September 26, 2009
The Devil Is In The Dictum: Second Circuit Makes Troubling Statements In Dictum In Rape Shield Ruling
A female employee allegedly flashes her breasts to co-workers at the workplace. That female employee later brings a sexual harassment action against her superior, claiming that he touched her thighs and breasts, offered her job security in return for sex, and showed up uninvited at her residence. The superior, who was not present during the alleged breast flashing, seeks to present evidence of this flashing in his defense. How should the court rule? Clearly, the answer should be to deem the evidence inadmissible. And indeed, that is what the United States District Court for the Southern District of New York held in hearing a case with these facts: Basile v. Spagnola. Moreover, the Second Circuit recently affirmed that decision in its recent opinion in Basile v. Spagnola, 2009 WL3015489 (2nd Cir. 2009). So, what's the problem? Well, in this case, the devil is in the dictum.
presented testimony from herself and two other witnesses about multiple incidents of inappropriate behavior by Spagnola. These witnesses detailed inappropriate behavior by Spagnola, including touching Basile's thighs and breasts, offering her job security in return for sex, and showing up uninvited at Basile's residence.
In an attempt to defend against these claims,
Spagnola sought to introduce testimony that Basile had flashed her breasts at the workplace when Basile was offduty. Spagnola did not witness the event himself, relying on hearsay from a co-worker. The court declined to admit the evidence, finding that the prejudicial effect of the evidence outweighed the probative value.
The Second Circuit affirmed this ruling, but not because it agreed with the district court's conclusion. Instead, according to the Second Circuit, the district court
stated that the ruling was merely a preliminary one, and provided Spagnola the opportunity to produce eyewitnesses who could testify as to the incident. He failed to do so. In light of this, it was not an abuse of discretion for the court to deny Spagnola's motion in limine and preclude evidence of Basile's sexual conduct.
The Second Circuit should have just affirmed the district court's ruling. Instead, the appellate court implied that the problem with Spagnola's argument was that he was relying upon hearsay rather than eyewitness testimony, not that the evidence he sought to admit was completely irrelevant to the issues at trial.
The Second Circuit noted that the rape shield rule -- Federal Rule of Evidence 412 -- applies to sexual harassment lawsuits. And the court noted that, unlike in criminal cases, evidence of past sexual behavior by a civil plaintiff is almost never admissible under an exception to the rape shield rule because such evidence is only admissible "if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party."
I can't think of how evidence of Basile's alleged breast flashing would have any probative value on the issue of whether Spagnola sexually harassed Basile, especially when he wasn't even present for the alleged act (not that his presence would have changed things). Meanwhile, the admission of such evidence would greatly harm Basile and cause unfair prejudice to her case. It thus seems to me that the district court was completely correct in finding that the problem with the evidence Spagnola sought to introduce was its substance, not its form. Conversely, I don't know what the Second Circuit was thinking.
September 25, 2009
Like A Good Witness: Supreme Court Of South Carolina Applies "Substantial Connection" Test To Evidence Of Insurance Offered To Prove Bias
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
That's not to say, though, that evidence of liability insurance is automatically admissible to prove bias as it must still pass the Rule 403 balancing test. And the recent opinion of the Supreme Court of South Carolina in Todd v. Joyner, 2009 WL 2988904 (S.C. 2009), reveals the test that South Carolina courts use to make that determination.
In Joyner, A car driven by Barbara Joyner collided with a car in which Frances Todd was a passenger, and Todd sustained injuries and sued for damages. State Farm, Joyner's insurer, defended her at trial, during which she admitted negligence and the trial court directed a verdict on liability; consequently, the sole issue before the jury was the amount of damages owed to Todd. In disputing Todd's claimed damages, Joyner presented Dr. Richard J. Friedman as an expert in orthopedic surgery. Dr. Friedman testified that Todd suffered no permanent impairment from the auto accident and that any treatment she received more than roughly four months after the accident was not reasonable and necessary or proximately caused by the accident.
At trial, Todd sought to introduce evidence that Joyner was insured by State Farm to prove bias by Dr. Friedman, whom was paid between $50,000 and $60,000 by the insurance company for work on eighteen different claim numbers during calendar years 2003-2005. The trial court, however, deemed this evidence inadmissible, and the jury only awarded Todd $37,191.11, the amount of medical bills presented at trial.
Todd subsequently appealed, and her appeal eventually reached the South Carolina Supremes, who noted that in Yoho v. Thompson, 548 S.E.2d 584, it had decided to follow the analysis of "[a] majority of jurisdictions" and apply the "substantial connection" test to determine whether evidence of liability insurance passes the Rule 403 balancing test when offered to prove bias. In other words, when there is a substantial connection between an expert witness and an insurance company, evidence of liability insurance passes the Rule 403 balancing test. In Yoho, the court found such a "substantial connection" because he maintained an employment relationship with Nationwide Insurance, consulted for Nationwide in other cases, gave lectures to Nationwide's agents and adjusters, devoted 10-20% of his practice to reviewing records for insurance companies, including Nationwide, and had his yearly salary based in part on his insurance consulting work.
Conversely, the court found that Dr. Friedman did not have a "substantial connection" with State Farm because
Todd showed...that Dr. Friedman earned approximately $50,000 from State Farm during calendar years 2003-2005 based on work on eighteen claims, but presented no evidence as to Dr. Friedman's total earnings during that period. Moreover, unlike Yoho, the evidence appear[ed] to show that Dr. Friedman was paid an expert fee rather than having an employment relationship with State Farm. In short, the evidence presented by Todd d[id] not show as strong a connection between the expert and the insurance company as in Yoho and [the court could not] conclude that the Court of Appeals erred in affirming the trial court.
September 24, 2009
Better Evidence Or Best Evidence?: Second Circuit Affirms Bank Fraud Convictions Despite Best Evidence Rule
Federal Rule of Evidence 1002, the Best Evidence Rule, states that
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
And it was the "except as otherwise" portion of the rule that got the appellant in United States v. Whittingham, 2009 WL 3004345 (2nd Cir. 2009).
In Whittingham, Nadine Whittingham, a former Bank of America employee, was convicted of bank fraud and conspiracy to commit bank fraud based upon evidence that she accessed, without authorization, several accounts at the bank where she was employed, and shared information about those accounts with co-conspirators for the purpose of fraudulently obtaining the funds in those accounts, resulting in a loss in excess of $1 million. During Whittinham's trial, "the district court admitted a series of still images printed from surveillance videos that allegedly show[ed] Whittingham at her desk at approximately the times when the government argued she was illegally accessing customer accounts." The government only introduced these still photographs because the Bank of America fraud investigator lost the original videotapes.
After Whittingham was convicted, she appealed, claiming, inter alia, that the admission of the still images violated the Best Evidence Rule because the government failed to produce the original videotapes. The Second Circuit disagreed, noting that, pursuant to Federal Rule of Evidence 1004(1),
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.
And the problem for Whittingham was that she made "no allegations that the government lost or destroyed the originals in bad faith, and indeed, it was the Bank of America fraud investigator, not the government, who lost the videotapes." Whittingham also claimed that the still images were not properly authenticated, but the Second Circuit quickly turned that argument aside, finding that "the government adequately authenticated the photographs through the testimony of the bank employees regarding how the videos were recorded, collected, and time-stamped, as well as the circumstantial evidence placing the defendant at her desk during those times.
September 23, 2009
The Case-In-Chief Waiver: Fifth Circuit Becomes Third Federal Appellate Court To Read Mezzanatto In Broadest Sense
In relevant part, Federal Rule of Evidence 410 provides 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:....
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a criminal defendant can waive Rule 410 protection and make his otherwise excludable plea statements admissible to impeach him should he make contradictory statements at trial. The Court left open the question of whether a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence. Thereafter, a handful of federal appellate courts found that a defendant could make such a waiver by presenting evidence at trial contradicting his otherwise excludable plea statements, which would allow the prosecution to use his statements substantively to rebut the evidence elicited, i.e., the "rebuttal waiver."
Until a few days ago, however, only two federal appelate courts had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence even when he did not present evidence at trial contradicting his otherwise excludable plea statements. But after the opinion of the Fifth Circuit in United States v. Sylvester, that number has risen to three.
In Sylvester, Donald Sylvester was charged with murder in connection with the killing of a federal witness. AUSA Maurice Landrieu explained to Sylvester that the Attorney General had the discretion to seek capital punishment and proposed that, in return for a full confession, Landrieu would ask permission to seek life imprisonment instead. Sylvester then waived his objection to the admission of incriminating statements at trial in the event that plea negotaitions failed and confessed, and Landrieu made the promised recommendation to the Attorney General. Thereafter, however, Sylvester changed his mind and decided to take his chances at trial.
After a full evidentiary hearing, the district judge then determined that the prosecution could admit Sylvester's incriminatory plea statements during its case-in-chief as substantive evidence of Sylvester's guilt. Sylvester was subsequently convicted, prompting his appeal to the Fifth Circuit on this evidentiary issue, leading that court to deal with a question of first impression for it: "whether the government may use a defendant's statements made in teh course of plea negotiations in its case-in-chief, when the defendant, as a condition to engaging in negotiations with the government, knowingly and voluntarily waived all rights to object to such use."
The court then noted that only two federal appellate courts -- the Eighth and D.C. Circuits -- had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence during the prosecution's case-in-chief. According to the Fifth Circuit, however, these courts were right. The Fifth Circuit noted that the main purpose of Rule 410 is to encourage plea negotiations so that criminal cases can be "settled" rather than going to trial. And, according to the court, "case-in-chief" waiver would not (really) discourage defendants from engaging in plea negoations any more than "impeachment waiver" or "rebuttal waiver." According to the court,
it seems unlikely to us that any significant number of defendants would draw fine distinctions as to whether statements made in the course of plea negotiations could be used in the government's case-in-chief or only for impeachment or rebuttal. Even with such an exacting decisionmaker, the choice is somewhat illusory.
I fundamentally disagree. First, I disagree with the leap from "impeachment waiver" to "rebuttal waiver." A defendant, or more importantly, his attorney, could easily think that it is is worth it to make an "impeachment waiver" to get to the plea bargaining table, but not a "rebuttal waiver." Why? Well, the defendant doesn't have to testify at trial, and many defendants, especially those with prior records, indeed do not testify at trial. Therefore, it could easily make sense for a defendant to make an "impeachment waiver" with the knowledge that whatever he says during plea negotiations cannot be used against him at trial as long as he does not testify (and never be used against him substantively).
Second, I disagree with the leap from "rebuttal waiver" to "case-in-chief waiver." In Sylvester, the defendant claimed that the difference between the two was that the former would not allow for the admission of otherwise excludable plea statements if the defendant limited his defense to credibilty impeachment of government witnesses or essentially declines to wage a defense at all. The Fifth Circuit rejected this distinction with the conclusory conclusion that Sylvester had not conviced it that the distinction would be meaningful to a significant number of defendants.
My first response is, "Why not?" My second response is that there are more differences. Let's say that during plea negotiations, a defendant charged with murder admits to being at the crime scene but decides to end those negotiations before admitting guilt. With a "rebuttal waiver," the defendant's incriminatory statement cannot be introduced unless he presents evidence that he was not at the crime scene. Conversely, with a "case-in-chief" waiver, his incriminatory statement can be introduced even if the defendant presents no evidence on the issue. In other words, if the defendant stops short of admitting to committing the crime charged during plea negotiations, he can mount some type of defense and keep some of his plea statements out even with a "rebuttal waiver." With a "case-in-chief waiver," he cannot.
September 22, 2009
If You Catch My Drift: Innocence Project Of Texas Publishes: Dog Scent Lineups A Junk Science Injustice
1. What is "Junk Science"?2. Junk Science in Texas3. Dog Scent EVidence4. Dog Scent Evidence - The Science5. Dog Science Evidence - The Junk6. The Strange and Awful Career of Deputy Keith Pikett7. What Has to Be Done
In case after case, prosecutors have used phony "experts" with little or no training or education, false results from shoddy labs and dubious '"theories" with no basis in fact to get convictions. Taken together, these abusive practices have come to be known as the use of "junk science." The use of this "evidence" is not limited to the courtrooms; law enforcement agencies have come more and more to rely on it in making arrests and getting indictments.
If there is a developing consensus about the use of scent lineups, it comes down to this:
1. Scientific methods have to be used;2. Rules based upon those methods have to be precisely followed;3. Even if proper methods and rules are used the scent lineup has very limited value as "scientific evidence" and cannot be solely relied upon.
[t]he science of scent lineups in Texas has no rules, procedures, or performance standards. It is being practiced by "experts without expertise according to no rules except their own.
September 21, 2009
The Guy Is So Dangerous: Supreme Court Of Virginia Finds Virginia Courts Did Not Err In Future Dangerousness Rulings In Death Penalty Appeal
A man is convicted of murder. During the capital sentencing hearing, the prosecution presents evidence regarding the man's future dangerousness, i.e., evidence that the man would present a future danger if not given the death penalty. This danger, however, would be limited to the danger presented to prison guards and other inmates because the jury's only sentencing options are the death penalty and life imprisonment without the possibility of parole. The man wants to drive this point home to the jury by having the court appoint him an expert to, inter alia, testify that his opportunities for serious violence toward others would be greatly reduced based upon the conditions of his confinement. The court denies his motion. Has the court acted properly?
According to the recent opinion of the Supreme Court of Virginia in Morva v. Commonwealth, 2009 WL 2973006 (Va. 2009), the answer is "yes." In Morva, William Charles Morva brought such a motion, seeking to have forensic psychologist Dr. Mark D. Cunnigham (or a similar expert) appointed on his behalf "to rebut the Commonwealth's claim that Morva was a future danger to society and to provide the jury with an assessment of the likelihood that Morva would commit violence if he were sentenced to life in prison."
In Dr. Cunningham's declaration, provided as an attachment to the motion, Dr. Cunningham stated, "A reliable individualized assessment can be made of the likelihood that Mr. Morva will commit acts of serious violence if confined for life in the Virginia Department of Corrections." He further acknowledged that he would testify concerning "[g]roup statistical data (i.e., base rate data)” because the “rates of violence in similarly situated groups is critically important to a reliable violence risk assessment and forms the anchoring point of any individualized risk assessment.” If appointed, he would testify that “[r]isk is always a function of context,” and consideration of interventions that can be brought to bear on inmates in the Virginia Department of Corrections would be an important part of the violence risk assessment he would perform. He would also testify that “[t]here are conditions of confinement available in the Virginia Department of Corrections that substantially negate the potential/occurrence of serious violence” and that “[s]hould Mr. Morva be identified as a disproportionate risk of violent or disruptive conduct by the Virginia Department of Corrections, super-maximum confinement could be brought to bear.”
Dr. Cunningham further stated “it is necessary to specify the conditions of confinement in order to make a reliable violence risk assessment and to address the implicit inference of the Commonwealth in alleging [a] continuing threat that it is incompetent to securely confine the defendant in the future.” He noted that he would testify that “[u]nder an administrative maximum level of confinement at Red Onion or other ultra-high security unit, an inmate is single-celled and locked down twenty-three hours daily, with individual or small group exercise, and shackled movement under escort. Under such conditions of security, opportunities for serious violence toward others are greatly reduced.” He opined that “[s]uch increased security measures would act to significantly reduce the likelihood of Mr. Morva engaging in serious violence in prison.”
In the letter from Dr. Cunningham accompanying the motion to reconsider, Dr. Cunningham stated that group statistical data regarding similarly situated inmates interpreted in light of characteristics specific to Morva is relevant to future prison conduct. He also expounded upon the scientific validity of making individual assessments based upon group data. He reiterated that risk is always a function of context or preventative interventions and that increased security measures could significantly reduce the likelihood that Morva would engage in serious violence in prison. He opined that informing the jury of the capabilities of the Virginia Department of Corrections to bring higher levels of security to bear was necessary to provide an individualized risk assessment.
After the lower courts denied this motion, the Supreme Court of Virgina agreed, noting that, pursuant to Virginia statutes,
[t]o be admissible, evidence relating to a prison environment must connect the specific characteristics of the particular defendant to his future adaptability in the prison environment....It must be evidence peculiar to the defendant's character, history, and background in order to be relevant to the future dangerousness inquiry....Conditions of prison life and the security measures utilized in a maximum security facility are not relevant to the future dangerousness inquiry unless such evidence is specific to the defendant on trial and relevant to that specific defendant's ability to adjust to prison life....
Increased security measures and conditions of prison life that reduce the likelihood of future dangerousness of all inmates is general information that is irrelevant to the inquiry....The generalized competence of the Commonwealth to completely secure a defendant in the future is not a relevant inquiry. Our precedent is clear that a court should exclude evidence concerning the defendant's diminished opportunities to commit criminal acts of violence in the future due to the security conditions in the prison.
According to the Virginia Supremes, this fact proved fatal to Morva's claim because
[t]he fact that being an inmate in a single cell, locked down twenty-three hours a day, with individual or small group exercise, and shackled movement under escort would greatly reduce opportunity for serious violence toward others, is not particular to Morva. It is true for any other inmate as well, and it is evidence of the effectiveness of general prison security, which is not relevant to the issue of Morva's future dangerousness. Whether offered by an expert, or anyone else, evidence of prison life and the security measures used in a prison environment are not relevant to future dangerousness unless it connects the specific characteristics of a particular defendant to his future adaptability in the prison environment....
According to Dr. Cunningham, general factors concerning prison procedure and security that are not individualized as to Morva's prior history, conviction record, or the circumstances of his offense are essential to Dr. Cunningham's expert opinion on prison risk assessment. Pursuant to our precedent, Dr. Cunningham's proposed testimony concerning prison life is inadmissible.
Two justices, however, dissented, finding that
while the "focus" of the future dangerousness determination is statutorily directed to the defendant's past criminal record, prior history, and circumstances surrounding the commission of the offense, these statutes do not, and in [our] view constitutionally could not, limit the defendant's right to produce relevant evidence either in defense of the Commonwealth's assertions regarding the future dangerousness determination by the jury or the jury's ultimate consideration to impose the death sentence rather than a life sentence without the possibility of parole.
I think that I side with the dissenting justices. Regardless of the wording of the applicable statutes, I don't see how a court could prevent a defendant from presenting evidence regarding the conditions of his confinement to rebut the prosecution's contentions of future dangerousness (especially when death is on the line). It would seem to me, at a minimum, that mechanistically applying statutes to exclude this evidence would violate a defendant's right to present a defense.
September 20, 2009
The Unspecified Prior Conviction: Court Of Appeals Of Minnesota Precludes Sanitized Impeachment In Order Of Protection Violation Appeal
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.
When the prosecution seeks to impeach a criminal defendant through a prior conviction, the court considers five factors, such as how much bearing the crime leading to the prior conviction has on the defendant's honesty and the similarity between the crime leading to the prior conviction and the crime charged. Previously, when courts used to find that a specific conviction would not be admissible to impeach a defendant because its admission would be too prejudicial, they usually still allowed for the defendant (or another witness) to be impeached through evidence that he had some unspecified prior conviction. As the recent opinion of the Court of Appeals of Minnesota in State v. Utter, 2009 WL 2926510 (Minn.App. 2009), makes clear, however, the modern trend is away from this practice.
In Utter, Thomas Edward Utter, Jr. was charged with violating a harassment restraining order, and the prosecution sought to impeach him through his prior conviction for violating an order of protection. Based upon the similarity between the two crimes, the court determined that there was a substantial danger that the jury could misuse the prior conviction as propensity character evidence; however, rather, than exclude evidence of the conviction, the court allowed Utter to be impeached through evidence that he had a prior conviction, without the jury being informed of the crime leading to his prior conviction.
Utter subsequently appealed, and the Court of Appeals of Minnesota noted that "Minnesota appellate courts have not addressed the issue of whether evidence of an unspecified prior conviction is admissible, and other jurisdictions are split on the issue." The court then noted that Michigan had deemed unspecified prior conviction evidence inadmissible but also noted that
in a 1990 Illinois case, a concurring judge observed that "Michigan [was] the only state that expressly disallow[ed] impeachment by an unspecified felony," and that Florida, Idaho, Kentucky, Montana, Nebraska, Nevada, New Mexico, Washington, and Wisconsin allowed the "mere fact" of a felony conviction to be admissible, while Alaska, Connecticut, Oregon, and South Dakota considered the issue a matter of the trial court's discretion.
According to the court, though, "since 1990, other jurisdictions have followed Michigan's rejection of the use of unspecified prior convictions for impeachment purposes, and, in 1999, the Illinois Supreme Court rejected what it called the 'mere fact' rule, reasoning that 'it is the nature of a past conviction, not merely the fact of it, that aids the jury in assessing a witness' credibility." The court then indicated that in its opinion in Bells v. State, 759 A.2d 1149, 1155 (Md.Ct.Spec.App. 2000), the Maryland Court of Special Appeals had found that
Although a rule permitting a sanitized use of similar convictions has some appeal, we are disinclined to graft such an extension onto the existing rule. Here, the court properly found that, in this case, the use of the prior convictions would in balance be more prejudicial than probative. We do not believe that the sanitized version was any less so.... [W]e hold that the lower court erred in permitting sanitized prior convictions to impeach Bells.
The Court of Appeals of Minnesota agreed with this reasoning and thus reversed, finding that
The court's solution substantially reduced the risk of admitting a prior conviction to impeach that is identical or similar to the current conviction, namely that the jury may conclude that because the defendant “did it before, he most likely has done it again.” But the court's solution also discarded the measure by which the jury could assess the impeachment value of the prior conviction. The impeachment value of the prior crime varies with the nature of the offense....By shielding the jury from the nature of appellant's prior conviction, the district court allowed the jury to speculate that the prior crime had much greater impeachment value than it may actually have had.