EvidenceProf Blog

For A Limited Time: Opinion Reveals That Mississippi Courts Once Required Sua Sponte Limiting Instructions After Objection To Character Evidence

Like its federal counterpart, Mississippi Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.  

As the language of the Rule makes clear, a court only needs to issue a limiting instruction "upon request." As the recent opinion of the Court of Appeals of Mississippi in Lindsey v. State, 2010 WL 615649 (Miss.App. 2010), makes clear, such a request was not always required.

In Lindsey, a jury found Henry Lindsey guilty of possession of contraband in a private correctional facility. During its cross-examination of Lindsey, the following exchange took place:

Q: Why are you [at the Walnut Grove Youth Correctional Center]?

A: Armed robbery.

Q: Armed robbery. How long have you been there?

A: Since 2006.

Q: And Mr. Dotson was coming around to serve paperwork on you. You said it was an RVR. What does that mean?

A: A rule violation report.

Q: So you were in trouble when he came to serve you some papers, weren't you?

A: Yes, sir.

Q: It had something else to do with something else you have been in trouble for besides that shank?

By Mr. Smith: Your Honor, I would object to this line [of questioning] as irrelevant. He's here about whether or not he had a shank in his cell and not anything else.

By Mr. Thames: He opened the door.

By the Court: It's just like in a trial of a case, you cannot mention that a person has committed another crime. He has testified it was a RVR [sic], rule violation report, which is the same principle as not being allowed to introduce evidence of subsequent crime. So your objection is sustained.

After this exchange, defense counsel did not ask for a limiting instruction informing jurors to ignore any testimony related to other acts of misconduct by Lindsey. Nonetheless, after he was convicted, Lindsey appealed, claiming, inter alia, that the court should have issued such an instruction sua sponte. 

The Court of Appeals of Mississippi noted that Lindsey relied upon Smith v. State, 656 So.2d 95 (Miss. 1995), in which the Supreme Court of Mississippi found that a trial court has a sua sponte duty to give a limiting instruction after defense counsel objects to character evidence being admitted. The court pointed out, however, that Smith was overruled by Brown v. State, 890 So.2d 901 (Miss. 2004), in which the Mississippi Supremes "abandon[ed] Smith's requirement that a judge issue a sua sponte limiting instruction and return[ed] to the clear language of Rule 105." 

So, why do I think that Rule 105 requires a request by counsel? Well, I think that it is not clear whether limiting instructions are a good thing. If a defendant is on trial for a safecracking, evidence of his prior safecracking[s] could be admissible to prove knowledge or modus operandi but would not be admissible to prove propensity/conformity, i.e., "once a safecracker, always a safecracker." But, assuming that the evidence is admissible, is it better for defense counsel to ask for a limiting instruction informing the jury that it is not to use the evidence as it bears upon the defendant's propensity to crack safes, or does this merely highlight this potential use? That's really a decision for defense counsel (and the defendant) to make, which is why (I think) a request is required.

-CM

Complete Denial: Seventh Circuit Turns Aside Defendant's Fifth Amendment Argument Based Upon Rule Of Completeness

A defendant is on trial for defrauding the Medicare program. One piece of evidence that the prosecution admits against her is a redacted audio recording on which she seemingly makes incriminatory statements. On appeal, the defendant claims that the admission of the tape violated her Fifth Amendment privilege against self-incrimination because the redacted portions of the recording were exculpatory, but she would have needed to take the witness stand to explain why. How should the court rule? As the Seventh Circuit correctly found in its recent opinion in United States v. Phillips, 2010 WL 652852 (7th Cir. 2010), the court should found the argument without merit based upon the rule of completeness.

In Phillips, the facts were as listed above, with Theresa Phillips being the defendant. Specifically, the prosecution alleged that "Phillips and her company, Health Care Creations, defrauded the Medicare program by billing it for services that were not actually performed, were not medically necessary, and were provided by an unlicensed therapist instead of by a doctor as claimed."  

One piece of evidence admitted against Phillips at trial was a redacted audio recording and transcript of undercover investigators asking Phillips whether "you" participate in various aspects of Medicare billing....Phillips contend[ed] that she responded affirmatively to these questions addressed to "you" on behalf of her company-not herself personally-and that this might have been evident had the jury heard portions of the audio recording that were redacted, although she [wa]s unsure because she never received an unredacted version, or so she claim[ed]. The government ha[d] always contended that the redacted portions consisted solely of irrelevancies, such as silent airtime, and it argue[d] on appeal that it provided Phillips with the complete, unredacted version well before trial. 

According to the Seventh Circuit, the problem with Phillips' argument that the government never provided her with an unredacted version of the recordings was that 

Phillips was required to alert the trial court that the government had not provided her the complete recordings, in order to preserve her objection to the admission of the redacted version on the grounds that the complete version was unavailable. Having failed to do so, the circumstance of the government failing to provide an unredacted version “cannot be relied upon on appeal.

Moreover, the court turned aside Phillips aforementioned Fifth Amendment argument, noting that pursuant to Federal Rule of Evidence 106, the rule of completeness,

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Thus, according to the court,

Phillips need not have taken the stand to provide any exculpatory statements. All she had to do was identify them from the complete recording and have those portions introduced via Federal Rule of Evidence 106-as unlikely as this might have been, for as we revealed, the redacted portion inculpated her personally.

-CM

Mississippi Mud: Court Of Appeals Of Mississippi Reverses Conviction Based Upon Impeachment Of Non-Testifying Criminal Defendant

Similar to its federal counterpart, Mississippi Rule of Evidence 609(a)(1) provides that 

For the purpose of attacking the character for truthfulness of a witness, (1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party.  

As I always tell my Evidence students, the only purpose of impeachment is to show the jury (or judge) that a witness' testimony is not necessarily trustworthy. What this means is that a criminal defendant's prior convictions cannot be admitted to impeach him unless he chooses to testify at trial. What this also means is that the Court of Appeals of Mississippi had to reverse Willie Joe Robinson's conviction in its recent opinion in Robinson v. State, 2010 611504 (Miss.App. 2010).

In Robinson, Willie Joe Robinson was convicted of burglary of a building and sentenced as a habitual offender to seven years in the custody of the Mississippi Department of Corrections." One of the pieces of evidence that the prosecution introduced against Robinson at trial was his 2001 conviction for attempted grand larceny. The trial court admitted this conviction for impeachment purposes under Mississippi Rule of Evidence 609(a)(1), and the Court of Appeals of Mississippi later found that this decision was erroneous because Robinson did not testify at trial.

Of course, an appellate court can still affirm a trial court's opinion if it reached the right evidentiary ruling based upon the wrong evidentiary rule, and the prosecution alleged on appeal that the conviction could have been admitted under Mississippi Rule of Evidence 404(b) to prove motive or intent. But according to the Court of Appeals of Mississippi, the problem in this regard was that the trial court record was insufficient for it to determine whether the conviction would have been admissible for these purposes. 

An appellate court can also affirm a trial court's opinion based upon a finding of harmless error. Here, however, the court did not find that the admission of the conviction was harmless, especially in light of the fact that the prosecutor told the jury during closing argument, "He's stolen before. He is, in fact, a thief."

-CM

The AALS Poster Project: Eric E. Johnson's Intellectual Property & Disability

Eric E. Johnson presesented the poster Intellectual Property & Disability (Download Intellectual Property & Disability):

 

Professor Johnson is a professor at The University of North Dakota School of Law, where he has taught since 2007. He teaches Torts, Intellectual Property, and Media & Entertainment Law. He has published articles such as Rethinking Sharing Licenses for the Entertainment Media, 26 Cardozo Arts & Entertainment Law Journal 391 (2008), and Calibrating Patent Lifetimes, 22 Santa Clara Computer & High Technology Law Journal 269 (2006). According to Professor Johnson,

The poster titled "Intellectual Property & Disability" is connected to an article I wrote that is forthcoming in volume 20 of the George Mason University Civil Rights Law Journal, which is titled "Intellectual Property's Need for a Disability Perspective." The poster tries to make the point - in a way that is personal to the viewer of the poster - that intellectual property law can have disparate effects on disabled and non-disabled people. The poster only references the Architectural Works Copyright Protection Act, but my article discusses other examples, including how Judge Alex Kozinski's leading trademark opinion in the New Kids on the Block case creates a legal doctrine that needlessly discriminates against persons with intellectual disabilities, and how a leading right-of-publicity case from Georgia unwittingly creates doctrine that has a discriminatory impact on blind persons.

-CM

The AALS Poster Project: Twinette Johnson's Reintroducing First-Year Students to Policy Based Reasoning Using "Hot Topics"

Twinette Johnson presented the poster Reintroducing First-Year Students to Policy Based Reasoning Using "Hot Topics" (Download Hot Topics):

 

Professor Johnson is a professor at the Saint Louis University School of Law, where she has taught since 2003. She is an Assistant Professor of Legal Writing, as well as the Associate Director of Bar Preparation Programs.  In addition to her teaching duties, Johnson has been a faculty moderator for the 100 Years of Women at Saint Louis University School of Law speaker series, and a coach for the Hispanic Law Student Association Moot Court Team. 

Here is Professor Johnson's explanation of her poster:

I developed an exercise using current events (“hot topics”) in an effort to get my students to see the importance of certain analytical tools when transitioning from predictive writing to persuasive writing.  One such tool is policy based reasoning. Over the years, I have found that students are reluctant to “create” policy based arguments or even use policy to support their arguments after they have been introduced to legal writing using the predictive memorandum.  I devised the hot topic exercise to get them to see how effective policy arguments could be in shaping the law and to reintroduce the tools necessary for making such effective arguments.  To facilitate this idea, I came up with several hot topics (term I learned from watching the ABC talk show–THE VIEW) and phrased them in the form of questions that students could answer. 

I try to make these as interesting and fun as possible.  For instance, in the past, one hot topic centered on whether pageant winners’ titles should be stripped for controversial behavior.  Another involved determining whether health issues faced by NFL players should prompt changes to the NFL pension and retirement scheme to accommodate players experiencing prolonged and extraordinary health care costs.  Yet another considered whether stuntmen should be honored with Academy Awards. 

Topics and positions (yes or no) are chosen by lottery.  Before the student presentations on these topics, we review what we’ve learned about devising policy rationales.  I then advise students to use these techniques to craft policy reasons to support their positions.  Because of the topics and because the structure of this exercise is a departure from the normal instruction, students have a lot of fun with this.  They enjoy being able to argue their position and actually carry this into their briefs and oral arguments.

-CM 

The AALS Poster Project: Jessica Owley Lippmann's Conservation Easements and Global Climate Change

Jessica Owley Lippmann presented the poster Conservation Easements and Global Climate Change (Download Conservation Easements and Global Climate Change):

 

Professor Lippmann is a professor at Pace Law School, where she has taught since 2009. Her teaching interests are in the areas of property, environmental law, administrative law, and Indian law. She has published articles such as The Emergence Exacred Conservation Easements, 84 Nebraska Law Review 1043 (2006), Preservation as Mitigation Under CEQA: Ho-hum or Uh-oh?, 14 Environmental Law News  18 (with David Levy) (2005), and Exacted Conservation Easements: The Hard Case of Endangered Species Protection, 19 Journal of Environmental Law and Litigation 293 (2004). According to Professor Lippmann,

the poster presents several projects that I am working on instead of just one paper. Generally, I have been exploring climate change and land conservation. Specifically, I am examining the use of one private land conservation tool (conservation easements) and how they are (1) affected by climate change and (2) can respond to climate change. The goal of my poser was to present three lines of inquiry on these topics to solicit feedback and interest from others in the field.

I decided to submit a poster to AALS because as a new professor, it is hard to make connections with people in (and out of) your field. I hoped this would provide me an opportunity to discuss my work with other scholars. This was mildly successful. Although few people stopped by during the designated poster session, several people e-mailed me to request a copy of my poster.
    
I will presenting some of these ideas at the upcoming Public Interest Environmental Law Conference in Eugene, OR and hope to have the first two papers ready in the fall.

-CM

Refresh My Recollection: SDNY Finds Production Of Notes Used Before Testifying To Be Necessary In The Interests Of Justice

Federal Rule of Evidence 612 indicates in relevant part that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

So, when is production necessary in the interests of justice under Rule 612(2)? That was the question addressed by the Unites States District Court for the Southern District of New York in its recent opinion in Thomas v. Euro RSCG Life, 2010 WL 565391 (S.D.N.Y. 2010).

In Thomas, the plaintiff brought a civil action for damages and remedies against Euro RSCG Life after the company allegedly began discriminating against her after she returned from maternity leave.

At plaintiff's deposition on January 20, 2010, plaintiff testified that she had looked at notes in preparation for her deposition that recounted the dates and substance of conversations plaintiff had had with former in-house counsel for defendant Euro RSCG Life, Peter Glass....Defense counsel promptly demanded that the notes be produced, but plaintiff's counsel objected on the ground that the notes were protected by attorney-client privilege.

The defendant thereafter moved to compel production of the notes, and the court found that while the notes would otherwise be protected by attorney-client privilege, the plaintiff waived the privilege by relying on the notes in connection with her deposition testimony. Of course, under Rule 612(2), the court also had to find that production was necessary in the interests of justice to grant the defendant's motion because the plaintiff only relied on the notes before testifying. And, according to the court,

just such a finding is compelled here. The notes are simply a factual recitation, arranged chronologically, and evince no work-product concerns. They relate to conversations about which the witness knew she would be questioned: indeed, plaintiff's counsel, in an earlier in-court conference, had repeatedly referenced these conversations as a basis for seeking various discovery in this case....Finally, since the subject matter of these conversations, and the conversations themselves, are likely to play a substantial role in plaintiff's case, it is in the interests of justice for defendants to be able to adequately cross-examine plaintiff by having access to notes that plaintiff admitted to reviewing so that she could answer questions "accurately."

-CM

Eyes Wide Shut, Take 2: Supreme Court Of Illinois Finds HGN Test Satisfies Frye Test, Just Not In The Case Before It

Back in October 2007, I posted an entry about People v. McKown, in which the Supreme Court of Illinois found that an Illinois trial court erred in taking judicial notice of the general acceptance of the reliability of Horizontal Gaze Nystagmus (HGN) test results in a drunk driving case. The court thus reversed the trial court's opinion, holding that a Frye hearing had to be held to determine whether there was general acceptance of the HGN test in the relevant scientific community. On Friday, the Supreme Court finally addressed the validity of that hearing in People v. McKown, 2010 WL 572082 (Ill. 2010), an opinion that is a victory for Illinois prosecutors in general but a loss for them in McKown itself.

In its opinion, the Supreme Court of Illinois began by explaining the basics of nystagmus and the HGN test:

Nystagmus is “an involuntary, rapid, rhythmic movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed, i.e., of two varieties.”...The methodology employed by law enforcement officers for conducting an HGN testing as a part of field-sobriety testing is explained in detail in our earlier opinion. In brief, the officer first questions the subject to determine whether he or she has any medical condition or is taking any medication that might affect the results of the test. If not, the officer performs a preliminary test to determine whether the pupils of the subject's eyes are of equal size and whether the eyes “track” equally as an object is moved, at eye level, from side to side. If so, the HGN test itself is performed. The officer looks for three “clues,” assessing each eye separately. The three clues are lack of smooth pursuit, distinct nystagmus at maximum deviation, and the onset of  nystagmus at an angle less than 45 degrees. One point is assigned for each clue that is present in either eye. Thus, the maximum score is six, which would indicate all three clues present in both eyes. A score of four or more is considered “failing” and indicative of alcohol impairment.

The Illinois Supremes then recounted all of the testimony presented at the Frye hearing (which you can read in the court's opinion) and set forth the trial court's five conclusions of law:

1. HGN testing satisfies the Frye standard in Illinois.

2. HGN testing is but one facet of field sobriety testing and is admissible as a factor to be considered by the trier-of-fact on the issue of alcohol or drug impairment.

3. A proper foundation must include that the witness has been adequately trained, has conducted testing and assessment in accordance with the training, and that he administered the particular test in accordance with his training and proper procedures.

4. [Testimony regarding] HGN testing results should be limited to the conclusion that a "failed" test suggests that the subject may have consumed alcohol and may [have] be[en] under the influence. There should be no attempt to correlate the test results with any particular blood-alcohol level or range or level of intoxication.

5. In conjunction with other evidence, HGN may be used as a part of the police officer's opinion that the subject [was] under the influence and impaired.

In upholding these conclusions, the Supreme Court of Illinois

agree[d] with the trial court that the relevant scientific fields that embrace the testing for and observation of HGN include medicine, ophthalmology, and optometry. Research and expert opinion in other scientific or medical fields, such as neurophysiology, might also be relevant.

According to the Illinois Supremes,

The trial court concluded that “both ophthalmology and optometry generally accept the principle that the HGN test may be an indicator of alcohol consumption.” The trial court stated, further, that the use of HGN test results at trial “should be limited to the conclusion that a ‘failed’ test suggests that the subject may have consumed alcohol and may [have] be[en] under the influence. There should be no attempt to correlate the test results with any particular blood-alcohol level or range or level of intoxication.”

We agree. Consumption of alcohol is a necessary precondition to impairment due to alcohol. Therefore, any evidence of alcohol consumption is relevant to the question of impairment....A failed HGN test is relevant to impairment in the same manner as the smell of alcohol on the subject's breath or the presence of empty or partially empty liquor containers in his car. Each of these facts is evidence of alcohol consumption and is properly admitted into evidence on the question of impairment.

We, therefore, adopt the trial court's finding that HGN testing is generally accepted in the relevant scientific fields and that evidence of HGN test results is admissible for the purpose of proving that a defendant may have consumed alcohol and may, as a result, be impaired.

So, why did the State lose despite these conclusions? Well, apparently, the arresting officer didn't perform the HGN test properly in McKown. According to the Supreme Court of Illinois, 

defense counsel was allowed to make an offer of proof during cross-examination of Master Sergeant Lebron. Lebron reviewed the transcript of Officer Klatt's trial testimony and stated that Klatt performed the test while defendant was seated; while the NHTSA manual requires that the subject be standing. Further, Klatt's testimony does not indicate that he questioned defendant about any eye problems, equal tracking, equal pupil size, or resting nystagmus. Lebron stated that he “would agree” with the statement that Klatt did not perform the test in accordance with NHTSA standards.

During its cross-examination of Dr. Citek, the defense again made an offer of proof regarding the manner in which Klatt conducted the HGN test in this case. Citek acknowledged that the officer's testimony did not state that he observed equal pupil size and equal tracking before he conducted the HGN test and that if the officer did skip these steps, the test results would not be reliable.

Page acknowledged that the HGN test must be performed according to NHTSA standards to be considered reliable as a field-sobriety test and that he has seen trained police officers administer the test incorrectly. He agreed that Klatt's trial testimony did not correctly describe the clues one observes when administering the HGN test.

Dr. Henson reviewed Klatt's testimony and stated based on that testimony, the test Klatt performed was not in compliance with NHTSA standards.

Based upon this and other corroborative evidence, the Supreme Court of Illinois found that the admission of testimony regarding the HGN test was reversible error and remanded for a new trial.

-CM

Don't Deal In No Kind Of Hearsay: Pennsylvania Court Reverses Order Regarding Prisoner Under Residuum Rule

I have previously posted on this blog about the residuum rule, pursuant to which factual findings at an administrative hearing cannot be exclusively based on hearsay. In Pennsylvania, courts refer to this rule as the "Walker Rule" based upon the opinion of the Commonwealth Court of Pennsylvania in Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa.Cmwlth. 1976), and in Speight v. Department of Corrections, application of this rule led to reversal of an order of the Department of Corrections.

In Speight, James Speight appealed from an order of the Department of Corrections requiring him to reimburse Pennsylvania in the amount of $5,979.85 assessed against his inmate account for costs stemming from his violation of established prison rules necessitating his hospitalization. Specifically,

On March 13, 2008, Speight was issued Misconduct No. A824777 for charges of possession or use of a dangerous or controlled substance, possession of contraband, and tattooing or other forms of self-mutilation. Specifically, he took approximately 10 seizure pills (Depakene) in front of a nurse and corrections officer during the med line on F Block. He had to be taken to the infirmary and then to an outside hospital for treatment due to his actions.

Speight thereafter pleaded guilty to charges connected with this incident and, at an administrative assessment hearing to determine the amount of the costs incurred to be deducted from his account, 

The Department's witness, Leslie Wynn..., a Department accountant, presented three medical bills totaling $5,979.85. She stated that one bill was for the ambulance and the other two were from the hospital for various lab charges and the ICU. The bills were not authenticated by sworn affidavit of the record keeper for the ambulance company or the hospital, nor did any witnesses appear on their behalf.

After the hearing, the hearing examiner assessed Speight's account $5,979.85, prompting his appeal. During that appeal, "[t]he Department d[id] not contend that the medical bills were business records but instead argue[d] that the medical bills were properly admitted into evidence as unobjected-to hearsay." The problem for the Department in this regard was that these medical bills were the only pieces of evidence presented by it, meaning that its case was exclusively based upon hearsay. Accordingly, the Commonwealth Court of Pennsylvania found that the hearing examiner's assessment was not properly supported under the Walker Rule and reversed the hearing examiner's determination.

-CM

Private Eyes, Take 2: Tenth Circuit Case Reveals Different Treatments Of Private Detectives And Governmental Case Agents Under Rule 615

A few weeks ago, I posted an entry about Federal Rule of Evidence 615, which 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.

That post dealt with the recent opinion in United States v. McClendon, 2010 WL 272878 (6th Cir. 2010), in which the Sixth Circuit found, inter alia, that defense counsel's private investigator was not an "essential" person under Rule 615(3). The recent opinion of the Tenth Circuit in United States v. Lott, 2010 WL 529310 (10th Cir. 2010), reveals how courts treat governmental case agents under Rule 615 and raises questions about the Rule's fairness.

In Lott, Johnny Marton Lott sought a certificate of appealability from the Tenth Circuit to challenge the district court's denial of his motion to vacate, set aside, or correct his sentence for various drug-related crimes. Lott alleged, inter alia, that his attorney rendered ineffective assistance by failing to seek sequestration of the government's case agent, Detective Phil Long, during his trial under Federal Rule of Evidence 615. According to the Tenth Circuit,

The Rule requires courts to sequester witnesses at the request of a party, but contains exceptions for “an officer or employee of a party which is not a natural person designated as its representative by its attorney” and “a person whose presence is shown by a party to be essential to the presentation of the party's cause.” Fed.R.Evid 615(2)-(3). Detective Long, as the government's case agent and “the person most knowledgeable about the facts,” Dist. Ct. Op. at 7, would have fallen in either or both of these categories, had Mr. Lott's counsel made a motion under Rule 615. Therefore, counsel's performance on this issue was not deficient, and thus Mr. Lott cannot establish that he received ineffective assistance of counsel.

According to the Notes of Committee on the Judiciary, Senate Report No. 93-1277, which accompanied Rule 615, however, Long likely did not fall under Rule 615(3). That Report indicated that

Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in--he always has the client with him to consult during the trial. The investigative agent's presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty. Yet, it would not seem the Government could often meet the burden under rule 615 of showing that the agent's presence is essential. (emphasis added). Furthermore, it could be dangerous to use the agent as a witness as early in the case as possible, so that he might then help counsel as a nonwitness, since the agent's testimony could be needed in rebuttal. Using another, nonwitness agent from the same investigative agency would not generally meet government counsel's needs.

This problem is solved if it is clear that investigative agents are within the group specified under the second exception made in the rule, for "an officer or employee of a party which is not a natural person designated as its representative by its attorney." It is our understanding that this was the intention of the House committee. It is certainly this committee's construction of the rule. (emphasis added)

In other words, a governmental case agent likely does not qualify under Rule 615(3), but he does qualify under Rule 615(2) because he is the officer or employee of a party which is not a natural person -- the government. Conversely, as the Sixth Circuit found in McClendon, a private investigator hired by defene counsel likely does not qualify under Rule 615(3), and he does not qualify under Rule 615(2) because he is the employee of a natural person.

So, is there  justification for treating a governmental case agent differently from defense counsel's private investigator? According to the aforementioned Notes of Committee on the Judiciary, Senate Report No. 93-1277, the government's situation with its case agent compares with defense counsel's situation with his client. But is that really the case? Presumably, the case agent knows most or all of the details of the prosecution case, from forensic evidence to proposed testimony. Conversely, the defendant knows his proposed testimony and some of the details of his case, but I would argue that he knows much less than a governmental case agent or a private investigator hired by defense counsel. In McClendon, defense counsel argued that his private investigator interviewed several government witnesses and could have provided immediate insight to their cross-examinations if allowed to remain in the courtroom. Could the typical defendant provide a similar service?

-CM  

Book 'Em Danno: First Circuit Finds That Booking Sheet Is Not Covered By Law Enforcement Exception In Rule 803(8)(B)

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) 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, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Rule 803(8)(B) contains what is known as the "law enforcement exception," pursuant to which police reports are inadmissible in a criminal case when offered by the prosecution. But does this exception cover routine, non-adversarial documents, such as booking sheets? That was the question of first impression addressed by the First Circuit in its recent opinion in United States v. Dowdell, 2010 WL 481416 (1st Cir. 2010).

In Dowdell, Darryl Dowdell was convicted of distribution of cocaine base. He thereafter appealed, claiming, inter alia, that the district court erred in admitting a booking sheet that contained the photograph of Dowdell in a blue checkered shirt on which an eyewitness based his identification of him and a textual description of Dowdell's clothing as including a "blue plaid shirt." The district court allowed for the admission of this booking sheet, finding that the law enforcement exception was not meant to encompass routine, non-adversarial documents.

On Dowdell's appeal, the First Circuit noted that this was a matter of first impression for it but that "those circuits to have considered the issue have all found that the limitation in Rule 803(8)(B) does not exclude routine observations that are inherently non-adversarial." The First Circuit then agreed with this courts, concluding that

Drawing a line at routine, non-adversarial documents would best comport with the purpose for which Congress originally approved the exception. The Rule's enactment history indicates that "the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases."...Congress was generally "concerned about prosecutors attempting to prove their cases in chief simply by putting into evidence police officers' reports of their contemporaneous observations of crime."  

The court then found that the booking sheet was admissible under this reading of the law enforcement exception because

The rote recitation of biographical information in a booking sheet ordinarily does not implicate the same potential perception biases that a subjective narrative of an investigation or an alleged offense might. A booking sheet does not recount the work that led to an arrest so much as the mere fact that an arrest occurred. As a result, unlike the investigative reports that lie at the heart of the law enforcement exception, booking sheets raise little concern that suspicion of guilt will function as proof of guilt.  

-CM

Double Waiver: Eleventh Circuit Finds Defendant Waived Rule 609 Issue But That Government Waived The Issue Of Defendant's Waiver

Federal 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 since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless 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. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

When a court does allow impeachment of a criminal defendant under this Rule, the prosecution thereafter usually cross-examines the defendant about his conviction, thereby discrediting his direct testimony. In order to reduce the sting of such cross-examinations, defense attorneys began to elicit such convictions from criminal defendants during direct examinations. This practice greatly diminished, however, in the wake of the opinion in Ohler v. United States, 529 U.S. 753 (2000), in which the Supreme Curt found that a defendant waives his objection to a court's Rule 609 ruling by using such a technique. As the recent opinion of the Eleventh Circuit in United States v. Lewis, 2010 WL 438367 (11th Cir. 2000), makes clear, however, the government itself can waive the issue of the defendant's waiver.

In Lewis, Walter Lewis was convicted of conspiracy to possess with intent to distribute five or more kilograms of cocaine. 

Before trial the prosecution gave notice that, if Lewis chose to testify, it would impeach him with evidence of a thirteen-year-old state conviction for cocaine trafficking. The district court granted the government's motion in limine and admitted the conviction, finding that its probative value as impeachment evidence substantially outweighed its prejudicial impact....After losing the battle to keep out the evidence, Lewis made a tactical decision to lessen its impact by preemptively disclosing the prior conviction. Lewis took the stand and denied any involvement in the drug conspiracy. Asked on direct examination if he had ever been convicted of a felony, Lewis acknowledged that he had pleaded guilty to the state charge after he had been caught carrying some cocaine, which he claimed had been for personal use.

After he was convicted, Lewis appealed, claiming, inter alia, that the district court erred in deeming his conviction admissible for impeachment purposes in the event that he testified at trial. The Eleventh Circuit noted that Lewis waived his objection to the district court's ruling by having his attorney question him about his conviction during direct examination. But the court also found that "the government...itself waived the issue of Lewis's waiver by failing to raise it or even mention Ohler in its brief on appeal." Nonetheless, the Eleventh Circuit found that even if the district court erred, any error was harmless because

Lewis's credibility had already been thoroughly impeached by the testimony of witnesses that they had either sold cocaine to him or bought it from him on numerous occasions, by recorded conversations in which he could be heard discussing drug deals with a government informant, and by his own inability to offer a believable explanation for the large sums of cash police had found him with during two different traffic stops.  

(As a side note, it seems to me that the district court's ruling was almost certainly wrong. The Advisory Committee's Note to Rule 609 indicates that "[a]lthough convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." Considering the similarity between Lewis' prior conviction and the crime charged and the danger that the jury would misuse the prior conviction as propensity character evidence, this almost certainly was not an exceptional case.).

-CM 

No Expertise Required: United States District Court For The District Of Colorado Notes Lack Of Affirmative Obligation On Courts To Exercise Their Rule 706 Powers

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. 

But when should a court appoint an expert witness? And is there any affirmative obligation on courts to exercise their Rule 706 powers? According to the United States District Court for the District of Colorado, the answer to the latter question is "not really."

The opinion in Nagim does not give us any of the facts of the case except for the fact that Ronald Nagim was acting pro se and that he made a motion that could have been construed as a request pursuant to Rule 706 for the court to appoint an “[e]xpert for Plaintiff's Credit Report.” According to the court, however, the problem for the plaintiff was that "Rule 706 provides no explicit instruction as to when an expert should be appointed by the Court." (The court cited Wright & Gold for the proposition that “[w]hile Rule 706 provides no standard for determining when to appoint an expert, the policy [of promoting accurate factfinding] underlying the provision supplies some guidance.”).

The court then noted that "[c]ourts have hesitated to find any affirmative obligation to exercise their Rule 706 power." According to the court, "[i]n the absence of 'complex scientific evidence or complex issues,' the circuit courts have held that a district court does not abuse its discretion in declining to appoint an expert pursuant to Rule 706."

The Court then found that

the issues in the case are not overly complex or scientific. It appears that both the Court and a jury would be able to understand the issues presented by Plaintiff's case without the assistance of a court-appointed expert.

Accordingly, the court denied the plaintiff's motion.

-CM

I Swear: Court Of Appeals Of Minnesota Notes Flexibility Of Courts In Allowing Children To Be Sworn As Witnesses

Like its federal counterpart, Minnesota Rule of Evidence 603 provides that

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.   

And, as the recent opinion of the Court of Appeals of Minnesota in In the Matter of the Welfare of J.J.W., 2010 WL 431490 (Minn.App. 2010), makes clear, courts have been flexible in allowing children to be sworn as a witness.

In J.J.W., J.J.W. was charged with delinquency for second-degree criminal sexual conduct based upon acts that he allegedly committed against his four year-old niece, T.B. At a competency voir dire, T.B.

told the judge her name and age, who did her hair, corrected the judge when he misstated her date of birth, told the judge that she went to a preschool which was not close to her home, that she watched Barack Obama on television, what toys she received for Christmas, and that it snowed the previous day. She also identified the gender of the judge and mother, and corrected the judge when he asked if it would be a lie to say mother was a boy. However, she could not recount what she had eaten for breakfast, whether she watched television, identify her favorite beverage, recall whether she celebrated Christmas, or name the president.

The court found that this was enough to establish T.B.'s competency to testify at trial (and the Court of Appeals later concluded that this was the correct ruling). Subsequently,

[t]he day after the competency hearing, T.B. testified. The district court swore T.B. as a witness based on the following exchange: “[T.B.], you have just the cutest smile, [T.B.]. You going to tell us the truth today. Yes? All right. The record should reflect that she shook her head yes.” In the previous voir dire establishing competency, the district court and T.B. had discussed the difference between telling lies and truths, and T.B. had identified statements by the district court about the judge's gender and mother's gender as false.

T.B. thereafter testified against J.J.W., who was eventually adjudicated as delinquent. J.J.W. then appealed, claiming, inter alia, that the judge did not properly administer an oath or affirmation to T.B. in compliance with Minnesota Rule of Evidence 603. The Court of Appeals of Minnesota noted that in its previous opinion in State v. Morrison, 437 N.W.2d 422 (Minn.App. 1990), it found the procedure proper when "the child witness 'indicated she knew what a lie was, what the truth was, and nodded her head when asked to promise to tell the truth.'"   

The court the found that "[t]he administration of the oath" in the case before it

invoked the importance of honesty on the witness stand. The swearing-in was accomplished in a manner similar to that in Morrison: the district court asked if the witness would tell the truth and the witness promptly nodded her head in affirmance.

J.J.W. argued, however, that "[e]ven if the affirmation complied with Minnesota law,...United States Supreme Court jurisprudence regarding the Confrontation Clause of the Sixth Amendment bars her testimony." The court noted, though, that the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), did not address the validity of oaths under Rule 603 and found that "[p]ost-Crawford federal cases decided under a federal rule concerning oaths, which is similar to the Minnesota rule, have been flexible in allowing children to be sworn as a witness." Based upon this flexibility, the court had no problem upholding the procedure used by the lower court. 

-CM

Impeachable Offenses: Opinion Reveals Differences Between Federal And Indiana Rules Of Evidence 609(a)(1)

Federal Rule of Evidence 609(a) provides that:

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

As the recent opinion of the Court of Appeals of Indiana in Perry v. State, 2010 WL 415281 (Ind.App. 2010), makes clear, Indiana Rule of Evidence 609(a) is both narrower and broader than its federal counterpart.

In Perry, Rodney Perry was convicted of dealing in cocaine and possession of cocaine. Those convictions came after Perry participated in a drug deal with Nicholas Riedman, a confidential informant. At trial, Riedman testified against Perry, who sought to impeach him through evidence of his prior conviction for possession of marijuana. The trial court, however, precluded such impeachment, and this ruling formed the partial basis for Perry's appeal.

In considering that appeal, the Court of Appeals of Indiana noted that the issue was governed by Indiana Rule of Evidence 609(a), which provides that:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime shall be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement.

Under this Rule, the court easily concluded that Riedman's conviction was inadmissible for impeachment purposes because possession of marijuana is neither an enumerated crime under Indiana Rule of Evidence 609(a)(1) nor a crime involving dishonesty or false statement under Indiana Rule of Evidence 609(a)(2).

As noted above, Perry reveals that Indiana Rule of Evidence 609(a) is both narrower and broader than its federal counterpart. It is broader because it allows for the admission of even misdemeanor convictions for crimes such as robbery and burglary while its federal counterpart only allows for the admission of felony convictions for these crimes (unless they involve dishonesty or false statement). Conversely, it is narrower because it does not allow for the admission of felony convictions for crimes such as larceny or drug trafficking while its federal counterpart could allow for their admission.

(As a side note, I find it odd that Indiana Rule of Evidence 609(a)(1) covers perjury while Indiana Rule of Evidence 609(a)(2) covers "a crime involving dishonesty or false statement." Isn't that overkill?)

-CM

Versions Of Violence: Court Of Appeals Of Tennessee Refuses To Read Violence Exception Into Rule 606(b)

Tennessee Rule of Evidence 606(b) provides 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 any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

I have written previously about how Minnesota added an exception to its version of Rule 606(b) which permits jury impeachment "as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict." In Gaines v. Tenney, 2010 WL 199628 (Tenn.Ct.App. 2010), a trial court had read a similar violence exception into Tennessee Rule of Evidence 606(b), but the Court of Appeals of Tennessee reversed.

In Tenney, 

a negligence action arising from an automobile accident, the original trial resulted in a jury verdict in the amount of $10,000 for the plaintiff. The plaintiff then moved for a new trial, alleging juror misconduct. After reviewing a juror's deposition testimony, the trial court ordered a new trial. A second jury trial and verdict resulted in a $30,000 judgment for the plaintiff. Following the second judgment, the defendants timely appealed the trial court's order for a new trial.

The trial court ordered the new trial based upon the allegations of juror Janet Markley, who alleged that

One of the other jurors became quite verbally hostile, in that, he was concerned about the time frame that we would be deliberating or discussing or talking all evening, and possibly have to come back another day to deliberate. And he was cussing and swearing at me, and at one point reached across-or leaned across the table at me and then threw paper at me.

When Markley was questioned about how the other juror's (mis)conduct affected her, the following exchange took place:

A. I was alarmed, shocked, and as the timing continued-I mean, he was the most verbal, but the others-there were several others that were obviously quite angry at me, again, because of the time factor, and I wanted to discuss and deliberate. And I was somewhat fearful.

Q. Did the threats or the actions of the juror that you described affect whether you agreed or disagreed with the final verdict in the case?

A. Yes.

Q. How so?

A. I guess at that point I was feeling so overwhelmed, and not knowing what to do or who to discuss it with, and seeing that it was becoming more hostile, that I just decided to give in and go along with what one or two people wanted.

Q. Did you fear for your safety if you failed to acquiesce?

A. Yes.

Q. After the verdict was rendered, did you have any fear that you would be subjected to violence if you had not acquiesced to the verdict?

A. Yes.

Q. Will you tell us about that?

A. Again, just that this man was so hostile, the next day as I was out driving around in Sevierville, I kept looking in my rear-view mirror kind of looking around thinking, you know, that he was going to be there or come up and-I don't know what he was going to do, but I just-I was afraid I was going to run into him and something would happen not good.

The trial court found that it could consider these allegations despite Tennessee Rule of Evidence 606(b) because

The attack upon Ms. Markley subverted the jury's role to deliberate and fully evaluate the evidence and the chilling effect that the juror's actions likely had on the other members of the jury panel cannot be ignored. It is very likely that the other jurors were intimidated or placed in fear after the violent encounter. This unquestionably resulted in there being no free exchange of ideas or evaluation of the evidence.

But the Court of Appeals of Tennessee disagreed and reversed, finding that

The trial court was understandably concerned to find that one juror had been intimidated by another and had perceived a threat of violence. Responding to this concern, the trial court concluded that intra-jury intimidation had “resulted in there being no free exchange of ideas or evaluation of the evidence.” However, Rule 606(b) was actually designed to preserve the free exchange of ideas during deliberations....Rule 606(b) strikes a balance between public policies of “protect[ing] the litigants from verdicts tainted by extraneous prejudicial information or outside influence” and simultaneously “insur[ing] that jurors will not be guarded in their deliberations for fear of later scrutiny by others.”...An extension of the exceptions allowed under Rule 606(b) is beyond the scope of this Court's review, and moreover, would open the sanctity of the jury deliberation process to unwarranted post-trial investigation.  

So, what do readers think? If courts were to add violence exceptions to anti-jury impeachment rules, would it increase or decrease the free exchange of ideas?

-CM

Mourning the Loss of Loyola Los Angeles Associate Dean and Co-EvidenceProf Blogger David Leonard

I am deeply saddened to report that my co-EvidenceProf Blogger David P. Leonard has passed away.  David was one of the first people whom I contacted when I was starting the blog, and he was extremely helpful in giving me advice and encouragement. The launching of this blog was also simultaneous with the launching of my teaching career, and David gave me extremely useful information about working with students and how to be an effective professor in general. David was one of the best Evidence professors and scholars in the world and an even better person. I send my warmest regards to his family at this time.

You can read the announcement from Loyola Law School Los Angeles regarding his passing by clicking here or reading below:

Professor David P. Leonard, Associate Dean for Research and longtime member of the faculty at Loyola Law School, passed away on the evening of Wednesday, Feb. 10, due to complications related to cancer. Funeral services will be at 11 a.m. on Sunday, Feb. 14, at Hillside Memorial Park, 6001 W. Centinela Ave., Los Angeles, CA 90045. 

Leonard joined the Loyola faculty in 1990 and was appointed Associate Dean for Research in 2008. He was an immensely popular professor with students, faculty and staff alike. The graduating class of 2009 presented him with the Excellence in Teaching Award. Leonard served as a model of compassion and professionalism. His efforts as Associate Dean for Research helped raise Loyola’s scholarly profile. And he did all this with a constant smile as he battled cancer.

“David was not only a colleague but also a dear friend,” said Dean Victor Gold, who co-authored Evidence: A Structured Approach with Leonard. “He was kind, funny, compassionate and courageous.  He loved teaching and was dedicated to his students. We have suffered a great loss."

At Loyola, Leonard taught the Advanced Evidence Seminar, Evidence and Torts. In addition, he was a prolific scholar. His books include The New Wigmore: A Treatise on Evidence: Evidence of Other Misconduct and Similar Events and Evidence Law: A Student’s Guide to the Law of Evidence as Applied in American Trials. His many law review articles appeared in the U.C. Davis Law Review, the North Carolina Law Review, the Southern California Law Review, the University of Colorado Law Review, the Hastings Law Journal and the Indiana Law Journal, among others.

Before joining the Loyola faculty, Leonard was a member of the faculty at the Indiana University School of Law and a lecturer-in-law at UCLA School of Law, where he received his J.D. Leonard received his bachelor’s degree with highest honors from the University of California, San Diego.

Leonard, who was 57, is survived by his wife, Susan, and sons, Adam and Matthew.

As news of Leonard’s passing traveled around campus, impromptu eulogies sprung up on Internet status messages like that of alumnus Greg Strausberg ’09, a Tax LL.M. student who studied evidence under Leonard in 2007. “He took it personally upon himself to take care of not only his current students, but all of his past students, staff, faculty and administration at Loyola. He will be, and already is, sorely missed by all of generations of his students," said Strausberg.

-CM

Liar, Liar: Court Of Appeals Notes That Polygraph Related Statements Can Be Admitted Even If Polygraph Results Cannot

It is well established (except in New Mexico) that the results of a polygraph exam are inadmissible at trial, barring a stipulation by both sides that such results will be admissible before the test is taken. But what about statements made by an individual in connection with a polygraph exam? For instance, what happens if an individual fails a polygraph exam and thereafter makes incriminatory statements? Should those statements also be deemed inadmissible? According to the recent opinion of the Court of Appeals of Virginia in Lee v. Southside Virginia Training Center, 2010 WL 342592 (Va.App. 2010), the answer is "no."

In Lee, 

A trainee co-worker saw [Josephine] Lee physically abuse several residents on October 10 and 11, 2007, and, apparently on October 12, reported the incidents. An investigation opened. Lee denied any incidents of abuse and had "no objection" to taking a polygraph exam. After the test, and being advised of her failure, she signed a written statement acknowledging that she had, in fact, abused at least one resident. On December 27, 2007, Lee was given a written notice advising her of the termination of her employment with Southside Virginia Training Center. This notice further advised Lee of her right to appeal the decision pursuant to the state grievance procedure. Lee appealed. The Department of Employment Dispute Resolution appointed a hearing officer to conduct a grievance hearing in Lee's case.  

At the hearing, "Lee's written admission she had abused at least one resident was admitted into evidence;" "[t]he polygraph examiner did not testify, and neither the results nor an analysis of the polygraph examination were introduced in evidence." The hearing officer subsequently determined that the abuse occurred and that the termination was justified, prompting Lee's appeal.

Lee's first claim was that two Virginia statutes prohibit the admission of polygraph exam results, but the Court of Appeals of Virginia found 

that neither statute prohibits the use of a polygraph examination as an investigative tool involving actions by state employees. Rather the "analysis" of any polygraph test is inadmissible in state grievance proceedings. As noted, here neither the testimony of the examiner nor the results or analysis of the examination was offered in evidence before the hearing officer.

Lee's second claim was that "'it logically follows...' that Lee's written statement, which was produced subsequent to the examination, was inadmissible 'like the Fourth Amendment's exclusionary rule....'" The court again disagreed, finding that "the remedy of exclusion for evidence obtained in violation of the constitution applies only to criminal cases, not to civil cases."  Moreover, the court found that

Even in criminal cases, where the analysis or results of polygraph examinations are uniformly inadmissible, our Supreme Court has drawn a distinction between the analysis or results of a polygraph examination and statements made to a polygraph operator....Other jurisdictions to consider this question have reached similar conclusions.  

-CM

48 Hours: Supreme Court Of South Dakota Addresses 18 Day Detention Of Arrestee Without Probable Cause Hearing

Pursuant to the Supreme Court's opinion in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), individuals arrested without a warrant must have a judicial probable cause determination within 48 hours after the arrest unless a bona fide emergency or other extraordinary circumstance exists. But what is the remedy for violations of the principle? In the situation where a defendant confesses or make other incriminating statements during an unlawful detention, the court is faced with the decision of whether to suppress the confession, statements, or evidence, and courts across the country have reached inconsistent results. But what happens when potentially exculpatory evidence is lost as a result of the delay? That was the issue of first impression faced by the Supreme Court of South Dakota in its recent opinion in State v. Larson, 776 N.W.2d 254 (S.D. 2009).

In Larson, Steven Carl Larson was arrested on July 24, 2008 without a warrant and charged with disorderly conduct and simple assault based upon alleged acts that he committed against Linette Rainwater. Larson claimed that he was acting in self-defense and asked that his injuries be photographed, but the arresting officer did not comply. 

After being booked, defendant was taken to the Minnehaha County Jail in Sioux Falls. There, defendant again requested that his injuries be documented, specifically asking that photographs be taken. None were taken. Defendant was told to sign up for sick call. He signed up, but received no response to his request. He then made written requests that his injuries be documented. The first, dated July 31, 2008, stated, “Please! I'm on hold from Moody Co. I need picture taken of bite mark/bruise incurred during alleged assault. Need A.S.A.P. before evidence disappears! Thank you.” This request was answered on August 1, 2008, with, “Contact your attorney for any evidentiary question or request you may have.”

On August 3, 2008, Defendant, a military veteran, submitted another inmate request form, stating, “I have also been deprived of my heart, P.T.S.D. (post traumatic stress disorder) meds, as well as for my hiatal hernia. I have to sick call twice to no avail. Please! I have been incarcerated for 11 days now and I still have never been arraigned, therefore I do not have an attorney to contact. I am 100% permanently and totally disabled. I do not have any money for a surety bond. Contact Moody Co. please and ask them for a PR Bond on my behalf. I have no other recourse open to me. Also, I was never given my rights!” This request was answered on August 4, 2008, with, “You are a Moody County prisoner your bond is $1,000 cash/surety. The medical staff is aware and signed you up for sick call.”

Defendant submitted a grievance form, stating, “Moody County needs to be made aware of my inmate request as of 8-4-08. I do not have an attorney because I have been given no arraignment. If you refuse to contact Moody Co. on my behalf, then Minnehaha Co. will also be named in the upcoming lawsuit on violating my constitutional civil rights!” No response was given to this request.

Defendant remained in jail for 18 days.

After Larson was convicted of simple assault, he appealed, claiming, inter alia, that the trial court should have dismissed the action on due process grounds because he was not brought before a committing magistrate without unreasonable delay. The Supreme Court of South Dakota noted that the United States Supreme Court has not yet stated what remedy is available for violations of McLaughlin's 24 hour rule but noted that "a review of the decisions dealing with violations of the 48-hour rule reveal[ed] no case where charges were dismissed." That said, the court also noted that

no case was as egregious as this one. Our research yields no modern case where a person arrested without a warrant was held in jail for anywhere near 18 days without a probable cause determination. On the contrary, most cases involve only hours of prolonged detention and in some instances a few additional days.

The court also found that the case before it was unique because most cases with violations of the 24 hour rule involve defendants making incriminatory statements, not defendants being unable to obtain potentially exculpatory evidence. So, what did the court do? Well, according to the court,

Here, we have no confession or evidence gained after the 48 hours elapsed. Rather, we have potentially exculpatory evidence lost as a result of the delay. What remedy, then, would be available when suppression is not an option? To balance the societal interest in punishing criminal behavior and a defendant's right to due process, we conclude that dismissal would be warranted “in cases of egregious prosecutorial misconduct or on a showing of prejudice (or a substantial threat thereof), or ‘irremediable harm’ to the defendant's opportunity to obtain a fair trial."

The court thus remanded for a determination of whether there was a bona fide emergency or other extraordinary circumstance justifying the unreasonable delay in this case and, if so, whether Larson's opportunity to obtain a fair trial was prejudiced by the delay.

-CM

Residual Value: Nevada Case Reveals Potential Usefulness Of Residual Hearsay Exception To Gender And Race Discrimination Plaintiffs

Federal Rule of Evidence 807 provides an exception to the rule against hearsay for

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

Rule 807 is a rarely applied rule of last resort upon which litigants can try to rely if all other hearsay exceptions don't quite cover statements that they seek to admit. As the recent opinion of the United States District Court for the District of Nevada in Taylor v. Fairfield Resorts, Inc./Wyndham, 2009 WL 5195973 (D. Nev. 2009), makes clear, however, it could be a useful rule for gender and race discrimination plaintiffs who can't point to smoking guns and who can't find employees willing to testify.

In Taylor, Fairfield hired Shari Taylor, an African-American woman,

as a timeshare sales representative in August 2005....In April 2006, Fairfield transferred her to the Training Department....It was allegedly company policy to promote telemarketers from the Training Department to the Referral Department upon the completion of certain performance requirements....Taylor allege[d] that although she met these requirements in May 2006, she was not promoted to the Referral Department, while a Caucasian-American male who did not meet the requirements was promoted....Based on this, Taylor filed a complaint with the Nevada Equal Rights Commission (“NERC”) on July 24, 2006....Taylor claim[ed] that she was immediately placed on suspension in retaliation for her complaint to the NERC....Once her suspension was lifted, Fairfield placed Taylor in the Referral Department, but, according to Taylor, Fairfield further retaliated against her by both failing to provide her the training necessary to her professional success and creating a hostile work environment, causing Taylor to resign....Taylor claim[ed] this was a “constructive discharge” in retaliation for her NERC complaint.

Taylor thereafter brought retaliation, hostile work environment, and race and gender discrimination claims against Fairfield. Taylor's problem, though, was that she didn't have a "smoking gun" in that she didn't have any specific act or statement by her superiors at Fairfield clearly evincing discrimination or retaliation. Thus, the court ended up granting Fairfield's motion for summary judgment dismissing Taylor's retaliation and hostile work environment claims. What Taylor did have, however, was the deposition testimony of her former co-worker, Rochel Collins, including the following exchange:

Q. During your tenure at Fairfield did you observe discrimination based on sex, meaning gender, or Shari Renee Taylor?

A. Yes.

Mr. Rempfer: Objection. Vague....

A. Because I saw that your leads were like way, way older than ours, but you were expected to produce at even a higher level than we were, which I couldn't understand how you could produce an antiquated lead at a greater rate than a more recent client connection....I noticed they did that to a lot of females, black females, in your group of females. It was such a higher expectation of antiquated leads.

Q Did you observe discrimination based on race, on Shari R. Taylor in regards to continued telemarketing?

Mr. Rempfer: Objection. Legal conclusion....

A. I would say yes, because there wasn't that many black females. Even the ones that came in, they were watched with like-real quick, until they had maybe just you and maybe the other ones and that was it.

Collins did not testify at the hearing on Fairfield's motion for summary judgment, but the court found

that the residual hearsay exception applies in this situation. The evidence adduced concerns a material fact, is more probative on the relevant point of race and gender discrimination than other evidence Plaintiff has been able to procure, and contains circumstantial guarantees of trustworthiness. Defendant has not claimed that the transcript is false-which it surely would claim if it believed this to be the case-but only that the transcript is not authenticated by the court reporter. Plaintiff was present at the deposition, and she participated in the questioning as a pro se litigant. She has personal knowledge of the statements made. This is not a recollection of offhand comments or a casual conversation, but of a deposition in a federal lawsuit. Furthermore, she did not attempt to recreate the conversation from scratch, but only affirmed what the reporter has reported by attaching the relevant portions of the transcript. Her affirmation of the statements made at the deposition as shown in the transcript is additionally guaranteed to be trustworthy by the fact that the transcript is in the format with which this Court is familiar and does not appear to have been fabricated. The caption of the case and the names of the representatives, deponent, and court reporter are on the cover sheet, as well as the place, time, and date of the deposition. There is no indication at all that this transcript is not authentic. Finally, it would not serve the purposes of the rules or the interests of justice to exclude this extremely reliable hearsay evidence, especially as against a pro se plaintiff.

Based upon this testimony, the court was able to deny Fairfield's motion for summary judgment to the extent that it sought dismissal of Taylor's race and gender discrimination claims. And looking at the facts of Taylor, it seems like race and gender discrimination plaintiffs in similar situations might also be able to rely upon the residual hearsay exception.

The "similar situation" contains two elements: (1) the plaintiff does not have a "smoking gun," and (2) another employee has made statements accusing the defendant-employer of discrimination but is not willing to testify. In that case, as inTaylor, the other employee's statements would be offered as evidence of a material fact -- discrimination -- and would be more probative on the point for which they are offered than any other evidence which the proponent could procure through reasonable efforts. The only question, then, is whether the statements would have equivalent circumstantial guarantees of trustworthiness to statements admitted under other hearsay exceptions because, if they did, as in Taylor, their admission would not violate the interests of justice.

Now, if, as in Taylor, the statements were made under oath, this should not be a problem. But what if the statements were offhand comments made to a discrimination plaintiff? Could the plaintiff then testify regarding these statements? I think that the answer might be "yes." Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Now, obviously, this exception is not triggered when an employee makes statements accusing her employer of discrimination. But such a statement is clearly a statement against interest to the extent that the employee could lose her job by making such statements. I thus think that a statement by an employee that her employer discriminates is no less trustworthy than a statement by an individual that he robbed a bank (and, indeed, it might be even more trustworthy because we have less reason to doubt the employee than the self-professed bank robber).

-CM