EvidenceProf Blog

Horton Hears A Hearsay: Appeals Court Of Massachusetts Makes Interesting Ruling Concerning Statements Against Interest

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for 

A statement which 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 believing it to be true.

Massachusetts does not have codified rules of evidence but it has recognized this statement against interest exception to the rule against hearsay in its case law. And, pursuant to the Supreme Court's opinion in Williamson v. United States, 512 U.S. 594 (1994), when a declarant makes a broadly self-inculpatory confession which also contains some self-exculpatory statements, courts will admit only the self-inculpatory statements and excise the self-exculpatory statements under the statement against interest exception. But what happens when a declarant makes a broadly self-exculpatory statement which also contains some self-inculpatory statements? That was the question addressed by the Appeals Court of Massachusetts in Commonwealth v. Dejarnette, 2009 WL 2595871 (Mass.App.Ct. 2009).

In Dejarnette, after searching an apartment in which the Nickolas Dejarnette was staying, police found a Doctor Seuss backpack with the his name written inside containing cocaine, ecstasy, and ammunition. Dejarnette was thereafter tried and convicted of trafficking in cocaine, possession of ecstacy with intent to distribute, and possession of a firearm and ammunition without an FID card.  

Dejarnette's conviction was likely based in part on the admission of hearsay statements made by William Coleman, the boyfriend of the lawful owner of the apartment. The admission of Coleman's statements, however, was partially Dejarnette's own doing. Coleman was in the apartment on the day it was searched, and he thereafter made a statement to police in which he admitted to using some of the drugs in the apartment and that his fingerprints would thus likely be some of the drugs. Dejarnette wanted to use these statements to prove that the drugs seized could have belonged to Coleman and not him.

The problem for Dejarnette, however, was these self-inculpatory statements were small parts of an overall self-exculpatory statement by Coleman. Coleman also told the police, inter alia, that he had heard that Dejarnette was a drug dealer who dealt coke, that he had seen Dejarnette with a small gun, and that he had seen Dejarnette use a closet which contained a safe in which a gun and drugs were found.

The Commonwealth thus argued that if some of Coleman's statement to the police came in, all of it should come in, and the trial court found that the "Commonwealth might have the right to put in other statements damaging to the defendant 'in an effort not to give the jury a distorted version of what [Coleman] said.'" Thereafter, "[d]efense counsel did not object and, after consulting with the defendant, he agreed that '[b]y right, if I allude to a portion of this, the whole thing should come in.'"  

Nonetheless, after Dejarnette was convicted, he appealed, with part of the basis for his appeal being that the trial court erred and that he was given the ineffective assistance of counsel based upon the admission of the entirety of Coleman's statement. In addressing this argument, the Appeals Court of Court of Massachusetts noted that Coleman's statement was broadly self-exculpatory and found that

In these circumstances, the trial judge was understandably hesitant to allow the narrowly self-inculpatory statements in as declarations against interest. This was a close call and it would have been within his discretion either to declare the statement proposed by defense counsel regarding smoking marijuana and touching the bag of cocaine to be inadmissible in the circumstances because it was not actually a declaration against interest, or to allow it in with some limited “necessary surrounding context” to prevent its significance from being distorted by defense counsel....Nevertheless, the solution proposed by the prosecution, and agreed to by the defendant, to allow the whole statement in evidence was erroneous.

The court, however, found that the admission of the whole statement was harmless error because the "[s]tatements by Coleman incriminating the defendant could be portrayed as self-serving attempts to shift blame," and they merely "duplicated other evidence." The court also rejected Dejarnette's ineffective assistance of counsel claim, finding that the compromise accepted by his attorney was not "manifestly unreasonable."

I agree with the court's overall conclusion that there was not reversible error, but I also don't think that there was error by the court, or at least error attributable to it. First, because Dejarnette's attorney agreed that if he alluded to a portion of Coleman's statement, the whole thing should come in,'" the admission of the entire statement could have fallen under the invited error doctrine, rendering it not subject to appeal. Second, there is a good argument that admission of the entire statement was required under the rule of completeness, which provides that 

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.    

-CM

Privileged: Supreme Court Of Nevada Finds Judicial Proceeding Communication Privilege Applies To Nonlawyers

It is a “long-standing common law rule that communications [made] in the course of judicial proceedings [even if known to be false] are absolutely privileged." Does this privilege, however, extend to instances where a nonlawyer makes an allegedly defamatory communication in response to threatened litigation or during a judicial proceeding? In its recent opinion in Clark County School District v. Virtual Education Software, Inc., 2009 WL 2414820 (Nev. 2009), the Supreme Court of Nevada answered this question of first impression in the affirmative.

In Virtual Education Software, the Clark County School District (CCSD) and the Clark County Education Association (CCEA), the local teachers' union, were parties to a collective bargaining agreement, which included a provision for teachers to enhance their salaries by obtaining additional degrees, taking either upper-division, graduate-level courses or completing professional development courses offered by CCSD. However, educational courses that were not credit bearing toward a degree could be excluded from the courses eligible for salary enhancement, and CCSD could deny credit for courses that it deemed were of a frivolous nature."  

CCSD decided that courses offered by Virtual Education Software, Inc. (VESI), a Nevada corporation that markets and sells computer-based instruction for educators and business professionals, did not comply with the requirements of the collective bargaining agreement. Therefore, it denied teachers salary enhancements for taking VESI courses. Subsequently, VESI learned of this and wrote several e-mails to CCSD, essentially demanding that CCSD accept the courses “before legal means need to be pursued."  

CCSD responded by, inter alia, sending a letter to VESI's president, with copies to other school administrators and CCSD counsel, which stated in relevant part,

I have researched the VESI courses that you offer for graduate credit from the following universities: Chapman, University of Phoenix, and Southern Utah University. These courses are not credit bearing toward any degree offered by these universities. In addition, some of the courses can be completed in three to five hours and the tests can be successfully passed without reading the material, as evidenced by at least two of my employees. There is no safeguard to determine that the candidate is the one who actually takes the tests. The tests are largely consistent of factual information that can be memorized or copied as notes from the slides and do not require the analysis, synthesis and application levels usually required for graduate coursework.

VESI thereafter sued CCSD, with one cause of action sounding in defamation based in part on this letter. The Supreme Court of Nevada eventually held, however, that the letter was privileged under the privilege for communications made in the course of, or in anticipation of, judicial proceedings. The court noted that it had previously only applied this privilege to communications made by lawyers, but it found two reasons to extend the privilege to nonlawyers:

First, there is no good reason to distinguish between communications between lawyers and nonlawyers. Second, it is anticipated that potential parties to litigation will communicate before formally retaining counsel. 

-CM

Confronting Fear: Tenth Circuit Finds Excited Utterances Aren't Per Se Excluded From Scope Of Confrontation Clause

Federal 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. 

Meanwhile, the Confrontation Clause of the Sixth Amendment is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify regarding the hearsay at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. This begs the question of whether excited utterances under Rule 803(2) are per se excluded from the scope of the Confrontation Clause. In United States v. Pursley, 2009 WL 2568954 (10th Cir. 2009), the Tenth Circuit answered this question of first impression in the negative, contrary to the district court's conclusion.

In Pursley, Carl William Pursley, Jr. was charged, along with three codefendants, with conspiring to retaliate against a witness  and (2) with retaliating against a witness in violation of and aiding and abetting the commission of this crime. That witness was Jessie Cluff, whom was brutally beaten in a courthouse cell after rendering testimony against Pursley in a tax fraud trial. Soon after being beaten, Cluff made statements to Deputy U.S. Marshal Motlzan implicating Pursley and a confederate in the attack.

 

At Pursley's ensuing trial, Cluff testified that he made statements to Moltzan after the attack, but he did not testify regarding the content of those statements. Thereafter, over Pursley's objection, the trial court found that Moltzan could testify regarding the contents of Cluff's statements because those statements constituted excited utterances under Federal Rule of Evidence 803(2). The trial court also rejected Pursley's argument that the admission of these statements violated his rights under the Confrontation Clause, concluding that excited utterances are per se excluded from the scope of the Confrontation Clause.  

 

On Pursley's subsequent appeal, the Tenth Circuit disagreed with the trial court's Confrontation Clause conclusion but nonetheless affirmed. The court noted that in Davis v. Washington, 547 U.S. 813 (2005), the Supreme Court had found statements admitted by Indiana courts as exceited utterances nonetheless violated the defendant's rights under the Confrontation Clause. Indeed, the court noted that "[o]ne of the lessons of Crawford and Davis...is that even if a statement qualifies for an exception to the hearsay doctrine-based upon judicially fashioned reliability principles-the statement's admission may violate the Sixth Amendment's mandate for 'confrontation' if it constitutes 'testimonial' hearsay."

 

The Tenth Circuit, however, found that even if Cluff's statements were testimonial hearsay, their admission did not violate Pursley's rights under the Confrontation Clause because Pursley was able to cross-examine Cluff even though Cluff did not testify regarding the content of his statements. Moreover, the court found that "Cluff remained available as a witness even after Mr. Moltzan testified" and that he "remain[ed] subject to recall for further testimony," giving Pursley a further chance to cross-examine him.

 

-CM

What Not To Wear, Religious Edition, Take 2: Supreme Court Of Michigan Finalizes Attire Rule Of Evidence, With Lawsuit To Follow

Back in June, I posted an entry about the Supreme Court of Michigan's adoption of an amendment to Michigan Rule of Evidence 611 which provides as follows:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

As I noted at the time, the amendment was crafted after a judge dismissed a Muslim woman's case when she refused to comply with his order that she remove her niqab and was inconsitent with "a pretty consistent line of precedent in this country which had established that judges are not entitled to tell witnesses what not to wear when such an order implicates religious liberty."  Well, yesterday, the Supreme Court of Michigan issued the order impliementing this amendment, effective September 1st. And now, the woman, along with the Michigan chapter of the Council on American-Islamic Relations (CAIR), plans to sue the judge in federal court. 

At the start of this post, I would like to clarify a few points which I didn't realize at the time of my initial post. First, I thought that the niqab obscured large portions of the woman's face, which would have made the judge's claim that he needed her to remove the niqab to observe her demeanor and temperament more plausible. But, as this Youtube clip makes clear, the niqab mostly only covered her hair and did not cover her eyes or face.

Second, I had thought that the plaintiff flatly refused to remove her niqab. Instead, it appears that the plaitiff merely told the male judge that she would only remove the niqab in front of a female judge, with the judge thereafter informing her that no female judge was available. Third, it appears that the plaintiff actually did remove her niqab (allegedly based upon the judge's intimidation), but apparently not at a time or in a way that avoided the judge dismissing her case.

Given these facts, I think that the plaintiff has a solid chance of success in her lawsuit. According to a CAIR staff attorney, "This judge targeted a Muslim woman's religious attire, but he could just as easily have demanded the removal of a Sikh turban, a Jewish yarmulke or a Catholic nun's habit."  Given that the cases I cited in my previous post found that judges could not compel litigants to remove yarmulkes, prayer caps, and othe religious headgear, I don't see how the judge could have ordered the plaintiff to remove her niqab, at least prior to the amendment of Michigan Rule of Evidencd 611 .

Indeed, last month, "the Judicial Council of Georgia adopted a policy allowing religious head coverings in the state's courtrooms." Hopefully, Michigan realizes the error of its ways and reaches a similar conclusion.

-CM

S-U-C-C-E-S-S: Third Circuit Finds Settlement Offers Admissible As Evidence Of Degree Of Success Obtained For Fees And Costs Analysis

Federal Rule of Evidence 408 states

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

In Lohman v. Duryea Borough, 2009 WL 2183056 (3rd Cir. 2009), the Third Circuit resolved an issue of first impression under the Rule, the issue of "whether and to what extent the trial court may consider settlement negotiations when awarding fees."

In Duryea Borough, 

Nicholas Lohman brought an action asserting numerous claims relating to his discharge from employment with Duryea Borough. Only three First Amendment retaliation claims survived summary judgment and proceeded to trial. Defendants made three settlement offers after trial commenced, including one for $75,000.00. Lohman rejected each of these offers. The jury found for Lohman on one of the three claims, and awarded him $12,205.00 in lost wages and nominal damages. Lohman moved for attorney's fees and costs of $112,883.73.  

The district court thereafter "granted the motion in part, awarding $30,000.00 in attorney's fees and $4,251.77 in costs." In awarding an amount of attorney's fees and costs that was substantially lower than what Lohman requested, the court relied upon the settlement offers to determine "the degree of success obtained" by Lohman. According to the court, the fact that Lohman recovered substantially less at trial than he would have recovered under the settlement offers meant that he had a low degree of success, thus reducing the amount of fees and costs he should recover.

Lohman subsequently appealed, claiming, inter alia, that the evidence of settlement offers should have been deemed inadmissible under Federal Rule of Evidence 408. The Third Circuit disagreed, finding that 

While evidence of settlement negotiations is inadmissible to prove the merit or lack of merit of a claim, the use of such evidence as bearing on the issue of what relief was sought by a plaintiff does not offend the clear terms of Rule 408. Such evidence can be relevant when comparing what a plaintiff “requested” to what the plaintiff was ultimately "awarded."  

This part of the opinion makes sense to me because it seems clear that the evidence of settlement offers was not used for a precluded purpose under Rule 408. The court went on to note, however, that the admission of the evidence of the settlement offers did not go against the public policy goal of encouraging settlements served by Rule 408 because

the thought that settlement discussions will not now occur because an attorney could be penalized if he or she achieves less than was demanded makes little sense. In fact, permitting settlement negotiations to be considered would encourage reasonable and realistic settlement negotiations. In addition, there has been no argument made that a plaintiff's naming or rejection of a number is anything other than an indication of what the plaintiff is seeking. It comports with established law to consider what was sought as compared to what was awarded. Accordingly, the policy considerations asserted by Lohman lack a solid footing in any real policy.  

I disagree with this conclusion because it seemingly implies that Rule 408 should not apply when parties make unreasonable or unrealistic statements or offers during settlement. It seems to me, though, that the very purpose of Rule 408 is to make unreasonable or unrealistic statements or offers during settlement inadmissible. When party makes reasonable or realistic statements or offers during settlement, there would (often) be little to no damage if these statements or offers were introduced into evidence because they would likely be consistent with the party's claim at trial. Usually, it would only be unreasonable or unrealistic statements during settlement that would contradict a party's claim at trial, which is why they should be deemed inadmissible under Rule 408. 

Nonetheless, because the settlement offers in Duryea Borough were not offered for a precluded purpose under Rule 408, I think that the Third Circuit reached the correct conclusion.

-CM

The Lone Ranger And Tonto Fistfight In Heaven, Take 6: The Final Version Of My Amicus Brief For Benally

I have written five previous posts (here, here, here, here, and here) about the plight of Kerry Dean Benally, the Native American man who was convicted of assaulting a Bureau of Indian Affairs Officer with a deadly weapon and later learned that juror racial bias against Native Americans played a role during jury deliberations. In my last post on the subject, I noted that, as a result of my forthcoming article, Dismissed with Prejudice,  I was asked to write an amicus curiae brief in support of Benally's petition for writ of certiorari with the Supreme Court. That brief was submitted on Friday, and you can download a copy by clicking this link:

Download Amicus

I would like to thank all of the fine folks at Jenner & Block with whom I worked on preparing the brief, such as Marc Goldman, Elaine Goldenberg, Carrie Apfel, Sarah Maguire. I would also like to thank all of the Evidence professor who agreed to sign on to the brief.

-CM

Noisy Withdrawal: Third Circuit Finds That Involuntarily Withdrawn Guilty Plea Is Not Covered By Rule 410

On Friday, I posted an entry about the Eighth Circuit enforcing a clause in a plea agreement against a criminal defendant despite the fact that no court would enforce a similar clause in a contract between parties in a civil case. In that entry, I argued that this decision was indefensible, especially in light of the fact that ambiguities in plea agreements are construed against the government. The recent opinion of the Third Circuit in United States v. Jenkins, 2009 WL2518529 (3rd Cir. 2009), is questionable on similar grounds.

In Jenkins, in August 2003, New Jersey law enforcement authorities arrested Kevin Jenkins based on his alleged involvement in a home invasion and vehicle theft incident which had occurred several months earlier. In January 2004, Jenkins reached a plea agreement with the government and pleaded guilty to robbery in state court. After Jenkins entered his plea, federal authorities informed the state officials that, based on a federal investigation, Jenkins and his co-defendants had intended not only to steal a vehicle but also to rob a bank. As a result of this new information, the state officials concluded that Jenkins had not been truthful and withdrew his plea. 

In September of that year, a grand jury in the Eastern District of Pennsylvania returned a superceding indictment charging Jenkins with one count of conspiracy to commit armed bank robbery, one count of using and possessing a firearm in furtherance of the conspiracy to commit armed bank robbery, one count of conspiracy to commit carjacking, one count of carjacking, and one count of using and possessing a firearm in furtherance of the conspiracy to commit carjacking.

During Jenkins' trial, the district judge permitted the prosecution to admit evidence relating to Jenkins' state court guilty plea. Thereafter, the jury acquitted Jenkins' on the carjacking charge but found him guilty of all of the other charges. Jenkins subsequently appealed, claiming, inter alia, "that the District Court committed reversible error by permitting the admission of evidence relating to his state court guilty plea, which had subsequently been withdrawn by the state prosecution, asserting that Federal Rule of Evidence 410 disallows the admission of such evidence."

Jenkins had a good argument. Federal Rule of Evidence 410(3) indicates that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas.

The Third Circuit, however, noted that Jenkins did not raise this issue at trial, meaning that it could only reverse for plain error. And it couldn't find such plan error because it cited 2 Weinstein's Federal Evidence § 410.09[7] (2d ed.1997), for the proposition that "it is not clear whether the Rule applies in circumstances such as those presented here, where the defendant fails to fulfill his end of the plea bargain and the state withdraws it in response."

I can see why some courts hold that Federal Rule of Evidence 410 is inapplicable in this situation. It makes sense to make a defendant's withdrawn guilty plea inadmissible against him when it is the defendant who voluntarily withdraws the plea, but it seems to make less sense to do so when the plea is involuntarily withdrawn based upon the defendant's breach of the plea agreement.

That said, there is nothing in Rule 410 distinguishing between these two circumstances. And, as noted in my previous entry, courts have been receptive to clauses that the government places in plea agreements under which defendants waive certain protections. This being the case, it seems to me that when the government does not insert such a clause, courts should construe Rule 410 broadly and find that it protects defendants unless the plain language of the Rule provides otherwise.

-CM