EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, February 14, 2009

Dismissed With Prejudice?: Eastern District Of Tennessee Issues Strange Opinion In Appeal Alleging Juror Racial Bias

I am currently in the final stage of completing my new article, Dismissed With Prejudice, which argues that precluding jurors from impeaching their verdicts after trial based upon allegations of racial, religious, or other prejudice violates the right to present a defense. And as part of that final stage, I was scanning recent opinions on the issue and came across the opinion of the United States District Court for the Eastern District of Tennessee in United States v. Taylor, 2009 WL 311138 (E.D. Tenn. 2009). At first this seemed like a promising opinion which bucked the majority trend and allowed jury impeachment based upon allegations of racial prejudice. But on closer inspection, I realized that it was a poorly reasoned opinion that, to paraphrase Inigo Montoya, doesn't mean what the judge thinks it means.

In Taylor, Rejon Taylor, an African-American man, was convicted of four capital offenses in connection with a carjacking, kidnapping, and murder and given a death sentence. He thereafter moved for a new trial and evidentiary hearing and moved to interview jurors ahead of that hearing. The basis for the latter motion was at least two-fold. First, according to alternate juror Everage Holloway and two regular jurors, all 12 seated jurors and all six alternates were aware of and discussed media reports which indicated that Taylor had called jurors "racist rednecks." Also, according to Holloway, he "heard (jurors) talking about how we needed to make an example of him. It was like, here's this little black boy. Let's send him to the chair, and all I ever thought was that he made the unluckiest (gun)shot of his life."

In addressing Taylor's motion, the court considered Federal Rule of Evidence 606(b), which indicates in relevant part that:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

Under this Rule, the court's analysis of the first allegation was easy. The media reports were clearly extraneous prejudicial information, could form the proper predicate for jury impeachment, and led the court to grant Taylor an evidentiary hearing on the issue.

The second allegation posed a tougher question, and the court did not handle it well. In deciding whether it could address the allegation of racial bias, the court noted that the controlling precedent was the Sixth Circuit's precedent in Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), which "list[ed] a juror's use of racial slurs as an internal influence" and thus not a proper subject for jury impeachment. Nonetheless, the court found that this "conclusion [wa]s unsupported by any discussion" and noted that the opinion went "on to discuss whether racial slurs affected the defendant's right to a fair trial." I disagree with this first conclusion. The Sixth Circuit clearly cited the Supreme Court's opinion in Tanner v. United States, 483 U.S. 107 (1987), which clearly held that something that originates from the jurors themselves is internal to the jury deliberation process and not the proper predicate for jury impeachment.

The court then cited three other opinions, which it cited for the proposition that "[o]ther circuit courts have held that evidence about jurors' racial bias is admissible under Rule 606(b) or to ensure a fair trial." But the first opinion it cited, United States v. Henley, 238 F.3d 1111 (9th Cir. 2001), concluded nothing of the sort; instead, it found that a juror's comments were admissible to show that he lied during voir dire, not to (directly) impeach the verdict. And the second opinion it cited, Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987), found that allegations of racial slurs did not form the proper predicate for jury impeachment and then, relying on Tanner, quickly shot down the defendant's argument that such an application of Rule 606(b) violated his Sixth Amendment right to a fair trial. And while the third opinion did indeed find that juror (anti-Semitic) bias did form the proper predicate for jury impeachment, "Rule[606(b)] has repeatedly been held to preclude a juror from testifying, in support of a motion for a new trial, that juror conduct during deliberations suggests the verdict was tainted by racial bias." Victor Gold, Juror Competency to Testify that a Verdict was the Product of Racial Bias, 9 ST. John's J. Legal Comment.125 (1993).

But, let's put the court's apparent cherry picking for a second. Whether properly or improperly, it clearly seems to me that the court was saying that Rule 606(b) shouldn't be read to preclude jury impeachment through allegations of racial bias and at the very least that a strong argument could be made that the preclusion of such impeachment would violate a defendant's Sixth Amendment right to an impartial jury. So, what did the court do?

Well, it snatched defeat from the jaws of victory. According to the Court,

In Tanner, the Supreme Court noted defendants' rights to a fair trial are protected by several aspects of the trial process: the determination of jurors' suitability at voir dire; the observations of the jury by the court, counsel, and court personnel; the observations of jurors by each other, who can report inappropriate behavior to the court "before they render a verdict"...; and the ability to impeach a verdict with nonjuror evidence of misconduct....Here, neither Juror # 256, Holloway, nor any other juror or nonjuror reported any incident of racial bias to the Court or court personnel. Jurors at times communicated with court personnel over scheduling issues and comfort issues, and no one reported any of the issues now raised by Holloway. At the start of trial, counsel had an opportunity to conduct suitable voir dire, which consisted of a lengthy written questionnaire and then oral questioning of jurors, first in large groups, then in small groups. In addition, the Court, counsel, and court personnel observed jurors throughout the trial without learning of any racist behavior. Finally, in its verdict form determining Defendant should receive the death penalty each juror affirmed their decision was not influenced by race. The Court concludes there is no credible allegation of racial bias infecting the proceedings.

What? Of course nobody came forward during trial. If they did, the judge would have decided whether jurors needed to be dismissed or whether there needed to be a mistrial, and those decisions could have been reviewed on appeal. In other words, Rule 606(b) would have been inapplicable. It seemed to me that the court was arguing against the Sixth Circuit precedent it was citing, but, instead, the above conclusion clearly establishes that the United States District Court for the Eastern District of Tennessee (like most courts) is never going to allow jurors to impeach their verdicts after trial through allegations of racial bias.

-CM

February 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, February 13, 2009

Litigating With The Sopranos, Take 2: New Jersey Legislature Might Approve Forfeiture By Wrongdoing Exception

In January, I wrote a post about State v. Byrd, 923 A.2d 242 (N.J.Super.A.D. 2007), an opinion by the Superior Court of New Jersey, Appellate Division, which was based upon the following facts:

Dionte Byrd and Freddie Dean, Jr. appealed their convictions for felony murder and related charges in connection with the killing of Charles "Minnesota Fats" Simmons in Simmons' apartment in Trenton in 2001.  Both Byrd and Dean were convicted in large part based upon the statements of Kenneth Bush, who indicated, inter alia, that he rode in a van to Simmons' apartment with Byrd and Dean, both of whom were armed, remained in the van while they entered the apartment, saw them return, with Byrd having suffered a gunshot wound to the leg, and heard both men discuss the shooting.

Bush, however, did not testify to these facts at trial.  Instead, he refused to testify, claiming that both defendants threatened him with bodily harm if he testified against them.  The above facts were merely what Bush told Trenton Police Detective Anthony Manzo in a transcribed, written statement.  And, at the trial court level, after a lot of legal wrangling, 

"[t]he judge stated that he was clearly convinced of the legitimacy of Bush's expressed concerns about testifying. He confirmed his ruling the next day and announced that he intended to admit Bush's statement following a reliability hearing. Thereafter, at the conclusion of the hearing,...the judge permitted Detective Manzo to read Bush's statement to the jury."

Although the judge agreed that the procedure was novel, with little case law to provide support, he was of the opinion that "no examination or cross-examination was possible given the attitude of the witness."

The defendants thus appealed, claiming that New Jersey has no counterpart to Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing exception to the rule against hearsay, which allows for the admission of

"[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."

In addressing this issue, the Appellate Division noted that since the adoption of Federal Rule of Evidence 804(b)(6), several state supreme and intermediate appellate courts have adopted the forfeiture by wrongdoing exception "through judicial decision.  But the court nonetheless reversed, concluding that

"such a change in the Rules of Evidence should be accomplished by our Supreme Court in accordance with the procedure prescribed in N.J.S.A. 2A:84A-38 and -39, rather than by judicial opinion.... Accordingly,...the trial court should not have permitted Detective Manzo to testify as to Bush's out-of-court statement."

As I noted, the state subsequently appealed, and I indicated that "[w]e should have the response of the Supreme Court of New Jersey shortly."  Well, now the state's legislature might grease the wheels.  Assemblyman Sam Thompson recently introduced a joint legislative resolution that will permit New Jersey’s courts to amend its Rules of Evidence guideline to permit a "forfeiture by wrongdoing" exception to the hearsay rule, which would be patterned after the federal courts’ rules of evidence.  According to Thompson,

"This resolution will give our courts the authority to allow into evidence the statements of individuals whose well-being is threatened by the defendant or someone affiliated with the accused....Federal law permits the 'forfeiture by wrongdoing' exception to account for such occurrences.  This exception will ensure that intimidation of witnesses is not a viable defense weapon for the accused....Adding this component to the permitted hearsay rule will assist prosecutors in their efforts to overcome attempts to coerce a witness against testifying....Threatening a witness should not be an option for a defendant in either a federal or state court."

As I noted in my prior post, "at least 31 states and the District of Columbia have adopted the forfeiture rule."  Will New Jersey be next?

-CM

February 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2009

Not Feeling Minnesota: Minnesota Appeal Reveals That The State Allows Jury Impeachment Based Upon Internal Threats Of Violence Or Actual Violence

The recent opinion of the Court of Appeals of Minnesota in State v. Moore, 2009 WL 304802 (Minn.App. 2009), reveals that Minnesota permits jurors to impeach their verdicts after trial through testimony concerning threats of violence or actual violence by other jurors. And I wonder whether readers of this blog agree with the distinction drawn by the state.

In Moore, Curtis Moore appealed from his convictions for 1st and 3rd degree criminal sexual conduct, alleging, inter alia, jury misconduct. Specifically, the ground for this argument on appeal was that:

"Less than two hours after the verdict was entered, [juror] A.S. telephoned the district judge's chambers and stated that she was 'not ok' with the verdict....At [a subsequent] summary hearing, Moore's attorney reported that after the trial, while he was speaking to another juror about what had influenced their decision, A.S. approached and listened to the conversation. A.S. was crying. The first juror referenced some 'personal attacks' by another juror directed to him and A.S.

The district court continued the hearing to the next day and prohibited the parties from contacting any of the jurors. At the continued hearing, Moore requested a Schwartz hearing based on allegations of 'personal attacks' during deliberations and A.S.'s telephone call to the district court. The district court denied the motion, concluding that Moore had not established a prima facie case of juror misconduct. But the district court permitted the parties to contact A.S. and told them to come back if there was additional evidence supporting a Schwartz hearing. On behalf of the prosecutor, a police officer contacted A.S. that day. A.S. said she was not threatened with physical violence or coerced during deliberations, but she felt 'pressured' by the jurors to reach a guilty verdict. A report of this conversation was forwarded to the district court.

Months later, Moore's attorney sent the district court an investigator's report of a conversation with A.S. A.S. told the investigator that she did not believe that there was enough evidence to convict Moore and she felt pressured to change her vote to 'guilty.' She stated that she was not coerced or physically threatened but noted that one juror made 'highly inappropriate' personal attacks against another juror. She also stated that one of the sequestered jurors had left the hotel to move his car. Neither party moved for a Schwartz hearing based on the additional conversations with A.S."

In Moore's appeal, he claimed that the court erred in not holding a Schwartz hearing to address this alleged jury misconduct. Those familiar with Federal Rule of Evidence 606(b) might wonder why it was even a possibility that the jury in Moore might have been able to impeach its verdict based upon threatened or actual juror attacks, something internal to the jury deliberation process. That Rule (and many state counterparts) provides in relevant part that:

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."

Because threatened or actual violence by jurors does not fall under any of these three exceptions, it would not form the proper predicate for jury impeachment although some courts have mused in dicta that they might read in such an exception in an certain cases. See, e.g., Anderson v. Miller, 346 F.3d 315, 327 (2nd Cir. 2003) ("It is certainly far from unreasonable to conclude that credible allegations of threats of violence leveled by one juror by another would fall within this exception.").

Minnesota Rule of Evidence 606(b), however, states in relevant part that:

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict." (emphasis added).

As is clear from the italicized language, Minnesota does explicitly allow for jury impeachment based upon allegations of threatened or actual violence. The Committee Comment to the Rule both explains the reason that it was amended to be different from Federal Rule of Evidence 606(b) and the reason why the Rule was inapplicable in Moore. According to the Comment:

"The amended rule allows jurors to testify about overt threats of violence or violent acts brought to bear on jurors by anyone, including by other jurors. Threats of violence and use of violence is clearly outside of the scope of the acceptable decisionmaking process of a jury. The pressures and dynamics of juror deliberations will frequently be stressful and jurors will, of course, become agitated from time to time. The trial court must distinguish between testimony about 'psychological' intimidation, coercion, and persuasion, which would be inadmissible, as opposed to express acts or threats of violence."

So, this is the distinction I mentioned above. And I have to say that I'm not buying it. Is Minnesota saying that psychological intimidation and coercion are not clearly outside the scope of the acceptable decisionmaking process of the jury? Is it saying that a juror's threat to punch another juror if he doesn't vote "guilty" forms a proper predicate for jury impeachment but a juror's threat to ruin another juror's reputation or finances does not? Such distinctions seem arbitrary to me. What do readers think?

-CM

February 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2009

Lie To Me?: Supreme Court Of Maine Opinion Reveals That Jury Deliberations Can Be Used To Prove Juror Deceit During Voir Dire

The recent opinion of the United States District Court for the District of Maine in Watts v. Maine, 2009 WL 249236 (D. Me. 2009), reveals the important point that while jurors cannot testify regarding jury deliberations to impeach their verdicts after trial, they can testify regarding those same deliberations to prove that a juror lied during voir dire (which can have the effect of impeaching the verdict).

In Watts, Donald Watts filed a 28 U.S.C. Section 2254 petition, seeking to invalidate his convictions on charges of sexual misconduct. One of the grounds for Watts' appeal was that Juror 26 lied during voir dire in answering "No" to the following questions:

1. Have you or a close relative or friend ever been a victim of sexual abuse or sexual assault?

2. Have you or a close relative or friend ever been subjected to a charge of sexual abuse or sexual assault or been investigated for sexual abuse or sexual assault?

3. Have you and other family members ever been separated from one another due in whole or in part to sexual abuse or sexual assault or claims of sexual abuse or sexual assault?

4. Have you had any experiences in life that would make [it] difficult or impossible for you to consider evidence in a case of alleged sexual abuse or sexual assault objectively and impartially?

5. Is there any reason why you could not consider evidence in a case of alleged sexual abuse or sexual assault objectively or impartially?

The basis for the contention was the affidavit of Juror 19, who claimed that "during the end of deliberations and prior to the jury's final vote to convict Watts, Juror 26 'told the story of her own victimization, or sexual abuse.'" The court then questioned Juror 26, and she

"indicated that when she was seventeen years old, she was at a party drinking alcohol, and engaged in a consensual sexual experience with a teenage boy, who she thought was approximately eighteen years old. She accompanied the boy to a parked car, and they started kissing and touching each other. He eventually placed his hand down her pants, and this physical contact hurt her. This contact included digital vaginal penetration, which caused bleeding and required medical treatment afterward. When the touching hurt her, however, she told him to stop, and he did stop. She did not consider herself to be a victim of sexual abuse or sexual assault. She also testified that she did not consider her experience as a teenager to have affected her objectivity or impartiality in reaching a verdict in Watts's case. She told the court that she never even thought about this sexual experience until she was in the jury room. It was when the other jurors discussed similar life experiences involving drinking alcohol at parties when they were young that Juror 26 remembered this event, and then told the deliberating jurors about her experience."

Based upon this evidence, the trial court afforded Watts the relief he sought, but the Maine Law Court reversed. In so doing, the court first made clear the reason why it could consider the evidence at issue. The court acknowledged that under Maine Rule of Evidence 606(b),

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning any juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received."

But, the court noted an important "exception" to this Rule is that "serious allegations of juror bias in the context of juror dishonesty or inaccuracy in answering a voir dire questionnaire is...[a] limited circumstance when the court, within its discretion, may proceed with a post-trial hearing to inquire into potential juror bias." But the problem for Watts was that, according to the court, Juror 26 did not lie during voir dire because:

"Juror 26 did not consider herself to have been the victim of sexual abuse or a sexual assault, and never characterized the limited sexual experience she related to her fellow jurors as sexual abuse or as a sexual assault, which was what the questionnaire was directed toward. Rather, the experience that Juror 26 related to her fellow jurors was consensual, albeit uncomfortable, and an experience that would not be uncommon among teenagers and young adults."

Thus, the Maine Law Court reversed the trial court, and the United States District Court for the District of Maine saw no reason to award Watts relief under 28 U.S.C. Section 2254.

I want to make one final point about Watts because the research on my nearly completed jury impeachment article uncovered a fascinating historical tidbit. In noting the justification for Rule 606(b), the court cited to the Supreme Court's 1915 opinion in McDonald v. Pless, 238 U.S. 264 (1915), as "contributing to 'the great weight of authority in this country' establishing strict limitations on allowing jurors to impeach their verdicts." This citation was unsurprising because Pless was the most important opinion cited in support of the passage of the stricter version of Federal Rule of Evidence 606(b) and in support of its Constitutionality in Tanner v. United States, 483 U.S. 107 (1987).

And, indeed, Pless does explain in great detail why we need a strict anti-jury impeachment rule although, ironically, it also cautioned that "it would not be safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice.'" But that's not the greatest irony of Pless. And that irony is that Pless was a civil appeal, with the Supreme Court finding that the private redress that could be achieved through jury impeachment was not quite enough to justify the evils that would be unleashed if jury impeachment were allowed (at least in most cases). But, here is how the Court concluded its opinion:

"The suggestion that, if this be the true rule, then jurors could not be witnesses in criminal cases, or in contempt proceedings brought to punish the wrongdoers, is without foundation. For the principle is limited to those instances in which a private party seeks to use a juror as a witness to impeach the verdict."

In other words, the essential opinion underlying Rule 606(b) found that jurors should not be prevented from impeaching their verdicts in criminal cases. And yet, that is exactly what has happened in a great deal of cases, often with Pless cited as the most compelling authority.

-CM

February 11, 2009 | Permalink | Comments (1) | TrackBack (1)

Tuesday, February 10, 2009

Withdrawal Symptoms: Eighth Circuit Opinion Raises Question Of Whether Moving To Withdraw A Guilty Plea Braches A Plea Agreement

The recent opinion of the Eighth Circuit in United States v. Quiroga, raises, but does not answer, a fascinating evidentiary issue: Does moving to withdraw a guilty plea breach a plea agreement?

In Quiroga, a grand jury charged Francisco Quiroga "with possession with intent to distribute five grams or more of pure methamphetamine within 1000 feet of a playground." Quiroga thereafter "signed a written plea agreement with the government" which contained the dreaded Mezzanatto waiver. That waiver provided in relevant part that:

"If the defendant violates any term or condition of this plea agreement, in any respect, the entire agreement will be deemed to have been breached.... If the defendant does breach this agreement, he faces the following consequences: (1) all testimony and other information he has provided at any time to attorneys, employees or law enforcement officers of the government, to the court, or to the federal grand jury, may and will be used against him in any prosecution or proceeding...."

Quiroga subsequently "entered a plea of guilty, which the district court accepted based on the report and recommendation of a magistrate judge." Two months later, however, Quiroga moved to withdraw his plea, claiming that his attorney incorrectly advised him that he could not be sentenced as a career offender. And while the court initially denied Quiroga's motion, on reconsideration, it allowed him to withdraw his guilty plea.

At Quiroga's ensuing trial, he moved to preclude the prosecution from presenting any evidence concerning his initial plea agreement and his withdrawn guilty plea pursuant to Federal Rule of Evidence 410, which indicates in relevant part that:

"evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn."

The district court rejected this argument, and the Eighth Circuit later affirmed, (1) noting that Quiroga failed to dispute that he breached his plea agreement when he moved to withdraw his guilty plea and (2) rejecting his argument that his agreement to waive his rights under Rule 410 was not knowing and voluntary. I am much more interested in the point that Quiroga did not contest.

You see, the district court actually did address the issue of whether Quiroga breached his plea agreement when he moved to withdraw his guilty plea. But in addressing that issue, the court found that it was bound by the Eighth Circuit's opinion in United States v. Swick, 262 F.3d 684 (8th Cir. 2001), which it thought stood for the proposition that moving to withdraw a guilty plea breaches a plea agreement. As the Eighth Circuit correctly noted in Quiroga, however, it actually didn't answer this question in Swick.

So, how would the district court have ruled if it didn't incorrectly read Swick? Well, the court actually noted in dicta that it was troubled by the "apparent assumption" in Swick

"that moving to withdraw a guilty plea is a breach of the plea agreement, triggering the clause waiving Rule 410 rights. The court says apparent assumption, because there is no explanation whatsoever in Swick...of how or why moving to withdraw a guilty plea violates a plea agreement. After all, when a party to a contract moves for declaratory judgment in a civil action to determine whether the contract is enforceable, that action is not construed to be a breach of the contract."

This conclusion makes sense to me, and taking it one step further, it the court in this hypothetical were to determine that the contract were not enforceable or voidable, the party would not be deemed to have breached the contract, just as the criminal defendant who is allowed to withdraw his guilty plea should not be deemed to have breached the plea agreement.

-CM

February 10, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2009

Into The Dawn To Montana: Montana Moves Closer To Adopting Sex Crime Character Evidence Rules

On Saturday, Montana moved one step closer to adopting rules of evidence that would allow for the admission of evidence of (1) prior sexual assaults against criminal defendants charged with sexual assault, (2) prior acts of child molestation against criminal defendants charged with child molestation, and (3) prior acts of sexual assault and child molestation against civil parties in actions in which a claim for damages or other relief is predicated on that party's alleged commission of conduct constituting the offense of sexual assault or child molestation. In other words, Montana moved one step closer to adopting state counterparts to Federal Rules of Evidence 413, 414, and 415.

So, what exactly did Montana do? Well, the House passed House Bill 295, which contains these new rules, by an 89-11 vote. The bill will now "have one more reading in the chamber, before moving to the Senate for consideration." The bill was passed after "Rep. Mike Menahan, D-Helena, the bill's sponsor, told his fellow lawmakers Saturday that not allowing past sexual crimes to be entered as evidence leads to 'absurd results' in sex-offender trials. Given the high rates of recidivism associated with sexual offenses, he said, past abuses are especially relevant."

Of course, before Federal Rules of Evidence 413, 414, and 415 were enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, "[t]he overwhelming majority of judges, lawyers, law professors, and legal organizations who responded opposed” the new rules. Similarly, the Advisory Committees on Criminal, Civil, and Evidence Rules were 'unanimous except for a dissenting vote by the representative of the Department of Justice.'" Rosanna Cavallaro, Federal Rules of Evidence 413-415 and the Struggle for Rulemaking Preeminence, 98 J. Crim. L. & Criminology 31, 53 (2007) (I won't list all of the concerns with the Rules here, but one is that the recidivism rate for drug users is much higher than the recidivism rate for sex offenders, and we don't allow evidence of past drug offenses in drug trials).

However, despite this (in my mind justified) criticism, the Rules have withstood multiple constitutional challenges, which is why I don't think that the bill's opponents will find much success with their argument that the bill is "unconstitutional." Indeed, I think that the 2002 opinion of the Supreme Court of Montana in State v. Aakre, 46 P.3d 648 (Mont. 2002), reveals both the impropriety of admitting the evidence covered by House Bill 295 and the futility of a constitutional challenge.

In Aakre, the prosecution tried to introduce evidence of prior sexual assaults by the defendant in his trial for sexual assault, and the court deemed this evidence inadmissible as it argument for admissibility impermissibly "boil[ed] down to one that Aakre is a sexual predator and that Aakre's acts of sexual aggression are dictated by his character and the situation at hand."  In an accompanying footnote, however, the court noted that "[i]f there is to be an automatic exception to Rule 404(b), M.R.Evid., in Montana regarding sex crimes, then it is appropriate for the Legislature to address this issue."  And it appears that this is exactly what Montana is about to do, despite the claims of some (myself included) "that the special rules regarding the admissibility of similar acts evidence in cases of sexual assault are within the sphere of special competence of the judiciary."

-CM

February 9, 2009 | Permalink | Comments (0) | TrackBack (1)

Sunday, February 8, 2009

Kiwi Calling: Australia Sends Forensic Evidence To New Zealand For Low Copy Number DNA Testing In Murder Investigation

Australia, you are going down a dangerous path. I have written several previous posts on this blog (here, here, and here) about low-copy-number DNA testing, which:

"allows the genetic profiles of suspects, victims or witnesses to be 'uncovered' even when there is only a tiny amount of biological material present, sometimes as small as a millionth of the size of a grain of salt. The technique amplifies these tiny DNA fragments when it is believed that a suspect may have transferred DNA through touch, like the residue believed to have come from cells such as skin or sweat left in a fingerprint."

The problem: the technique can produce unreliable and false results. Indeed, as I noted in one of my previous posts, "[s]ince this technique was launched in 1999, it has been consistently doubted in the scientific community, and it has thus only been used in the U.K., the Netherlands, and New Zealand." Moreover, the U.K. actually suspended its use of the technique in 2007 after its use falsely connected Sean Hoey with the Omagh car bombing.

In other words, there is significant skepticism across the globe as to whether low-copy number DNA testing is scientifically reliable. And all of this makes a recent decision by Australia troubling, in my opinion.

On August 16, 2007, the body of Corryn Rayney was found buried in Perth's King Park in Australia. Over the ensuing eighteen months, detectives hunting her killer have come up empty, prompting the WA police to send forensic samples to New Zealand for low-copy-number DNA testing. Specifically,

"It is understood police sent several pieces of Rayney forensic evidence to New Zealand for LCN testing after WA’s PathWest science centre did not find any DNA on the items. Police refused to comment on this but a spokesman defended the technique, saying it was an 'investigative tool used in many jurisdictions.'"

Really? Based upon the information I posted above, I have to question how the spokesman is using the word "many." And it appears that several individuals in Australia are skeptical about the use of the technique. According to Curtin University DNA profiling expert Professor John Wetherall, LCN analysis is less reliable than conventional DNA profiling. "The problems with it are that any contaminating DNA from another human are also amplified and it is much harder to interpret the profile," he said. "It is more prone to technical problems."

Meanwhile, Murdoch University Professor David Berryman said if used properly, the technique could be a good investigative tool but that it was "not robust enough yet to help convict people." And Law Society senior vice-president Hylton Quail said the society had great reservations about the technique, which he claimed was not reliable and should not be admissible in WA courts as evidence.

-CM

February 8, 2009 | Permalink | Comments (0) | TrackBack (0)