EvidenceProf Blog

Vice City: D.C. Court Of Appeals Finds Statement Susceptible To More Than One Interpretation Doesn't Qualify As Statement 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. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

In its 1979 opinion in Laumer v. United States, 409 A.2d 190, 197) (D.C. 1979), the District of Columbia Court of Appeals adopted this statement against interest exception to the rule against hearsay. And in its recent opinion in Andrews v. United States, 2009 WL 2778391 (D.C. Cir. 2009), that court had to resolve whether a statement that is susceptible to more than one interpretation can qualify as a statement against interest. It answered that question in the negative. I disagree.

In Andrews, Vincent Andrews, then a Metropolitan Police Department officer, was convicted of first-degree sexual abuse of a ward, tampering with physical evidence, obstruction of justice, and simple assault. 

Andrews' convictions arose out of his insistence on having sex with a prostitute, Antoinette Keys, whom he had just arrested and taken into police custody. Ms. Keys, having been subjected to demeaning treatment and sexual abuse of a verbal nature in prior encounters with members of the MPD, felt that Andrews' conduct “had gone too far.” She accordingly hid the condom she used in performing oral sex on Andrews in her clothing, planning to report the assault to Andrews' superiors and to use the condom as physical evidence of the sexual act. For his part, Andrews was desperate to cover up his actions. Suspecting that Keys had saved the condom despite telling him she had thrown it away, he grabbed her by her arm and pushed it behind her back and started beating her head against the table in the police station conference room, threw her on the floor, ripped off her pants and panties, grabbed the condom from between her buttocks, and flushed it down the toilet-all in the presence of other MPD officers who did nothing to stop him.

On appeal, Andrews argued, inter alia, that the trial court improperly excluded a statement that Latasha Turner, another prostitute who was arrested with Keys, made to a police officer about Turner and Keys "setting up" the officers who had arrested them. And, according to the D.C. Court of Appeals, for the statement to have been admissible as a statement against interest, it needed to satisfy a three-part inquiry:

First, the court must determine whether the declarant made the statement....Second, the court must determine that the declarant is unavailable....Third, the proponent of the statement must demonstrate "that there exist corroborating circumstances that clearly indicate the trustworthiness of the statement."

The court found that the first two steps were satisfied because the evidence established that Turner made the statement and that she was unavailable at trial because she disappeared prior to trial. The court did, however, find a problem under the third step, concluding that

Turner did not use the word "bribe" and she didn't talk about exchanging "sexual favors" for the women's release from custody. Importantly, Andrews' counsel agreed with the trial court that Turner's statement was susceptible to more than one interpretation but continued to press his understanding of the statement. But if there are two possible interpretations of Turner's statement (and we find at least two interpretations possible here), one of which would subject Turner to criminal liability while the other would not, the necessary indicia of trustworthiness are absent. Indeed, statements against penal interest "are reliable, and therefore admissible, precisely insofar as they genuinely increase the declarant's exposure to criminal sanction." 

Really? According to the court(s), "[u]nder one interpretation, Turner and Keys were just 'trying to get the police officers in trouble' but, interpreted another way, Keys and Turner had attempted to bribe the officers." I don't disagree with this conclusion, but I do disagree with the result. It seems to me that however you construe a statement about "setting up" police officers, it is a statement that could subject the declarant to criminal liability, qualifying it as a statement against interest.

Moreover, even if the statement was susceptible to a meaning that did not subject Turner to criminal liability, wasn't it more susceptible to an interpretation that did? And if that was indeed the case, shouldn't that be enough to qualify the statement as a statement against interest?

-CM

Extortion Is The Key: Superior Court Of Pennsylvania Decides That Extension of Credit By Extortionate Means Is A Crime Of Dishonesty Or False Statement

Federal Rule of Evidence 609(a)(1) allows for the impeachment of criminal defendants through evidence of their felony convictions, even convictions not involving crimes of dishonesty or false statement, if their probative value outweighs their prejudicial effect to the accused. Pennsylvania Rule of Evidence 609 is more restrictive. It only allows for the impeachment of witnesses through evidence of convictions for crimes involving dishonesty or false statement, making it similar to Federal Rule of Evidence 609(a)(2). Because of this fact, in its recent opinion in Commonwealth v. Cascardo, 2009 WL 2767327 (Pa.Super. 2009), the Superior Court of Pennsylvania had to determine whether the extension of credit by extortionate means is a crime involving dishonesty or false statement. And it answered that question in the affirmative.

In Cascardo, Vincent Andrew Cascardo was convicted of first-degree murder, criminal conspiracy to commit first-degree murder and other related offenses. After Cascardo testified in his own defense at trial, the court allowed the prosecution to impeach him through evidence of his prior convictions for collection of extensions of credit by extortionate means  and tampering with a witness. On Cascardo's ensuing appeal, he claimed, inter alia, that these convictions were improperly admitted.

The Superior Court of Pennsylvania had an easier time with the witness tampering conviction, noting that "the offense, by definition, involves dishonesty directly affecting the administration of justice." It had a somewhat more difficult time with the conviction for extension of credit by extortionate means. The court first noted that theft by extortion is a crime involving dishonesty or false statement and noted that Cascrado did not dispute this point. Cascardo contended, however, that the extension of credit by extortionate means was not a crime of dishonesty or false statement because "there is no element of dishonesty or theft."  

The court, however, was able to turn this argument aside, noting that the key element making both theft by extortion and extension of credit by extortionate means crimes of dishonesty or false statement was the extortionate means, i.e., "any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person."

The court also noted that this latter conviction was more than ten years old, meaning that, under Pennsylvania Rule of Evidence 609(b), it only could have been admissible if its probative value substantially outweighed its prejudicial effect. Finding that Cascardo's conviction was highly prejudicial on his credibility as a witness, the court found that this balancing test had been satisfied and thus affirmed Cascardo's convictions.

-CM  

(Post) War Is Hell: Department Of Veterans Affairs Proposes Amendment To Make PTSD Claims By Veterans Easier To Prove

A big reason that I initially became interested in the law was the plight of my grandfather in the veterans affairs system. He came back from World War II and was diagnosed with multiple sclerosis. Thereafter, he was engaged in another battle for years, this one involving his attempts to get the disease classified as war-induced so that his wife would be provided for and his children and grandchildren would have the educational opportunites that he was not afforded. He was ultimately successful, and I owe a great deal of where I am today to his tenacity. Therefore, I am certainly in support of measures that make it easier for veterans to receive disability benefits, which is why I applaud the effort of the Department of Veterans Affairs to amend its adjudication regulations governing service connection for posttraumatic stress disorder (PTSD) by liberalizing in some cases the evidentiary standard for establishing the required in-service stressor.

Currently, to be approved for disability benefits for PTSD, veterans must provide evidence, such as eyewitness corroboration or other documentation, to prove that they witnessed or experienced a traumatic event linked to their military service. If the amendment is adopted, however, the VA would accept a veteran’s own testimony, without the need for any corroboration (A psychiatrist or psychologist would still need to confirm that the traumatic event is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the traumatic event). According to Brad Flohr, the VA’s assistant director for policy for compensation and pensions, “This will allow us to pay benefits much faster."  

The proposed change is aimed in large part at the many troops in the current wars whose jobs do not involve combat with the enemy but nonetheless may experience traumatic events that lead to PTSD, such as combat support personnel and health care providers. The summary to the proposed amendment notes,

This amendment takes into consideration the current scientific research studies relating PTSD to exposure to hostile military and terrorist actions. It is intended to acknowledge the inherently stressful nature of the places, types, and circumstances of service in which fear of hostile military or terrorist activities is ongoing. With this amendment, the evidentiary standard of establishing an in-service stressor would be reduced in these cases. This amendment is additionally intended to facilitate the timely VA processing of PTSD claims by simplifying the development and research procedures that apply to these claims.

You can access the amendment at Regulations.gov, which is also where the public can comment on the proposed amendment through October 23rd. You can also comment

by mail or hand-delivery to Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. (This is not a toll free number). Comments should indicate that they are submitted in response to `"RIN 2900-AN32--Stressor Determinations for Posttraumatic Stress Disorder."

-CM

Everybody's Watching CBS: Military Court Refuses To Recognize Reporter's Privilege In Haditha Massacre Appeal

All but two states have some type of reporter's privilege. Similarly, most federal courts have recognized some type of reporter's privilege as well. But what about military courts? Well, to this point, they haven't recognized a reporter's privilege, and that did not change with the recent opinion of the United States Navy-Marine Corps of Criminal Appeals in United States v. Wuterich, 2009 WL 2730890 (N.M.Ct.Crim.App. 2009). Reading between the lines of that opinion, however, I think that it is inevitable that military courts will eventually recognize some type of reporter's privilege.

In Wuterich, U.S. Marine Corps. Staff Sergeant Frank Wuterich was charged with dereliction of duty, voluntary manslaughter, aggravated assault, reckless endangerment, and obstruction of justice based upon his alleged actions during combat operations at or near Haditha, Iraq, on November 19, 2005, following an improvised explosive device attack on his miliray convoy. Those alleged actions included killing or participating in the killing of 24 civilian men, women, and children. 

Wuterich and others were interviewed for a 60 Minutes story regarding the incident, and the government later issued a subpoena to CBS seeking all of the recorded material from the 60 Minutes interview, including the "outtakes." CBS produced the broadcast segment of the 60 Minutes story but moved to quash the subpoena to the extent that it included the background interview “outtakes” which had not been broadcast.

After a lot of legal wrangling, the military judge eventually held

that a qualified reporter's privilege applied to military courts-martial, and that this privilege protected the outtakes from Government subpoenas....The military judge went on to articulate that, in order to overcome this privilege, the Government must demonstrate the material sought by the subpoena is highly material and relevant, necessary or critical to the Government's case, and not obtainable from other sources...Applying this test..., the military judge concluded that, although highly material and relevant, the DVDs [containing outtakes] were not critical to the Government's case, because they contain information already represented in statements possessed by the Government.

This ruling prompted the Government's appeal to the United States Navy-Marine Corps of Criminal Appeals. That court began by noting that under Military Rule of Evidence 501(a)(1), "[a] person may not claim a privilege with respect to any matter except as required by or provided for in ... [t]he Constitution of the United States as applied to members of the armed forces," And, according to the court, bcause the Supreme Court refused to recognize a broad, constitutionally based reporter's privilege in Branzburg v. Hayes, 408 U.S. 665 (1972), there could be no reporter's privilege under Military Rule of Evidence 501(a)(1).

This left the court with Military Rul of Evidence 501(a)(4), which allows military courts to recognize privileges "commonly recognized in the federal criminal courts." And, as noted, most federal courts have recognized some version of the reporter's privilege. The problem for CBS, however, was that not enough federal courts have recognized the right version of the privilege for its purposes.

According to the court,

Recognition of a reporter's privilege in the criminal context, however, has most often been in cases of confidential sources or material....Such a privilege is much less often found to apply as against the subpoena of non-confidential sources or material. Indeed, only four Circuit Courts of Appeal have recognized a “reporter's privilege” in criminal cases involving non-confidential material: the First, Second, Third, and Eleventh Circuits....

While the Ninth Circuit and the District of Columbia Circuit have also applied the reporter's privilege in the criminal context, it has been limited to cases involving confidential material....Meanwhile, the Fourth, Fifth, Sixth, and Seventh Circuits have all rejected application of the reporter's privilege in criminal cases when non-confidential material is at stake....Lastly, the existence and applicability of the reporter's privilege in criminal cases involving non-confidential material remains unresolved in the Eighth and Tenth Circuit.

Therefore, based upon the "'substantial controversy,' over the legitimacy and parameters of the reporter's privilege in the federal courts," the court refused to recognize a reporter's privilege for military courts, leading to reversal of the military judge's order. Reading between the lines of the opinion, though, it seems clear that the identified controversy is not over whether a reporter's privilege exists but over whether it applies to non-confidential sources, such as the sources in Wuterich. Thus, given a case with a confidential source, I would expect the military courts to recognize a reporter's privilege.

-CM

Rescue 911: Appeals Court Of Massachusetts Finds 911 Call To Be Nontestimonial, Admissible

Under what circumstances can a 911 call made by a non-testifying declarant be admissible against a criminal defendant despite his Sixth Amendment rights under the Confrontation Clause? It is a question that has received inconsistent answers by courts since the Supreme Court's opinion in Davis v. Washington, 541 U.S. 36 (2004). But I think that the Appeals Court of Massachusetts did a good job of answering it in its recent opinion in Commonwealth v. Beatrice, 2009 WL 2634772 (Mass.App.Ct. 2009).

In Beatrice, the victim entered the bathroom of a place that she shared with her boyfriend, Joseph Beatrice, to get a cigarette. When he refused to give her one, the two got into a heated argument, with Beatrice punching the victim in the eye and the victim scratching his face. The victim then went to a bedroom, and Beatrice eventually followed her, with the argument continuing. The victim then wanted to leave the bedroom, but Beatrice would not let her; she was, however, able to escape and run to a neighbor's house.

There, she made a 911 call, and

[d]uring the call, she was out of breath and frantic. She immediately told the dispatcher, "I'm using my neighbor's phone. I live at [address]. My boyfriend just beat me up. He beat the shit out of me. I need a cruiser."The dispatcher then asked for her boyfriend's name, and the victim responded, "Joseph Beatrice." Next, the dispatcher asked if the defendant was still in her apartment, to which the victim responded, "He's still there," followed by something inaudible. Finally, the dispatcher asked if the victim needed an ambulance, and the victim responded "Umm. Please. And I, I need you to send the cops now before he leaves."

This 911 call was later instrumental at the trial leading to Beatrice's conviction for assault and battery, and its admission formed part of the basis for his subsequent appeal. Beatrice first argued that the the 911 call was inadmissible hearsay, but the Appeals Court of Massachusetts easily found that the call was an excited utterance because, "[d]uring the 911 call, the victim was frantic and out of breath, and said that the altercation had 'just' happened."   

Beatrice next argued that the 911 call was inadmissible against him based upon the Confrontation Clause, because the call failed to qualify as nontestimonial under Davis v. Washington because its primary purpose was not "to enable police assistance to meet an ongoing emergency." The Appeals Court of Massachusetts again disagreed, noting that

To determine the primary purpose of the interrogation, we consider the factors set out in Davis v. Washington: "(1) whether the 911 caller was speaking about 'events as they were actually happening rather than describ[ing] past events'; (2) whether any reasonable listener would recognize that the caller was facing an 'ongoing emergency'; (3) whether what was asked and answered was, viewed objectively, 'necessary to be able to resolve the present emergency, rather than simply to learn ... what had happened in the past,' including whether it was necessary for the dispatcher to know the identity of the alleged perpetrator; and (4) the 'level of formality' of the interview (emphasis in original)." 

Applying these factors, the court found that 911 call was nontestimonial

but rather were made during an emergency and were nontestimonial. The victim's demeanor on the tape recording-she was out of breath and frantic-and her statement that the defendant had "just" beaten her up indicated that the assault had taken place only moments earlier. The emergency was also ongoing. In the call, the victim told the dispatcher that the defendant was still in the apartment. In addition, she responded affirmatively when the dispatcher asked if she needed an ambulance.

In so doing, the court rejected Beatrice's argument that there was no ongoing emergency because the victim called from her neighbor's house, finding that 

Although the victim was able to flee to a neighbor's house to use the phone, the defendant was still present at the scene. Consequently, the victim could have reasonably feared that the defendant might pursue her and that she could not safely return to her own apartment. The victim was also in need of medical attention. An ongoing emergency may still exist even though the victim and the assailant are physically separated at the time the 911 call is made.

-CM

Requiem For Admission: Supreme Court Of New Hampshire Finds Evidence Of Defendant's Drug Addiction Admissible To Prove Motive To Steal

Like its federal counterpart, New Hampshire Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In its recent opinion in State v. Costello, the Supreme Court of New Hampshire had to answer of question of first impression under this Rule: Is evidence of a defendant's drug addicition admissible to prove a motive to steal?

In Costello, Kurt Costello was charged with burglary, and the trial court allowed the prosecution to introduce evidence that Costello was a heroin addict and unemployed, giving him a motive to steal. After Costello was convicted, he appealed, claiming, inter alia, that this evidence was improperly admitted, and his appeal eventually reached the Supreme Court of New Hampshire. That court noted that the issue of "[w]hether a defendant's drug addiction is relevant to show motive to steal is an issue of first impression," with courts in other jursidictions addressing the issue being "divided." 

The New Hampshire Supremes then sided with those courts allowing admission but not before noting that there would be some cases in which evidence of a defendant's drug addication would not be admissible to prove motive. According to the court,

Where the State seeks to introduce drug addiction without first establishing a defendant's identity as the culprit, his drug addiction has no relevance or probative value as to the motive of an otherwise unknown culprit. In other words, without a sufficient identification of the defendant as the intruder, the necessary chain of reasoning breaks and we need not reach the relationship between drug addiction and motive. In the absence of some identification of the defendant as the intruder, his heroin addiction, though introduced to show motive, would necessarily fill in the missing logical gaps that Rule404(b) requires a prosecutor to fill.

This was not, however, an issue in Costello because, inter alia, an occupant of the home that was burglarized identified Costello as the perpetrator, and "the State was able to introduce strong circumstantial evidence identifying the defendant as the perpetrator."   

The court then noted that even those courts allowing for the admission of drug addiction to prove motive to steal required prosecutors to "establish a nexus between the defendant's financial motive to commit the theft offense and his ongoing need to purchase drugs to satisfy his addiction." The court found no problem on this front as well, concluding that

In this case, there was evidence that in July 2006, the defendant had a heroin “habit” and was a “junkie,” which was sufficient to establish the first foundational requirement. There was also evidence that in July 2006, the defendant had recently lost his job and was “usually broke,” which was sufficient to establish the second foundational requirement.  

Thus, after finding that the probative value evidence of Costello's drug addiction was not substantially outweighed by the danger of unfair prejudice, the New Hampshire Supremes found no error in its admission.

-CM

Credible Witness?: Court Of Criminal Appeals Of Alabama Makes Seemingly Erroneous Rule 704 Ruling

Alabama Rule of Evidence 704 provides that

Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.  

Under this Rule, it is well established that "the credibility of a witness is a question solely for the jury's determination.” So, how could the Court of Criminal Appeals of Alabama explain its recent opinion in Foster v State, 2009 WL 2657615 (Ala.Crim.App. 2009)? The answer: It didn't.

In doing a Westlaw search for "Rule 704," I came upon 2009 WL 2657615, the dissenting opinion in Foster v. State. That dissenting opinion indicated that the conviction of the defendant, Travis Jay Foster, was "AFFIRMED BY UNPUBLISHED MEMORANDUM." It also laid out some of the details of Foster's trial and the basis for his appeal.

Apparently, Foster was accused of raping the victim, and Investigator Fred Sharp testified that the victim told her that Foster raped her and also rendered the following testimony:

"Q. [Prosecutor] Sir, I believe you had told us earlier you did interview [the victim] in this case, correct?

"A. [Inv. Sharp] Yes, sir, I did.

"Q. You did do what you classify as a forensic interview; is that correct?

"A. Yes.

"Q. You did look for those characteristics and things you've been taught in your training and experience to look for in determining whether a disclosure's credible or not; is that correct?

"A. Yes, sir.

Q. Based upon your forensic interview with [the victim], were you able to make a determination as to whether you felt that her disclosure was credible or not?

“A. Yes, sir, I was.

“Q. What was that?

"[Defense counsel]: Objection, Your Honor, same as stated previously. FN1

FN1 Foster had previously objected on grounds that Investigator Sharp's proposed testimony, vouching for the credibility of the victim, would invade the province of the jury and would violate the ultimate-issue rule. (R. 139-44.)

“THE COURT: I understand. Overruled.

“Q. What was that determination?

“A. I believe that [the victim] was credible in her disclosure.” 

According to the dissenting judge, this testimony should have been deemed inadmissible under Alabama Rule of Evidence 704 because "the credibility of a witness is a question solely for the jury's determination.” 

That judge indicated, however, that the majority reached the opposite conclusion by relying upon the court's previous opinion in Sanders v. State, 986 So.2d 1230 (Ala.Crim.App.2005). In Sanders, however, the court had found no problem with a forensic investigator's testimony that the victim was raped because "the ultimate issue...is whether the defendant had sexually abused the child, not whether the child had in fact been sexually abused." Conversely, in Foster, Sharp testified that the victim's disclosure that Foster had raped her was credible, which did go to the ultimate issue, albeit indirectly.

But just because Sharp's testimony did so indirectly did not make it admissible. In another part of Sanders, the court found that the trial court committed error (albeit harmless error) by allowing the defendant's ex-wife to testify that the victim's allegation that the defendant raped her was credible. The reason? The same reason used by the dissenting judge in Foster: The credibility of a witness is solely for the jury's determination.

-CM