EvidenceProf Blog

Crossing Over: Second Circuit Opinion Reveals Party Should Have Been Able To Invoke Fifth Amendment Privilege In Response To Immigration Interrogation

In my forthcoming essay, Crossing Over, I argue that

immigration status is an improper subject for impeachment because it is most akin to trespassing, which is not an impeachable offense under Rule 608, and fundamentally dissimilar from the acts related to crimen falsi, which are generally the only impeachable offenses under the Rule. 

Moreover, even if immigration status were an impeachable offense under Rule 608, courts should foreclose immigration interrogation for impeachment purposes because of its capacity to divide and prejudice jurors and discourage illegal aliens from bringing legitimate lawsuits for fear of being deported. Finally, if an attorney seeks to impeach a witness based upon his immigration status or his alleged commission of some immigration-related crime, such as fraudulently obtaining documentation, the witness should be able to invoke his Fifth Amendment privilege against self-incrimination.

The recent opinion of the Second Circuit in Bonilla v. Jaronczyk, 2009 WL 4282000 (2nd Cir. 2009), contains an example of the latter situation, i.e., a situation where a party asked about immigration-related crimes should have been able to invoke his Fifth Amendment privilege against self-incrimination.

In Jaronczyk, Ofidio Bonilla, a New York State prisoner, appealed from a final judgment entered after a jury verdict in favor of the defendants-corrections officers on his claim of excessive force under 42 U.S.C. § 1983. At trial, during cross-examination of Bonilla, the defendants were permitted to inquire into specific instances of conduct bearing on Bonilla's “character for truthfulness or untruthfulness” pursuant to Federal Rule of Evidence 608(b). On Bonilla's appeal, the Second Circuit found no error with this interrogation, concluding that:

Questions regarding Bonilla's alleged use of false papers to reenter the United States illegally clearly satisfied this standard. Any other references to Bonilla's immigration status occurred in the context of defendants' inquiry into his prior convictions, evidence of which was admissible under Federal Rule of Evidence 609.

By taking a closer look at Rule 608(b), however, we can see why Bonilla should have been able to object to this first line of questioning. That Rule does provide in part 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.

The Rule, however, concludes by stating that:

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

Clearly, Bonilla's responses to the defendants' questions created a real and appreciable danger of self-incrimination because they could have been used to prosecute him for, among other possible crimes, reentering this country illegally as a removed alien under  8 U.S.C. § 1326. Thus, he should have been able to invoke his Fifth Amendment privilege against self-incrimination and refuse to answer questions on the subject.

-CM

Article Of Interest: Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence By Professor Jeffrey Bellin

[T]he Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt. Griffin v. California, 380 U.S. 609, 615 (1965).

[T]he Fifth Amendment requires that a criminal trial judge must give a "no-adverse-inference" jury instruction when requested by a defendant to do so. Carter v. Kentucky, 450 U.S. 288, 301 (1981)

As SMU Dedman School of Law Professor Jeffrey Bellin notes in his forthcoming article, Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence, "[d]espite their doctrinal shortcomings, the holdings of Griffin and Carter remain largely intact today, forming one of the defining features of American criminal trials." Those shortcomings form the basis for the reconceptualization Professor Bellin sets forth in his article.

According to Professor Bellin, the main shortcoming is textual: Simply put, "[T]he Fifth Amendment does not...preclude 'any presumption against' a silent defendant, rather it prohibits being 'compelled' to be a witness." Many authorities, though, assume that criminal defendants must pay no penalty for exercising their Fifth Amendment right to remain silent because the Supreme Court said as much in sweeping dicta in Malloy v. Hogan, 378 U.S. 1, 8 (1964). As Professor Bellin astutely notes, "Malloy's 'no penalty' language wildly overstates the Fifth Amendment's protections" because "both before and after Malloy, the Supreme Court has upheld, against a Fifth Amendment challenge, government-imposed 'penalties' upon a defendant's exercise of his right to silence."   

For instance, in McGautha v.California, 402 U.S. 183, 213 (1971), "the Court rejected a Fifth Amendment

challenge to a unitary death penalty trial, even though the nature of the trial forced the defendant to either testify in the guilt phase of the trial, or forego the opportunity to personally seek clemency in the penalty phase." And in Raffel v. United States, 271 U.S. 494, 496-97 (1926), the Supreme Court permitted a testifying defendant to be impeached in a second trial by the fact that he had declined to testify in his first trial (the first trial resulted in a mistrial)  

Professor Bellin goes on to note that the Supreme Court has even allowed certain types of adverse comments since Griffin and Carter. For example, in United States v. Robinson, 485 U.S. 25 (1988), the Court found no violation of the Fifth Amendment, where "defense counsel contended in closing argument that the government had not let the defendant explain certain incriminating circumstances," and the prosecutor responded "in rebuttal argument that the defendant 'could have taken the stand and explained it to you.'" From these and other opinions, Professor Bellin draws the conclusion that "adverse comment constitutes a minimal burden on defendant silence" and that "[w]hile certainly one factor in the tactical calculus, the pressure of adverse comment in these circumstances cannot, absent some additional consideration, be equated with the compulsion necessary to trigger a Fifth Amendment violation."

This sets the table for Professor Bellin's reconceptualization. Professor Bellin contends that there is a "fairness paradigm" implicit in the Court's opinions in this area, which leads him to put forth an approach that "would emphasize that it is the unfairness of adverse comment, in certain cases, that aggravates the comment's severity as a penalty, causing it to become an analogue to the forbidden compulsion to testify." According to Professor Bellin,

A recognition of the distinctive Fifth Amendment concerns raised by unfairly penalizing trial silence fortifies the prohibition of adverse comment against the doctrinal critiques noted at the outset of this article.  At the same time, this recognition highlights the fact that the current prohibition, which protects all defendants who remain silent at trial regardless of the motivations for their silence, far outstrips any coherent Fifth Amendment rationale.  Stated more precisely, if, as this article contends, a Fifth Amendment rationale for prohibiting adverse comment hinges on (i) eliminating unfair comment, that (ii) penalizes a Fifth Amendment refusal to incriminate oneself, the existing prohibition is needlessly protecting many defendants who either suffer no unfairness from adverse comment or who are silent for reasons unprotected by the Fifth Amendment. 

Professor Bellin argues that some of the defendants who are needlessly protected are defendants who do not testify because their testimony will support the prosecution case, defendants who decline to testify to hide their demeanor, and defendants who do not testify to avoid implicating a third party or embarrassing themselves. Conversely, Professor Bellin claims that other defendants do deserve protection, such as defendants who do not testify to avoid revealing their prior convictions (a large percentage of defendants) and defendants who fear revealing complicity in uncharged crimes.

I think that Professor Bellin gets to the heart of an issue that has received insufficient scholarly attention, and I strongly recommend his article, either in its current form on SSRN, or when it is published in the Ohio State Law Journal. I asked Professor Bellin what led him to write the article, and he responded:

The article follows from my recent strain of scholarship critically examining the legal rules surrounding defendant testimony in the American criminal justice system.  My overall intuition is that defendant testimony is largely undervalued (for historical and practical reasons) and that our system goes to curious lengths to encourage silence (e.g., prohibiting adverse inferences) and penalize testimony (e.g., allowing impeachment with prior convictions).

I think of the adverse inference article as part of the overall examination I began a few years ago.  My first article in this vein (Improving the Reliability of Criminal Trials Through Legal Rules That Encourage Defendants to Testify, 76 UNIVERSITY OF CINCINNATI LAW REVIEW 851 (2008)) puts forth a normative argument for why the system might work better if defendants were to testify more often and collects and analyzes the various legal incentives for silence and disincentives for testifying that artificially deflate the number of defendants who do testify; my second crack at the subject (Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. DAVIS LAW REVIEW 289 (2008)) takes on the primary disincentive to defendant testimony (prior conviction impeachment) and makes a largely doctrinal argument that the federal courts and large number of state courts that follow the federal approach are too frequently allowing impeachment with prior convictions.  My last piece analyzes the primary incentive to silence (prohibition of adverse inferences) and argues that the incentive is being applied more broadly than the Fifth Amendment's prohibition on compelled self-incrimination warrants.

-CM

You've Got Mail: Military Court Finds Rule Of Completeness Not Violated By Admission Of 10 E-Mails Against Air Force Recruiter

Like its federal counterpart, Military Rule of Evidence 106, the "rule of completeness," provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it...

As the language of this Rule makes clear, when a party introduces a writing or writings, the adverse party must be able to explain to the court what other writings or parts of the introduced writing or writings  were excluded and why fairness requires that they be considered contemporaneously. These sound like pretty basic requirements, but they were requirements that the appellant could not satisfy in United States v. Perry, 2009 WL 4111204 (A.F.Ct.Crim.App. 2009), a case that makes me wonder about the interplay between Rule 106 and e-mail evidence.

In Petty, a general court-martial convicted Charles Petty, an Air Force recruiter, of five specifications of violating a lawful general regulation by making sexual advances toward Air Force applicants RS, CB, AO, AL, and AH, and one specification of adultery with AH. Petty pleaded guilty to the to specification with RS but litigated the others. On the issue of the specifications involving AH, and over Petty's objection, the military judge admitted 10 e-mail messages from Petty to AH. Petty's objection was that the "admission of these e-mail messages violate[d] the completeness requirement of Mil. R. Evid. 106, claiming that the messages provide[d] a misleading 'limited snapshot' of his interaction with AH."

After he was convicted, Petty appealed this and other rulings to the Air Force Court of Criminal Appeals. That court affirmed, finding that:

The 10 e-mails span[ned] a period of six months and range[d] in subject matter from the trivial to the sexually explicit. A representative from MySpace testified concerning the chronological context of the subject e-mails. The e-mail document explicitly discussing sexual relations between the appellant and AH contain[ed] both the initial communication from AH as well as the appellant's reply.

Based upon these facts, the court concluded that:

The multiple e-mails admitted in this case span[ned] a lengthy period, [we]re placed in proper chronological context, and, in the e-mail most probative of sexual activity, show[ed] the messages of both AH and the appellant. The e-mail correspondence admitted at trial neither misle[d] nor distort[ed]. We find that the military judge did not abuse her discretion by admitting the subject e-mails over the defense objection based on completeness.

This was undoubtedly the correct ruling because Petty failed to indicate which e-mails were excluded, let alone why these e-mails should have been considered contemporaneously with the admitted e-mails. I wonder what would have happened, though, if Petty pointed to specific e-mails between AH and him beyond the 10 e-mails presented at trial. If those ten e-mails were all from October of a given year, would the rule of completeness require that all other e-mails from that month be admitted and considered contemporaneously? Would the rule of completeness cover e-mails from other months? Other years? Would the rule of completeness cover every e-mail between AH and Petty? Or would the rule of completeness only cover e-mails involving the same subject matter as the subject matter at trial? For instance, in Petty's trial, would the rule only cover e-mails of a sexual nature between AH and Petty?

These are all difficult questions which I assume that courts will have to answer in the upcoming years. It will certainly be interesting to see how they rule when squarely presented with the issue.

-CM 

Refreshment Refresher: Fifth Circuit Notes That Basically Anything Can Be Used To Refresh Recollection Under Rule 612

Federal Rule of Evidence 612 indicates that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, 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. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Implicit in this Rule is the fact that parties can use basically anything tangible to refresh the recollection of witnesses as the recent opinion of the Fifth Circuit in United States v. Carey, 2009 WL 4066672 (5th Cir. 2009), makes clear.

In Carey, a jury convicted Michael Shane Carey of four counts of aggravated sexual abuse of a minor. Carey thereafter appealed, claiming, inter alia, that an improper technique was used during the testimony of the alleged victim, DJ.

Early in DJ's testimony, her inability to answer a question-"Do you remember what happened with you and Michael the first time he touched you?"-prompted the government to show DJ an "officer's recollection of the interview with the witness [DJ]" that DJ had reviewed. Carey argue[d] that the resulting testimony violated Rule 612 because the report did not actually refresh DJ's memory. The government argue[d] that the police report did refresh DJ's memory, and that no part of the record indicate[d] impermissible reliance.

More specifically, Carey first claimed "that a witness relying upon a Rule 612 writing must," and DJ did not, "explicitly declare that the writing has, in fact, refreshed the witness's memory of the subject." The Fifth Circuit disagreed, noting that in Thompson v. United States, 342 F.2d 137, 139-40 (5th Cir. 1965), a case with similar facts, it had found that:

[W]here there was an absence of the customary formalistic wording to show inability to recollect without aid and the refreshing effect of the writing, the context of the specific queries, the witness' spoken reaction and the trial judge's opportunity to observe the witness' demeanor, le[ft] no occasion to find reversible error....

The court then reached the same conclusion in Carey. Carey's second argument was that "the district court erred because it allowed DJ to rely upon a document that DJ did not author, and that contained factual errors."  The Fifth Circuit again disagreed, finding that

contrary to Carey's argument, the admissibility of testimony accompanied by a Rule 612 refreshment does not depend upon the source of the writing, the identity of the writing's author, or the truth of the writing's contents, for "[i]t is hornbook law that any writing may be used to refresh the recollection of a witness."...Even if, as Carey contends, the writing was neither authored by DJ nor completely accurate, these considerations inform only the weight to be accorded by the finder of fact, not the admissibility of DJ's testimony.

-CM

Article Of Interest — A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions By Professors Hart and Secunda

Over the past half-century it has become commonplace for courts and commentators to distinguish two uses of social science in law. Social science is said either to prove ‘legislative facts' that concern general questions of law and policy, or to prove ‘adjudicative facts' that pertain only to the case at hand. The choice of procedures to introduce research findings has depended heavily on the assignment of the research to one of these two categories. In this article, we identify a new generic use of social science in law that is emerging from recent cases. In this third use, research findings presented in court are neither legislative nor adjudicative facts themselves. Rather, empirical information is being offered that incorporates aspects of both of the traditional uses: general research results are used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case. We call this new use of social science in law the creation of social frameworks. Laurens Walker & John Monahan, Social Frameworks:  A New Use of Social Science in Law, 73 VA.L.REV. 559, 559 (1987).

In their landmark 1987 essay, Social Frameworks, Professors Walker and Monahan christened this social science evidence of the third kind. As University of Colorado School of Law Professor Melissa Hart and Marquette University Law School Professor Paul Secunda note in the introduction to their new essay,A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), "For several decades now, courts have accepted social framework evidence in employment litigation, but its use has not been without controversy."

That controversy originated in the courtrooms, but it has recently spilled over "to the pages of law reviews," with three academics arguing in a recent essay "that social framework testimony as it is commonly accepted by district courts should be categorically disallowed," i.e., "that courts should never let social scientists link general social science findings to an employer's specific workplace policies unless the proffered expert has conducted his or her own empirical research in that particular workplace." The thesis of Professors Hart and Secunda in their essay is that

the arguments for categorically excluding such testimony are fundamentally flawed. Social framework evidence, offered by qualified social scientists, plays a central role in modern employment discrimination litigation. By offering insight into the operation of stereotyping and bias in decision making, social framework experts can help fact finders to assess other evidence more accurately. When an expert applies her knowledge of studies in her field to an examination of the policies in place at a challenged workplace, the resulting testimony is well within what is permitted by the Federal Rules of Evidence. There is no basis in evidence law for requiring experts to conduct firsthand empirical studies of a particular workplace. Moreover, in the particular context of class action litigation, social framework evidence certainly satisfies the central admissibility criterion of relevance or "fit"--it is "valid for the purpose for which it is offered." In large employment class action suits like the landmark Dukes v. Wal-Mart Stores, Inc. gender discrimination litigation, plaintiffs offer social framework testimony at the class certification stage of the litigation to address the issue of whether the plaintiffs share a common question of fact or law that will satisfy federal class action standards. The legal question of commonality is directly addressed by the social scientist's expertise. Thus, a categorical exclusion of this evidence is inconsistent with the Federal Rules of Evidence and U.S. Supreme Court precedent on the district courts' responsibility for assessing the admissibility of expert testimony more generally.

This post agrees with the essay by Professors Hart and Secunda and argues that social framework evidence in employment litigation should be admissible to the same extent as syndrome evidence in criminal prosecutions.

First, let's set the table. Professors Hart and Secunda begin by noting that social framework evidence is used in a variety of contexts:

-In cases such as Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), social framework testimony has been used to establish the likelihood that sex stereotyping influenced employment decisions;

-In cases such as Jenson Eleventh Taconite Co., 824 F.Supp. 847 (D. Minn. 1993) social framework testimony has been used to prove that acts of harassment at places of employment "could be understood not as a series of isolated events but as part of a general culture of sex stereotyping;" and

-In class action litigation like Dukes v.Wal-Mart, Inc., 227 F.R.D. 137 (N.D.Cal. 2004), "[s]ocial framework testimony has been introduced to explain how certain employer policies operate to introduce the requisite commonality" for class certification.

The authors then present the argument by the three academics that they are attacking. According to those academics,

a social framework expert may only present the results of general studies available within his field. If a party in litigation wishes to have an expert draw any connection between the general research and any facts in the particular case, these authors assert, the expert must do an expensive, time-consuming, and particularized study of the specific workplace. On this view, the only way a social scientist testifying in an employment discrimination class action could offer opinions about particular workplace policies would be to "conduct an audit study (in which persons of different sexes with matching qualifications pose as applicants for the same job), a controlled experiment into the effects of stereotyping on managerial decisions at [an employer], or an objective observational study of conditions at [an employer]."

The authors then present a number of arguments to establish "the weakness of a categorical argument for exclusion of social frameworks" in employment litigation, such as the following:

-As established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),Federal Rule of Evidence 702 "is flexible and not subject to categorical exclusions;"

-As established in General Electric Co. v. Joiner, 522 U.S. 136 (1997) (and Federal Rule of Evidence 704(a)), "expert testimony may properly include opinions on facts at issue in the particular case;"

-As recently established in Sprint/United Management Co. v. Mendelsohn, 128 S. Ct. 1140 (2008), "there is no justification for a special rule of appellate scrutiny of district court decisions to admit social framework testimony," and courts cannot create a blanket rule deeming a certain category of evidence inadmissible under Federal Rules of Evidence 401 and 403.

I agree with all of the above analysis and think that courts also can continue to admit social framework evidence in employment litigation by reference to the way that they have treated syndrome evidence. As Professor Hart and Secunda note, syndrome evidence such as "battered woman's syndrome evidence" is a type of social framework evidence. And a review of precedent from around the country makes it clear that courts routinely admit such evidence despite questions that some have raised about its reliability. See, e.g.,Keith A. Findley, Innocents at Risk:  Advisory Imbalance, Forensic Science, and the Search for the Truth, 38 SETON HALL L. REV. 893, 920 (2008).

I think that a large part of the reason that courts liberally admit such syndrome evidence is because the Supreme Court has ruled that it is constitutionally sound. In Estelle v. McGuire, 502 U.S. 62 (1991), the Supreme Court rejected a petitioner's argument that the admission of battered child syndrome evidence violated his constitutional rights, concluding that

The demonstration of battered child syndrome "simply indicates that a child found with [serious, repeated injuries] has not suffered those injuries by accidental means."...Thus, evidence demonstrating battered child syndrome helps to prove that the child died at the hands of another and not by falling off a couch, for example; it also tends to establish that the "other," whoever it may be, inflicted the injuries intentionally. When offered to show that certain injuries are a product of child abuse, rather than accident, evidence of prior injuries is relevant even though it does not purport to prove the identity of the person who might have inflicted those injuries....Because the prosecution had charged McGuire with second-degree murder, it was required to prove that Tori's death was caused by the defendant's intentional act. Proof of Tori's battered child status helped to do just that; although not linked by any direct evidence to McGuire, the evidence demonstrated that Tori's death was the result of an intentional act by someone, and not an accident. The Court of Appeals, however, ignored the principle of battered child syndrome evidence in holding that this evidence was incorrectly admitted. For example, the court stated that "[e]vidence cannot have probative value unless a party connects it to the defendant in some meaningful way."...We conclude that the evidence of prior injuries presented at McGuire's trial, whether it was directly linked to McGuire or not, was probative on the question of the intent with which the person who caused the injuries acted.

This analysis seems directly applicable to social framework evidence presented in employment litigation, and I think that Federal Rule of Evidence 703 explains why such social framework evidence should be admissible. In relevant part, Rule 703 provides that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." In other words, under Rule 703, experts do not need to conduct the type of audit study mentioned above to offer opinion testimony such as framework testimony.

Indeed, one way for attorneys to lay a proper factual predicate for syndrome evidence is to use hypotheticals. For instance, in State v. Yusuf, 800 A.2d 590, (Conn.App. 2002), the Appellate Court of Connecticut found no problem with Evan Stark, the state's expert on battered woman syndrome, offering expert opinion testimony based upon the following factual predicate:

During his testimony, Stark also was asked a number of hypothetical questions that tracked the facts that gave rise to the charges against the defendant. Generally, with respect to each hypothetical question, Stark was asked to give his expert opinion whether the hypothetical victim's conduct was consistent with that of a woman suffering from battered woman syndrome. In each case, Stark concluded that the victim's conduct as set out in the hypothetical question was indeed consistent with a woman suffering from battered woman syndrome.

If courts generally admit syndrome evidence based upon such factual predicates, I don't see how they can require audit studies before admitting social framework testimony in employment litigation

-CM

No Virtual Impeachment: First Circuit Affirms Opinion Precluding Impeachment Of Hearsay Declarant Despite Disagreeing On Rationale

Either through deliberate tactical choices, or simply as a result of precedent and inertia, our traditional approach to hearsay and confrontation is mired in exclusionary thinking. Whether one consults reported case law, or basic texts on trial advocacy, little is said of the impeachment of hearsay declarants. John G. Douglass, Beyond Admissibility:  Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 GEO. WASH. L. REV. 191, 252 (1999).

As Douglass, now the Dean of the University of Richmond School of Law, went on to note in his seminal 1999 law review article, "[t]hat omission, however, is not born of impossibility," with Federal Rule of Evidence 806 and many state counterparts providing that:

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

According to Douglass, this Rule allows for "virtual cross-examination." The problem, though, is that this Rule is "seldom used," meaning that both attorneys and judges often do not know when it applies (and when it doesn't). One clear example of this problem can be found in the recent opinion of the First Circuit in United States v. Rodriguez-Berrios, 573 F.3d 55 (1st Cir. 2009).

In Rodriguez-Berrios, Eddie Samir Rodríguez-Berríos was found guilty of committing a carjacking that resulted in the death of his ex-wife. At trial, the prosecution called a co-worker and friend of the victim to testify about statements she made accusing Rodríguez-Berríos of abuse and indicating that she was afraid of him. Over Rodríguez-Berríos' objection, the district court admitted these statements under the excited utterance (Rule 803(2)) and state of mind (Rule 803(3)) exceptions to the rule against hearsay (on appeal, the First Circuit actually found that these exceptions did not apply but found harmless error). Thereafter, Rodríguez-Berríos sought to introduce tape recordings of the victim talking to passengers in her vehicle to impeach her hearsay statements.

The district court, however, found these recordings inadmissible for two reasons: "The court first ruled that the tapes could not be used under Rule 806 to impeach the victim's allegations because she was not a 'declarant,' stating that '[t]he definition of declarant under the rules of evidence specifically 801, is a person who takes the witness stand." Second, "[t]he court later stated that the evidence was inadmissible to impeach the victim under Rule 806 because the statements [Rodríguez-Berríos] sought to impeach were not hearsay but rather 'exceptions to hearsay.'"  

After Rodríguez-Berríos was convicted, he appealed, claiming, inter alia, that the district court erred in precluding this impeachment. The First Circuit agreed with Rodríguez-Berríos that the reasoning used by the district court was incorrect but found that its ultimate conclusion was correct. First, it found that the district court erred by finding that a declarant is "a person who takes the witness stand." The First Circuit correctly noted that under Federal Rule of Evidence 801(b), a declarant is merely "a person who makes a statement;" there is no requirement that the declarant take the witness stand. Indeed, Federal Rule of Evidence 804(a)(4) and Federal Rule of Evidence 804(a)(5) set forth situations where declarants are "unavailable" because they do not take the witness stand. Second, the appellate court found that the district court erred in finding that the victim's statements were not hearsay, noting that statements deemed admissible under an exception to the rule against hearsay are necessarily hearsay as defined in Federal Rule of Evidence 801(c).

So, why did the First Circuit affirm? The court noted, "[W]e are 'not wedded to the lower court's rationale, but, rather, may affirm its order on any independent ground made manifest by the record.'" The problem for Rodríguez-Berríos in this regard was that he claimed that the tape recordings contained prior inconsistent statements by the victim, but the recordings actually corroborated the hearsay statements admitted at trial. According to Rodríguez-Berríos, it was not the substance of the victim' statements on the recordings but her tone and attitude as reflected on the recordings which revealed that she was not scared of  Rodríguez-Berríos and rendered the statements inconsistent. The First Circuit rejected this argument, finding that there was nothing on the tapes indicating that Rodríguez-Berríos did not abuse the victim or that she was not afraid of him.      

Without hearing that tapes myself, I have no basis for agreeing or disagreeing with the court, but the opinion does raise an interesting question: Can a prior statement be deemed inconsistent with trial testimony (or hearsay statements admitted at trial) based on tone, not substance? If a defendant testifies that he was watching a football game at the time of the crime for which he was charged, could the prosecution impeach him through evidence that he sarcastically told a friend that he was watching a football game at the time of the crime? It's an interesting question which the court in Rodriguez-Berrios did not have to address, but I could see it arising in a case down the road.

-CM

The Lone Ranger And Tonto Fistfight In Heaven, Take 7: Supreme Court Denied Cert In Benally v. United States

Today, the Supreme Court denied cert in Benally v. United States, the case in which I submitted an amicus brief. The post containing my brief has links to all of my posts on the case, which dealt with whether racist statements by jurors against Native Americans during deliberations could be used to impeach a verdict entered against a Native American defendant and/or to prove that jurors lied on voir dire when they claimed that they did not harbor racial prejudice. Unfortunately, all we have is the denial of cert, so we don't know why the Court denied cert. For instance, one argument raised by the Solicitor General was that the Court should not grant cert because Benally had not yet been sentenced. If that's the case, I am hopeful that the Court will resolve the issue in the future.

-CM

EvidenceProf Blog On Twitter: http://twitter.com/EvidenceProf

You can now follow EvidenceProf Blog on twitter at http://twitter.com/EvidenceProf. On twitter, I will tweet the headline (or an abbreviated version) and a link to each new post on here. I also plan to do tweets about evidentiary issues in pop culture and evidentiary developments that didn't quite make it on the blog, but which I think might interest readers.

-CM

True Lies: Ohio Defendant Acquitted Despite Evidence Of Failed Polygraph Test Being Presented To Jury

As I have noted before on this blog, "Evidence of polygraph test results are per se inadmissible (except in New Mexico) unless both sides stipulate to their admission before the test is taken." A large part of the reason polygraph results are usually deemed inadmissible is because courts fear that jurors presented with a defendant's failed polygraph test will automatically find the defendant guilty and jurors presented with a defendant's passed polygraph test will automatically find that defendant not guilty. A recent case out of Ohio indicates otherwise. In that case, a man was charged with raping and molesting a former girlfriend's daughter, and the defense and the prosecution agreed that the defendant would take a polygraph test with the results being admissible at trial. The defendant's gamble appeared to be a losing bet as he failed the polygraph. Surprisingly, however, the jury still found that defendant not guilty. And that makes me wonder: Are polygraph results as persuasive as courts think them to be?

The defendant in the Ohio case was 30 year-old Christian Rios, who could have been sentenced to life imprisonment if found guilty. According to an article on the case, Rios' taking of the polygraph test was allowed pursuant to

a little-used Ohio statute [which] says [that] jurors can be provided the results if both the defense and prosecution agree to it before a trial starts and before the test is given. The judge still has the discretion to ban the results.   

Indeed, the statute is so little-used that I couldn't even find it. I did find a Supreme Court of Ohio opinion, State v. Souel, 372 N.E.2d 1318 (Ohio 1978), authorizing the practice, but that opinion makes no reference to a statute. Apparently, in defense circles in Ohio, the practice of taking a polygraph under these circumstances is called "'Take a poly for a nolle,' which rhymes with 'dolly.' A nolle prosequi is Latin for a dismissal." 

According to the article, though, when a defendant passes a polygraph under this practice, the usual outcome is not a dismissal but the defendant accepting a favorable plea bargain. Meanwhile, when a defendant fails a polygraph test, the usual result is a conviction, but that wasn't the case with Rios, with the main problem for the prosecution being that the jury simply didn't believe the testimony of the ex-girlfriend. This meant that, despite the judge telling the jurors about the result of Rios' failed polygraph, he is now a free man.

This case has made me wonder whether courts should rethink their positions on polygraph results generally. If defendants passing polygraphs in Ohio usually reach plea deals, this tells me that they are not confident that they will be acquitted even when that evidence is presented to the jury. And, as Rios' case makes clear, a failed polygraph test does not always result in a conviction. Now, this is mostly anecdotal evidence, but I wouldn't be surprised if an empirical study revealed that jurors don't trust polygraph results as much as courts think that they do. Maybe I will do such a study some day.

-CM