the jury foreperson, an engineer, performed calculations regarding Ms. Pippin's speed, distance, and reaction time which she shared with the other jurors;
• the foreperson had told the other jurors she was an engineer;
• the foreperson had provided her with the calculations, but the consultant had not written them down and did not remember them;
• the foreperson had concluded that Ms. Pippin did not have enough time to avoid the collision; and
• another juror said that the jurors had found the foreperson's calculations helpful.
The Colorado Court of Appeals first noted that, based upon Colordo precedent, even if it were to "conclude that the consultant's affidavit alleged facts which, if true, would entitle Ms. Kendrick to a new trial, the remedy in that circumstance would be a remand for the purpose of conducting an evidentiary hearing on those allegations." It then rejected Pippin's argument that it could not consider the consultant's affidavit because it was hearsay, again citing Colorado precedent for the proposition "that affidavits by nonjurors attesting to jurors' statements regarding exposure to extraneous prejudicial information have been found sufficient to require a hearing."
The problem for Kendrick, however, was that the court did not find that the jurors were exposed to extraneous prejudicial information. The court began by cataloging the types of information have been deemed extraneous and prejudicial by Colorado appellate courts:
(1) information obtained from outside the jury room which could have encouraged a jury to decide the case on some improper basis, see Harlan, 109 P.3d at 624-33 (passages from a Bible brought into the jury room by one or more jurors); Ravin, 788 P.2d at 819-21 (bailiff's statement that jurors could be required to deliberate for as long as two weeks); (2) information from an outside source defining a charged offense, see Wiser v. People, 732 P.2d 1139, 1141-43 (Colo. 1987) (definition of “burglary” from a dictionary brought into the jury room by a juror); (3) substantive information about evidence from outside sources, see People v. Wells, 97 P.3d 932, 934-35 (Colo. 2004) (information from the Internet on uses of an anti-depressant drug); T.S. v. G.G., 679 P.2d 118, 119-20 (Colo.App. 1984) (information from a textbook regarding DNA testing); (4) substantive information about facts contradicting facts in evidence, see Destination Travel, 799 P.2d at 455-57 (estimates of appropriate salaries of the plaintiff's employees-facts necessary to the computation of damages); and (5) information about the parties or the circumstances giving rise to the case gleaned from outside sources, see Butters v. Wann, 147 Colo. 352, 355-58, 363 P.2d 494, 496-97 (1961) (juror independently investigated drinking habits of and license revocation proceedings involving the deceased); Montrose Valley Funeral Home, Inc. v. Crippin, 835 P.2d 596, 597-98 (Colo.App. 1992) (deposition testimony that had not been admitted into evidence).
The court then found that the case before it did "not involve those types of information. Rather, the allegation here is that a juror used her pre-existing, general knowledge of mathematics (and perhaps physics) to analyze the admitted evidence of relevant locations and distances and the speed of Ms. Pippin's vehicle." Therefore, the court found that the question before it was "whether a juror's pre-existing personal expertise or knowledge of a general nature-that is, not involving historical or otherwise substantive facts in the case-is extraneous information which the juror may not use or communicate to other jurors in the course of deliberations." The court found that was not, using the following impressive string cite as support:
See Hard v. Burlington Northern R.R. Co., 870 F.2d 1454, 1460-62 (9th Cir. 1989) (juror's medical knowledge, which enabled him to interpret x-rays admitted into evidence, was not extraneous information); State v. Aguilar, 818 P.2d 165, 166 (Ariz.Ct. App. 1991) (medical doctor juror's knowledge of alcohol and cocaine intoxication and blackouts, which he shared with the other jurors, was not extraneous information); Wagner v. Doulton, 169 Cal.Rptr. 550, 551-53 (Cal.Ct.App. 1980) (diagram of accident scene by juror who was an engineer was not extraneous information where diagram was based solely on the evidence admitted at trial); State v. DeMers, 762 P.2d 860, 863 (Mont. 1988) (juror's knowledge about the study of bones, which was allegedly used by jurors to speculate about possible angles of bullet deflection and to assess an expert's testimony, was not extraneous information); Meyer v. State, 80 P.3d 447, 457-58 (Nev. 2003) (nurse juror's opinion as to likely cause of bumps on victim's head was not extraneous information); State v. Mann, 39 P.3d 124, 127, 132-35 (N.M. 2002) (engineer juror's calculations regarding statistical likelihood that child impaled himself on a screwdriver (the defendant's theory of defense) were not extraneous information); State v. Heitkemper, 538 N.W.2d 561, 563-64 (Wis.Ct.App. 1995) (pharmacist juror's statements to other jurors about effect of drugs taken by witness were not extraneous information); but see People v. Maragh, 729 N.E.2d 701, 703-06 (N.Y. 2000) (nurse jurors' use of professional expertise in communicating opinion about victim's cause of death to other jurors constituted extraneous prejudicial information).
The court thus denied Pippin's motion, concluding,
Jurors are not automatons. It is neither reasonable nor desirable to expect that they will assess evidence without regard to their own pre-existing knowledge of general application....Therefore, while a juror may not communicate to other jurors personal knowledge of the parties or of historical or otherwise substantive facts pertaining specifically to the case that are not in evidence, a juror may use his or her particular preexisting knowledge of general application in evaluating the evidence. To the extent a party is concerned that specialized knowledge could be employed by jurors to evaluate the evidence, the time for determining whether a juror possesses such knowledge is during voir dire, not after the verdict."
August 9, 2009
Sudden Impact: New Illinois Public Act Will Permit Admission Of Victim Impact Statements Against Defendants Found Not Guilty By Reason Of Insanity
Traditionally (but not exclusively), a victim impact statement has been "a statement read into the record during sentencing to inform the judge or jury of the financial, physical, and psychological impact of the crime on the victim and the victim's family." Black's Law Dictionary 1598 (8th ed. 2004) As the Supreme Court put it in Payne v. Tennessee, 501 U.S. 808, 825 (1991), a victim impact statement is a "form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities." But what should happen when a defendant is found not guilty by reason of insanity and being committed rather than sentenced? Should victim impact statements be allowed in this situation as well? The answer is "yes" according to a new Public Act signed into law by Illinois Governor Pat Quinn.