EvidenceProf Blog

In Good Hands?: Court Of Appeals Of Kentucky Opinion Reveals Danger Of Using Privileged Documents To Refresh Recollection

Like its federal counterpart, Kentucky Rule of Evidence 612 indicates that

Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.

In other words, as the recent opinion of the Court of Appeals of Kentucky in Hager v. Allstate Insurance Company, 2009 WL 3320938 (Ky.App. 2009), makes clear, if you have a document that you want to keep privileged, don't use it to refresh the recollection of a witness.

In Hager, 

Thomas LaPointe, who was insured by Allstate, rear-ended the Hagers' vehicle. Mr. Hager, Geneva's husband, was driving, and Geneva Hager was a passenger. According to LaPointe's recorded statement of the accident, his brakes failed as he approached the Hagers' truck. In response, he shifted his vehicle from second gear to first gear and turned off the motor. While in second gear, LaPointe estimated that he was going approximately fifteen miles per hour. After gearing down, he thought he was going around five miles per hour when he rear-ended the Hager vehicle. LaPointe described the impact like unexpectedly hitting a speed bump.

Geneva's insurance claim was thereafter handled by Allstate's Minor Impact Soft Tissue (“MIST”) unit, and she later brought an action against Allstate, claiming that it handled her claim in bad faith. After trial, the jury returned a verdict in favor of Allstate, prompting Hager's appeal.

One of the grounds for Hager's appeal was that the trial court erred in entering an order requiring her to disclose privileged communications between her counsel and an expert witness, the Honorable James E. Keller, including an engagement letter. This letter 

was a five-page letter of the factual background of the matter authored by Hager's counsel. The letter became an issue at Justice Keller's deposition when he stated that he believed he asked for a letter from Hager's counsel setting forth the facts relating to the case. When asked in more detail regarding the letter by Allstate's counsel, Justice Keller asked for a recess during his deposition to review the letter to refresh his recollection. Thereafter, he did so.

According to the Court of Appeals of Kentucky, because Hager's counsel used the letter to refresh Justice Keller's recollection under Kentucky Rule of Evidence 612, Allstate was entitled to have the writing produced. Moreover, the appellate court found that the trial court followed the proper procedure under Kentucky Rule of Evidence 612 because it 

ordered the letter to be produced in camera and under seal. After reviewing it, the court ordered Hager to produce it, ruling that Allstate was entitled to the communications and documents provided to Justice Keller from Hager's counsel “upon which the expert relied in formulating his opinions, and any revisions thereto...."

-CM

Chicken Little Or Canary In The Coal Mine, Take 4: Article Speculates That Melendez-Diaz Could Have Substantial Negative Impact In Military Justice System

I have written three previous posts (here, here, and here) on this blog about the Supreme Court's recent opinion in Melendez-Diaz v. Massachusetts. Basically, this opinion held that certificates of state laboratory analysts were "testimonial" and thus covered by the Sixth Amendment. I titled each of these posts, "Chicken Little or Canay in the Coal Mine" because of the differing views of the impact of the opinion offered by Justices Scalia and Kennedy in their majority and dissenting opinions, respectively. According to Scalia, the opinion will not have a substantial negative impact on criminal prosecutions, but Kennedy disagreed. According to a new article by Patrick McClain, one place where the opinion might have a substantial negative impact is in the military justice system.

McClain notes that 

To enforce drug policies and ensure compliance by servicemembers, the military has an expansive testing system. Drug testing is most commonly conducted at random, but the military also has the authority to require probable cause testing, unit/command sweep testing and commander-directed testing.

Once a urine sample has been collected, it is sent to one of the military testing facilities across the country to determine if the servicemember has violated the military's drug policy. If the results are positive, the servicemember will be subject to discipline for violating the military's policies, which generally has resulted in a court martial....

In bringing evidence against a servicemember for failing a urinalysis test, the military has allowed prosecutors to introduce a "documentary" or "litigation" package concerning the lab test results. The documentary package usually includes the lab report itself and in-court testimony from a representative of the lab (sometimes referred to as a "surrogate") who is familiar with the personnel and procedures of the lab that conducted the testing.

However, it appears that the use of a documentary package in urinalysis cases is no longer constitutional under Melendez-Diaz. While the decision left it unclear which analyst would have to be available for in-court testimony, the military may have to bring in every analyst who was involved in the testing process.

If the military is required to do this, it could greatly increase the time and expense of prosecuting drug cases. Rather than using a documentary package with one person's testimony, the prosecution may have to bring in everyone who was involved in the collection and evaluation of the urine sample. Labs across the country already are dealing with resource constraints, burdened with heavy workloads and long hours. Requiring the analysts to prepare the reports and to be available for in-court testimony will only further add to this burden and increase the backlog in these overworked laboratories.

McClain speculates that 

Because of this increased burden, Melendez-Diaz also could ultimately result in expanded use of administrative separation proceedings rather than court martial to handle drug cases. Administrative separations are not punitive in nature; these proceedings cover both voluntary and involuntary separations. However, such a result would be at the detriment of servicemembers facing drug charges.

The administrative process has a lower standard of proof (probable cause) and defendants are afforded fewer legal rights and protections than in a court martial....Given the great impact the result of an administrative separation proceeding can have on a person's career, handling urinalysis cases in proceedings with fewer rights and legal protections seems inappropriate at best.

Of course, McClain notes that all of the above is just speculation and that 

Some commentators believe the opinion ultimately will not have much impact on the way urinalysis cases are prosecuted and believe the military will distinguish the Melendez-Diaz opinion in a way that allows them to continue using documentary packages. Others, however, fear the ruling could greatly impact the military justice system and increase the costs of prosecuting urinalysis cases.

Another reason why worrying about the effect of Melendez-Diaz now might be premature is because, as I have noted before, the Supreme Court recently granted cert in Briscoe v. Virginia, and the Supremes (especially with the new addition of Sotomayor) may very well overrule Melendez-Diaz or at least limit its application.

-CM

It's My Space. That's Why They Call It MySpace, Take 4: Supreme Court of Indiana Seemingly Errs in Deeming MySpace Evidence Admissible In Murder Appeal

I have written three previous posts on this blog (here, here, and here) about court rulings addressing the admissibility of evidence on parties' MySpace pages. The latest court to weigh in on the issue was the Supreme Court of Indiana in its opinion in Clark v. State. In my opinion, the Indiana Supremes, got it wrong.

In Clark, a jury found Ian J. Clark guilty of murdering a two year-old left in his care. You can get the full facts in the opinion of the Supreme Court of Indiana, but here are some of the basics:

Ian J. Clark was living...with his fiancée Matara Muchowicz and her daughter Samantha. Samantha typically stayed with a friend while Clark and Matara were at work, but Clark had been laid off at some point during the month and in an effort to save money Matara began leaving Samantha with Clark for the day.

When Matara arrived home on May 25th, around 2 p.m., she found Clark lying on the couch with Samantha on his chest, naked and blue. Matara approached the couch and noticed blood on the blanket that was covering up Clark. After being questioned about the blood, Clark sat up and then fell and stumbled into the coffee table, dropping Samantha on the ground. Clark told Matara that Samantha was breathing. Matara tried to wake Samantha, but she was cold. Samantha’s head was thrown back and she was gurgling. Matara took Samantha and went to call 911. Clark told Matara to put the phone down and that Samantha was "brain dead" and then lit a cigarette and turned on the television.

Matara dialed 911, but Clark grabbed the phone out of her hand. Clark told Matara there was nothing wrong with Samantha and that she was breathing. He kept telling Matara that Samantha was fine. Matara told Clark they needed to call an ambulance. Clark continued to try to prevent Matara from calling 911. Clark took the phone from Matara and tried to drag her away from the phone. When Matara managed to dial 911 and ask the operator for help, Clark struck Matara in the back of the head with his fist.

Matara managed to make a second call to 911....[Officers later arrived and] arrested Clark and transported him to the hospital with blood on his shirt. While waiting in an exam room with police, Clark told a detective that ― I will f. . .ing kick your ass. I will send the Hell’s Angels to kill you. F. . . it. It’s only a C felony. I can beat this.

[Samantha was leter declared dead]. Samantha suffered at least twenty separate injuries, more than one of which would be lethal, and she was still alive when she sustained many of them. An emergency room doctor described Samantha’s "fresh" injuries as the worst he had observed in twenty years. Neither one fall, nor multiple falls, nor multiple household accidents, could possibly have caused Samantha’s injuries. The official cause of death was by multiple blunt force injuries and the official manner of death was ruled a homicide.

Muchowicz had helped Clark create a MySpace Page, and the prosecution admitted evidence of this page at trial, such as Clark's own description of himself:

Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I’m glad to say I have helped you people in my past who have done something and achieved on the other hand, I’m sad to see so many people who have nowhere. To those people I say, if I can do it and get away. B. . . sh. . . . And with all my obstacles, why the f. . . can't you.

After he was convicted, Clark appealed, claiming, inter alia, that the evidence from his MySpace Page was impermissible character evidence. That appeal eventually reached the Supreme Court of Indiana, which disagreed, noting that Indiana Rule of Evidence 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." The court found that this rule was not applicable to the evidence from Clark's MySpace Page because it "contained only statements about himself and in reference to himself" and was not evidence of "prior criminal acts."

Here's where I think that the court went wrong. Indiana Rule of Evidence 404(a) (read in conjunction with Indiana Rule of Evidence 405(a)) also precludes opinion and reputation evidence concerning a person's character. And this rule precludes the admission of even a defendant's own opinions concerning his own character. See, e.g., State v. Jalowiec, 744 N.E.2d 163 (Ohio 2001).

Now, the Supreme Court of Indiana seemed to be trying to argue that it could get around this issue by holding that Clark "made his character a central issue" in his trial, allowing the prosecution to respond in kind under the mercy rule contained in Indiana Rule of Evidence 404(a)(1). The problem with this holding is that I think that it is inaccurate. According to the court, Clark made his character a central issue by testifying "about his state of mind, suggesting his intent could only have been 'reckless' and not criminal."   

The problem with this argument is that such testimony is not character evidence. It is evidence about whether Clark was reckless at the time of the crime charged, not whether he was generally a reckless (or violent) person. Thus, Clark did not inject the issue of character into his trial, and the prosecution should have been precluded from presenting evidence from his MySpace Page at trial (Looking at the rest of the evidence in the case, though, I think that there was sufficient evidence to support a conviction even in the absence of this evidence).

-CM

Picture (Im)Perfect?: Second Circuit Finds Wearing Of T-Shirts With Victim's Photograph Not Inherently Prejudicial In Murder Appeal

A defendant is on trial for murdering a victim. During trial, the victim's relatives wear t-shirts displaying the victim's photograph. If the defendant is convicted of murder, should he be awarded a new trial based upon the t-shirts being inherently prejudicial? According to the Second Circuit in its recent opinion in United States v. Farmer, 2009 WL 3200690 (2nd Cir. 2009), the answer is "no," at least based upon the particular factual context with which it was presented.

In Farmer, Laval Farmer was convicted by a jury of murdering Jose Angel White and attempting to murder Jacquel Patterson “for the purpose of...maintaining or increasing [Farmer's] position” within the Bloods street gang as well as conspiring to assault with a dangerous weapon and discharging firearms during the murder and the attempted murder.

On the fourth day of trial, defense counsel requested “that nobody be permitted in this courtroom with T-shirts with a picture of Jose White for the jury to see.” Counsel explained that he had not noticed the shirts [on White's relatives] during the first three days of trial, but that he found out when his wife read about them in the newspaper.

Judge Platt responded that he had seen several spectators “[o]ne of the first days” and that it appeared “there was a picture.” But he was not sure if jurors had sufficiently good eyesight to see the photographs or if “they would be affected by the picture,” because he “couldn't recognize that they had a picture, even with [his] glasses on.” As to Farmer's request, Judge Platt opined that “[p]eople are free to walk into a courtroom with whatever they want on their clothing, and I'm reluctant to adopt a different rule.” Nonetheless, he “urge[d] the prosecutors to urge them not to come into this courtroom with shirts with pictures.

After he was convicted, Farmer appealed, claiming, inter alia, that, pursuant to the Supreme Court's opinions in Estelle v. Williams, 425 U.S. 501, 505 (1976) and Holbrook v. Flynn, 475 U.S. 560, 562 (1986), the t-shirts were so inherently prejudicial as to pose an unacceptable threat to his right to a fair trial, necessitating a new trial. In particular, Farmer relied upon two Ninth Circuit cases, including Musladin v. Lamarque, 427 F.3d 653, 657-58, 661 (9th Cir. 2005), which held that a defendant was inherently prejudiced when the victim's family members sat in the front row at trial wearing buttons with the victim's photograph.

The problem for Farmer, according to the Second Circuit, was that the Supreme Court overruled Lamarque in Carey v. Musladin, 549 U.S. 70, 72 (2006), in which it noted that both Estelle v. Williams and Holbrook v. Flynn involved "state-sponsored courtroom practices" and identified but did not resolve a circuit split over whether courtroom displays by private spectators can ever be "inherently prejudicial." According to the Second Circuit,

Carey v. Musladin, in effect, wiped the slate clean and left it to lower courts to address claims such as Farmer's in the first instance. However, the circumstances of this case do not require us to decide whether courtroom displays by private actors can ever be “inherently prejudicial.” Defense counsel did not observe the relatives' T-shirts for three days, the trial judge could not make out the picture, and the imagery and its import only became known because a reporter providing daily coverage of the trial interviewed White's relatives for his story....On these facts, we cannot conclude that “what [the jurors] saw was so inherently prejudicial as to pose an unacceptable threat to [the] defendant's right to a fair trial.”...

Moreover, once defense counsel called the T-shirts to the district court's attention, the court instructed the government “to urge [Farmer's family] not to come into this courtroom with shirts with the picture.” There was no further objection from defense counsel, and there is no indication in the record that the government or Farmer's family ignored the court's request. This intervention fulfilled the obligation of trial judges to “take careful measures to preserve the decorum of courtrooms."

-CM

Lacking Consistency: Court Of Appeals Of Texas Seemingly Errs In Deeming Prior Consistent Statements Admissible In Sexual Assault Appeal

Like Federal Rule of Evidence 801(d)(1)(B), Texas Rule of Evidence 801(e)(1)(B) provides 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.

In other words, if a witness says something at trial and opposing counsel presents evidence that the witness' testimony is the product of some recent event giving the witness an improper motive to lie, the party calling the witness can thereafter present a consistent statement preceding the event to challenge this "product" argument. In its recent opinion in Hutson v. State, 2009 WL 3210704 (Tex.App.-Dallas 2009), the Court of Appeals of Texas, Dallas, found that Texas Rule of Evidence 801(e)(1)(B) was applicable in a sexual assault trial. I disagree.

In Hutson, Timothy Hutson was convicted of aggravated sexual assault of a child under fourteen years of age based upon acts he allegedly committed against his stepdaughter. The stepdaughter testified to these acts at trial, and, after defense counsel cross-examined the stepdaughter, the court allowed for the admission of prior consistent statements that she made to the police.

On appeal, Hutton claimed that these prior consistent statements were wrongfully admitted because, inter alia, "there was no cross-examination accusing [the stepdaugher] of recent fabrication." The court, however, disagreed, noting that "the charge of recent fabrication may be either express or implied" and that the Court of Criminal Appeals of Texas had found in Hammons v. State, 239 S.W.3d 798 (Tex.Crim.App. 2007) that

a reviewing court, in assessing whether the cross-examination of a witness makes animplied charge of recent fabrication or improper motive, should focus on the “purpose of the impeaching party, the surrounding circumstances, and the interpretation put on them by the [trial] court.” Courts may also consider clues from the voir dire, opening statements, and closing arguments. From the totality of the questioning, giving deference to the trial judge's assessment of tone, tenor, and demeanor, could a reasonable trial judge conclude that the cross-examiner is mounting a charge of recent fabrication or improper motive? If so, the trial judge does not abuse his discretion in admitting a prior consistent statement that was made before any such motive to fabricate arose.  

The court then noted that this standard had been met in the case before it because 

appellant's cross-examination of the complainant focused on her counseling and punishment for lying, her repeated denials to counselors and investigators that she had been sexually assaulted, and what appellant asserted were inconsistent statements in the earlier trial that appellant had not assaulted her. Appellant also questioned the other witnesses about the complainant's lying. In his opening statement, appellant's counsel stated the complainant “has had a chronic, severe problem of lying.” In his argument to the jury, appellant's counsel stated the complainant “had a habitual, a pathological problem with lying.” After “giving deference to the trial judge's assessment of tone, tenor, and demeanor,” we conclude the trial court could determine that appellant's counsel was “mounting a charge of recent fabrication."

Here's my problem. According to the court itself, "the charge of recent fabrication may be either express or implied." (emphasis added). Does this look like a charge of recent fabrication to readers? It sure doesn't to me. Instead, it looks to me like defense counsel was labeling the stepdaughter as a "chronic," "habitual," and "pathological" liar. Moreover, even if defense counsel were raising a charge of recent fabrication, as the Court of Criminal Appeals of Texas noted in Hammons, the prosecution could have only admitted "a prior consistent statement that was made before any...motive to fabricate arose." My question is: What was the motive in Hutson, and when did it arise? To admit the stepdaughter's consistent statements, the court(s) needed to establish the date that a motive to fabricate arose and establish that the consistent statements were prior to that date. They didn't.

-CM

Judge As Super Witness?: Supreme Court Of Tennesse Grapples With Whether And When Judges Should Be Able To Testify

Like its federal counterpart, Tennessee Rule of Evidence 605 provides that "[t]he judge or chancellor presiding at the trial may not testify in that trial. No objection need be made in order to preserve the point." But what happens when the prosecution wants to have the judicial commissioner who made the initial determination of probable cause testify at a defendant's trial? That was the problem recently addressed by the Supreme Court of Tennessee in State v. Nash, 2009 WL 3191550 (Tenn. 2009).

In Nash, Scott Nash was arrested based upon suspicion that he was driving under the influence.

At the police department, Judicial Commissioner Harold Sutton observed Mr. Nash “passed out” in the back of the patrol car. Although Commissioner Sutton normally administered sobriety tests, he testified that it was impossible to administer such tests under these circumstances. After viewing a videotape of the traffic stop and arrest, Commissioner Sutton instructed Officer Sesler to transport Mr. Nash to the hospital emergency room “because of his level of intoxication.” At the hospital, Mr. Nash admitted to drinking “a pint of alcohol” and blood tests showed his blood alcohol content (BAC) was .249%.

Nash was subsequently charged with driving while under the influence of an intoxicant, driving while having an alcohol concentration of greater than .10%, and driving on a revoked license. At trial, the prosecution called, among other witnesses, Commissioner Sutton to testify as a fact witness. Following cross-examination of Commissioner Sutton, Nash moved for a mistrial on the grounds that it was improper for Commissioner Sutton, as a member of the judiciary, to testify in a criminal case in which he had made the initial determination of probable cause. The trial court denied the motion, and, after Nash was convicted, he appealed on this and other grounds.

That appeal subsequently reached the Supreme Court of Tennessee, which first noted that the issue was not governed by Tennessee Rule of Evidence 605 because Commissioner Sutton was not presiding over Nash's trial. The court also indicated that no Canon of the Tennessee Code of Judicial Conduct explicitly precluded Commissioner Sutton's testimony. Instead, the Tennessee Supremes noted that Canon 2B of the Tennessee Code of Judicial Conduct merely provides that "[a] judge shall not testify voluntarily as a character witness," with the accompanying Comment stating that

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be places in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.

That said, the court acknowledged that

[c]ourts in other jurisdictions, when presented with similar issues, have expressed concerns that judicial testimony could potentially undermine judicial independence and create an appearance of impropriety....Similarly, courts have been disturbed by the possibility that juries would view judges as “super witnesses,” which would allow testifying judges to inadvertently exert undue influence over the proceedings.

The court thus held that

[i]n light of these valid concerns, judicial testimony should be used with restraint and caution. While we do not expressly approve of the State's use of the judicial commissioner as a fact witness in the present case, neither the Rules of Evidence nor the Code of Judicial Conduct requires his disqualification under these circumstances, and we do not find that the trial court abused its discretion in allowing Commissioner Sutton's testimony based on the facts of this case.

-CM

Wii Fit?: District Of Colorado Decides To Apply Colorado Privilege Law In Class Action Suit Against Nintendo For Defective Wiimote Wrist Straps

This summer, my wife and I purchased the Nintendo Wii, and we love it. My current favorite game is table tennis on Wii Sports Resort because, with the new Wii Motion Plus, I can put as much topsin on my forehand as Rafeal Nadal and as much slice on my backhand as Steffi Graf. After numerous attempts, I finally beat my nemesis, Lucia, and I am on my my way to breaking 2,000 points with my Mii. That said, before playing, I always make sure that the wrist strap on my Wiimote is tight because I have heard stories of Wiimotes slipping out of peoples' hands and destroying TVs. According to the plaintiffs in a class action suit against Nintendo, even this precaution is insufficient because the straps on Wiimotes are defective. At this point in the action, in Elvig v. Nintendo of America, Inc., 2009 WL 3048445 (D. Colo. 2009), however, the United States District Court for the District of Colorado merely had to determine which state's privilege law to apply.

In Elvig, plaintiffs, on behalf of themselves and others similarly situated, asserted that they suffered damages resulting from an alleged defective wrist strap attached to the Wiimotes for the Wii game system sold by Nintendo. Specifically, Nintendo has designed three different wrist straps for its Wiimotes, all of which the plaintiffs claim are defective. Strap I had a filament diameter of .6 mm, Strap II had a filament diameter of 1.0 mm and was intended to remedy the performance shortcomings of Strap I, and Strap III has a filament diameter of 1.0 mm, but also possesses a purportedly locking mechanism on the wrist strap 1.0 mm filament, presumably to address the safety and performance shortcomings of Straps I & II.

The class representatives are Molly Elvig from Colorado, Michael Hamilton from California, and Brian Katz from Florida. According to all of these individuals, they or their children were properly using their Wiimotes when their wrist straps broke, leading to shattered TV screens (you can find all of the details of their claims in their complaint at 2009 WL 2627664).

The issue that the United States District Court for the District of Colorado had to resolve in Elvig was which state's privilege law it had to apply in resolving privilege issues during the discovery process. The court first noted that, pursuant to Federal Rule of Evidence 501, it had to apply state privilege law because the action before it was a diversity action, not a federal question action. But which state's? Colorado? California? Florida? Or all three? Nintendo argued "that the claims raised in th[e] action [we]re governed by the law of each Plaintiff's home state (Colorado, California and Florida). The court disagreed, concluding that

While this Court may apply the law of each state to the issues raised in this within motion, it may also choose to apply the law of the state in which it sits....In the interests of judicial economy and because neither party objects, the Court will apply Colorado law to the issues (as appropriate) raised herein.

-CM