August 22, 2009
Avoiding A Confrontation: Court Of Appeals Of Texas Deals With Intersection Between Rules Of Evidence And Confrontation Clause In Assault Appeal
In relevant part, Federal Rule of Evidence 608(b) provides 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.
Texas Rule of Evidence 608(b), however, provides that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
That's not to say, however, that a criminal defendant is automatically precluded from impeaching a witness for the prosecution through inquiry into specific instances of (mis)conduct by the witness as is made clear by the recent opinion of the Court of Appeals of Texas in Aguilar v. State, 2009 WL 2476628 (Tex.App.-Austin 2009).
Jonathan Senovio Aguilar was drinking at a friend's apartment with some friends and acquaintances. Disputes arose over gang affiliation and, although each witness offered varying explanations as to how the disputes arose, they agree[d] that the disputes eventually escalated into physical violence, including Aguilar stabbing Mark Tovar multiple times.
Aguilar was later charged with aggravated assault. During the ensuing trial, Tovar testified that he had used drugs but that he did not, and never had dealt drugs. Aguilar thereafter sought to cross-examine him about whether, in 1998, during a search leading to a prior felony conviction for possession of marijuana, police recovered two ounces of marijuana pre-packaged for sale, weight scales, drug ledgers, and $274 in cash.
The trial court precluded this line of interrogation, and Aguilar was subsequently convicted. Aguilar thereafter appealed, and the Court of Appeals affirmed, first noting that the proposed interrogation was not permitted under Texas Rule of Evidence 608(b). It then noted, however, that "the Confrontation Clause of the Sixth Amendent may require admission of evidence that Rule 608(b) would otherwise bar. According to the court,
In weighing whether evidence must be admitted under the Confrontation Clause, the trial court maintains broad discretion and should balance the probative value of the evidence sought to be introduced against potential risks of its admission, including harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence.
This was the problem for Aguilar. The court first noted that the evidence from 1998 merely implied, but did not prove that Aguilar had sold drugs. Second, despite Aguilar's claims to the contrary, the court found that this evidence of Aguilar's possible drug dealing was collateral to the main issues at trial and did not add much impeachment value beyond the already admitted evidence that he had a prior felony conviction for marijuana possession.
August 21, 2009
Call for Articles and Essays: Recent Developments in New York Law
Call for Articles and Essays: Recent Developments in New York Law
Proposals due October 1, 2009.
The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to our second annual issue addressing recent developments in New York law to be published in Spring 2010.
This issue will explore a wide range of recent developments in the laws of New York State, including but not limited to areas of criminal law, civil litigation, family law, property law, constitutional law, tax law, bankruptcy law, and municipal law. Authors may also discuss proposed changes to New York law, at the state or local level.
Please submit proposals of no more than 500 words by attachment to firstname.lastname@example.org by October 1, 2009. All proposals should include the intended author’s name, title, institutional affiliation, contact information, and should relate to an area of New York State law. Authors are also welcome, but not required, to submit a CV. We expect to make publication offers by October 8. We encourage clear, concise, and accessible writing that will be of use to lawmakers, attorneys, and students.
Completed manuscripts will be due November 24, 2009.
Not What He Bargained For: Eighth Circuit Enforces Questionable Clause In Plea Agreement After Defendant's Breach
Al and Bob enter into a contract under which Al agrees to paint Bob's house for $500. Al breaches the contract by not painting Bob's house. Bob thereafter sues Al for breach of contract. Finding that Al breached, the judge orders Al to paint Bob's house and finds that Bob does not have to pay him a cent in exchange. The reason? The contract contained a clause stating that, in the event of a breach, Bob would be released from his obligations, but Al would "remain bound by the terms of the agreement."
I think that we can all agree that this would never happen. The judge might award Bob damages and could possibly award specific performance of the contract, but not without compensation to Al. And yet, in its recent opinion in United States v. Sisco, 2009 WL 2477235 (8th Cir. 2009), the Eighth Circuit enforced just such a clause in a plea agreement against a criminal defendant, a result which was far from anomalous. I would also argue that the opinion was far from convincing.
In Sisco, Anthony Sisco pleaded guilty to possession with intent to distribute five grams or more of cocaine base as part of a written plea agreement. This plea agreement contained a waiver of Sisco's appellate rights and contained a clause stating,
If the defendant commits any crimes, violates any conditions of release, or violates any term of this plea agreement between the signing of this plea agreement and the date of sentencing, or fails to appear for sentencing, or if the defendant provides information to the Probation Office or the Court that is intentionally misleading, incomplete, or untruthful, or otherwise breaches this plea agreement, the United States will be released from its obligations under this agreement. The defendant, however, will remain bound by the terms of the agreement, and will not be allowed to withdraw his plea of guilty.
Thereafter, "[b]efore sentencing and while on pre-trial release, Sisco was charged with first degree murder, first degree assault, and two counts of armed criminal action in connection with a shooting that occurred in Kansas City, Missouri." Based upon Sisco's conduct, the government filed a motion to withdraw from the plea agreement based upon Sisco's breach, and Sisco did not oppose the government's motion to withdraw."
Thereafter, the government sought entry of a sentence against Sisco that was higher than the sentence in the plea agreement, and the court agreed, sentencing him to the statutory maximum of 480-months incarceration. Sisco thereafter appealed, claiming, inter alia, "that because the plea agreement did not outline his appellate rights in the event of a breach, the agreement should be construed against the government." The Eighth Circuit agreed with Sisco that “ambiguities [in the plea agreement] are construed against the government," but found that the above clause was "not ambiguous."
According to the court, the clause clearly stated that
Sisco "will remain bound by the terms of the agreement" even if he breaches the agreement. The agreement is unambiguous. Sisco's breach of the agreement did not absolve him of his duties thereunder.
Sisco's breach of his plea agreement released the government from its duty to not seek an enhanced sentence, but it did not restore to Sisco the appeal rights he expressly waived. Sisco's actions did not render the entire plea agreement a legal nullity.
How is this fair? If the government breaches a plea agreement, the criminal defendant is limited to typical contract remedies: specific performance or the opportunity to withdraw from the plea agreement. See, e.g., United States v. Lovelace, 565 F.3d 1080, 1085-86 (8th Cir. 2009). So, why should the government get a one-sided remedy not available to parties to other contracts? While courts have not fully accepted Justice Brennan's contention in Ricketts v. Adamson, 483 U.S. 1, 16 (1987) (Brennan, J., dissenting), that "plea agreements are constitutional contracts," the Eighth Circuit itself made clear that it gives criminal defendants every benefit of the doubt under plea agreements. Given this, how can such clauses be enforced?
August 20, 2009
The "Phantom" Blue Corvette And New Jersey's Hearsay Exception For Trustworthy Statements By Deceased Declarants
New Jersey Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for
Trustworthy statements by deceased declarants. In a civil proceeding, a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy.
This is an odd exception; indeed, as far as I know, there is no state that has a similar hearsay exception in its rules of evidence. In a sense, it is the complement to a Dead Man's Statute, which precludes an interested party from testifying about any communication, transaction, or promise made to him by a now deceased or incapacitated person when the testimony would go against the decedent's estate. And the recent opinion of the Superior Court of New Jersey, Appellate Division in Estate of Nick Hanges v. Metropolitan Property & Casualty Insurance Company, 2009 WL2496810 (N.J.Super.A.D. 2009), provides a nice illustration of how the exception works.
In Byrd, Nick Hanges was involved in an automobile accident and reported to police that he was cut off by a "phantom" Blue Corvette, causing him to lose control and strike an underpass. Two physicians later treated Hanges for his physical injuries, and a therapist treated him for his psychological injuries; Hanges repeated his claims regarding the "phantom" blue Corvette to all three. Harges later committed suicide, and his estate thereafter claimed coverage under the uninsured motorist provision of an automobile insurance policy issued to him by Metropolitan Property & Casualty Insurance Company.
The estate's claim was that the driver of the "phantom" Blue Corvette should be treated as an uninsured motorist, entitling Hanges to coverage. Metropolitan Property countered by moving for summary judgment, claiming that the only evidence that there was a "phanton" blue Corvette -- Hanges' statements -- was inadmissible hearsay. The trial court agreed with Metropolitan Property and granted its motion, finding that Hanges' statements were not admissible under New Jersey Rule of Evidence 803(c)(2) as excited utterances, New Jersey Rule of Evidence 803(c)(6) as business records, New Jersey Rule of Evidence 803(c)(6) as statements made for the purpose of medical diagnosis or treatment, or New Jersey Rule of Evidence 804(b)(6) as trustworthy statements by a deceased declarant.
In addressing the estate's appeal, the Superior Court of New Jersey, Appellate Division agreed with the first three rulings but disagreed with the fourth, at least with regard to Hanges' statement to the police officer. The appellate court noted that under Rule 804(b)(6), “[a] trial court must make particularized findings of good faith, personal knowledge and trustworthiness...." It then noted that the trial court had deemed Hanges statements inadmissible under Rule 804(b)(6) because
[T]he Estate has failed to show that...the decedent's statement was made in good faith or it was...trustworthy. The decedent had reason to not be forthcoming in this situation. He crashed his car into an underpass and there was no other evidence of any other vehicles involved. A person in these circumstances has much to gain if he or she can successfully shift the blame to some other non-verifiable cause. Thus under the circumstances in which the statement was made there is great incentive for a driver to skew the facts in [his] favor. For this reason the statements do not possess the requisite trustworthiness or reliability to be admitted under the hearsay exception [ ] for unavailable declarants....
The appellate court disagreed, concluding that
The declarant was clearly deceased and there does not appear to be any dispute that his statement regarding the "phantom vehicle" was made from his personal knowledge. There is nothing in the record, moreover, to indicate that the statement was not made in good faith or that it was otherwise lacking in reliability or trustworthiness. The trial court need not find the statement absolutely trustworthy before it may be admitted under the Rule; it need only find a probability that the statement is trustworthy from the circumstances surrounding its making....The factors relevant in consideration of trustworthiness include: whether the statement was made under oath; the duration of the time between the event and the statement; whether the declarant had first-hand knowledge; and the credibility of the declarant....
Although the decedent was not under oath, the statement was made immediately after the accident to the police officer and there is nothing in the record to suggest that the decedent had any motive to falsify his statement to the officer. Indeed, that is a credibility issue solely within the province of the jury and not subject to the trial court's determination on a motion for summary judgment.
I think that the appellate court was probably right, which leads me to believe that the "trustworthy statements by a deceased declarant" is wrong, or at least that it allows for the admission of statements which are not (necessarily) sufficientluy reliable to overcome the general rule against hearsay.
August 19, 2009
Welcome To The Blogosphere, Snitching Blog
snitching = when police or prosecutors offer lenience to criminal suspects in exchange for information or cooperation
Snitching Blog is devoted to a part of our criminal system that most people know little or nothing about: criminal informants, or "snitches." At any given moment, thousands of informants are in the system trying to work off their own criminal liability by giving information to the government. These informants may be in court, in prison, on the street, or in the workplace. Police and prosecutors often rely heavily on information obtained from snitches. This is especially true in drug enforcement, but also for investigations of white collar crime, organized crime, and terrorism. In fact, it is impossible to fully understand the U.S. legal system without understanding snitching. Nevertheless, snitching remains shrouded in secrecy and confusion.
This blog does a number of things:
- How it all works. Snitching Blog discusses how snitching works, how it shapes the legal system, and how it affects the lives of ordinary people. Snitching Blog offers news analysis, legal commentary, cultural insights, and more. If you want the complete story, you can read my book, SNITCHING: CRIMINAL INFORMANTS AND THE EROSION OF AMERICAN JUSTICE (NYU Press, 2009).
- Resources. Snitching Blog provides resources for individuals, lawyers, organizations, law enforcement, legislators, and others who want information about the law and public policies associated with snitching. There are links to government documents, reports, and sample court filings that may be educational or useful. Snitching Blog does not provide legal advice.
- Current events. Snitching Blog shares informant-related stories, new legal developments, and other current events. If you know of a news story that might be of interest to other readers, please pass it on.
- Share your stories. Snitching Blog is the first public forum for people who have encountered snitching first-hand and who want to share their experiences. Many people have had their lives touched, sometimes ruined, by criminal informants or the practices associated with snitching. Many law enforcement professionals have important insights about how the practice works or could be improved. But because snitching is so secretive and "off the books," there is typically no way to share these experiences and insights with others. This blog provides that opportunity through the "Testimonials" section, in which individuals can submit brief descriptions of their experiences for others to read.
I hope you find this site interesting and useful. I look forward to your comments.
2009 Legal Educator Blog Census, Version 1.0 (Schools N-Z)
2009 Legal Educator Blog Census, Version 1.0 (Schools A-M)
A Bill for taking a census has passed the House of Representatives, and is within the Senate. It contained a schedule for ascertaining the component classes of the Society, a kind of information extremely requisite to the Legislator, and much wanted for the science of Political Economy. A repetition of it every ten years would hereafter afford a most curious and instructive assemblage of facts. It was thrown out by the Senate as a waste of trouble and supplying materials for idle people to make a book. Judge by this little experiment of the reception likely to be given to so great an idea as that explained in your letter of September.
-Letter from James Madison to Thomas Jefferson, February 14, 1970
August 18, 2009
My New Article: Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional
Two days after the Supreme Court's opinion in Arizona v. Gant back in April, I wrote a post contending that the opinion could be read as invalidating the suspicionless search incident to a lawful (home) arrest authorized by the Court in Buie v. Maryland. As I started investigating the issue some more, I realized that the issue was important and complex enough for it to become my summer project. The result is my new article, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. Here is the abstract:
In its 1990 opinion in Maryland v. Buie, the Supreme Court held that as an incident to a lawful (home) arrest, officers can “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” While this holding was actually dictum, thereafter courts categorically concluded that Buie authorizes suspicionless searches of sufficiently large spaces not only in arrest rooms, but also in rooms immediately abutting arrest rooms and connected to arrest rooms by hallways.
Buie was one of three Supreme Court opinions expansively reading the scope of searches incident to lawful arrests after it circumscribed their scope in 1969 in Chimel v. California. The other two opinions were Belton v. New York and Thornton v. United States, and, in its 2009 opinion in Arizona v. Gant, the Court expressly overruled Belton and rebuked Thornton as an application of Chimel, which it reaffirmed as continuing to define the boundaries of searches incident to lawful arrests. This article argues that, even without Gant, courts should have realized that they had grossly misconstrued the scope of suspicionless Buie searches, and that now, defendants and appellants should be able to raise Arizona v. Gant to argue that the reaffirmation of Chimel and the destruction of the Belton fiction together invalidate the suspcionless Buie search.
August 17, 2009
Welcome The Blogosphere (Relaunched) CrimProf Blog
Lawrence A. Alexander (The Philosophy of Criminal Law, Criminal Liability for Omissions: An Inventory of Issues)Donald A. Dripps (Sixth-Amendment Originalism's Collision Course with the Right to Counsel: What's Titanic, What's Iceberg?, The 'New' Exclusionary Rule Debate: From 'Still Preoccupied with 1985' to 'Virtual Deterrence)Yale Kamisar (Dickerson v. United States: The Case that Disappointed Miranda's Critics - And then its Supporters, On the Fortieth Anniversary of Miranda: Why We Needed It, How We Got It - and What Happened To It)
In my time at the University of San Diego School of Law, I’ve had the privilege of working with highly talented colleagues across a broad range of subject matters. In my own areas of special interest--criminal law and procedure--I have been especially fortunate, and I am delighted that my current CrimProf colleagues have joined me in assuming the editorship of the CrimProf blog. We hope to continue the success of the previous editors in making this blog a valuable resource for teachers and others in these fields.
CrimProf hopes to provide for criminal law and procedure types the same convenient method for keeping up with recent SSRN posts that my former San Diego colleague, Larry Solum, provides for the general legal theory crowd on his Legal Theory Blog. I cannot hope to read every manuscript about which there might be sufficient interest to justify posting an abstract, but when I do have something more to say than "Here is the abstract," I will signal that fact by designating the manuscript as a "featured download." Of course, this designation should be taken more as an indication of my own personal interests than as an opinion about how the manuscript stacks up against all those that I haven't read.
Another Habit Like An Unwanted Friend: Court Of Appeals Of Kentucky Affirms Trial Court's Habit Ruling
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
include going down a particular stairway two stairs at a time, giving the hand signal for a left turn, alighting from railway cars while they are still moving,...reacting with extreme violence to any contact with a uniformed police officer,...and placing a gun in your belt every morning. United States v. Morris, 2008 WL 382859 at **4.
In Gaines, store owners believed that McClellan Gaines and Vivian Leigh tried to make purchases at their store with counterfeit money, wrote down their license plate number, and called he police. Officers later stopped the vehicle with that license plate number, searched Gaines, uncovered marijuana, and searched the vehicle, uncovering a backpack filled with counterfeit money, men's clothing, and documents with Gaines' name on them. Bizarrely, however, "[t]he backpack, some of the papers, and clothing were not kept as evidence, nor were pictures taken."
This made it difficult for the State to prove that Gaines was guilty of criminal possession of a forged instrument at his ensuing trial. The arresting officers did testify that Gaines admitted that the backpack was his, but this might not have been enough to convict Gaines by itself. This was where the testimony of Gaines' ex-girlfriend came into play.
According to Gaines' ex-girlfriend, Rebecca Hicks, "in the three months they dated, [Gaines] always carried a backpack with him. Also, she testified that in the backpack [Gaines] would keep a change of clothing and any important papers he might need." After Gaines was convicted, he appealed, claiming, inter alia, that Hicks' testimony was improperly received, but the Court of Appeals of Kentucky found that it was properly admitted as habit evidence under Kentucky Rule of Evidence 406 and that it was "supportive of the testimony of the police officers that in addition to the counterfeit money, papers containing Appellant's name and men's clothing were also found in the backpack and indicative of his ownership."
August 16, 2009
Great Wall Of Hearsay: New Jersey Appellate Court Finds Recorded Recollection Was Improperly Introduced As An Exhibit
A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness himself or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection.
A key but often forgotten part of this hearsay exception is the last part as was the case in the recent opinion of the Superior Court of New Jersey, Appellate Division, in Business Computer Resources, Inc. v. Great Wall of Tinton Road, Inc., 2009 2426344 (N.J.Super.A.D. 2009).
In Great Wall, Business Computer Resources, Inc., a computer services and supply company, sued defendant, Great Wall of Tilton Road, Inc., i/p/a Great Wall Chinese Food, a neighboring business in the strip mall both shared, alleging it had sustained property damage as the result of defendant's negligently-caused fire. During trial, over defendant's objection, the judge admitted into evidence a computer-generated spreadsheet, prepared by plaintiff's principals, of inventory, fixtures and other personal property lost or damaged in the fire. After trial, the jury awarded the plaintiff $52,000 in damages, to which the judge added pre-judgment interest and allowable costs.
The defendant subsequently appealed, claiming, inter alia, that the spreadsheet was improperly admitted. The appellate court noted that an initial potential reason that the spreadsheet might have been inadmissible under New Jersey Rule of Evidence 803(c)(5) was that the witness who substantially prepared it was never asked whether she needed the spreadsheet to testify because she lacked “insufficient present recollection” of the damaged items and their worth. The court noted, however, that its "review of the record convince[d it] that had the proper predicate questions been posed, in all likelihood the spreadsheet would have qualified as “recorded recollection” under N.J.R.E. 803(c)(5). It contained over 600 line items on nineteen pages, and thus it was unlikely that [the witness] could have possessed a present memory of every item and its value."
The real problem, however, was that the spreadsheet was admitted into evidence as an exhibit over the defendant's objection. As the last part of New Jersey Rule of Evidence 803(c)(5) makes clear, this action was improper. Nonetheless, the appellate court found that the erroneous admission of this exhibit as well as another exhibit containing hearsay was harmless error and thus affirmed.