EvidenceProf Blog

The Areas Of My Expertise: Fifth Circuit Reverses Expert Witness Ruling In Hurricane Katrina Related Appeal

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

As the Advisory Committee Note to the amendment to Rule 701 makes clear, Rule 701(c) was added in the wake of the Supreme Court's opinion in Daubert v. Merrdll Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." The Advisory Committee Note goes on to indicate, however, that

most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp. 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff's owner to give lay opinion testimony as to damages, as it was based on his knowledge and participation in the day-to-day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis.

Despite the latter portion of the Note, in its recent opinion in Pendarvis v. American Bankers Ins. Co. of Florida, 2009 WL 4250686 (5th Cir. 2009), the Fifth Circuit found that a contractor could not testify as a lay witness about the estimated cost to repair a mobile home damaged by Hurricane Katrina.

In Pendarvis, the plaintiffs owned a 1999 Crimson 28 x 70 mobile home, and the defendant issued a policy covering the plaintiffs' mobile home for losses caused by, among other things, wind. In August 2005, the mobile home was damaged by Hurricane Katrina, and the district court found after a bench trial that following Hurricane Katrina:

[p]laintiffs entered the home to find water coming through all of the windows and wet walls and carpet in almost every room. The utility room had leaves in the vent over the dryer; the kitchen had water running out of the cabinets, the microwave, and the stove; there was water dripping on the floor and standing on top of cabinets. The dining room had water damage inside the window sills; the fascia board was receding from the ceiling; the crown molding was coming off of the archway; the living room had water dripping from the ceiling; the walls and ceiling were bubbling; the master bedroom had water in the window sills; the master bathroom had water pouring through the ceiling; the vent was yellow from water; the track lights were popping. Plaintiffs did not have power for three days, and the electrical panel on the mobile home had to be changed for fear that it would cause a fire. None of these conditions existed prior to Hurricane Katrina.  

The plaintiffs filed a claim with the defendant for the damage, and the defendant's inspector inspected the mobile home and determined that the plaintiffs were only entitled to $4,704.83. The plaintiffs thereafter had contractor Leroy Young inspect the mobile home, and he estimated that the cost of repairing the mobile home would be $71,500. The plaintiffs then sent a detailed description of Young's estimate to the defendant, but the defendant believed Young's estimate was too high and refused payment. The plaintiffs thus sued the defendant but failed to timely furnish Young's expert report, so "the district court refused to allow plaintiffs to call Young as an expert." The court, however, "did allow Young to give his $71,500 repair estimate as a lay witness."

On appeal, the Fifth Circuit disagreed, despite the Advisory Committee Note to the amendment to Rule 701, finding

that Young's $71,500 estimate to repair the mobile home resulted from his knowledge as a specialist in the field of building construction and repairs. Young's repair costs estimate required, at a minimum, Young to forecast the amount, type, and costs of materials needed, as well as the amount of labor required to complete the long list of repairs. These forecasts are not common knowledge, "familiar in everyday life."  They require specialized knowledge of construction and repair work. Because specialized, technical knowledge was required, we find the district court abused its discretion in allowing Young's lay testimony.

While it's a close call, I think that I agree with the Fifth Circuit. Indeed, at trial, the plaintiffs themselves offered Young as an expert witness but failed to timely furnish his expert report.

-CM

Allow Me To Demonstrate: California Case Reveals Lack Of Standards Governing Admissibility of Demonstrative Evidence

In contrast to testimonial or documentary evidence, demonstrative evidence is "principally used to illustrate or explain other testimonial, documentary or real proof, or judicially noticed fact. It is, in short, a visual (or other) sensory aid." A diagram of the scene of a crime drawn on a board by a percipient witness who is present at trial to testify would be classic demonstrative evidence. Whereas the diagram illustrates the witness' testimony, it should, technically speaking, add nothing further. In this way and despite its title as "evidence," demonstrative evidence is more of a visual aid than evidence per se because it merely illustrates or "demonstrate[s]" a witness' testimony. Jessica M. Silbey, Judges as Film Critics: New Approaches to Filmic Evidence, 37 U. Mich. J.L. Reform 493, 503 (2004).

Perhaps the most (in)famous example of demonstrative evidence was the failed glove experiment in the O.J. Simpson trial. But what standards governs the admissibility of demonstrative evidence? As the recent opinion of the Court of Appeal, Third District, California, in People v. Bonde, 2009 WL 4264324 (Cal.App. 3 Dist. 2009), makes clear, the answer is "not many." 

In Bonde, a jury convicted David James Bonde of first degree murder, and found that the murder was committed to avoid arrest, in the commission or attempted commission of a robbery, and in the commission or attempted commission of a carjacking. This conviction was based upon evidence of the following being presented at trial:

Early Christmas morning, 2006, after a night of drinking and smoking methamphetamine, [Bonde]'s friends dropped him off near his sister's house....He was walking down Virginia Street around 2:00 or 3:00 a.m. when he spotted an older model white Chevrolet pickup. He decided to hot wire the pickup. He used a knife he had just purchased to cut the wires and start the pickup.

The pickup belonged to Ryan Gomes, who lived on Virginia Street with Amy Campbell and their son Clayton. The family was awakened by the loud noise of the truck when [Bonde] started it. When Gomes realized someone was taking his truck, he ran outside, still wearing his pajamas. The truck stalled, and Gomes ran up to the truck window and asked [Bonde] why he...was stealing his truck. He told [Bonde] the police were on their way.

[Bonde] got out of the truck, took the knife from between his teeth, stepped toward Gomes, and said, "Come on" and "What are you going to do about it?" [Bonde] attacked Gomes with the knife, stabbing him three times in his chest and once in his back. Gomes died of shock and hemorrhage due to multiple stab wounds.

After [Bonde] was arrested, he gave several videotaped interviews to the police, in which he admitted to stabbing Gomes.

In addition to testimonial and documentary evidence, the prosecution presented demonstrative evidence. Specifically, the prosecution 

informed the trial court that he had a rubber knife that was approximately the same size as the knife [Bonde] used to stab Gomes, and that he intended to have [Bonde] show how he used the knife against Gomes. Defense counsel objected that the demonstration with the rubber knife would be inflammatory because it would cause the jury to “envision” and "reliv[e]" the murder.

The trial court overruled the objection, and the Court of Appeal subsequently affirmed, finding that

Demonstrative evidence is admissible despite some prejudicial effect as long as it "'tends to prove a material issue or clarify the circumstances of the crime.'"...The demonstration here was admissible despite the slight prejudicial effect of seeing defendant reenact the murder because it clarified the circumstances related to the claimed defense. In short, the evidence was not more prejudicial than probative, and the trial court did not abuse its discretion in admitting the evidence.

-CM

Conduit For Sale: Fourth Circuit Finds No Problem With Experts Relying Upon Testomonial Hearsay As Long As They Are Not Mere Conduits

Federal Rule of Evidence 703 provides that:

The 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. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Meanwhile, the Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." So, what should courts do when experts for the prosecution plan to provide opinion testimony based upon evidence that itself would violate the Confrontation Clause? That was the question addressed by the Fourth Circuit in its recent opinion in United States v. Johnson, 2009 WL 4348845 (4th Cir. 2009).

In Johnson, Donna C. Johnson, Craig A. Scott, and John A. Martin were convicted of conspiracy and other offenses in relation to the distribution of narcotics." During its investigation of the drug conspiracy alllegedly involving the defendants, 

the government received court authorization and intercepted telephone calls between various members of the drug conspiracy. To help the jury interpret those calls at trial, the government presented two police officers, Sergeant Christopher Sakala and Corporal Thomas Eveler, as experts on the subject of drug trafficking. Both officers had extensive training and experience, and Martin does not question their qualifications.

Sakala and Eveler testified that several seemingly innocuous terms used in these calls, such as "tickets" and "T-shirts," were actually code words for narcotics. Sakala explained how he reached his conclusions. Because drug traffickers frequently use code words to avoid detection, he looked for "pat terns of conversation[] that [did not] make sense."...For example, members of this conspiracy often discussed buying and selling large numbers of "tickets" but did not specify “which shows they wanted tickets for....where they wanted to sit, [or] what days they wanted to go to the show."...Therefore, it became "obvious" in his view that "tickets" was a code word for narcotics....

Likewise, Eveler explained that he decoded the conversations by looking for unusual "pattern[s] of speech."

Later, Sakala "explained that he considered several sources of information, such as evidence that had been seized during the investigation, before reaching a conclusion about the meaning of a particular conversation. In addition, he took into account 'interviews with witnesses, cooperators, [and] cooperating defendants.'" 

After he was convicted, Martin appealed, claiming, inter alia, that Sakala improperly relied upon testimonial hearsay that was inadmissible under the Confrontation Clause as interpreted by the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004).  According to the Fourth Circuit,

An expert witness's reliance on evidence that Crawford would bar if offered directly only becomes a problem where the witness is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation. Allowing a witness simply to parrot "out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of expert opinion" would provide an end run around Crawford....For this reason, an expert's use of testimonial hearsay is a matter of degree....The question is whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay. As long as he is applying his training and experience to the sources before him and reaching an independent judgment, there will typically be no Crawford problem. The expert's opinion will be an original product that can be tested through cross-examination.

According to the Fourth Circuit, there was no such problem in the case before it because

there is no question that Sakala and Eveler did not become mere transmitters of testimonial hearsay. Assuming for the sake of argument that the interviews they considered were testimonial, the experts never made direct reference to the content of those interviews or even stated with any particularity what they learned from those interviews. Instead, each expert presented his independent judgment and specialized understanding to the jury. That understanding was not surprisingly the product of the accumulation of experience over many years of investigation of narcotics organizations and contacts with the informants and witnesses who operate within them. Sakala and Eveler explained how, based on their knowledge of narcotics trafficking, they were able to identify odd conversational patterns in the phone calls and decipher various code words. The fact that their expertise was in some way shaped by their exposure to testimonial hearsay does not mean that the Confrontation Clause was violated when they presented their independent assessments to the jury. Because they did not become mere conduits for that hearsay, their consideration of it poses no Crawford problem.

-CM

Wholesale Changes: Supreme Court Of California Disapproves Of Prior Precedent In Attorney-Client Ruling In Costco Appeal

California Evidence Code Section 954, California's attorney-client privilege, indicates in relevant part that

Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or 

(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.

In Costco, 

In June 2000, Costco Wholesale Corporation..., which operates warehouse-style retail establishments throughout California, retained the law firm of Sheppard, Mullin, Richter & Hampton to provide legal advice regarding whether certain Costco warehouse managers in California were exempt from California's wage and overtime laws. Attorney Kelly Hensley, an expert in wage and hour law, undertook the assignment, ultimately producing for Costco [a] 22-page opinion letter....The letter followed conversations held by Hensley with two warehouse managers Costco had made available to her. Costco, the managers, and Hensley understood the communications between the managers and Hensley were, and would remain, confidential. Similarly, Costco and Hensley understood that Hensley's opinion letter was, and would remain confidential.

Subbsequently, Costco employees filed a class action against Costco, "claiming that from 1999 through 2001 Costco had misclassified some of its managers as 'exempt' employees and therefore had failed to pay them the overtime wages they were due as nonexempt employees." Those plaintiffs then sought to compel discovery of Hensley's opinion letter, and "Costco objected on the grounds the letter was subject to the attorney-client privilege and the attorney work product doctrine." The "[p]laintiffs disagreed, arguing both that the letter contained unprivileged matter and that Costco had placed the contents of the letter in issue, thereby waiving the privilege." Thereafter, "[t]he trial court, over Costco's objection, ordered a discovery referee to conduct an in camera review of Hensley's opinion letter to determine the merits of Costco's claims of attorney-client privilege and work product doctrine."

This ruling prompted Costco's appeal and led to the Supreme Court of California to reverse and disapprove of prior California precedent.

Now, there were many aspects to the Supreme Court of California's opinion, but it seemed like the opinion boiled down to one question: If a party believes that communications are not covered by the attorney-client privilege, can the part get in camera review of the communications or does it have to rely on other evidence? According to the California Supremes, it is the latter. According to the court,

In arguing in favor of the trial court's ruling, plaintiffs cite [precedent] for the proposition that despite the unequivocal language of Evidence Code Section 915 subdivision (a), the section's prohibition “is not absolute,” and a litigant might be required to reveal some information in camera to enable the court to determine whether a communication is subject to the attorney-client privilege. But in citing these cases, plaintiffs fail to recognize the critical distinction between holding a hearing to determine the validity of a claim of privilege and requiring disclosure at the hearing of the very communication claimed to be privileged. Evidence Code Section 915, while prohibiting examination of assertedly privileged information, does not prohibit disclosure or examination of other information to permit the court to evaluate the basis for the claim, such as whether the privilege is held by the party asserting it....Evidence Code Section 915 also does not prevent a court from reviewing the facts asserted as the basis for the privilege to determine, for example, whether the attorney-client relationship existed at the time the communication was made, whether the client intended the communication to be confidential, or whether the communication emanated from the client....Accordingly, while the prohibition of Evidence Code Section 915 is not absolute in the sense that a litigant may still have to reveal some information to permit the court to evaluate the basis for the claim of privilege...,it does not follow that courts are free to ignore the section's prohibition and demand in camera disclosure of the allegedly privileged information itself for this purpose.

In reaching this conclusion, which I think was the correct conclusion, the court disapproved of pror California precedent such as Martin v. Workers Comp. Appeals Bd., 59 Cal.App.4th 1377 (Cal. App. 2 Dist. 1997), and 2,022 Ranch v. Superior Court, 113 Cal.App.4th 1377 (Cal.App. 4 Dist. 2003), which had found that requesting parties could get in camera review of allegedly privileged communications.

-CM

The Shrink(ing) Privilege, Take 2: New York Times Article Reports That Exceptions To Military Psychotherapist-Patient Privilege Are Hindering Therapy

Although it was ultimately rejected, Proposed Federal Rule of Evidence 504 set forth a psychotherapist- patient privilege, under which

A patient has a privilege refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.

Even though the proposed Rule was rejected, the Supreme Court later recognized the existence of a federal psychotherapist-patient privilege in its 1996 opinion in Jaffee v. Redmond, 518 U.S. 1 (1996). Because the Court left the scope of the privilege and its exceptions for later determination, courts vary in the number of exceptions that they carve out of the psychotherapist-patient privilege, with some widely adopted ones being the "crime-fraud" and "dangerous-patient" exceptions. See, e.g., Deirdre M.Smith,An Uncertain Privilege:  Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in Federal Courts, 58 DePaul L. Rev. 79, 96 (2009). As a recent article in the New York Times notes, Military Rule of Evidence 513, the military psychotherapist-patient privilege, contains more exceptions than the federal psychotherapist-patient privilege, and, according to some, it is hindering therapy.

According to the article, 

Many soldiers, lawyers and mental health workers say that the rules governing confidentiality of psychotherapist-patient relations in the military are porous. The rules breed suspicion among troops toward therapists, those people say, reducing the effectiveness of treatment and complicating the Pentagon’s efforts to encourage personnel to seek care.

The problem with the military rules, experts say, is that they do not safeguard the confidentiality of mental health communications and records as strongly as federal rules of evidence for civilians. Both systems say therapists should report patients when they seem a threat to themselves or to others. But the military rules include additional exceptions that could be applied to a wide range of suspected infractions, experts say.

"There really is no confidentiality," said Kaye Baron, a psychologist in Colorado Springs who has been treating soldiers from Fort Carson and their families for eight years. "You can find an exception to confidentiality in pretty much anything one would discuss."

Meanwhile, 

Some legal and mental health experts say the military’s rules on psychotherapist-patient privilege are not clear-cut. Michelle Lindo McCluer, a former Air Force lawyer who is the executive director of the National Institute of Military Justice, said that some exceptions to the privilege are so broadly worded that "you could drive a truck through them." 

Of course, others contend that these additional exceptions in Military Rule of Evidence 513 "recognize[] that the military justice system serves broader goals than simply punishing a specific offender." As University of Florida Levin College of Law Professor and former Air Force Captain Diane H. Mazur noted in her article, Military Values in Law, 14 Duke J. Gender L. & Pol'y 977, 1006-07 (2007),

The military's psychotherapist-patient privilege, interestingly, does contain an exception that is peculiarly military and would be unavailable in a civilian context. Under Military Rule of Evidence 513, there is no privilege "when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission." This exception recognizes that the military justice system serves broader goals than simply punishing a specific offender. Military commanders are responsible for the safety of an entire community in a way that civilian prosecutors are not, and military commanders are responsible for the accomplishment of an assigned mission in a way that has no counterpart whatsoever in the civilian world.

Below are all of the exceptions to Military Rule of Evidence 513, and I will leave it readers to decide what they think about their propriety:

(d) Exceptions. There is no privilege under this rule:  

(1)  when the patient is dead;  

 

(2)  when the communication is evidence of spouse abuse, child abuse, or neglect or in a proceeding in which one spouse is charged with a crime against the person of the other spouse or a child of either spouse;  

 

(3)  when federal law, state law, or service regulation imposes a duty to report information contained in a communication;  

 

(4)  when a psychotherapist or assistant to a psychotherapist believes that a patient’s mental or emotional condition makes the patient a danger to any person, including the patient;  

 

(5)  if the communication clearly contemplated the future commission of a fraud or crime or if the services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud;  

(6)  when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission;  

 

(7)  when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation, under circumstances not covered by R.M.C. 706 or Mil. Comm. R. Evid. 302. In such situations, the military judge may, upon motion, order disclosure of any statement made by the accused to a psychotherapist as may be necessary in the interests of justice; or  

 

(8)  when admission or disclosure of a communication is reqadverse effect on the integrity or fairness of the proceeding.  

Update, 12/9/09: I e-mailed Professor Mazur about this post, and she responded as follows:

The NY Times article, unfortunately, completely confuses the difference between an evidentiary privilege and an ethical obligation of confidentiality on the part of therapists.  The issue that has the greatest potential to interfere with treatment (and what the article intended to focus on, I think), is the ethical obligation of confidentiality.  When do military therapists have the option (in almost all instances it would not be an obligation) to report past crimes or offenses?

The article fuses the two doctrines in this transition: "The problem with the military rules, experts say, is that they do not safeguard the confidentiality of mental health communications and records as strongly as federal rules of evidence for civilians."  The point you make in your post is, of course, still valid.  With respect to the evidentiary privilege, members of the military may not be able to assert the privilege to withhold information relevant to a prosecution (or defense) of war crimes or sexual assault, for two examples.  I argue, as you note, that there are some good reasons for the different scope of the privilege.

Interestingly, the rules on the ethical obligation of confidentiality in a military context are much less specific and more the subject of disagreement.  Some therapists believe, for example, that they have the discretion (some would even say the obligation!) to report patients who disclose they are gay.  Most therapists would disagree, but it puts servicemembers in an awkward position, with no guarantees.  (Most reports on this issue from military therapists, I believe, are religiously motivated.)

-CM   

You Can't Look In On One Way Eyes, Ohio: Ohio Opinion Reveals Differences Between Federal and Ohio Rule Of Evidence 607

Back in the common law days, courts applied the "voucher rule," under which the party calling a witness was deemed to have vouched for the witness' credibility and thus could not impeach its own witness' credibility. The voucher rule was abolished by Federal Rule of Evidence 607, which provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." Clearly, there is nothing in the Rule itself that limits parties in their ability to impeach their own witnesses, but judges have imposed limitations on such impeachment. For instance, in United States v.Webster, 734 F.2d 1191, 1192 (7th Cir. 1984), Judge Posner found that:

it would be an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence-or, if it didn't miss it, would ignore it. The purpose would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which Rule 607 does not contemplate or authorize. We thus agree that “impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.”

In other words, the prosecution can't call a witness for the sole purpose of impeaching the witness through inadmissible hearsay, meaning that there usually shouldn't be a problem with the prosecution calling a witness for the purpose of impeaching the witness through statements that qualify as nonhearsay or meet an exception to the rule against hearsay. See, e.g., Margaret Meriwether Cordray, Evidence Rule 806 and the Problem of Impeaching the Nontestifying Declarant, 56 Ohio St. L.J. 495, 548 (1995). As the recent opinion of the Court of Appeals, Eighth District, in State v. Bell, 2009 WL 4406068 (Ohio App. 8 Dist. 2009), reveals, Ohio Rule of Evidence 607(A) itself makes this fact clear.

In Bell, Tyrance Bell was convicted of domestic violence based upon an altercation that he had with his fiancée. 

At trial, the victim denied that Bell threatened to harm her with a knife. She claimed that the knife the officers found was used by Bell to cut out damaged drywall in the living room. She also denied that Bell touched her.

The prosecution then impeached the victim through her prior inconsistent statements made to the 911 dispatcher and responding officers on the night of the altercation. 

When confronted with a recording of her 911 call, she acknowledged that she could be heard telling Bell to get off of her, but she claimed Bell was simply trying to grab the phone from her. She claimed she lied to the 911 operator and the officers because she was intoxicated and angry at Bell for bringing his ex-girlfriend to the house. She denied sustaining any injuries, including a swollen eye depicted on a photograph taken of her at the time. She stated that in spite of the events..., she and Bell still intended to be married.   

After he was convicted, Bell appealed, claiming that this impeachment was impermissible under Ohio Rule of Evidence 607(A), which provides that:

The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803.  

According to Bell, the prosecution's impeachment of the victim was impermissible because it failed to show "surprise" or "affirmative damage" as required by the Rule. But the problem for Bell was that these requirements only apply when a party is being impeached by inadmissible hearsay, not when a witness is being impeached under a Rule 803 exception to the rule against hearsay, and the court found that the victim's statements constituted excited utterances under Ohio Rule of Evidence 803(2), rendering Bell's argument inapposite.

-CM

Excepted Exception: Appeal Reveals Limited Applicability Of Minnesota's Other Source Rape Shield Exception

Federal Rule of Evidence 412 is the federal rape shield rule, and Federal Rule of Evidence 412(b)(1)(A) contains the following exception to that rule:

In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence.

At first blush, Minnesota Rule of Evidence 412(1)(B) appears to provide an identical exception to Minnesota's rape shield rule. It provides an exception to Minnesota's rape shield rule under the following circumstance:

When the prosecution’s case includes evidence of semen, pregnancy or disease at the time of the incident or, in the case of pregnancy, between the time of the incident and trial, evidence of specific instances of the victim’s previous sexual conduct, to show the source of the semen, pregnancy or disease.    

As is clear from the recent opinion of the Court of Appeals of Minnesota in State v. McBroom, 2009 WL 4251080 (Minn.App. 2009), there is an important distinction between the two exceptions.

In McBroom, James McBroom was convicted of third and fifth degree criminal sexual conduct based upon acts of sexual assault that he allegedly committed against S.B. At trial,

McBroom sought to offer evidence of the DNA found during S.B.'s medical examination and S.B.'s statement to the physician that her most-recent consensual sexual encounter occurred one to two days before the assault. McBroom argued that the presence of DNA, despite S.B.'s report that she had taken a shower after the assault, indicated that S.B. had sexual intercourse after the assault and before the examination. McBroom argued that this evidence showed that he was not the source of the injuries observed during S.B.'s examination and cast doubt on S.B.'s credibility. After hearing arguments on two occasions and considering the relevant caselaw, the district court granted the state's motion to exclude the proffered evidence.

McBroom thereafter appealed, claiming that the DNA evidence was admissible under Minnesota Rule of Evidence 412(1)(B). But according to the Court of Appeals of Minnesota, one of the problems for McBroom was that "[e]ven though the [Bureau of Criminal Apprehension] found evidence of semen, the state did not offer that evidence at trial and there was, therefore, no need to show the source of the semen." 

This ruling establishes the distinction between the two exceptions. Federal Rule of Evidence 412(b)(1)(A) applies as long as a criminal defendant is trying to prove that a person other than he was the source of physical evidence, which is what McBroom was trying to do. Conversely, Minnesota Rule of Evidence 412(1)(B) only applies when the prosecution's case includes evidence of semen, pregnancy, or disease, and because the prosecution did not present any such evidence, the exception did not apply.

-CM