EvidenceProf Blog

Impeachable Opinion?: Court Of Appeals Of Maryland Finds Trial Court Properly Deferred Impeachment Ruling Until After Defendant Testified

Similar to its federal counterpart, Maryland Rule of Evidence 5-609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness's credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party. 

A criminal defendant, of course, can exercise his Fifth Amendment privilege against self-incrimination and not testify at trial. So, does the trial court have an obligation to rule on the issue of whether a defendant's prior convictions will be admissible to impeach him before he makes this decision, or can it defer that decision until after the defendant testifies? According to the recent opinion of the Court of Appeals of Maryland in Dallas v. State, 2010 WL 1643252 (Md. 2010), courts can at least sometimes defer that decision, and the trial court in the case before it was entitled to defer. I'm not sure how I feel about the court's general conclusion, but I disagree with its specific conclusion in the case before it.

In Dallas, Isaac E. Dallas was convicted of possession of cocaine with intent to distribute that controlled dangerous substance and related offenses. At trial, before determining whether he wanted to testify, Dallas wanted the trial court to rule on the admissibility of his prior convictions for distribution and possession of cocaine with intent to distribute that substance. The court, however, declined, deferring its decision until after Dallas testified. Based upon the court's ruling, however, Dallas chose not to testify.

He did, however, chose to appeal, and the Court of Appeals of Maryland found that his appeal was not foreclosed by the opinion in Luce v. United States, 469 U.S. 38 (1984), in which the Supreme Court found that a defendant cannot appeal a court's ruling permitting the admission of his prior conviction(s) unless he takes the stand and testifies. According to the court in Dallas, this opinion did not apply because the trial court did not, in fact, rule on the admissibility of Dallas' prior convictions. The court, however, did find that the trial court's decision to defer its ruling on Dallas' prior convictions did not have a constitutional dimension because it did not impermissibly chill his right to testify.

The court, though, still reviewed the trial court's ruling for abuse of discretion. And, according to the court,

Many are the times when a trial court can and, therefore, should decide a motion in limine involving a Rule 5-609 issue before the defendant makes the election. For example, when it is clear that a prior conviction is ineligible for impeachment under Rule 5-609, the court need not hear the defendant's testimony to know how to rule on a motion to exclude that proposed impeachment evidence. Similarly, the trial court certainly can recognize when the risk of unfair prejudice of the proposed impeachment evidence far outweighs its probative value, no matter how the defendant might testify. Moreover, the court may be satisfied that it has a sufficient basis upon which to make an in limine ruling without hearing the defendant's direct testimony if the court has learned, through other means, how the defendant is likely to testify. For example, a court may hear admissions that the defense makes during the defense's opening statement, or the court may accept a proffer of the defendant's direct testimony. In any of these circumstances, fairness to the defendant augurs in favor of the trial court's ruling on the motion before the defendant elects whether to testify or remain silent.

According to the court, though, this was not one of those cases. Instead,

During the lengthy discussion on the subject, the trial court explained that, in light of the similarity between the pending charges and the prior convictions, it was necessary to await Petitioner's testimony before deciding whether the probative value of the proposed impeachment evidence outweighed the danger of unfair prejudice to Petitioner. To be sure, the court was aware that the defense to the felony charge was to concede the possession of the cocaine and marijuana the police found on Petitioner but deny that the cocaine was for distribution. Yet, the court could not be certain what Petitioner's testimony would be until the court heard it.... For that reason, although the court surely could have accepted a proffer of Petitioner's testimony,...the court was not required to do so....

We presume that the trial court, not unreasonably, envisioned that, had Petitioner taken the stand, he might not have confined his testimony (consistent with counsel's opening statement) to a denial of an intent to distribute the drugs found in his possession; he might instead have testified that he had never before distributed illegal drugs. Had Petitioner's testimony been consistent with defense counsel's opening statement, then the trial court might have decided that evidence of the prior convictions carried a risk of unfair prejudice to Petitioner. Had Petitioner testified more expansively, then the court might have decided that the State should be permitted to impeach him with the prior convictions. Given the plausibility of either scenario, the court was not required to rule on the motion without first hearing Petitioner's direct testimony.  

I'm flabbergasted. It is well established in the impeachment context that crimes bearing more similarity to the crime charged are less likely to admitted because the jury is likely to misuse them as propensity character evidence ("once a drug dealer, always a drug dealer") and not solely as impeachment evidence ("the defendant's testimony is untrustworthy"). Conversely, crimes bearing less similarity to the crime charged are more likely to be admissible. Yet, according to the Court of Appeals of Maryland, a trial court is likelier allowed to defer its ruling on prior similar crimes.

To me, this makes no sense, especially in light of the court's recognition that the trial court could have accepted a proffer. In other words, based upon the similarity of the defendant's past convictions to the crime charged, the trial court likely knew that the prior convictions would have been inadmissible. Thus, as long as Dallas' proffer did not involve him denying ever distributing drugs, the court could have conditionally deemed his prior convictions inadmissible, with the condition being that Dallas not make this denial when he actually testified.

-CM

Send More Paramedics: Court Of Appeals Of Indiana Finds Stranger's Statements Not Covered By Rule 803(4)

Like its federal counterpart, Indiana Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Clearly, this rule covers statements made by the person needing medical treatment, but does it also cover statements made by third parties? As the recent opinion of the Supreme Court of Indiana in Jackson v. State, 2010 WL 1685974 (Ind. 2010), the answer is "maybe" when the statement is made by a close family member, but the answer is "no" when the statement is made by a stranger. 

In Jackson,

Officer Christopher Strouse of the Madison Police Department was dispatched to Ben Smith's apartment on Walnut Street in Madison. When Officer Strouse arrived, he found Smith and Harold Centers in the apartment and Gerald "Bubby" Roberts lying on a mattress with dried blood on it. Paramedics were called to the scene and failed to revive Roberts, who was pronounced dead at a local hospital.

After several trials, Jackson was finally convicted of battery resulting in serious bodily injury. He thereafter appealed, claiming, inter alia, that the trial erred by precluding him from having a paramedic testify that an unidentified bystander at the scene of the crime told him "that Roberts 'jumped up and yelled something, fell, striking his head on the wall.'" According to Jackson, this testimony would have established that he was not responsible for Roberts' death. And, according to Jackson, this testimony should have been admissible because it qualified as, inter alia, a statement made for purposes of medical treatment or diagnosis under Indiana Rule of Evidence 803(4).

The Supreme Court of Indiana disagreed, finding that the Rule provides

an exception for statements made "for the purpose of medical diagnosis or treatment." It permits accounts of statements by a person needing medical treatment.... In some cases, "statements by others, most often close family members, may be received if the relationship or the circumstances give appropriate assurances” as to the statements' reliability.... It is not obvious that this statement, whoever made it, was made for the purpose of diagnosis or treatment. In any event, there is nothing in the record to support Jackson's claim that the unidentified bystander was in some close relationship to Roberts such that this statement can enjoy the confidence of reliability required by Evidence Rule 803(4). 

This makes sense, given one of the main rationales for the rule. As I noted in a recent post,

Hearsay is generally inadmissible because it is unreliable. Statements made for purposes of medical diagnosis or treatment, however, are admissible based in large part on the "selfish-motive doctrine.  In other words, a person seeking medical treatment is unlikely to lie to a medical professional and risk a misdiagnosis or mistreatment.

Obviously, this rationale can extend to close family members or friends. A wife wouldn't want to lie to a doctor about the condition of her husband or child, lest the family member be misdiagnosed or mistreated. The same rationale, however, doesn't extend to strangers or casual acquaintances. If someone sees a stranger hurt, they might be a good citizen and tell an arriving paramedic what really happened out of concern for the injured person. But the speaking stranger might also lie and not really care about the consequences to the injured stranger. Therefore, as in Jackson, the rule doesn't cover statements made by strangers or causual acquaintances.

-CM

Can You Give Me A Summary?: Court Of Appeals Of Texas Finds Summary Of Defendant's Convictions Inadmissible At Sentencing

Article 37.07, section 3(a)(1) of the Texas Criminal Code provides that

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. A court may consider as a factor in mitigating punishment the conduct of a defendant while participating in a program under Chapter 17 as a condition of release on bail. Additionally, notwithstanding Rule 609(d), Texas Rules of Evidence, and subject to Subsection (h), evidence may be offered by the state and the defendant of an adjudication of delinquency based on a violation by the defendant of a penal law of the grade of:

(A) a felony; or

(B) a misdemeanor punishable by confinement in jail.

Based upon this language, I don't quite understand the recent opinion of the Court of Appeals of Texas, Waco, in Melvin v. State, 2010 WL 1611072 (Tex.App.-Waco 2010).  

In Melvin, Charles William Melvin pleaded guilty to delivery of marihuana, and a jury sentenced him to two years in state jail. At the sentencing hearing, the prosecution introduced into evidence four exhibits regarding Melvin's prior convictions. Then, over Melvin's objection, the trial court allowed the prosecution to introduce a chart of the prior convictions and an enlargement of the chart into evidence.

Subsequently, Melvin appealed, claiming, inter alia, 

that the chart was inadmissible under Rule of Evidence 1006, which provides in pertinent part:

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.

The court agreed, citing to the opinion in Wheatfall v. State, 882 S.W.2d 829 (Tex.Crim.App. 1994), in which the Court of Criminal Appeals of Texas found that the admission of a five-page summary of the defendant's criminal history was erroneous because

[w]hile rule 1006 clearly contemplates the admission of summaries in certain instances, the rule in no way indicates that a prosecutor can summarize her case on legal paper and submit those documents to the trial court as "evidence." The adversarial system permits such summaries by one side during closing arguments, but they are arguments and not admitted as evidence to the jury. Admission of these documents under this theory was clearly error.

Nonetheless, the court in Melvin noted that the court in Wheatfall found this error to be harmless and found the same with regard to the error before it. But why did the court even find an error based upon violation of Texas Rule of Evidence 1006? As Article 37.07, section 3(a)(1) of the Texas Criminal Code makes clear, the rules of evidence do not apply at sentencing, with the court being allowed to admit any evidence it deems relevant to sentencing? Was the chart not relevant to sentencing?

Although it did not cite to its reasoning in great detail, the court did cite to the opinion of the Court of Appeals of Texas, Houston, in Markey v. State, 996 S.W.2d 226 (Tex.App.-Houston [14 Dist.] (1999). And in that opinion, in which a similar summary had also been admitted, the court concluded that

For evidence to be admissible it must be relevant...."Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence....Thus, charts, graphs, maps, diagrams, or other exhibits prepared for courtroom use which clarify or illustrate some fact in issue may, in the trial court's discretion, be admitted into evidence....However, a mere summary of other evidence already before the jury constitutes no proof of any fact in issue. It has no inherent probative value and it can rarely provide any significant assistance to the trier-of-fact. The summary presented in this case was, in essence, an argument, and the trial court  erred in admitting it into evidence.

l'm not sure that I agree that the charts in Melvin an Markey were completely irrelevant to sentencing, but I do know that the court in Melvin should have decided the admissibility of the summary on this ground and not based upon Texas Rule of Evidence 1006.

-CM

Ace In The Hole: Seventh Circuit Deems Neurologist's Testimony Properly Excluded Based Upon Late Disclosure

Under Federal Rule of Civil Procedure 26(a)(1)(A)(i),

Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

Moreover, Federal Rule of Civil Procedure 26(a)(2), requires the proponent of expert testimony to disclose the witness' identity, along with a written report that contains, among other things, a “complete statement of all opinions the witness will express and the basis and reasons for them." And, as the recent opinion of the Seventh Circuit in Happel v. Walmart Stores, Inc., 2010 WL 1529010 (7th Cir. 2010), makes clear, the sanction for noncompliance with this latter rule is typically automatic and mandatory exclusion of the expert's testimony.

In Happel, 

Heidi Happel was diagnosed with Multiple Sclerosis in 1990. After the diagnosis, she did not experience any symptoms of the disease until August 1993, when a Walmart pharmacy negligently filled-and Heidi ingested-a prescription with Toradol, a medication to which Heidi was allergic. Heidi believed that the medication, which triggered a severe reaction, was the impetus for a rapid decline in her health, so she and her husband, Kent, sued Walmart. After an eight-day trial, a jury awarded the Happels $465,400 in compensatory damages. But the plaintiffs argue[d]...that the...trial court should have allowed them to present expert witness testimony to demonstrate that the allergic reaction to the prescription drugs exacerbated Heidi's condition.

One of these experts was Dr. Peter Bringewald, a neurologist specializing in optic neurology. 

Before trial, the Happels filed initial and amended disclosures pursuant to Federal Rule of Civil Procedure 26. In both disclosures, they listed Dr. Bringewald under subsection (a)(1) as a person with discoverable information, but did not disclose him as an expert or tender his expert report which is required by subsection (a)(2). Less than two months before trial, the Happels attempted to list Dr. Bringewald as an expert witness in their pre-trial order, seeking to elicit testimony that psychological stress from the Toradol incident exacerbated Heidi's MS. Walmart filed a motion in limine to exclude Dr. Bringewald's proffered expert testimony, arguing that he had not been properly disclosed....The district court granted Walmart's motion, stating that "[p]laintiffs' attempt to elevate their treating doctors' status by listing them as experts in the pre-trial motion, without rendering the required expert reports to defendant, fails as an attempt to subvert the requirements of Rule 26(a)(2)(B)." 

Upon the Happels' appeal, the Seventh Circuit agreed with this conclusion, finding that

plaintiffs' failure to disclose him as an expert witness during pre-trial discovery. Rule 26(a)(2) of the Federal Rules of Civil Procedure requires the proponent of expert testimony to disclose the witness's identity, along with a written report that contains, among other things, a "complete statement of all opinions the witness will express and the basis and reasons for them." The sanction for failure to comply with this rule is the "automatic and mandatory" exclusion from trial of the omitted evidence, “unless non-disclosure was justified or harmless."...The Happels do not challenge this ruling; they did not even mention it in their opening brief....So we cannot find that the district court abused its discretion in excluding Dr. Bringewald's opinion testimony.

-CM

Pleading In: Court Of Appeals Of Ohio Finds Plea Allocution Qualified As A Statement Against Interest

Similar to its federal counterpart, Ohio Rule of Evidence 804(B)(3) provides an exception to the rule against hearsay for

A statement that 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 the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement.  

I had never really thought about it before, but as the recent opinion of the Court of Appeals of Ohio, Sixth District, in State v. Jones, 2010 WL 1633340 (Ohio App. 6 Dist. 2010), makes clear, a plea allocution by an unavailable declarant should qualify as a statement against interest under this Rule.

In Jones, Marquise Jones was convicted of 17 felony offenses in connection with an orchestrated, armed assault and robbery of a group of men. At trial, the prosecution called Jones' brother to the witness stand. Jones' brother was also allegedly involved in the assault and robbery and entered a guilty plea pursuant to a plea agreement. At the brother's trial, the court required the brother to give a plea allocution, i.e., a statement of what he did and why he did it.

At Jones' trial, the brother invoked his Fifth Amendment privilege against self-incrimination. The prosecution then admitted relevant portions of the brother's plea allocution, including a portion in which he stated:

"My brother called me. He picked me up. We went to Charlotte Duke's house. I went in the opposite room. They was all discussing. My brother had ski masks. I didn't know he had no guns on him. I knew he had ski masks. I didn't know he had no guns."

After he was convicted, Jones appealed, claiming, inter alia, that his brother's plea allocution was improperly admitted as a statement against interest under Ohio Rule of Evidence 804(B)(3). The Court of Appeals of Ohio disagreed, finding that

A plea allocution is conducted only after the individual has been fully apprised of and waived a litany of constitutional rights, including Fifth Amendment rights. As such, the allocution statement was unprotected as a matter of law and thereby admissible. In conformity with this legal truism, Evid.R. 804(B)(3) establishes that a statement against interest is admissible when the declarant, "(1) was unavailable to testify at trial; (2) the confession tended to subject them to criminal liability such that a reasonable person in their position would not have made the confession unless they believed it to be true; and (3) collaborating circumstances clearly indicate the trustworthiness of the confession."

We find that given the witness's refusal to cooperate in questioning, even when limited in scope to the making of the plea allocution statement in conjunction with the fact that the allocution statement rendered the witness criminally liable and led to his conviction and incarceration, the allocution statement is admissible pursuant to the criteria set forth in Evid.R. 804(B)(3).

(As a side note, is "truthworthiness" a word? It sounds to me more like a counterpart to Stephen Colbert's truthiness than an actual word).

-CM

Ask The Doctor: Does Rule 803(4) Require Inquiries Into the Declarant's Motive?

Like its federal counterpart, Iowa Rule of Evidence 5.803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 

In its recent opinion in State v. Bentley, 2010 WL 1576832 (Iowa App. 2010), the Court of Appeals of Iowa claimed that the Tenth Circuit has found that the second prong of a test commonly used in connection with the federal counterpart "is unnecessary because it essentially duplicates the language of the rule of evidence." I disagree with this conclusion and also disagree with the Tenth Circuit opinion at issue.

The facts in Bentley are unimportant to this post. All that is important is that the facts prompted the court to consider Iowa Rule of Evidence 5.803(4). And, according to the Court of Appeals of Iowa, Iowa courts have adopted the two prong test from United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985), to determine the applicability of the hearsay exception for statements made for purposes of medical diagnosis or treatment:

[F]irst the declarant's motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.

In the accompanying footnote, the court noted that "[o]ne federal circuit court has noted that the second prong of the Renville test is unnecessary because it essentially duplicates the language of the rule of evidence. United States v. Joe, 8 F.3d 1488, 1494 n.5 (10th Cir. 1993)." 

But is that what the Tenth Circuit really held? Let's look at the pertinent part of footnote 5:

The first prong of this two-part test inquires into the declarant's motive. Such inquiries, however, were not contemplated by the rule; the rule itself has built-in guarantees that assure the trustworthiness of a statement made for purposes of medical diagnosis or treatment....The second prong, which assures that the content of the statement (in these cases the identity of the abuser) is reasonably relied on by the physician in treatment or diagnosis, merely rephrases the 803(4) requirement that the statement be "reasonably pertinent to diagnosis or treatment." In short, the plain language of Rule 803(4) should guide us in determining the admissibility of statements made for purposes of medical diagnosis or treatment.

I don't think that the Tenth Circuit was saying that the second prong is unnecessary; rather, it found that the second prong correctly rephrases the the plain language of Rule 803(4) and is thus the prong that courts should apply. Instead, the crux of the Tenth Circuit's opinion seems to be that the first prong is unnecessary and should not be applied by courts because it was "not contemplated by the rule."

Really? The way I read Rule 803(4), it covers statements which were (1) made for purposes of medical diagnosis and (2) reasonably pertinent to diagnosis or treatment. The way I see it, the first prong corresponds with this first clause. I also think that the first prong makes sense given one of the main rationales behind this hearsay exception.

Hearsay is generally inadmissible because it is unreliable. Statements made for purposes of medical diagnosis or treatment, however, are admissible based in large part on the "selfish-motive doctrine.  In other words, a person seeking medical treatment is unlikely to lie to a medical professional and risk a misdiagnosis or mistreatment."  

So, let's say that Patient goes to Doctor, and Doctor asks what he has been up to. Patient responds that he has been playing a lot of tennis recently. Doctor then asks what is wrong. Patient responds that he has a lot of pain in his elbow. Doctor eventually diagnoses Patient with Tennis Elbow. Now, let's assume that Patient is aware of Tennis Elbow and told Doctor about his tennis playing so that he could be diagnosed/treated. We would expect Patient's statement about playing a lot of tennis lately to be reliable because a lie could results in misdiagnosis/mistreatment. But let's say that Patient is unaware of Tennis Elbow and is simply telling Doctor about his tennis playing to make small talk. In this case, we wouldn't expect the statement to be more reliable than Patient's statement to Friend that he has been playing a lot of tennis recently. And just like Patient's statement to Friend, Patient's statement to Doctor under these circumstances should be deemed inadmissible hearsay.

-CM 

Murphy's Law: New Jersey Court Finds Admission Of Defendant's 17 Year-Old Conviction Required Reversal

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.

Moreover, the Advisory Committee's Note to the Rule 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." Conversely, New Jersey Rule of Evidence 609 merely provides that

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

Under this Rule, it is thus unclear how New Jersey courts should treat convictions that are more than ten years old, but it is clear that convictions more than sixteen years old will almost never) be admissible, at least according to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Murphy, 2010 WL 1609379 (N.J.Super.A.D. 2010).

In Murphy, Karl Murphy was convicted of third-degree possession of a controlled substance. At trial, the court deemed Murphy's seventeen year-old conviction for possession of a controlled dangerous substance admissible to impeach him. This ruling formed the partial basis for Murphy's appeal.

And according to the Superior Court of New Jersey, Appellate Division, 

unlike Fed.R.Evid. 609(b), N.J.R.E. 609 contain[s] no benchmark or brightline rule to assist trial judges in making the determination of when a conviction has become so remote that its probative value for impeachment purposes is outweighed by its potential for undue prejudice.

The court went on to find, however, that 

The only reported decision ever to have permitted a defendant to be impeached with a conviction nearly as old as this one was State v. Paige,...in which the State was permitted to impeach the defendant's credibility with a conviction that had occurred sixteen years earlier.  

The court, however, did not find the present conviction comparable to the conviction in Paige because

defendant's prior conviction for possession of CDS with intent to distribute pales in comparison to the murder conviction used for impeachment purposes in Paige. Obviously, the more serious the prior conviction, the greater its probative value....Defendant's prior conviction here cannot be said to be of that character, as he received only a probationary sentence at the time of his 1990 conviction.

Because the court found that this error was not harmless, it thus reversed Murphy's conviction.

-CM

For Your Eyes Only: Court Of Appeals Of Ohio Finds Trial Court Erred By Allowing Witness To Read Rule 612 Writing Aloud

Like its federal counterpart, Ohio Rule of Evidence 612 indicates that

Except as otherwise provided in criminal proceedings by Rules 16(B)(1)(g) and 16(C)(1)(d) of Ohio Rules of Criminal Procedure, 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. The adverse party is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.  

In other words, if a witness once had personal knowledge of an event but now lacks memory of that event, an attorney can use a writing to refresh the witness' recollection and allow the witness to testify independent of the writing. Thus, the witness cannot read aloud from the writing under Rule 612; that can only be done if the writing also qualifies for admission as a recorded recollection under Ohio Rule of Evidence 803(5) (or is otherwise admissible). An Ohio trial court recently missed this point, leading to the recent opinion of the Court of Appeals of Ohio, Twelfth District, in State v. Miller, 2010 WL 1534104 (Ohio App. 12 Dist. 2010).

In Miller, Kimble Miller was convicted of child endangering. Specifically, the prosecution claimed that Miller

shook his 38-day-old daughter four to five times, causing her head to go back and forth, after she would not drink her bottle. Upon her arrival at Cincinnati Children's Hospital, the child was diagnosed as being "neurologically devastated" with a "global dying off of the brain." The child also had several rib fractures, some old, some new, and fractures on one foot. The hospital was able to keep her alive but her brain could not be saved; her brain injuries are permanent. As a result of her injuries, the child has cerebral palsy and vaso quadriplegia, and is at a "continual risk for death."

At trial, Lindsey Breen, the child's mother, testified as a witness for the prosecution. At one point during Lindsey's testimony, she stated that the child did not cry at birth, and was not alert or active. Therefater,

The prosecutor asked Lindsey to review the nurse's notes, and then asked her to read aloud what was written at the bottom of the notes. Lindsey complied and read: "Alert, active, lusty cry." Subsequently, Lindsey testified the notes were incorrect as the child did not cry at birth. The nurse's notes were certified, marked as a state exhibit for identification, but never offered in evidence.

After he was convicted, Miller appealed, claiming, inter alia, that the trial court only deemed the notes admissible under Ohio Rule of Evidence 612, meaning that Lindsey could not read them aloud while testifying. The appellate court agreed, noting that

A party may refresh the recollection of a witness under Evid.R. 612 by showing him a prior writing. However, the party may not read the statement aloud, have the witness read it aloud, or otherwise place it before the jury....Rather, the witness should read the writing silently to refresh his recollection....If his recollection has been revived, the witness may then continue with his testimony....The writing used to refresh the witness' recollection is not admitted into evidence unless admission is requested by the adverse party.

The court thus concluded that

the prosecutor's examination of Lindsey did not comport with the rules governing how a party may refresh the memory of its own witness with a writing. The prosecutor did not simply show the nurse's notes to Lindsey. Rather, the prosecutor had Lindsey read aloud the statement in the nurse's notes describing the child at birth as “alert, active, lusty cry.” The manner in which the prosecutor had Lindsey read aloud was more indicative of impeachment techniques and as such violated the purpose of Evid.R. 612. Evidence that the child cried at birth was therefore improperly admitted.

(Based upon the other evidence in the record, however, the court deemed the error to be harmless)

-CM 

You Can Learn A Lot From A Dummy: Federal Circuit Reads "Qualified Witness" Language Out Of Rule 803(6) In Dicta In Crash Test Dummies Action

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

So, who constitutes a qualified witness? And does that witness need personal knowledge regarding the creation of the document offered, or personal participation in its creation, or knowledge of who actually recorded the information? In its recent opinion in Crash Test Dummy Movie, LLC v. Mattel, Inc., 2010 WL 1508203 (Fed. Cir. 2010), the Federal Circuit suggested that the answer to this latter question is "no." I disagree.

In Crash Test Dummy Movie, LLC v. Mattel, Inc., 2010 WL 1508203 (Fed. Cir. 2010),

Mattel's predecessor-in-interest, Tyco Industries, Inc...., first produced a line of toys under the CRASH DUMMIES marks in 1991. In 1993, Tyco obtained federal trademark registrations for the CRASH DUMMIES marks...Tyco sold toys under the CRASH DUMMIES marks through at least 1994....

On July 14, 1995, CDM entered into an option agreement with Tyco to produce a motion picture based on Tyco's line of toys sold under the CRASH DUMMIES marks. The option agreement expired on July 14, 1996. Although CDM attempted to renegotiate a license later that year, Tyco declined to enter into another option agreement with CDM....

In the mid-1990's, Tyco experienced financial difficulties and began negotiating an acquisition with Mattel. On February 12, 1997, Tyco assigned its trademark portfolio, including the CRASH DUMMIES marks, to Mattel. Mattel officially purchased Tyco on December 31, 1997. Mattel later recorded Tyco's assignment with the United States Patent Trademark Office (“USPTO”) on February 13, 1998....

From 2000 to 2003, Mattel worked on developing a new line of toys under the CRASH DUMMIES marks. In 2000, Mattel began brainstorming ideas for CRASH DUMMIES toys. Mattel researched, developed, and tested its new toys as early as 2001, and obtained concept approval by 2002. Mattel began manufacturing CRASH DUMMIES toys in October 2003, and ultimately reintroduced them into the market in December 2003. While Mattel was developing new toys, the USPTO cancelled the registrations for the CRASH DUMMIES marks on December 29, 2000, because Mattel did not file a section 8 declaration of use and/or excusable nonuse for the marks.

On March 31, 2003, CDM filed an intent-to-use application for the mark CRASH DUMMIES for games and playthings. Mattel opposed CDM's application, claiming priority to Tyco's prior registration and use of the CRASH DUMMIES marks.

In proceedings connected to the lawsuit conducted by the Trademark Trial and Appeal Board, Mattel introduced into evidence product development documents pursuant to Federal Rule of Evidence 803(6). At the time, CDM actually stipulated that the documents were business records of Mattel and Tyco. Thereafter, however, CDM claimed that Mattel failed to lay a proper foundation for admission of the documents, and the United States Court of Appeals for the Federal Circuit found this argument to be without merit based upon CDM's stipulation.

The court then went on to note that even if this were not the case, Mattel properly introduced the documents through a qualified witness, Peter Franks, Mattel's marketing manager. According to the court,

Although Frank began working at Mattel in August 2003 and thus may not have first-hand knowledge of Mattel's product development, he testified that he had learned about the history of the CRASH DUMMIES product line upon joining Mattel's INCREDIBLE CRASH DUMMIES team. He also acknowledged that he had reviewed Tyco and Mattel's documents and spoke with employees who had been with Tyco and Mattel during the relevant time period. The Board reasonably found that Frank was sufficiently competent and trustworthy to testify on the issues before him.  

In other words, the Federal Circuit seems to agree with courts such as the Eighth Circuit, which has found that

As long as the other requirements of the business records exception are met, a custodian or "other qualified witness" need not have personal knowledge regarding the creation of the document offered, or personally participate in its creation, or even know who actually recorded the information. Resolution Trust Corp. v. Eason, 17 F.3d 1126, 1132 (8th Cir. 1994). 

Conversely, other courts require a qualified witness to have such personal knowledge. See, e.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). I don't see how the former courts can justify their conclusions. In effect, these courts are reading the qualified witness requirement out of the rule, essentially holding that a qualified witness is not needed if all of the other elements of the Rule are satisfied.

-CM

Community Of Interest: Eleventh Circuit Fails To Reach "Predecessor In Interest" Ruling In Maritime Appeal

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

So, who qualifies as a predecessor in interest? Unfortunately, that was a question left unanswered by the Eleventh Circuit in its recent opinion in Hearn v. McKay, 2010 WL 1490344 (11th Cir. 2010).

In McKay, Michael McKay was the National President of AMO, a maritime labor organization, from 1994 until early in 2007, and Robert McKay, Michael's brother, was its Secretary Treasurer from 1994 until 2006. The Department of Justice opened a criminal investigation to determine whether certain AMO officers used their positions to violate federal law, resulting in a federal grand jury indicting Michael and Robert McKay for participating in a RICO conspiracy involving theft and embezzlement from the union and from the benefit plans, mail fraud, and committing Labor Management Reporting and Disclosure Act (LMRDA) record keeping violations.

Members of the AMO later brought a civil action against the McKays and other defendants, asserting, inter alia, violations of the LMRDA. Two witness who had testified against the McKays at their criminal trial were unavailable at the civil trial, leading the plaintiffs to try to introduce their testimony under Federal Rule of Evidence 804(b)(1). The district court found that this former testimony exception was inapplicable because the McKays were mot predecessors in interest to the defendants in the civil trial. After the district court entered a default judgement against the McKays but granted partial summary judgment in favor of the other defendants, the plaintiffs appealed, claiming, inter alia, that the court erred in this evidentiary ruling.

The Third Circuit found however, that it did not need to "interpret the meaning of Rule 804(b)(1)'s "predecessor in interest" clause today" because "[e]ven if the district court erred by refusing to admit the prior testimony, that error was harmless." I wish that the court, though, had addressed the issue because

Courts have produced four different interpretations of the term 'predecessor in interest.' First, some courts have construed the term to mean common law privity. Second, under certain circumstances, courts have treated the United States government as the predecessor in interest of an individual bringing a related private action. Third, courts have determined that a governmental unit sharing a 'community of interest' with a party in a subsequent proceeding is a predecessor in interest of that party. Finally, some courts have viewed any party sharing a 'similar interest and motive' with a party in a subsequent proceeding as a predecessor in interest. Mark Lawrence, The Admissibility of Former Testimony Under Rule 804(b)(1): Defining a Predecessor in Interest, 42 U. Miami L. Rev. 975, 987 (1988).

My sense in that most courts have opted for this last interpretation, which would obviously seem at odds with the ruling of the district court in McKay. Unfortunately, based upon the Eleventh Circuit's opinion, however, we won't find out which how that court views the "predecessor in interest" clause

-CM

The Ultimate Driving Machine?: Third Circuit Seemingly Errs In Subsequent Remedial Measure Dicta In Action Against BMW

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

It is well established that this Rule only precludes the admission of evidence of subsequent remedial measures taken by parties, not evidence of subsequent remedial measures taken by non-parties; consequently, I can't understand the Third Circuit's contrary conclusion (in dicta) in Jacobson ex rel. Jacobson v. BMW of North America, LLC, 2010 WL 1499809 (3rd Cir. 2010).

In Jacobson, 

On May 4, 1999, Robert Jacobson drove [his] BMW 325i to do errands with his two sons, Ryan and Christopher. Ryan, age 12, was seated in the front passenger seat, and Christopher, age 9, was seated in the rear passenger seat. Robert Jacobson stopped at Sam's Bar, in Dormont, Pennsylvania, to buy a six-pack of beer for a family cookout....He claims that, when he parked the car, he placed the shift lever into the “Park” position, turned the engine off, set the parking brake, and removed the keys from the ignition, before exiting the vehicle and entering the bar.....

The parking lot of the bar is on a slope. While his father was inside the store, Ryan began playing with the gear shift lever....While playing, Ryan disengaged the gear shift lever from the "Park" position, shifting it into either "Reverse" or "Neutral," and the car began to drift backwards down the slope. Ryan tried to move the gear shift back into the "Park" position, but was unable to do so.

Ryan and Christopher became scared, and Christopher climbed into the front seat and exited through the driver's side window unhurt. Ryan exited through the passenger side window, but fell to the ground and was struck by the right front part of the car. He sustained multiple fractures, contusions, and lacerations, as well as injuries to his brain and left eye. 

Jacobson thereafter filed suit on behalf of  Ryan against BMW, alleging that BMW was strictly liable for Ryan's injuries because the design of the car was defective. Specifically,

He asserted that BMW should have equipped the vehicle with either a Brake Shift Interlock (“BSI”), a device which would have prevented the car from shifting out of “Park” unless the brake pedal was depressed, or a Park Lock System (“PLS”), a device which would have prevented the gear shift from moving out of “Park” unless the key was in the ignition and had been turned out of the “Lock” position (collectively "Lock Systems").

Before trial,

BMW filed a motion in limine seeking to exclude evidence of other car manufacturer recalls (by Nissan in 1987 and Jeep in 1994) in order to retrofit their vehicles with Lock Systems. While Jacobson had adduced this evidence to show that it would have been feasible for BMW to have included a Lock System in its vehicles at the time the 325i was manufactured, BMW asserted that it would not contest feasibility at trial. The parties agreed to a stipulation that the Lock Systems were “technologically and economically feasible” at the relevant time, and the District Court therefore excluded the evidence of other recalls.

After the jury returned a verdict in favor of BMW, Jacobson appealed, claiming, inter alia, that evidence of these other recalls should have been admissible to prove that the BMW was unsafe without a Lock System. The Third Circuit disagreed, finding that

Notwithstanding the fact that this evidence may have been admissible under Federal Rule of Evidence 407, which allows for evidence of subsequent remedial measures to be admitted in certain instances, it was not necessary to admit this evidence here, since BMW had stipulated to feasibility. It was also not unreasonable to exclude it. Although Jacobson now argues that this evidence would also have shown that the BMW was unsafe without a Lock System, he did not advance this argument in the District Court, and we will not consider it for the first time on appeal.

I agree with most of the court's conclusion but not its conclusion that the evidence may have been inadmissible under Federal Rule of Evidence 407. As the Third Circuit has previously stated, Rule 407 only applies to subsequent remedial measures taken by parties, not subsequent remedial measures taken by no-parties. See, e.g., Diehl v. Blaw-Knox, 360 F.3d 426, 430 (3rd Cir. 2004). Of course, this conclusion was merely dicta and there easily could have been other grounds for excluding the evidence, but the Third Circuit's conclusion still seems plainly wrong.

-CM

 

Quantum Of Stealth: Court Of Appeals Of Minnesota Finds Gross-Misdemeanor Theft Qualified As Crime Of Dishonesty Or False Statement

Like Federal Rule of Evidence 609(a)(2), Minnesota Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime...involved dishonesty or false statement, regardless of the punishment.

As the Advisory Committee's Note to Federal Rule of Evidence 609(a)(2) notes, very few crimes qualify as crimes of dishonsety or false statement:

By that phrase, the committee means crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

In its recent opinion in State v. Gaiovnik, 2010 WL 1439156 (Minn.App. 2010), the Court of Appeals found that one of the defendant's prior convictions qualified for admission under Minnesota Rule of Evidence 609(a)(2). I'm not sure that I agree.

In Gaiovnik, Christopher Gaiovnik was convicted of simple robbery and theft from a person. At trial, the court allowed the prosecution to impeach Gaiovnik under Minnesota Rule of Evidence 609(a)(2) through, inter alia, his 2006 conviction for gross-misdemeanor theft.

The complaint in the 2006 case allege[d] that appellant entered a bar with two other people, and the three sat at a back booth and had a couple drinks. After several employees left the bar, appellant left the booth, walked into a back hallway, pried open the door to a room where night-deposit bags were kept, and took six bags. Appellant then went to the bathroom before returning to the booth. When he reached the booth, the other two people immediately stood up, and the three walked out of the bar and avoided the surveillance-camera angles as they left.

After he was convicted, Gaiovnik appealed, claiming, inter alia, that this prior conviction did not involve a crime of dishonesty or false statement. The Court of Appeals of Minnesota disagreed, finding that "[t]he ruse of being a bar patron was deceit used to commit the theft." To me, this seems inconsistent with the way that the vast majority of courts construe crimes like theft and larceny. For instance, check out the following passage from United States v. Estrada, 430 F.3d 606, 614-15 (2nd Cir. 2005):

The district court did not err...in determining that the circumstances of Padilla's larceny convictions did not involve falsity or deceit such as to fall within the ambit of Rule 609(a)(2). See United States v. Hayes, 553 F.2d 824, 827 (2d Cir.1977) (noting that "crimes of force, such as armed robbery or assault, or crimes of stealth, such as burglary or petit larceny, do not come within" Rule 609(a)(2) (internal citations omitted)); cf. United States v. Sellers, 906 F.2d 597, 603 (11th Cir.1990) ("[C]rimes such as theft, robbery, or shoplifting do not involve ‘dishonesty or false statement’ within the meaning of Rule 609(a)(2)."). While much successful crime involves some quantum of stealth, all such conduct does not, as a result, constitute crime of dishonesty or false statement for purposes of Rule 609(a)(2). See Hayes, 553 F.2d at 827 (stating that Congress limited the crimes covered by Rule 609(a)(2) because of the Rule's inflexibility and noting that a conviction that "involved nothing more than stealth" could not be introduced automatically under Rule 609(a)(2); cf. United States v. Brackeen, 969 F.2d 827, 829-30 (9th Cir.1992) (en banc) (distinguishing between the broad meaning of "dishonesty" as a lack of integrity or principles and its narrow meaning under Rule 609(a)(2) as a disposition to deceive).

The way I see it, Gaiovnik's prior crime was the classic crime of theft involving some quantum of stealth but an insufficient quantum of dishonesty of deceit to qualify it as a crime of dishonesty or false statement.

-CM

Avoiding A Confrontation?: Eleventh Circuit Finds That Melendez-Diaz Did Not Do Away With Rule 703

In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant's trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their "own" conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).

In Winston, Robert Earl Winston was convicted of aiding and abetting another who murdered Haines City Police Officer Christopher Todd Horner with the intent to prevent Officer Horner from communicating to law enforcement or a judge information related to the commission of a federal offense, and aiding and abetting another who knowingly used and carried a firearm during and in relation to a crime of violence, and, in the course thereof, murdered Officer Horner.

The opinion in Winston doesn't give us many details, but it does tell us that a medical examiner prepared a forensic report and did not testify at Winston's trial. Another medical examiner, however, reviewed the report and offered his "own" conclusions based upon this report, with the report not being admitted into evidence.

After he was convicted, Winston appealed, claiming that the admission of the medical examiner's testimony violated his rights under the Confrontation Clause based upon the Supreme Court's opinion in Melendez-Diaz v. Massachusetts. The Eleventh Circuit disagreed, finding that the testimony was admissible under Federal Rule of Evidence 703, which provides in relevant part that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

In my earlier post on this subject, I stated some of my reasons for disagreeing with this general proposition. There is one sentence in Winston, however, that I find particularly problematic. The Eleventh Circuit found no problem with the medical examiner's testimony because "As the Seventh Circuit stated in United States v. Turner, 591 F.3d 928, 934 (7th Cir.2010), “Melendez-Diaz did not do away with Federal Rule of Evidence 703."

Huh? That would be like an appellate court saying that a nontestifying declarant's excited utterance was admissible without regard to the Confrontation Clause because Crawford v. Washington did not do away with Federal Rule of Evidence 803(2). Such a statement would make no sense because Rule 803(2) only deals with the issue of whether a statement is admissible notwithstanding the rule against hearsay, not the issue of whether it is admissible notwithstanding the Confrontation Clause.

The same should be true with Rule 703. Rule 703 only deals with the issue of whether expert testimony is based upon a proper factual predicate; it does not deal with the issue of whether it is admissible notwithstanding the Confrontation Clause.

-CM

Raising Arizona: Second Circuit Finds Statement Against Interest Was Properly Admitted To Prove Interstate Component Of Hobbs Act Violation

The Hobbs Act, 18 U.S.C. Section 1951(a), provides that

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

Usually, the fact that a defendant was charged with violating the Hobbs Act would not play a factor in an evidentiary ruling. But the fact that the defendants were charged with violating the Act possibly played a large role in an evidentiry ruling in United States v. White, 2010 WL 1461645 (2nd Cir. 2010).

In White, O'Kene White and Antonio Scott were convicted of conspiracy to commit and attempted robbery in violation of the Hobbs Act, attempted possession of marijuana with intent to distribute, and possession and discharge of firearms during and in furtherance of the charged crimes. One of the victims of the attempted robbery was Christopher Farquharson, a/k/a "Blacks," and

Stacy Roberts, Blacks's girlfriend and one of the victims of defendants' robbery attempt, testified, inter alia, that defendants had asked her, "where's Blacks's stuff," and that Blacks had told her that he bought and sold two types of marijuana: "regular" and "Arizona." Drug Enforcement Administration Special Agent Craig Phildius testified that “Arizona” marijuana is grown in Mexico (and to a lesser degree in Arizona) and shipped through Arizona, and that “regular” marijuana is also grown primarily in Mexico.

The district court allowed for the admissio of Roberts' testimony, finding that Blacks' statement qualified as a statement against penal interest under Federal Rule of Evidence 804(b)(3).  Among other things, this ruling led to the defendants' appeal, with the defendants claiming that the probative value of Blacks' statement was substantiall outweighed by the danger of unfair prejudice under Federal Rule of Evidence 403. The Second Circuit, however, did not address this argument in great detail, finding that Blacks' statement was relevant to proving that defendants' robbery would have had the requisite "slight, subtle or even potential" impact on interstate commerce necessary to prove a violation of the Hobbs Act.

-CM

Eyewitness Account: Supreme Court Of Louisiana Precludes Expert Testimony On Inaccuracy Of Eyewitness Identifications

I have done several posts on this blog (here, here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. In a recent post, I noted that "My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it." That post addressed a recent opinion in which the Supreme Court of Utah reversed past precedent and allow for the admission of expert testimony on the inaccuracy of eyewitness identifications. This post addresses a recent opinion, State v. Young, 2010 WL 1286933 (La. 2010), in which the Supreme Court of Louisiana adhered to prior precedent and refused to allow for the admission of expert testimony on the inaccuracy of eyewitness identifications.

In Young, 

East Baton Rouge Parish detectives responded to the late night shooting of two persons in a restaurant parking lot. Upon their arrival, the male victim, Aaron Arnold, was unresponsive with gunshot wounds to his upper body. He never regained consciousness and ultimately died from his injuries. The female victim, Dionne Grayson, was lying on the ground with gunshot wounds to her legs. She provided statements to detectives at the scene and hours after her admission to the hospital. Ms. Grayson informed detectives that, after leaving work, she and Mr. Arnold were in the process of putting gasoline in her vehicle when a white automobile occupied by two men pulled alongside them. She stated a black male brandishing a semiautomatic handgun exited the passenger front seat and demanded their wallets. Ms. Grayson claimed the individual shot them before they could fully comply with his request. She gave a description of the gunman's physical features.

Nancy Segura witnessed the attempted robbery and shootings. She was sitting in a vehicle in close proximity to Ms. Grayson's car, while waiting for a friend to leave work. She was not noticed by the assailants....

During the course of the police investigation, a confidential informant provided detectives with information regarding the involvement of Sanchez Brumfield, the getaway driver and the defendant's cousin. This led to information from Mr. Brumfield linking the defendant and his vehicle to the crime. Ms. Segura identified the defendant from a photographic lineup as the individual who shot Mr. Arnold and Ms. Grayson. Detectives ran the defendant's name in their computer files and learned that a white vehicle similar to the model described as being involved in the crime was registered to the defendant's home address. The defendant was later arrested. Near the time of the arrest, Ms. Grayson was presented with a photographic lineup and identified the defendant as the gunman.  

The defendant, Tracey Young, was eventually charged with first degree murder in connection with these crimes, and he sought, inter alia, to present expert testimony regarding the unreliability of eyewitness identifications. The trial court noted that in State v. Stucke, 419 So.2d  939 (La. 1982), the Supreme Court of Louisiana had deemed such testimony inadmissible because it improperly invades the province of jurors. The court, however, bought defense counsel's argument "that scientific advances in the study of eyewitness identifications since Stucke indicate[d] the probative value of the admission of expert testimony on the subject, when properly admitted, outweighs any prejudicial effect on the jury's decision-making process." Specifically, at a Daubert hearing,

The defendant's proposed expert, Dr. Roy S. Malpass, Ph.D., a Texas psychology professor, testified regarding his credentials and education. He summarized his publications, professional affiliations, past and present research in facial recognition and eyewitness identification, and prior acceptance in other jurisdictions as an expert in the psychology of eyewitness identifications. Following cross-examination, the State conceded the witness was an expert in the field of psychology, but urged that the psychology of eyewitness identification is not a discipline recognized in the scientific community. The court directed its own questions to Dr. Malpass. Subsequently, the court accepted the witness as an expert in the science of psychology with a special emphasis in the field of eyewitness identification.

Thereafter, Dr. Malpass testified that he had reviewed the police reports and found that the case presents issues of cross-race identification, gun focus, the effects of stress, estimates of confidence, and the impact of identification protocol on the outcome. He testified in general about these factors based on his research. Following the parties' submission of written argument on the issue of the admissibility of Dr. Malpass' testimony, the district court ruled that the defense's expert would be permitted to testify at trial.

Subsequently, the Supreme Court of Louisiana granted the State's application for certiorari and found that

Unquestionably, eyewitness identifications can be imperfect. However, upon review, the touted advances in the social sciences regarding the validity of eyewitness identifications do not render obsolete the underlying premise for which such evidence was held to be inadmissible in Stucke. There is still a compelling concern that a potentially persuasive expert testifying as to the generalities of the inaccuracies and unreliability of eyewitness observations, that are already within a juror's common knowledge and experience, will greatly influence the jury more than the evidence presented at trial....By merely being labeled as a specialist in eyewitness identifications, an expert has the broad ability to mislead a jury through the "education" process into believing a certain factor in an eyewitness identification makes that identification less reliable than it truly is....Moreover, expert testimony on eyewitness identifications can be more prejudicial than probative because it focuses on the things that produce error without reference to those factors that improve the accuracy of identifications. The expert testimony presumes a misidentification, in the absence of presenting factors which support the validity of the identification. This fosters a disbelief of eyewitnesses by jurors.

This Court has long been reluctant to allow experts to offer opinions on the credibility of another witness for fear of the expert invading what is considered the exclusive province of the jury. Moreover, the concept of promoting battles of experts over whether the testimony of every witness is truthful and reliable is not desirable. These considerations are especially compelling in cases involving eyewitness identifications where any alleged deficiencies could easily be highlighted through effective cross-examination and artfully crafted jury instructions....

With this in mind, we decline to overrule our decision in Stucke barring the admissibility of eyewitness identification testimony.

Thus, in Louisiana, expert testimony about the inaccuracy of eyewitness identifications is still inadmissible.

-CM

Event Horizon: Eighth Circuit Finds District Court Failed To Identify Entirety Of Startling Event For Excited Utterance Purposes

Federal Rule of Evidence 803(2), the excited utterance exception, provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Absent an abuse of discretion, an appellate court will not reverse a trial court's ruling under the excited utterance exception. In its recent opinion in Brunsting v. Lutsen Mountains Corp., 2010 WL 1440350 (8th Cir. 2010), however, the Eighth Circuit found just such an abuse of discretion. And one of its reasons for doing so was that the district court failed to identify the entirety of the startling event for excited utterance purposes, which, according to the Eighth Circuit includes not just the underlying startling event, but its aftermath.

In Brunsting, Keith Brunsting and his friend, Trace Benson, were skiing at Lutsen and began skiing down the Alpha run,

a groomed, intermediate-level run that runs near or below the Timberwolf chairlift. After reaching the bottom, the men took the Timberwolf chairlift back to the top of the mountain. Brunsting then proceeded down the Alpha run again, while Benson waited behind at the top of the mountain. As Brunsting made his way down, he was spotted by two off-duty Lutsen employees-Sherry Christiansen and Henry Walch-who were on the Timberwolf chairlift. They witnessed Brunsting skiing down the run, then lose control and crash headfirst into a tree near the edge of the Alpha run. There was a partially exposed tree stump near the area where Brunsting had lost control and crashed.

Shortly thereafter, Benson-who did not witness the accident-began making his way down Alpha and soon came across Brunsting lying unconscious in the snow and bleeding from the mouth. From the chairlift, Christiansen saw Benson approach Brunsting and she yelled down at him to alert him of the accident. Christiansen and Walch arrived at the scene a short time later, having alerted Lutsen personnel at the top of the mountain of the accident. At that point, according to Benson, Christiansen told him that she "saw [Brunsting] stumble on a stump, then fall into a tree, hitting the tree with his head." A few moments later, a group of off-duty nurses who happened to have been skiing in the vicinity joined the scene. Because Brunsting was seriously injured and did not appear to be breathing, and looked blue, the nurses began performing CPR. They were able to get Brunsting breathing again, after which ski patrol personnel arrived and took Brunsting down the mountain for further medical attention. As a result of the brain injury Brunsting suffered that day, he has no memory of the accident or anything else about the trip to Lutsen Mountains. He is permanently disabled and is no longer able to work.

Brunsting thereafter sued Lutsen, claiming that Lutsen was negligent in the design, maintenance, operation, and supervision of its ski facilities by failing to remove a tree stump that caused Brunsting to lose control and crash. The district court granted Lutsen's motion for summary judgment, finding that Christiansen's statement regarding the stump  

did not qualify as an excited utterance where it was made four to five minutes after witnessing Brunsting's fall, it was made in response to Benson's inquiry and not spontaneously, Christiansen showed no outward signs of being in an excited state when she made the statement, and Christiansen and Brunsting were strangers.

On Brunsting's ensuing appeal, the Eighth Circuit disagreed, finding, inter alia, that

the district court abused its discretion...in its analysis of whether Christiansen's statement was made in reaction to a truly startling event, and whether the statement was made under the stress of excitement caused by that event. As to the first element regarding the existence of a truly startling event, perhaps the error of the district court is best articulated as its failure to identify the entirety of the "event" for purposes of the Rule 803(2) discussion. The court seems to have truncated the event, limiting its discussion of Christiansen's statement relative only to the singular event of Christiansen's witnessing of Brunsting's impact with the tree. For example, the court discusses the "four to five minutes" between the accident and Christiansen's statement to Benson, necessarily implying that the "startling event" occurred on the chairlift. Limiting the discussion in that manner was an abuse of discretion. It was the whole of the event that is relevant for purposes of the Rule 803(2) analysis: witnessing a near-fatal traumatic accident from the chairlift and immediately rushing to the scene where Brunsting was unconscious, bleeding from the mouth, turning blue and believed to be near death, as others tried to stabilize him until medical assistance arrived. It was a chaotic scene and Christiansen realized the gravity of the accident-that she might indeed be witnessing a man's death. The difference between the two definitions of what constitutes the "event" for purposes of the Rule 803(2) analysis is pivotal, as there was little or no time lapse between the latter-defined “event” and the statement at issue because the statement was made contemporaneously with the singular startling event.

-CM

Show Me Case: Missouri Court Of Appeals Finds Subsequent Remedial Measure Rule Applies To Inverse Condemnation Cases

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Missouri doesn't have codified rules of evidence (and while the Missouri constitution authorizes the Supreme Court of Missouri to create rules, that authorization specifically excludes rules of evidence). That said, Missouri courts have in effect applied Federal Rule of Evidence 407 in their precedent, and in its recent opinion in Rader Family Ltd. Partnership, L.L.L.P. v. City of Columbia, 2009 WL 1439017 (Mo.App. W.D. 2010), the Missouri Court of Appeals, Western District, found that the exclusionary portion of this Rule applies in nuisance cases generally and inverse condemnation cases specifically.

In Rader, the sewer backed up into the finished basement of a downtown building owned by Rader. It was later determined that the cause of the backup was grease in the sewer line and that the grease originated from restaurants upstream of the blockage. After incurring cleanup and removal costs, Rader sued the City of Columbia under, inter alia, a theory of inverse condemnation, contending that its building had been reduced in value because of the damage to the basement. At trial, Rader sought to present evidence of measures the City implemented to prevent grease-related sewage backups after Rader's building was damaged, but the trial court deemed this evidence inadmissible.

After the jury entered a verdict in favor of the City, Rader appealed, claiming, inter alia, that the trial court erred in deeming this evidence inadmissible. In response, the Missouri Court of Appeals, Western District, quoted the language of Federal Rule of Evidence 407 and noted that

Two primary reasons for the rule are: (1) "if precautions taken could be used as evidence of previous improper conditions, no one, after an accident, would make improvements"; and (2) subsequent changes are irrelevant to proving the previous condition.

The court then noted that the case before it was not the classic case of subsequent remedial measures being excluded when a plaintiff claims negligence and that the rule does not apply to all tort claims. The court then noted that the issue of whether evidence of subsequent remedial measure is admissible in nuisance/inverse condemnation cases was an issue of first impression in Missouri. And the court decided that such evidence is inadmissible in such cases, holding

we believe the public policy rationale for the exclusion applies here, perhaps even more so than in a typical negligence case. If plaintiffs were allowed to introduce evidence of subsequent remedial measures to prove a prior nuisance by an entity with the power of eminent domain, this could deter these entities from implementing preventative measures protecting the public. We also believe the evidentiary rationale has some application to inverse condemnation cases: while that the entity subsequently takes preventative measures could be probative of whether its prior operation was reasonable, such measures are not pertinent to showing the entity had prior notice of a problem. Hence, the trial court's decision to apply the rule against admission of subsequent remedial measures to this inverse condemnation suit was not arbitrary, unreasonable, or against the logic of the circumstances.

-CM

Forgive Me Father, Take 2: Supreme Court Of New Jersey Reverses Cleric-Penitent Privilege Ruling

Back in August 2008, I posted an entry about State v. J.G., 2008 WL 3850772 (N.J.Super.A.D. 2008), in which the Superior Court of New Jersey, Appellate Division reversed a trial court's decision to apply New Jersey's cleric-penitent privilege in the case of a man accused of sexually molesting his daughters. In response to the court's ruling, I wrote, "I agree with the court's conclusion but not its reasoning." Well, after the appellate division ruled against the defendant, he appealed to the Supreme Court of New Jersey, and that court disagreed both with the appellate division's reasoning and its conclusion in its recent opinion in State v. J.G., 2010 WL 1328844 (N.J. 2010).   

I listed the relevant facts in J.G. in my earlier post:

In J.G., in 2000, the defendant's children reported to their mother that their father had sexually abused them.  The mother then contacted her pastor, Glenford Brown, and reported the children's allegations.  While the defendant knew Brown from their native Jamaica, the defendant did not attend Brown's church in New Jersey.

Believing that he had a duty to protect the wife and children, Brown arranged to meet the defendant outside Brown's townhouse.  During that meeting, the defendant, "without directly saying [he] sexually molested them,...acknowledged what he did” and asked Brown, inter alia, "to counsel" him, but Brown declined because he was too angry with defendant and felt that he "needed real psychological help which [Brown] was not qualified to give."  A few weeks later, the defendant went to Brown's church, where he talked with Brown and "acknowledged what he did."  The defendant then asked Brown to baptize him, but Brown told the defendant he could not baptize him because Brown "thought he wanted cover for his actions" and urged the defendant to turn himself in to the police.

The defendant was subsequently charged with molesting his daughters, and he moved to preclude Brown from testifying about his confession pursuant to New Jersey Rule of Evidence 511, its cleric-penitent privilege, which states that:

"Any communication made in confidence to a cleric in the cleric's professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric's professional or spiritual counseling role."

The trial court granted his motion, but the Appellate Division reversed, finding that its analysis was governed by its previous opinion in State v. Cary, 751 A.2d 620 (N.J.Super.A.D. 2000), where it found that to warrant protection under the cleric-penitent privilege, "a person's communication must be made: (1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor." 

The Appellate Division then found that these elements were not satisfied because:

"(1) defendant did not ask and Brown did not offer to keep the conversation confidential; (2) Brown reached out to defendant-not as a spiritual advisor-but to protect defendant's children; and (3) Brown specifically told defendant he could not counsel him or even baptize him because defendant needed professional help."

At the time, I contended that

the court was wrong on the first point because none of the professional privileges requires a request that the communication at issue be kept confidential.  Could you imagine if we required clients to tell their lawyers to keep their communications confidential before applying the attorney-client privilege or if we required patients to tell their psychiatrists to keep their communications confidential before applying the psychotherapist-patient privilege?  It seems to me that the court placed a burden on the defendant that does not exist under the law.

With regard to the second point, the court wrongfully focused on the state of mind of Brown -- the pastor/cleric -- not the state of mind of the defendant -- the alleged penitent.  In the professional privilege context, it is the state of mind of the possible client/patient/penitent that controls, not the state of mind of the attorney/psychotherapist/clergyperson.  If the former made statements to the latter for the purpose of retaining his services, the statements are covered by the relevant privilege, regardless of the state of mind of the latter.

That said, I agreed with the appellate division's conclusion, noting that

There is, however, an exception to this general rule, and that is why the court's third point was correct.  When an attorney/psychotherapist/clergyperson affirmatively tells a prospective client/patient/penitent that he will not render him services, any subsequent conversation is not covered by the relevant privilege. See, e.g., People v. Gionis, 9 Cal. 4th 1196 (Cal.App.4th 1995).  And that's exactly what happened in J.G..  Brown told the defendant that he would not counsel him, and the defendant subsequently told him that he molested his daughters.

The Supreme Court of New Jersey agreed with me on the first two points, applying the objective reasonable person test, i.e., whether J.G. could reasonably have expected that his communications to Brown were confidential and that Brown was acting as a spiritual advisor." It, however, disagreed with the appellate division on the third point, finding that

Brown's refusal [to counsel Brown or baptize him] might lend support to the State's position that the Pastor was acting in a secular, and not a clerical, role. The [Association of Criminal Defense Lawyers of New Jersey], on the other hand, points out that a cleric's refusal to grant forgiveness does not necessarily strip a penitent's admissions and plea for help of protection. Indeed, Brown himself conceded that as part of his regular pastoral duties, he does refuse to baptize people. Faced with different views, the trial court was well within its right to rely on J.G.'s requests to be baptized in concluding his communications were privileged.   

Interesting. I don't claim to be an expert on religious matters, so I will defer to the New Jersey Supremes on this issue. And if other courts defer, it means that a clergyperson's refusal to render spiritual advice will is not fatal to operation of the cleric penitent privilege (whereas an attorney's refusal to render legal advice is fatal to operation of the attorney-client privilege).

-CM

Follow My Voice: Seventh Circuit Notes "Minimal Familiarity" Standard Under Rule 901(b)(5) But Still Reverses

Federal Rule of Evidence 901(b)(5) provides the following as an example of proper authentication:

Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.  

And as the recent opinion in United States v. Jones, 2010 WL 1337741 (7th Cir. 2010), makes clear, the Seventh Circuit (like several other circuits) merely requires that the witness identifying the speaker's voice to have "minimal familiarity" with the speaker's voice. But the prosecution could not even satisfy this standard in Jones.

In Jones,

Brian Jones, Mitchell McGhee, Leonard Hoskins, Jeremy Simmons, Sam Cook, Damand Matthews and several other defendants were charged with conspiring to distribute large quantities of narcotics in Evansville, Indiana. Some of the defendants pled guilty, but the named defendants exercised their right to a jury trial, during which they were faced with evidence that included the description of a controlled buy, the testimony of some alleged members of the conspiracy, and voice identifications from incriminating wiretapped conversations between the defendants. The jury convicted the defendants, and all were sentenced to life except Cook, who received over 20 years' imprisonment.

The prosecution's primary evidence that Sam Cook participated in the conspiracy consisted

of incriminating statements he allegedly made on a number of the wiretapped phone conversations. In order to identify the voice on the wiretaps as being Cook's, the government called Detective Simpson, who testified regarding Cook's voice on two occasions-first as the government put forth its case-in-chief, and then again at the close of the trial as a rebuttal witness in an effort to strengthen the identification.

In laying the foundation for his identification of Cook on the wiretaps in the case-in-chief, Detective Simpson testified that he recognized Cook's voice from having attended some pretrial proceedings and hearing him speak in open court. Detective Simpson testified he compared the voice he heard in the proceedings to that on the wiretapped phone conversations, and that in his opinion Cook was one of the speakers. On cross-examination, Detective Simpson stated that he had heard Cook speak in court on "four or five" occasions, and acknowledged that on these occasions Cook may have only spoken as little as "two or three" sentences. He also admitted on cross that he had never personally interviewed Cook, making Cook the only defendant at trial whose voice identification was not supported by an in-person interview with the identifying agent. Cook objected to Detective Simpson's identification on the basis that it lacked sufficient foundation, and the district court overruled the objection, finding that Detective Simpson had a sufficient level of familiarity to render his opinion.  

After he was convicted, Cook appealed, claiming, inter alia, that the few words he spoke in open court could not have provided a sufficient basis for a voice identification. The Seventh Circuit disagreed, finding that it merely requires the witness identifying the speaker's voice under Federal Rule of Evidence 901(b)(5) to have "minimal familiarity" with the speaker's voice and found that Detective Simpson's initial testimony met "the 'low bar of minimal familiarity' required in our case law, if not by much." The problem for the prosecution, though, was that this was not the only testimony that Simpson provided. Instead,

Near the end of trial, Cook introduced rebuttal evidence in the form of court transcripts showing he had only spoken in open court twice, not the “four or five” times Detective Simpson had initially claimed. In response, the government recalled Detective Simpson in an effort to strengthen the voice identification. Detective Simpson then testified, for the first time, that in addition to having heard Cook speak in open court, he had also on one occasion overheard Cook speaking privately with his attorney for ten to fifteen minutes before the judge began the proceedings.  

The Seventh Circuit found it troubling that Simpson seemingly eavesdropped on Cook's private conversation, that the prosecution saw fit to have Simpson testify about the conversation, and that Simpson did not mention the conversation during his initial testimony. That said, the court rejected Cook's argument that Simpson's testimony violated the attorney-client privilege because Cook did not testify concerning the subject matter of the alleged conversation.

But the court went on to find that

More fundamentally, Cook challenges whether a conversation between him and his attorney even occurred, and maintains he should receive a new trial because he was unable to test Detective Simpson's claim or impeach his testimony. This is because the only people in a position to rebut Detective Simpson's testimony were Cook or his lawyer, giving rise to a conflict of interest for counsel. On cross-examination of Detective Simpson, defense counsel challenged the idea that there had been any audible conversation between him and Cook and claimed that Detective Simpson was not telling the truth. At oral argument before this court, counsel reiterated that no such conversation occurred, and stated that as a matter of longstanding practice, he never has conversations with clients in open court where they could be overheard. He also told the district court that the detective's testimony "made me a witness in the trial." Cook's attorney moved for a mistrial on the same basis minutes later, as well as on attorney-client privilege grounds, arguing that "it would be difficult for me to represent my client and testify at the same time regarding what was said at counsel table and how it was said and who could have heard it."

The Seventh Circuit then noted that the district court denied Cook's motion for a mistrial and

conclude[d] that the trial court abused its discretion in denying Cook's motion for a mistrial after having admitted Detective Simpson's testimony without affording Cook an opportunity to rebut it. Detective Simpson testified as to a key disputed fact, but because of the unresolved conflict of interest the testimony created, Cook had no opportunity to challenge the testimony by presenting his own version of events. The jury heard only one side of a critical issue as if it were uncontroverted.

-CM

Pleading Out: Court Of Appeals Of North Carolina Deems Defendant's Statement To Judge During Plea Hearing Admissible

North Carolina Rule of Evidence 410(4) indicates that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible for or against the defendant who made the plea or was a participant in the plea discussions....Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

So, let's say that there is a hearing before at trial judge during which the prosecutor offers the defendant a plea bargain. The defendant then addresses the trial judge, admits complicity in the crime, and asks if the judge would impose a lesser sentence than that offered by the prosecutor. The trial judge refuses and allows the defendant to discuss the plea bargain with his counsel over the evening recess. The next day, the defendant rejects the plea bargain. Should the statement of complicity be admissible? According to the recent opinion of the Court of Appeals of North Carolina in State v. Haymond, 2010 WL 1286897 (N.C. App. 2010), the answer is "Yes." I disagree.

In Haymond, Gene Haymond was charged with several crimes, including Felonious Breaking or Entering, Felonious Larceny, Felonious Possession of Stolen Property. Thereafter, the sequence of events listed in the introduction occurred. The only event not mentioned in the introduction was the fact that after Haymond asked to address the trial judge, the judge advised him that any statement made by him could be used against him. At Haymond's ensuing trial, his statement of complicity was indeed used against him, and the ruling admitting this statement formed the partial basis for his appeal.

The Court of Appeals of North Carolina rejected that appeal, finding that North Carolina Rule of Evidence 410(4) implies that

"[p]lea negotiations, in order to be inadmissible, must be made in negotiations with a government attorney or with that attorney's express authority."..."In addition, conversations with government agents do not constitute plea discussions unless the defendant exhibits a subjective belief that he is negotiating a plea, and that belief is reasonable under the circumstances."...Here, defendant's statements at the 7 January 2008 hearing appear to have been made in an attempt to ask for either a continuance or the trial court's mercy in imposing a lesser sentence than that offered by the prosecutor. Defendant was clearly aware that the prosecuting attorney was unwilling to accept defendant's plea in exchange for the sentence which defendant requested, and defendant, therefore, made his request of the court....

In response to this request, the trial court indicated that it was not willing to impose any sentence less than what the prosecuting attorney had already offered. After having time to further consider the State's offer, defendant then decided to go to trial. From this evidence, it does not appear that defendant subjectively thought that he was negotiating a plea with the prosecuting attorney or with the prosecutor's express authority when he made statements at the 7 January 2008 hearing. Instead, the statements were made in the course of defendant's various requests to the trial court. Thus, defendant's argument that these statements were made during the course of plea negotiations, and thus inadmissible, fails.

I disagree. As noted above, at the hearing before the trial judge, the prosecutor offered Haymond a plea bargain. At the same hearing, Haymond addressed the judge regarding his complicity and the plea bargain offered, and the judge told him that he would not change the plea bargain and that Haymond could discuss the plea bargain with his attorney over the evening recess. This being the case, how was Haymond's statement regarding his complicity not made in the course of plea discussions with an attorney for the prosecuting authority? 

The way I see it, the hearing was the plea discussion, and Haymond's statement was clearly made during the course of that hearing. Sure, Haymond addressed the judge, but the statement was part of the plea hearing and dealt with the plea bargain offered by the prosecutor. The court construed these as "requests to the trial court," but they were requests made during the same hearing at which the plea bargain was offered. And if these requests were not part of the plea discussion, why did the judge respond by telling Haymond that he could consider the plea bargain overnight? If Haymond were talking to the judge outside the presence of the prosecutor, I could see the court's point. But that was not the case in Haymond. (I do not that the judge told Haymond that any statements that he made could be used against him, but that statement was meaningless if Haymond's statements were made in the course of plea discussions).

-CM