EvidenceProf Blog

Leave It To The Experts: Supreme Court Of Kentucky Waffles Over Whether Nonexperts Can Authenticate Handwriting Based Upon Familiarity Acquired For Purposes Of Litigation

Like its federal counterpart, Kentucky Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 

And, like its federal counterpart, Kentucky Rule of Evidence 901(b)(2) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:  

(2) Nonexpert testimony on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of litigation. 

The way I see it, the language of Rule 901(b)(2) makes it clear that a party cannot authenticate a writing based upon nonexpert opinion testimony as to the genuineness of handwriting, based upon familiarity acquired for the purposes of litigation. According to the recent opinion of the Supreme Court of Kentucky in Roach v. Commonwealth, 2010 WL 2016851 (Ky. 2010), however, this is not so clear.

In Roach, Caryn Renee Roach was convicted of adult exploitation, three counts of second-degree criminal possession of a forged instrument, and being a second-degree persistent felony offender. The case arose when the family of 90-year-old Eba Wilson suspected that several checks written on her account had been forged. Police eventually suspected that it was Roach, Wilson's caretaker, who had forged Wilson's signatures on the checks. 

At trial, Eba's son Wendell testified that the signatures on several of the subject checks did not appear to be Eba's. Lead detective Robert Duvall also testified that based upon his investigation into the case and Eba's signature, it appeared unlikely that several of the checks were signed by Eba.

After she was convicted, Roach appealed, claiming, inter alia, that Duvall's testimony was improperly received under Kentucky Rule of Evidence 901(b)(2) because Duvall was not qualified as an expert witness and he only gained familiarity with Eba's handwriting for the purposes of litigation. Based upon Wendell's testimony, the Supreme Court of Kentucky found that any error with the admission of Duvall's testimony was harmless. In an accompanying footnote, however, the court noted,

Without reaching the issue ourselves, we note that some other courts do not permit lay witness testimony concerning the authenticity of signatures where the witness only became familiar with the subject's handwriting in anticipation of litigation. See, e.g., Bell v. State, 910 So.2d 640, 644 (Miss.Ct.App.2005) (holding that authentication of handwriting by lay witness is only permitted under Mississippi rules of evidence if lay witness's familiarity with handwriting is “based upon familiarity not acquired for purposes of the litigation.”) (internal quotation marks omitted). We also note KRE 901 offers “[b]y way of illustration only, and not by way of limitation” an example of a proper means of authentication of a handwritten document by “[n]onexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of litigation.” KRE 901(b)(2). We neither adopt nor reject Roach's reading of this example of proper authentication of a document as clearly providing that lay witness testimony on handwriting is necessarily prohibited if the familiarity with the handwriting was acquired for purposes of litigation because we conclude that any error in the instant case was harmless.

Now, I certainly see the Supreme Court of Kentucky's point. Kentucky Rule of Evidence 901(b) states that each of its subsections are merely illustrations of types of testimony which automatically qualify as proper authentication under Rule 901(a). Therefore, just because Rule 901(b)(2) does not include nonexpert opinion testimony by a witness who only gained familiarity with handwriting for purposes of litigation does not mean that such testimony automatically fails Rule 901(a). I would argue, however, that the words of exclusion in Rule 901(b)(2) make clear that it was not intended that such testimony qualifies as proper authentication under Rule 901(a). And, indeed, the Advisory Committee's Note to the federal counterpart, to Kentucky Rule of Evidence 901(b)(2) provides that "[t]estimony based upon familiarity acquired for purposes of the litigation is reserved to the expert under the example which follows."

-CM

Proper Proffer: Second Circuit Construes Scope Of Substantive Rebuttal Waiver Provision Under Rule 410

Federal 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 against the defendant who made the plea or was a participant in the plea discussions:

(4) 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.

Since the Supreme Court's decision in United States v. Mezzanatto, 513 U.S. 196 (1995), however, it is well established that prosecutors can get criminal defendants to waive the protections of this Rule. But if a defendant signs a waiver allowing for the use of his statements made during plea discussions as substantive evidence to rebut evidence offered or elicited or factual assertions made by or on behalf of him at trial, what exactly has he waived? That was the question addressed by the Second Circuit in its recent opinion in United States v. Oluwanisola, 2010 WL 2011317 (2nd Cir. 2010).

In Oluwanisola, Olawale Lateef Oluwanisola was convicted of conspiring to import heroin into the United States, conspiring to possess with intent to distribute heroin,  and possessing heroin with intent to distribute. Before the commencement of plea bargaining, Oluwanisola signed a proffer agreement, which provided that the government would not use any of Oluwanisola's statements against him, except:

[T]he Office may use any statements made by [Oluwanisola]...as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [Oluwanisola] at any stage of a criminal prosecution....

During the ensuing proffer sessions, Oluwanisola admitted that he knew that envelopes he had when he was apprehended

contained heroin and that he was part of a heroin smuggling operation. With respect to the quantity of heroin, Oluwanisola admitted to receiving envelopes containing heroin well in excess of one kilogram.

Thereafter, the government determined that Oluwanisola was not fully truthful regarding the scope of his involvement with the conspiracy and did not offer him a cooperation agreement. At trial, the judge informed defense counsel that if he wanted to prevent the admission of Oluwanisola's incriminatory statements during the proffer sessions he had to limit his opening statement to generalized statements concerning the government's burden of proof and the jury's responsibilities; he could not reference certain elements of the crime and argue that the government would be unable to sustain its burden of proof as to those elements.

Later at trial, postal worker Dennis Coleman testified that he had seen Oluwanisola picking up mail at one of the suspect addresses and had reported the suspicious behavior to his supervisor. Defense counsel then asked whether there was a written report, which he explained to the court was relevant because it would “establish the date” of Coleman's observation of Oluwanisola. This date was relevant to whether the government could tie over one kilogram of heroin to deliveries picked up by Oluwanisola because the government's argument was based, in part, on the fact that Oluwanisola had been observed picking up deliveries for several months.

The court held, however, that defense counsel could not ask about the written report without opening the door to the proffer statements because the sole purpose of verifying the date would be to question the credibility of the witness.

After he was convicted, Oluwanisola appealed, claiming, inter alia, that both of these rulings were erroneous, and the Second Circuit agreed. With regard to the first ruling, the Second Circuit held that the issue was governed by its prior decision in United States v. Barrow, 400 F.3d 109 (2nd Cir. 2005). And, according to the court,

In this case, the district court made a distinction between "generally tell[ing] the jury about the burden of proof and the necessity of the government proving all elements of the crime" and arguing that "specific elements of the crime [have] not be[en] met," ruling that while the former would not trigger the waiver provision, the latter would. Barrow did not make such a distinction and we can think of no rationale that would compel such a result. Under the district court's interpretation of Barrow, even if the government failed to introduce any evidence on a certain element, defense counsel would not be permitted to draw the jury's attention to the lack of evidence in his opening statement without triggering the waiver provision in the proffer agreement. Interpreting the waiver provision to permit such a result would leave the defendant, for all practical purposes, defenseless. As the record makes clear, Mr. Nobel was compelled by the court's ruling to limit his opening statement to generalized statements concerning the government's burden of proof and the jury's responsibilities. Under Barrow, however, Mr. Nobel should have been permitted during his opening statement to reference certain elements of the crime and argue that the government would be unable to sustain its burden of proof as to those elements.

And, with regard to the latter ruling, the Second Circuit did

not believe that defense counsel's question c[ould] be construed as an implicit factual assertion that Oluwanisola did not pick up mail at that address. Under the government's construction of the waiver provision, defense counsel would be prohibited from asking a witness any question during cross examination about his testimony on direct-even if the testimony was misleading, weak, or contradictory-because the only plausible reason to do so would be to call into question the witness's credibility. We do not read the language in the waiver provision to prohibit Oluwanisola from placing the government's evidence in context, even if that context is that a government witness is not credible.

Accordingly, the Second Circuit vacated Oluwanisola's conviction.

-CM

Jurors Behaving Badly: Eastern District Of California Precludes Jury Impeachment Regarding Intrajury Threats Of Violence

Just last week, I posted an entry about a recent opinion out of Texas in which an appellate court refused to allow a juror to impeach her verdict based upon allegations of derogatory intimidation by other jurors until she changed her vote. The basis for the court's refusal was Texas' counterpart to Federal Rule of Evidence 606(b), which provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying .

The recent opinion of the United States District Court for the Eastern District of California in Dickson v. Subia, 2010 WL 1992580 (E.D. Cal. 2010), in which a juror was allegedly subjected to both verbal harassment and physical threats, was resolved on similar grounds.

In Subia, Bradford Dickson was convicted of fifteen sex offenses, including lewd and lascivious conduct on a child, oral copulation on a child, and unlawful sexual intercourse with a child. Dickson later filed a habeas petition with the Supreme Court of California, claiming, inter alia,

that his right to due process was violated by jury misconduct, which involved the "harassing and intimidation of a single jury member who expressed opposing viewpoints than others....”" Specifically, petitioner assert[ed] that juror Oluwasola Ifasade wanted to vote "not guilty," but was subjected to verbal harassment by the other jurors during deliberations until she changed her vote....Petitioner assert[ed] that Ifasade was also "physically threatened by another juror putting his hands in her face and yelling at her in an attempt to persuade her to change her vote, which ultimately she did against her better judgment."...In support of his contention, petitioner provide[d] declarations from Ifasade, as well as a private investigator who interviewed Ifasade and several other jurors in August 2006, two years after petitioner's conviction.

After the court rejected this petition, Dickson then filed a federal habeas petition with the United States District Court for the Eastern District of California which agreed with the California Supremes. According to the court,

Federal Rule of Evidence 606(b) prohibits jurors from testifying as to matters or statements occurring during the course of jury deliberations, as well as the effect of such matters or statements on any juror's mental processes or emotions in reaching a verdict....This provision also provides that "a juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying."...

Accordingly, absent an allegation by petitioner that extraneous prejudicial information invaded the jury room, this Court may not review the jury's deliberative process by considering statements made by Ifasade or any of the other jurors to impeach the verdict....The declarations provided by petitioner concern matters or statements which occurred during the course of jury deliberations, as well as the effect of such matters or statements on the jurors' mental processes or emotions in reaching a verdict....This Court may not consider the jurors' statements, years after petitioner's conviction, to impeach the verdict.

As I noted in my prior post, I understand that Federal Rule of Evidence 606(b) is designed to protect the privacy of jurors and the sanctity of deliberations? But do we want protect juror privacy when there are allegations of threatened violence, and do we want to uphold verdicts based upon such threats?

-CM

Prejudging: New Jersey Appellate Court Reverses Restraining Order Based On Trial Judge's Pror Knowledge

Like its federal counterpart, New Jersey Rule of Evidence 605 provides that

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

As I noted in a recent post,

Normally, this Rule applies when a judge makes comments at trial that are the equivalent of testimony, but as the recent opinion of the Court of Appeals of Arkansas in Kinard v. Arkansas Dept. of Human Services, 2010 WL 1904515 (Ark.App. 2010), makes clear, the Rule also applies when a judge engages in off-the-record fact gathering.

In Kinard, the judge intentionally engaged in off-the-record fact gathering. But as the recent opinion of the Superior Court of New Jersey, Appellate Division in T.J. v. G.G., 2010 2089676 (N.J. Super.A.D. 2010), makes clear, the Rule also applies to a judge who unintentionally engages in off-the-record fact gathering.

In G.G., T.J., the plaintiff, and G.G., the defendant, had

a child who [wa]s almost three years old. Plaintiff T.J. alleged in her domestic violence complaint that defendant made a terroristic threat and committed an act of harassment while plaintiff and her mother were waiting for a visitation hearing outside of a courtroom in Essex County on July 2, 2008. According to plaintiff, defendant walked up to her and said, “this is your last time in court." Plaintiff testified she felt threatened by defendant's statement because of "the way he said it" and "the tone of his voice."

The following is an excerpt of an exchange between defense counsel and the trial judge concerning the latter allegation:

[DEFENDANT'S ATTORNEY]: There's no testimony before this Court, there's nothing in this record today that said that they recommend filing a restraining order.... [W]ith all due respect to the Court, I don't know where the Court's gathered that information.

THE COURT: Because the Court was here when it happened so the Court knows. I do recall-we can get the testimony from them, when it happened out in the hallway there was a large commotion, officers were out there, and the next thing the Court was advised was that plaintiff was filing a restraining order.

[DEFENDANT'S ATTORNEY]: Anybody can do that. How many times a day do they have to go out there and calm people down? ... With all due respect to this Court, the Court really shouldn't consider things that aren't in the record or consider prior knowledge that the Court has of the case in rendering a decision....

THE COURT: I didn't hear the threat. I just knew the process in which she filed. She was in front of me. 

After the trial judge entered a domestic violence final restraining order against him, G.G. appealed, claiming, inter alia, that his matter should have been heard by a judge who was not familiar with the facts of the case. The appellate court agreed, citing comment 1 to New Jersey Rule of Evidence 605, which states that "When the judge is the trier of the facts he must not permit his own personal knowledge to influence his decision in the case." Because the appellate court found that the trial judge did allow his personal knowledge to influence its decision, it reversed and remanded.

-CM

Your Expert('s) Advide: District Of Puerto Rico Finds No Expert Disclosure Problem In Bed Burning Case

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." As I noted in a recent post, "the sanction for noncompliance with this...rule is typically automatic and mandatory exclusion of the expert's testimony." But what requirements apply when a party wants to present the testimony of the opposing party's expert witness at trial? That was the question addressed by the United States District Court for the District of Puerto Rico in its recent opinion in Rosa-Melendez v. Invacare Corp., 2010 WL 1801789 (D.Puerto Rico 2010).

In Rosa-Melendez, Luis Rosa Rosa was a resident at an assisted living facility. His bed at the facility was made by Invacare, and one night the bed's electrical system began to burn the bed while he was lying in it. The bed eventually burst into flames, and Rosa Rosa eventually died as result of third degree burns he suffered from the fire. His son, Victor Colon Melendez, and others thereafter brought an action against Invacare and other defendants.

The plaintiffs then complied with Federal Rule of Civil Procedure 26(a)(2) in connection with the proposed expert testimony of their witness, Milton Castro. Milton, however, died before trial, and the plaintiffs planned to have his son testify in place of his father, but this substitution ended up not working out. The plaintiffs then disclosed their intention to rely instead on the expert opinion of Mr. Glen Robinson, the expert witness retained months earlier by the defendants.

The defendants countered that the plaintiffs failed to comply with the expert disclosure requirements of Federal Rule of Civil Procedure 26(a)(2) with regard to Robinson. The United States District Court for the District of Puerto Rico disagreed, finding that

First, plaintiffs' disclosed their desire to elicit Mr. Robinson's testimony at trial, albeit after numerous extensions of time, within the deadline set by the Court following the death of their former expert....Second, any danger of the kind of unfair surprise targeted by Rule 26 is minimal because Mr. Robinson has been a disclosed expert witness in this case for months....Further limiting any danger of surprise, plaintiffs have not indicated that they intend to elicit any testimony or opinion from Mr. Robinson that he has not already disclosed in his expert witness report....Accordingly, the Court does not find that plaintiffs have violated Rule 26 in any way sufficient to merit barring their use of Mr. Robinson's testimony at trial.

-CM

Did You Notice That? Court Of Appeals Of Ohio Avoids Internet Authentication Issue Through Judicial Notice

Like its federal counterpart, Ohio Rule of Evidence 901(A) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, can internet printouts be admitted without the testimony of an authenticating witness? This was a question presented to the Court of Appeals of Ohio, Twelfth District in State v. Howard, 2010 WL 2029056 (Ohio App. 12 Dist. 2010), but one which it did not need to answer based upon judicial notice.

In Howard,

On the evening of January 6, 2009, appellant's husband, Dexter Howard, was rushed to Atrium Medical Center...for injuries he sustained while riding his neighbor's four-wheeler. As appellant waited at the hospital, she gave a written statement describing the accident to Trooper Brandon Rhule of the Ohio State Highway Patrol. Appellant told Trooper Rhule that "my husband and I were riding the [four]wheeler * * * I attempted to turn right into the driveway. The [four]-wheeler flipped and when I got up I saw Dexter lying on the ground." When Trooper Rhule specifically asked whether appellant was operating the four-wheeler at the time of the accident, she answered "yes." Meanwhile, as Dexter lay in his hospital bed, he spoke to another officer named Sergeant Tom Bloomberg. Dexter indicated that at the time of the accident, he was seated on the back of the four-wheeler while appellant drove.

The next day, Dexter contacted Sergeant Bloomberg to tell him that he was driving the four-wheeler at the time of the accident, and that appellant "had said what she had said because * * * she was trying to protect him."

As a result of her statement to Trooper Rhule, the appellant was charged with one count of falsification, a first-degree misdemeanor. The appellant was later convicted after a trial before the judge of the Franklin Municipal Court, and the appellant thereafter appealed, claiming that the state failed to offer any admissible evidence which proved that her statement occurred within the court's venue.

Specifically, the appellant claimed

that the trial court wrongfully took judicial notice that Atrium was located in Franklin Township because its decision was based on hearsay. Appellant argue[d] that in order for the state's internet printouts to be admissible, Evid.R. 901(A)-(B)(1) required a witness to testify that the printouts were what they were purported to be.

The Court of Appeals disagreed, finding that

A court may take judicial notice of a fact not subject to reasonable dispute that is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Evid.R. 201(B)(2). A court may take judicial notice, whether requested or not. Evid.R. 201(C). Further, "[j]udicial notice may be taken at any stage of the proceeding." Evid.R. 201(F). Once judicial notice of a fact is taken, a "party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken." Evid.R. 201(E)....

Upon review, we hold that the trial court took proper judicial notice that Atrium was located in Franklin Township. This fact is not subject to reasonable dispute because it is capable of accurate and ready determination by reference to the Warren County Auditor's website, a source whose accuracy cannot be questioned given its status as an official source of government information....As a result, the location of Atrium is subject to judicial notice under Evid.R. 201(B)(2).

-CM

Getting Distribution: Eighth Circuit Finds Testimony Concerning Intent To Distribute Fine Under Rule 704(b)

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

And, as the recent opinion of the Eighth Circuit in United States v. Parish, 2010 WL 2025365 (8th Cir. 2010), makes clear, testimony that a certain amount of drugs is consistent with possession with intent to distribute does not run afoul of this rule.

In Parish,

St. Louis Police Officer James Daly and his partner, Officer Joe Mader, received a tip from a confidential informant that a person named "Earl" was selling and distributing narcotics in the Gate District of St. Louis and that "Earl" was known to possess firearms. The confidential informant told the officers that "Earl" drove a newer model Ford Explorer with chrome rims. While Officer Daly listened in, the confidential informant called "Earl" and arranged for "Earl" to deliver crack cocaine on January 5, 2007, at around 8:00 p.m. On January 5, Officers Daly and Mader again met with the confidential informant, who called "Earl" to confirm the sale. During that call "Earl" arranged to meet at 1015 North Grand Avenue, a location in a strip mall.

At approximately 8:00 p.m. on January 5, Officers Daly and Mader, along with Sergeant Kenneth Hornak and Officer Ron Fowlkes, went to the area near the strip mall and set up surveillance. While on surveillance, Sergeant Hornak observed a Ford Explorer matching the confidential informant's description pulling into the parking lot....Sergeant Hornak and Officer Fowlkes, both in uniform, parked their unmarked police truck behind the Explorer at an angle. Officer Fowlkes got out of the truck and approached the Ford Explorer, identifying himself as a police officer. The driver (later identified as Earl Parish) looked at Fowlkes, placed the Explorer in reverse, and accelerated backward out of the parking space, ramming the police truck and knocking Sergeant Hornak to the ground. Parish also hit an occupied Ford Taurus backing out of a parking space. Parish attempted to flee the area in the Explorer, but the Explorer had become wedged into the police truck and could not accelerate forward. While the police officers were removing Parish from the vehicle, Parish ended up on the ground and banged his head. Officer Fowlkes took custody of Parish, and Officers Daly and Mader searched Parish's vehicle. On the floorboard of the driver's side of the vehicle, they observed two plastic bags, one containing what appeared to be crack cocaine and one containing what appeared to be compressed cocaine. The officers also found a fully loaded firearm under the passenger's seat and a digital electronic scale under the front driver's side seat .

Parish was thus arrested an subsequently charged with one count of knowingly and intentionally possessing with the intent to distribute a mixture or substance containing a detectable amount of cocaine base (crack) and one count of knowingly possessing a firearm in furtherance of a drug trafficking crime. At trial, testimony indicated that 11.74 grams of cocaine base or crack cocaine was seized from Parish's car, and Detective Michael Bradley, a detective assigned to the Drug Enforcement Administration Task Force, was asked,

Based on your years of experience in narcotics law enforcement and in being involved in undercover purchases and sales of crack cocaine, and in talking about defendants and confidential informants, and based on your own individual review of [the crack cocaine], are you able to form an opinion as to whether just based on that amount,[the crack cocaine] would have been intended for distribution or personal use?

Bradley responded, "I believe it would be intended for distribution." 

After he was convicted, Bradley appealed, claiming, inter alia, that this testimony was improperly admitted under Federal Rule of Evidence 704(b). The Eighth Circuit disagreed, noting that "'[t]estimony that, when combined with other evidence, might imply or otherwise cause a jury to infer this ultimate conclusion...is permitted under the rule.'" And, according to the court, this was exactly the type of testimony provided by Bradley. According to the court," Bradley's testimony concerned the amount;...he did not directly testify to Parish's intent, although the jury was free to infer the ultimate conclusion.

-CM  

Bad Habit: Supreme Court Of Alaska Finds Eight Photographs Of Parking Lot Insufficient As Habit Evidence

Like its federal counterpart, Alaska Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

In order to present habit evidence, however, the proponent must be able to prove that a person or organization acted in a particular way with sufficient frequency and regularity. And, as the recent opinion of the Supreme Court of Alaska in Mueller v. Buscemi, 2010 WL 2011505 (Alaska 2010), makes clear, this is difficult to do.

In Buscemi,

Mueller slipped and was injured while attempting to enter her car in the rear parking lot of Buscemi's commercial building. She sued Buscemi for personal injuries suffered as a result of the accident, alleging that Buscemi's failure to treat icy conditions and to provide adequate exterior lighting was the proximate cause of her injuries. Mueller claim[ed] to have suffered personal injuries, incurred present and future medical expenses, and lost income because of Buscemi's allegedly negligent maintenance of the parking lot.

After trial, the jury found for Buscemi, prompting Mueller's appeal. Mueller claimed on appeal, inter alia,

that the superior court erred by excluding evidence of improper maintenance in and around Buscemi's building. She argue[d] that this evidence, photographs to be supported by witness testimony, was admissible under Alaska Rule of Evidence 406 because it established that "[i]gnoring maintenance ... was a routine practice of this landlord." Buscemi respond[d] that the photographic evidence Mueller presented was insufficient to establish that Buscemi had a routine practice of improperly maintaining the parking lot.

The Supreme Court of Alaska sided with Buscemi, noting that "[a] trial judge 'possess[es] the discretion usual in this field of circumstantial evidence to exclude (evidence of habit) if the habit is not sufficiently regular and uniform, or the circumstances sufficiently similar, to outweigh the danger, if any, of prejudice or confusion.'" According to the court, "In support of the contention that Buscemi had a habit of ignoring maintenance, Mueller offered eight photographs which appear[ed] to show a water heater, ceiling tiles, a fire extinguisher, a sink, and a wall." The problem, though, was that "[t]he photographs were unaccompanied by any indication of when they were taken."  

The court concluded that "[t]his proffer was inadequate to establish a habit relating to maintenance of the parking lot under Rule 406" because

"It is only when examples offered to establish such pattern of conduct or habit are numerous enough to base an inference of systematic conduct and to establish one's regular response to a repeated specific situation...that they are admissible to establish pattern or habit." Because Mueller's proffer failed to establish a basis for the inference that Buscemi had a habit of improperly maintaining this commercial property, it was not an abuse of discretion for the trial court to exclude the eight photographs.

I agree and think that even if the photographs were taken on eight consecutive days, it would not have been enough to show that Buscemi regularly failed to maintain the area around the building. Instead, the sample size of about a week likely would have been inadequate. But if Mueller would have had a witness who used the parking lot on a daily basis for months or years who would have testified that the parking lot was consistently maintained poorly, that likely would have been adequate.

-CM

Getting (Un)Lucky In Kentucky: Court Of Appeals of Kentucky Finds Trial Court Used Incorrect Standard For Rule 609(b) Impeachment

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

Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect. 

In Smith v. Commonwealth, 2010 WL 2010730 (Ky.App. 2010), the trial court had deemed the alleged victims' convictions that were more than ten years old inadmissible because they did not relate to the issues before the trial court. And as the Court of Appeals of Kentucky found, this was clearly erroneous.

In Smith, David Smith

agreed to sell farm equipment for Linda Tackett (Linda) and her husband Grayson. The agreement provided that the Tacketts would receive the first $50,000 of the proceeds from the sale, and Smith would receive any amount in excess of $50,000 as his commission. Smith ultimately gave the Tacketts four checks totaling $68,000, all of which were returned by the bank for insufficient funds. A grand jury indicted Smith and he went to trial in the summer of 2008. 

Eventually, Smith was convicted of theft by failure to make required disposition of property valued at $300 or more. After he was convicted, Smith appealed, claiming, inter alia, that the trial court erred by precluding him from impeaching the Tacketts through evidence of their 1995 convictions for obstructing justice. The trial court had deemed these convictions inadmissible because they did not relate to the issues before the trial court.

The Court of Appeals of Kentucky noted that the issue was governed by the opinion in Holt v. Commonwealth, 250 S.W.3d 647 (Ky. 2008), in which the Supreme Court of Kentucky found that when balancing probative value against prejudicial effect under Rule 609, courts should consider:

1) whether the witness has placed his credibility in issue by testifying in contravention to other witnesses; 2) whether the prior conviction being offered for impeachment is probative of truthfulness; 3) whether the case is civil or criminal; and 4) the age of the conviction sought to be introduced.

According to the court, then,

Based on our review of the record, it appears that the trial court determined to exclude evidence of the Tacketts' felony convictions because those convictions were not related to the issues before the trial court. Therefore, Smith is correct that the trial court did not apply the Holt standard in evaluating the admissibility of evidence regarding the Tacketts' prior felony convictions.

Indeed, if a witness' prior conviction were related to the issues before the trial court, it would make the conviction less likely to be admissible for impeachment purposes (because the jury would be more likely to misuse it as propensity character evidence. Nonethless, the court still found that the Tacketts' prior convictions were inadmissible under Kentucky Rule of Evidence 609(b) and thus found that the trial court's error was harmless.

-CM

I Need A Remedy: Middle District Of Georgia Finds Subjective Intent Not Dispositive In Subsequent Remedial Measures Analysis

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.

The main ground for excluding evidence of subsequent remedial measures "rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety."  So, let's say that a company's product allegedly causes an injury. And let's say that after the injury, the company stops selling the product and begins selling a similar product that is safer. But let's say that the company's motivation for selling the new product rather than the old product has nothing to do with safety concerns. Is evidence of the change inadmissible even in the absence of a specific intent by the defendant to make a subsequent remedial measure? According to the United States District Court for the Middle District of Georgia in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 2010 WL 2015146 (M.D.Ga. 2010), the answer is "yes."

Unfortunately, the court did not provide many facts in its ObTape opinion. Basically, though, it seems like the plaintiffs were injured while using an ObTape Vaginal Sling intended to treat Stress Urinary Incontinence (This site explains the possible basis for the lawsuit). The plaintiffs sought to present evidence that, after her injury, the defendant withdrew ObTape from the market and began marketing Aris, a new suburethral sling product. According to the plaintiffs, this was not a subsequent remedial measure under Federal Rule of Evidence 407 because the defendant did not make the product change based upon concerns about safety. In other words, the crux of the plaintiffs' argument was that "it must be established that the defendant took the subsequent remedial measure for the specific purpose of remediating a problem."

The court disagreed, finding

that subjective intent or motive in taking a remedial measure is not a dispositive prerequisite for exclusion under Rule 407. Therefore, if the decision to stop selling ObTape subsequent to the injuries suffered by the Plaintiffs would have made the harm suffered by the Plaintiffs less likely had the product not been sold prior to their injuries, then the discontinuation of ObTape sales 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."

-CM

Grave Secrets: Bones Episode Begs Question: Can The Alleged Victim Of A Crime Testify As An Expert Witness?

I am a fan of the TV show "Bones." Back in 2008, I did a post about a real case in which Kathy Reichs, the forensic anthropologist who wrote the books which served as the inspiration for the TV show, testified as an expert witness and was subjected to scathing comments from the prosecutor. Well, I finally caught up to last week's episode of "Bones," and it dealt with an interesting evidentiary question: Can the alleged victim of a crime testify as an expert witness at the trial of the defendant for committing that crime? According to the show, the answer is "no." In courts across the United States, however, the answer is "yes."

In last week's episode, "The Boy with the Answer," infamous "Bones" villain The Gravedigger was finally facing trial based upon allegedly burying alive a young boy, FBI Special Agent Seeley Booth, Dr. Jack Hodgins, and Dr. Temperance "Bones" Brennan. The problem was that Brennan and Hodgins were the only experts qualified to offer expert testimony which could have incriminated the defendant in the crime, and the show explained that the alleged victim of a crime could not testify as an expert witness at the trial of the defendant for committing that crime. The show also explained that this created a problem with regard to Booth, who for some reason also had to provide expert testimony.

So, what could the trio do? Well, they had prosecutor Caroline Julian drop the charges against the Gravedigger for the acts committed against them so that the Gravedigger was only charged with burying the boy alive. Thus, they were allowed to testify at that trial, resulting in the Gravedigger's conviction.

In a real court of law, however, they wouldn't have needed to make that decision. Instead, courts across the country have reached the same conclusion as the Court of Appeals of Louisiana in State v. Searcy, 621 So.2s 83 (La.App. 2 Cir. 1993). In Searcy, Danny Searcy was charged with felony theft, and John North, a building contractor and the alleged victim of the theft, testified as an expert witness with regard to the value of the lumber allegedly stolen by Searcy. After he was convicted, Searcy appealed, claiming, inter alia, that as the alleged victim of the crime, North could not testify as an expert witness. The court disagreed, finding that

The defendant does not complain that North lacked sufficient qualifications to testify as an expert. Instead, he asserts that North's testimony about value was improper because North was not an impartial and unbiased witness. Defendant cites, and we have found, no statutory or jurisprudential authority to support a per se prohibition against the testimony of a crime victim as an expert in the trial of the crime in which he was victimized.

-CM

You Have My Letter: Supreme Court Of Indiana Finds Letter Written To Victim Improperly Admitted Against Defendant Under Rule 410

Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that

Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer.

So, is a letter of apology written by the defendant to the victim inadmissible under this Rule? According to the recent opinion of the Supreme Court of Indiana in Gonzalez v. State, 2010 WL 1988134 (Ind. 2010), the answer is "yes" if the letter was written as part of the plea bargaining process.

In Gonzalez,

A truck driven by Gabino Gonzalez failed to yield at an intersection and struck a school bus operated by Evansville-Vanderburgh School Corporation ("EVSC")....Gonzalez was charged with criminal mischief, operating a vehicle while intoxicated, operating a vehicle with a blood alcohol content of 0.15 or more, and operating a vehicle while intoxicated endangering a person.

Gonzalez agreed to plead guilty to criminal mischief and operating a vehicle while intoxicated endangering a person. The trial court took the plea agreement under advisement and postponed the sentencing hearing to permit EVSC to consider whether to object to the agreement. Two weeks before the hearing, Gonzalez sent a letter to EVSC expressing his regret to all who were "involved in the terrible accident I caused," apologizing for his "irresponsible actions" and "poor decision to drink that day," and asking EVSC to show compassion to him and his family. He promised to seek alcohol counseling and asked EVSC to consider that "no one was hurt in the accident."

The court rejected the plea and the case went to trial where Gonzalez's letter was admitted over his objection. After the court dismissed the charge of operating a vehicle with a blood alcohol content of 0.15 or more, the jury found Gonzalez guilty of the remaining charges.

After Gonzalez was convicted, he appealed, claiming that his letter was inadmissible under Indiana Rule of Evidence 410, and the Court of Appeals of Indiana agreed and reversed, prompting the state's appeal to the Supreme Court of Indiana. The Supreme Court of Indiana agreed with the Court of Appeals that the letter should have been deemed inadmissible because, under Indiana law, a proposed "plea agreement must...be shown to the victim, who has a right to comment on the crime and the proposed sentence;" moreover, "[i]n the course of this process, the defendant may make statements to the victim...." Therefore, according to the Indiana Supremes, "[t]hese statements are within the language of...Evidence Rule 410 ("in connection with" a plea agreement)."  

In reaching this conclusion, the court clarified exactly when Indiana Rule of Evidence 410 applies:

Accordingly, we hold that for a statement to be a privileged communication, the defendant must have been charged with a crime at the time of the statement and the prosecutor and the defendant must have initiated discussions related to a plea agreement. Second, the statement must have been made with the intent of seeking a plea agreement or in contemplation of a proposed agreement. Third, the statement is privileged if made to someone who has the authority to enter into or approve a binding plea agreement or who has a right to object to or reject the agreement.

(The court, however, deemed the admission of the letter to be harmless error and affirmed Gonzalez's conviction).

-CM

We The Jury: Court Of Appeals Of Texas Finds Allegations Of Derogatory Intimidation Insufficient To Allow Jury Impeachment

Somewhat similar to its federal counterpart, Texas Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

In other words, jurors cannot impeach verdicts based upon allegations of threatened or actual physical violence or intimidation by other jurors (except in Minnesota). So, does this rule make sense? Well let's look at the recent opinion of the Court of Appeals of Texas, Tyler, in Lee v. State, 2010 WL 1899675 (Tex.App.-Tyler 2010).

In Lee, Darrell Lee was convicted of indecency with a child by contact. Lee thereafter appealed, claiming, inter alia, that he was entitled to a new trial hearing based upon evidence of juror misconduct.

In support of his motion, [Lee] attached the affidavit of juror Betty Hicks. In her affidavit, Juror Hicks stated that she believed [Lee] was not guilty and disbelieved the testimony of the alleged victim in the case. She stated further that "once my opinion was expressed in the jury room other jurors began to intimidate me in a derogatory fashion until I agreed to vote in favor of guilt." She then stated that she would have voted not guilty but for the misconduct of the other jurors.

The Court of Appeals disagreed, finding that Hicks' affidavit was inadmissible under Texas Rule of Evidence 606(b) because it merely alleged that there was an improper insider (intrajury) influence, not an improper outside influence. As support for its conclusion, the court cited to two previous opinions. In Thomas v. State, 84 S.W.3d 370 (Tex.App.-Beaumont 2002), a court did not allow a juror to impeach a verdict through allegations that she was involuntarily "pulled up" in her chair by the jury foreman, who also refused to submit her question to the court. And in Hart v. State, 115 S.W.3d 117 (Tex,App.-Texarkana 2000), a court refused to allow a juror to impeach a verdict through allegations that he wanted to change his "guilty" vote to "not guilty" but was repeatedly told by the other jurors that they would not allow him to do so.

So, do these rulings make sense? Should we uphold verdicts when other jurors refuse to allow a juror to change his vote? When the foreperson refused to allow another juror to submit a question to the court (or when the foreperson blocks another person from leaving the jury room)? When the foreperson engages in violence against another juror? When jurors intimidate another juror into changing her vote? I understand that courts want to protect the privacy of jurors and the sanctity of deliberations, but does the anti-jury impeachment rule go too far?

-CM

Benefit Of The Bargain: New Jersey Appellate Court Finds Improper Admission Of Plea Bargaining Statements Was Not Harmless Error

Like its federal counterpart, New Jersey Rule of Evidence 410 provides that

Except as otherwise provided in this rule, evidence of a plea of guilty which was later withdrawn, of any statement made in the course of that plea proceeding, and of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn, is not admissible in any civil or criminal proceeding against the person who made the plea or statement or who was the subject of the plea negotiations. However, such a statement is admissible (1) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should in fairness be considered contemporaneously with it, or (2) in a criminal proceeding for perjury, false statement, or other similar offense, if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

And, as the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Brabham, 2010 WL 1929560 (N.J.Super.A.D. 2010), makes clear, if a defendant's confessions made during plea discussions are admitted in violation of this Rule, it is going to be difficult for the court to find harmless error.

In Brabham, a jury found Orion T. Brabham guilty of second-degree burglary and fourth-degree theft. Those crimes were committed at the home of Catherine Zahos, and the prosecution had a good deal of incriminatory evidence against Brabham. For example, a gold medallion identified by Zahos as hers was recovered during a search of Brabham's home conducted by his parole officer in New York. Moreover,

New Jersey law enforcement officers, who testified at trial, repeated what they recalled about statements defendant made during two meetings. In April 2006, defendant told the officers that they had done their job by finding the person that did this, meaning himself. In May, defendant told the officers that he got the idea to use the back door from a television show, described the odor of smoke in the home of an old lady, "laugh[ed] about the fact that [she] kept getting up and coming back after him," and spoke of an encounter in a driveway with a woman accompanied by a large dog that caused him to abandon his plan to burglarize a home in her neighborhood.

The problem for the prosecution was that these confessions came during what were pretty clearly plea discussions at which the assistant prosecutor was present. On Brabham's appeal, the Superior Court of New Jersey, Appellate Division was thus easily able to find that Brabham's confessions were improperly admitted based upon New Jersey Rule of Evidence 410, but it still had to determine whether their admission was harmless error.

According to the court, their admission was not harmless error. Instead, it concluded that

While we have no doubt that the admissible evidence is adequate to permit a conviction, it is not sufficiently overwhelming to eliminate all reasonable doubt about whether the verdict would have been different if the statements were excluded....The statements at issue provided additional and persuasive evidence of guilt. The likely impact on jurors who heard the officers repeat defendant's recitation of facts disclosing his familiarity with the Zahos home and the victim's response to her attacker is too apparent to require elaboration. Accordingly, we conclude that defendant's conviction must be reversed and the case must be remanded for a new trial.

-CM

Tender Mercies: Why Evidence of Ununsual Maturity Shouldn't Be Enough To Rebut Preumption That Children Under 12 Are Of Tender Years

Like the vast majority of states, Mississippi has a "tender years" exception to the rule against hearsay. Specifically, Mississippi Rule of Evidence 803(25) provides an exception to the rule against hearsay for

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

In its recent opinion in McCrory v. State, 2010 WL 1855853 (Miss.App. 2010), the Court of Appeals of Mississippi noted that "[t]here is a rebuttable presumption that a child under the age of twelve is of tender years." So, when can this presumption be rebutted? As far as I can tell, no Mississippi court has conclusively answered that question, but I don't like what at least one Mississippi court has intimated.

Hayes v. State, 803 So.2d 473 (Miss.App. 2001), actually involved a thirteen year-old victim, L.G. L.G. was allegedly statutorily raped by Hayes and told an officer about the alleged act. The prosecution used this statement to prosecute Hayes. Hayes thereafter appealed, claiming, inter alia, that L.G. was not a child of tender years, meaning that her statement to the officer was not admissible under Mississippi Rule of Evidence 803(25).

Because L.G. was not under the age of twelve, there was no rebuttable presumption that L.G. was of tender years, but the trial court was still free to reach this conclusion, and the Court of Appeals of Mississippi could only have reversed for abuse of discretion.

Hayes argue[d] that L.G.'s testimony concerning her responsibilities at home and school showed she was mentally mature; thus, she did not fit into this tender years exception. With L.G.'s testimony, the attorneys asked questions that were intended to enlighten the court as to L.G.'s mental maturity. L.G. affirmed she knew the difference between a truth and a lie, that she helped both her grandmother and great grandmother with household chores (she lived with each at different times), and that she cares for her one year old sister and babysits her often. L.G. also was questioned concerning her school habits and the time she leaves and arrives home from school, and she was embarrassed when asked about physical parts of the body and when she was questioned concerning the incident at issue.

The Court of Appeals acknowledged these arguments but ultimately affirmed, concluding that

Those present when L.G. testified were able to evaluate her demeanor and behavior. We are not so fortunate to have been present; this is why our Court is allowed to reverse a trial judge only if we find he abused his discretion in such a situation where an evaluation of witness's demeanor is essential. On paper, those facts brought out on L.G.'s testimony seem reflective of things a mature adolescent would say. Reading the transcript further, though, the district attorney commented that from L.G.'s physical demeanor, "it appeared rather obvious that this is a child of tender years" and "I believe that her testimony, in toto, and her demeanor, in toto, before this Court demonstrate that she is an immature person. She may be mature appropriately for her age, but she is not as mature as an adult. She is certainly a child. She certainly comes across as a child, and is immature in the sense of being child of tender years." The judge agreed. Since we are not the triers of fact, we must note that Hayes has presented us with no evidence that the judge abused his discretion and we will not reverse without such evidence.

In other words, Mississippi courts look at the mental and emotional maturity of a child in determining whether she is of tender years. The implication would thus seem to be that the rebuttable presumption that a child under the age of twelve is of tender years can be rebutted by evidence that the child is mentally or emotionally mature beyond her years. So, does this make sense? I don't think so. Let's look at the reasons that states have tender years exceptions. According to Lynn McLain in Children are Losing Maryland's "Tender Years" War, 27 U. Balt. L. Rev. 21, 25 (1997), states have tender years exceptions for six reasons

(1) child abuse-- physical, sexual, and emotional--is a serious, widespread problem in the United States; (2) young children are particularly helpless, and they are unable to extricate themselves from seriously abusive homes or other environments without adult assistance; (3) effective remedial action cannot be taken without identifying the abuser, who is usually known only to the child and, sometimes, to someone who colludes with or covers up for the abuser; (4) for reasons explained by developmental psychology, very young children are often ruled incompetent to testify at trial, although they may have made reliable, concrete out-of-court statements at an earlier time; (5) even if permitted to testify at trial, young children are unlikely to be able to testify to an earlier event with the degree of memory that an adult could, and they are easily confused by a deft cross-examination; and (6) pre-existing, "firmly rooted" hearsay exceptions have been inadequate to permit the admission of all reliable out-of-court statements made by children.

So, do any of these reasons explain why Mississippi's tender years exception should not apply to the mentally and emotionally mature nine, ten, or eleven year-old? Even if a child is mature, a sexual act against her is still clearly child abuse, meaning that the first reason doesn't provide an explanation. I'm not sure that all of the maturity in the world is going to help a kid of these ages to be able to extricate herself from an abusive environment without adult assistance, meaning that the second reason doesn't provide an explanation. The third reason doesn't provide an explanation either because the abuser is still likely only known by the abuser and possibly a confidante. The fourth reason could provide an explanation in states whose tender years exceptions require that the child be unavailable to testify at trial. The language of Mississippi Rule of Evidence 803(25), however, makes clear that it applies even if the child testifies at trial, meaning that this reason doesn't provide an explanation. 

The fifth reason provides the only possible explanation. Perhaps an especially mature nine, ten, or eleven year-old could testify more effectively than her average counterpart, marginally decreasing the necessity of applying the tender years exception. But do we really think that even the most mature child of this age will be able to provide compelling enough testimony that the exception is not needed? I certainly don't think so. Moreover, this reason doesn't apply when the child does not testify at trial, a situation that is still covered by the language of Mississippi Rule of Evidence 803(25). Finally, the sixth reason doesn't provide an explanation either because if the state is relying upon the tender years exception, it means that no other hearsay exception applied.

Now, as I said before, as far as I am aware, no Mississippi court has found the rebuttable presumption rebutted, and I am not sure that a court would focus upon mental and emotional maturity in reaching such a conclusion. That said, Mississippi courts clearly have indicated that the presumption is rebuttable, and they have certainly intimated that evidence of unusual maturity is highly relevant to tender years determinations. Based upon the above analysis, I hope that the Mississippi presumption is rebuttable in name only or at least that a Mississippi court does not eventually find the presumption rebutted based upon an unusually mature nine, ten, or eleven year-old who is allegedly the victim of sexual abuse.

-CM

Just The Facts: Supreme Court Of North Dakota Finds NDRCP 56(e) Trumps NDRE 705 In Uninsured Motorist Appeal

Like its federal counterpart, North Dakota Rule of Evidence 705 provides that

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Also, like its federal counterpart, North Dakota Rule of Civil Procedure 56(e) provides in relevant part that, with regard to motions for summary judgment,

Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit must be attached thereto or served therewith.

So, do affidavits containing expert opinions submitted in connection with motions for summary judgment need to set forth specific facts showing there is a genuine issue for trial? In its recent opinion in Perius v. Nodak Mut. Ins. Co., 2010 WL 1875738 (N.D. 2010), the Supreme Court of North Dakota, like many courts before it, answered this question in the affirmative.

In Perius, Allen Perius appealed from a summary judgment dismissing his action against his motor vehicle insurer, Nodak Mutual Insurance Company, for no-fault benefits and for uninsured motorist coverage. Nodak had moved for summary judgment on the ground that Perius failed to sufficiently allege that he suffered any injuries from the car accident giving rise to his action. According to Nodak, the evidence clearly established that Perius was merely treated after the accident for an existing degenerative arthritis, with no competent, admissible evidence establishing that his claimed injuries were proximately caused by the motor vehicle accident.

Perius had

submitted affidavits of two of his treating medical providers, Dr. Michael Quast and Dr. Kelly Remillard. Dr. Quast's affidavit said Perius "is continuing to have persistent pain and I believe it is a result of traumatic arthritis from the injury" sustained in the motor vehicle accident. Dr. Quast's affidavit further stated, "To a reasonable degree of medical certainty, I believe the medical treatment I have provided Allen Perius and associated medical expenses are reasonable, necessary and related to the October 8, 2004 motor vehicle accident." Dr. Remillard's affidavit said, "To a reasonable degree of medical certainty, I believe the medical/chiropractic treatment I have provided Allen Perius and associated medical/chiropractic expenses are reasonable, necessary and related to the October 8, 2004 motor vehicle accident." Nodak responded that the affidavits of Dr. Quast and Dr. Remillard were conclusory and did not provide competent, admissible evidence of causation and that those affidavits should be excluded because they did not comply with applicable discovery rules.

The trial court agreed with Nodak and granted its motion for summary judgment, prompting Perius' appeal, which eventually reached the Supreme Court of North Dakota. The North Dakota Supremes noted the tension between Rule 705 and Rule 56(e) but noted that "[f]ederal courts have decided that although F.R.Ev. 705 permits experts to testify by opinion without disclosing underlying facts or data, affidavits containing expert opinions, like other materials submitted in opposition to a supported motion for summary judgment, must comply with F.R.Civ.P. 56(e) and set forth specific facts showing there is a genuine issue for trial."  

The court then noted that state courts across the country had reached the same conclusion and joined the chorus. That said, the court still reversed, finding that

Dr. Quast's affidavit stated that Perius continued to have persistent pain and that he believed Perius's pain was a result of traumatic arthritis from an injury in the October 2004 motor vehicle accident. Dr. Quast opined to a reasonable degree of medical certainty that the medical treatment he had provided Perius and the associated medical expenses were reasonable, necessary and related to the October 2004 motor vehicle accident. Dr. Quast's affidavit reflects his opinions were based on Perius's reports, on an MRI and on his treatment of Perius. These are the types of facts and sources of information reasonably relied upon by medical doctors when forming opinions about a patient's medical condition....

Dr. Quast's affidavit inferentially reflects personal knowledge as Perius's medical provider, sets forth admissible opinions on an ultimate issue to be decided by the trier of fact, and establishes that he was competent to render an opinion about his patient's condition....Although Dr. Quast's affidavit was minimal, we conclude the affidavit sets forth sufficient facts from a medical provider to raise a factual issue about whether the 2004 motor vehicle accident proximately caused Perius's claimed injuries and damages.

-CM

Inconclusive: Southern District Of New York Allows Expert Testimony Regarding Hawala

A hawala is

an alternative or parallel remittance system. It exists and operates outside of, or parallel to 'traditional' banking or financial channels. It was developed in India, before the introduction of western banking practices, and is currently a major remittance system used around the world. It is but one of several such systems; another well known example is the 'chop', 'chit' or 'flying money' system indigenous to China, and also, used around the world. These systems are often referred to as 'underground banking'; this term is not always correct, as they often operate in the open with complete legitimacy, and these services are often heavily and effectively advertised.

The components of hawala that distinguish it from other remittance systems are trust and the extensive use of connections such as family relationships or regional affiliations. Unlike traditional banking or even the 'chop' system, hawala makes minimal (often no) use of any sort of negotiable instrument. Transfers of money take place based on communications between members of a network of hawaladars, or hawala dealers.

If a defendant were charged with various crimes, with the allegation being that the defendant used a hawala to commit these crimes, expert testimony that the defendant did not use a hawala could run afoul of Federal Rule of Evidence 704. That was not, however, what happened in United States v. Banki, 2010 WL 1875690.

In Banki, Mahmoud Reza Banki was charged with (1) conspiracy to violate and the violation of various Executive Orders and regulations issued under the International Emergency Economic Powers Act; (2) operating an unlicensed money transmitting business; and (3) making materially false statements in response to inquiries by the Office of Foreign Assets Control.

As the conduct underlying the...charges, the Government allege[d] that Banki and unnamed co-conspirators "operated an informal value transfer system known as a 'hawala' [in which] funds are transferred by customers to a hawala operator, or 'hawaladar,' in one country (here, the United States), and then corresponding funds, less any fees, are disbursed to recipients in another country (here, Iran) by foreign hawaladars associated with the U.S.-based hawaladar."...Banki claim[ed] that the transfers which are the subject of the Superseding Indictment were family remittances that, according to him, were lawful under the relevant regulations.

To prove his claim, Banki sought to have Daniel Gill, a former Special Agent with the FBI,

testify that the conduct charged in the Superseding Indictment [wa]s not consistent with a hawala because: (1) Defendant purportedly did not have a ready pool of cash in the United States for disbursements as one would expect of a hawaladar; (2) there [wa]s no evidence of disbursements from his account or settlement payments; and (3) the amount of money at issue in this case [wa]s too small to make the operation of a hawala profitable.

The government moved to preclude this testimony, claiming, inter alia, that it would run afoul of Federal Rule of Evidence 704, which indicates that

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

The United States District Court for the Southern District of New York disagreed, concluding

As I understand it, Mr. Gill will explain how a hawala functions, describe some classic characteristics of a hawala, and then compare the conduct alleged in this case to his definition of hawala to demonstrate what, in his opinion, is an inconsistency between the charges and the facts. There is no suggestion that he will opine on Defendant's mental state, and thus the testimony does not run afoul of Rule 704. Moreover, Mr. Gill's testimony may have little bearing on the ultimate factual issue to be decided, as it is conceivable that the jury could find that Defendant's alleged conduct does not share the hallmarks of a traditional hawala, but that Defendant nonetheless provided money transferring services in violation of the IEEPA/ITR.

-CM

Judge, Jury & Investigator: Court Of Appeals Of Arkansas Finds Trial Judge Improperly Took Field Trip To Appellant's House

Like its federal counterpart, Arkansas Rule of Evidence 605 provides that

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

Normally, this Rule applies when a judge makes comments at trial that are the equivalent of testimony, but as the recent opinion of the Court of Appeals of Arkansas in Kinard v. Arkansas Dept. of Human Services, 2010 WL 1904515 (Ark.App. 2010), makes clear, the Rule also applies when a judge engages in off-the-record fact gathering.

In Kinard, Tammy Kinard appealed from an order terminating her parental rights in her daughter, J.K. At the termination hearing, CASA director Glenda Evans

produced a series of photographs taken on April 15, 2009, which was the last time before the termination hearing that CASA was able to obtain access to [Kinard]'s home. Evans testified that the photographs showed that [Kinard]'s bed was very dirty with feces on it; that there were feces all over the commode; and that there were other unkempt and cluttered areas. [Kinard] objected that the pictures were "five or six months old," at which point DHS's attorney suggested that the court take a recess and visit [Kinard]'s home. The court did so with all counsel, [Kinard], and the bailiff present. [Kinard] voiced no objection.

After the order terminating Kinard's parental right was subsequently entered, she appealed, claiming "that the court 'erred by making a home visit to [her] apartment to view the conditions of her home and by failing to ensure that a record was made of what occurred during that visit.'" The Court of Appeals of Arkansas acknowledged that there might be merit to Kinard's argument, noting that

Arkansas law has long permitted a fact-finder to leave the courtroom and view a site that is material to the matter being tried.....However, in more recent cases, particularly those involving bench trials, the supreme court has retreated from its position that a fact-finder's view may serve as evidence and has restricted such views to their usefulness as an aid for better understanding testimony that is already on record....As a result, our courts now recognize that, when a judge's view exceeds that limited purpose, the judge commits error.

The question that the court thus had to answer was "whether the circuit judge's visit to [Kinard]'s home was undertaken for the purpose of understanding the proof that was already on record, which would be permissible, or whether, as characterized by [Kinard], the judge's inspection was an 'evidence gathering foray,' which would not be permissible." According to the court, it was the latter:

We conclude that the judge's view exceeded the scope allowed by our supreme court. The purpose of the court's visit was to acquire new evidence regarding the current state of [Kinard]'s home rather than to afford clarification or understanding of previously received testimony. While we understand the court's desire to bridge the gap in the photographic evidence by making a quick visit to [Kinard]'s home, we think that the better practice would have been for the court to dispatch the attorneys, parties, and a witness to observe [Kinard]'s apartment, then have the witness report back to the court on the record with a description of what was seen. Instead, by undertaking a personal view of the premises, the court added to the quantum of proof, which was contrary to law.

(The court, however, affirmed, finding this error to be harmless).

-CM

Sign Here: Court Of Appeals Of Iowa Finds Rule 410 Doesn't Cover Defendant's Falsely Signed Statement of Understanding

Like its federal counterpart, Iowa Rule of Evidence 5.410(4) indicates that

Except as otherwise provided in this rule or R.Cr.P. 9(5), evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(4) 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.

Most courts require a defendant claiming that he made statements during plea discussions to prove two elements: (1) that he exhibited an actual subjective expectation to negotiate a plea at the time of the discussion; and (2) that this expectation was reasonable given the totality of the circumstances. And as the recent opinion of the Court of Appeals of Iowa in State v. Daniels, 2010 WL 1875707 (Iowa App. 2010), makes clear, if a defendant claims that a document commenced plea negotiations and yet he signed a false name on that document, he did not have an actual subjective expectation to negotiate a plea.

In Daniels, 

officer Chad Ruroden of the Des Moines Police Department observed two men getting into a vehicle that matched the description of a stolen vehicle. Officer Ruroden approached the men, and saw the man on the passenger side drop a white bag on the ground. The officer conducted a pat down search of the man on the driver's side, Jonathon Green, and discovered thirty-nine rocks of crack cocaine in his jacket pocket. The man on the passenger side stated his name was Tyrone Daniels. The officer discovered 34.10 grams of marijuana in twelve separate baggies in the white bag Daniels had dropped on the ground.

Green and Daniels stated Daniels was accompanying Green that day while Green went to purchase crack cocaine from a man they knew only as "Black." They also stated that on other occasions Green would accompany Daniels while Daniels purchased marijuana from a man known as "Kool-Aid." Daniels gave a signed statement....

Green and Daniels cooperated with police officers to conduct a controlled buy of crack cocaine from "Black"....They also conducted a controlled buy of marijuana from "Kool-Aid"....Daniels signed a Memorandum of Understanding, as Tyrone Daniels, stating he would fully cooperate with law enforcement officials....The agreement provided that if Daniels did not cooperate, the agreement would be null and void. The agreement also provided, "it is agreed and understood by the Defendant that in the event the Defendant breaches this agreement, his admission of criminal activity is and shall be admissible against him in any criminal case or investigation."

After the controlled buy, however, the police department lost contact with Daniels, prompting the police to file arrest warrants for "Tyrone Daniels." The police soon learned, though, that the person they had dealt with was actually "Anthony Daniels," with Tyrone being his brother. The police thereafter arrested Anthony, and he was later convicted of conspiracy to deliver a controlled substance, conspiracy to deliver a controlled substance, and possession of a controlled substance with intent to deliver.

The trial court later denied Anthony's motion for a new trial, prompting him to appeal, claiming, inter alia, that the trial judge improperly allowed for the admission of the Memorandum of Understanding under Iowa Rule of Evidence 5.410(4). The Court of Appeals of Iowa disagreed, finding that Anthony presented no evidence that he subjectively expected that he negotiated a plea when he signed the Memorandum of Understanding. I would add that even if Daniels thought that he was negotiating a plea, he was merely talking to police officers and could not have thought that he was negotiating a plea with an attorney for the prosecuting authority, rendering Iowa Rule of Evidence 5.410(4) inapplicable.

Moreover, the court found

that although the memorandum require[d] defendant to be "truthful, honest, and candid as to all matters within his knowledge as they relate to the pending investigations," defendant signed the document under the name Tyrone Daniels, which was not his real name. We determine that because Daniels was using a false name, he did not have an expectation that he was negotiating a legitimate plea agreement. Such an expectation would not be reasonable under the circumstances.

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No Foundation: Seventh Circuit Opinion Reveals Lack Of Need To "Lay A Foundation" In American Evidence Law

When I reach the authentication portion of my Evidence classes, students usually ask whether authenticating a piece of evidence is the same thing as laying a proper foundation for its admission. My response is that there is no such thing as laying a foundation in American evidence law (despite what we are told by legal movies and TV shows). This point was recently recognized by the Seventh Circuit in its recent opinion in United States v. Collins, 2010 WL 1838361 (7th Cir. 2010).

In Collins, a jury convicted appellant Keith Collins of possessing crack cocaine with intent to distribute it and of conspiring to do the same. At trial, Collins' ex-girlfriend, Rokesha Johnson, testified that, during the course of their relationship, she observed him sell crack cocaine on numerous occasions.

After he was convicted, Collins appealed, claiming, inter alia, that this testimony constituted inadmissible character evidence of "other crimes, wrongs, or acts" under Federal Rule of Evidence 404(b). The Seventh Circuit disagreed, finding that

the bulk of the cocaine sales that Johnson described-those that took place between August 2002 and the time of Collins' arrest-occurred during the time frame of the charged conspiracy and are not “prior bad acts” as that term is understood.

The court then bypassed any serious analysis of cocaine sales described by Johnson which fell outside the time frame of the charged conspiracy, concluding that even if this testimony was improperly admitted, its admission was harmless error.

Collins also (implicitly) claimed that the prosecution failed to lay a proper foundation for the admission of Johnson's testimony, but the Seventh Circuit quickly dispensed with this argument as well, finding that

"no rule of evidence requires a 'foundation'" and that the rules of evidence generally make all relevant evidence admissible....This evidence of Collins' active crack cocaine distribution during and just before the time of the alleged conspiracy was relevant to show his involvement in the conspiracy. It is theoretically possible that Collins' sales observed by Johnson were entirely separate from his admitted conspiracy with McNeal, but that theoretical possibility did not prohibit admission of this evidence.

-CM