September 12, 2009
Make Me Whole: Supreme Court Of Minnesota Opinion Reveals Odd "Whole Person" Analysis Under Felony Impeachment Rule
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect.
Like most other courts, Minnesota courts balance probative value and prejudicial effect by considering five factors, with the first of those factors being the impeachment value of the prior conviction. Under this factors, courts look at how much bearing the prior crime(s) leading to the witness' prior conviction(s) has on his (dis)honesty as a witness, with certain crimes, such as crimes as violence, having low impeachment value, and other crimes, such as larceny, having high impeachment value. In other words, in a given case, based upon the nature of a witness' prior crimes/convictions, factor one could weigh in favor of admission or against it. Then, there is Minnesota's "whole person" approach.
In State v. Williams, 2009 WL 2778203 (Minn. 2009), Antoine Delany Williams was convicted of first-degree assault, second-degree assault, and possession of a firearm by a felon. The district judge had ruled that if Williams testified, the prosecution could have impeached him through evidence of his two prior drug-related felony convictions, and WIlliams chose not to testify at his trial. But he did later appeal, claiming, inter alia, that this ruling was erroneous.
The Supreme Court of Minnesota disagreed, and in turn, I disagree with the court's analysis under the first factor. According to the court,
Appellant argues that the first factor, which considers the impeachment value of the prior crime, favors the exclusion of the evidence. In State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979), we observed that impeachment by prior crime aids the jury by permitting it to see the "whole person" of the testifying witness and therefore to better judge the truth of his testimony....Here, the district court applied the “whole person” test and determined that the first Jones factor “slightly favored” admissibility of the prior convictions because the prior convictions would help the jury see appellant's “whole person.” We conclude that the district court did not abuse its discretion when it made this determination.
The court also noted that Williams claimed that the "whole person" test should be reconsidered because district courts will admit prior conviction evidence merely because it may enlighten the jury about the defendant's past, without regard for any prejudice the evidence might create for the defendant." In other words, Williams asked the court "to abrogate the 'whole person' test and convert the first...factor into a balancing test between prejudicial impact and probative value." The court, however,
decline[d] the invitation for two reasons. First, appellant provide[d] no persuasive reason to abrogate the 'whole person' test. The underlying rationale of the 'whole person' test is that it allows the jury to see the “whole person” of the testifying witness to better evaluate the truth or falsity of the testimony. We believe that the rationale for the test expressed in Brouillette is sound and see no reason to change the test. Second, Rule 609 requires that the court determine that 'the probative value of [impeachment] evidence outweighs its prejudicial effect' before admitting such evidence. Thus, the rule already provides the necessary safeguards requested by appellant.
But does it? Frankly, I'm a bit baffled by the "test" that Minnesota courts apply. Doesn't any conviction help the jury to get a better sense of the "whole person" of a witness? It seems to me that the point that Williams was making was that Minnesota courts should closely consider how much bearing a prior crime/conviction has on a witness' (dis)honesty rather than reaching the general conclusion that the first factor favors admission because a prior crime/conviction helps the jury see the "whole person." I simply don't see any teeth in Minnesota's test and how it could ever work against admission.
September 11, 2009
Identity: Court Of Appeals Of Texas, San Antonio, Finds Rule 803(4) Covers Statements Of Identification By Child Declarants
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
One day while Little was sexually assaulting S.E., her cousins knocked on the door of Welch's home. S.E. put on her shirt to answer the door, but buttoned her shirt incorrectly. Her cousins left, then came back and told S.E. she needed to go with them to her aunt's house. When she got there, her aunt and cousins confronted her about what was going on; S.E. told them what was happening. Her aunt called the police. After S.E. spoke with police, she was taken to the hospital and examined by a Sexual Assault Nurse Examiner (SANE).
S.E. discussed the details of the sexual assaults with the SANE, Betty Mercer, who later read to the jury statements made by S.E. about the assaults, including statements identifying Little as the assailant. After Little was convicted, he appealed claiming, inter alia, that statements of identification are inadmissible under Texas Rule of Evidence 803(4). The court disagreed, noting that it had recently held that
Statements by a suspected victim of child abuse about the cause and source of the child's injuries are admissible under an exception to the rule against hearsay pursuant to Texas Rule of Evidence 803(4), which provides an exception to the hearsay rule for '[s]tatements made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.' To qualify for this exception, the suspected child abuse victim must understand the importance of being truthful with medical personnel. Courts should therefore consider whether the child had an appreciation for why the statements were made when determining the applicability of this hearsay exception.
In response, Little argued that there was "no evidence S.E. understood the importance of being truthful when describing the sexual assaults to Mercer, and consequently the statements served only to bolster S.E.'s testimony." The court again disagreed, finding that
The record shows that when S.E. met with medical personnel following her outcry, she acknowledged she was there "because of Leon....he raped [S.E.]." She also acknowledged to Mercer that Leon told S.E. "he was going to get [her] protection because he did not want to go to jail by...getting [S.E.] pregnant." Additionally, S.E. testified she had been afraid to tell anyone about the abuse because she knew her father would blame her and hit her when he found out; nevertheless, she made the decision to talk to her family and Mercer about the sexual assaults. The examination took place in a hospital, Mercer identified herself as a nurse, and Mercer believed she told S.E. that she was there for diagnosis and treatment. Reviewing the entire record, we conclude the evidence is sufficient to support a finding that S.E., who was thirteen at the time of the assaults, understood the need to be truthful.
September 10, 2009
Justice City, USA's List Of The Top 50 Criminal Justice Blogs
General Criminal Justice Blogs
Police, Detective and Forensic Science Blogs
Judges and Courts Blogs
Sentencing and Corrections Blogs
Federal Criminal Blogs
Individual Rights Blogs
Criminal Psychology Blogs
Law Student Blogs
The Myth Of Fingerprints, Take 4: Federal Judge Finds Fingerprint Evidence Admissible In Brian Keith Rose Murder Trial
I've written three previous posts (here, here, and here) about a decision by a Baltimore County judge who ruled that fingerprint evidence failed the Frye test in the murder trial of Brian Keith Rose. In my last post, I noted how, after this ruling, state prosecutors handed the case over to federal prosecutors, with the head of the Montgomery County public defender's office hoping that the federal authorities would respect that decision by the state judge.
They didn't. The prosecutors in the federal case against Rose moved for the admission of fingerprint evidence against him, and on Tuesday, the federal judge hearing the case found contrary to the Baltimore County judge and deemed the evidence admissible. When I get my hands on a copy of the opinion, I will post another entry on the case.
September 9, 2009
Automatic For The People: Supreme Court Of Kentucky Adopts The Automatic Companion Rule
In its recent opinion in Owens v. Commonwealth, 2009 WL 2705890 (Ky. 2009), the Supreme Court of Kentucky had to resolve a question of first impression in Kentucky: May an officer conduct a pat-down search for weapons of a passenger of a vehicle when the driver has been arrested and the driver possessed illegal narcotics even if there is no independent suspicion that the passenger is guilty of criminal conduct? And the court answered the question in the affirmative by adopting the automatic companion rule.
In Owens, an officer stopped a vehicle driven by Chris Thornton based upon reasonable suspicion that his driver's license had been suspended. The officer's suspicion turned out to be correct, leading him to arrest Thornton and search him incident to that lawful arrest. That search uncovered a suspected crack pipe.
Thereafter, without reasonable suspicion, the officer conducted a pat-down search of Keith Owens, a passenger in Thornton's vehicle. That search uncovered, inter alia, marijuana, and Owens was later charged with, and convicted of, possession of marijuana, first-degree possession of a controlled substance, and being a first-degree persistent felony offender.
Owens thereafter appealed, claiming that the officer's search of him was unconstitutional, and the Supreme Court of Kentucky noted that
Two schools of thought have emerged around this subject. One, known as the automatic companion rule, holds that "[a]ll companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory 'pat-down' reasonably necessary to give assurance that they are unarmed." Numerous state and federal courts have either expressly adopted the automatic companion rule or have issued decisions that seem to follow its contours. The other school of thought, also used by several courts, is the totality of the circumstances rule, in which the propriety of the frisk is determined considering the totality of the circumstances. Some courts that have rejected the automatic companion rule appear to believe that it improperly creates a guilt-by-association scenario and obliterates the requirement that an officer have a particularized, reasonable, articulable suspicion that a person is engaging in criminal activity or is dangerous before subjecting that person to a frisk.
The court decided to go with the former school of thought, concluding,
We find it illogical that rejecting the automatic companion rule would lead to scenarios whereby an officer could search a vehicle incident to an arrest of the driver, which necessitates removing any passengers from the vehicle, but could not take the additional protective step of conducting a Terry pat-down for weapons of those passengers (unless the officer had independent reasons to suspect the passengers of being dangerous or of being involved in criminal activity). Limiting the right to a make a protective search would increase the chances that an officer could be harmed by a passenger who had been carrying a concealed weapon.
I disagree with this conclusion because I don't see how rejecting the automatic companion rule is illogical. As far as I know, with the exception of the frisks authorized by the automatic companion rile, every frisk of someone besides an arrestee requires some level of suspicion. To me, it seems illogical not to require any suspicion before an officer can search a companion. The court did later attempt to explain its logic by holding that
This "compelling" concern for officer safety is magnified by the fact that this case, like so many others, involves illegal narcotics, thereby bringing into play "[t]he indisputable nexus between drugs and guns[, which] presumptively creates a reasonable suspicion of danger to the officer." Indeed, even the United States Supreme Court has recognized the safety of officers as a matter of paramount importance. And given the small space inside a vehicle and the general presumption that one voluntarily chooses one's traveling companions for the furtherance of a common goal or mission, it would be unreasonable and dangerous for an officer not to be concerned about his or her safety with regard to the passengers of a vehicle after the driver has been arrested.
I think that this makes some sense, but I am not sure that it is enough to justify the automatic companion rule. What I am sure about, though, is that the court was later dead wrong in finding that
adoption of the automatic companion rule provides needed bright line guidance to the bench, bar, law enforcement community, and citizens across the Commonwealth as to what is constitutionally permissible in cases such as the one at hand. The United States Supreme Court, along with commentators, has endorsed bright line rules in dealing with other Fourth Amendment concerns.
The court's support for this claim was the Supreme Court's opinion in New York v. Belton, 453 U.S. 454 (1981). Of course, as readers know, in Arizona v. Gant, the Supreme Court recently rejected the bright line rule that Belton created, making the Supreme Court of Kentucky's opinion much less defensible.
September 8, 2009
2009 Legal Educator Blog Census, Version 2.0 (Blog/Blogger Statistics)
368 male blogger220 female bloggers
1st Tier: 228 bloggers2nd Tier: 156 bloggers3rd Tier: 78 bloggers4th Tier: 107 bloggersUnranked: 19 bloggers
University of Houston Law Center
2009 Legal Educator Blog Census, Version 2.0 (New Blogs/Bloggers)
2009 Legal Educator Blog Census, Version 2.0 (Alphabetical Blog Listing)
This in an alphabetical listing of every legal educator blog. For blogs posted upon by educators at law schools starting with the letters A-M, click here. For blogs posted upon by educators at law schools starting with the letters N-Z, click here. For statistics I compiled regarding the census, you can click here.
2009 Legal Educator Blog Census, Version 2.0 (Schools N-Z)
2009 Legal Educator Blog Census, Version 2.0 (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