EvidenceProf Blog

I Need A Remedy: SDNY Finds That Change In Employment Practice Constitutes Subsequent Remedial Measure

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Usually, this rule applies when an instrumentality causes an injury and the defendant subsequently makes the instrumentality safer. For instance, if a patron falls on the front steps at a restaurant, evidence that the restaurant subsequent changed the lighting or added a handrail to the steps would be inadmissible under the rule. And if a child chokes on a toy, evidence that the manufacturer subsequently made the toy bigger would be inadmissible under the rule. As the recent opinion of the United States District Court for the Southern District of New York in Hamilton v. City of New York, 2009 WL 2973007 (S.D.N.Y. 2009), makes clear, however, the rule also applies to changes to allegedly discriminatory hiring practices.

In Hamilton, the plaintiffs were four current and former employees of the NYPD Crime Laboratory who claimed they were discriminated against based on their race and national origin and, as to two of the four, gender. These plaintiffs claimed they were denied promotions and demoted while promotions were given to less qualified Caucasian males who were born in the United States. Specifically, these plaintiffs alleged, inter alia, that when two new Criminalist IV positions were created, employees were not notified that they could apply for these positions, nor were interviews conducted. Instead, their supervisor merely offered these positions to Caucasian males and did not consider seniority in choosing candidates for promotion.

In support of their claims, the plaintiffs sought to present evidence that, "after the 2005 promotions, defendants changed their practices, and began posting new positions so that any interested applicant could apply, which plaintiffs argue is evidence that defendants knew their previous practices were discriminatory and unfair." The court, however, found that this evidence was inadmissible because it constituted a subsequent remedial measure under Federal Rule of Evidence 407. As support for this conclusion, the court relied upon two prior opinions that had similarly found that changes in employment practices after alleged discrimination are inadmissible under the rule because they constitute subsequent remedial measures.

-CM

Lie To Me: Colorado Supreme Court Denies Cert in Rule 703/Polygraph Case

Recently, in People ex rel. M.M., Jr. v. M.M., 2009 WL 2917036 (Colo. 2009), the Colrado Supreme Court denied a petition for writ of certiorari from People ex rel. M.M., Jr., 2009 WL 1012910(Colo.App. 2009), but a dissenting justice would have granted cert on, inter alia, the following issue:

Whether the court of appeals incorrectly applied Colorado Rule of Evidence 703 in holding that expert testimony about opinions based in part upon the results of polygraph examinations should not be admitted.

This seemed interestingto me, so I went back to the opinion of the Colorado Court of Appeals, Division III, and I'm think that I disagree with the Court of Appeals' reasoning.

In M.M., Jr., M.M. appealed from the judgment terminating the parent-child legal relationship between him and his son, M.M., Jr., and daughter, A.M. That judgment came after, inter alia, expert witnesses such as a therapist and a case worker testified that efforts to reunite the family should be terminated in part because M.M. failed polygraph questions asking whether he had abused his children. The Colorado Court of Appeals, Division III found that polygraph test results are generally inadmissible and that the issue of whether the experts' testimony made in reliance upon those results was admissible was governed by Colorado Rule of Evidence 703, which states that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert¹s opinion substantially outweighs their prejudicial effect.

The court then cautioned, however, that

expert testimony must be grounded in the methods and procedures of science, not on a subjective belief or unsupported speculation....Expert testimony must be reliable, which requires that the scientific principles used by the expert be reasonably reliable and that the expert is qualified to opine on the matters....Testimony lacking an analytically sound basis is speculative opinion testimony which is unreliable and inadmissible....A court determines the reliability of a scientific method by considering the totality of the circumstances....However, when, as here, the underlying basis for the expert opinions and recommendations is not accepted as reliable by the courts, the expert's testimony itself is inadmissible.  

I don't think that I agree with this reasoning. Under Rule 703, the facts or data underlying an expert merely need to be of a type reasonably relied upon by experts in their particular field, not those reasonably relied upon by the courts. After all, if the facts or data underlying an expert's testimony needed to be of a type reasonably relied upon by the courts, how could Rule 703 allow for experts to rely upon inadmissible facts and data?

Moreover, therapists as well as the government and private investigators frequently use polygraph tests. Now, is this enough to establish reasonable reliance? I'm not sure, but it is a question that I would have liked to have seen the Colorado Supremes address.

-CM

Finding Consistency: Arizona Case Provides Good Example Of Prior Consistent Statement Rule

Like its federal counterpart, Arizona Rule of Evidence 801(d)(1)(B) indicates that

[a] statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

And the recent opinion of the Arizona Court of Appeals, Division 2 in State v. Georgatos, 2009 WL 2883059 (Ariz.App. Div. 2 2009), provides a good example of when the rule applies.

In Georgatos, Thomas Georgatos was convicted of three counts, each of involving a minor in a drug offense and sexual conduct with a minor under the age of fifteen, based upon the following facts adduced at trial:

On January 1, 2007, seventeen-year-old D. and her friends L. and T., both fourteen years old at the time, went with Georgatos and another man to a hotel room, where Georgatos gave them methamphetamine. After the group smoked the methamphetamine, D. left the hotel room with the other man. L. and T. stayed behind with Georgatos and, except for a trip to a gas station, L. and T. remained at the hotel for approximately the next twenty-four hours. While there, they ingested more drugs Georgatos had given them and, according to the girls, Georgatos had sexual contact with each of them.

Some of these facts came from the testimony of L, whom initially had denied sexual contact with Georgatos in interviews with police in January 2007. Defense counsel sought to discredit L. though these denials and by asserting that L. had first claimed sexual contact with Georgatos "[e]ight, nine, ten months" after the incident. Specifically, defense counsel speculated she had lied about the contact because she was "not getting enough attention in this whole thing."

The problem for Georgatos in this regard was that L. had actually told her mother in January 2007 that she had sexual contact with Georgatos.  Therefore, because defense counsel had raised a charge against L. of recent fabrication or improper influence or motive, the prosecution was able to respond by admitting L.'s statements to her mother pursuant to Arizona Rule of Evidence 801(d)(1)(B).  

-CM

My New Essay: Crossing Over: Why Attorneys (And Judges) Should Not Be Able To Cross-Examine Witnesses Regarding Their Immigration Statuses For Impeachment Purposes

Last December, I posted an entry about the Eighth Circuit finding that a district judge did not commit plain error by extensively interrogating defense witnesses about their immigrations statuses. In January, I followed up on that post with an entry about the United States District Court for the Southern District of New York similarly finding that a civil plaintiff could be cross-examined regarding his immigration status. At the time, I noted that I thought that the judges had reached the wrong conclusions. I decided to follow up that posts with an essay, which became Crossing Over: Why Attorneys (and Judges) Should Not Be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes. The final version of the essay will be published in the Northwestern University Law Review Colloquy in November, and you can download my initial draft now on SSRN. Here is the abstract for the essay:

In two recent opinions, courts authorized the impeachment of witnesses through cross-examination regarding their immigration statuses. They allowed such impeachment pursuant to Federal Rule of Evidence 608(b), which only permits specific act impeachment if based upon acts that are directly probative of (un)truthfulness. This essay argues that immigration status is an improper subject for impeachment because it is most akin to trespassing, which is not an impeachable offense under Rule 608, and fundamentally dissimilar from the acts related to crimen falsi, which are generally the only impeachable offenses under the Rule.

Moreover, even if immigration status were an impeachable offense under Rule 608, courts should foreclose immigration interrogation for impeachment purposes because of its capacity to divide and prejudice jurors and discourage illegal aliens from bringing legitimate lawsuits for fear of being deported. Finally, if an attorney seeks to impeach a witness based upon his alleged commission of some crime, such as fraudulently obtaining documentation, and not simply based upon his immigration status, that witness should be able to invoke his Fifth Amendment privilege against self-incrimination.  

-CM 

Rape Shield Redux: Supreme Court Of Nevada Finds Rule 26 Applies Where Rape Shield Law Doesn't

Unlike its federal counterpart, NRS 50.090 -- Nevada's rape shield law -- only applies in criminal cases. Does that mean, however, that judges in civil cases are precluded from precluding discovery regarding a civil plaintiff's sexual history? According to the recent opinion of the Supreme Court of Nevada in Sonia F. v. Eighth Judicial Dist. Court, 2009 WL 2900770 (Nev. 2009), the answer is "no."

In Sonia F., Sonia F. the guardian ad litem for fourteen year-old J.M., filed a civil complaint against Amir Ahmad,

alleging various causes of action, all of which stem[med] from Ahmad's alleged rape of J.M. Specifically, Sonia F. claim[ed] that on the morning of July 5, 2006, Ahmad, who was 20 years old, forcibly raped her 14-year-old daughter, J.M., in Ahmad's parent's home. As a result of Ahmad's conduct, Sonia F. allege[d] that J.M. suffered and continues to suffer physical, emotional, and mental harm. Ahmad admit[ted] having sexual intercourse with J.M. but contend[ed] that it was consensual.

Ahmad thereafter filed a motion to compel J.M. to submit to an independent medical examination which would have involved questions about J.M.'s sexual history. Sonia F. responded by moving for a protective order, but the district court found that such questioning could proceed, prompting Sonia F. to file an emergency petition to the Supreme Court of Nevada seeking clarification of Nevada's rape shield law to civil cases.

The problem for Sonia F. was that the court found that NRS 50.090 plainly and unambiguously "applies to criminal prosecutions but not to civil trials." And the Supreme Court of Nevada "defer[red] to the Legislature to determine whether the public policy underlying the criminal rape shield law should be extended to include civil cases."

But that wasn't the end of the court's analysis. Instead, the court stated,

Nevertheless, in civil sexual assault cases, we conclude that discovery should not be unlimited. Rather, the district court should use its sound discretion to determine whether the discovery sought is consistent with NRCP 26(b)(1), which provides that inquiries must be relevant and "reasonably calculated to lead to the discovery of admissible evidence."

The court then suggested that the district court on remand could grant Sonia F.'s protective order, identifying D.S. v. Depaul Institute, 32 Pa. D. & C. 4th 328 (Ct.Com.Pl. 1996), as instructive on the issue. According to the Nevada Supremes,

Although the DePaul court concluded that Pennsylvania's criminal rape shield law did not apply in civil cases, it determined that discovery of a plaintiff's entire sexual history in a civil action was inappropriate....The court differentiated between the plaintiff's history of consensual sexual relationships from history of traumatic experiences,...and thereafter emphasized that while consensual relationships may impact a person's emotions, "[t]he law should not force plaintiffs...to disclose their entire [consensual] sexual...histories whenever they claim that they have sustained psychiatric problems from a traumatic event.

The court did "not adopt a steadfast rule related to discovery in all civil proceedings for sexual assault," but it did "stress that a district court has the broad discretion under NRCP 26 to determine, on a case-by-case basis, whether an alleged sexual assault victim's sexual history is discoverable." I think that this is the right analysis and hope that, at a minimum, other states with rape shield laws that only apply in criminal cases adopt a similar analysis.

-CM

Requiem For Residuum: Court Of Appeals Of Utah Finds Ruling Against Nurse Didn't Violate Residuum Rule

It is well established that rules of evidence do not apply at administrative proceedings. That is not to say, however, that such rules are irrelevant at such proceedings. For instance, hearsay is admissible at administrative proceedings, but under the residuum rule, factual findings at such a hearing cannot be exclusively based on inadmissible hearsay, as was made clear by the recent opinion of the Court of Appeals of Utah in Benitez v. Department of Health, Div. of Health Care Financing, 2009 WL 2902518 (Utah.App. 2009).

In Benitez, the Department of Health, Division of Health Care Financing conducted a formal hearing regarding allegations that Ruben Benitez, while working as a certified nursing assistant (CNA), had sexually abused a patient, N.M. After that hearing, at which the only evidence presented against Benitez were N.M.'s allegations, the Department concluded that the allegations were substantiated, and a negative finding for Benitez was placed on the state Nurse Aide Registry, which effectively precluded him from working as a CNA in Utah.

Benitez thereafter appealed, claiming that if the court set aside all hearsay evidence that was presented at the hearing, there was no residuum of evidence remaining to support the decision made by the Department. The Court of Appeals of Utah agreed with Benitez's construction of the residuum rule, but it did not agree that N.M.'s allegations were inadmissible hearsay. Instead, the court found that N.M.'s allegations were admissible as excited utterances pursuant to Utah Rule of Evidence 803(2), which 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.

In deeming Benitez's allegations to be excited utterances, the court focused on such facts as the startling nature of sexual abuse and the fact that N.M. made her allegations no more than an hour and a half after the alleged abuse. Thus, because the allegations were admissible, there was no problem under the residuum rule.

-CM

Welcome To The Blogosphere, (Relaunched) Civil Procedure & Federal Courts Blog

Last Wednesday marked the relaunch of the renamed Civil Procedure & Federal Courts Blog. The blog, which used to be run by W. Jeremy Counseller and Rory Ryan of Baylor, is now being run by

-Robin Effron (Event Jurisdiction and Protective Coordination: Lessons from the September 11th Litigation, Disaster-Specific Mechanisms for Consolidation) of Brooklyn;

-Cynthia L. Fountaine (Have License, Will Travel:  An Analysis of the New ABA Multijurisdictional Practice Rules, 81 WASHINGTON UNIVERSITY LAW QUARTERLY 737 (2003), Article III and the Adequate and Independent State Grounds Doctrine, 48 AMERICAN UNIVERSITY LAW REVIEW 1053 (1999)) of Texas Wesleyan; and

-Adam Steinman (The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy, What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?)) of Cincinnati.

In the first post on the relaunched blog, the authors state:

Hello, and welcome to the renovated Civil Procedure & Federal Courts Blog on the Law Professor Blogs Network. There have been a number of changes recently, the most large-fonted of which is the addition of "& Federal Courts" to our name. This expansion recognizes the often blurry line between civil procedure issues and federal courts/federal jurisdiction issues, for both academics and practitioners. But the new name does not mean we'll be covering only federal civil procedure. We're interested in civil procedure in all its forms--state, federal, foreign, transnational.

We hope you find the Civil Procedure & Federal Courts Blog to be a valuable resource. And if readers come across bloggable developments that we've missed, please feel free to let any (or all) of us know; our contact info appears at the left. Folks who are interested in guest blogging are also encouraged to contact us.

Enjoy!  

I'm sure that we can expect a number of terrifics posts from these knowledgeable folks that will be helpful to litigants, judges, students, and professors like me who teach civil procedure. Indeed, there are already interesting posts on the blog concerning recent Ninth Circuit preemption opinions, Iqbal, and military commission trials.

-CM

The Sleeping Juror: Eastern District Of California Denies Habeas Relief To Petitioner Despite Non-Juror Evidence Of Sleeping Juror

In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court held that post-trial juror testimony that, during trial, jurors were falling asleep, drinking alcohol, and using and selling drugs was inadmissible under Federal Rule of Evidence 606(b), which provides in relevant part that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

According to the Court, this was the case because none of the alleged juror misconduct constituted extraneous prejudicial information or an improper outside influence. The court did note, however, that the Rule only precluded post-trial impeachment of verdict by jurors, not post-trial impeachment of verdicts by non-jurors. And in the recent opinion of the United States District Court for the Eastern District of California in Anderson v. Terhune, 2009 WL 2462398 (E.D. Cal. 2009), the petitioner had non-juror evidence that a juror fell asleep during portions of his trial. And yet, the court somehow found that this evidence was insufficient to award the petitioner relief.

In Terhune, Arthur Anderson was convicted of two counts of first degree murder and one count of attempted murder. After he was convicted and unsuccessfully appealed in the California state court system, Anderson brought a petition for writ of habes corpus with the United States District Court for the Eastern District of California, alleging, inter alia, that he received constitutionally ineffective assistance of counsel when his trial counsel failed “to adequately investigate and present evidence that Juror Bruce Moon fell asleep for minutes at a time, several times each day throughout the trial, and thereby missed cumulatively significant portions of trial testimony, and that Mr. Moon suffered from an undiagnosed disorder that caused him to slip into a sleep state when in sedentary situations” in connection with petitioner's motion for a new trial.

In response, the Eastern District of California noted that the issue was governed by California Evidence Code Section 1150(a), California's counterpart to Federal Rule of Evidence 606(b), which rendered any juror testimony regarding the sleeping juror inadmissible. But the court noted that

Petitioner has also presented non-juror evidence of Mr. Moon's sleeping, including declarations from petitioner's mother, petitioner's two sisters, and two friends of petitioner's family, all of whom averred that they observed Mr. Moon appear to fall asleep during portions of the trial. In addition, petitioner has presented an expert declaration from David Claman, M.D. concerning whether Mr. Moon suffered from a sleep disorder and the probable impact of such a disorder "on his ability to perceive trial testimony."...Dr. Claman's declaration is based substantially, though not entirely, on juror affidavits, testimony and interviews....It is also based on the nonjuror declarations filed by petitioner in this action.

The court found that this evidence was not covered by California Evidence Code Section 1150(a), but it found that this evidence was insufficient to award Anderson relief because "the United States Supreme Court held in Tanner that evidence that 'some jurors were 'falling asleep all the time during trial'' did not establish juror incompetence sufficient to justify further post-verdict inquiry."

The problem that I have with this holding is that this is not what the Court found in Tanner. Instead, the Court in Tanner found that the allegations of sleeping jurors "would not suffice to bring this case under the common-law exception allowing post-verdict inquiry when an extremely strong showing of incompetency has been made." But Anderson wasn't trying to establish that his evidence fit into the common-law incompetency exception to the anti-jury impeachment rule. Instead, it was undisputed that the non-juror evidence regarding Moon sleeping was admissible; the only question was what effect Moon's sleeping (likely) had on the verdict.

-CM