February 7, 2009
Island Justice: Guam Supreme Court Opinion Reveals Important Hearsay & Confrontation Clause Principles
The recent opinion of the Supreme Court of the Territory of Guam in People v. Jesus, 2009 WL 259373 (Guam Terr. 2009), reveals important aspects of both the Confrontation Clause and the excited utterance exception to the rule against hearsay.
In Jesus, on the night of August 3, 2007, EMTs and police officers found Julie Sandra Muna Gadia in critical condition after being run over by a truck belonging to her boyfriend, Jesus. Gadia experienced such a degree of physical trauma that she could not verbally respond to questions during the next six days. On August 9th, however, Gadia was able to speak to Officer Donald Nakamura, who, at Jesus' trial for two charges of misdemeanor assault and one charge of misdemeanor family violence, read the following from the report of his interview with Gadia:
"I inquired from...Gadia if it was an accident. [G]adia informed me in a low, slurred tone of voice, that he did it on purpose. I inquired from her to whom was she referring to. [G]adia stated, 'Junior, my boyfriend.'... Gadia in a low tone of voice stated that it was over her coworker. [G]adia started coughing heavily and started to moan. I then ceased the interview and told her that we will come back at a later time to interview her. [G]adia informed me that she was afraid of Junior and does not want to see him, that she wanted him to go to jail in regards to what he did to her."
Officer Nakamura also spoke to Gadia the following day, and at Jesus' trial, he read the following from the report of his interview with Gadia:
"[G]adia started to cry and stated that she is scared that he might come after her. I assured her that it will not happen. [G]adia continued to cry and called out her mother. [G]adia was still crying and stated they were going down, he stopped and told her to get out of the car. [G]adia, who by now was hysterical, stated that she was trying to move away from him. [G]adia stated, 'He just ran me over like it was nothing. God help me not to die.' She then stated that he tried to jack up the car and then tried to pick it up. [G]adia stated that she pleaded for help from him and even told him that if he doesn't, she will die."
Gadia also took the witness stand at Jesus' trial, but she testified:
"that she did not remember speaking to Officer Nakamura on August 9, 2007. Although Gadia testified that she remembered that two officers were asking her questions on August 10, 2007, she did not remember what was said. Gadia also testified that she had been unconscious for a period of time and had memory loss."
After Jesus was convicted, he appealed, claiming, inter alia, that the trial court improperly allowed Officer Nakamura to read from his reports because Gadia's statements were inadmissible hearsay and because Gadia was "unavailable" at trial, meaning that the admission of her statements violated his rights under the Confrontation Clause.
The court agreed with Jesus that Gadia was "unavailable" as that term is defined in Guam Rule of Evidence 804(a)(3) because she testified to a lack of memory. But at the same time, the court noted that the United States Supreme Court has found in United States v. Owens, 484 U.S. 554 (1988), that:
"The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. [T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony."
Therefore, there was no Confrontation Clause problem with the admission of Gadia's statements. But was there a hearsay issue? The court answered that question in the negative as well, at least with regard to Gadia's first statement to Nakamura. According to the court, Gadia's first statement constituted an excited utterance under Guam Rule of Evidence 803(a)(2) because it was "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."
Of course, you might wonder how Gadia's statement could have been considered an excited utterance when it came almost a week after the incident at issue. Well, the court correctly noted that:
"In cases where a declarant has lost consciousness or the ability to speak after sustaining fatal or nearly fatal wounds, declarant's accusatory statement made upon regaining consciousness or recovering the ability to speak is often admissible under an excited utterance exception to hearsay, despite the lapse of time. See, e.g., Apolinar, 155 S.W.3d at 189-90 (finding admissible declarant's statements made after a period of four days of unconsciousness, being under anesthesia and having undergone surgery as a result of being attacked); People v. Watkins, 230 N.W.2d 338, 339-40 (Mich.Ct.App.1975) (finding that the declarant had lost a lot of blood, was in pain and 'at times appeared unconscious and in a state of shock' was sufficient to admit statements as 'excited utterances' despite fifteen to forty-five minute lapse in time). In State v. Plummer, the New Hampshire Supreme Court found the declarant's statements were 'excited utterances' where the declarant 'lapsed in and out of consciousness....was in a state of intoxication throughout this period, and due to the severity of the injuries was in considerable pain.' 374 A.2d 431, 434 (N.H.1977). In State v. McHoney, the Supreme Court of South Carolina found that where the declarant's throat had been cut and she was unable to speak, the declarant's delayed statements were still excited utterances. 544 S.E.2d at 34-35 & n. 3."
For the reasons I stated in my article, A Shock to the System, 12 WM. & MARY J. WOMEN & L. 49 (2005), I agree with this conclusion and thus also agree that Gadia's first statement was properly admitted. Of course, I also agree with the court that Gadia's second statement on August 10th was made while she was no longer under the stress of the startling incident and thus improperly admitted. The court, however, found that error to be harmless in light of the other evidence of Jesus' guilt, including Gadia's first statement.
February 6, 2009
Firestarter: California Court Excludes Alternate Suspect Evidence In Trial Of Alleged Serial Arsonist
The trial of an alleged serial arsonist gives me my second opportunity on this blog (here was the first), to address reverse Rule 404(b) evidence, which is convenient because I just addressed this type of evidence in class today.
Raymond Lee Oyler, 38, faces five counts of first-degree murder in connection with a 41,000-acre Esperanza fire that killed five U.S. Forest Service firefighters and destroyed 34 homes. He also faces multiple counts of arson and possessing destructive devices for numerous prior brush fires and could face the death penalty if convicted. Specifically, Oyler is accused of setting 23 fires between May and October 2006, culminating in the Esperanza fire.
And Oyler's case was hindered to a significant extent by two recent occurrences. First of all, "California Department of Justice criminalist Marianne Stam testified Thursday that matches recovered from two June 2006 arson fires were chemically and dimensionally comparable to matches plucked from a box of matches submitted as evidence in the Olyer case.
Secondly, while Oyler's attorney, Mark McDonald, tried to present evidence that a former federal firefighter facing arson charges in Los Angeles County started at least some of the blazes, Judge W. Charles Morgan ruled that evidence inadmissible. Unfortunately, the article on the trial doesn't give any details about this ruling, but I don know that Oyler should not have been per se precluded from admitting this evidence.
California Evidence Code Section 1101(b) indicates that:
"evidence that a person committed a crime, civil wrong, or other act [is admissible] when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Now, usually, it is the prosecution presenting evidence of a prior act by a criminal defendant, such as the prosecution presenting evidence of a defendant's prior arsons to prove that he had a common plan or scheme for committing such crimes. However, as I noted in my previous post, "[d]efendants can also use the Rule to introduce so-called reverse 404(b) [or here, reverse Rule 1101(b)] evidence, under which the defendant introduces evidence of other acts of someone besides himself to prove that the other person was the likely perpetrator of the crime. United States v. Della Rose, 403 F.3d 891, 894 (7th Cir. 2005)." And indeed, courts are actually more willing to admit this type of evidence because they are less concerned about unfair prejudice to the prosecution than they are about unfair prejudice to the defendant.
That said, I'm assuming that Oyler had insufficient evidence to link the former firefighter to the crimes and/or some permissible purpose, which is why the court deemed this alternate suspect evidence inadmissible.
February 5, 2009
Buckle Up: Georgia To Consider Bill Permitting Admission Of Evidence of Seatbelt Nonuse In Car Accident Cases
Like similar laws in many states, OCGA Section40-8-76.1(d), precludes the admission of evidence of a driver's failure to wear a seatbelt as evidence of negligence or causation. According to OCGA Section40-8-76.1(d),
"The failure of an occupant of a motor vehicle to wear a seat safety belt in any seat of a motor vehicle which has a seat safety belt or belts shall not be considered evidence of negligence or causation, shall not otherwise be considered by the finder of fact on any question of liability of any person, corporation, or insurer, shall not be any basis for cancellation of coverage or increase in insurance rates, and shall not be evidence used to diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a motor vehicle."
The Supreme Court of Georgia explained the reason behind this law in finding OCGA Section40-8-76.1(d) to be constitutional in C.W. Matthews Contracting Co., Inc. v. Gover, 428 S.E.2d 796 (Ga. 1993). In Gover,
"Linda Gover was injured when the vehicle she was driving collided with another vehicle in the vicinity of appellant's construction site. As the result of the collision, Gover, then seven-months pregnant, underwent an emergency cesarean operation and gave birth to appellee, Trent Gover, who suffer[ed] from brain damage. Appellees filed suit against appellant and the driver of the other vehicle, alleging, in part, that the negligence of appellant's employees in attempting to direct traffic around the construction site resulted in the collision which caused their injuries. The parties...stipulated that Linda Gover was not wearing a seat belt at the time of the collision."
But while the parties so stipulated, Gover moved to have this evidence precluded at trial pursuant to OCGA Section40-8-76.1(d), and C.W. Matthews countered that the law was unconstitutional. The Georgia Supremes disagreed, concluding that "the legislature may ensure that those who cause vehicular collisions are not permitted to escape liability by raising the defense that the injured party was not wearing a seat belt."
But now, what the legislature gaveth, it may taketh away. A state Senate committee is scheduled to consider a bill today that would allow for the admissibility of evidence of seat belt (non)use in legal proceedings. The bill is sponsored by Senator Lee Hawkins, who has claimed that it is absurd that this evidence is inadmissible whereas, "If a person is caught driving under the influence of alcohol or drugs, that's admissible." In support of the bill, Hawkins noted that "of the 12 traffic-related deaths in Hall County last year, 11 were not wearing seat belts."Hawkins' bill has been endorsed by the Georgia Chamber of Commerce, which argued in a statement that:
"Simply allowing for the admissibility of seat belt use evidence does nothing to relieve a defendant of the ultimate responsibility for a vehicle accident; it simply allows a judge or jury to consider whether that evidence contributed to injuries or costs and make a decision that considers all the facts."
It will be interesting to see how this goes. Personally, I don't think that I have enough in the way of empirical data or jury studies to be able to conclude whether this evidence should generally be admitted or excluded. What do readers think?
February 4, 2009
Bullet In The Brain: Court Of Appeals Of Veterans Claims References Federal Rules Of Evidence In Entitlement Appeal
The recent opinion of the United States Court of Appeals for Veterans Claims in Mynhier v. Shinseki, 2009 WL 230234 (Vet.App. 2009), is a good example of how veterans affairs courts are not bound by the Federal Rules of Evidence but still frequently look to them for guidance.
In Mynhier, Raymond F. Mynhier served in the Army until 1970, including a stint in Vietnam, during which he was exposed to Agent Orange. Recently, Mynhier sought:
"entitlement to service connection for (1) a sleep disorder, (2) a gall bladder disability, (3) a disability of the liver, and also denied (4) a disability rating in excess of 50% for residuals of a shell fragment wound of the right parietal skull, (5) a disability rating in excess of 10% for residuals of brain trauma with seizures prior to April 13, 2004, and in excess of 40% thereafter, (6) a disability rating in excess of 10% for residual numbness and paresthesia of the left lower extremity prior to April 13, 2004, and in excess of 40% thereafter, and (7) a compensable disability rating for residual paresthesia of the left hand prior to April 13, 2004, and a disability rating in excess of 20% thereafter."
The Board of Veterans' Appeals denied him this entitlement, prompting his pro se appeal to the United States Court of Appeals for Veterans Claims, which affirmed some of the Board's denials and set aside and remanded some others for readjudication.
One of the denials that the court affirmed was the denial of Mynhier's claimed entitlement to a disability rating in excess of 50% for residuals of a shell fragment wound of the right parietal skull. According to the court, Mynhier's wound was rated at 50% disabling, and to obtain a higher rating, the evidence had to "demonstate the presence of brain hernia, which is the 'protrusion of brain substance through the cranium.'"
The court then noted that the Board correctly found that there was no such evidence as it pointed to computed tomography (CT) scans of Mynhier's skull, which contained no indication of brain herniation." The court then concluded that "[b]rain herniation is the type of condition that one would certainly expect to be mentioned in the CT report if it existed. Cf. FED.R.EVID. 803(7) FED.R.EVID. 803(7) (hearsay exception for matters not included in business records if matter is of a kind that record is regularly made)."
The reason for the cf. citation is because the Federal Rules of Evidence do not generally apply to proceedings before the Department of Veterans Affairs Regional Office, the Board of Veterans' Appeals, or Court of Veterans Appeals. See, e.g., Cacalda v. Brown, 9 Vet.App. 26, 264 (Vet.App. 1996). But, as in Mynhier, these courts often do look to the Rules for guidance.
February 3, 2009
They're Doin' It For Life: Supreme Court Of New Hampshire Opinion Reveals Recent Change To Conviction-Based Impeachment Rule
The recent opinion of the Supreme Court of New Hampshire in State v. Hebert, 2009 WL 196566 (N.H. 2009), reveals that New Hampshire recently amended its rule regarding the impeachment of witnesses through prior convictions to bring it into conformity with its federal counterpart.
In Hebert, Eric Hebert appealed his misdemeanor conviction for simple assault, claiming, inter alia, that the trial court improperly allowed the prosecution to impeach him through evidence of his prior felony conviction for operating a motor vehicle after being certified as a habitual offender. In addressing this issue, the Supreme Court of New Hampshire noted that Hebert's trial was held before New Hampshire Rule of Evidence 609(a) was amended. Thus, at the time that Hebert's case was heard, the Rule stated in pertinent part that:
"For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he or she was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment."
The court then found that "[t]he trial court reasoned that the habitual offender conviction evinced an abiding and repeated contempt for the law, and thus provided insight into the defendant's trustworthiness. This conclusion is not clearly untenable or unreasonable."
Overall, then, Hebert was a pretty simple opinion, with its main importance being that it taught me that New Hampshire had amended New Hampshire Rule of Evidence 609(a) in 2007. Now, the Rule states that:
"For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."
In other words, New Hampshire Rule of Evidence 609(a) is now identical to Federal Rule of Evidence 609(a). So, for Hebert, this difference would have been irrelevant because, as the accused, his prior felony conviction was admissible under either version of the Rule if the probative value of that conviction outweighed its prejudicial effect. But, under the older version of the Rule, this same balancing test applied to any other witness while now, New Hampshire courts shall admit prior convictions of other witnesses as long as their probative value is not substantially outweighed by their prejudicial effect.
I generally agree with this change. But, as I note in my forthcoming article, Impeachable Offenses?, I think that civil parties in quasi-criminal cases, i.e., civil proceedings where a judgment rendered against the party necessitates a finding that the party committed a particular act that was also punishable under criminal law, should be treated like criminal defendants under the Rule(s).
February 2, 2009
We The Jury, Take 4: Florida Prosecutor Raises Bizarre Objection To New Jury Questioning Process
Last January, I wrote a post about landmark new rules by the Supreme Court of Florida, pursuant to which: (a) judges in civil cases must allow jurors to submit questions for witnesses, and (b) judges in criminal cases have the discretion to allow jurors to pose questions for witnesses. Then, last May, I wrote a post noting that both prosecutors and defense attorneys who had tried cases before the only Florida judge to allow juror questions in all of his trials had found that the process has improved the quality of the trials while jurors in those cases claimed that the process has clarified issues and made their decisions easier. Finally, last October, I wrote a post about how the Seventh Circuit did a study of jury questioning during trials and received overwhelmingly positive feedback from the attorneys, jurors, and judges involved.
Well, now Broward County's chief homicide prosecutor, Brian Cavanagh, has raised a bizarre objection to Florida's jury questioning process. According to an article, Cavanagh said that,
"The implications of an inappropriate question -- even if asked outside the earshot of fellow jurors -- would become amplified in a criminal trial, where a curious juror could reveal a hidden prejudice that might provide grounds for a mistrial."
Excuse me? Cavanagh is saying that this is a bad thing? The jury questioning process is a bad thing because it might lead to a mistrial on the ground that it could reveal that a juror who made it through the jury selection process is actually racist, biased against one of the parties, or connected with the trial in some other meaningful way? I would say that such a result would be one of the better collateral consequences of such a process because, as readers of this blog know, it is very difficult for jurors to impeach their verdicts after trial based upon evidence of juror bias.
Meanwhile, Cavanagh's concern that '''[t]here is a real and present danger that I think everyone is aware of when jurors start asking questions,' because they aren't aware of rules of evidence that dictate what can and cannot be asked of witnesses" seems unfounded to the extent that their questions are "given only to the judge, who determines -- with input from attorneys for both sides -- if the inquiry is allowable."
I do, however, think that Tom Gamba, a veteran Miami-Dade civil attorney, has a potential valid criticism of the process. According to the same article, Gamba "gave mixed reviews of juror questions, noting that even if a judge disallows a question, the query still gives opposing counsel a window into the juror's thinking that they otherwise would not have had." Is that a bad thing? I'm not sure, but I do know that Cavanagh's criticisms seem entirely unfounded.
February 1, 2009
I (Was) Shot (By) The Sheriff: Eleventh Circuit Incorrectly Applies Employee Admission Rule In Section 1983 Appeal
I strongly disagree with at least part of the recent opinion of the Eleventh Circuit in Lloyd v. Van Tassell, 2009 WL 179622(11th Cir. 2009), because I think that it contains an incorrect interpretation of Federal Rule of Evidence 801(d)(2)(D), the employee admission rule.
In Van Tassell, Orvel Winston Lloyd appealed inter alia the district court's grant of summary judgment to the defendants in his 42 U.S.C. Section 1983 action challenging actions allegedly taken during and after his arrest in Nassau County, Florida. According to the Court, "[c]onstrued liberally, Lloyd argue[d], among other things, that the district court erred when it granted summary judgment on his excessive force claim against Deputy Clarence Card, his deliberate indifference claim against Nurse O'Quinn, and his excessive force claim against Sheriff Ray Geiger, in Geiger's individual, supervisory, and official capacities."
The Eleventh Circuit ended up affirming in part, reversing in part, dismissing in part, and remanding for further proceedings. Among the parts that the court affirmed was the district court's grant of summary judgment to Sheriff Geiger, and I think that this is where it erred. According to the court,
"Lloyd's primary argument against summary judgment for Sheriff Geiger on the excessive force claim is that during the incident Card supposedly said that Geiger had told him to kill Lloyd. While the statement is admissible against Card under Fed.R.Evid. 801(d)(2), it is inadmissible hearsay as to Geiger. The best argument Lloyd has for the admissibility of Card's statement against Geiger is under Rule 801(d)(2)(D), but that argument fails because a directive to kill a suspect is not properly 'within the scope of the agency or employment' of a deputy sheriff."
Here is my take on things. First of all, Card's alleged statement was hearsay within hearsay because he allegedly made a statement which referenced an earlier statement by Geiger. Thus Federal Rule of Evidence 805 applied, and each layer of "hearsay" had to qualify for admission under an applicable "exception." The easier part of the analysis is Geiger's alleged instruction to Card to kill Van Tassell as this would be the admission of a party-opponent -- a civil defendant -- under Federal Rule of Evidence 801(d)(2)(A).
The harder part is Card's alleged statement. As the Eleventh Circuit correctly noted, the best avenue for admission of this statement would be Federal Rule of Evidence 801(d)(2)(D), which indicates that:
"A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."
So, was the Eleventh Circuit correct that this Rule didn't apply because a directive to kill a suspect is not properly within the scope of the agency or employment of a deputy sheriff? I don't think so based upon two sources. First of all, there is the Advisory Committee's Note to Rule 801, which indicates in relevant part that it was adopted because:
"[t]he tradition has been to test the admissibility of statements by agents, as admissions, by applying the usual test of agency. Was the admission made by the agent acting in the scope of his employment? Since few principals employ agents for the purpose of making damaging statements, the usual result was exclusion of the statement. Dissatisfaction with this loss of valuable and helpful evidence has been increasing. A substantial trend favors admitting statements related to a matter within the scope of the agency or employment."
So, if the fact that a statement is "damaging" does not preclude it from being an employee admission (the drafters of the Rule having followed the "substantial trend"), what is the test that courts have applied in tort cases to determine whether a statement is an employee admission? Well, according to Aliotta v. National R.R. Passenger Corp., 315 F.3d 756, (7th Cir. 2003),
"To qualify an admission, an employee need only be performing the duties of his employment when he comes in contact with the particular facts at issue. See Polec v. Northwest Airlines (In re Air Crash Disaster), 86 F.3d 498, 536 (6th Cir.1996) (holding that, where an accident investigation is conducted as part of a vice president's duties, comments made during it are admissions under Rule 801(d)(2)(D))."
Clearly, Card's statement was made while he came in contact with the particular facts at issue -- the arrest of Van Tassell -- and thus his statement should have qualified as an employee admission.