EvidenceProf Blog

Modify Before Codify: Court Of Appeals Of Michigan Reveals Michigan's Failure To Codify Jury Impeachment Rule

Back in July, I posted an entry about the Supreme Court of Michigan creating Michigan Rule of Evidence 611(b), which allows judges to tell witnesses and parties what they can and cannot wear in the courtroom. As far as I know, no other state has codified such a rule in its rules of evidence, and, as I noted at the time, I think that the rule implicates religious liberty. But my question in this post is not whether Michigan Rule of Evidence 611(b) is valid. Instead, my question is how Michigan can get around to creating a rule governing the attire of witnesses and parties and can't get around to creating a rule of evidence governing jury impeachment.

In People v. Malone, 2009 WL 2952683 (Mich.App. 2009), a jury convicted Harvey Malone on charges of carrying a concealed weapon and possession of a firearm during the commission of a felony (felony-firearm) but acquitted him of the more serious charge of assault with intent to commit murder. Now, the opinion of the Court of Appeals of Michigan doesn't tell us much about the facts of Malone's case, but it does tell us that

the trial judge visited the jurors in the jury room after the jury was polled and dismissed. At that time, when asked about the seemingly inconsistent verdicts of "not guilty" for assault with intent to murder and "guilty" for felony-firearm, one juror responded that they felt forced to convict on the felony-firearm charge merely because defendant had a gun. Even though only one juror spoke up, the other jurors apparently nodded in agreement. The trial court granted defendant's motion for a new trial based on a miscarriage of justice because it concluded that a correct interpretation of the jury instructions would have resulted in a "not guilty" verdict for defendant on the felony-firearm count.  

The Court of Appeals of Michigan later reversed, stating,

Seeing that the juror's comments related to the jury's deliberative process and the interpretation of the judge's instructions, it is clear that these comments did not relate to any external influences. In fact, this Court has already held that failing to follow the judge's instructions inheres in the verdict and cannot be impeached by juror testimony....Furthermore, "[a]ny conduct, even if misguided, that is inherent in the deliberative process is not subject to challenge or review."

Malone's main argument on appeal was that Michigan does not have a state counterpart to Federal Rule of Evidence 606(b), which deems most attempts at post-verdict jury impeachment inadmissible subject to certain exceptions. The court noted that Malone was right but found that his argument did not matter because "[a]lthough Michigan does not have a codified prohibition on jurors testifying about internal or intrinsic matters, this is not dispositive because Michigan's common-law prohibition on such testimony is just as binding."  

My response: Why doesn't Michigan have a state counterpart? In looking through the Michigan Rules of Evidence, I see that there is a counterpart to almost every Federal Rule of Evidence. So, why is there no Michigan Rule of Evidence 606(b)?

Now, readers may be wondering why this matters. Well, take the case of People v. Brooks, 2008 WL 2855040 (Mich.App. 2008). I reference this case in my forthcoming article Dismissed with Prejudice because it involved the Court of Appeals of Michigan refusing to allow a convicted defendant to present evidence that the verdict in his case was tainted with racial bias. Now, Michigan courts are not alone in reaching this type of conclusion although several courts do allow for the admission of evidence of juror racial bias to impeach a verdict under the exceptions to Federal Rule of Evidence 606(b) and state counterparts.

The key point, though, is that litigants know that the court will apply the codified rule and its exceptions, even if the outcome might be unsatisfactory. In contrast, here is what the Court of Appeals of Michigan stated in Brooks: "In addition, there is extensive federal case law concerning the distinction between internal and external jury influences to which Michigan courts have sometimes looked in considering jury misconduct cases."[fn]

[fn] Unlike Michigan law, federal law codifies this distinction in the court rule. FRE 606(b).

Okay, so wait a second. The best that the Court of Appeals of Michigan can tell litigants is that Michigan courts might consider the federal exceptions to the anti-jury impeachment rule in a given case. This seems woefully inadequate to me and something that Michigan should immediately change by codifying its common law jury impeachment rule.

-CM

Not That Big Of A Stretch: District Of Connecticut Opinion Finds "Rough Notes" Are Discoverable

A suspect is interrogated by law enforcement agents. During the interrogation, those agents take "rough notes." The suspect is later charged, and a trial date is set. The defendant thereafter requests an order requiring the government to preserve the rough notes and disclose them to him at least 2 weeks prior to trial. The government claims that the court should deny the motion because it doesn't plan to use the notes at trial. Should the court grant the motion? As the recent opinion of the United States District Court for the District of Connecticut in United States v. Jacobs, 2009 WL 2710233 (D. Conn. 2009), makes clear, some courts say "no," while some courts say, "yes," with courts in the Second Circuit falling into the latter category.

The facts in Jacobs were as stated above, with Dwayne Jacobs, a.k.a. "Stretch," being charged with two drug-related offenses. The District of Connecticut granted Jacobs motion for preservation and production, noting that in United States v. Ferguson, 478 F.Supp.2d 220 (D. Conn. 2007). it had found that while there is a circuit split on the issue, the Second Circuit has held that under Federal Rule of Criminal Procedure 16, upon the defendant's request, the government must disclose even rough notes which it does not intend to use at trial. According to the court in Ferguson, here is the basis of the split.

Some courts rely upon Federal Rule of Criminal Procedure 16(a)(1)(A) to find that the government has no disclosure obligation in these cases. That Rule provides that

Upon a defendant's request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.   

But here's the thing: These courts don't consider Federal Rule of Criminal Procedure 16(a)(1)(B)(ii), which was added in 1991, and which provides that

Upon a defendant's request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following:...

(ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent.

The Second Circuit and other courts rely upon this Rule to find that the government has a disclosure obligation in these situations. So, why do some courts ignore Federal Rule of Criminal Procedure 16(a)(1)(B)(ii)? After doing some research, I'm not sure that there is a good answer. The court in Ferguson did note that the Advisory Committee Note to the 1991 amendment could be read as covering or not covering rough notes which the government doesn't plan to use at trial, but, as far as I can tell, these courts aren't using the Note to decide not to apply Federal Rule of Criminal Procedure 16(a)(1)(B)(ii). Instead, they seem to just ignore it.

-CM

Crackback: District Court Of Appeal Of Florida Finds Defendant's Racial Slur Should Have Been Exlcuded In Drug Dealing Appeal

One white officer and two black officers posing as drug buyers approach a man, and the white officer asks him for cocaine. The man refuses but later approaches the two black officers and offers to sell them cocaine, saying “I got you, but I ain't going to deal with you in front of this cracker,” referring to the white officer. The man is later charged with, inter alia, delivery of cocaine within one thousand feet of a convenience business. At trial, should the officers be able to reference the fact that the defendant used the word cracker? According to a Florida trial court, the answer is "yes." According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in its recent opinion in Rich v. State, 2009 WL 3189364 (Fla.App. 4 Dist 2009).

In Rich, the facts were as listed above. At his trial, the defendant moved to preclude the prosecution from referring to hus use of the racial slur "cracker," contending tha

the term was inflammatory, not probative, and might affect some jurors, which included three white males. The state opposed the motion, contending the defendant's statement explained why he sold the cocaine to a black officer. The defendant replied that, even if relevant, the prejudicial effect outweighed any probative value. The trial court denied the motion.

During the trial, the black officers testified to the defendant's statement. During one of the officer's testimony, the defendant renewed his objection, which the trial court overruled. During closing argument, the state, over the defendant's objection, referred to the defendant's statement as follows:

[The defendant] saw two people that he could sell cocaine to, and so he attempted to do it. Why [the black officers]. He told them. And I don't want to repeat the same words he used. But he felt comfortable selling to [the black officers], because of their race. He didn't want to sell to [the white officer], because he was white. And he made it clear, why he didn't want to sell to [the white officer].  

After he was convicted, the defendant appealed, and the Court of Appeal agreed with him that his use of the racial slur "cracker" was not relevant under Florida Evidence Code Section 90.401 because it did not tend to prove or disprove a material fact. According to the court,

The fact that race may have motivated the defendant to sell cocaine to a black person instead of a white person, as the state argued in closing, had no bearing on the fact that the defendant was selling cocaine. This case is unlike those cases in which a defendant's use of a racial slur was relevant to show the defendant's state of mind as an element of the crime charged.

The Court of Appeal, however, found that the trial court's error was harmless and thus affirmed.

-CM

Can I Get A Receipt For That?: Court Of Appeals Of Minnesota Finds Best Evidence Rule Not Violated By Testimony Regarding Receipt Not Offered To Prove Its Contents

Like its federal counterpart, Minnesota Rule of Evidence 1002 provides 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 Legislative Act.

As the language of this Best Evidence Rule indicates, however, it only applies when a part is seeking to prove the content of a writing, recording, or photograph. It doesn't apply when a witness references a writing, recording, or photograph, not to prove its contents, but to establish some other consequential fact. This is the reason why the Court of Appeals of Minnesota rejected the appellant's best evidence challenge in its recent opinion in State v. Wiskow, 2009 WL 3172156 (Minn.App. 2009).

In Wiskow, Cain Lee Wiskow was convicted of of fleeing a peace officer and giving a false name to police. These convictions arose out of a road rage incident. After that incident, Officer John Swenson pulled over a person in a white Lincoln matching the description of the suspect in that incident and asked the driver/suspect, who looked familiar to Swenson, for his license and proof of insurance. The suspect responded that he had neither his license nor proof of insurance but did eventually tell the officer that his name was "Michael Lee Jones."  The officer could not find a match in the state database and again couldn't find a match after the driver said that his last name was spelled "J-O-H-N-S."

Officer Angela Timmerman thereafter arrived and also thought that the suspect looked familiar and asked him

if he had anything in his possession that would help verify his identity. The suspect searched the center console of the vehicle and examined a document before inserting it back into the console. Officer Swenson noticed that the document looked “official” and believed that it might provide some information about the suspect's identity. Officer Swenson asked the suspect to show him the document, and the suspect complied. Officer Swenson determined that the document was a sales receipt for the white Lincoln that contained the name of appellant Cain Wiskow as the purchaser of the vehicle. Upon seeing the name, the officers immediately recognized the suspect as appellant. Officer Timmerman located appellant's driver's license photograph in the state database and confirmed that appellant was the driver.

After the officers recognized Wiskow, he became nervous and fidgety, and when Officer Swenson asked him to turn off his vehicle, Wiskow refused to comply and instead drove away at a high rate of speed. Wiskow was later apprehended after the officers put his name into the state database.

At Wiskow's trial, Officers Swenson and Timmerman testified regarding the receipt, but the receipt was not presented into evidence. This in part led to Wiskow's appeal because he claimed that the officers' testimony violated Minnesota Rule of Evidence 1002.

The Court of Appeals of Minnesota disagreed, finding that the prosecution was not seeking to prove the contents of the receipt (i.e., that Wiskow was the owner of the Lincoln); instead, they were using the receipt to explain what triggered the officers' memories of appellant's identity and caused them to search for appellant in the state database. Therefore, because the prosecution was using the receipt to prove another consequential fact and not its contents, its admission did not violate Minnesota Rule of Evidence 1002.   

-CM

Stupid Human Tricks: Halderman's Attorney Claims Evidence Of David Letterman's Sexual Harrassment Will Be Admissible At His Client's Attempted Grand Larceny Trial

I'm sure that by now most readers have heard about the alleged attempt by longtime 48 Hours Mystery producer Robert "Joe" Halderman to extort money from David Letterman. Basically, the state contends that the extortion began with Halderman "dropping off, in Letterman's limousine, a purported screenplay outline about a talk-show host who is brought down by an affair, as well as copies of sections of [Stephanie] Birkitt's diaries." And the state contends that it ended with Letterman giving Halderman a fake $2 million check at the behest of the Manhattan D.A.'s office and Halderman being busted when he tried to deposit the check at the bank. Halderman was subsequent charged with attempted grand larceny in the first degree under New York Penal Law Sections 110 and 155.42. Now, Halderman's attorney, Gerald Shargel, claims that he has evidence of Letterman's sexual harassment of his staff members, which he plans to "shar[e] in the courtroom," and some attorneys claim that the evidence could indeed be admissible. I don't see how.

Let's start with the basics. Halderman is charged with attempted grand larceny in the first degree. New York Penal Law Section 155.42 states that

A person is guilty of grand larceny in the first degree when he steals property and when the value of the property exceeds one million dollars.

Meanwhile, New York Penal Law Section 110 states that

A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.

In other words, because Halderman allegedly intended to extort $2 million from Letterman and engaged in conduct which tended to effect the commission of that crime but was ultimately unsuccessful (because of the fake check), he was charged with attempted grand larceny in the first degree. Of course, it is specifically alleged that Halderman engaged in attempted extortion, which calls into question his state of mind. As the Supreme Court of New York, New York County noted in People v. Kacer, 448 N.Y.S.2d 1002, 1007 (N.Y.Sup. 1982 1982),

It is the state of mind coupled with the actions of the defendant which are significant. To require that a defendant must actually achieve his criminal aim would be to undercut the usefulness of the attempt statute, dealing as it does with criminal enterprises before they reach fruition....The actual causing of fear in the mind of the victim should not be a required element of the crime of attempted extortion.

So, evidence reflecting on Halderman's state of mind/intent is thus relevant and could be admissible. For instance, if Halderman made statements indicating that he did not have the intent to commit extortion, he could be able to admit them to prove his innocent state of mind. But see United States v. Persico, 853 F.2d 134, 136 (2nd Cir. 1988) (noting that a federal district court in New York in an extortion case rejected defense counsel's theory that a conversation involving the defendant was admissible under the state of mind exception to the rule against hearsay to prove the defendant's innocent state of mind). Moreover, the prosecution could present evidence of the state of mind of the victim -- Letterman -- to prove its case. See, e.g., People v. Ealey, 710 N.Y.S.2d 321, 322-23 (N.Y.A.D. 1 Dept. 2000) ("The court properly received evidence that the two victims in the instant case were aware of defendant's prior extortion of another person, in order to establish the victims' states of mind with respect to defendant's extortionate acts."). 

Shargel's claim, though, seems strange to me. He claims that he has evidence that Letterman engaged in sexual harassment of staff members and that he can introduce it because it is relevant to Halderman's state of mind. Moreover, according to an article on the case

Some criminal lawyers said Monday that issue would likely be fought over before a trial, and a judge could rule the specifics of Mr. Letterman’s behavior irrelevant to the charge of extortion. But the lawyers also said that the risk that such details could be brought out in court might be enough to compel Mr. Letterman to ask the district attorney to look for ways to avoid a trial.

“It could foreseeably be admissible,” said Gerald Lefcourt, a defense attorney with experience with both criminal and celebrity cases. He said the court could decide to hear the defendant’s explanation that he intended to write a true story in a screenplay and went to Mr. Letterman to see if he would pay to avoid that.

Now, I see Lefcourt's point, but I don't see how evidence of Letterman's alleged sexual harassment would fit into Halderman's proposed explanation of his behavior. The key question seems to me to be how Halderman approached Letterman with his information and how Letterman ended up giving him $2 million. Whether Halderman approached Letterman with information about sexual contact between Letterman and his staff members or sexual harassment between Letterman and his staff member seems irrelevant. It is how Halderman used that information that is relevant.

-CM

Liar, Liar: Court Of Appeals Of Texas Opinion Reveals Impairment/Disability Impeachment Exception

In relevant part, Federal Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Therefore, if the prosecution impeaches a defendant, defense counsel might respond by calling a witness to testify concerning the defendant's reputation for honesty. The prosecution could thereafter ask the witness whether he had heard that the defendant committed some specific act of dishonesty but could not prove that act through extrinsic evidence. Texas Rule of Evidence 608(b) is more restrictive. It provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

As the recent opinion of teh Court of Appeals of Texas, Houston, in State v. Moreno, 2009 WL 3126607 (Tex.App.-Houston [14 Dist.] 2009), makes clear, however, this restriction does not apply specific act evidence tends to establish an impairment or disability affecting a witness' credibility.

In Moreno, Bobby Lee Moreno was convicted of two counts of aggravated sexual assault based upon acts that he allegedly committed against his then 12 year-old half-sister. After reporting this alleged abuse, the half-sister, the complainant, was admitted to the Devereux Treatment Center. A psychiatric assessment on the day of admission reported the following history:

[Complainant] is a 12-year-old white female brought in by her mother due to reports of her revealing that she felt that she “messed up her life” and “didn't want to deal with it anymore.” She began crying and screaming at home. She reportedly was upset about recent sexual abuse and not remembering what really happened versus what she thought may have happened. [Complainant] is very tearful during the interview and per staff, she has been crying frequently during the day. She rapidly recounts feelings that her mother had put a pillow over her face to keep her from crying even though she is not sure this actually happened. She also is scared that she may endanger her current living environment after telling people about this incident and another incident about her stepfather hitting her. She is unsure but ruminates about feelings that she has done something sexually inappropriate with her 5-year-old sibling “but I really didn't.” [Complainant] usually reports feeling happy but has been tearful and crying for the last four days. She admits to suicidal ideation stating “I would jab a pencil in my arm.” She admits to sometimes getting mad and as a result begins “yelling and screaming.” She admits to engaging in sexual play with a cousin from age 8 to recently. CPS reportedly has been involved in the past.

Moreover,

When the complainant's mother and stepfather were interviewed about the alleged physical abuse, they said that since reporting the sexual assault by appellee the complainant could not “distinguish between what is imagined and what is reality.” The complainant thought she had been abused by people other than her half brother. She also admitted that she thought she had inappropriately touched others including her five-year-old brother and a cousin. The reports state that “Each of these persons are shocked and report no such events.” The therapist reported that the complainant's grasp of reality and her imagination are “very much confused in her mind.” Another entry read, “Patient's larger issue is with talking about doing bad things she has not even done. Therapist now feels this may be partly due to confusion with reality. More due to the attention patient gets from all the talk.” The therapist also recognized that the complainant had false fantasies.  

Moreno was rebuffed by the trial judge in his attempt to cross-examine the complainant regarding these records during the guilt phase of his trial. After he was convicted, he appealed, and the Court of Appeals of Texas agreed with him, finding that Moreno was not attempting to introduce the records for the purpose of attacking the complainant's credibility. Instead, according to the court, he was attempting to introduce the records to establish an impairment or disability affecting the complainant's credibility.

Now, one could certainly argue that there is no difference between the two, but I think that I see the distinction. A litigant cannot not present specific act evidence to prove that a witness is a liar. Thus, defense counsel could not ask an eyewitness whether he had cheated on his taxes to prove that his testimony should not be trusted. But, defense counsel could ask the eyewitness whether he is nearsighted and was wearing glasses at the time of the crime he witnessed. In this case, defense counsel would be using the evidence to establish an impairement or disability affecting the witness' credibility and would not be making a direct attack on the witness' credibility.

-CM

The Efficiency Expert: WDNY Opinion Reveals Circuit Split Over Vocational Expert Testimony In Disability Adjudications

It is well established that the Federal Rules of Evidence do not apply to disability adjudications. That said, as with other proceedings in which the Rules do not apply, they remain relevant. Therefore, in its recent opinion in Piekarski v. Astrue, 2009 WL 299277 (W.D.N.Y 2009), which involved a disability adjudication, the United States District Court for the Western District of New York had to determine whether a vocational expert used reliable methods. In resolving that issue, the court noted but found that it did not have to resolve a circuit split on the reliability issue.

In Astrue, William G. Piekarski challenged an Administrative Law Judge's (“ALJ”) determination that he was not disabled within the meaning of the Social Security Act. Piekarski alleged that he had been disabled since April 30, 2001, due to polysubstance dependence, major depression, anxiety, and back problems, which rendered him unable to work.

The ALJ, however, denied Piekarski disability benefits, relying in part on the testimony of vocational expert Timothy Janikowski, Ph.D., C.R.C., who testified that a significant number of jobs exist in this economy which Piekarski could perform. On Piekarski's ensuing appeal, the United States District Court for the Western District of New York noted that the Federal Rules of Evidence do not apply to disability adjudications, making inapplicable Federal Rule of Evidence 702, which 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.  

That said, the court noted that vocational experts must still use reliable methods. But do they have to prove that their methods are reliable? According to the Western District of New York, there is a split on the issue. Some courts, such as the Seventh Circuit, hold that if a vocational expert's testimony is questioned at a hearing, the ALJ should make an inquiry, similar to the Rule 702 inquiry, to find out whether the purported expert's conclusions are reliable. Conversely, other courts, such as the Ninth Circuit, hold that "a vocational expert's recognized testimony provides the necessary foundation, and no additional foundation is required."

The problem for Piekarski was that he never objected to Dr. Janikowski's testimony at trial, meaning that the Western District of New York did not have to resolve the circuit split. Nonetheless, the court did ask the doctor to explain the bases for his conclusion, and he responded "that his conclusions were based upon various government publications, statistics reports, labor market surveys, and his own adjustments through his professional experiences."

While the court didn't have to resolve the split, I think that the Seventh Circuit has it right. Just because somebody has expert qualifications doesn't mean that we should presume that his actions and conclusions are reliable. After all, we have malpractice actions against doctors and lawyers for a reason. It thus seems to me to be the better practice to require vocational experts to explain their methods upon request rather than presuming them to be reliable based upon the expert's qualifications.

-CM