EvidenceProf Blog

Suppression Vs. Exclusion: Missouri Court Of Appeals Denies Interlocutory Appeal By Reading Motion To Suppress As Motion To Exclude

Suppression of evidence is not the same thing as exclusion of evidence on the basis of some rule of evidence. Suppression is a term used for evidence that is not objectionable as violating any rule of evidence, but that has been illegally obtained. The recent opinion of the Missouri Court of Appeals, Western District, in State v. Moad, 2009 WL 3075576 (Mo.App. W.D. 2009), explains why this distinction matters.

In Moad, on February 14, 2006, Jeffrey Moad and Laura Kathleen Winfrey were the sole occupants of a car that crashed, tragically killing Ms. Winfrey. The car belonged to Winfrey, but despite Moad's claims to the contrary, responding State Trooper Bryan Salmons suspected that Moad was the driver. 

Trooper Salmons had the car towed to a storage lot on February 14, 2006. On February 15, 2006, the [Missouri Highway Patrol's] crash investigation team inspected the vehicle for evidence. The crash team completed their investigation the same day. According to Trooper Salmons, “within a day or so” following the completion of the crash team's investigation, but before Moad or his representatives were given an opportunity to perform an independent examination, Trooper Salmons contacted the next of kin of Katie Winfrey and released the vehicle to them.

Moad was thereafter charged with involuntary manslaughter and his first trial ended in a mistrial. Before his retrial, Moad brought a motion to "suppress" the evidence recovered from Moad's car because he did not have a chance to examine the vehicle before its release. According to Trooper Salmons, he was following MHP policies and procedures in releasing the car to Winfrey's next of kin, but documents produced did not back him up, and the judge granted Moad's motion.

The government thereafter filed an interlocutory appeal with the Missouri Court of Appeals, Western District, pursuant to Missouri Code Section 547.200.1(3), which permits the state to appeal an interlocutory order suppressing evidence or where “the substantive effect” of the order results in suppressing evidence. The problem for the government, though, was that the court found that "[t]hough the interlocutory order being appealed to this court is styled as a motion to suppress, the character of a pleading is 'determined by its subject matter and not its designation.'" And, as noted above, suppression of evidence is not the same thing as exclusion of evidence on the basis of some rule of evidence. Suppression is a term used for evidence that is not objectionable as violating any rule of evidence, but that has been illegally obtained.

According to the court, this distinction proved fatal for the government's appeal because

[i]n the current case, the question before the trial court was whether evidence obtained by the State from a vehicle involved in a fatal crash was admissible after the vehicle was released within seventy-two hours and prior to the defendant in a criminal felony trial having an opportunity to examine it....[T]here was never any argument that the evidence had been illegally obtained. Rather, the issue was whether Trooper Salmons acted in bad faith in disposing of evidence. 

In other words, according to the appellate court, the trial court had excluded the evidence obtained from the car based upon the trooper's discovery violation; it did not suppress the evidence based upon it being illegally obtained. Thus, the trial judge's order was not interlocutory and could not form the basis for an interlocutory appeal.

-CM

I'm Going To Admit It: Puerto Rico Case Reveals Circuit Split Over Application Of Admissions Rule To Governmental Agents In Criminal Cases

Federal Rule of Evidence 801(d)(2)(A) provides that 

A statement is not hearsay if...[t]he statement is offered against a party and is...the party's own statement, in either an individual or a representative capacity.

Under this Rule, three things are clear. Statements by a civil plaintiff are admissible against him, statements by a civil plaintiff are admissible against him, and statements by a criminal defendant are admissible against him. But are statements of governmental agents admissible against the prosecution in a criminal cases? As the recent opinion of the United States District Court for the District of Puerto Rico in United States v. Lopez-Ortiz, 2009 WL 2709369 (D. Puerto Rico 2009), makes clear, there is a split among courts, with the First Circuit finding that such statements can be admissible as admissions of party-opponents.

In Lopez-Ortiz, David Lopez-Ortiz, was charged with offenses related to a drug conspiracy and moved for the suppression of $450.00 currency seized from, claiming that the money was found as a result of an unlawful search of his person, in violation of the Fourth Amendment's protection against unreasonable searches and seizures. At the ensuing suppression hearing, agents who seized the currency claimed that they saw Lopez-Ortiz counting the money as he walked. The magistrate judge, however, discredited this testimony and granted the motion to suppress after considering the conflicting affidavit of Agent Pedro Perez, who averred that the agents found the currency in Lopez-Ortiz's waistband area. 

The government actually had previously used this affidavit to procure a search warrant and presented it to the magistrare as part of the suppression hearing. After the judge ruled against the government, however, it claimed that the affidavit was inadmissible hearsay. And the United States District Court for the District of Puerto Rico noted that there is a split in the circuits, with some courts finding that statements of governmental agents can be admissible as admissions of part-opponents under Federal Rule of Evidence 801(d)(2)(A) and other courts disagreeing.

Luckily for Lopez-Ortiz, the district court noted that the First Circuit is one of the former courts, based upon its opinion in United States v. Kattar, 840 F.2d 118, 130 (1st Cir. 1988) ("[T]he Federal Rules clearly contemplate that the federal government is a party-opponent for the defendant in criminal cases.”). According to the district court,

Citing the First Circuit's holding in Kattar, the magistrate judge found in this case that the government "twice manifested an adoption or belief in the truth and accuracy of Agent Perez's statement."..."First, the government submitted the affidavit in support of an application for a warrant to search the defendant's residence," and "[s]econd, the government adopted the contents of paragraph four of the affidavit in its opposition to defendant's motion to suppress."...Because “the government has twice presented [the affidavit's] contents to this court," and because those contents diverged from agent testimony during the suppression hearing regarding the location of the seized currency, the magistrate judge allowed the affidavit to be admitted as the admission of a party-opponent. 

Because the court found that the government "offer[ed] no persuasive argument refuting the magistrate judge's legal analysis on this matter," it affirmed the magistrate's ruling.

-CM

It Was Two Years Ago Today...

that I launched EvidenceProf Blog. On that day, I had posts about comparing legal standards to instant replay, a scandal involving a businessman and prostitutes, and the movie Michael Clayton. I'm proud of the fact that since that day, I have been able to post at least one entry per day over the next two years. I hope that readers have enjoyed the blog to this point, and I hope to continue to post entries about recent cases and developments in evidence law that are useful to both lawyers and laypersons.

-CM

Avoiding The Google Mistrial: Story Reveals Measures Oklahoma Judge Has Taken In Light Of New Technologies

For years, judges instructed jurors not to discuss cases with non-jurors and to avoid any news coverage. Now, with the advant of new technologies and the so-called Google mistrial, some judges are supplementing those instructions.

According to a story out of Tulsa from Tuesday, a judge instructed potential jurors, including a reporter, "to avoid news coverage, but also to not Google the case online."  The judge ostensibly gave the instruction based upon the knowledge that, whereas jurors in years past could avoid learning anything about parties by simply staying away from traditional media, information such as the party's financial status and his criminal past are now simply a few mouse clicks away. According to Tulsa District Judge Clancy Smith, "I tell all the jurors you have to decide the case on what you hear in the courtroom because so much of that would be inadmissible and it's not proven and not true sometimes."

Judge Smith went on to note that "The fear is you will convict him because of his past, not because of what happened here and so, these are the main reasons you can't let them look at something not screened by a judge." Based upon these concerns, Judge Smith also precludes anyone from texting while in her courtroom, and she confiscates jurors' cell phones when they go deliberate, so they don't search the Internet for additional information. In other words, she's my type of judge because she is making efforts to prevent the very types of problems that are plaguing jury trials around the country.

-CM

Analog Rules In A Digital Age: Nigeria Seeks To Amend Its Evidence Act To Allow Admissibility Of Electronic Evidence

Here in the United States, there have been several major amendments to the Federal Rules of Evidence since they were became effective in 1975. Conversely, since its enactment 64 years ago, Nigeria's Evidence Act has only been subject to three minor amendments. The Nigerian government recently realized that, without more significant amendments, some of its evidentiary rules have become analog rules in a digital age. That might be about to change.

Currently, Nigeria's Evidence Act "does not recognize any computer generated document as either primary or secondary evidence in court." This is contrary to the practice in many countries, such as the United States, which have recognized the indispensability and ubiquity of computer technology and made computer generated documents admissible under their rules of evidence. This, and other evidentiary anachronisms led Senator Sola Akinyede to claim that "the bottom line is that today our evidence law is anachronistic and obsolete and totally out of touch with global reality."

That may, however, all change soon. A bill seeking to amend the Evidence Act to allow the admissibility of electronic evidence in Nigerian courts passed through its second reading at the Senate yesterday. Under that bill, inter alia, the  word "document" would include electronic records, the phrase "bankers books" would include electronic records, writings and recordings, and the word "original" would include computer printouts. It will be interesting to see whether Nigeria ends up enacting these changes in whole or in part as there might be some changes that would be beneficial to add to our own rules of evidence.

-CM 

Submission Guide for Online Law Review Supplements, Version 2.0 (9/30/2009), Now Available On SSRN

Back in May, I posted my initial Submission Guide for Online Law Review Supplements. At the time, I promised to update the guide annually and as law reviews create new online supplements. Since then, I have learned of two other supplements:  Maryland Law Review Endnotes and Texas Tech Law Review Addendum. Also, a few online supplements have changed their sites and/or the types of pieces they accept. The former Yale Law Journal Pocket Part is now Yale Law Journal Online, and it has expanded the list of submissions its accepts. Michigan's First Impressions has changed its website and now accepts original essays in addition to symposium pieces. Finally, Connecticut's CONNtemplations has changed its website.

All of these additions and changes are recorded in Submission Guide for Online Law Review Supplements, version 2.0 (9/30/2009), which you can download for free from SSRN. Finally, I wanted to alert readers that the Denver University Law Review just launched an online supplement, DU Process, but it is still in the trial phase, with details to be sorted out. When they are, I will add that information to the guide.

-CM 

Baked Alaska: Supreme Court Of Alaska Opinion Shows Oddness In Expert Witness Contention

Like its federal counterpart, Alaska Rule of Evidence 702(a) provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 

Meanwhile, Section Section 1912(f) of the Indian Child Welfare Act provides that 

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.  

The Supreme Court of Alaska recently found that "ICWA § 1912(f) heightens the requirements for an expert's qualifications beyond those normally required to qualify an expert." You wouldn't know it, however, based upon that court's recent opinion in Sandy B. v. State, Dept. of Health & Social Services, Office of Children's Services, 2009 WL 3049721 (Alaska 2009).

In Sandy B., "[t]he Office of Children's Services (OCS) removed three girls, who are Indian children under the Indian Child Welfare Act, from the care of their parents in three separate alcohol-related incidents between September 2005 and December 2007."  Thereafter, "[f]ollowing a three-day termination trial, the trial court issued two written orders terminating their parental rights to all three children." 

This ruling was based in large part upon the testimony of Dr. Raymond Droby, who testified as OCS's ICWA- required expert. Dr. Droby had master's and doctorate degrees in clinical psychology and was qualified as an expert in psychology. At trial, Dr. Droby addressed the psychological harm that the children had suffered and would likely continue to suffer if they were returned to their parents' care and their parents continued to drink."  

The parents thereafter appealed, and their appeal eventually reached the Alaska Supremes. And that court noted that the parents were correct that it had recently found in Marcia V. v. State, Office of Children's Services, 201 P.3d 496, 504 (Alaska 2009), that "ICWA § 1912(f) heightens the requirements for an expert's qualifications beyond those normally required to qualify an expert." Except that it didn't. Instead, in Marcia V., the court noted that

Federal ICWA guidelines describe the three types of experts that are “most likely” to meet ICWA's requirements: (1) a member of the child's tribe recognized by the tribal community as knowledgeable in tribal customs pertaining to family organization and childrearing practices, (2) a lay expert with substantial experience and knowledge regarding relevant Indian social and cultural standards and childrearing practices and the delivery of child and family services to Indians, or (3) “ [a] professional person having substantial education in the area of his or her specialty.” 

In Marcia V., the court found an expert witness qualified based upon his substantial education. And in Sandy B.,, the court found the same with regard to Dr. Droby. And you know what? It would have found the same thing under Alaska Rule of Evidence 702(a). If Dr. Droby did not have substantial education in the field of clinical psychology, he could not have been qualified as an expert under either Alaska Rule of Evidence 702(a) or Section 1912(f) of the Indian Child Welfare Act. Based upon his education, he could have been qualified as an expert under either Alaska Rule of Evidence 702(a) or Section 1912(f) of the Indian Child Welfare Act. I thus don't see how "ICWA § 1912(f) heighten[ed] the requirements for an expert's qualifications beyond those normally required to qualify an expert." 

-CM

I Need A Remedy: Court Of Appeals Of Wisconsin Finds Subsequent Remedial Measure Rule Inapplicable In Criminal Cases

Like (but not exactly like) its federal counterpart, Wisconsin Stat. Section 904.07 provides that

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section 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....

In its recent opinion in State v. Conley, 2009 WL 3018121 (Wis.App. 2009), the Court of Appeals of Wisconsin had to answer the following question: Does this rule apply in criminal cases? It answered the question in the negative. I disagree.

In Conley, Dale Conley was convicted of two counts of first-degree sexual assault of a child and two counts of incest of a child based upon crimes that he allegedly committed against his twelve year-old daughter. After the daughter told her mother, Conley's wife, about the second of these alleged acts, the mother told Conley to put a lock on the inside of the daughter's bedroom door which would prevent anyone from entering her room when it was locked. Conley thereafter installed such a lock.

At trial, and without objection, the prosecution presented evidence about Conley's installation of the lock and later contended during closing that the act was evidence of Conley's "consciousness of guilt." Defense counsel countered that Conley installed the lock merely to satisfy his wife.

After Conley was convicted, he appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial counsel failed to object to evidence of his installation of the lock, which he claimed was inadmissible as a subsequent remedial measure under Wisconsin Stat. Section 904.07. In other words, according to Conley, after an event -- the sexual assault of his daughter -- he took a measure -- the installation of the lock -- which, if previously taken, would have made the event less likely to occur, rendering evidence of the lock inadmissible to prove his criminal culpability in connection with the event.

The problem for Conley was that the Court of Appeals of Wisconsin found that Wisconsin Stat. Section 904.07 "is not applicable in criminal cases." And it did so for a few reasons. First, the court found "guidance in the fact that this rule of evidence is patterned after Federal Rule of Evidence 407, which was drafted to limit the use of subsequent remedial measures to prove negligence in civil litigation." As support for this claim, the court cited to the Advisory Committee Note to the Rule, which states, inter alia, that the Rule

incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault. The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence....(2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.

I have two problems with this argument. First, both the Advisory Committee Note and the Rule talk about subsequent remedial measures being inadmissible to prove negligence or other culpable conduct, meaning that the Rule was not drafted solely to limit the use of subsequent remedial measures to prove negligence. Second, even if the Rule was drafted solely to apply in civil cases, why should the court not apply it in criminal cases if the extension makes sense? After all, the original Federal Rule of Evidence 407 did not indicate that the Rule applied to products liability actions, but a majority of circuits found that the rule did apply to such actions, leading to the Rule being amended.

Now, in fairness, Wisconsin never amended Wisconsin Stat. Section 904.07 and has found that it does not apply to products liability actions, see, e.g., Huss v. Yale Materials Handling Corp., 538 N.W.2d 630, 634-35 (Wis.App. 1995), although it has deemed evidence of subsequent remedial measures inadmissible in such actions on other grounds. But it seems to me that the Court of Appeals of Wisconsin could not ignore the way in which federal circuit courts extended Federal Rule of Evidence 407 when its next argument in Conley was that

the scope of Rule 407 is "quite narrow."...We have found no published decision in which § 904.07 or FED.R.EVID. 407 FED.R.EVID. 407 is applied in a criminal case.       

My review of the case law leads me to believe that this last statement is technically correct, but my response is, "Who cares?" In published opinions, federal courts have certainly implied that they would apply Rule 407 in an appropriate criminal case. See, e.g., United States v.Koppers Co., Inc., 652 F.2d 290, 299 (2nd Cir. 1981) ("This evidence went directly to the question of whether or not a conspiracy ever existed; it therefore does not fall within the rubric of “subsequent remedial measures,” Fed.R.Evid. 407, as urged by Koppers."). Moreover, federal courts have found that Rule 407 applies in criminal cases, just not in published opinions. See, e.g., United States v. Kyle, 2003 WL 22999295 (4th Cir. 2003) (affirming the district court's exclusion of evidence of subsequent remedial measures under Rule 407 and finding that even if the Rule were inapplicable in criminal cases, the evidence still could have been excluded)

 

Additionally, several state courts have found that their versions of Rule 407 apply in criminal cases. See, e.g., Penley v. State, 2 S.W.3d 534, 541 (Tex-App.-Texarkana 1999). Moreover, military courts have found that Military Rule of Evidence 407, which is similar to Federal Rule of Evidence 407, applies in criminal cases. See, e.g., United States v. Casey, 45 M.J. 623, 628-29 (N.M.Ct.Crim.App. 1996). Now, in fairness to the Court of Appeals of Wisconsin, some courts have found that Rule 407 is inapplicable in criminal cases. See, e.g., United States v. Wittig, 425 F.Supp.2d 1196, 1233 (D. Kan. 2006). But it seems to me that the court in Conley needed to explain why a rule which does not by its terms apply only to civil cases should be inapplicable in criminal cases and not simply rely on one line of precedent.

 

Again, in fairness, the court in Conley did try to explain itself, but its explanation was so weak that a stiff breeze could knock it over. According to the court, in D.L. by Friederichs v. Huebner, 329 N.W.2d 890 (Wis. 1983), the Supreme Court of Wisconsin "revealed its lack of faith altogether in the exclusionary rule and pointed out that many commentators view it to be 'unsound' even in civil law." Okay, and so the solution by the Court of Appeals of Wisconsin was not to find the rule inapplicable in civil cases against civil defendants but to find it inapplicable in criminal cases against criminal defendants?

 

This makes no sense to me, especially when considered in the context of other rules of evidence. As far as I know, excluding Rule 407, as read by the Court of Appeals of Wisconsin and some other courts, every other rule of evidence makes it at least as difficult to admit evidence against a criminal defendant as it is to introduce evidence against a civil defendant. (Federal Rule of Evidence 404(a) does allow propensity character evidence to be admitted against criminal and not civil defendants, but this "mercy" rule benefits criminal defendants who get to decide whether character evidence can be injected into their trials, a luxury not shared by civil defendants). Moreover, some rules of evidence make it more difficult to admit evidence against a criminal defendant than it is to introduce evidence against a civil defendant. See, e.g., Federal Rule of Evidence 609(a)(1), Federal Rule of Evidence 803(8).

 

I also don't see the civil/criminal distinction drawn by the court. Conley easily could have been (and might have been) sued civilly based upon his alleged acts. Because the court ostensibly found that the installation of the lock was a subsequent remedial measure, it presumably would have deemed that evidence inadmissible to prove his culpability. How does the analysis change any when Conley is being criminally prosecuted? Similarly, if a defendant is sued for wrongful death and prosecuted for criminally negligent homicide based upon the same act, what justification could be given for excluding evidence of his subsequent remedial measures in his civil trial but not in his criminal trial? I can't think of any. Can readers?

 

(EDIT, 5:00 P.M.: Professor James Duane wrote me this e-mail in response to an e-mail I sent to the Evidence Listserv regarding this post:

Funny you would ask; what you say is almost entirely true.   As you observed, there is a very well-settled aspect of evidence law, with a number of examples, which provides that evidence is almost always at least as freely admissible (if not more so) when offered against a civil defendant than it would be when offered against the same individual or some other defendant in a criminal prosecution.  One of the reasons “for treating civil and criminal cases differently is that the stakes are higher in criminal cases, where liberty or even life may be at stake, and where the government's sole interest is to convict.”  Mitchell v. United States, 526 U.S. 314, 328 (1999) (citation omitted; explaining why defendant’s silence may be used as evidence against him in a civil trial but not at a criminal trial arising out of the same allegations).  

At least until recently, the Federal Rules of Evidence contained no exceptions to this principle – until the unfortunate adoption of the 2006 amendment to FRE 408(a)(2), which now provides that incriminating statements made by a civil defendant while trying to compromise a civil claim can (depending on the identity of the plaintiff) sometimes be used against him at a later criminal trial, but not at the civil trial arising out of the same allegations or at any other civil trial.  The Advisory Committee did not even try to furnish any coherent justification for this anomalous result, and common sense confirms that none is available.  The Committee Notes posit that “Where an individual makes a statement in the presence of government agents, its subsequent admission in a criminal case should not be unexpected” – at least, I suppose, when it is offered against an accused who was not laboring under the disadvantage of knowing only what this rule said for 25 years before its most recent amendment.   But that logic, such as it is, would obviously apply with even great force to support an amendment based on the assumption that a civil defendant who makes a statement in the presence of the plaintiff’s lawyer during settlement negotiations should not be too surprised when that statement is later offered against him by that same lawyer in that same case.  This is one of the many reasons (there are others) why this aspect of the 2006 amendment to Rule 408 was a bad idea and very poorly reasoned, and why it was opposed in the public comments submitted by literally every professional and judicial and academic observer other than the United States Department of Justice – the only party in the nation which benefited from the adoption of this particular provision.

)

-CM 

Still Haven't Found What I'm Looking For: Court Of Appeals Of Texas Finds Prosecution Made Reasonable Attempt To Locate Witness In Murder Retrial For Former Testimony Purposes

Like its federal counterpart, Texas Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for 

testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

And, like its federal counterpart, Texas Rule of Evidence 804(b)(1) only applies when the proponent can prove declarant unavailability under Rule 804(a), which includes situations in which the declarant 

is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.

But what constitutes reasonable means? That was the question presented to the Court of Appeals of Texas, Houston, in Reed v. State, 2009 WL 3050825 (Tex.App.-Houston [1 Dist.] 2009).

In Reed, Keaaron Reed was convicted of the murder of Fred Porter. This conviction, however, cam at the end of Reed's second trial; his first trial ended in a mistrial despite the eyewitness testimony of Samantha Stewart. Stewart did not testify at Reed's second trial, but the prosecution was able to present her testimony from the first trial to the jury pursuant to Texas Rule of Evidence 804(b)(1).

Reed subsequently appealed, claiming that the trial court erred in admitting this former testimony. Of course, he did not dispute that he had an opportunity and similar motive to develop the testimony of Stewart at his first trial; however, he did claim that the prosecution failed to establish that it was unable to procure Stewart's attendance or testimony by process or other reasonable means. The Court of Appeals disagreed, noting that an investigator for the D.A.'s office made unsuccessful attempts to locate Stewart that were

sufficient to show the State made good-faith efforts to obtain Stewart for trial. The record shows repeated efforts by Jones to produce Stewart for trial. Jones exhausted his contacts among Stewart's family and friends and had no knowledge of her whereabouts, except for the speculation she might be in Chicago. Any further efforts could reasonably have been deemed futile by the trial court. Because Jones could not determine where Stewart could be located, a writ of attachment would have been futile because the writ would not have brought the witness to trial. 

-CM