EvidenceProf Blog

Dead Man's Chest, Take 3: Court Of Appeals Of Minnesota Opinion Makes Clear That Elimination Of Dead Man's Statute Does Not Eliminate Hearsay Concerns

As I have previously noted on this blog,

Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate....The theory behind these statutes is that the interested person has reason to fabricate his testimony, and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury. 

As I have also previously noted on this blog, most states have repealed their Dead Man's Statutes. As the recent opinion of the Court of Appeals of Minnesota in Bronczyk v. Bronczyk, 2010 WL 1029738 (Minn.App. 2010), makes clear, however, the repeal of a Dead Man's Statute merely means that the person who talked to the now deceased or incapacitated person is no longer incompetent to testify; it does not mean that the rule against hearsay is satisfied.

In Bronczyk,

Anthony J. Bronczyk, Sr. (decedent) commenced a lawsuit...seeking a judgment determining that respondents, six of decedent's children, had no right, title, or interest in certain real estate and rescinding a quit claim deed that purportedly conveyed the real estate from decedent and his wife to respondents. The complaint state[d]:

In June of 1995, [respondent] Katherine J. Bronczyk, one of [decedent's] daughters, caused to be prepared a Quit Claim Deed from [decedent] to [respondents] as grantees ... and on June 28, 1995, fraudulently and intentionally caused signatures to be placed thereon and the instrument notarized as though it were the signatures of [decedent] and [his] then wife, Katherine R. Bronczyk, who is now deceased, without the presence of either [decedent] or [his] wife at the purported time of acknowledgement of the deed, without consent and with intent to defraud [decedent].

The complaint further alleged that decedent never signed the deed, and that if he did, such signature could only have been the result of his daughter, respondent Katherine J. Bronczyk, taking advantage of decedent's vulnerability and "fraudulently inducing [his] signature by falsely and fraudulently representing to [decedent] that the deed was for some other purpose." The complaint asserted that decedent did not become aware of the deed or the alleged fraud until October 2001. Decedent passed away in either July or August 2007 while the litigation was pending. Prior to his death, decedent assigned his interest in this lawsuit to his son, appellant Thomas A. Bronczyk.

Thomas tried to prove the above facts through an affidavit prepared by the decedent about a year before he died as well as through his own testimony regarding conversations he had with the decedent in which the decedent denied signing the deed. The trial court, however, found the affidavit and testimony inadmissible, prompting Thomas' appeal. In that appeal, Thomas claimed that the affidavit was admissible under Minnesota Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay for

a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

The Court of Appeals of Minnesota correctly held, however, that the decedent did not prepare his affidavit while believing his death to be imminent, rendering this dying declaration exception inapplicable.

With regard to his proposed testimony, Thomas claimed that it should have been deemed admissible because Minnesota dispensed with its Dead Man's Statute by passing Minnesota Rule of Evidence 617, which provides that

A witness is not precluded from giving evidence of or concerning any conversations with, or admissions of a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof.

The Court of Appeals of Minnesota, however, again correctly concluded that this Rule merely meant that Thomas was no longer incompetent to testify regarding the decedent's statements. The court noted that Thomas still had to prove that the decedent's statement met some applicable exception to the rule against hearsay. Because Thomas did not point to any applicable exception, the trial court properly excluded his testimony.

-CM

Judge, Jury, And interrogator, Take 3: Seventh Circuit Doesn't Reverse Despite Improper Judicial Interrogation

Federal Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Conversely, Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party," and Federal Rule of Evidence 614(c) provides that

Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let's consider the recent opinion of the Seventh Circuit in United States v. Barnhart, 2010 WL 1136522 (7th Cir. 2010).

In Barnhart, Gregory Barnhart was convicted of two counts of wire fraud-one involving a fraud on a former employer and the other involving a fraudulent scheme to obtain a $500,000 loan from Sun Trust Bank secured by E.I. du Pont de Nemours abd Company. After he was convicted, Barnhart appealed, claiming, inter alia, "that the district judge's questioning of witnesses was highly prejudicial and either overtly or subtly conveyed a bias in favor of the government." And the Seventh Circuit agreed with him, noting that, inter alia,

the court engaged in a quasi-cross-examination of a defense witness by using leading questions in a way that largely dismissed his testimoiny;

several questions from the judge served to emphasize uncontested facts that were highly unfavorable to the defense; and

interrogated a witness for the prosecution in a way that bolstered his credibility and took the wind out of the sails of the defense attorney's cross-examination.

According to the Seventh Circuit,

Considered as a whole and in light of the entire trial, the judge's questioning of the witnesses went beyond mere clarification and instead gave the impression that the judge disbelieved Barnhart's defense. Trial judges need not be silent spectators, but they are neutral arbiters; the quantity and quality of the judge's questions in this case conveyed an improper skepticism about Barnhart's defense.

The problem for Barnhart, however, was that he did not object to the judge's questions, meaning that the Seventh Circuit could not reverse for abuse of discretion but instead had to find plain error. Because it could not find plain error, the Seventh Circuit was not able to reverse. Conversely, if the district judge testified, the Seventh Circuit could have reversed if it merely found that the trial judge abused his discretion.

Does this disntiction make sense? The Advisory Committee Note to Federal Rule of Evidence 605 indicates that:

The rule provides an "automatic" objection. To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector.

But what about the situation in Barnhart? If defense counsel objected to the district judge's questions, wouldn't the judge have felt that his integorty was being attacked? I can't think of any good reason why an objection to judicial interrogation is required but an objection to judicial testimony is not.

-CM

A Foolish Consistency, Take 2: New Jersey Court Finds No Error With Admission Of Prior Consistent Statement Before Charge Of Recent Fabrication

Like Federal Rule of Evidence 801(d)(1)(B), New Jersey Rule of Evidence 803(a)(2) allows for the admission of:

A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement...is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.

In other words, an attorney is allowed to admit a witness' prior consistent statement after opposing counsel has charged the witness with recent fabrication or improper influence or motive to rebut that charge. According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Hay, 2010 WL 1028048 (N.J.Super.A.D. 2010), however, there is no unfair prejudice if an attorney is allowed to admit a witness' prior consistent statement before opposing counsel has made such a charge. I disagree.

In Hay, Andre T. Hay was convicted of second-degree aggravated assault, third-degree terroristic threats, fourth-degree unlawful possession of a weapon, and third-degree possession of a weapon for an unlawful purpose. These convicted stemmed out of acts that Hay allegedly committed against the mother of his children, who later that day reported these acts to Dr. Randall Lewis at the Union County Community Hospital.

At Hay's trial, Dr. Lewis testified concerning what the alleged victim told him. The alleged victim thereafter testified concerning the acts Hay allegedly committed against her. Subsequently, defense counsel's cross-examination of the alleged victim "suggested that the victim did not seek medical assistance or speak with the police until a considerable time after the incident and that she later approached the prosecutor to have the charges dropped before ultimately deciding to prosecute the case."  

After Hay was convicted, he appealed, claiming, inter alia, that Dr. Lewis' testimony concerning the alleged victim's statements constituted inadmissible hearsay. The Superior Court of New Jersey, Appellate Division disagreed, finding that the alleged victim's statements were admissible under New Jersey Rule of Evidence 803(c)(4) as statements made for purposes of medical treatment or diagnosis. If the court stopped with that holding, it would not have committed error.

The court, however, went on to find that it was "satisfied that the statement was admissible as a prior consistent statement of a witness testifying at trial." The court noted that defense counsel did not charge the alleged victim with recent fabrication until after Dr. Lewis had testified concerning her prior consistent statement but found that "[n]o prejudice arose simply from the fact that Dr. Lewis testified to this consistent statement before defense counsel raised the issue of recent fabrication when he thereafter cross-examined the victim." I disagree.

I see this situation as the converse to the situation where a judge deems a criminal defendant's prior convictions admissible against him for impeachment purposes. Under these circumstances, if the defendant chooses not to testify, he cannot appeal the judge's ruling because, inter alia, if he testified, the prosecution could have chosen not to impeach him.

Now, let's look at Hay. Sure, defense counsel charged the alleged victim with recent fabrication. But would he have done so if the court had not already allowed for the admission of her prior consistent statements to Dr. Lewis? In other words, in Hay, defense counsel risked nothing by charging the victim with recent fabrication because her prior consistent statements had already been admitted. But would he have taken the same risk if the cat were not already out of the bag? That's a question we can't answer, but we can answer that this is not the situation envisioned by the prior consistent statement rule.

-CM

Simply The Best: Court Of Appeals Of Georgia Notes That Satisfying Best Evidence Rule Doesn't Satisfy Rule Against Hearsay

Similar to Federal Rule of Evidence 1002, OGCA Section 24-5-4(a), Georgia's Best Evidence Rule, provides that "[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." As the recent opinion of the Court of Appeals of Georgia in McKinley v. State, 2010 WL 1136202 (Ga.App. 2010), makes clear, however, just because a party satisfies the Best Evidence Rule does not mean that it satisfies the rule against hearsay.

In McKinley, Marcus McKinley was convicted of robbery by intimidation and hijacking a motor vehicle. McKinley allegedly committed these crimes on June 18, 2007, and his alibi was that at the time of the crimes, he was at the Dekalb County Recorder's Court resolving outstanding traffic citations. In rebuttal, the State introduced, as State's Exhibits 21 and 22, copies of two of the traffic citations, certified by the clerk of the DeKalb County Recorder's Court, that were stamped "FTA," with "FTA" meaning failure to appear.

The State claimed that these copies were admissible as copies of exemplifications of public records transmitted by facsimile. The trial court agreed, but the Court of Appeals of Georgia later reversed, finding that this showing merely satisfied the Best Evidence Rule and not the rule against hearsay. According to the appellate court,

In this case, the State introduced Exhibits 21 and 22 to prove the truth of the statement of the unidentified person who stamped "FTA" on the citations (presumably the clerk of the DeKalb County Recorder's Court) that McKinley failed to appear for his court date. Despite McKinley's strenuous objection to the documents as hearsay, the State argued only the issue of authentication and never identified any exception to the rule prohibiting hearsay that would authorize admitting the documents. The trial court then admitted the exhibits "pursuant to the provisions of OCGA Section 24-5-20" without any determination that they fell within an exception to the rule prohibiting the use of hearsay, saying “I think [McKinley's] other objections go to weight rather than threshold admissibility." This was error.

Now, the court did note that the copies of the traffic citations likely could have been admissible under the business records (I would think public records) exception to the rule against hearsay, but it found that the problem for the State under this exception was that the State did not call any witnesses to lay the proper foundation for admission of these citations. 

-CM

Take Out Some Insurance: Court Of Appeals Of Kentucky Notes Exceptions To Rule 411 But Finds Them Inapplicable In Car Crash Appeal

Like its federal counterpart, Kentucky Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.  

As the recent opinion of the Court of Appeals of Kentucky in Akers v. Cross, 2010 WL 1133083 (Ky.App. 2010), makes clear, there are exceptions to this rule although the court ultimately found that they did not apply in the case before it.

In Cross,

an automobile accident...occurred on January 5, 2004, between vehicles operated by Jerry Akers and...Rose Mary Gensler Cross. The Akers named Cross and State Farm (in its role as the Akers' underinsured carrier) as defendants, and both Cross and State Farm retained counsel and filed answers. Coincidentally, State Farm was also the general liability carrier for Cross.

During proceedings connected to the accident, State Farm never chose to preserve its subrogation rights against Cross by offering to pay the Akers the liability limits of Cross' policy; however, State Farm did attend and elicit some testimony at the deposition of one of Akers' experts. After this deposition,

State Farm moved the trial court to bifurcate the Akers' [underinsured motorist] claim from its automobile negligence claim, in order to excuse it from participating at the trial and prohibit the Akers from identifying it as a party before the jury. The Akers opposed State Farm's motion, arguing that State Farm must be identified to the jury because it chose to participate in [the expert]'s deposition and, thus, actively participated in the proceedings....[T]he trial court granted State Farm's motion. The Akers moved the trial court to reconsider, and the trial court denied their motion....

After trial, the jury found in favor of Cross, Akers appealed, claiming that State Farm should have been identified to the jury. The Court of Appeals of Kentucky noted that evidence of liability insurance is generally admissible to show culpability under Kentucky Rule of Evidence 411. The court noted, however, that there are several exceptions to this rule, including two which might have applied in the case before it:

The first exception holds that where an uninsured or underinsured motorist carrier with a direct contractual obligation to the plaintiff elects to participate actively in the trial, it may not do so anonymously; rather, it must reveal its identity to the jury....The second exception holds that, in the absence of “active participation” in defending the action, that same carrier must still reveal its identity to the jury if it chose to preserve its subrogation rights....This result is mandated even if the carrier only participated in discovery and pretrial motions.

The court then quickly found that the second exception did not apply and found that the first exception did not apply because

neither a representative nor counsel for State Farm attended the trial. And, we do not construe a few questions by State Farm at one deposition as actively participating in the proceedings. Moreover, the Akers have failed to produce any authority demonstrating that this exception should encompass State Farm's very limited participation.

-CM

Ten Years Have Got Behind You: Supreme Court of Mississippi Affirms Conviction Because Defense Counsel Fails To Cite Rule 609(b)

Like its federal counterpart, Mississippi Rule of Evidence 609 provides, inter alia, that a criminal defendant can be impeached through his prior felony convictions not involving dishonesty or false statement if their probative value outweighs their prejudicial effect. Moreover, it is well established that a criminal defendant cannot appeal a trial court's ruling deeming his prior convictions admissible to impeach him unless he actually takes the witness stand and subjects himself to impeachment (or at least proffers his proposed testimony). Defense counsel in these cases thus faces a difficult decision. Does he have his client take the witness stand, knowing that his prior convictions could lead to his present conviction, but also knowing that he will be able to appeal the present conviction? Or does he have his client avoid taking the witness stand, hoping that this will lead to his client winning at trial but knowing that if he loses, no appeal can follow? It is tough to fault defense counsel for making either of these choices, but it is apparently easier to fault defense counsel for Ivan McClellan based upon the recent opinion of the Supreme Court of Mississippi in McClellan v. State, 2010 WL 1077322 (Miss. 2010).

In McClellan, Ivan Russell McClellan was convicted of possessing two methamphetamine precursors and possessing 250 dosage units of pseudoephedrine. Previously,  McClellan was convicted of burglary on July 3, 1996, and received a three-year sentence. At the close of the prosecution's case in McClellan, the trial judge ruled that this prior conviction would be admissible to impeach McClellan should he testify on his own behalf, finding that the probative value of this conviction outweighed any prejudicial effect. McClellan thereafter did not testify.

After he was convicted, McClellan appealed, claiming, inter alia, that the trial court erred in deeming his prior convcition admissible for impeachment purposes. The Supreme Court of Mississippi, however, found that it did not need to address this issue because

Where a criminal defendant chooses not to testify after the trial court has ruled that his or her prior convictions may be used as impeachment evidence, the defendant is procedurally barred from arguing on appeal that such a ruling prevented his putting on a defense or had a "chilling effect" on his right to testify if he fails to proffer his proposed testimony...."At the very least, a defendant wishing to present the point on appeal, absent having taken the witness stand himself, must preserve for the record substantial and detailed evidence of the testimony he would have given so that we may gauge its importance to his defense."...Because McClellan failed to proffer his testimony, he is procedurally barred from arguing that the trial court's ruling which would have allowed the State to impeach him with his prior burglary conviction prevented his putting on a defense.

In a footnote, though, the Mississippi Supremes deduced that McClellan's conviction was more than ten years old at the time of his trial. If this fact were true, McClellan's prior conviction should have been governed by Mississippi Rule of Evidence 609(b), which 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 the specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten 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 eviidence.

The court noted, however, that it did not need to address this issue because defense counsel failed to raise it either at trial of on appeal.

-CM

Did You Notice That?: Second Circuit Discusses Interplay Between Rules 201 And 605

Under Federal Rule of Evidence 201(c), "A court may take judicial notice, whether requested or not." Meanwhile, pursuant to Federal Rule of Evidence 605,

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

So, what happens when a judge makes a statement of common knowledge during a trial? Is this simply the judge taking judicial notice of a matter of common knowledge in accordance with Federal Rule of Evidence 201(c) or is the judge improperly testifying in violation of Federal Rule of Evidence 605? According to the recent opinion of the Second Circuit in United States v. Bari, such a statement is simply the judge taking judicial notice.

In Bari, Bari pleaded guilty to, and was convicted of, one count of bank robbery and sentenced principally to 188 months' imprisonment to be followed by five years' supervised release. During Bari's supervised release, "the United States Probation Office submitted to the District Court an Amended Request for Court Action alleging that Bari had violated the terms of his supervised release."

The U.S. Probation Office claimed that Bari violated the terms of his supervised release by, inter alia, robbing a bank, and the judge hearing the action, Judge Chin,

considered evidence that the bank's surveillance footage showed that the robber wore a yellow rain hat and that a yellow rain hat was found in the garage of Bari's landlord. He stated as follows:

In addition, and I think this is the strongest piece of evidence frankly, we have the yellow hat. I am convinced from looking at the surveillance video [from the bank] of September 9 that [the hat found in the garage] is the same type of hat as appears in the video. It may not be precisely the actual hat, but it is the same type of hat. It is just too much of a coincidence that the bank robber would be wearing the same hat that we find in [his landlord's] garage....

Judge Chin then noted several similarities between the hat found in the landlord's garage and the hat worn by the robber. To emphasize the similarity between the hats, he stated that "there are clearly lots of yellow hats out there," and that "[o]ne can Google yellow rain hats and find lots of different yellow rain hats."... Earlier in the proceeding, he had also stated that "[w]e did a Google search, and you can find yellow hats, yellow rain hats like this. But there are also lots of different rain hats, many different kinds of rain hats that one could buy."  

After Judge Chin determined that Bari violated the terms of his supervised release, Bari appelead, claiming that Judge Chin violated Federal Rule of Evidence 605 through his actions. The Second Circuit disagreed, finding that Judge Chin was simply taking judicial notice of a matter of common knowledge in accordance with Federal Rule of Evidence 201(c) (The Second Circuit correctly noted that the Federal Rules of Evidence do not apply in supervised release revocation hearings but still looked to them for guidance in its opinion). 

According to the Second Circuit,

Rule 605 prohibits the judge presiding at the trial from testifying in that trial as a witness. Rule 201 permits a judge to take judicial notice of certain types of facts. Logically, then, if a fact is of a kind that a judge may properly take judicial notice of it, then he is not improperly “testifying” at trial by noting that fact. Any other conclusion would lead to Rule 605 effectively subsuming Rule 201. If, after all, a judge was improperly testifying at trial each time he took judicial notice of a fact, it would be effectively impermissible to take judicial notice of any fact. Accordingly, we must first consider whether the judge was taking permissible judicial notice of a fact, pursuant to Rule 201. If he could not have taken judicial notice of that fact within the bounds of Rule 201-because, for example, it was not a “matter[ ] of common knowledge”-then we consider whether the judge violated Rule 605. Here, we conclude that Judge Chin did permissibly take judicial notice of the fact that there are many kinds of rain hats for sale, and therefore we need not consider whether he “testified” at a trial over which he was presiding.

-CM

A Foolish Consistency: Fifth Circuit Case Reveals Odd Aspect Of Louisiana's "Prior" Consistent Statement Rule

Federal Rule of Evidence 801(d)(1)(B) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is... consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Seemingly similarly, Louisiana Code of Evidence article 801(d)(1)(B) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...[c]onsistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

As the recent opinion of the Fifth Circuit in Jones v. Cain, 2010 WL 909084 (5th Cir. 2010), makes clear, however, there is a clear (and bizarre) difference between the two rules.

Now, the facts in Cain were quite odd. After a jury trial in Louisiana, Terrance Jones was convicted of second degree murder in 2001. After he exhausted his appeals in the state court system, he filed a petition for writ of habeas corpus with the United States District Court for the Eastern District of Louisiana. That court denied his motion, prompting his appeal to the Fifth Circuit. 

One of the grounds for Cain's appeal was that the trial court improperly allowed for the admission of recorded statements of an absent witness for the prosecution, finding that they constituted consistent statements under Louisiana Code of Evidence article 801(d)(1)(B). Cain claimed that the admission of these statements violated his rights under the Confrontation Clause, and because Cain's initial trial was in 2001, the Fifth Circuit found that the issue was governed by Ohio v. Roberts. 

Under Roberts, one of the key questions was whether a particular hearsay exception was "firmly rooted." And, according to the Fifth Circuit, Federal Rule of Evidence 801(d)(1)(B) likely is "firmly rooted because

In Tome v. United States, the Supreme Court held that, under the Federal Rules of Evidence, a prior consistent statement used to rebut a charge of improper motive must have been made before the improper motive allegedly arose....The pre-motive requirement, it explained, was “[t]he prevailing common-law rule for more than a century before adoption of the Federal Rules of evidence."

Conversely, the Fifth Circuit found that

Louisiana's prior consistent statement rule has no such requirement. For Louisiana article 801 to be eligible as a firmly rooted hearsay exception, it cannot contravene more than 100 years of common law evidence practice. 

I much prefer the federal rule to the Louisiana rule. Take the following case: Dan is on trial for murder. William testifies and provides an alibi for Dan. On cross-examination, the prosecution asks William, "Isn't it true that Dan gave you $10,000 to help you start a restaurant three weeks ago?" and William responds "Yes." The prosecution has now at least impliedly claimed that William's testimony was the product of Dan's $10,000. Under either the federal or Louisiana rule, defense counsel can now ask William about a statement he made to a friend a month before trial where he claimed that Dan had an alibi. This makes sense. If William said that Dan had an alibi before Dan gave him the money, Williams testimony likely wasn't the product of the money.

Under the Louisiana rule, but not the federal rule, William could also testify that he told a friend two weeks before trial that Dan had an alibi, i.e., after Dan gave him the money. This makes no sense to me. If the consistent statement came after the improper motive, how does it prove that the trial testimony was not the product of that motive? It doesn't according to Federal Rule of Evidence 801(d)(1)(B) and most state counterparts, but for whatever reason, Louisiana thinks differently.

-CM 

Hostile Takeover: Third Circuit Reverses Murder Conviction Because Of Overly Loquacious Trial Judge

Federal Rule of Evidence 611(c) provides that

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

It is up to the judge to determine whether a witness is in fact a hostile witness, but, as the recent opinion of the Third Circuit in Government of the Virgin Islands v. Williams, 2010 WL 939916 (3rd Cir. 2010), makes clear, the judge shouldn't share (all of) his reasoning with jurors.

In Williams,  Gregory Williams was convicted by a jury of first degree murder and related charges involving assault and illegal use of weapons. Williams thereafter appealed, claiming, inter alia, that judge engaged in reversible misconduct. One of these acts of misconduct occurred after defense counsel attempted to question an eyewitness for the prosecution, who admitted that he had used marijuana before observing the subject crime and claimed that “the weed does-don't affect you mentally-it just give you a natural high." After  defense counsel attempted to challenge Smith's ability to identify Williams given the fact that he was enjoying his “natural high,” counsel was admonished by the trial judge who made the following comment in the presence of the jury, and while sustaining an objection by the prosecution:

But get to the-get to the perception. Because I'll tell you something. There's a lot of people I does smell that they be smoking, smoking thing, as you pass the cars, and they're better drivers than a lot of these other people on the road that just can't drive.

[The trial judge] continued with additional commentary:

So, my policies might be different from all the other judges. But, then again, I have been here longer than all the other judges. I'm the most senior associate judge so I don't-I have been doing this for a long time and nobody has ever found fault with it. So I don't follow the young folks. I go with my own policy. I've been around longer than all of them. Three of them put together don't have as much years as I have. So, I have my own policy.

All three Third Circuit judges hearing Williams' appeal found that this commentary was judicial misconduct sufficient to award Williams a new trial. One of the judges, though, wrote a separate concurrence to note that a separate act of judicial conduct would have been enough in and of itself to award Williams a new trial. Specifically,

At trial, Makeda Petersen was called as a witness to testify by the Government, and she testified that Williams was not the shooter at the scene. The Government, dissatisfied with her testimony, moved to have Petersen declared a hostile witness under Federal Rule of Evidence 611(c). The court agreed with the Government, and then, in the presence of the jury, stated that it had declared Petersen to be a hostile witness. The trial judge went on to state that the court "deems her to be uncooperative and evasive, and particularly twice she has rejected questions by the Government calling her."

According to the concurring judge,

The prejudicial effect of remarks like this underscores why courts should not explain evidentiary rulings in the jury's presence. The trial judge's characterization of Petersen's testimony as "uncooperative and evasive" could very well have influenced the jury's assessment of whether or not to credit her testimony....In a case such as this, in which the jury heard contradictory accounts of the critical events and its ultimate decision depended upon whether it believed Petersen's testimony, judicial statements bearing upon the credibility of a witness, such as the trial judge's characterization of Petersen's testimony here, could be highly influential.

-CM

What Are Your Intentions?: Seventh Circuit Finds Expert Testimony Was Properly Precluded Under Rule 704(b) In Sexting Appeal

Federal Rule of Evidence 704(b) 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.

This Rule was originally "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," and it was passed in the wake of the shootings of Ronald Reagan and John Lennon. As the recent opinion of the Ninth Circuit in United States v. Hofus, 2010 WL 986799 (9th Cir. 2010), makes clear, however, this Rule also applies to testimony that a defendant engaged in "sexting" with a minor would never act on the intentions expressed in his texts.

In Hofus, Terrance Hofus was convicted of attempting to coerce and entice a minor to engage in sexual activity. The facts of the case were as follows:

In February 2008, several 12 to 16-year-old girls had a sleep over party....During the party, two of the young girls, M.M. and B.T., took nude photos of themselves and sent them by cell phone to a 15-year-old boy, T.H. Although unclear exactly how Hofus learned about the photos,...after the party B.T. began receiving text messages from a number she did not recognize. From that number, Hofus sent her various sexual messages and told her that unless she and M.M. met with him to do sexual things, he would send the nude photos to everyone they knew and post them on the Internet.

After the party, M.M. also exchanged text messages with Hofus, thinking that he was the 15-year-old boy. When these texts became very sexual, M.M. told her mother and older sister about them. M.M.'s sister called the number and told him to stop calling her 14-year-old sister....

Although it was later determined that Hofus's phone did not give him the ability to actually view the nude photos, he made the girls believe he had seen them and had them in his possession. For example, Hofus sent B.T. a text that he was at a Kinko's copy shop and had found a way to enlarge cell phone images to poster size: "think that if we printed up the 2 of u girls and hung them up at the high skol that it wud help u keep u r promise to me they look hot there a lot detail big."

B.T. eventually told a teacher about the problem, and, ultimately, the FBI took over the investigation. Special Agent Anna Brewer took M.M.'s cell phone and downloaded the voicemail messages from Hofus. Brewer also took B.T.'s cell phone and found several text messages from Hofus....

Agent Brewer posed as B.T. and began texting with Hofus. Brewer recorded all text messages and voicemails that were received on B.T.'s phone. Brewer asked for the pictures back; Hofus asked what she was willing to do to get them. Later, Hofus apparently became suspicious and asked her "Why are u talking 2 the police” and “some one knows a detective.” Hofus asked B.T. to promise that whatever they might do would stay between them-“no friends parents police." He insisted on talking to B.T. on the phone to arrange a meeting....

With her parents' permission, B.T. spoke to Hofus on a monitored phone and arranged to meet him at the Parklane movie theater to see the movie Juno. Following their conversation, he continued to send her sexually explicit texts asking about her sexual experiences.

On March 16, the FBI set up surveillance at the Parklane movie theater. At noon, Hofus sent a text asking, "Are u going to let me taste u naked." He also sent a message suggesting B.T. go to the McDonald's near the theater instead. When the agents went to the McDonalds, they noticed Hofus sitting on a bus stop bench across the street from the theater, using his cell phone, and arrested him.

At his trial, Hofus sought to have a Dr. McEllistrem testify, inter alia, that "it was unlikely Hofus would act on the intentions expressed in his texts." The district court, however, precluded this testimony, and the Seventh Circuit later agreed, finding that there is "a distinction between the intent to persuade or attempt to persuade a minor to engage in a sex act and the intent to actually commit the criminal sex act itself." In other words, because Hofus was charged with attempting to coerce and entice a minor to engage in sexual activity, the question of whether he was likely to act on his expressed intentions was irrelevant.

Moreover, the Seventh Circuit found that even if this likelihood was relevant, it would have violated Federal Rule of Evidence 704(b) because

To say that Hofus meant the texting only as fantasy is simply another way of saying he did not really intend to entice or persuade the young girls, which is precisely the question for the jury. If the jury accepted Dr. McEllistrem's testimony that Hofus engaged in texting B.T. “in fantasy alone,” it would necessarily follow that Hofus did not possess the requisite mens rea....Such an opinion would thus run afoul of Rule 704(b)'s prohibition on such testimony.

-CM

Expert Advice: Seventh Circuit Notes That Judges Might Want To Appoint Experts In Fair Debt Collection Practices Cases

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.

As the Seventh Circuit noted in its recent opinion in DeKoven v. Plaza Associates, 2010 WL 938025 (7th Cir. 2010), judges "rarely exercise[]" their powers under this Rule and appoint their own experts, but they might want to consider doing so in Fair Debt Collection Practices Act cases.

In DeKoven, plaintiffs brought two closely related class action suits under the Fair Debt Collection Practices Act, claiming that the Plaza Associates debt-collection agency improperly sent them denning letters, i.e., letters of collection. Under the Fair Debt Collection Practices Act, "a debt collector can, if authorized by the creditor whom he is representing, make his initial offer a final one, he cannot pretend that it is final if it is not, in the hope that the debtor will think it final."  The letters sent to one of the plaintiffs, Doris DeKoven, stated that

“we have been authorized to offer you the opportunity to settle this account with a lump sum payment for 65% of the above balance due, which is equal to $2,459.22. This offer will be valid for a period of thirty-five (35) days from the date of this letter." 

The plaintiffs' expert conducted a survey. 

The survey staff interviewed 160 shoppers at a mall in a Chicago suburb. Half were shown the letter to Kubert; the other half-the members of the control group-were shown the letter minus the “valid for a period” and “satisfactory proof” paragraphs....

After the survey respondents read the letter (either the survey letter or the control letter, depending on which group a respondent had been placed in), they were first asked questions about the letter orally, then given orally two answers to choose between, and finally handed a card with the answers printed on it and asked to pick one of them. The cards also contained a third answer option, which had not been presented orally: "DON'T KNOW/NOT SURE." The critical question, asked of the respondents in both groups, was what the respondent thought would happen if he or she didn't accept the offer in the letter-would it be renewed or extended, or was this the last chance to get a discount off the balance owed?

Of the respondents in the survey group, 59 percent thought the offer was final, 26 percent thought that it would be renewed or extended, and 15 percent didn't know or weren't sure. The corresponding percentages in the control group were 24 percent, 10 percent, and  66 percent.

The district court, however, deemed this evidence inadmissible under Federal Rule of Evidence 702 because, inter alia, "the members of the control group may well have been confused by the omission from the cropped letter of any reference to a deadline."

The Seventh Circuit later affirmed and noted, inter alia, that

Suits under the Fair Debt Collection Practices Act have repeatedly come to grief because of flaws in the surveys conducted by the plaintiffs' experts....District judges may want to consider exercising the clearly authorized but rarely exercised option of appointing their own expert to conduct a survey in FDCPA cases....Judges can assure themselves of the expert's neutrality by (as in arbitration) asking the parties' own experts to nominate a third expert to be the court-appointed expert....A genuine neutral should be easy to find in the field of survey research because few survey researchers have settled views about debt collection.

The decision to appoint an expert is within the discretion of the trial judge, of course, and we merely invite consideration of the possibility of using this procedural device to improve judicial understanding of survey methodology. Although the judge is authorized to allocate the cost of the court-appointed expert between the parties, Fed.R.Evid. 706(b), we do not suggest that the defendant should be made to contribute to the cost of a survey conducted by the neutral expert, for in cases under the Fair Debt Collection Practices Act defendants rarely conduct their own surveys but are content to point out the deficiencies in plaintiffs' surveys. A survey conducted by a neutral is a possible alternative to the often unedifying spectacle of a battle of party-appointed experts.

-CM

Objectionable Objection?: Court Of Appeals Of North Carolina Affirms Impeachment Ruling Based Upon Lack Of Specific Objection

Like its federal counterpart, North Carolina Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than 10 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.

As the Advisory Committee Note to Federal Rule of Evidence 609 makes clear, "Although 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." In other words, convictions more than 10 years old are almost never admissible for impeachment purposes. Of course, as the recent opinion of the Court of Appeals of North Carolina in State v. Graham, 2010 WL 916389 (N.C.App. 2010), makes clear, none of those matters unless opposing counsel raised a specific objection to the admission of such a remote conviction.

In Graham, Marcus Anthony Graham was convicted of felony child abuse inflicting serious bodily injury. Before trial, Graham brought a motion in limine to exclude evidence in response to the prosecution's notice of intention to seek the admission of convictions more than 10 years old under North Carolina Rule of Evidence 609(b). The trial court, however, reserved judgment until trial, where it could determine whether Graham was even going to testify.

At trial, Graham did indeed testify, and defense counsel did not initially renew his objection to the admission of Graham's remote convictions. Thereafter, 

during cross-examination, [Graham] was asked a series of questions relating to his previous criminal convictions. Specifically, counsel for the State questioned [Graham] about any prior history of arrests for and convictions of giving false information to the police. After [Graham] admitted to a series of driving infractions, counsel for the State asked [Graham] whether "part of the driving violation is, when they pull you over, you give false names and other names; isn't that true, Mr. Graham, so you don't get charged?" At that point, defendant's trial counsel made a general objection, which the court overruled. Then, the following colloquy occurred:

Q: Well, Mr. Graham, five times in the past you've been convicted of giving false information to law enforcement, haven't you?

A: Can I explain?

Q: Absolutely.

A: All right. I don't deny the fact I been stopped when I had no business driving. I had no license. And I been stopped and in court for driving while license revoked and I have given another name, which is considered fictitious information to an officer.

After Graham was convicted, he appealed, claiming, inter alia, that the trial court improperly allowed for him to be impeached through evidence of his remote convictions. The Court of Appeals of North Carolina noted, however, that pursuant to North Carolina Rule of Appellate Procedure 10(a)(1), "In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context."

According to the court, defense counsel failed to comply with this Rule. Specifically, the court held that

In the instant case, defendant made a general objection after being asked a compound question with respect to the defendant's history of providing fictitious names and information to law enforcement officials in order to avoid criminal charges. It is unclear from the record what the specific grounds for the objection were. It is not the duty of this Court to postulate the various grounds for counsel's objection. Furthermore, defendant's objection was overruled without any further action. As the line of questioning reached the convictions that were the subject matter of defendant's motion in limine, the record is completely devoid of any further objection from defendant. It is well-established that a “ ‘motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.'"...Furthermore, we note that defendant does not allege plain error on appeal....Accordingly, we hold that defendant's general objection at the outset of the questioning is insufficient to preserve the question for appellate review.

-CM

The Giant(s) Of Illinois, Take 2: Special Committee On Illinois Evidence Issues Proposed Illinois Rules Of Evidence

Currently, Illinois is one of few states that does not have codified rules of evidence. In November 2008, I wrote that

the Illinois Supreme Court announced the formation of a Special Committee on Illinois Evidence with the aim of codifying existing evidentiary law so that it is available in a single source.   The Special Committee, appointed by the Supreme Court, is composed of a blue ribbon roster of judges, practitioners, law professors and state legislators.

I was honored to be asked by that Committee to draft a report comparing each Federal Rule of Evidence with the corresponding evidentiary principle that Illinois courts had developed in case law to assist the Committee in its creation of Illinois Rules of Evidence. The result of that endeavor was a 100 page report prepared with substantial assistance from John Marshall's Associate Dean for Academic Affairs and Professor Ralph Ruebner and law students Katie Anderson, Timothy Herman, and Jessica Kull. 

We submitted that report in May 2009, and the Committee set forth on the arduous task of drafting Proposed Illinois Rules of Evidence, which are now available here: Proposed Illinois Rules of Evidence. Here is the accompanying Notice of Public Hearings on the Proposed Rules, which will be held on May 18th and May 20th at 10:00 A.M. As the Notice notes, "Anyone wishing to be scheduled to testify at the public hearings should advise the Committee in writing...not later than Monday, May 10, 2010."

After my initial brief review of the rules, everything looks to be in place, but maybe I missed something. Do readers have any thoughts or suggestions on the rules? If so, please either submit a comment to this post or e-mail me at 7millerc@jmls.edu.

(Hat tip to my colleague Mark Wojcik for the link)

-CM 

Judge, Jury, and Interrogator, Take 2: Court Of Appeals Of Virginia Finds Judicial Interrogation At Sentencing Hearing Was Proper

Federal Rule of Evidebce 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Virginia does not have codified rules of evidence, but its courts also generally allow judges to interrogate witnesses. In a post last week about Iowa Rule of Evidence 5.614(b) last week, I noted that Iowa courts discourage judicial interrogation, "particularly where the jury is the fact finder." The recent opinion of the Court of Appeals of Virginia in Aispuro v. Commonwealth, 2010 WL 906636 (Va.App. 2010), a case where the judge was the fact finder. And, as the court's opinion makes clear, judicial interrogation in such a case is not similarly discouraged.

In Aispuro, upon his plea of guilty, Jose Ramon Aispuro was convicted of felony child neglect. At the ensuing sentencing hearing, defense counsel asked Aispuro a question, and he began giving an answer. Defense counsel interrupted him, however, and told him to "Talk-talk to the Judge." The q & a between defense counsel and Aispuro then continued. Thereafter, the judge briefly interrogated Aispuro. At the end of the sentencing hearing, the court sentenced Aispuro to ten years imprisonment with all but three years suspended, followed by ten years of probation.

Subsequently, Aispuro filed a motion to reconsider his sentence, alleging that the trial judge abandoned her neutral judicial role and became a prosecutor in the case. The Court of Appeals of Virginia, however, found that this argument was without merit, initially noting that defense counsel invited at least some questioning of Aispuro when, on direct examination, he told him: “Talk to the Judge."  I disagree with this conclusion. I can't tell for sure based upon the court's opinion, but it seems to me that defense counsel was merely telling Aispuro to direct his responses to the judge, and I certainly don't think that defense counsel was telling the judge that he could question Aispuro.

In the end, though, I don't think that this point matters because the court went on to find that

Even if defense counsel had not done this, it is not the case that judges are uniformly prohibited from questioning witnesses. "It is not to be inferred from what has been said that a trial judge may not ask questions of a witness either on his examination in chief or on cross-examination. The practice is common and perfectly permissible."...Many Virginia decisions emphasize that the trial judge must exercise this discretion cautiously and "should refrain from indicating in any way his views upon the weight or quality of the evidence."

Importantly, though, the court found that "the dominant rationale for this admonition appears to be the need to prevent the judge from invading the province of the jury." Thus, "[i]n a sentencing proceeding in which the judge is the fact finder these concerns are relaxed." Accordingly, the court found that the brief interrogation of Aispuro by the trial judge was proper.

-CM

Can You Corroborate That?: Ninth Circuit Denies Habeas Petition Because Of Uncorroborated Statement Against Interest

Like its federal counterpart, Idaho 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 declarant to civil or criminal liability, or to render invalid a claim by declarant against another, that a reasonable man in declarant's position would not have made the statement unless declarant believed 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.

The main reason for the second sentence in this Rule is the fear that an accused will be able to introduce somebody else's confession to secure a "not guilty verdict," and then the prosecution will not be able to turn around and secure a conviction against the somebody else. A nice illustration of the type of situation that the second sentence seeks to avoid can be found in the recent opinion of the Ninth Circuit in Rhoades v. Henry, 2010 WL 761146 (9th Cir. 2010).

In Henry, Paul Ezra Rhoades was convicted of the first degree murder, first degree kidnapping, and robbery of Stacy Baldwin. Baldwin worked at the Red Mini Barn, and she was apparently abducted by a man driving a pickup truck at around midnight on February 27, 1987. At trial, Rhoades tried to present evidence concerning confessions by Keven Buchholz to the subject crime.

Buchholz was arrested at his parents' home on March 14, 1987, after his father called the police to report a fight. At the jail, Buchholz, while quite drunk, told the officer on duty that evening, Larry Christian, that he had shot the girl from the Mini Barn twice in the back. Christian reported the conversation to his supervisor, then returned. Buchholz repeated that he shot the girl from the Mini Barn twice in the back, had shot several times around the body, and had emptied the gun. Rhoades tried, unsuccessfully, to subpoena Buchholz for trial. He then sought to call Christian to testify to what Buchholz told him.

Buchholz recanted the confession once sober, explaining that he was with his family the night of the murder. Family members confirmed this. In addition, Buchholz's fingerprints, hair sample, and shoe prints were taken; none matched anything connected to the crime. The police could not link Buchholz to the murder weapon, and determined that information in his confession could have come from public sources or gossip in the community.

At trial,

The state moved to exclude Christian's testimony. Rhoades presented an offer of proof indicating that Christian would testify that Buchholz told him he shot the girl twice in the back; shot at her several times; stole a green pickup in Pocatello which he left at Fort Hall; and the gun was either a .38 caliber or a 9mm. The proffer also indicated that shell casings from both sizes were found at the scene. The trial court precluded Christian from testifying because it found that Buchholz's confession lacked sufficient corroboration to be trustworthy, thus Christian's testimony about what Buchholz told him would be hearsay under Rule 804(b)(3) of the Idaho Rules of Evidence.

After he was convicted, Rhoades filed a petition for writ of habeas corpus with the United States District Court for the District of Idaho. The district court denied that petition, and the Ninth Circuit thereafter agreed, finding that

With nothing to back up Buchholz's confession, it was unreliable. The jury would have had no opportunity to evaluate Buchholz's credibility and demeanor; Christian's testimony would have been the only testimony on the issue. Christian's recitation could not realistically have been a major part of Rhoades's defense given the circumstances in which Buchholz's statements were made, his recantation and alibi, and the dearth of independent evidence tying Buchholz to the crime. Further, an evidentiary rule such as Idaho Rule of Evidence 804(b)(3) serves the important role of excluding testimony that lacks significant indicia of reliability....Exclusion of Christian's testimony advances this purpose.   

-CM

High Risk Insurance: Court Of Appeals Of Iowa Finds Evidence Of Liability Insurance Admissible To Impeach Plaintiff

Like its federal counterpart, Iowa Rule of Evidence 5-411 provides that 

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

As the "such as" language from the Rule's second sentence makes clear, the listed permissible purposes are not exhaustive, just illustrative. This point is driven home by the recent opinion of the Court of Appeals of Iowa in Sweers v. Westfall, 2010 786036 (Iowa App. 2010), an opinion that also calls into question the efficacy of the Rule.

In Westfall, Scott Sweers,

was driving east on Kirkwood Boulevard in Iowa City. He was alone in his Audi, and was heading toward a fitness club that he used. A Jeep Liberty driven by Craig Westfall pulled north out off of a cross street that intersected Kirkwood Boulevard. Westfall intended to turn west on Kirkwood Boulevard. However, Westfall failed to see Sweers, and the left front bumper of his vehicle struck the passenger side of Sweers's smaller sedan. Photographs show that both right-side doors on Sweers's sedan were dented (the cost to repair Sweers's car was $3829), but no air bags in either vehicle deployed. Sweers was wearing his seatbelt. Sweers said he was okay at the time.

Sweers went home after the accident, but decided to seek medical treatment later that night. The emergency room notes indicate Sweers's “insurance agent recommended he come in for a check up."  

At trial, Sweers testified that he went to the emergency room after the car accident because he was "seriously worried about what was wrong with my shoulder." Thereafter, the trial court allowed defense counsel to impeach Sweers with evidence that he in fact went to the emergency room based upon the recommendation of of his insurance agent. After the jury only awarded Sweers $5206 in damages, he appealed, claiming, inter alia, that that the trial court improperly allowed for the admission of evidence that he had liability insurance.

The Court of Appeals of Iowa easily dispensed with this argument, concluding that the subject evidence was not introduced to prove that Sweers acted negligently or otherwise wrongfully; instead, it was introduced to impeach him. Having decided the issue, the court then went on to make the following observation:

jurors bring their common experiences to the courtroom. Certainly one of those common experiences is that motorists in the State of Iowa are required to and generally do carry insurance. Another of those common experiences is that when people are involved in a car accident, regardless of who is at fault, they frequently contact their insurance agent afterward. It is difficult to believe the admission of Sweers's statement altered the collective wisdom that this jury already had before trial commenced.

-CM

Immigration Man: Third Circuit Finds That Results Of Asylum Investigation Were Properly Admitted

It is well established that "[t]he Federal Rules of Evidence do not apply in immigration proceedings." Liu v. Attorney General of the United States, 2010 WL 772166 (3rd Cir. 2010). That said, "evidence must be probative and used in a fundamentally fair manner to satisfy concerns of due process." Id. And in its recent opinion in Liu, the Third Circuit found that the results of an investigation of asylum documents satisfied these concerns.

In Liu, 

Yong Ho Liu, a native and citizen of the People's Republic of China, entered the United States at or near Miami, Florida, in September 2002, without a valid immigrant visa, and applied for entry as an immigrant. The Government charged him as removable. Liu conceded the charge, but applied for asylum, withholding, and protection under the Convention Against Torture...based on his and his wife's experiences with China's population control policies.

Specifically, Liu claimed that his wife was subjected to a forced abortion when she was pregnant and forced sterilization. However,

when the Government investigated the documents that Liu submitted in support of his claim, the birth control operation certificate was found to be counterfeit (a separately submitted fine receipt was found to be authentic, but Liu's payment of an unplanned birth fine alone does not amount to past persecution in this case). The certificate had a counterfeit stamp and bore the name of a doctor never employed by the hospital. (Moreover, the certificate, even if it had been found to be authentic, also only supports a claim that Liu's wife was sterilized; abortion, another option on the document, was not marked off.)

Liu claimed that the results of this investigation were hearsay and should not have been considered as part of his application for asylum. The Third Circuit noted that the Federal Rules of Evidence do not apply in immigration proceedings but that evidence must be probative and used in a fundamentally fair manner to satisfy concerns of due process. The court then found that the subject evidence satisfied this test because

the petitioner had ample time to consider the results of the investigation; the report was presented to Liu almost two years in advance of his hearing. Second,...the investigator directly communicated with the local officials who provided information for the report, and the investigator explained how she conducted the inquiry. Through her involvement, she could evaluate the credibility of the immediately preceding declarants....In short, under the circumstances of this case, there were sufficient indicia of reliability and trustworthiness such that Liu's due process rights were not violated by the admission of the report into evidence or the agency's reliance on it.

-CM

What's Your Damage?: Fifth Circuit Finds Lay Witness Can't Offer Opinion Testimony On Organic Brain Damage

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

As the Rule intimates, when testimony is based on scientific, technical, or other specialized knowledge, it can only be offered by an expert witness pursuant to Federal Rule of Evidence 702. And, under these Rules, the Fifth Circuit could make an easy ruling in its recent opinion in United States v. York, 2010 780166 (5th Cir. 2010): A lay witness cannot opine that his son suffers from organic brain damage.

In York, Timothy Lee York was convicted of arson, carrying a destructive device in relation to a crime of violence, and possession of a firearm not registered in the National Firearms Registration and Transfer Record. These convictions stemmed out of an incident in which York allegedly used a Molotov cocktail to start a fire at the Cooke County Courthouse in Gainesville, Texas.

As part of his defense, York sought to have his father testify about complications with York's birth leading his father to "'suspect that Mr. York suffered organic brain damage." The district court deemed this testimony irrelevant, and, on York subsequent appeal, the Fifth Circuit agreed that this testimony was irrelevant. Moreover, the Fifth Circuit found that

Even if proper evidence that York had suffered organic brain damage were relevant, the error was harmless because the defendant merely offered inadmissible opinion....The rules forbid lay opinions based on scientific, technical, or other specialized knowledge within the scope of Rule 702....The drafters added this language to Rule 701 to prevent parties from offering expert testimony as lay opinion and circumventing discovery rules....The distinction between lay and expert testimony is that lay testimony results from a process of reasoning familiar in everyday life, whereas expert testimony results from a process of reasoning that can only be mastered by specialists in the field....York's father's testimony seems to be speculative medical causation testimony. Testimony about York's birth and any brain damage caused by his birth requires specialized medical knowledge. It is not the type of opinion that one could reach as a process of everyday reasoning.  

-CM

Court Of Public Opinion: Supreme Court Of Washington Holds Judicial Findings Inadmissible Under Public Records Exception

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.

It is well established that

Rule 803(8) was not intended to allow the admission of findings of fact by courts. Rule 803(8) is limited to investigations: "A judge in a civil trial is not an investigator, rather a judge." Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993).The advisory committee notes to Rule 803(8) also indicate that the intent of the rule's drafters was to allow for the admission of investigations by officials in the executive branch; there is no indication in those notes that the committee intended this exception to include findings of fact by judges. Herrick v. Garvey, 298 F.3d 1184, 1192 (10th Cir. 2002). 

Washington doesn't have a state counterpart to Federal Rule of Evidence 803(8), but it has recognized a public records exception to the rule against hearsay in its case law. And, in its recent opinion in In re Detention of Pouncy, 2010 WL 817369 (Wash. 2010), the Supreme Court of Washington found that this exception does not apply to judicial opinions.

In Pouncy, "[f]ollowing trial, a jury found Curtis Pouncy to be a sexually violent predator." Pouncy thereafter sought a new trial, "claiming that the trial court erred when it failed to instruct the jury on the definition of 'personality disorder' and when it allowed the State to impeach Pouncy's expert using judicial findings about the expert set forth in a previous, unrelated trial." The Supreme Court of Washington granted Pouncy a new trial on the former issue and found that the State should not be allowed to impeach Pouncy based upon the prior judicial findings at that new trial. 

On this latter issue, the court noted that the prior judicial findings would not have qualified for admission under Federal Rule of Evidence 803(8) for the reasons listed above. The court then noted that it did not have a formal state counterpart to this federal rule but that it had adopted such a counterpart in its precedent. The court, though, still found that the judicial findings 

constituted inadmissible hearsay. There is no question that the...judge's findings were out-of-court statements used to prove the truth of the matter asserted....Although the judge's findings of fact were contained in a certified public document, the document is not included under the public records exception to the hearsay rule. In order to qualify for the exception, the proffered document "'must contain facts and not conclusions involving the exercise of judgment or discretion or the expression of opinion.'" Despite their designation as findings of fact, the...judge's credibility determinations...involved a discretionary exercise not contemplated by the public records exception to the hearsay rule.

Moreover, the court found that even if these judicial findings were not hearsay, they failed to pass the Rule 403 balancing test because they were "irrelevant, unduly prejudicial..., and impinged upon the jury's role as the sole determiner of credibility." 

-CM

Judge, Jury, And Interrogator: Court Of Appeals Of Iowa Notes That Judicial Interrogation Of Witnesses Is Allowed But Not Encouraged

Like its federal counterpart, Iowa Rule of Evidence 5.614(b) provides that

When necessary in the interest of justice, the court may interrogate witnesses, whether called by the court or by a party.

But according to the recent opinion of the Court of Appeals of Iowa in State v Benesh, 2010 WL 786039 (Iowa App. 2010), Iowa precedent provides that "the practice is not encouraged." 

In Benesh, Chad Benesh was convicted after a jury trial of assault domestic abuse causing bodily injury. According to facts adduced at trial,

Chad Benesh and Kim Neelans met on the Internet sometime in late March or April 2007. Benesh subsequently moved in with Neelans in the fall of 2007. Their intimate relationship ended, but they continued living together in Neelans's house. Neelans later moved to a condominium, and Benesh moved with her.

On November 13, 2008, Neelans returned home and discovered Benesh in bed with Maureece McDuffee. A fight ensued between Neelans and Benesh, and the police were called to the residence. Neelans was ultimately treated for a broken rib following the incident. 

After McDufee testified as a defense witness and both sides finished interrogating her, the court stepped in, and the following exchange occurred:

[THE COURT]: Ma‘am, you testified ... that you were, quote, “so ashamed.” What were you ashamed of 

A. I just-felt like the other woman, and I felt-I was humiliated and ashamed, because I knew I hadn't done anything wrong, but yet I felt, the way [Neelans] was talking, that I was guilty of something.

[THE COURT]: Ma‘am, once it became clear to you that [Benesh] either had been arrested or had been charged, you did not go to the police to give them a statement? 

A. I didn't know I had to. I thought they would contact me if they needed me.

[THE COURT]: How would they have information as to how to get in touch with you? You didn't volunteer who you were.

[BENESH'S TRIAL COUNSEL]: Your honor, I'm going to object to the questions-

[THE COURT]: The objection is noted, for the record. It's in the record.

[BENESH'S TRIAL COUNSEL]: No. With respect to that particular question, a separate objection, your honor.

[THE WITNESS]: Would you repeat it, please?

[THE COURT]: You said that you did not give the police a statement. Would there have been some other way they could have otherwise identified you, without you coming over, as far as you know? 

A. I thought when they took [Benesh's] statement, they would get ahold of me.

Benesh later moved for a mistrial on the ground that this judicial interrogation was improper, but the trial court denied the motion, and the Court of Appeals of Iowa later agreed. The appellate court did note that judicial interrogation "is not encouraged" and "that the better practice is for the trial judge to exercise restraint and avoid the fray as by questioning witnesses 'the court becomes vulnerable to a multiplicity of criticisms; bias, prejudice or advocacy,' particularly where a jury is the fact finder."   

Nonetheless, the appellate court found that the trial court did not commit error because

the record d[id] not indicate the judge's questions emphasized the prosecution's case nor d[id] it show a jury could reasonably have interpreted the questions to mean the judge was siding with the State. Additionally, the questioning at issue did not discredit or impeach the witness's testimony on a key element or defense. The questioning at issue was merely to clarify the record.

-CM