EvidenceProf Blog

Private Eyes Are Watching You: Sixth Circuit Finds Sequestration Of Defense Private Investigator Proper Under Rule 615

Federal Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

You are a trial judge and have decided to order witnesses excluded. Defense counsel argues that the order should not apply to the defense's private investigator because the investigator interviewed several government witnesses and could provide immediate insight to their cross-examinations if allowed to remain in the courtroom. How should you rule under Federal Rule of Evidence 615(3)? That was the answer facing the Sixth Circuit in its recent opinion in United States v. McClendon, 2010 WL 272878 (6th Cir. 2010).

The facts in McClendon were as listed above, with  Brian McClendon on trial for offenses related to his role in the robbery of an armored car guard at a Wal-Mart store and a subsequent drug conspiracy funded by the fruits of that robbery. After defense counsel asked that the private investigator be allowed to remain in the courtroom, the District Court denied this request, instead choosing to provide McClendon's counsel with frequent breaks to discuss the case with the investigator and allow the investigator to obtain transcripts from the other witnesses.

After McClendon was convicted, he appealed on this and other grounds, and the Sixth Circuit found that the district court did not err in this regard.  According to the Sixth Circuit,

We find that the District Court's modifications allowed McClendon's investigator to participate significantly in his defense and that the investigator's presence was not "essential." These frequent breaks provided ample opportunity for the private investigator to assist McClendon's counsel. Additionally, the Court gave the investigator materials, such as access to the transcripts of witness testimony, that allowed him to aid defense counsel in the impeachment of witnesses and strategic defense planning. The District Court acted appropriately within its discretion. The decision to exclude the private investigator, and instead provide other modifications, did not prejudice McClendon's right to a fair trial.

I agree with the Sixth Circuit's conclusion and think that this was a good example of a court making reasonable accommodations despite finding that Federal Rule of Evidence 615(3) was inapplicable. Of course, this begs the question of what the Sixth Circuit would have done if the district court did not make such accommodations. I have seen defendants make Fifth and Sixth Amendment challenges to trial court decisions under Federal Rule of Evidence 615 (see, e.g., United States v. Edwards, 526 F.3d 747 (11th Cir. 2008), but I have never seen them succeed. I wonder what would happen, though, in the case of a person whose presence is very important but not quite essential?

-CM

Idaho State Of Mind: Supreme Court Of Idaho Finds Statements Offered Under State Of Mind Exception Were Irrelevant In Murder Appeal

Like its federal counterpart, Idaho Rule of Evidence 803(3) provides an exception to the rule against hearsay for: 

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.   

Now, at first blush, it seems like this exception is pretty broad and would allow for the admission of many statements. Basically, as long as a person says something about how he is (presently) feeling or what he plans to do (in the future), the statement seemingly could be admitted under the exception; only statements about what transpired in the past would be excluded. As the recent opinion of the Supreme Court of Idaho in State v. Shackelford, 2010 WL 173825 (Idaho 2010) makes clear, however, there is still a relevance requirement to this exception, and, according to the court, it was not satisfied in the case before it.

In Shackelford, Dale Carter Shackelford was convicted of the first-degree murders of Donna Fontaine and Fred Palahniuk, conspiracy to commit first-degree murder, first-degree arson, conspiracy to commit first-degree arson, and preparing false evidence. At trial, "[s]ix witnesses were allowed to testify as to statements made by Donna expressing her fear that Shackelford was going to harm her." The trial court found that Donna's statements fell under Idaho Rule of Evidence 803(3), and this evidentiary decision formed the partial basis for Shackelford's appeal.

In considering Shackelford's appeal, the Supreme Court of Idaho noted that 

statements may be admitted [under this exception] only after a determination that (1) the declaration is relevant, and (2) the need for and value of such testimony outweighs the possibility of prejudice to the defendant.    

The Idaho Supremes also noted that Idaho courts have recogized

four well-defined categories in which a declarant-victim's state of mind is relevant because of its relationship to the legal theories presented by the parties: (1) when the defendant claims self-defense as justification for the killing; (2) when the defendant seeks to build his defense around the fact that the deceased committed suicide evidence introduced which tends to demonstrate that the victim made statements inconsistent with a design to take his or her own life is relevant; (3) when the defendant claims the killing was accidental; and (4) when a specific “mens rea” is in issue.

These are important points that are often overlooked in analyses of the state of mind exception. In your average murder case, why would a (future) victim's statement that she was afraid of the (future) defendant be relevant? A defendant could kill a victim who did not fear him and be found guilty just as easily as a defendant who killed a victim who did fear him. Of course, the victim's statement that she feared the defendant could be relevant to the extent that the statement referenced prior acts by the defendant that caused that fear, but then the statement becomes about past acts and is not covered by the state of mind exception to the rule against hearsay.

So, how did this all play out in Shackelford? Well, the trial court ostensibly admitted Donna's statements under the theory that Shackelford had claimed that she committed suicide, meaning that the prosecution could rebut this theory of the case with statements that Donna was afraid that Shackelford was going to harm her, "statements inconsistent with a design to take his her own life." The problem with this conclusion, according to the Supreme Court of Idaho, was that

Shackelford did make statements during the police investigation regarding the possibility that Donna had committed suicide; however, we find that those statements were not sufficient to allow rebuttal of a defense theory of suicide. The defense did not present a theory of suicide during the trial itself. Instead, the State offered testimony regarding Shackelford's statements during the initial investigation about suicide, and the defense merely offered testimony to show that any mention Shackelford made of suicide during the initial investigation did not affect the investigation in any way.   

The Idaho Supremes thus found that Donna's statements were improperly admitted but found that there was enough evidence of Shackelford's guilt to render this error harmless.

-CM

The AALS Poster Project: Elizabeth Burleson and James D. Hoefelmeyer's Solar Energy - The Future is Now!

Elizabeth Burleson and James D. Hoefelmeyer presented the poster, Solar Energy - The Future is Now! (Download Solar Energy):

Professor Burleson is a professor at the University of South Dakota School of Law, where she has taught since 2007. She teaches classes such as Public International Law, Energy Law, United Nations Law, International Environmental Law, International Law and China, Property Law, Water Law, and Environmental Law. She has published articles such as Energy Policy, Intellectual Property and Technology Transfer to Address Climate Change, 18 Transnat'l L. & Contemp. Probs. 69 (2009), Energy Security, Green Job Creation, and Youth Innovation, 24 Conn. J. Int'l L. 381 (2009), and Wind Power, National Security, and Sound Energy Policy, 17 Penn. St. Envtl. L. Rev. 137 (2009). 

She has also written reports for the United Nations, delivered presentations at United Nations conferences, and directed and produced films including:

(1) “Copenhagen Climate Change Consensus Building,” a documentary film on a cross-section of perspectives at the Copenhagen Conference; (2) "Legal Equality for Same Gender Couples" explaining the rights and responsibilities of civil marriage; (3) “Be the Change that You Wish to See” featuring grassroots environmental initiatives around the world; and (4) “Making Connections” a Spanish documentary on NAFTA, California's 1994 Proposition 187, and the conflict in Chiapas.

Professor Hoefelmeyer is a professor in the Department of Chemistry at The University of South Dakota. His research interests include: Synthesis and characterization of metal oxide nanocrystals; heterogeneous catalysis on supported metal oxide nanocrystals; main group organometallic synthesis; and solar energy conversion.

Professor Burleson provided me with a description of Renewable Energy Legal Reform to consider in conjunction with the poster. You can download it by clicking this link (Download Renewable Energy Law Reform). She also provided the following information:

1) The survival of humanity greatly depends on its ability to become sustainable.  Central to sustainability is renewable energy, which should displace fossil fuels completely before the end of the 21st century to stop the increase of atmospheric carbon dioxide.  There is a misperception that solar energy is expensive or impractical; while the facts show that solar energy is abundant, economical, and available with current technology.  The earth continuously receives 90PW = 9x10^16 Watts of solar power!  This is approximately ten-thousand times the rate of power consumption from human activity.  The poster includes a figure of solar power flux on earth's surface and black dots that cover a small fraction of total land area.  Those areas, if covered with photovoltaics that operate at 8% efficiency (already well below the industry standard) can theoretically produce enough power for all human activity.  Solar energy is clean (zero emissions), and will be available for billions of years.  Solar energy utilization involves rapid and efficient conversion between different forms of energy.  Photovoltaics convert light to electricity, solar-thermal applications convert light to heat, and photoelectrochemical cells (and plants) convert light to chemical fuels.  The cost of solar energy is decreasing.  The cheapest methods are passive solar and solar water heating.  Solar cells are approaching the $1/Watt figure, greatly reducing the cost of solar electricity generation.  A recent large scale (2 GW) solar power plant project was announced with construction cost of $3/Watt.  Large solar power plants are becoming increasingly common, with a rush of construction in Europe.  This is an economically advantageous track for power generation.  Solar energy is much less expensive than fossil fuels.  Construction and power generation costs were calculated for a fossil plant and solar plant.  These show that the solar plant can arithmetically overtake the cumulative power generation of the fossil fuel plant after roughly 25 years at the same cost while producing zero emissions.  Beyond this time span, the savings are enormous with solar.  While there has been rapid growth in the PV industry in the last decade, the rate of power generation must be greater.  Perhaps nations can set renewable power generation targets in addition to CO2 emissions targets.  For instance, the United States could aim to install 1 TW solar power by 2020.

2) This poster was created  to educate the public in the southeast South Dakota area about the alternatives to fossil fuel energy.  Hyperion Energy from Dallas, TX has proposed construction of a 400,000 barrel/day tar sands refinery.  It is the opinion of the authors that the project would result in enormous environmental destruction, continue fossil fuel dependence, and represent a gigantic setback in the efforts to shift to a sustainable economy.

3) Recommended viewing:  presentation by Nate Lewis, Caltech:  

http://nsl.caltech.edu/energy.html 

Professor Nate Lewis presents a summary of the global energy challenge.

4) sources:

http://tonto.eia.doe.gov/kids/ 

http://www.ez2c.de/ml/solar_land_area/ 

http://pvresources.com/en/top50pv.php

-CM

 

 

 

The AALS Poster Project: Hillary Wandler's Culturally-Appropriate Assessment of PTSD in Native American Veterans

Hillary Wandler presented the poster Culturally-Appropriate Assessment of PTSD in Native American Veterans (Download Culturally-Appropriate Assessment):

Hillary Wandler is the Legal Writing Fellow at The University of Montana School of Law. She teaches Legal Analysis and Legal Writing, and she taught the school's inaugural course offering on veterans' benefits law during the summer of 2009. Before teaching at Montana she clerked for judges on the United States District Court for the District of Montana and the Ninth Circuit and practiced at Garlington, Lohn & Robinson.  She has published Will Montana Breathe Life into its Positive Constitutional Right to Equal Educational Opportunity, 65 Mont. L. Rev. (2004) and A New Way for Lawyers to Assist Veterans, 34-JUN Mont. Law 8 (2009).

Here was her poster proposal:

A veteran’s cultural background is relevant to and intertwined with the veteran’s PTSD symptomatology.  Researchers at the National Center for Post-Traumatic Stress Disorder have discovered ethnocultural variations in the way veterans communicate symptoms of PTSD and other anxiety and depressive disorders in a clinical setting.  See Anthony J. Marsella, Claude Chemtob & Roger Hamada, Ethnocultural Aspects of PTSD in Vietnam War Veterans, 1 NCP (Nat’l Ctr. for Post-Traumatic Stress Disorder), Fall 1990, at 3 (noting research showing “individuals from non-Western cultural traditions often fail to present classical symptoms of [anxiety and depressive disorders]” and, as a result, that “it is quite possible that ethnocultural minority veterans suffering from PTSD and related disorders may be wrongly diagnosed and inappropriately treated”).  Researchers have long urged Compensation and Pension examiners in the VA to use culturally-sensitive clinical assessment procedures that fully explore potential cultural aspects of PTSD in a minority veteran.  See id. (“Many questions used in clinical tests and interviews . . . are inappropriate in content for assessing ethnocultural minorities and thus do not accurately index problems that may be present.”); see also Terence M. Kean, Danny G. Kaloupek & Frank W. Weathers, Ethnocultural Considerations in the Assessment of PTSD, in ETHNOCULTURAL ASPECTS OF POSTTRAUMATIC STRESS DISORDER: ISSUES, RESEARCH, AND CLINICAL APPLICATIONS 183 (Anthony J. Marsella ed., Am. Psych. Assoc. 1st ed. 1996) (rejecting a single-instrument approach to diagnosing and assessing PTSD across different cultures).  Published clinical assessments have demonstrated the kind of complex cultural issues that interact with PTSD and illustrated the kind of comprehensive assessment necessary to fully understand the multifaceted mental health issues of Native American Veterans suffering from PTSD.  See, e.g., Jay H. Shore & Spero M. Manson, The American Indian Veteran and Posttraumatic Stress Disorder: A Telehealth Assessment and Formulation, 4 FOCUS 99 (2006).  My research is exploring the extent to which the VA is actually implementing culturally-appropriate clinical assessment procedures to assess the severity of PTSD in Native American Veterans for purposes of service-connected disability compensation.  Without system-wide implementation of culturally-appropriate assessment procedures, Native American Veterans are likely receiving inaccurate disability ratings, and thus inappropriate disability compensation.    

-CM

The AALS Poster Project: Follow the Money: The Impact of Federal, State and Local Funding Strategies for Child Welfare Services and the Impact of Local Levies on Adoptions in Ohio

Susan V. Mangold and Catherine Cerulli presented the poster, Follow the Money: The Impact of Federal, State and Local Funding Strategies for Child Welfare Services and the Impact of Local Levies on Adoptions in Ohio (Download Follow the Money):

Professor Mangold is a professor at the State University of New York at Buffalo, School of Law, where she has taught since 1995. She has developed and taught the following classes: Civil Procedure, Child Welfare Law, Child Welfare Law II, Introduction to Family Violence, Family Law Colloquium, Family Law II, State as Custodian, Reform Advocacy, and Introduction to Law. She has published articles such as Poor Enough to Be Eligible? Child Abuse, Neglect, and the Poverty Requirement, 81 St. John's L. Rev. 575 (2007), Transgressing the Border Between Protection and Empowerment for Domestic Violence Victims and Older Children: Empowerment a Protection in the Foster Care System, 36 New Eng. L. Rev. 69 (2001), and Protection, Privatization and Profit in the Foster Care System, 60 Ohio St. L. J. 1295 (1999).

Professor Cerulli is an Assistant Professor of Psychiatry at the University of Rochester School of Medicine & Dentistry and Director of Research at the State University of New York at Buffalo, School of Law. Her publications include When Answers Precede Questions: Megan's Laws' Uncertain Policy Consequences (with Jim Acker) Criminal Law Bulletin, May-June 1998, Accommodating Death Penalty Legislation: Personal and Professional Views of Assistant District Attorneys Toward Capital Punishment (with Lisa Callahan and Jim Acker) American Journal of Criminal Justice, Vol.25, No. 1, Fall 2000, and Threatened and attempted suicide by partner-violent men petitioned to Family Violence Court (with Ken Conner, Violence and Victims, Vol.17, No. 2, April 2002).

The poster is connected to the two professors' forthcoming (in the Capital University Law Review) article of the same name. Here is the abstract:

Our research considers the impact of public money on the outcomes for children and their families in the child welfare system.  Our poster display provides a comprehensive historical review of the federal laws mandating the delivery of services at the state and local levels including the fiscal policies accompanying the federal mandates. Our research takes a new focus on local fiscal strategies to determine if they have a disparate impact on children residing in different communities.  In particular, we consider the use of dedicated tax levies by approximately half of the 88 counties in Ohio.  Using ten years of data provided by the Public Children Services Association of Ohio (PCSAO), our poster depicts how the use of levies alters the number of children in care over time, as well as the number of adoptions and the median number of days that children await adoption.  Our data shows a positive correlation between dedicated tax levies and improved outcomes for children. 

-CM

The AALS Poster Project: Alina Ng's Propety, Privileges and Access to Information

Alina Ng presented the poster, Propety, Privileges and Access to Information (Download Property, Privileges and Access to Information):

 

Professor Ng is a Professor at the Mississippi College School of Law, where she has taught since 2007. She teaches Property, Cyberlaws, Copyright, Patent, Law & Economics, and Advance Copyright. Before becoming a professor, she was a Fulbright Scholar. She has published articles such as The Author's Rights in Literary and Artistic Works, 9 J. Marshall Rev. Intell. Prop. L. 453 (2010), The Social Contract and Authorship: Allocating Entitlements in the Copyright System, 19 Fordham Intell. Prop. Media & Ent. L.J. 413 (2009), and Copyright's Empire: Why the Law Matters, 11 Marq. Intell. Prop. L. Rev. 337 (2007).

According to Professor Ng,

I created this poster to highlight some conceptual points I am working on with respect to the issue of access to information. We have looked at the question of access to information in intellectual property as often one of public policy in terms of acheiving economic efficiency or wealth distributional goals. I am trying to reframe the question of access as one of law by highlighting that how we conceptualize rights in information and rights to use information may provide some solutions as to how we understand the question of access. Access from an author's view point is essentially one where society has in roads into uses of his personal expression, for which an in rem right in a work may make more sense for him. But generally, from a societal point of view, any rights society has to use information is really an in personam right to use the work for the purposes of progress of science and the useful arts, dependent upon the payment for use to the publisher or author. 

This poster is intended to highlight these points that I make in the paper. Although I haven't put this paper up on SSRN or BePress, I am attaching a preliminary draft that I presented at the AALS Junior Property Scholars Workshop in New Orleans that you can look at.

You can download the preliminary draft by clicking the following link (Download Rights, Privileges and Access to Information).

-CM

GVR In Brsicoe: Supreme Court Keeps Confrontation Clause Framework Intact In Briscoe v. Virginia

I have written a couple of posts on this blog (here and here) about Brsicoe v. Virginia, which I called a "potentially landmark Confrontation Clause case in the latter post. I had thought that the Supreme Court, with a new Justice since Melendez-Diaz v. Massachusetts was decided, might have overturned that opinion, fleshed out the definition of "testimonial," or blown up the whole Confrontation Clause framework and started again at zero. Instead, here was the Court's holding today:

PER CURIAM.

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009)

It is so ordered.

This is what is known as a grant, vacate, and remand (a/k/a GVR), and it means that the status quo remains the status quo in the Confrontation Clause arena.

-CM

Statements Against Interest And The Confrontation Clause, Take 2: Professor James Duane On The Advisory Committee Note To The Amendment To Rule 804(b)(3)

Back in November, I posted an entry about an e-mail sent by Regent Law School Professor James Duane to the Evidence professor listserv concerning an odd paragraph in the 2009 Advisory Committee Note to the amendment to Federal Rule of Evidence 804(b)(3). In that paragraph, the Committee indicated that it did not "need to address the relationship between Rule 804(b)(3) and the Confrontation Clause, because the requirements of this exception assure that declarations admissible under it will not be testimonial." Professor Duane's e-mail challenged this conclusion, and I agreed with the points that he made. Professor Duane has now followed up with a second e-mail, and I also agree with the points that he makes in it and have again posted his e-mail below:

Dear friends:

 

Last November, I  posted a comment to this list, which can be viewed on-line here, in which I expressed my confusion with a one-sentence paragraph in the Advisory Committee Notes to the pending amendment to FRE 804(b)(3).  As I understand it, that rules change has been approved by the Judicial Conference and will take effect on December 1 of this year, assuming the Supreme Court does not reject that proposal. In what will probably become the most plainly erroneous sentence anywhere in the Advisory Committee Notes, the Committee inexplicably stated that:

 

"The Committee found no need to address the relationship between Rule 804(b)(3) and the Confrontation Clause, because the requirements of this exception assure that declarations admissible under it will not be testimonial."

 

As I stated in November, this line immediately struck me as clearly wrong, and has been repeatedly rejected by the Second Circuit Court of Appeals, which has now held at least eight times that plea allocutions that are clearly admissible under Rule 804(b)(3) may nevertheless be "testimonial" and therefore inadmissible (at least in a criminal case when offered against the accused) in light of Crawford.  United States v. Riggi, 541 F.3d 94, 102 n.2 (2d Cir. 2008); United States v. Becker, 502 F.3d 122, 127-29 (2d Cir. 2007); United States v. Hardwick, 523 F.3d 94, 98 (2d Cir. 2008);  United States v. Reiffer, 446 F.3d 65, 86-87 (2d Cir. 2006); United States v. Al-Sadawi, 432 F.3d 419, 425-26 (2d Cir. 2005); United States v. Zhou, 428 F.3d 361, 374 (2d Cir. 2005); United States v. Jones, 393 F.3d 107, 110-11 (2d Cir. 2004); United States v. McClain, 377 F.3d 219, 221-22 (2d Cir.2004). 

 

Since I wrote that note, by the way, I have discovered that the same point had been made by other scholarly commentators so authoritative that I can now say with confidence that the Second Circuit and I are certainly correct about this.   Stephen Saltzburg, Trial Tactics 249 (2007) (Crawford "strongly suggested that the Confrontation Clause would be a major impediment to introduction of declarations against interest, even though they satisfy rules of evidence"); Mueller & Kirkpatrick, Evidence 979 & n.4 (4th ed. 2009) (noting that statements such as plea allocutions otherwise admissible under Rule 804(b)(3) can still be testimonial).

 

But still a mystery remained.  Although a number of you wrote me responses to that comment, most of them off-list, every response I received was from someone who agreed with me.  Not one of you was able to even hazard a guess as to how and where the Advisory Committee had gotten the terribly mistaken impression that “the requirements of this exception [Rule 804(b)(3)] assure that declarations admissible under it will not be testimonial.”   Until now, I have honestly been wondering whether there might have been some subtle and clever explanation for this statement that I might have missed (always a possibility), or whether the Committee had simply blundered.

 

I now know that it was the latter.  I have just discovered the explanation to the Committee’s confusion in the place where I obviously should have looked: the Advisory Committee’s earlier draft of the same Committee Note, which appears in the minutes of its meeting in May 2008.  In those minutes, the Committee mistakenly reported that:

 

 "[F]ederal courts after Crawford have uniformly held that if a statement is testimonial, it by definition cannot satisfy the admissibility requirements of Rule 804(b)(3)." 

 

That is simply not true.  The lower courts have not uniformly reached that conclusion, as I have shown.  Indeed, I am not aware of a single case, and the Committee has not cited a single case, that has so held.   Those minutes continue by mistakenly claiming that:

“A statement is “testimonial” when it is made to law enforcement officers with the primary motivation that it will be used in a criminal prosecution — but such a statement cannot be a declaration against penal interest because the Supreme Court held in Williamson v. United States that statements made to law enforcement officers cannot qualify under the exception as a matter of evidence law.”  [Emphasis added.]

Again, that is also false.  Indeed, it is hard to believe that a sentence this inaccurate was written or approved by anyone who ever read the Williamson case. Williamson specifically held that there are “many circumstances in which Rule 804(b)(3) does allow … [e]ven the confessions of arrested accomplices” to be admitted against the declarant’s partners in crime, as long as "they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor." Williamson v. United States, 512 U.S. 594, 603-04 (1994).  The Court in that case also held that some portions of the “confession” made by the criminal suspect to the police after his arrest "would clearly have been admissible under Rule 804(b)(3).:   Id.

 

Finally, the Advisory Committee then approved at that 2008 meeting the following “explanatory” language for proposed inclusion in the Committee Notes to this Rule:

 

The Committee found no need to address the relationship between Rule 804(b)(3) and the Confrontation Clause. The Supreme Court in Crawford v. Washington, 541 U.S. 36, 53-54 (2004), held that the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Courts after Crawford have held that for a statement to be admissible under Rule 804(b)(3), it must be made in informal circumstances and not knowingly to a law enforcement officer — and those very requirements of admissibility assure that the statement is not testimonial under Crawford. See, e.g., United States v. Johnson, 495 F.3d 951 (8th Cir. 2007) (accomplice’s statements implicating himself and the defendant in a crime were not testimonial as they were made under informal circumstances to another prisoner, with no involvement of law enforcement; for the same reasons, the statements were admissible under Rule 804(b)(3)); United States v. Franklin, 415 F.3d 537 (6^th  Cir. 2005) (admissions of crime made informally to a friend were not testimonial, and for the same reason they were admissible under Rule 804(b)(3)).  [Emphasis added.]

 

Again, that is simply false.  No court to my knowledge – and certainly neither of the two cases cited above in this draft Committee Note – has ever held that a statement can satisfy the requirements of 804(b)(3)  only if it is "not knowingly made to a law enforcement officer" – the very claim that the Supreme Court specifically rejected in Williamson.   And the relevant portions of the two cases cited here, Johnson and Franklin, were not in any way interpreting or explaining the requirements of Rule 804(b)(3), but were commenting only on the requirements of Crawford.

  

It is no wonder, then, that these two cases were subsequently deleted from the June 2008 draft of the Advisory Committee Notes, and that the paragraph was ultimately reduced to the single sentence that now remains.  It is a pity, however, that the paragraph was not simply deleted altogether.  The one sentence that remains – which falsely claims that there is “no need to address the relationship between Rule 804(b)(3) and the Confrontation Clause, because the requirements of this exception assure that declarations admissible under it will not be testimonial” – is the product of legal assumptions and analysis that were mistaken from top to bottom.   Before the end of this year, if all goes as scheduled, it will be the most misleading and confounding sentence to be found anywhere in the Advisory Committee Notes to any of the Federal Rules of Evidence.

Professor James Joseph Duane

Regent Law School

-CM

Ten Years Have Got Behind You: Court Of Criminal Appeals Of Tennessee Affirms Felony Conviction Impeachment Ruling BECAUSE Of Timing Calculation Error

Tennessee Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

In its recent opinion in State v. Sweat, 2010 WL 153038 (Tenn.Crim.App. 2010), the Court of Criminal Appeals of Tennessee found that the trial court erred in failing to balance probative value and prejudicial effect before determining that two of the defendant's convictions that it determined to be more than ten years old would be admissible in the event that he testified. Luckily for the trial court, however, the court of appeals also found that the trial court erred in finding that the convictions were more than ten years old.

In Sweat, Michael D. Sweat, was convicted of aggravated robbery. Before trial, the court determined that the prosecution could impeach Sweat through his 1984 third degree burglary conviction and his 1988 escape conviction in the event that he testified at trial. The court reached this conclusion despite concluding that the convictions were more than ten years old and despite failing to balance probative value and prejudicial effect. 

On Sweat's subsequent appeal, the Court of Criminal Appeals of Tennessee found that the trial court would have erred in failing to balance probative value and prejudicial effect if these convictions were in fact more than ten years old. According to the court, though

the presentence report show[ed] that the Defendant's confinement for his 1984 conviction for burglary and 1988 conviction for escape did not expire until July 28, 1996. The State argues, and we agree, that these two prior convictions were not more than ten years old at the time of the commencement of the action against the Defendant by presentment on March 29, 2005. Therefore, these convictions were properly admissible into evidence. We hold that the trial court did not abuse its discretion when it ruled that the Defendant could be cross-examined about his prior convictions for burglary and for escape.

-CM

The AALS Poster Project: A Story of Collaboration and Atomizing Facts

Margaret M. Barry, Leigh Goodmark, Margaret E. Johnson, Catherine F. Klein, Laurie S. Kohn, Lisa Martin, Amy Myers, and Jane K. Stoever presented the poster, A Story of Collaboration and Atomizing Facts (Download Collaboration):

Margaret M. Barry is a professor at The Catholic University of America Columbus School of Law, where she has taught in its Families and the Law Clinic since its inception in 1993. She has published articles such as Clinical Legal Education in the Law University: Goals and Challenges, 11 Int'l J. Clin. Legal Ed. 27 (2007). Leigh Goodmark is a professor at the University of Baltimore School of Law, where she is the Director of its Family Law Clinic and the Co-Director of its Center on Applied Feminism. She has published articles such as When is a Battered Woman Not A Battered Woman? When She Fights Back, 20 Yale J.L. & Feminism 75 (2008). 

Margaret E. Johnson is a professor at the University of Baltimore School of Law, where she is the Co-Director of the Center on Applied Feminism. She has published articles such as Avoiding Harm Otherwise: Reframing Women Employees' Responses to the Harms of Sexual Harassment, 80 Temple L. Rev. 743 (2007). Catherine F. Klein is a professor at The Catholic University of America Columbus School of Law, where she is the Director of Columbus Community Legal Services, the umbrella organization for the law school's live-client clinical program. She has published articles such as Justice Education and the Evaluation Process: Crossing Borders, 28 Wash. U. J.L. & Pol'y 195 (2008).

Laurie S. Kohn is a Visiting Associate Professor of Law at the Georgetown University Law Center, where she is the Co-Director of the Domestic Violence Clinic. She has published articles such as The Justice System and Domestic Violence: Engaging the Case but Divorcing the Victim, 32 N.Y.U. Rev. L. & Soc. Change 191 (2008). Lisa Martin is a Clinical Associate at The Catholic University of America Columbus School of Law, where she teaches in the Families and the Law Clinic. She has published articles such as Using Fact-Finding to Combat Violence Against Women in Ghana, Uganda, and the United States: Lessons Learned as a Clinic Student, Clinic Supervisor, and Practitioner, 7 Geo. J. Gender & L. 349-56 (2006). 

Amy Myers is a Practitioner-in-Residence at American University Washington College of Law. She teaches Women & Law: Domestic Violence, the Domestic Violence Clinic and the Domestic Violence Clinic Seminar. Jane K. Stoever is a professor at the Seattle University School of Law, where she teaches Domestic Violence Law and the Domestic Violence Clinic. She has published articles such as Stories Absent from the Courtroom: Responding to Domestic Violence in the Context of HIV and AIDS, 87 N.C. L. Rev. 1157 (2009).

Here is their description of the poster:

This poster represents the collaborative work of domestic violence and family law clinical law professors in the Washington, D.C./Baltimore Metropolitan Region.  Together, we regularly meet and discuss all aspects of our clinical programs.  The most recent meeting sparked a discussion of how best to teach the lawyering skill of investigating, exploring and theorizing around the “facts” – not conclusions or assumptions.  We borrowed the phrase atomizing facts from a UB colleague Danny Shemer.  In this approach, we identified two ways in which we attempt to accomplish the same goal.  These two goals are presented in the attached electronic copy of the poster.  The first approach uses a children’s book, Measuring Penny by Loreen Leedy.  This book illustrates the various means by which a school-age child can measure her dog rather than simply by inches and pounds.  Using this as a starting point, the clinical teacher is able to have students think about how they can measure various “facts” in their cases – thus helping to break each fact into its most organic, “atom-like” unit.  The second approach uses an ambiguous photo that has multiple interpretations.  The one displayed is of a man lying on a bed while a woman stands by the doorway.  Among other interpretations, this picture could be of a man who is dead having been killed by the woman, or a man who is passed out from drinking too much and a woman who is injured by previous violent acts by this man.  To teach atomizing of facts, the professor first has the class generate different case theories or stories of what has happened in the picture.  Then the class picks one of the stories.  From that story, the professor leads a discussion where students generate facts in support of the story and facts that undermine the story.  With each fact suggested, the professor asks follow-up questions to make sure the students are focusing on “atom-like” facts, and not simply conclusions or bundled facts.  For instance, if the students state that the man is asleep, the professor asks for the facts that support that conclusion and continues to push the students to break apart each conclusion for the underlying facts, such as man is lying on bed, man’s eyes are closed, the bed covers are unmade, etc. 

As a group we agreed to try these various approaches to atomizing facts and promise to have some interesting feedback to offer attendees to engage with our poster about our successes and less than successes in teaching this concept!

-CM

The AALS Poster Project: Keith Blair's Teaching "Losing" to Clinic Student-Attorneys

Keith Blair presented the poster, Teaching "Losing" to Clinic Student-Attorneys (Download Losing_Poster):

 

Professor Blair is a professor at the University of Baltimore School of Law, where he has taught since 2005. In addition to teaching Constitutional Law, Tax Practice & Procedure, and Tax Clinic, he is the Director of the school's Low-Income Tax Clinic. Before becoming a professor at Baltimore, he was an adjunct professor at the American University Washington College of Law and a Trial Attorney at the U.S. Department of Justice in its Tax and Antitrust Divisions. He has published articles such as Praying for a Tax Break: Churches, Political Speech and the Loss of Section 501(C)(3) Tax Exempt Status, 86 Den. U. L. Rev. 405 (2009).

According to Professor Blair,

My poster examines the issue of "losing" and how clinics deal with losing cases.  Throughout law school we teach students the law so that they can be successful attorneys and win cases.  However, lawyers, and their clients, will not always be successful--someone will lose.  And we do not address what losing means to clients and attorneys.  We also do not address what losing actually is and the lessons that students can learn from losing.

I became interested in this topic during my first year of full-time teaching.  I direct a Tax Clinic and we had a trial during that year.  My students performed tremendously in conducting the trial. However, it was clear when the trial was done that we would probably not be successful and my students were despondent.  At that point I had to walk the line of praising the work that the students had done without diminishing the effect that losing the trial would have on our clients.

This poster is the first step in attempting to produce a piece of scholarship on losing.

-CM

The AALS Poster Project: Elizabeth Chamblee Burch's Litigating Together: Social, Moral, and Legal Obligations

Elizabeth Chamblee Burch presented the poster, Litigating Together: Social, Moral, and Legal Obligations (Download Litigating_Together):

Professor Burch is a professor at the Florida State University College of Law, where she has taught since 2008. She teaches Civil Procedure, Evidence, and Complex Litigation. Before coming to Florida State, she taught at the Cumberland School of Law, where she received the Harvey S. Jackson Excellence in Teaching Award and the Lightfoot, Franklin & White Faculty Scholarship Award.

Her articles include Reassessing Damages in Securities Fraud Class Actions, 66 MARYLAND LAW REVIEW 348 (2007), Securities Class Actions as Pragmatic Ex Post Regulation, 43 GEORGIA LAW REVIEW 63 (2008), and Litigating Groups, 61 ALABAMA LAW REVIEW 1 (2009).

According to Professor Burch:

The poster presents an article that I'm working on with the same title.  I haven't yet posted the article on SSRN, but here's the working abstract:

Current scholarship on mass-tort litigation tends to focus on either securing individual justice and autonomy for litigants or using large-scale litigation to maximize social welfare.  The social-welfare approach has captured the minds of Congress members, the Federal Rules advisory committee, and judges alike.  In part, it has led to the creation of a central-planning model, which aggregates as many nominally related plaintiffs as possible into one forum, before one judge.  In the wake of Amchem, Ortiz, and the Class Action Fairness Act, these claims frequently proceed en masse, as "nonclass aggregation," but lack both the judicial protections of a certified class action and the client monitoring protections of individual actions.  The result is that few safeguards exist to protect plaintiffs from standard collective-action problems, such as agency problems, free riders, and holdouts.  These circumstances threaten procedural legitimacy and necessitate change.  This Article thus offers an alternative vision for the role of federal courts in large-scale litigation: to enable plaintiffs to litigate together by communicating and associating with one another.

Specifically, the Article argues for a procedural system that maintains fidelity to the tort system's philosophy of individually held rights while recognizing the obligatory constraints that regularly arise in collective litigation.  These obligations flow from voluntary promises and assurances, the complex psychological and social dynamics of groups, and the transformative nature of social relationships-if not in a metaphysical sense, in a pragmatic, obligation sense.  Encouraging plaintiffs to discuss and specify their litigation ends together allows them to associate with others who share their claims, injuries, and goals, which ultimately increases cooperation.  Once plaintiffs sort into more cohesive groups and commit to band together, they might reinforce those commitments through social norms and social sanctioning or contractually enforceable governance agreements that embrace the ideals of a deliberative democracy-arguing, bargaining, and voting.  Finally, if plaintiffs opt to remain autonomous and abstain from partaking in the benefits and burdens of group membership, then the system should honor that choice.  As outliers, these plaintiffs may serve an important error-correction function, much as bona fide objectors do in class-action settlements.  

In this way, litigating together preserves the fundamental tenet of self-determination in liberal theory, but recognizes that this power now rests with the collective in a way that furthers the group's communal interests.  Moreover, by returning voice and control to plaintiffs, this alternative vision reinstates core procedural justice components-voice and participation opportunities, adversarial process, and error-correction mechanisms.  It also challenges the assumption that plaintiffs' attorneys can act as unconstrained entrepreneurs over whom plaintiffs exercise little control. 

-CM 

The AALS Poster Project: Christine E. Rollins' Turning the Light Bulbs On - Effective Ways To Teach CREAC To All Types Of Student Lawyers

Christine E. Rollins presented the poster, Turning the Light Bulbs On - Effective Ways To Teach CREAC To All Types Of Student Lawyers:

Professor Rollins is the Director of Legal Research and Writing at the St. Louis University School of Law, a position that she has held since 2007.  According to the St. Louis University School of Law website, she 

implemented a unique teaching program that assists professors in their teaching based on their students’ learning style. It was because of this program that Professor Rollins and SLU LAW was sited by The National Jurist as being named one of the “Most Innovative Law Schools.” 

In addition to her academic duties, Rollins has successfully argued before the Missouri Court of Appeals-Eastern District and the Supreme Court of Missouri, successfully prosecuting ten appellate cases. Some of her articles include, Statutory Assistance for Attorneys Providing Pro Bono Services, 60 Journal of the Missouri Bar 112 (May/June 2004), and Using the VARK: A Writing Department's Commitment to "Turning the Light Bulbs On," 22 The Second Draft 13 (Spring 2008).

Her poster is related to this latter article, and here is her description of the poster:

In the spring of 2009 the Legal Research and Writing Department at Saint Louis University School of was sited by The National Jurist as being named one of the “Most Innovative Law Schools”.  The attached poster presentation captures the concepts of this approach.

In the fall of 2007, the Legal Research and Writing Department made a commitment to adapt our classroom teaching styles to more fully engage our students through their personal learning style preferences.  Students learning style preferences were assessed by a computer software program.  The results given are: visual, audio, reader/writer, kinesthetic, or multimodal. The faculty then created and adapted teaching tools and techniques which allow them to present skills and objectives within the classroom tailored to the needs of the students based upon their individual learning styles.   The poster presentation provides an example for each learning style. 

-CM

The AALS Poster Project: Camille Davidson's Octomom and Multi-Fetal Pregnancies: Is the Insurance Industry a Co-Conspirator?

Camille Davidson presented the poster, Octomom and Multi-Fetal Pregnancies: Is the Insurance Industry a Co-Conspirator?:

Professor Davidson is a professor at the Charlotte School of Law, where she has taught since 2007. She teaches Health Law, Wills, Trusts and Estates, Civil Procedure, Pretrial Litigation, and Lawyering Process. Before becoming a professor, she was Of Counsel with Fuller & Barnes, LLP, taught Introduction to American Politics at Davidson College, worked as a consultant for Mecklenburg County on children's health and long term care issues, and worked as Assistant Counsel in the Office of the Legislative Counsel, United States House of Representatives, where she drafted legislation in the areas of health law, small business, and ERISA. 

 

You can download a copy of the introduction of her work-in-progress paper connected to the poster by clicking here (Download Octomom Introduction). And you can access the House and Senate Bills referenced in her paper by clicking here (Download HR_697) and here (Download S_1258).

 

-CM

The AALS Poster Project: Bridget Crawford's Sticky Copyrights: Discriminatory Tax Restraints on Transfers of Intellectual Property

Bridget J. Crawford presented the poster,  Sticky Copyrights: Discriminatory Tax Restraints on Transfers of Intellectual Property (Download StickyCopyrightsPoster[1]):

  

Professor Crawford is a professor at Pace Law School, where she has taught since 2003. She teaches Federal Income Taxation, Estate and Gift Taxation, Wills, Trusts and Estates, and Feminist Legal Theory. The graduating classes of 2005, 2006, and 2007 selected her as Barbara C. Salken Outstanding Professor of the Year. She is a regular blogger on Feminist Law Professors, and some of her recent articles are Taxation, Pregnancy, and Privacy, William and Mary Journal of Women and the Law (forthcoming 2010), Tax Avatars, 2008 Utah Law Review 793 (2008), and Toward a Third-Wave Feminist Legal Theory: Young Women, Pornography, and the Praxis of Pleasure, 14 Michigan Journal of Gender & Law 99 (2007) (winner of the 2007 Goettel Prize for Faculty Scholarship).

Professor Crawford's poster is connected to her forthcoming article in the Washington and Lee Law Review (written with Mitchell Gans), Sticky Copyrights, Discriminatory Tax Restraints on the Transfer of Intellectual Property.

Here is Professor Crawford's brief explanation of the poster:

The poster illustrates the estate and gift tax treatment of transfers of copyrights.  "Sticky Copyrights, Discriminatory Tax Restraints on the Transfer of Intellectual Property" is the title of an article forthcoming in the Washington & Lee Law Review written by Mitchell Gans (Hofstra) and me.

And here is the abstract of the article:

The article focuses on the federal estate and gift tax treatment of copyright termination rights.  The ability of a creative individual to terminate prior copyright transfers serves to protect against economic exploitation.  Once a copyright’s value has been established in the marketplace, the author (or the author’s heirs) enjoy a “second look” at the gift, sale, license or other transfer of a copyright.  But copyright termination rights – intended to enhance the economic well-being of authors and artists – undermine estate-planning strategies available to owners of other types of property.  There is no policy justification for such discrimination, and so this article proposes legislative changes that would level the playing field for wealth transfer tax purposes. make effective estate planning nearly impossible. Intellectual property law causes wealth transfer tax rules to apply more harshly to copyrights than to other property.  This article argues that there is no policy justification for the negative tax treatment of copyrights.  This article proposes legislative changes that would allow authors and artists to transfer their intellectual property as freely as they can transfer other assets. 

-CM

The AALS Poster Project: Ernesto Hernández-López's "Is race implicit in US authority over the base at Guantánamo Bay, Cuba?"

Ernesto Hernández-López presented the poster, Is race implicit in US authority over the base at Guantánamo Bay, Cuba?:

Professor Hernández-López is a professor at the Chapman University School of Law, where he has taught since 2005. He teaches Contracts I & II, Corporations, and Immigration and Refugee Law. Before attending law school, he served as an International Relations Research Professor at the Universidad del Rosario and as a Political Science Professor at the Universidad Javeriana, both in Santafé de Bogóta, Colombia. Some of his recent articles are Boumediene v. Bush and Guantanamo, Cuba: Does the 'Empire Strike Back'?, 61 SMU LAW REV. 117 (2009), Law Food, and Culture: Mexican Corn's National Identity Cooked in 'Tortilla Discourses' Post-TLC NAFTA, 18 ST. THOMAS LAW REV. 573 (2008) (LatCritXII symposium), and Law and Popular Culture: Examples from Colombian Slang and Spanish=Language Radio in U.S., 19 BERKELEY LA RAZA LAW JOURNAL 101 (2008).

Here is the abstract of his poster:

This poster illustrates the race-based and cultural assumptions implicit in American jurisdiction over the Naval Station at Guantánamo Bay, Cuba, from 1898 to the present. Using historical images of political cartoons, maps, and pictures, it illuminates how the law’s cultural and race-based assumptions influenced U.S. participation in: the War of 1898, the Platt Amendment (1902-1934), Cold War, detention of Haitian asylum-seekers in the 1990s, and War on Terror detention since 2002.  Guantánamo was conceived from Platt Amendment assumptions that Cuban independence required U.S. supervision of its foreign and economic relations, with a base and right of intervention. Notions of American superiority and Cuban inferiority characterized bilateral relations during occupation, protectorate status, and after the 1959 revolution, making the base an “anomalous legal zone.”  Current detention capitalizes on this anomaly, limiting rights protections for detainees.  The poster poses the working hypothesis that the law of detention relies on two cultural assumptions.  First, the denial of rights in international law for “unlawful enemy combatants” mimics historic exclusions for “savages” during colonial expansion.  Second, detainees overwhelmingly represent Arab, Middle-Eastern, and Central and South Asian nationalities.  Coupled with anti-Muslim rhetoric, base detentions capitalize on legal assumptions regarding Cubans, GTMO, and belligerents. In sum, the poster uses visual images to suggest how race-based and cultural assumptions make sovereignty and rights protections in international and constitutional law malleable under extraterritorial authority.

Here is his explanation of the poster:

This poster is part of a larger project examining ‘Guantánamo, law, and empire (past and present)’ in terms of space, culture, and markets.  Providing images of current and historic legal issues, the poster medium visually articulates cultural, spatial, and trends over time, perhaps more easily than text or engaging discussions.  Posters like blogs or webpages provide a fixed but easily produced medium to present ideas.  I submitted the poster to the AALS meeting, after prior successes with prior powerpoint and poster presentations at other conferences.  Because posters facilitate spatial, visual, comparative, and “big-picture” analyses and the ability for the audience to study at their leisure, I eagerly try to work with them.

Here are sources referenced by the poster:

·Ernesto Hernández-López, Boumediene v. Bush and Guantánamo, Cuba:  does the "Empire Strike Back"? 61 SMU Law Rev. 117-199 (2009) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1224262 (using a post-colonial framework to argue U.S. occupation of base territory since 1898 frames how recent American law resolves detention disputes)

·Louis Pérez, Jr., Cuba in the American Imagination: Metaphor and the Imperial Ethos (2008) http://uncpress.unc.edu/browse/book_detail?title_id=1535 (arguing U.S.-Cuba policy is shaped by an imperial ethos from the nineteenth century to the present, viewing Cuba as female, child, racialized, and ungrateful and presenting political cartoons to that effect)

·Ediberto Roman, The Other American Colonies: an International and Constitutional Law Examination of The United States Nineteenth and Twentieth Century Island Conquests (2006) http://www.cap-press.com/isbn/9780890894996 (presenting how U.S. territories in the Caribbean and Pacific contradict liberal notions in American constitutional law and international law)

·Johnson, John J., Latin America in Caricature (1980) (compiling an extensive collection of political cartoons on Latin America subjects from U.S. newspapers and illustrating the racial, paternalistic, and gendered tropes of U.S. foreign policies)

·Jana Lipman, Guantanamo: A Working Class History Between Empire And Revolution (2009) (providing a cultural-history analysis of how Cuban, West Indian, and American base workers negotiated Cuban, American, and global conflicts on the base during the Platt Amendment and Cold War periods) http://www.ucpress.edu/books/pages/11120.php

·Gerald L. Neuman, Closing the Guantanamo Loophole, 50 Loyola Law Review 1 (2004) (presenting the legal history of the base as an “anomalous legal zone” and how this is used presently as “loophole” or exception to checks of executive power)

·Frédéric Mégret, From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s Other, in International Law and its Others (Anne Orford ed., 2006) (illustrating how initial exclusions of Geneva Convention protections for base detainees resembles historic reasoning excluding “savages” and “barbarians” from similar law of war protections during colonial wars)

·Guardian.co.uk ‘Guantánamo: 2002-09?’ available at http://www.guardian.co.uk/world/gallery/2008/dec/04/guantanamo-bay?lightbox=1  (displaying images and data on base detentions)

And here are databases classifying detainees according to nationality/citizenship, status, charges, and other factors:

·Benjamin Wittes and Zaahira Wyne, Brookings Institute, “Introduction: The Current Detainee Population of Guantánamo: An Empirical Study” available at http://www.brookings.edu/reports/2008/1216_detainees_wittes.aspx?rssid=wittesb

·Washington Post. ‘Names of the Detained in Guantanamo Bay, Cuba’ available at http://projects.washingtonpost.com/guantanamo/

·New York Times, ‘The Guantánamo Docket’ available at http://projects.nytimes.com/guantanamo

-CM

The AALS Poster Project: An Introduction

In its call for proposals last year, the Legal Writing Institute noted that "[p]oster presentations are an increasingly popular way to present scholarly and pedagogical ideas" but that "poster presentations are a relatively new format for the legal writing community." The same applies to the legal academy as a whole. "At the 2005 [AALS] Annual meeting in San Francisco, the AALS Section on Professional Responsibility sponsored posters on empirical research." Thereafter, "[t]he AALS Committee on Sections and the Annual Meeting was delighted by this innovation and decided that all AALS Sections should have the opportunity to sponsor posters at the 2006 AALS Annual Meeting."

The way I see things, though, not enough professors have availed themselves of this innovation. There are probably a variety of reasons for this insouciance, probably not the least of which is that the poster presentations are scheduled for the same time as AALS panels, meaning that attendees either have to leave panels early or attend panels late to be able to interact with poster presenters during their designated hours. The AALS later posts PDFs of these posters to its Annual Meeting sites (see here, here, and here), but I'm guessing that not many people visit these sites after these conferences are over, making them sort of like the Ark of the Covenant at the end of "Raiders of the Lost Ark." Besides, if you download one of these posters, all you have is the poster, not the presenter's reason for creating it or explanation of it.

Thus, this year, I decided to start the AALS Poster project. Pursuant to this project, I studied each of the posters at the conference and interacted with each of the presenters during their designated hours. I asked the presenters about why they created their posters, the thesis of their posters, how the posters fit into their scholarship, etc. Over the next few weeks, I will spotlight each of these posters and their presenters on this blog, and I hope that these posts draw some of the attention that these posters and presenters deserve. Of course, nothing substitutes perfectly for the real thing, and I would recommend that attendees at successive AALS conferences stop by during the designated hours and discuss the posters with their presenters. I found such discussions to be very rewarding.

-CM 

Adverse (Dis)Possession: Eastern District Of New York Order Adverse Inference Instruction In Best Evidence Ruling

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

That said, Federal Rule of Evidence 1004(1) provides that 

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.

It is very difficult for the opponent of such "other evidence" to prove "bad faith," and a showing of negligence by the proponent is generally not enough to prevent the application of Federal Rule of Evidence 1004(1). As the recent opinion of the United States District Court for he DIstrict of New York in Vagenos v. LDG Financial Services, LLC, 2009 5219021 (E.D.N.Y. 2009), makes clear, however, this does not mean that the opponent is without recourse.

In Vagenos, Chris Vagenos filed an action pursuant to the Fair Debt Collection Practices Act against LDG Financial Services, LLC, alleging that the company engaged in deceptive practices in connection with the collection of a consumer debt. His claims were based upon upon telephonic communications received from LDG, but he deleted the original, allegedly unlawful pre-recorded message that was left for him, retaining only a purported duplicate.

According to the Eastern District of New York, Vagenos was allowed to introduce his purported duplicate because his

explanation about the unavailability of the original message [wa]s sufficient to meet the threshold requirements of Fed.R.Evid. 1004(1). Plaintiff and plaintiff's counsel may very well have breached their duty to preserve critical evidence in this case, but they did not do so in bad faith.

(I'm not sure why the court didn't simply find the duplicate admissible under Federal Rule of Evidence 1003, which does not require fulfillment of any of the Rule 1004 factors)

As noted above, however, this did not leave LDG without recourse. Instead, the court concluded,

This is not to say, however, that plaintiff should face no consequences for his and his attorney's actions. The standard of bad faith under Rule 1004(1) must necessarily be high, at least where, as here, precluding the crucial secondary evidence would be tantamount to directing a verdict against the proponent of that evidence; plaintiff cannot prevail in this action if the Court excludes the duplicate recording. Although plaintiff's conduct thus does not meet the standard of "bad faith" under Rule 1004(1) and the fatal consequences that would flow from it, that conduct does violate plaintiff's obligation to retain relevant evidence. Indeed, it is the very importance of the evidence that heightened the obligation to preserve the original. Plaintiff's neglect has complicated the task of the fact finder, which now has to determine whether the message plaintiff claims he received is in fact the message he did receive. It has prejudiced defendant, which cannot inspect the original tape or subject it to forensic analysis. These issues could have been avoided entirely had plaintiff or his attorney taken any steps to merely retain the original evidence.

And, according to the court, the remedy for LDG was an adverse inference instruction

that a party in possession of material evidence has a duty to preserve it, and the jury may consider plaintiff's failure to preserve the original recording as evidence that the destroyed portion of the message contained information harmful to plaintiff's case.

-CM

Call The Police: Seventh Circuit Explains Rationale(s) For Excluding Police Reports In Criminal Cases Under Rule 803(8)(B)

Federal Rule of Evidence 803(8)(B) provides that

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.

In other words, police reports are not admissible in criminal cases. But why? That was the question addressed by Judge Posner in his recent opinion in United States v. Hatfield, 2010 WL 114930 (7th Cir. 2010), although his analysis was irrelevant to his conclusion.

In Hatfield, Rex Hatfield and Everly Hatfield were convicted of conspiracy to burglarize pharmacies and to distribute controlled substances (including morphine methadone, oxycodone, fentanyl, alprazolam, cocaine, and hydrocodone), the use of which resulted in death or serious bodily injury-specifically, four deaths, plus a serious bodily injury to a fifth user of the defendants' drugs. Based upon an improper jury instruction, the Seventh Circuit, in an opinion written by Judge Posner, reversed and remanded.

In addition to the jury instruction, the defendants also challenged other actions by the district court. Specifically, inter alia, 

One of the dead was an informant in another case against one of the two defendants. That case was dismissed on motion by the prosecutor when the informant died. The government was permitted to present certified documents from that case, including a criminal complaint alleging that the defendant had sold oxycodone to the informant and an order dismissing the case because of the informant's death, to back up its argument that the defendants had planned to kill her in order to stop her from testifying.  

The Seventh Circuit noted that this "evidence consisted of public records, which usually are admissible even though they are hearsay, Federal Rule of Evidence 803(8)." That said, the court acknowledged that "there is an exception for the use in criminal cases of records that set forth 'matters observed by police officers and other law enforcement personnel.' These are not admissible. Rule 803(8)(B)."

That left the Seventh Circuit with the question of why police reports are inadmissible in criminal cases. The court noted that

“The apparent concern of the drafters [of the exception in Rule 803(8)(B)] was that use of records in criminal cases would cause 'almost certain collision with confrontation rights.'"...And during floor debates on the rule, "concern was expressed that [without the exception, Rule 803(8)] would allow the introduction against the accused of a police officer's report without producing the officer as a witness subject to cross-examination."

If this were the only concern, the prosecution might not have faced a problem on remand because 

[t]he police officer who had signed the criminal complaint in that case testified at the trial of the present case about the proceedings in that other case, including the allegations in the complaint that he had drafted. So he was available for cross-examination.  

The problem for the prosecution, though, was that this was not the only concern. Instead, 

there is more to the exception than a concern with unavailability of cross-examination. There is also a concern that reports by law enforcers are less reliable than reports by other public officials because of law enforcers' adversary relation to a defendant against whom the records are sought to be used.

In the end, though, the Seventh Circuit found that this wasn't a problem for the prosecution in the case before it 

because the key document is the order dismissing the criminal complaint, and although it does mention the reason the prosecutor gave for asking the court to dismiss the complaint, the order is a public record of the court's reason (the informant's death) rather than a record of observations by law enforcement officers.

-CM

Q & A: Ninth Circuit Finds DEA Agent's Testimony Didn't Cross Rule 704(b) Line In Drug Trafficking Appeal

A week ago, I posted an entry about a Maryland case in which the Court of Appeals of Maryland strained to find that a sergeant's testimony did not violate Maryland's counterpart to Federal Rule of Evidence 704(b), which provides 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 court's conclusion in that case was that even though the prosecutor's question crossed the Rule 704(b) line, the sergeant's answer did not. I agreed with this conclusion in theory, stating, "I have no doubt that a question that crosses the Rule 704(b) line can prompt a response that does not."  I just didn't think that this conclusion applied to that Maryland case. Conversely, I think that the Ninth Circuit correctly applied this conclusion in its recent opinion in United States v. Anchrum, 2009 WL 5125788 (9th Cir. 2009), even though it claimed otherwise.

In Anchrum, Michael Anchrum was convicted of one count of possession of controlled substances with intent to distribute, two counts of assault on federal officers with a deadly or dangerous weapon, and one count of possession of firearms in furtherance of drug trafficking. The prosecution procured these convictions in part through the testimony of DEA Special Agent Kenneth Solek, who testified regarding the circumstances of Anchrum's arrest, including the following exchange:

Q: And also we had the presence of two guns in this car, and you had mentioned - or had testified earlier that one was on the floorboard and one was underneath the seat and they were both loaded. What's the significance of that to you in your experience.

A: Well if-if you're driving around with a loaded weapon and you have narcotics in your car, then again, we're going back to what are you using the weapon for, why is it there. It's got to be there for a purpose. You're either going to use it, number 1, if you get stopped, to try to get away, which would be bad for us, for law enforcement. Number two, you're going to do a drug deal and you're worried that the person that you're giving your drugs to is going to rip you off, to try to steal your drugs instead of paying you money. Or, number 3, you do a successful drug deal and you're worried that somebody else that knows that you went over there and you just made $5,000 is going to come up and try to take your $5,000. So you have it for your protection, or you have it to-to get away with again. You know, the number 1-the bad reason.

After he was convicted, Anchrum appealed, claiming, inter alia, that Agent Solek's testimony crossed the Rule 704(b) line because the above question, "which referenced 'this car,' called for an opinion as to his particular mental state." The Ninth Circuit disagreed, noting that this question "ended with the call 'What's the significance of that to you in your experience?'" According to the court, this question thus did "not call for any discussion of Anchrum's mental state, but rather [called for] a discussion of the modus operandi of the drug dealers that Agent Solek had encountered 'in his experience.'" In other words, "Agent Solek 'offered no opinion as to whether [Anchrum] possessed the requisite criminal intent' to possess firearms, 'but instead described a common practice of those who do have such intent.'"   

I disagree. It seems to me that the prosecutor's question was asking Agent Solek to rely on his past experience to conclude what mental state the driver of "this car" had in this particular case. And indeed, it seems clear to me that if Agent Solek had said, "Based upon my experience, the driver of this car was engaged in drug trafficking," the Ninth Circuit would have found that the testimony violated Federal Rule of Evidence 704(b). 

Fortunately for the prosecution, however, whatever we might say about the propriety of the prosecutor's question, it seems equally clear that Agent Solek's testimony did not cross the Rule 704(b) line. Agent Solek never referenced "this car" or "this case." Indeed, he didn't even testify that the facts of the case before him were consistent with one particular state of mind. Instead, he merely said that the facts of the case before him could be consistent with three different types of behavior, making it clear that his testimony did not violate Federal Rule of Evidence 704(b). 

-CM