February 28, 2009
'Cos I'm A Good Boy I'm On Parole: Oklahoma Appeal Reveals That Rules Of Evidence Don't (Strictly) Apply At Parole Revocation Hearings
Recently, I wrote a post about how veterans affairs courts are not bound by the Federal Rules of Evidence but still frequently look to them for guidance. Well, the same applies to courts holding probation revocation hearings as is made clear by the recent opinion of the Court of Criminal Appeals of Oklahoma in Hampton v. State, 2009 WL 432843 (Okla.Crim.App. 2009).
In Hampton, the State filed an Application to Revoke Suspended Sentence for Jerry Lynn Hampton. The Application alleged that Hampton had violated the conditions of his probation by having committed the offenses of Attempted Manufacture of a Controlled Dangerous Substance; Unlawful Cultivation of Marijuana; and Unlawful Possession of Controlled Dangerous Substance.
At the evidentiary hearing on that application, the State presented significant evidence that Hampton had violated the conditions of his probation, such as hearsay evidence concerning his
alleged purchase of a large quantity of matches from a local convenience store. While conducting the investigation that led up to his obtaining the search warrant, the agent was told by store personnel "that a guy by the name of Slick (apparently Hampton's nickname) has been coming in with Roger Payne purchasing matches...." [Hampton] objected to this statement as hearsay. [Hampton] further argued that if the trial court were to consider this hearsay statement, it would deprive [Hampton] of his right of confrontation.
After the Oklahoma trial court granted the State's application, Hampton appealed, and the Court of Criminal Appeals of Oklahoma noted that like Federal Rule of Evidence 1101(d)(3), Oklahoma's counterpart states that the rules of evidence do not apply to proceedings for revoking probation. But as noted above, this does not mean that those rules are irrelevant. Instead, in dicta, the court declared:
Today we also hold that an out-of-court statement will presumptively satisfy the confrontation rights of a probationer when that statement is one that would normally be admissible under an established exception to the rules against hearsay. While the rules of evidence in Oklahoma (as well as those rules of evidence found in the federal system and many other jurisdictions), contain provisions declaring such rules inapplicable to probation revocation proceedings, courts in such jurisdictions have found that an out-of-court statement satisfies the due process confrontation requirement when that out-of-court statement is one falling under a long-standing exception to the rules against hearsay.
So, why was this declaration in dicta? Well, the State in Hampton did "not contend that the out-of-court statement at issue f[ell] under such an exception." Nonetheless, the court still affirmed, finding that Hampton had "not demonstrated that the District Court's partial reliance on that out-of-court statement in his particular case ultimately resulted in an unfair revocation proceeding."
February 27, 2009
Lock Up: Northern District Of Illinois Grants Summary Judgement To Pretrial Detainees Based In Part On Subsequent Remedial Measure Evidence
The recent opinion of the United States District Court for the Northern District of Illinois in Young v. County of Cook, 2009 WL 436114 (N.D.Ill. 2009), contains interesting issues relating to the Fourth Amendment, the Equal Protection Clause, and the admissibility of evidence of subsequent remedial measures.
In Young, Plaintiffs Kim Young, Ronald Johnson, and William Jones, on behalf of themselves and two certified classes, sued former Cook County Sheriff Michael Sheahan and Sheriff's employees Callie Baird, Scott Kurtovich, and Salvador Godinez (collectively the Sheriff Defendants), as well as Cook County, under 42 U.S.C. § 1983. Those plaintiffs alleged violations of their Fourth and Fourteenth Amendment rights during the time they were confined as pretrial detainees at the Cook County Jail (CCJ). Cook County and the Sheriff Defendants thereafter moved separately for summary judgment, and the plaintiffs moved for partial summary judgment on the issue of liability.
For the most part, the plaintiffs were successful. The court found that the following facts were undisputed:
(1) men at CCJ have been routinely strip searched in groups of up to at least seventy-five individuals; (2) until approximately February 2007, there were no privacy screens in the hallway where the members of Class I were searched at the [Receiving Classification and Diagnostic Center (RCDC)]-meaning they were searched in full view of the other detainees in the group being searched FN8; (3) on occasion, bodily fluids have been present in the hallway where the searches of the Class I members occurred; (4) the members of Class I had, at times, no more than six inches of space between each other during the strip searches before the privacy screens were installed; (5) individuals in the group searches, prior to the installation of the privacy screens, would accidentally bump into and touch each other; and (6) prior to some time in 2006, men were searched using the less dignified bend-and-spread method, whereas women were searched using the squat-and-cough method.
So, how did Federal Rule of Evidence 407, which covers evidence of subsequent remedial measures, come into play? Well, the plaintiffs wanted to introduce evidence that "[s]ometime after January 2007, a body scanning machine was also installed in the male section at the RCDC" and that "[i]n or around February 2007, privacy screens were installed in the hallway where groups of men are strip searched at the RCDC." Now, normally, this evidence would have been inadmissible under Rule 407, which indicates that:
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
The problem for the defendants, though, was that they "argue[d] that use of privacy dividers and body scanning machines were and are not always feasible for a number of reasons." Consequently, the defendants controverted feasibility, and the judge was allowed to consider evidence of the above two subsequent remedial measures.
And based in large part on that evidence, the court was able to grant the plaintiff summary judgment on their Fourth and Fourteenth Amendment claims. With regard to the plaintiffs Fourth Amendment claims, the court found that
In light of the [above] undisputed facts, the Court finds that the strip searches of the members of Class I before the privacy screens were installed at the RCDC were unreasonable and violated the Fourth Amendment as a matter of law. During that period, the class members, who were undergoing one of the most intrusive types of searches the government may permissibly conduct, were subjected to conditions that greatly enhanced their discomfort and humiliation. They were herded together with dozens of other men and forced to strip and bend over or squat in front of a large group, with less than a foot of space between them.
And with refard to the plaintiffs' Fourteenth Amendment claims, the court rejected all of the defendant's argument, including the argument that "women's menstrual cycles justify a policy affording female detainees greater privacy." According to the court,
This is not an “exceedingly persuasive” justification for the difference between the male and female searches. Male detainees also present hygiene issues. The fact that some female detainees present one different or additional hygiene issue is insufficient to justify the stark gender-based differences between the search policies prior to the time the privacy screens were installed in the male search area at the RCDC.
February 26, 2009
Jumping To Conclusions: Fifth Circuit References Erroneous Prior Rule 704(b) Ruling In False Tax Return Appeal
The recent opinion of the Fifth Circuit in United States v. Adams, 2009 WL 382126 (5th Cir. 2009), addressed a proper Rule 704(b) ruling but references a prior Fifth Circuit opinion which contains what I regard as a horribly misguided Rule 704(b) ruling.
In Adams, Jon Dale Adams appealed from his convictions on two counts of filing false income tax returns in violation of 26 U.S.C. § 7206(1). One of the grounds for Adams' appeal was that the district court failed to declare a mistrial after IRS Agent Jerry Porter testified as follows:
Q: And after you completed your investigation of the defendant, did you come to a conclusion?
A: Yes, sir.
Q: What was that conclusion?
A: After completing the investigation, I concluded that the defendant, under penalties of perjury, willfully filed a 1999 Form 1040X and a 2000 Form 1040, knowing that it was false in that the-it was false as to a material matter..
After Porter rendered this testimony, defense counsel immediately objected, claiming that this testimony was inadmissible under Federal Rule of Evidence 704(b), which states that:
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
The district court correctly sustained this objection, but it denied defense counsel's motion for a mistrial. Instead, the district court decided to give a curative instruction, which informed jurors that:
[Y]ou heard testimony from the witness generally stating that he had concluded that the defendant acted willfully in filing a false claim. The rules do not permit an expert witness to give an opinion about what ... a criminal's mental state is. So I'm going to strike that portion of his testimony from the record. I'm going to instruct you not to consider that opinion. Okay? I'm instructing you that you cannot consider the expert's opinion as to what he thinks Mr. Adams' mental state is.
This seems to me to be about as good as it gets with curative instructions, which is why I said above that I agreed with the Fifth Circuit's ruling. But in finding that Porter's testimony violated Rule 704(b), the Fifth Circuit contrasted its prior opinion in United State v. Dotson, 817 F.2d 1127 (5th Cir. 1987).
In Dotson, Frederick Leon Dotson was convicted of tax evasion after an IRS agent testified, inter alia, that:
In 1983, again, [Dotson's net worth] increased again forty thousand dollars, almost the same amount it did in 1981 through the period, so they are consecutive increases, which lead me to believe that Mr. Dotson's net worth and/or his equity was increasing through the period. This is indicative, and based on my experience shows to me, that he willfully and intentionally increased his income knowing full well that he had not reported the taxes due thereon.
In finding that the district court did not abuse its discretion in striking this testimony, the Fifth Circuit concluded:
The second sentence in the above excerpt can be interpreted in two ways. Interpreting the sentence more favorably to the government, the sentence simply ties the facts recited in the first sentence to the conclusion that the expert, based on his specialized experience, believes they indicate. Interpreting the sentence more favorably to the defendant, the sentence presents an instance in which the expert draws the forbidden conclusion that the defendant "willfully and intentionally" evaded income taxes.
Come again? The court is right, I suppose, that interpreting the second sentence more favorably to the government, that "sentence simply ties the facts recited in the first sentence to the conclusion that the expert, based on his specialized experience, believes they indicate." But that conclusion is that Dotson willfully and intentionally evade income taxes, which is precluded under Rule 704(b). Does the Fifth Circuit's parsing of words/meaning make sense to any readers?
February 25, 2009
Don't Have A Cow: Virginia Judge Excludes Double Hearsay Testimony In Trial Of Animal-Control Officer
Last May, Virginia animal-control officer Garland Nester went to kill an errant cow but killed a farmer instead. And now, pursuant to a (correct) ruling by the judge in the officer's involuntary manslaughter trial, jurors will not be able to hear testimony regarding the officer's anger in the wake of his futile attempt to track down the cow.
Last May, in Floyd County, Virginia, Nester unsuccessfully spent an hour trying to track down his fleeing cow, chasing him through a swamp, a copse, and along the Blue Ridge Parkway. Nester rented grazing land next to a farm belonging to 75-year-old Paul Belcher, who tried to help Nester corral the cow but instead was fatally shot with a bullet from Nester's .357-caliber semi-automatic pistol.
According to defense attorney David Damico,
Belcher's death was a tragic accident, the apparent result of a bullet ricocheting off the cow's right foreleg. Nester, he said, never saw Belcher, who was up on the raised roadway, Conner Grove Road, 190 feet from Nester and not in Nester's line of sight.
But, according to Amy Tharp, assistant chief medical examiner for Western Virginia,
the wound to Belcher's abdomen did not appear to come from a ricocheting bullet because it apparently entered his body in a tight spiral. If it had ricocheted, said Tharp, the bullet would have wobbled, just as a quarterback's pass does after a defensive lineman deflects it.
Frankly, I'm not sure how why the bullet either ricocheting or not ricocheting matters. I'm assuming that the prosecution is not arguing that Nester saw Belcher because it only charged him with involuntary manslaughter, so I'm not sure how the bullet ricocheting off the cow and striking Belcher would be appreciably different from the bullet striking Belcher directly. The only question, it seems to me, is why Nester was shooting (apparently four bullets) at his cow and whether that act was criminally negligent.
And in that regard, the aforementioned evidentiary ruling will make the prosecution's task difficult. Special Prosecutor Clifford Hapgood
had hoped to show jurors that Nester, 45, was so angry after spending nearly an hour chasing the cow...that he lost his cool, pulled out his .357-caliber semi-automatic pistol and fired four shots with little thought...[while] [h]is son, Travis, stood nearby. Judge Ray Grubbs refused to allow testimony about Nester's anger because it was hearsay evidence: Travis had told Belcher's brother and a high school teacher that his father was furious when he started firing at the cow. Grubbs would not allow Belcher's brother or the teacher to discuss the son's comment during their testimony.
This ruling was correct because testimony by these witnesses would have been double hearsay in that they would have been relating what Travis told them about what Nester told him. And according to the Court of Appeals of Virginia in West v. Commonwealth, 407 S.E.2d 22, 24 (Va.App. 1991), "in order for a hearsay declaration which contains hearsay within it to be admissible, both the primary hearsay declaration and each hearsay declaration included within it must conform to a recognized exception to the hearsay rule."
The problem for the prosecution in Nester's case was that while Nester's statements would be admissions of a party-opponent (the criminal defendant), there is no hearsay exception under which Travis' statements would have been admissible. Thus, the judge properly precluded the testimony.
February 24, 2009
If You Were In The Public Eye: Kentucky Court Finds That Third Party Statements Were Properly Excluded From A Public Report
The recent opinion of the Court of Appeals of Kentucky in Adams v. Lexington-Fayette Urban County Government, 2009 WL 350600 (Ky.App. 2009), reveals that simply because third party hearsay is included in a public record or report does not mean that it is magically made admissible by the Public Record/Report exception to the rule against hearsay.
In Adams, John Henry Adams appealed a jury verdict in favor of the Lexington-Fayette Urban County Government (LFUCG) and against him after he sued LFUCG, claiming that he was discriminated against on the basis of race, age, and/or disability in violation of KRS 344 and subjected to unlawful retaliation as a direct consequence of his decision to seek the vindication of his civil rights in violation of KRS 344.280. The facts leading to Adams' lawsuit were as follows:
In 1981, Adams was hired as an employee of LFUCG and assigned to the Division of Building Maintenance and Construction (BMC) as a painter. Sometime later, Adams began experiencing what he believed to be racially-motivated abusive treatment by his supervisor, BMC Director Robert Clark. After Adams brought his concerns about Clark's abusive conduct to Julius Berry, an administrative aide to the mayor, Berry initiated an investigation of the BMC.
On September 7, 1994, Julius Berry issued a report, the "Berry Report," to Sam Dunn, a LFUCG employee, which documented numerous allegations of discriminatory acts committed by Clark against BMC employees, including claims of racism, favoritism, and cronyism. At the conclusion of the report, Berry recommended that Clark's employment be terminated for official misconduct.
At trial, Adams was able to introduce parts of the Berry Report into evidence pursuant to Kentucky Rule of Evidence 803(8), which provides a Public Record/Report exception to the rule against hearsay for
records, reports, statements, or other data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law...[u]nless the sources of information or other circumstances indicate lack of trustworthiness.
The trial court, however, precluded Adams from introducing those portions of the report which "contained quotes, statements, or opinions of third parties," and this ruling formed part of the basis for Adams' appeal.
The Court of Appeals of Kentucky, however, correctly rejected this argument on appeal, citing the Supreme Court of Kentucky's opinion in Prater v. Cabinet for Human Resources, Commonwealth of Kentucky, 954 S.W.2d 954 (Ky. 1997), for the proposition that:
"If a particular entry in the record would be inadmissible for another reason, it does not become admissible just because it is included in a business or public record...." Therefore, when a report contains statements by out-of-court declarants, the statements of these individuals are excluded as hearsay within hearsay, i.e., "double hearsay," unless each statement conforms with an exception to the hearsay rule (e.g., in a report, a doctor's statements of a declarant's statements made for the purpose of medical treatment or diagnosis would be admissible pursuant to KRE 803(4)).
Thus, according to the court of appeals, the trial court acted properly because "Adams did not offer any basis that the third party statements in question conformed to any of our recognized exceptions to the hearsay rule." This ruling makes sense because the purpose of the rule against hearsay is to exclude unreliable evidence. The Public Record/Report exception provides an exception to the rule against hearsay because it is generally expected that employees of a public agency will accurately and reliably record things in public records and reports. But there is no expectation that a private citizen making statements to such an employee will be accurate/reliable, which is why such third party statements are not admissible under the exception.
February 23, 2009
The Sense Of The Past: Third Circuit Corrects Worst Present Sense Impression Ruling I Have Ever Seen
The recent opinion of the Third Circuit in United States v Green, 2009 WL 385423 (3rd Cir. 2009), corrects the worst misapplication of the present sense impression to the rule against hearsay that I have ever seen.
In Green, Artega Green appealed from his conviction for distribution of more than 50 grams of cocaine base in violation of 21 U.S.C. § 841. Green was convicted based upon his alleged involvement with a drug transaction conducted out of a car in May 2002, which the DEA recorded in a "low quality" video and audio recording. The crux of the Government's case was proving the identity of the individual captured on its audio and video evidence, and it sought to do so in part based upon the testimony of Confidential Informant Michael Brown, who participated in the buy.
In a rather dramatic turn of events, however, Michael Brown, the CI involved in the controlled transaction, testified as the sole defense witness. According to Brown, Green never got out of the car on the day of the buy, and the person depicted on the video selling the drugs was an individual known as "Tex." Brown also stated that the DEA agents had used him before in other controlled buys, always with the goal of catching Green on tape selling drugs; but they were never successful, and were upset at Brown because of this.
Thereafter, over Green's vigorous objection, the Government was permitted to introduce as substantive evidence a statement that Brown purportedly made some 50 minutes following the controlled buy in question, after he was brought back to DEA offices, questioned, and debriefed by the case agents. In that statement, which the district court admitted as a present sense impression under Federal Rule of Evidence 803(a)(1), "Brown attested that it was Green who sold him the drugs."
On appeal, Green claimed, inter alia, that this evidentiary ruling was incorrect, and the Third Circuit began by noting that Federal Rule of Evidence 803(a)(1) provides an exception to the rule against hearsay for:
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
The court then properly found that:
The fundamental premise behind this hearsay exception "is that substantial contemporaneity of event and statement minimizes unreliability due to [the declarant's] defective recollection or conscious fabrication...." "The idea of immediacy lies at the heart of the exception," thus, the time requirement underlying the exception "is strict because it is the factor that assures trustworthiness...." Put differently, the temporality requirement must be rigorous because the passage of time-or the lack thereof-is the effective proxy for the reliability of the substance of the declaration; hence the greater the passage of time, the less truthworthy the statement is presumed to be, and the more the scales should tip toward inadmissibility."
The court thereafter agreed with the government that courts have not adopted a bright-line time limit after which a statement is necessarily inadmissible under Rule 803(a)(1), but it noted that it was "nevertheless unaware of any legal authority for the proposition that 50 minutes after the fact." Nonetheless, the Third Circuit found that it did not need to define "the precise temporal limits of application of the present-sense impression exception, nor whether a statement made 50 minutes after the fact could ever be properly admitted under Rule 803(a)(1). According to the court, this was so because:
Brown's statement in this case [wa]s problematic not only because of the lengthy passage of time, but also because the statement was only made after he had been questioned by DEA agents about the details of the transaction the statement purports to describe. This undisputed sequence of events affirmatively indicates that Brown made his statement after he was expressly asked to reflect upon the events in question, and thereby fatally disqualifies the declaration for admission as a present-sense impression."
February 22, 2009
Ford Tough: Ninth Circuit Preludes Jury Impeachment In Case Against Ford
The recent opinion of the Ninth Circuit in Beville v. Ford Motor Co., Inc., 2009 WL 394809 (9th Cir. 2009), presents a nice illustration of two types of jury conduct that do not form a proper predicate for jury impeachment.
In Beville, Dawn Beville sued the Ford Motor Company, alleging that Ford's decision not to mandate a back-up alarm on one of its semi-truck models was a design defect and that the defect caused an accident in which of one of these vehicles backed up into Paul Beville, crushing and killing him. And after a jury entered a verdict in favor of Ford, Dawn moved for a new trial.
Part of the basis for her motion was that (a) one juror prepared a series of questions and answers while at home during a break in deliberations and discussed these notes with the jury, and (b) another juror discussed his personal experience with a forklift. The Ninth Circuit, however, found that neither of these alleged acts formed the proper predicate for jury impeachment pursuant to 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.
With regard to the juror's shared notes, the Ninth Circuit correctly found that the jurors shared notes were neither extraneous prejudicial information nor an improper outside influence because "the notes reflected the juror's internal thought processes, and there is no evidence the juror relied on extrinsic materials in preparing them." And with regard to the juror's forklift comments, the court again correctly concluded that "[t]he personal experiences described here were of the type permissible for discussion during juror deliberations." As support for this finding, the court cited to its previous opinion in Grotemeyer v. Hickman, 393 F.3d 871, 879 (9th Cir. 2004), where it noted that:
a juror's past personal experiences may be an appropriate part of the jury's deliberations. Indeed, 50% of the jurors' time [is] spent discussing personal experiences, according to one researcher.