EvidenceProf Blog

Demonstrably Durable: Indiana Case Reveals Indiana Courts Still Recognize Demonstrably False Accusation Exception To Rape Shield Rule

"Under common law, evidence of prior false allegations of sexual misconduct is admissible if the allegation was demonstrably false and similar to that with which the defendant was charged, or if the complaining witness has admitted that the prior accusation was false." Jack Kenney, Prior False Allegations of Sexual Misconduct, Other Holdings 41-JUN Res Gestae 30, 30 (1998).

The recent opinion of the Court of Appeals of Indiana in Wells v. State, 2010 WL 2396283 (Ind.App. 2010), reveals that Indiana courts still recognize this common law rule as an exception to Indiana's rape shield rule and the unlikelihood that defendants will be able to use it to their advantage.

In Wells, Jason Wells was convicted of Child Molesting based upon acts that he allegedly committed against A.W., his then 13 year-old daughter. At trial, the court prevented Wells from presenting evidence that A.W. had made somewhat similar allegations to her brother and a friend against another individual around the same time she reported sexual abuse by her father. Unlike the allegations against Wells, A.W. did not make these allegations to police, and no charges were ever brought against this other individual.

After he was convicted, Wells appealed, claiming, inter alia, that the trial court erred by precluding him from presenting this evidence.  The Court of Appeals of Indiana noted that there are only four codified exceptions to the proscription in Indiana's rape shield rule -- Indiana Rule of Evidence 412 -- on the admission of evidence of past sexual conduct by a witness or the alleged victim: The rule allows for the admission of

(1) evidence of the victim's or of a witness's past sexual conduct with the defendant;

(2) evidence which shows that some person other than the defendant committed the act upon which the prosecution is founded;

(3) evidence that the victim's pregnancy at the time of trial was not caused by the defendant; or

(4) evidence of conviction for a crime to impeach under Rule 609.

The court went on to note, however, that

There is also a common law exception to this rule when a defendant seeks to introduce evidence of a prior false accusation of rape....Thus, evidence of prior false accusations may be admitted, but only if (1) the complaining witness admits he or she made a prior false accusation of rape; or (2) the accusation is demonstrably false....Prior accusations are demonstrably false where the victim has admitted the falsity of the charges or they have been disproved.

But the court then found that Wells failed to satisfy either of these tests because "A.W. ha[d] not admitted that her accusation [wa]s false and there [wa]s no other evidence in the record tending to establish that the accusation was demonstrably false." Moreover, the court found that "Indiana's Rape Shield Statute has repeatedly been found constitutional on its face so long as it does not violate a defendant's right to cross-examination" and that "Wells was able to cross-examine A.W. and all other witnesses about the alleged molestation and A.W.'s general character, and it was Wells's failure to present relevant evidence establishing the falsity of her prior rape allegations that led to the exclusion of the proffered evidence."

-CM

Without Prejudice: Supreme Court Of Montana Allows Jury Impeachment Regarding Internet Research, Upholds Verdict

Similar to its federal counterpart, Montana Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. 

However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury's deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury's attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.

As I have noted previously, information does not need to appear overtly prejudicial to be considered extraneous prejudicial information for Rule 606(b) purposes, meaning that a dictionary definition of a legal term can be extraneous prejudicial information. Of course, when that (internet) dictionary definition is the same as the legal definition, a juror's use of a dictionary is unlikely to result in a new trial as the recent opinion of the Supreme Court of Montana in Stebner v. Associated Materials, Inc., 2010 WL 2509626 (Mont. 2010), makes clear.

In Stebner,

Stebner, the owner of Riverside Apartment Complex, brought a breach of warranty action against Alside. Stebner had made a claim for replacement of the apartment complex's steel siding under [a] Limited Warranty. Alside denied his claim because, according to Alside, the damage to the siding was not covered under the warranty.

A jury trial was held from September 15, 2009, to September 18, 2009. After hearing the evidence, the jury began deliberations at approximately 4:00 p.m. on September 17. Before any deliberations, five jurors voted in favor of Alside, six voted in favor of Stebner, with one abstention. After about an hour of deliberations, the jurors voted six in favor of Stebner and six in favor of Alside. The jury was excused at 5:00 p.m. to allow one juror to pick up a child.

The jury reconvened at 8:30 a.m. the next day. Within five minutes, they voted eleven to one in favor of Alside and delivered the verdict accordingly. After the verdict, Stebner learned from a juror that some of the jurors were allegedly talking about the case outside of the jury room and that one juror had researched the definition of "preponderance" on the internet.

Stebner thus moved for a new trial, but the trial court denied the motion, and Stebner's appeal eventually reached the Supreme Court of Montana. The Montana Supremes found that

a juror affidavit may be used to impeach the verdict if it involves any matter concerning, inter alia, whether extraneous prejudicial information was improperly brought to the jury's attention. M.R. Evid. 606(b)....

In Allers [v. Riley], a bailiff brought a dictionary into the jury room at a juror's request. The dictionary definition of "proximate cause" differed from the court's jury instruction in that it did not include the element of foreseeability....We said that because "the jury used extraneous materials-two dictionaries-to redefine a critical element of this negligence case...Riley's substantial rights were compromised along with his constitutional right to a fair trial ."...

In Brockie v. Omo Constr., 255 Mont. 495, 500, 844 P.2d 61, 61 (1992), the jury foreperson went to the library and conducted research on a theory of physics in hopes of clarifying an expert's testimony. While the foreperson's affidavit stated he did not mention his research during deliberations, two other juror affidavits stated that he did mention his research to the other jurors....We held that the district court abused its discretion when it denied Brockie's motion for a new trial because the foreperson's actions constituted misconduct that prejudiced Brockie....

The Supreme Court of Montana found that the juror's actions in the case before it were like the jurors' actions in Allers and Brockie and that the dictionary definition was thus extraneous prejudicial information and could form the basis for jury impeachment under Montana Rule of Evidence 606(b). But, according to the court, the problem for Stebner was that, unlike in Riley, the (internet) dictionary definition of "preponderance" matched the definition given to jurors during jury instructions, meaning that Stebner was not entitled to a new trial.

-CM

Tanner '87: Court Of Criminal Appeals Of Tennessee Precludes Jury Impeachment Regarding Allegations Of Juror Intoxication

Similar to its federal counterpart, Tennessee Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

In its landmark opinion in Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court found that juror intoxication does not constitute an improper outside influence, with Justice O'Connor famously concluding, "However severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an 'outside influence' than a virus, poorly prepared food, or a lack of sleep." Based upon this ruling, the defendant in State v. Haynes, 2010 WL 2473298 (Tenn.Crim.App. 2010), had no chance of success.

In Haynes, a jury convicted Manuel Haynes of two counts of aggravated robbery. He thereafter moved for a new trial, claiming, inter alia, that the court should grant his motion because his right to a fair trial was infringed due to juror misconduct. Specifically, he "alleged that three jurors committed misconduct by not reporting that they smelled alcohol on the breath of another juror and that one juror committed misconduct by participating in the trial and deliberations while intoxicated." The trial court denied the motion.

In his subsequent appeal, Haynes

argue[d] that Tennessee Code Annotated section 22-2-312, allowing an ill juror to be discharged, and State v. Millbrooks, 819 S.W.2d 441 (Tenn.Crim.App.1991), holding that intoxication constitutes an illness subjecting the juror to discharge, support[ed] his proposition that the court should have granted his motion for new trial. In Millbrooks, the trial judge noticed the juror's intoxication and questioned the juror about it, subsequently dismissing the juror.

According to the Court of Criminal Appeals of Tennessee, there were two problems with Haynes' argument. First, he merely relied upon his counsel's argument that the juror was drunk, and such arguments do not constitute evidence. Second, even if Haynes had proposed juror testimony concerning the juror's intoxication, it would have been inadmissible under Tennessee Rule of Evidence 606(b) because it would have been internal to the jury deliberation process.

-CM

By Invitation Only: Court Of Appeals Of Tennessee Affirmes Terimination Of Parental Rights Based On Invited Error Doctrine

Under the invited error doctrine, a party is not permitted to take advantage of an error which he himself invited or induced the trial court to make. Although the Court of Appeals of Tennessee did not mention this doctrine by name, it clearly applied it in its recent opinion in In re Corey N.A., 2010 WL 2490758 (Tenn.Ct.App. 2010). 

In Corey N.A., the Department of Children's Services petitioned a Tennessee court to terminate the parental rights of L. and R.A. to their minor children. The proceedings against L. and R.A. were precipitated by allegations of abuse by their child Kayla to a caseworker, with her allegations leading to the children being taken into custody. At the ensuing trial, Kayla did not testify, but her allegations of abuse were admitted into evidence and played a big role in the trial court finding "that grounds to terminate the parental rights by clear and convincing evidence existed, as well as clear and convincing evidence that it was in the children's best interest to terminate the parental rights of the parents.

After their parental rights were terminated, the parents appealed, claiming, inter alia, that Kayla's allegations were inadmissible hearsay. The Court of Appeals of Tennessee disagreed, finding that the statements were admissible under Tennessee Rule of Evidence 803(25), which provides an exception to the rule against hearsay for "statements about abuse or neglect made by a child alleged to be the victim of physical, sexual, or psychological abuse or neglect, offered in a civil action concerning issues of dependency and neglect," with victims under 13 years-old not needing to testify for such statements to be admissible.

The Court of Appeals noted that the parents contended on appeal that this exception was inapplicable because Kayla was over the age of 13 at the time of trial and did not testify. But the court noted that at trial, the parents claimed that Kayla was a few months shy of 13, with their attorney admitting that her statements to the caseworker were "probably admissible." Accordingly, the court found that the parents could not "now be heard to complain that Kayla's statements should not have been admitted." Or, in other words, if the trial court erred in admitting Kayla's statements, that error was invited by the parents.

-CM

Off The Record: Court Of Appeals Of Texas Notes That Rule 609(b) Balancing Doesn't Need To Be Recorded

Like its federal counterpart, Texas 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.

And, as the recent opinion of the Court of Appeals of Texas, Beaumont, in Walker v. State, 2010 WL 2533774 (Tex.App.-Beaumont 2010), makes clear, the trial court does not need to create a record indicating that it performed the above balancing test.

In Walker, a jury convicted Steven Lee Walker of driving while intoxicated, his third or more offense, a third-degree felony. Walker was arrested for driving while intoxicated because R.V. called 911 after observing, inter alia, a truck driven by Walker being driven rather erratically, including swerving into a ditch and hitting mailboxes.

During the trial, and to impeach R.V.'s credibility, Walker offered evidence to show that R.V. had three prior criminal convictions, two for burglary of a building and one for criminal trespass. The three convictions, dated 1985, 1986, and 1988, each occurred more than ten years prior to the trial. The trial court refused to admit the convictions. Walker re-urged his request after the State recalled R.V., but the trial court again refused to allow him to introduce evidence about R.V.'s prior criminal record.

After he was convicted, Walker appealed, claiming, inter alia, that the trial court erred in precluding his proposed impeachment. The Court of Appeals of Texas, Beaumont, disagreed. It first noted that because "more than ten years had elapsed from the date of each of R.V.'s prior criminal convictions...[i]t was reasonable for the trial court to determine that more than ten years had also elapsed from the date of R.V.'s release from the confinements that had been imposed for the convictions." (The court didn't explain why this was reasonable, and I hope that I relied on more than the fact that more than ten years had elapsed since each date of conviction.). It thus noted that the admissibility of the convictions was governed by Texas Rule of Evidence 609(b).

The court the acknowledged Walker's argument "that the record show[ed] the 'trial court did not, and could not possibly have, conducted the required balancing test' required by Rule 609(b)." The court, however, responded to this argument by finding that

"[a] record of such a test is not necessary. When considering the probative effect of evidence versus its possible prejudicial effect, [we] may presume that the trial judge conducted the balancing test, which need not be shown in the record."...The trial court's refusal to allow the evidence of R.V.'s prior criminal convictions implies that the trial court rejected the "'interest of justice' exception in rule 609(b)."

Furthermore, the court found no error with the trial court's conclusion because

Other than the fact that the two burglary convictions were crimes of moral turpitude, Walker offer[ed] no argument showing that R.V.'s convictions would be probative with respect to R.V.'s testifying about what he had seen in an incident involving an intoxicated driver. Moreover, there was strong direct and circumstantial evidence from other witnesses introduced during the trial that corroborated R.V.'s account that he had seen Walker driving erratically and that Walker was intoxicated. Given the remoteness of R.V.'s prior convictions, and corroborating evidence of other witnesses, Walker fail[ed] to demonstrate that the probative value of admitting R.V.'s prior convictions substantially outweighs the prejudicial effect of doing so.

While generally I think that it is good for courts to create records of evidentiary rulings, I can see the point of the Court of Appeals of Texas. Even if the trial court found that evidence of R.V.'s prior convictions substantially outweighed their prejudicial effect, it still could have excluded them if it felt that admitting them was not in the interests of justice. Thus, unlike a typical impeachment ruling, there wasn't (really) a need for the court to record the way in which it balanced probative value and prejudicial effect.

-CM

Just The Facts, Man: D.C. Case Reveals Broadness Of D.C.'s Prior Identification Rule

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

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person.

Washington D.C. does not have codified rules of evidence, but D.C. Code Section 14-102(b)(3) provides that

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is...an identification of a person made after perceiving the person. 

In other words, as the District of Columbia Court of Appeals found in its recent opinion in Lewis v. United States, 2010 WL 2516135 (D.C. 2010), "FED.R.EVID....is essentially identical to D.C.Code § 14-102(b)." As the court's opinion reveals, though, the D.C. rule may go even farther.

In Lewis, Rodney Lewis and Jonathan Price, were tried on charges of armed robbery and possession of a firearm during a crime of violence. And while the jury was unable to agree on these charges, it found both men guilty of the lesser included offense of robbery. At trial,

Detective Roberts testified that [Aaron] Gibson [(the alleged victim of the appellants' crimes)] told him that "JB" and "Rodney" had driven up in a silver SUV and robbed him. Roberts said that Gibson described the gun as a black semi-automatic handgun held by JB and that he identified JB as the driver, although he was not certain whether JB had actually driven the SUV away from the scene. Roberts described Gibson as "highly upset" and "still a little nervous" and stated that, despite what Gibson told him, he "had the impression that [Gibson] wasn't a hundred percent sure" which of the two suspects had been the driver and which had been the passenger when the SUV first pulled up.

About an hour later, Detective Roberts received a telephone call from Gibson providing the name "Jonathan Price" for the person he had previously identified as "JB." He used that information to assemble an array of nine photographs, one of which was a picture of appellant Price. Roberts then went to reinterview Gibson at his home, and Gibson identified Price from the array as one of the robbers, saying, "That's JB, yeah, that's him."  

After they were convicted, the appellants appealed, claiming, inter alia, that this testimony was improperly received, but the District of Columbia Court of Appeals disagreed because Gibson testified at trial, rendering this testimony admissible under D.C. Code Section 14-102(b)(3). Moreover, the court found that

Insofar as those statements went beyond mere identifications and included information about the crime itself, the trial court ruled, and we agree, that such information was needed to put the identifications "in context" and to clarify each appellant's individual role in the robbery.

I'm not aware of any court interpreting Federal Rule of Evidence 801(d)(1)(C) in this way, and I think that the D.C. rule goes too far. I guess in theory I can see how certain testimony might be necessary to place identifications in context. But how, for instance, is testimony about the type of gun held by one of the victim's assailants necessary to put the victim's identification in context?

-CM

Drive@death?: Florida Appellate Court Finds Trial Court Improperly Applied Doctrine Of Substantial Similarity In Trial Against Mitsubishi

Generally, the doctrine of substantial similarity applies in a products liability claim when a party, most often a plaintiff, attempts to introduce evidence of prior accidents or recreates the accident involving the defendant's product, in order to show notice of defect, magnitude of the danger involved, the defendant's ability to correct a known defect, or the lack of safety for intended uses.

The personal representative of the estate of a decedent sues Mitsubishi, claiming that design defects in the seat belt, seatback, and side window glass of the decedent's Mitsubishi Native caused him to be partially ejected from the vehicle during an accident, causing his death. In response, Mitsubishi seeks to introduce evidence of “301 testing” to show that a variety of seats in different vehicles tested by NHTSA perform in a similar manner to the seat in the Nativa. Should the admissibility of the evidence of the 301 testing depend on the doctrine of substantial similarity? According to the trial court, the answer is "yes." According to the District Court of Appeal of Florida, Fourth District, in its recent opinion in Mitsubishi Motor Corp. v. Laliberte, 2010 WL 2382562 (Fla.App. 4 Dist. 2010), the answer is "no."

The facts in Laliberte were as stated above. According to the trial court, the evidence of the 301 testing

contained different crash scenarios, different seats, and different forces compared to those present in the accident. The court went on to conclude that these differences made the evidence less probative or relevant. Therefore, the court concluded that admission of such evidence would be highly prejudicial. Essentially, the trial court was applying the doctrine of substantial similarity to determine whether to admit Mitsubishi's evidence.

On Mitsubishi's ensuing appeal, the District Court of Appeal of Florida, Fourth District, noted that Mitsubishi sought to admit the evidence of the 301 testing as demonstrative evidence to supplement the testimony of its expert witnesses. And, according to these experts,

(1) even if Mitsubishi had used the other seat belt systems suggested by the plaintiff's experts, Laliberte still could have been ejected from the vehicle and suffered the same injuries; (2) the EM loop design provided safety features not present in the other designs; (3) with respect to the design of the Nativa's passenger seat, the plaintiff's alternative seat design posed greater dangers to the occupant; and (4) the seat conformed to industry custom and standards.

Therefore, according to the court, "the purpose of the evidence was not to replicate the accident to prove that the seat belt or seatback operated in a manner different than that proposed by the plaintiff's expert. Rather the evidence supported Mitsubishi's otherwise valid defenses to the plaintiff's defective product claims." Thus, the appellate court held that

the trial court applied the wrong test. It should not have applied the doctrine of substantial similarity to evidence that was not intended to recreate the accident. We hold that the application of the doctrine of substantial similarity to test the relevancy of Mitsubishi's demonstrative evidence was an abuse of discretion because the evidence was relevant to the purpose for which it was tendered-to prove Mitsubishi's defenses.

Moreover, the court found that

because Mitsubishi's defenses necessarily required expert opinion testimony. When the trial court excluded Mitsubishi's demonstrative evidence, its expert's opinions were barren and unsubstantiated. Moreover, during closing argument, the plaintiff's counsel capitalized on the error by arguing that the testing performed by Mitsubishi's expert was “really irrelevant,” that Mitsubishi's expert “never tested a seat in a rollover condition.” Mitsubishi argues, and we agree, that in the context of an expert opinion, the force and effect of the opinion being proffered is greatly enhanced when supported by studies and data upon which the opinion is based.

The appellate court thus reversed the jury's finding that the vehicle's seat belt design was defective and a legal cause of Laliberte's injuries, resulting in his death.

-CM

Bloody Well Right: Supreme Court Of Arizona Finds 6 Crime Scene Photos Were Properly Admitted

Like its federal counterpart, Arizona Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The key phrase in this Rule is "substantially outweighed." In other words, even if the probative value of a piece of evidence is slightly or moderately outweighed by the danger of unfair prejudice that it creates, it will still be deemed admissible. This wording helps explains why American courts admit all sorts of gruesome evidence, such as the six crime scene photos deemed admissible by the Supreme Court of Arizona in its recent opinion in State v. Lynch, 2010 WL 2485248 (Ariz. 2010).

In Lynch, Shawn Lynch and Mike Sehwani were charged with first degree murder (both felony and premeditated), armed robbery, burglary, and kidnapping based upon acts allegedly committed against James Panzarella. Specifically, James was found bound to a metal chair in a kitchen with his throat slit and blood pooled on the tile floor.

At trial, to prove that the killer(s) acted with premeditation, the prosecution had a blood spatter expert testify that the person who slit James' throat likely stood behind the chair while completing the act. The prosecution later introduced six photographs of the crime scene, which "depict[ed] blood spatter and blood pools in relation to the victim's body and thus corroborate[d] the opinion of the State's expert that the person who slit James's throat stood behind the chair."

After he was convicted, Lynch appealed, claiming, inter alia, that the trial court should have excluded these photographs. The Supreme Court of Arizona disagreed, finding that

Although the photographs are disturbing, none is overly gruesome. The probative value of the photographs is not substantially outweighed by any prejudicial effect, see Ariz. R. Evid. 403, and the trial court did not abuse its discretion in admitting them.

-CM

Maxitrial?: First Circuit Finds That Regular Rule 403 Analysis Applies to Rule 415 Rulings

Federal Rule of Evidence 415(a) provides that

(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

Meanwhile, Federal Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In its recent opinion in Martínez v. Cui, 2010 WL 2404390 (1st Cir. 2010), the First Circuit addressed an issue that has split the courts: Does Rule 403 apply differently in Rule 415 cases than in other cases. According to many courts, the answer is "yes." According to the First Circuit, the answer is "no."

In Cui, Eridiana Martínez brought federal and state claims alleging that Dr. Hongyi Cui, a first-year medical resident, sexually assaulted her by digital rape during an examination when she was an emergency-room patient at the UMass Memorial Medical Center. The Board of Registration in Medicine later

initiated disciplinary proceedings against Cui based on Martínez's allegations, as well as allegations by another woman, B.H., who claimed that Dr. Cui, while still a surgical resident in his intern year, inserted his finger in her vagina during a postoperative exam....The Division of Administrative Law Appeals (DALA) conducted exhaustive proceedings, which included discovery and testimony from dozens of witnesses....[A] DALA magistrate found that Cui had committed no misconduct and recommended that the Board dismiss charges against Cui, which the Board did. The jury was not told this history; it was only informed there had been a prior proceeding.

After the jury found for Dr. Cui, Martínez appealed, claiming, inter alia, that the district court should have admitted B . H.'s testimony as evidence of a similar act in a civil case concerning sexual assault under Federal Rule of Evidence 415(a). Because Martínez did not preserve this objection for appeal, the First Circuit reviewed for plain error.

The First Circuit began by noting that

Rule 415, like its counterparts Rules 413 and 414, was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994...and became effective in 1995....The drafters' purpose was to supersede Rule 404(b)'s prohibition on evidence of like conduct showing propensity in sexual assault cases.

The court then agreed "with the conclusion, universal among the courts of appeals, that nothing in Rule 415 removes evidence admissible under that rule from Rule 403 scrutiny." But does Rule 415 change Rule 403 scrutiny? According to the First Circuit,

Some appellate courts have imposed external, judicially crafted rules as to district judges' consideration of evidence under Rule 415. Two circuits have required district courts to apply Rule 403 with "careful attention to both the significant probative value and the strong prejudicial qualities" of this evidence....Others seemingly have instructed district courts to apply Rule 403 less stringently, at least in some cases, to avoid having Rule 403 swallow evidence Congress clearly intended to make admissible....Several circuits have adopted factors district courts can or should consider to evaluate the admissibility of evidence under Rules 415 and 403....And at least one has suggested that appellate courts should more carefully scrutinize district courts' decisions under Rules 413-415.

The First Circuit, however, reject these approaches, finding "no reason to adopt special rules constraining district courts' usual exercise of discretion under Rule 403 when considering evidence under Rule 415, although it did acknowledge that "[o]f course district courts must apply Rule 403 with awareness that Rule 415 reflects a congressional judgment to remove the propensity bar to admissibility of certain evidence." Then, applying the regular Rule 403 analysis, the First Circuit affirmed the district court's ruling, concluding that it was properly based upon two factors:

First, there were significant medical distinctions in the two treatment situations that would have required extensive explanation. Martínez was in an auto accident and "whatever trauma she suffered, it was not in her vaginal or anal area." By contrast, B.H. had undergone surgery for Crohn's disease that basically removed her rectum and anus. "Her intestine was rerouted to a colostomy bag, and she had been suffering from substantial leakage of fecal matter and...fluid into her vagina." Dr. Cui had to perform a postoperative exam to ensure B.H.'s surgical incisions were not bleeding or infected. B.H., heavily sedated on morphine, claimed that she felt-not that she saw-Dr. Cui insert his finger in her vagina. Expert testimony established that she would have had a hard time differentiating what Dr. Cui was touching, and in any event a vaginal exam would have been appropriate.

Second, B.H.'s testimony would have required "a minitrial," indeed something "in the nature of a maxitrial," to probe the complexity of B.H.'s condition, including expert testimony. The record fully supports the district court's evaluation of the underlying facts, which are in truth even more complicated than the recitation that the court gave. That, in turn, fully supports the court's judgment that Martínez's case could get lost in the details of the "maxitrial," which would have been unduly prejudicial and likely to confuse the issues and mislead the jury.

-CM

Expert Reliance: Court Of Appeals Of Kentucky Finds Expert Opinion Testimony On Damages Was Properly Based On Inadmissible Hearsay

Kentucky Rule of Evidence 703(a) provides 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.

And, as the recent opinion of the Court of Appeals of Kentucky in Kessler Homes, Inc. v. Petzold, 2010 WL 2427415 (Ky.App. 2010), makes clear, estimates of damages based upon inadmissible hearsay are often admissible under Kentucky Rule of Evidence 703(a) and similar rules.

In Petzold,

On August 30, 2000, [Adolph and Marilyn Petzold] and Kessler [Homes, Inc.] entered into a contract for the construction of a residence. Toward the end of the construction project, disputes arose between the parties concerning the quality of the work and Kessler's billing practices. In light of the disagreements, the Petzolds refused to pay Kessler. The efforts of the parties to resolve their differences failed.

On October 14, 2002, Kessler filed suit against the Petzolds in Fayette Circuit Court seeking amounts it believed were owed by the Petzolds under the contract. The Petzolds filed a counterclaim asserting various causes of action relating to fraud, violations of the applicable building codes, and violations of Kentucky's Consumer Protection Act. Protracted litigation followed. The parties waived their respective rights to a jury trial, and a four-day bench trial was held from August 29, 2005, to September 1, 2005, presided over by Judge Goodwine.

On February 3, 2006, Judge Goodwine entered an opinion, order, and judgment. The judgment dismissed Kessler's claims against the Petzolds; awarded the Petzolds $21,668.00 upon their claim for building code violations; awarded the Petzolds $8,466.00 upon a finding that Kessler breached its duty of good faith and fair dealing, but dismissed the underlying fraud claim; dismissed the Petzolds [sic] claims for damages for other construction defects, for violation of the Consumer Protection Act, and for the loss of the use and enjoyment of their residence; and found that the Petzolds were entitled to recover their attorney fees and expenses, expert fees and expenses, and costs. Both parties thereafter filed motions to alter, amend, or vacate. On May 2, 2006, the trial court entered an order denying Kessler's motion to amend, sustaining the Petzolds' motion to amend, and finalizing the award of $106,024.59 for attorney fees and expenses and $5,367.60 for expert fees. Both parties appealed the trial court's rulings to the Court of Appeals.

Part of the basis for Kessler's appeal was that the trial court abused its discretion by admitting certain testimony of the Petzolds' expert witness, Sasan Pasha, a structural engineer. Kessler Homes stipulated that Pasha was qualified to testify as an expert regarding the Petzolds' roof, and Pasha later testified that the Petzolds' roof was defective and in violation of the building codes and that it would cost $21,668.00 to replace the roof. In reaching this latter conclusion, Pasha considered estimates from two different roofing companies when formulating his opinion.

On appeal, Kessler's argument regarding Pasha's testimony was twofold. First, it argued that Pasha, as a structural engineer, was only qualified to testify regarding whether the roof was defective and was not qualified to testify regarding the cost of replacing the roof. The Court of Appeals of Kentucky easily turned this argument aside, finding that Kessler stipulated that Pasha was qualified to testify as an expert and never objected to his credentials at trial.

Second, Kessler claimed that Pasha improperly relied upon inadmissible hearsay to reach his conclusion regarding the cost to replace the roof. The court again disagreed, finding that

KRS 703(a) specifically provides that the "facts or data in the particular case upon which an expert bases an opinion...need not be admissible in evidence." "Thus when the expert witness has consulted numerous sources, and uses ... his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise."...

Pasha met the standards set forth above. He consulted more than one source and then utilized his professional knowledge and experience to derive an opinion regarding roof replacement cost. Kessler Homes was not precluded from substantive cross-examination as Pasha was available and did testify regarding the basis of his opinion. Any inadequacies exposed from this cross-examination properly affected the weight of his testimony and not its admissibility. Accordingly, we discern no abuse of discretion in the trial court's admission of Pasha's opinion regarding cost replacement.

-CM

Plenty Of Time: Tenth Circuit Finds Statement Made Almost 2 Hours After Sexual Assault Qualified As Excited Utterance

Federal Rule of Evidence 803(2) 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.

And, as the recent opinion of the Tenth Circuit in United States v. Smith, 2010 WL 2197524 (10th Cir. 2010), makes clear, even statements made several hours after a startling event or condition can qualify as excited utterances.

In Smith, Lehman Smith,

an Indian, and the victim, “Jane Doe,” both attended a party at a hogan [(a type of traditional Navajo dwelling)] located in the Navajo Nation. They and other attendees at the party consumed beer, and some used drugs. The party broke up after midnight. While everyone else left the hogan, Smith and Jane Doe remained. Jane Doe fell asleep on a couch at around 2:00 a.m.

Jane Doe awoke to find Smith having sex with her. She pushed Smith off, confronted him, and fled the hogan. She sought assistance at a neighbor's trailer, claiming she had been raped. She then called the police. Jane Doe was taken to an emergency room. DNA samples taken by an examining doctor were later matched to Smith.

Smith was later charged with knowingly engaging and attempting to engage in a sexual act with a person incapable of apprising the nature of the conduct and of communicating unwillingness to engage in the sexual act, in Indian Country. At trial, the neighbor testified that, at approximately 4:30 a.m., she answered the door and found Jane Doe crying and screaming-"Help me, help me. He raped me." 

After Smith was convicted, he appealed, claiming, inter alia, that Jane Doe's statement should have been excluded as inadmissible hearsay. The Tenth Circuit disagreed, easily finding that Jane Doe's statement related to the starling evident of being sexually assaulted and that she made her statement while under the stress of excitement caused by the event. Smith claimed that too much time, almost 2 hours, had passed between the alleged act and Jane Doe's statement, rendering Federal Rule of Evidence 803(2) inapplicable. The Tenth Circuit disagreed, finding:

Nor does the passage of time suggest the stress had dissipated. Other courts have found the excited-utterance exception applies where more time elapsed between the startling event and the excited statement. For example, in United States v. Cruz, 156 F.3d 22 (1st Cir.1998), the First Circuit held a statement could be admitted as an excited utterance when there was a four-hour delay between a violent domestic altercation and statements made by the victim at a battered women's shelter. See id. at 30 (cited with approval in Pursley, 577 F.3d at 1221). Similarly, in United States v. Tocco, 135 F.3d 116 (2d Cir.1998), the Second Circuit ruled a statement could be admitted under the excited-utterance exception where three hours passed between the discovery that people were in a burning building and the declarant's statement that he was involved in the arson. See id. at 128 (also cited with approval in Pursley, 577 F.3d at 1221). And, we have noted that a statement made by a child the day after being molested could have been admitted as an excited utterance where the child was described as frightened and on the verge of tears when the declaration was made. See United States v. Farley, 992 F.2d 1122, 1123, 1125-26 (10th Cir.1993). Here, less than two hours after being raped and only upon escaping from Smith, Jane Doe-still under obvious stress from the attack-made the statement to the neighbor.

-CM

Brief Inquiry: Court Of Appeals Of Indiana Affirms Child Molesting Conviction Despite Possibly Erroneous Impeachment

Like its federal counterpart, Indiana 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, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement 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 ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, let's say that the prosecution impeaches the defendant with a conviction that is more than ten year old, and the defendant does not object to the admission of his conviction for impeachment purposes. After the defendant is convicted, however, he appeals, claiming that evidence of this conviction was improperly admitted. Clearly, the defendant has to prove plain error. But can he do so if the prosecution's impeachment of him was fairly brief? According to the recent opinion of the Court of Appeals of Indiana in its recent opinion in Boyd v. State, 2010 WL 2396260 (Ind.App. 2010), the answer is "no."

In Boyd, James Boyd was convicted of Child Molesting, a class A felony. The opinion of the Court of Appeals of Indiana does not tell us about what transpired at trial with two exceptions.  First, the prosecutor made statements which Boyd contended on appeal constituted reversible prosecutorial misconduct. Specifically, the prosecutor claimed that the alleged victim was "truthful" during his opening statement and suggested that Boyd had the burden of proof at trial during his closing argument, in which he asked jurors why Boyd did not call certain witnesses on his behalf.  The Court of Appeals of Indiana agreed with Boyd that each of these acts constituted prosecutorial misconduct, but it noted that the trial court gave jury instructions which cured any prejudice flowing from these acts.

Second, the prosecutor impeached Boyd with his conviction for burglary in 1996. Boyd filed a pretrial motion in limine, which sought to preclude this evidence at trial, but he failed to renew his objection to its admission at trial. After he was convicted, however, he raised this issue again, and the Court of Appeals of Indiana noted that "Boyd testified in the instant trial on October 16, 2009, which is more than ten years after he was convicted of burglary."  

The court correctly noted, however, that

Rule 609(b) provides that where, as here, the conviction resulted in confinement, then the starting point of the ten-year period is the date of the release from confinement rather than the date of the conviction. At trial, the prosecutor noted that Boyd was sentenced to ten years with four years suspended, arguing that if we assume that Boyd

had good time credit and he served that time under, so [the confinement] would have been three years generally speaking which would put his release date from prison approximately 12-16-1999, so therefore we are within the ten year limit of when he was released, just barely, but we are within that ten year limitation.

Boyd argued, though, that the prosecution failed to offer any actual evidence of the date of his release from confinement and that its mere assumption that the release date must have been around December 16, 1999 was insufficient. The court assumed for argument's sake that Boyd was correct and found that, even if he was, the trial court did not commit plain/fundamental error, requiring reversal. The court noted that the following was the sole evidence of the past burglary conviction occurred in the midst of the State's cross-examination of Boyd:

STATE: Mr. Boyd, back in 1996, you were convicted of burglary in this Court is that correct?

BOYD: Yes, sir.

STATE: A [class] B felony burglary?

BOYD: Yes.

According to the court,

The State then moved on to other lines of questioning. Thus, the State's questioning regarding the prior conviction was very brief. Furthermore, the lack of similarity between the prior burglary conviction and the present child molesting charge decreases the possibility that the jurors impermissibly inferred Boyd's guilt based on the past conviction. Given the brevity of the State's questioning regarding the past conviction, we cannot conclude that the admission of this evidence constituted a blatant violation of basic and elementary principles that prevented Boyd from receiving a fair trial. Thus, any error was not fundamental and we decline to reverse on this basis.

I probably agree, but it is tough to say because, as noted above, the court's opinion doesn't tell us what evidence was presented at trial. I admit that the above impeachment was not that prejudicial, but if the evidence were otherwise close, I can see how Boyd's prior conviction (especially when joined with the aforementioned prosecutorial misconduct) could have tipped the scales.

-CM

Rapier, Not Blunderbuss: Court Of Criminal Appeals Of Texas Clarifies Scope Of Davis v. Alaska

Texas Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is not admissible, except for proceedings conducted pursuant to Title III, Family Code, in which the witness is a party, under this rule unless required to be admitted by the Constitution of the United States or Texas.

So, when does the Constitution require the admission of evidence of juvenile adjudications? According to the appellant in Irby v. State, 2010 WL 2382594 (Tex.Crim.App. 2010), any witness, including a juvenile, who is on probation may be cross-examined about that status to show a potential bias or motive to testify for the State. The Court of Criminal Appeals of Texas disagreed.

In Irby, Christopher Irby was charged with the sexual assault of W.P., a sixteen-year-old child, enhanced with a prior conviction for indecency with a child. After W.P. testified against him, Irby sought to cross-examine W.P. about his juvenile deferred-adjudication probation. The trial court, however, precluded such impeachment, and this ruling formed a partial basis for Irby's appeal.

As part of that appeal, Irby cited the United States Supreme Court's opinion in Davis v. Alaska, 415 U.S. 308 (1974) "and its Texas progeny for the proposition that any witness, including a juvenile, who is on probation may be cross-examined about that status to show a potential bias or motive to testify for the State." The Court of Criminal Appeals of Texas found, however, that Irby "read[] these cases too broadly." 

The court noted that, in Davis, a juvenile witness in a burglary prosecution, Richard Green, was on probation for burglarizing two cabins. And the Supreme Court found that the Confrontation Clause required the admission of Richard's juvenile adjudications because

Richard may have felt that the police would suspect him of the burglary both because he had a prior burglary adjudication and because the emptied safe was found on his family's property. Based upon these particular facts, Richard had a possible motive to divert suspicion from himself to another. Further, the police might also have brought undue pressure upon Richard to make an identification of someone-anyone-because he was in "a vulnerable relationship" by virtue of being on probation for burglary, a fact that the investigating officers may also have known and used in questioning him. Richard's possible motives were directly related and connected "to issues or personalities in the case at hand."

In his concurring opinion, however, Justice Stewart cautioned that Davis neither "holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his [or her] past delinquency adjudications or criminal convictions."

The Court of Criminal Appeals of Texas then found that the trial court properly precluded Irby's proposed impeachment because Irby failed to show that W.P.'s probationary status created a particular motive for him to testify against Irby and in favor of the State. According to the court,

In sum, Davis v. Alaska, is not a blunderbuss that decimates all other evidentiary statutes, rules, and relevance requirements in matters of witness impeachment. It is a rapier that targets only a specific mode of impeachment-bias and motive-when the cross-examiner can show a logical connection between the evidence suggesting bias or motive and the witness's testimony. We therefore reject appellant's absolutist position that “[a] probationer, particularly a probationer whose guilt has not yet been adjudicated, is always in a vulnerable relationship with the State” and that mere status is always automatically relevant to show a witness's possible bias and motive to testify favorably for the State as inconsistent with Texas and United States Supreme Court precedent.

-CM

Same Claim?: Northern District Of Florida Fails To Answer Whether Rule 408 Only Covers Settlement Documents Regarding Same Claim As Lawsuit

Federal Rule of Evidence 408(a) states:

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

 

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

But does this Rule apply only when the claim involved in a lawsuit is the same as the claim involved in the settlement negotiations? The United States District Court for the Northern District of Florida didn't really answer that question in its recent opinion in Fluor Intercontinental, Inc. v. IAP Worldwide Services, Inc., 2010 WL 2366482 (N.D. Fla. 2010), but I think that the answer is a clear "no."

In Fluor,

In 2002, Defendant Readiness Management Support (“RMS”), a subsidiary of IAP Worldwide Services, Inc., (“IAP”) entered into a “cost-reimbursable contract” with the Air Force, in which the Air Force issued Task Order 5076 for RMS to develop military facilities in the Qatar. RMS then signed a subcontract with Plaintiff Fluor Intercontinental, Inc. (“Fluor”) to provide the construction for the project. Fluor then signed a subcontract with IBS to perform certain obligations under the contract between Fluor and RMS. IBS' performance was deficient, causing Fluor to terminate IBS for cause and correct IBS' deficient performance at additional expense.

In November of 2003, the Air Force terminated the contract with RMS on Task Order 5076. Subsequently, RMS submitted a Certified Termination for Convenience Claim to the Air Force on behalf of Fluor, contending the Air Force was liable for approximately $26 million in unpaid costs under the contract. The Contracting Officer denied the claim on the ground that RMS and Fluor had not given timely notice of the costs.

In May of 2007, RMS and Fluor appealed this decision to the Armed Services Board of Contract Appeals (“ASBCA”). In an effort to recoup their costs, RMS and Fluor presented a “united front” in the ASBCA litigation, working together against the Air Force. In 2008, while the appeal was pending, RMS, Fluor, and the Air Force engaged in mediation to resolve the dispute. During that mediation, Fluor's counsel gave a PowerPoint presentation entitled “RMS Mediation Presentation.” As a result of the mediation, the Air Force agreed to pay $14 million to settle all claims with RMS and Fluor related to Task Order 5076.

Fluor thereafter brought an action against RMS, seeking recovery for the remaining portion of its expenses not covered by the Air Force Settlement. In response, RMS sought to compel responses to discovery requests regarding the PowerPoint presentation made at the ASBCA mediation. Fluor countered that the presentation was covered by Federal Rule of Evidence 408(a) and thus inadmissible. RMS in turn responded that "because the mediation where the PowerPoint presentation was given was part of a different case, the presentation [wa]s admissible...."

The United States District Court for the Northern District of Florida agreed with Fluor, finding that

it is clear that the mediation in the ASBCA case was part of settlement of a common claim that is at issue in this case as well. The core issue of Fluor's entitlement to recovery for the same project was present in both the ASBCA litigation and the instant case. Thus, any statements made by Fluor during the ASBCA mediation, including the PowerPoint presentation, are not admissible under Rule 408.

I agree with the court that the presentation was inadmissible, but I don't see why the court even needed to mention that the mediation was part of settlement of a common claim. Even if the mediation was not part of settlement of a common claim, the presentation still would have been inadmissible as long as it was used in compromising or attempting to compromise a claim. There is no requirement under Rule 408 the evidence of settlement negotiations to be excluded involve the same claim as the claim involved in the subject lawsuit. Indeed, as I have noted before, the Rule even applies when there is an action between a party to settlement negotiations and a third party that was not involved in those negotiations.

-CM

Standard Deduction: Court Of Appeals Of North Carolina Precludes Jury Impeachment Regarding Incorrect Damages Being Awarded

North Carolina Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

So, let's say that a plaintiff seeks $50,000 in damages, and the defendant counterclaims. And let's say that the jury's verdict form appears to award the plaintiff $20,000 in damages and the defendant $30,000 in damages. And let's say that after the verdict is entered, jurors come forward and claim that the $20,000 in damages listed for the plaintiff was the net amount that they intended to award it, with the $30,000 allegedly awarded to the defendant was intended to be the amount deducted from the $50,000 sought by the plaintiff to reach the total final billing of $20,000. Will the jurors' testimony be admissible? According to the recent opinion of the Court of Appeals of North Carolina in Carolina Homes by Design, Inc. v. Lyons, 2010 WL 2367110 (N.C. App. 2010), the answer is "no."

In Lyons,

In September 2004, plaintiff, a duly licensed general contractor operating in North Carolina, and defendant entered into a contract for the construction of a home on defendant's property. On 3 August 2006, plaintiff filed a complaint against defendant, alleging that although plaintiff had substantially completed construction in July 2005, defendant had failed to make the final payment of $35,021.00. In response, defendant filed an answer denying the allegations and asserting counterclaims for breach of contract, breach of express warranty, breach of implied warranty of constructability, breach of implied warranty of good faith and fair dealing, negligence, constructive fraud and breach of fiduciary duty, and negligent misrepresentation.

The verdict form required the jury to provide answers to, inter alia, these issues:

ISSUE TWO: What amount is the Plaintiff, Carolina Homes by Design, Inc. entitled to recover from the Defendant for breach of contract?

ANSWER: $15,000.

ISSUE FIVE: What amount is the defendant, Lee Lyons entitled to recover from the Plaintiff for breach of contract?

ANSWER: $8,750.

ISSUE SEVEN: What amount is the defendant entitled to recover for damages proximately caused by the negligence of the plaintiff?

ANSWER: $6,527.

ISSUE TEN: What amount of money damages is the defendant entitled to recover from the plaintiff for breach of warranty?

ANSWER: $4,744

The trial court thereafter entered judgment in accordance with the verdict form. The plaintiff thereafter filed a “Motion to Amend Verdict and Judgment or, in the Alternative to Set Aside Verdict and for New Trial” and "asked, in the alternative, that the trial court set aside the judgment and grant a new trial because, plaintiff argued, the judgment was 'clearly inconsistent with the intention of the jury as stated in its verdict and explained in the attached affidavits, contrary to the verdict of the jury, and, if allowed to stand, defective and excessive, not justified by the evidence presented.'"  

The attached jury affidavits indicated, inter alia, that

3. It was the intention of the jury that Plaintiff recover the amount of $15,000.00 from the Defendant. The amount written in answer to the question on" [sic] Issue Two" is intended to be the net amount payable by Defendant to Plaintiff.

4. The amounts written in response to "Issue Five", "Issue Seven" and "Issue Ten" were understood by the jury to be amounts deducted from the total final billing of $35,021.00 submitted by Plaintiff to Defendant, resulting in the net payment by Defendant to Plaintiff of $15,000.00 as reflected in the answer to "Issue Two".

The affidavits further stated that "[i]t was not the intention of the jury that the Defendant be paid any amount by the Plaintiff."

The plaintiff failed to comply with some procedural requirements in bringing its motions, but the Court of Appeals of North Carolina found that, in any event, the affidavits would have been inadmissible under North Carolina Rule of Evidence 606(b). One of the cases cited by the court was Karl v. Burlington Northern R.R., 880 F.2d 68, 74 (8th Cir. 1989), in which the Eighth Circuit found that a district court erred in receiving jury testimony based upon the following facts: "The jurors did not state that the figure written by the foreman was different from that which they agreed upon, but indicated that the figure the foreman wrote down was intended to be a net figure, not a gross figure." According to the Eighth Circuit, "[r]eceiving such statements violates Rule 606(b) because the testimony relates to how the jury interpreted the court's instructions, and concerns the jurors' 'mental processes,' which is forbidden by the rule.”).

Now, it is important to note that, unlike North Carolina Rule of Evidence 606(b), Federal Rule of Evidence 606(b) was amended in 2006 so that it now allows post-verdict juror testimony on the issue of "whether there was a mistake in entering the verdict onto the verdict form." So, would Lyons have been decided differently under federal law? The answer is "no."

The Advisory Committee's Note to the Amendment to Federal Rule of Evidence 606(b) indicates that

In adopting the exception for proof of mistakes in entering the verdict on the verdict form, the amendment specifically rejects the broader exception, adopted by some courts, permitting the use of juror testimony to prove that the jurors were operating under a misunderstanding about the consequences of the result that they agreed upon....The broader exception is rejected because an inquiry into whether the jury misunderstood or misapplied an instruction goes to the jurors' mental processes underlying the verdict, rather than the verdict's accuracy in capturing what the jurors had agreed upon. See, e.g., Karl v. Burlington Northern R.R., 880 F.2d 68, 74 (8th Cir. 1989)....

-CM

You're Not Authentic: Court Of Appeals Of Texas Finds Tape Recording Properly Excluded Based On Lack Of Authentication

Like its federal counterpart, Texas 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.

In other words, before an alleged confession note written by the defendant can be admitted, the proponent of the note must present some evidence establishing that the note was indeed written by the defendant. And if the defendant wants to introduce what he claims is a tape recording of the alleged victim's mother yelling at her, he must present some evidence establishing that it is indeed the mother's voice on the tape. In Sosa v. State, 2010 WL 2330304 (Tex.App.-Austin 2010), this was something that the defendant was unable to do.

In Sosa, Teodoro Sosa was convicted of indecency with a child by contact based upon an improper touching that he allegedly committed against his niece, K.F., who was staying with her family at Sosa's house.

At trial, defense counsel attempted to introduce an audio cassette tape that allegedly contained a recording of [K.F.'s mother] E.F. screaming at K.F. and calling her derogatory names. The defense's theory was that K.F. lied about the touching because she was angry with Sosa, and then remained committed to her original story because she was afraid to tell her mother that she had lied. After both K.F. and E.F. testified that K.F. had a good relationship with her mother and was not afraid of her, the defense sought to admit the tape recording as impeachment evidence. The tape was played outside the presence of the jury, and E.F. denied that it was her voice on the recording. The trial court excluded the tape on the grounds that it was not properly authenticated and that its probative value was outweighed by the risk of unfair prejudice.  

After Sosa was convicted, he appealed, claiming, inter alia, that the trial court erred by precluding him from admitting this cassette tape. The Court of Appeals of Texas, Austin disagreed, first finding that Sosa never properly authenticated the tape. Instead,

E.F. denied that the voice on the tape was hers, and Sosa presented no evidence to the contrary. Furthermore, Sosa produced no evidence as to how, when, or by whom the tape was made. As the trial court stated in excluding the evidence, "[T]here is no offering witness that...anybody has offered to testify as to any of the circumstances concerning the making of the tape, who made it, when it was made, under what circumstances it was made, whether it was accurately made, whether it was pieced together or whether it was just one conversation." Given the lack of evidence that the tape was in fact what Sosa claimed it to be, we hold that the trial court acted within its discretion in determining that the recording's authenticity had not been sufficiently established to allow its admission into evidence.

Moreover, the appellate court agreed with the trial court that even if the tape had been authenticated, it would have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice. Specifically, the court found that

Allowing the jury to hear a tape recording of someone, allegedly K.F., yelling at her young daughter and calling her derogatory names, including racial slurs, presented a significant risk of unfair prejudice and confusion of issues. The probative value of the recording was limited, as it was offered in support of Sosa's theory that K.F. was afraid to tell her mother that she had lied about the sexual abuse. The trial court had already permitted the defense to explore this issue in other testimony, as both Sosa and his wife were allowed to testify that E.F. frequently mistreated K.F. by yelling at her and calling her names.

-CM

A Foolish Consistency?: Court Of Appeals Of Ohio Deems Improper Admission Of Victim's Prior Consistent Statement Harmless Error

Like its federal counterpart, Ohio Rule of Evidence 801(D)(1)(b) provides that

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

Because such a prior consistent statement is not hearsay, it is admissible both to bolster the credibility of the declarant after her credibility has been attacked and as substantive evidence, i.e., to prove the truth of the matter asserted in the statement. Therefore, it is difficult for an appellate court to find plain error when the trial court erroneously finds that an alleged victim's statement qualified as a prior consistent statement. And yet, that is exactly what the Court of Appeals of Ohio, Eighth District, found in its recent opinion in State v. Rosa, 2010 WL 2007199 (Ohio App. 8 Dist. 2010).

In Rosa, Diana Rosa was convicted on five counts of unlawful sexual conduct with a minor based upon acts that her husband and she allegedly committed against 15 year-old family friend K.G. At Rosa's trial, K.G. testified about the sexual acts that the Rosas allegedly committed against her. Defense counsel then impeached her with a tape-recorded statement from September 20, 1991, which was inconsistent with her testimony at trial. (Unfortunately, the court's opinion doesn't give the details of the tape-recorded statement, so we don't know how inconsistent it was). Thereafter, with no objection by defense counsel, the prosecutor had a detective testify that he took a statement from K.G. the following November, which the detective claimed was consistent with K.G.'s testimony at trial, with no material inconsistencies between her statement and her testimony.

After she was convicted, Rosa appealed, claiming, inter alia, that she did not receive the effective assistance of counsel because K.G.'s statement to the detective was inadmissible hearsay and would be been excluded if her trial counsel objected to its admission. The Court of Appeals of Ohio, Eighth District, agreed with Rosa that the detective's testimony was objectionable because

The transcript reveals that the inconsistent tape-recorded statement by the minor child was given on September 20, 1991, whereas the interview with [the police officer] was conducted the following November. Thus, any consistent statements made to that witness occurred after, not before, the prior inconsistent statements used to impeach the child's testimony. The testimony of this witness could not be classified as ‘non-hearsay’ under Evid.R. 801(D)(1)(b) and should have been excluded * * *."

That said, the court found this error to be harmless because "the jurors heard the testimony of the witnesses and were able to judge credibility for themselves." Now, in fairness to the court, there was other evidence of Rosa's guilt, although none of them actually witnessed the alleged acts of sexual conduct. That said, if defense counsel had objected, they only would have heard that K.G. alleged sexual abuse by Rosa at trial and had previously made a statement inconsistent with her testimony at trial. Without defense counsel's objection, jurors got to hear that K.G. had also made a statement to a detective that was consistent with her testimony at trial. That seems like a pretty big deal to me. Without knowing exactly how consistent K.G.'s prior statement was, it is tough for me to say whether the court should have granted Rosa a new trial, but it seems to me to be a closer call than the court found.

-CM

Refreshment Refresher: Air Force Court Of Criminal Appeals Finds Proper Procedure Followed In Rule 612 Refreshment Of Recollection

Like its federal counterpart, Military Rule of Evidence 612 permits an attorney to refresh a witness' recollection with a "writing," with courts liberally construing the word "writing" to include basically anything (e.g., a photograph, food, or a piece of music). But what if opposing counsel's strategy is to attack a witness' ability to recall details? Can the attorney still refresh that witness' recollection? And what is the generally accepted manner by which counsel may refresh a witness' recollection? Those were the questions answered by the United States Air Force Court of Criminal Appeals in its recent opinion in United States v. Berry, 2010 WL 2265612 (A.F.Ct.Crim.App. 2010).

In Berry, Brandon Berry was found guilty of two specifications of indecent acts, which were allegedly committed against his daughter, HH. Before the court-martial, HH made a recorded statement regarding the acts allegedly committed by Berry. And at the court-martial, the following exchange took place between trial counsel and HH:

Q: And, at any time, did he get under the covers?

A: I don't remember.

Q: Is there anything that I could show you that would refresh your memory?

A: I don't know.

Q: If I showed you your statement, would that refresh your memory?

A: I don't know.

....

TC: I am handing the witness what was previously marked as Appellate Exhibit XXXIX. [HH], would you please read on page 5 of 8 starting about half way down?

At this point,

defense counsel objected to the manner in which the trial counsel was trying to refresh HH's recollection. Although the military judge overruled the objection, he instructed the trial counsel to retrieve the document from HH before she began testifying again. After retrieving the document, the trial counsel again asked the question that HH had been unable to answer. HH's response was the same as her prior testimony on cross-examination but different from the pretrial statement used to refresh her recollection [The opinion neither indicated how HH testified during cross-examination, nor what she said in her statement].

After the court-martial, Berry appealed, claiming, inter alia, that this exchange between the trial counsel and HH undermined the defense trial strategy of attacking HH's ability to recall details. The United States Air Force Court of Criminal Appeals, finding that all that was relevant was whether the proper procedure was followed in attempting to refresh the recollection of HH. According to the court, the proper procedure is that

(1) counsel must establish that the witness has difficulty in recalling the incident to which she is testifying; (2) counsel should ask whether there is anything that would assist her in testifying; (3) counsel should mark the document as an exhibit and provide it to the witness for review; and (4) counsel should retrieve the document and allow the witness to continue her testimony without direct reference to the reviewed material.

And according to the court, this proper procedure was for the most part followed:

In this case, the trial counsel attempted to refresh HH's memory of the incident that occurred in December 2006. The trial counsel clearly established that HH could not recall whether the appellant went under the covers, she asked HH whether her pretrial statement would help her remember that detail, the trial counsel then marked the statement and gave it to HH, and she retrieved the document from HH before again asking the question. Although HH responded that she was not sure whether the statement would refresh her memory, HH did not say it would not help her as she testified and the trial counsel had a good faith basis for believing that the pretrial statement would help.

Accordingly, the court affirmed.

-CM

Disinterested?: Court Of Appeals Of Texas Finds Statement Regarding "Burned Or Dirty" Gun Inadmissible As Statement Against Interest

Texas Rule of Evidence 803(24) provides an exception to the rule against hearsay for

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

A defendant is charged with capital murder based upon the victim being shot to death. Part of his defense is that an alternate suspect committed the crime. To prove that the alternate suspect committed the crime, the defendant seeks to introduce testimony that, two weeks after the victim's death, the alternate suspect sought to sell a gun to another individual. When the other individual asked whether the gun was "burned or dirty," the alternate suspect responded, "Yeah, I just did something good." Should this statement qualify as a statement against interest? According to the recent opinion of the Court of Appeals of Texas, Houston, in its recent opinion in Ramirez v. State, 2010 WL 2306112 (Tex.App.-Hous. [1 Dist. 2010]), the answer is "no." I disagree.

In Ramirez, the facts were as listed above, with Jorge Alberto Ramirez being the defendant and Noel Alvarez being the alternate suspect. Specifically, Ramirez

sought to establish that Alvarez, two weeks after the murder of the complainant, while offering to sell to [Gabriel] Guzman a .380 handgun, laughingly told Guzman, "Yeah, I just did something good" in response to Guzman's inquiry as to whether the handgun was "burned or dirty." After the State objected to the evidence, the trial court ruled that "everything comes in except, 'I just did something good.'" It explained "[t]hat's so vague, it's not even-that's not an admission." 

After he was convicted, Ramirez appealed, claiming that Alvarez's statement should have been admissible under Texas Rule of Evidence 803(24) because "this statement indicated that Alvarez had 'used [the handgun] in a crime' and made it 'more likely' that Alvarez was involved in the murder of the complainant or 'another crime' or 'anything.'" The Court of Appeals disagreed, finding that "Alvarez's statement to Guzman that 'I just did something good' is vague in that it could not expose Alvarez to criminal liability for the complainant's death or any specific criminal act."

Really? So, the court is saying that if Alvarez were charged with murder, his statement "Yeah, I just did something good" in response to a question about whether the gun was "burned or dirty" would not have been used by the prosecution/jury to help establish Alvarez's guilt? I admit that the statement was somewhat vague in that it did not indicate that Alvarez used the gun to shoot the victim, but it seems pretty clear based upon the Q & A that Alvarez did something bad with the gun. And that's all that is required for a statement to qualify as a statement against interest. Such a statement does not have to conclusively establish the declarant's guilt. It merely has to be a statement that could be used with other evidence to establish his guilt. It thus seems to me that the Court of Appeals committed serious error.

-CM

You're Giving Me A Headache: Court Of Appeals Of Texas Deems Child's Statements To Therapist About Parents' Drug Use Admissible Under Rule 803(4)

Like its federal counterpart, Texas 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.

So, does a four-and-a-half year-old's statement to her therapist that her parents used drugs and that she saw white powder around her house qualify for admission as a statement for purposes of medical treatment or diagnosis under Texas Rule of Evidence 803(4)? According to the Court of Appeals of Texas, Austin, in its recent opinion in Jesse Calderon and Marixza Melendez v. Texas Department of Family and Protective Services, 2010 WL 2330372 (Tex.App.-Austin 2010), the answer is "yes."

In Calderon, a jury returned a verdict finding that the parental rights of Marixza Melendez and Jesse Calderon to their daughters J.C.C. and J.B.C. should be terminated, and the trial court signed a final decree terminating their parental rights in accordance with the jury's verdict. Calderon thereafter appealed, claiming, inter alia, that the trial court improperly allowed for the admission of statements that his six year-old daughter J.C.C. made to her therapist. Specifically,

J.C.C.'s therapist testified that during play therapy, J.C.C., who was about four and one-half years old, pretended that "she was being arrested for drugs that she did, that she did use drugs and she had found them on the-on the sidewalk. They made her feel weird and that-then a baby had used the drugs and it killed the baby." The therapist later returned to the subject, telling J.C.C., "we are being serious now. I have to know, did you ever use drugs?" J.C.C. said she had not but that "her parents did use drugs and she recalled seeing some white powder," indicating that she had seen the powder on a table. When the therapist asked how J.C.C.'s parents acted when they used drugs, J.C.C. said they "would act weird" and that it caused J.C.C. to "always get a headache, so she would go into her room."  

The Court of Appeals of Texas, Austin, disagreed, finding the therapist's testimony to be admissible under Texas Rule of Evidence 803(4). According to the court,

We agree with the trial court that the therapist's testimony about J.C.C.'s statement about white powder was admissible. The therapist testified that she stressed the importance of J.C.C. telling whether she had used or seen her parents use drugs and that she believed J.C.C. was truthful in her responses, and there is no indication in the record of evidence to negate the child's awareness that her therapist needed accurate information and that being truthful was in her best interest....Finally, the statement was made in the context of therapy....Thus, the trial court would not have abused its discretion in admitting the statement under rule 803(4) of the rules of evidence.

So, according to the court, a child's statement to a therapist regarding her parents' drug use and her resultant headaches (a) is a statement "made for purposes of medical diagnosis or treatment," and (b) describes "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."

I'm not sure that I am willing to buy that, but in the end, it doesn't matter because the court also found J.C.C.'s statements admissible under Tex. Fam.Code Ann. § 261.001(1)(I) as "a hearsay statement about abuse, which is defined to include a parent's drug use that causes physical, emotional, or mental harm to a child...if the trial court decides that the child's best interest would be best protected by allowing the statement into evidence."

-CM