EvidenceProf Blog

Going Into Withdrawl: Eleventh Circuit Finds Rule 410(1) Inapplicable In Immigration Appeal

Federal Rule of Evidence 410(1) 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:

(1) a plea of guilty which was later withdrawn

As the recent opinion of the Eleventh Circuit in Garces v. U.S. Attorney General, 2010 WL 2899024 (11th Cir. 2010), makes clear, however, this Rule only holds that a withdrawn guilty plea is inadmissible in a later criminal trial for the same offense, and the Rule, like all Federal Rules of Evidence, does not apply to administrative proceedings.

In Garces, Roberto Garces petitioned the Tenth Circuit for review of a Board of Immigration Appeals' order dismissing his appeal from an immigration judge's order finding him removable under section 212(a)(2)(C) of the Immigration and Nationality Act as an alien whom the Attorney General "knows or has reason to believe is or has been an illicit trafficker in any controlled substance."  In 1984, Garces pleaded guilty to cocaine trafficking and aggravated assault charges based on the advice of his attorney, who informed him that a guilty plea would not affect his immigration status. Garces, however,

eventually found out that, as far as federal immigration law is concerned, a felony drug conviction is very far from "nothing."...He learned that lesson when he first applied for permanent resident status and saw his application denied. That prompted Garces to return in August of 2000 to the same state court that had convicted him sixteen years earlier and file a motion...to vacate and set aside his guilty plea. His motion asserted that the plea was involuntary because the court had failed to advise him of potential immigration consequences as required by the Florida Rules of Criminal Procedure....The Florida court apparently agreed, because on August 11, 2000, it vacated Garces' guilty plea and resulting convictions. The same court order also noted that the state had decided to nol pros the original charges, not a surprising decision in light of the length of time that had elapsed.

In Garces' case, the BIA determined 

"[t]he record evidence, including the police report and the ‘Motion to Vacate and Set Aside Guilty Plea’ in which the respondent confirms that he pled guilty to possession with intent to sell cocaine," constituted reasonable, substantial, and probative evidence supporting the IJ's finding that Garces was inadmissible because there was reason to believe he had engaged in drug trafficking.

In his petition to the Eleventh Circuit, Garces claimed that the BIA erred in considering the evidence related to his motion to vacate and set aside his guilty plea because it was inadmissible under Federal Rule of Evidence 410(1). The Eleventh Circuit disagreed, finding that

Rule 410 codifies and expands the Supreme Court's holding in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582 (1927), that a withdrawn guilty plea is not admissible in a later criminal trial for the same offense....Though its language is sweeping, Kercheval 's actual holding is limited to the context of a later criminal trial on the same offense.

Moreover, the court correctly noted that "it is a 'well-settled principle[ ]' that the Federal Rules of Evidence do not apply in administrative proceedings." (The court did, however, reverse and remand on other grounds).

-CM

Complete Reversal: Military Court Sets Aside Sexual Assault Conviction Based On Confessions Rule Of Completeness

Like its federal counterpart, Military Rule of Evidence 106 provides that

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

Unlike the Federal Rules of Evidence, however, the Military Rules of Evidence also have a "rule of completeness," Military Rule of Evidence 304(h)(2), dealing specifically with confessions, which provides that

If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.

The recent opinion of the U.S. Navy-Marine Corps Court of Criminal Appeals in United States v. Foisy, 2010 WL 2824964 (N.M.Ct.Crim.App. 2010), does a good job of laying out how military courts apply this latter Rule.

In Foisy, a panel of members with enlisted representation sitting as a general court-martial convicted Robert Foisy, contrary to his pleas, of violating a lawful general order and aggravated sexual assault based upon acts that he allegedly committed against LCpl S.  Foisy gave an initial statement regarding the alleged crime on November 30, 2008, in which he

provided a detailed explanation of the evening in question, as well as events of the previous few days that bore on the matter in controversy....[T]he appellant noted that LCpl S had been "giving me strong sexual signs like saying I can't wait to have sex again because her boyfriend is gone right now [, and] she would touch my stomach and when she hugged me she would grind her self into me...." He also stated that when he left the room, LCpl S was wearing sweat pants and a hooded sweatshirt, but when he reentered the room, she climbed into bed with LCpl Rumsey wearing only a tee shirt and underwear, getting into the rack with LCpl Rumsey. Shortly thereafter, the appellant awoke with LCpl S at the sink washing her mouth out with water and making statements about being hot. He further said that LCpl S began to take her underwear off, but that he told her not to. According to the appellant's statement, a short time later LCpl S again got out of the rack and went to the sink, made additional statements about being hot and then took off her underwear. According to the appellant, LCpl S then stepped over him, got back into the rack, naked from the waist down, with her buttocks hanging over the bed, "kind of stuck up in the air like she was waiting for some one [sic] to do something...." The appellant stated that he covered LCpl S, but that she uncovered herself again. It was at that point that the appellant sa[id] he made physical contact with LCpl S.

On January 26, 2009, Foisy gave a second statement which began

when the appellant was nude, looking at and touching a naked LCpl S. [The second statement] omit[ted] all of the details which put the touching in context....

The agent typing up Foisy's second statement noted that it was a "supplementary statement." At the court-martial, the Government introduced Foisy's second statement, and, when Foisy sought to introduce his initial statement, the Government objected, citing hearsay, lack of foundation, and the  rape shield rule. The military judge agreed and rejected Foisy's argument that the initial statement was admissible under the rule of completeness.

In addressing Foisy's ensuing appeal, the U.S. Navy-Marine Corps Court of Criminal Appeals noted that both Military Rule of Evidence 106 and Military Rule of Evidence 304(h)(2) applied and that the opinion of the United States Court of Appeals for the Armed Forces in United States v. Rodriguez, 56 M.J. 336 (U.S. Armed Forces 2002), set forth a non-exhaustive list of factors to consider in cases governed by these Rules:

(1) Has the prosecution attempted to "pick out the incriminating words in the statement or discussion and put them in evidence while at the same time excluding the remainder of the statement or conversation, in which the appellant sought to explain the incriminating passages"? (2) Is the appellant's subsequent statement separate and unrelated from the subject matter of the original confession, or is it part of or the product of the same transaction or course of action? (3) What is the elapsed time between the two statements, and were they made at different places and to a different set of persons? (4) Was the second statement made at the specific request of the appellant or the Government? (5) Was the defense invoking the rule of completeness as a matter of fairness, or merely attempting to present evidence of a defense without subjecting the appellant to cross-examination? (6) Did the appellant engage in a "pattern of deception with a variety of persons, and then argue that belated candor in a different setting justifies the introduction of otherwise inadmissible hearsay"?

According to the court,

The only factors clearly weighing in favor of exclusion of the initial statement are that the statements were taken about two months apart, and that the statements were taken by different agents. A closer balance exists with regard to the fifth factor. Undeniably, the appellant would have been able to present evidence of his defense without subjecting himself to cross-examination, and the complete statement would have provided a far more exhaustive explanation of events than contemplated by the Government when the partial statement was offered and admitted. However, on balance, this factor weighs in favor of admission of the statement as well, for the Government made the election to offer part of the statement in the first instance, prompting the defense to seek fairness through completion. The rules of completeness exist to address precisely what unfolded at trial in this case.

Although the court did not detail exactly how Foisy fared under each of the other factors, it found that

The appellant made two statements, in the same place, to agents of the same criminal investigative agency, explaining the same events, to defend against the same accusation....The two statements are manifestly related. In fact, inclusion of the qualifying language, "[t]his is a supplementary statement to add to the previous statement I gave to NCIS investigators," reflects the dependent nature of the admitted statement to the excluded statement. Standing alone, [the second statement] contains a statement, incriminating when taken out-of-context, which was "picked out" and presented to the members, while every effort was made to prevent the members from seeing the rest of the statement explaining that out-of-context statement. We reject any argument that the appellant himself was the architect of the second, admitted statement, and thus, should bear the impact of his own admissions as they stand, precisely because the agent's interrogation methodology blunted any need to again provide the details of the first statement: the appellant did not include the background details because the agent's own drop-in line explicitly incorporated the first statement into the "supplementary" statement. It is "manifestly unfair" to require the appellant to face his inculpatory admissions while simultaneously barring him from introducing the very statement his inculpatory remarks specifically supplemented by reference, especially when, as in this case, the appellant's story did not change.

The court thus found that the military judge erred in excluding Foisy's first statement, and because it found that Foist was materially prejudiced, it set aside Foisy's conviction.

-CM

A History Of Violence: Court Of Appeals Of Tennessee Makes Odd Comment About Violent Felonies In Rule 609 Ruling

Like its federal counterpart, Tennessee Rule of Evidence 609 permits a prosecutor to impeach a defendant through evidence of the defendant's prior conviction if the prosecutor can prove that the probative value of the conviction outweighs its prejudicial effect. What the Court of Criminal Appeals of Tennessee seems to have missed in its recent opinion in State v. Parham, 2010 WL 2898785 (Tenn.Crim.App. 2010), is the relevant question is how probative the prior conviction is on the issue of the defendant's credibility as a witness.

In Parham, Tarrence Parham, was convicted of attempted second degree murder and reckless aggravated assault. After he was convicted, Parham appealed, claiming, inter alia, that the trial court erred by allowing the prosecution to admit his prior reckless homicide conviction for impeachment purposes and that the error was prejudicial.

After finding that the issue was governed by Tennessee Rule of Evidence 609, the court held that,

In this case, the defendant's credibility was at issue because he testified in his own defense; therefore, any evidence regarding his credibility was probative. However, the defendant's credibility was not crucial to the state's case because of the nature of the evidence against him. The state argues that reckless homicide is a crime of violence and, as a violent felony, was probative of the defendant's credibility. We decline, however, to characterize reckless homicide as a crime of violence because it requires reckless conduct rather than intentional or knowing conduct....Because the defendant's reckless homicide conviction was not a violent felony, we decline to weigh it more heavily against his credibility than other non-violent felonies.

Huh? Why would a violent felony weigh more heavily against a defendant's credibility than a non-violent felony? The fact that a defendant committed a crime of violence says little about whether he is likely to lie on the witness stand. Conversely, if a defendant committed a non-violent felony like grand larceny, it would say a good deal more about his credibility. I'm not sure what the prosecution or the court was getting at in the above block quote, but the court found that the defendant's prior crime was not a crime of violence, so this ended up not being an issue.

The court then concluded that,

In this matter, the charged offenses of criminal attempt to commit first degree murder and aggravated assault were similar to the defendant's prior conviction. Reckless homicide is the "reckless killing of another" while first degree murder is the "premeditated and intentional killing of another."...Criminal attempt requires the defendant to act with the same culpability as the specific offense....The impeaching conviction and the charged offense of attempted first degree murder are similar in that they are both offenses against the person involving the "killing of another."...Aggravated assault is the intentional, knowing, or reckless commission of an assault that causes serious bodily injury or is accomplished through the use or display of a deadly weapon....Assault, as relative to this case, is intentionally, knowingly, or recklessly causing bodily injury to another....Aggravated assault and reckless homicide are similar because they may involve the same mental state and are offenses against the person. Because of the similarity between the charged offenses and the defendant's prior conviction, we conclude that “there [was] a danger that jurors [would] erroneously utilize the impeaching conviction as propensity evidence of guilt and conclude that since the defendant committed a similar offense, he...is probably guilty of the offense charged."...Therefore, the trial court committed error by admitting the prior conviction for impeachment purposes.

Nonetheless, the court found that this was harmless error based upon the overwhelming evidence of Parham's guilt and because "the trial court admonished the jury that the defendant's prior convictions were not evidence that he committed the charged offenses, and 'the trial court's limiting instruction ‘provided an adequate safeguard against any potential prejudice possibly engendered by the admission of the prior conviction.''" If the court really found that the evidence of Parham's guilt was overwhelming, I have no problem with the court's ruling. But if the appellate court based its conclusion on the belief that the instruction to jurors really removed the prejudice resulting from jurors hearing about the defendant's prior reckless homicide conviction, I think that its holding was issued on pretty shaky grounds.

-CM  

Make Me Whole, Take 5: Court Of Appeals Of Minnesota Issues Another Ridiculous Opinion Under "Whole Person" Impeachment Theory

I have done a couple of previous posts (here, here, here, and here) about Minnesota's wrongheaded "whole person" approach to felony conviction impeachment, and I am going to continue posting about it until Minnesota courts abandon this horribly misguided approach. The latest example of Minnesota's miscarriage of justice is the opinion of the Court of Appeals of Minnesota in State v. James, 2010 WL 2899115 (Minn.App. 2010).

In James, Gary James was convicted of second-degree criminal sexual conduct. Before trial, the district court had granted the state's request to impeach James with evidence of a November 28, 2000 conviction of felon in possession of a firearm if he chose to testify at trial. After he was convicted, James appealed, claiming, inter alia, that this ruling constituted prejudicial error.

The Court of Appeals of Minnesota found that, pursuant to the opinion of the Supreme Court of Minnesota in State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978), the district court had to determine the admissibility of the conviction under Minnesota Rule of Evidence 609 with reference to five factors:

(1) the impeachment value of the prior crime; (2) the date of the conviction and the defendant's subsequent history; (3) the similarity of the past crime with the charged crime; (4) the importance of defendant's testimony; and (5) the centrality of the credibility issue.

In analyzing the first factor, basically every court analyzes how much bearing the prior crime has on witness (dis)honesty. In these courts, the first factor would militate against admission of a conviction for being a prior felon in possession of a firearm because it has little to no bearing on witness (dis)honesty.

Minnesota courts, however, do not follow this approach. Instead, in State v. Brouillette, 286 N.W. 2d 702, 707 (Minn. 1979), the Supreme Court of Minnesota found that "[j]ust because a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value." The court then explained "that impeachment by prior crime aids the jury by allowing it 'to see 'the whole person' and thus to judge better the truth of his testimony.'" In other words, according to Minnesota courts, any felony conviction, regardless of whether it has any relation to truth or falsity, has impeachment value, making the first factor (almost) always favor admission.

This is ridiculous, and James argued as much, claiming that "Minnesota courts have come to accept that conviction of any crime bears on credibility under the 'whole person' concept, yielding the result that the first factor 'always weighs in the state's favor." The Court of Appeals of Minnesota didn't even bother addressing the merits of this argument, instead glibly concluding 

that under caselaw firmly establishing the "whole person" concept and its relationship to credibility, the first factor does not weigh against admissibility. While appellant's prior conviction does not appear to provide much illumination regarding the truth of what he might have testified to, a crime need not involve truth or falsity to have impeachment value under the "whole person" rationale. 

Under the second factor, the court found that James' prior conviction was almost eight years before the charged offense, which militated against admissibility. Conversely, the court found that the conviction for being a felon in possession of a firearm was not at all similar to the charge of criminal sexual conduct, making the third factor cut in favor of admissibility (because there was little danger that the jury would misuse the conviction as propensity character evidence).

This left the court with the fourth and fifth factors and another ridiculous aspect of Minnesota precedent.  According to the court, 

The fourth and fifth Jones factors may be analyzed together....

It is undisputed that credibility was a central issue in this case....The supreme court has held that where credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admitting a prior conviction....Therefore, the fourth and fifth Jones factors weigh in favor of admissibility.

Again, this is not the way that most courts analyze these factors. Instead, most courts find that these factors counterbalance in most cases. If the defendant's testimony is very important, which it usually is, the fourth factor cuts against admissibility of the defendant's prior conviction because the defendant might choose not to testify in the event that the prosecution could impeach him. Conversely, if the defendant's testimony is very important, his credibility is also a central issue in the case, meaning that the fifth factor favors admissibility because the conviction as increased probative value for impeachment purposes. On the other hand, if a defendant is charged with grand theft auto and the only question at trial is the value of the car that the defendant stole, his testimony would not be very important but his credibility also wouldn't be a central issue, meaning that factors four and five would still cancel each other out.

But except in rare cases such as this latter example, factors four and five will always favor admission in Minnesota. And, as noted, factor one will always favor admission in Minnesota under the "whole person" approach. Thus, three out of the five factors will always favor admission in Minnesota. The appellate court in James found that the district court did not commit error "[b]ecause the majority of the Jones factors weigh in favor of admissibility." Under Minnesota law, though, that will almost always be the case.

-CM

Judge, Jury, And Witness: Court Of Appeals Of Texas Notes That Rule 605 Covers The Functional Equivalent Of Witness Testimony

Like its federal counterpart, Texas 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.

And, as the recent opinion of the Court of Appeals of Texas, Waco, in Marriott v. State, 2010 WL 2869781 (Tex.App.-Waco 2010), makes clear, Rule 605 precludes not only judicial testimony but also judicial statements of fact that are the "functional equivalent of witness testimony."

In Marriott, Kandance Yancy Marriott was convicted by a jury for the offense of engaging in organized criminal activity. The evidence presented at trial established that

Marriott and her husband, Lynn, were engaged in the business of selling manufactured homes and land in a business called One-Way Home and Land. Lynn and David Martin became partners, with Martin providing financial backing on several projects, including One-Way. Their oral agreement was that Martin would provide the money and Lynn would provide the labor for whatever was needed for each project. At each sale, Martin would first recover his investment and then any profits were to be split equally between Martin and Lynn.

Martin and Lynn purchased a vacant former Burger King restaurant building to refurbish and convert to a Dickey's Barbecue restaurant in Navarro County. Martin provided the capital for the purchase and other amounts when and as requested by Lynn prior to August of 2004. They also were working to open a Huddle House restaurant together under the same terms. Martin and Lynn also entered into several other real estate purchases.

Martin discovered in August of 2004 that he had not been paid on some closings through One-Way. He was given spreadsheets from One-Way's bookkeeper and seized many of their records. The spreadsheet given to him in early August was different from the spreadsheet he received later in August. Martin ultimately discovered eighteen checks issued by title companies in his name that he did not receive. These checks formed the basis of the underlying offense alleged in the indictment, misapplication of fiduciary property.....

The checks contained forged endorsements and were deposited into various accounts, including One-Way, the Dickey's restaurant account, and the Huddle House account. Martin was an authorized signer on the Huddle House account but had no access to it, and was not an authorized signer on any of the other accounts into which the checks were deposited. Martin denied giving anyone authority to sign his name or to deposit those funds into those accounts. The checks were dated and deposited from October of 2003 through August of 2004. Martin testified that when he confronted Marriott and Lynn, Marriott stated that Martin had told them that they could take the money and deposit it elsewhere.

Marriott testified that Lynn would give her the checks and that she would deposit them wherever he told her to. She denied ever forging Martin's name on the checks, but did admit to writing “For deposit only” and the account number below the signature on the back of the check, which was already on there when Lynn gave her each check. She also admitted to filling out some of the deposit slips to the various accounts. She denied being in charge of the businesses and portrayed herself as an unknowing victim who only did what her husband told her to. She also minimized her involvement in Dickey's and the Huddle House. She was not an authorized signer on either the Dickey's or the Huddle House bank accounts.

During the operation of One-Way, Marriott and her employees would take whatever steps were necessary to ensure that potential buyers could qualify for loans. This included creating or altering official documents, forging signatures, falsifying social security income letters, falsely verifying employment and rental qualifications, paying off creditors for buyers, creating bank accounts with the buyer's name prior to closing, and forging the buyers' signatures on documents, all allegedly taught, required, and sometimes personally accomplished by Marriott. These activities resulted in many buyers who would not have otherwise qualified for loans being approved. Linda Howard, a former employee of One-Way, testified that every employee of One-Way, including herself, participated in these activities with Marriott. Lynn's involvement in the mortgage fraud was less clear, although Marriott testified that her husband was the one directing where those checks went.

After she was convicted, Marriott appealed, claiming, inter alia, "that the trial court erred by admitting a copy of a temporary injunction signed by the trial court in a civil proceeding between the parties relating to Martin's allegations of theft and fraud because it constituted an impermissible comment on the weight of the evidence by the trial court" in violation of Texas Rule of Evidence 605. The Court of Appeals of Texas, Waco, agreed, first finding that Rule 605 precludes not only judicial testimony but also judicial statements of fact that are the "functional equivalent of witness testimony."  

The court then found that

The Honorable Robert G. Dohoney was assigned to hear both the civil case between Marriott, Lynn, and Martin and the criminal cases of Marriott and Lynn. An order was signed by Judge Dohoney during the civil case that granted a temporary injunction against Marriott and Lynn in favor of Martin, and contained specific findings regarding fraud perpetrated against Martin by Marriott. These specific allegations related to evidence introduced during the trial regarding these fraudulent acts. It is true that Judge Dohoney did not "step down from the bench" and become a witness in the very same proceeding over which he was currently presiding....

However, the findings contained in the temporary injunction in the civil case made by the same judge presiding over the criminal trial were intertwined with the jury's ultimate decision as to the existence of the combination, whether it was carrying on criminal activities, and whether or not Martin had been stolen from by Marriott. The temporary injunction, as admitted, contained findings of fact that certainly could convey to the jury his opinion of the case. We find that the trial court abused its discretion in the admission of the temporary injunction.

But while the court found error, it deemed this error to be harmless because

The overwhelming evidence was that Marriott was the individual in charge of the businesses and that everything went through her from the checks to instructions on how funds at closing were to be disbursed to the multitude of fraudulent acts perpetrated by the employees of One-Way and her husband. After examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect.  

-CM

Bad Reputation: Alaska Case Reveals Differences Between Federal And Alaska Rules Of Evidence On Character/Reputation Evidence

Federal Rule of Evidence 404(a)(2) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:....

In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

Meanwhile, Alaska Rule of Evidence 404(a)(2) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

Evidence of a relevant trait of character of a victim of crime offered by an accused, or by the prosecution to rebut the same, or evidence of a relevant character trait of an accused or of a character trait for peacefulness of the victim offered by the prosecution in a case to rebut evidence that the victim was the first aggressor....

The recent opinion of the Court of Appeals of Alaska in Proctor v. State, 2010 WL 2870106 (Alaska App. 2010), reveals the important difference between these rules and a possible difference between Federal Rule of Evidence 405(a) and Alaska Rule of Evidence 405(a) regarding the admissibility of reputation evidence.

In Proctor, Bradley Proctor was convicted of two counts of assault after a jury trial in which he claimed self-defense. Proctor did not present any evidence concerning the character of the alleged victim.

Midway through the presentation of the State's case, Proctor's attorney advised the court that the State intended to call correctional officers to testify about Proctor's propensity for violence. Defense counsel objected to this proposed testimony, which would be based on four or five incidents in which Proctor had been punished for assault or fighting during his incarceration prior to trial....

Proctor objected again before the officers were called to the stand on the basis that the officers did not have a proper knowledge of Proctor's reputation when he was out of custody. He argued that prison is a unique atmosphere and that the officers' knowledge of Proctor's conduct in custody would not be an accurate foundation for testimony about his reputation.

The judge stated that he understood Proctor to be arguing that opinion testimony by a prison official is never admissible because people behave differently in prison. The judge overruled this objection, explaining that Proctor could explore the witnesses' limited knowledge on cross-examination. 

After Proctor was convicted, he appealed, claiming, inter alia, that the trial court erred by allowing the correctional officers to render this testimony. The Court of Appeals of Alaska disagreed, first finding that character evidence was admissible under Alaska Rule of Evidence 404(a)(2) because Proctor claimed self-defense. Undoubtedly, the court was correct, but it is equally correct that character evidence would have been inadmissible against Proctor if Federal Rule of Evidence 404(a)(2) applied.

Under the federal rule, a defendant's claim of self-defense does not open the door for the admission of character evidence, except in a homicide case. Conversely, under the Alaska rule, a defendant's claim of self-defense opens the door for the admission of character evidence in any case. I prefer the federal rule (minus the homicide exception. It is well established that character evidence is a Pandora's box that defendants can keep closed or open by deciding to inject the issue of character into their trials. But how does a defendant open the box merely by claiming self-defense? A defendant can claim that the alleged victim attacked him, but he is not necessarily claiming that the victim is a generally violent person.

Second, the Court of Appeals of Alaska noted that courts have split on the issue of whether evidence of a defendant's reputation in prison is admissible. The court, though, found that it did not have to resolve this issue because the scope of Alaska Rule of Evidence 405(a) is broader than the scope of Federal Rule of Evidence 405(a) and most state counterparts.

Federal Rule of Evidence 405(a) provides that

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

Meanwhile, Alaska Rule of Evidence 405(a) provides that

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation in any community or group in which the individual habitually associated or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

And, as the Court of Appeals of Alaska noted, the Commentary to Alaska Rule of Evidence 405(a) notes that

The Federal Rule, on which this Rule is modeled, does not indicate the scope of reputation evidence. This rule fills a gap left in the Federal Rule by clearly stating that reputation evidence is not confined to the community in which the defendant lives; reputation where the defendant works, goes to school or in a group with whom the defendant habitually associates will suffice.

I agree with the court that the Alaska rule fills in a gap left by the federal rule, but I also note that federal courts generally have had no problem finding that reputation evidence is not confined to the community in which the defendant lives. See, e.g., Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 101 (3rd Cir. 1999) (finding that a workplace may constitute a "community" for reputation evidence purposes). Thus, I'm not sure that Alaska Rule of Evidence 405(a) really is broader than Federal Rule of Evidence 405(a) and most state counterparts.

But that's not really the point. The courts excluding evidence of defendants' reputations in prison did not exclude such evidence because it failed to qualify as reputation evidence. They excluded it for the reason argued by Proctor: People act differently in prison than they act in the "real" world. In other words, Proctor's argument really was an argument under Rule 403 that the probative value of this reputation evidence was substantially outweighed by the danger of unfair prejudice. And, I would have liked to have seen the court engage with this argument a bit more.

-CM 

Plain Justice: Court Of Appeals Of Minnesota Finds No Plain Error In Trial Court's Failure To Admit Statement Under Residual Exception

Like its federal counterpart, Minnesota Rule of Evidence 807 provides an exception to the rule against hearsay for

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

And it is well established under Federal Rule of Evidence 103(d) and Minnesota Rule of Evidence 103(d) that if a party does not raise an issue at trial but does raise it on appeal, the appellate court can reverse if the trial court committed plain error affecting substantial rights. In its recent opinion in State v. Martin, 2010 WL 2813485 (Minn.App. 2010), the Court of Appeals of Minnesota found that the trial court did not commit plain error in failing to admit a statement that the defendant claimed was admissible under Minnesota Rule of Evidence 807 for the first time on appeal. My question is whether a court could ever find plain error under such circumstances.

In Martin, De‘Arlo De'Laen Martin was convicted of first- and second-degree assault. At trial, Martin tried to introduce into evidence an exculpatory statement. Unfortunately, the opinion of the Court of Appeals of Minnesota did not provide any details regarding the statement, but it did indicate that Martin

urged admission of the exculpatory statement under Minn. R. Evid. 804(a)(5), which permits admission of a hearsay statement when the declarant is unavailable and "the proponent of the statement has been unable to procure the declarant's attendance...by process or other reasonable means." The district court refused to accept the statement because appellant had not personally served the declarant with a subpoena and therefore the declarant was not unavailable under the rule....This ruling was not an abuse of discretion. 

(Although the court did not elaborate on this point, it is important to note that this statement of Rule 804(a)(5) is incorrect. If Martin were "unable to procure the declarant's attendance...by process or other reasonable means," that would merely render the declarant "unavailable," and Martin would still have to establish that the exculpatory statement qualified for admission under one of the hearsay exceptions contained in Minnesota Rule of Evidence 804(b).)

The court then noted that Martin claimed on appeal that the trial court should have admitted the exculpatory statement under Minnesota Rule of Evidence 807. The court disagreed, finding that 

Generally, an issue cannot be raised for the first time on appeal....We nevertheless can review an issue not raised to the district court if it “implicates a plain error affecting substantial rights."...An error is plain if it is clear and obvious....If we determine that there was plain error that affected a party's substantial rights, we must evaluate whether the error should be addressed in order to ensure fairness and the integrity of the judicial process....

Because [Martin] did not offer the exculpatory statement under the residual exception, he did not provide a showing of "equivalent circumstantial guarantees of trustworthiness."...The district court did not have the benefit of the arguments that [Martin] makes here on appeal. Further, the declarant was not available for cross-examination, and his statement had not been subject to examination in any tribunal, something which can supply circumstantial guarantees of trustworthiness....

Finally, because a police witness testified as to the content of the exculpatory statement, [Martin]'s substantial rights were not affected. The district court did not commit plain error by refusing to admit the exculpatory statement .

I agree with the court's conclusion and wonder how an appellate court could ever find that a trial court committed plain error by failing to admit a statement under the residual exception. As noted, for a statement to be admissible under the residual exception, the proponent must provide pre-trial notice of its intention to admit the statement, which otherwise would not qualify for admission, under the exception. If an appellate court is reviewing for plain error, presumably the party did not provide this pre-trial notice, and the court would have no reason to believe that the statement would be admissible. How, then, could a court ever find plain error under these circumstances?

-CM

Conspiracy Theory: First Circuit Finds Co-Conspirator Admissions Present No Problems Under Crawford & Bruton

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. And, in Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. As the recent opinion of the First Circuit in United States v. De La Paz-Rentas, 2010 WL 2813810 (1st Cir. 2010), makes clear, however, if a statement qualifies as a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E), it does not present any problems under either Crawford or Bruton.

In De La Paz-Rentas, the First Circuit was

presented with appeals by four defendants who were found guilty on firearms charges and, in one case, a drug charge, all of which stemmed from an undercover investigation into a weapons ring in Puerto Rico. The four defendants [we]re Pedro Molina-Bonilla..., Natanael De La Paz-Rentas..., Victor Sanjurjo-Nuñez..., and Waldemar Torres-González.

One piece of evidence linking Torres-González to the weapons and drug charges was the testimony of undercover officer Julio Ginés, who indicated that Nelson Font-González, another alleged co-conspirator, made statements implicating Torres-González in the crimes. Font-González did not testify at trial.  

After he was convicted, Torres-González appealed, claiming, inter alia, that the admission of Font-González's statements violated his rights under the Confrontation Clause. The First Circuit disagreed, first finding that Font-González's statements qualified as co-conspirator admissions under Federal Rule of Evidence 801(d)(2)(E) because they were made "by a coconspirator of a party during the course and in furtherance of the conspiracy."

The court then found no problem with the statements under Crawford because "Crawford does not apply to statements deemed non-testimonial, and statements made in furtherance of a conspiracy 'by their nature [are] not testimonial.'" The court similarly found no problem under Bruton because Bruton "is concerned with the indirect impact on a defendant of a confession made by another defendant in a joint trial...; it does not bar the use of a co-conspirator statement made in furtherance of the conspiracy and admissible under a traditional hearsay exception."

-CM

A Foolish Consistency?: Minnesota Opinion Reveals Three Factor Test Minnesota Courts Use To Determine Admissibility Of Prior Consistent Statements

Like its federal counterpart, Minnesota Rule of Evidence 801(d)(1)(B) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness....

And, as the recent opinion of the Court of Appeals of Minnesota in State v. Morris, 2010 WL 2813345 (Minn.App. 2010), makes clear, courts in Minnesota apply a three factor test for determining whether a statement qualifies as a prior consistent statement under this Rule.

In Morris, Erwin Morris allegedly had

a dispute with his wife, R.H., over whether she served him poisoned grape juice....According to R.H., Morris "just turned [into] a different person" and began yelling at her and hitting her. She tried to escape by running up the stairs, but Morris dragged her back to the basement. He told her that he would "slice [her] throat" and harm the children if she screamed or called the police. The two then talked, and Morris calmed down.

While making breakfast the next morning, R.H. decided to use the opportunity to get out of the house. She gathered her daughters, flagged down a passing car, and went to her friend R.W.'s house.

R.W. observed that R.H. looked unkempt and her eyes were puffy. After R.H. described the incident with Morris, R.W. called the police. When the police arrived, R.H. was crying and her face appeared swollen. R.H. told the officers what happened the night before and the officers transported her to a shelter. Morris was arrested and charged with making terroristic threats...and domestic assault....

After R.H. testified, the state indicated its intention to offer portions of her statement to police as prior consistent statements. The district court met with counsel outside of the jury's presence to review the contents of the police report, determining on a line-by-line basis the portions of R.H.'s statement that were consistent with her trial testimony and the portions that were inconsistent and would be redacted. Morris objected to admission of the consistent statements only on the ground that they were cumulative. Morris objected to R.W.'s testimony as to what R.H. told her about the incident on hearsay grounds. The district court overruled the objections.

After he was convicted, Morris appealed, claiming, inter alia, that the district court erred in deeming portions of R.H.'s prior statement to police admissible under Minnesota Rule of Evidence 801(d)(1)(B). Initially, the Court of Appeals of Minnesota found that Morris failed to preserve this issue for appellate review because he merely claimed that these portions of R.H.'s prior statement were cumulative, not that they were hearsay.

The court then found that there was no plain error by the district court in admitting the portion of her prior statement. Morris had claimed that the admission of these portions of the statement violated State v. Bakken, 604 N.W.2d 106, 109 (Minn.App.2000), which held that, before admitting a prior consistent statement under Minnesota Rule of Evidence 801(d)(1)(B),

the district court must determine whether: (1) the witness's credibility has been challenged; (2) the prior statement would be helpful to the trier of fact in evaluating the witness's credibility; and (3) the prior statement and the trial testimony are consistent with each other.

The court disagreed, finding that

While the district court did not specifically address the Bakken factors, the record shows that the Bakken standard for admission was met. Morris's lawyer repeatedly challenged R.H.'s credibility. In his opening statement, counsel indicated that "[R.H.] is not consistent with her stories...none of it adds up. During cross-examination, counsel repeatedly attempted to impeach her testimony. And in questioning one of the police officers, defense counsel again attempted to impeach R.H.'s earlier testimony.

Implicit in the district court's admission of R.H.'s prior consistent statements to the police and R.W. is the determination that they would help the jury evaluate her credibility. The district court carefully reviewed the police report that contained R .H.'s statements to determine which statements were consistent with her trial testimony. Consistent with the parties' agreement, the district court redacted the portions of the police report that differed from R.H.'s trial testimony. Because the prior statements were consistent and assisted the jury in evaluating R.H.'s challenged trial testimony, we conclude that the district court did not commit plain error by admitting the prior consistent statements.

I agree with the court's conclusion but wonder about the second Bakken factor. If a witness' credibility has been challenged and he made a prior consistent statement, how would the prior consistent statement not be helpful to the trial of fact in evaluation the witness' credibility. In my mind, if factors one and three are satisfied, factor two will always be satisfied, but maybe I am missing an odd case where this conclusion would not be clear.

-CM

Ten Years Have Got Behind You: Tennessee Case Is Rare Case In Which Defendant's Remote Conviction Is Admissible Under Rule 609(b)

Like its federal counterpart, Tennessee 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 between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and 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.

Moreover, the Advisory Committee's Note to Federal Rule of Evidence 609(b) provides that

Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.

In other words, convictions that are more than ten years old should rarely be admitted as impeachment evidence, and they should almost never be admitted against criminal defendants. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Byington, 2010 WL 2812664 (Tenn.Crim.App. 2010), however, presents one of the rare cases in which such evidence is admissible against a criminal defendant: when the subject conviction is a perjury conviction that is only slightly more than ten years old and that bears no resemblance to the crime charged.

In Byington, Terry Byington was convicted of DUI. At trial, the prosecution sought a ruling from the judge that Byington's conviction for perjury be admitted in the event that he testified. Byington was released from confinement for his perjury conviction in January 1991 and allegedly committed the DUI offense in December 2001, making his prior conviction slightly more than ten years old.

The trial court granted the prosecution's motion, and, after he was convicted, Byington appealed, claiming, inter alia, that this ruling was erroneous. The Court of Criminal Appeals of Tennessee disagreed, finding that

There are two criteria which are especially relevant when a determination is made on whether the probative value of a prior conviction outweighs any unfair prejudicial effect. These are the impeaching conviction's relevance to credibility, and the impeaching conviction's similarity to the charged offense....A perjury conviction is highly relevant to credibility, and is in no way similar to the offense of DUI. We believe that the circumstances in this case lead to a conclusion that the conviction's probative value substantially outweighed its prejudicial effect. The trial court did not err in ruling that the prior conviction was admissible to impeach Defendant's credibility. Defendant is not entitled to relief on this issue. 

-CM

You'll Shoot Your Eye Out: Texas Case Involving BB Gun Stickup Reveals Basics Of Texas Rule Of Evidence 705(b)

Federal 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.

Texas Rule of Evidence 705(a) is similar. It provides that

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

Texas also, however, has Texas Rule of Evidence 705(b), which provides that

Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.

And, as the recent opinion of the Court of Appeals of Texas, Amarillo, in Blackburn v. State, 2010 WL 2802186 (Tex.App.-Amarillo 2010), makes clear, Rule 705(b) is mandatory.

In Blackburn, Charles Blackburn, Jr. was convicted by a jury of two counts of aggravated robbery, with an affirmative finding on use of a deadly weapon. The prosecution alleged that Blackburn, Jr. committed the robbery with a B.B. gun, which their expert witness, Chris Herndon, claimed qualified as a deadly weapon.

Early during Herndon's testimony, the State offered Exhibit No. 232, a receipt for a BB gun purchased for testing. The gun was identical to the one used in the robberies. Defense counsel requested, and was permitted, an opportunity to take Herndon on voir dire regarding the purchase of the BB gun. See Tex.R. Evid. 705(b). After voir dire, defense counsel lodged a relevancy objection to Exhibit No. 232. The trial court sustained the objection and disallowed introduction of the receipt.

When the State then offered Exhibit No. 233, a printout from the website of the BB gun manufacturer, Crosman Products, defense counsel objected “to hearsay as to anything that might be in these documents.” Before the trial court ruled, the prosecutor asked Herndon if the company specifics had aided him in his testing and whether the exhibit would aid the jury in understanding his testimony. After Herndon answered affirmatively, the State offered Exhibit No. 233 and defense counsel again objected on hearsay grounds.

In an ensuing colloquy, defense counsel asked the trial judge if he could take Herndon on voir dire regarding Exhibit 233, but the judge refused to allow voir dire.

After he was convicted, Blackburn, Jr. appealed, claiming, inter alia, that the trial court committed reversible error by precluding this latter voir dire. The Court of Appeals of Texas, Amarillo, agreed, finding that

Rule 705(b) of the Texas Rules of Evidence is clear. If a criminal defendant timely requests to conduct voir dire examination of an expert, the trial court shall permit him to question the expert on the underlying facts or data upon which the opinion is based....Rule 705 permits an abbreviated method of laying the groundwork before asking for an expert's opinion....As noted by the Court of Criminal Appeals, "the focus of Rule 705(b) is to prevent the jury from hearing the underlying facts and data which might ultimately be ruled as inadmissible."...

Rule 705(b) is mandatory....A trial court's denial of a timely and proper request constitutes error...In such a case, a reviewing court is required to decide whether the trial court's error was so harmful as to require reversal.

The appellate court, however, found that the trial court's error was not so harmful as to require reversal. According to the court, two bank tellers testified that they feared death or serious bodily injury from the (BB) gun, which was sufficient to establish that the gun was a deadly weapon. The court found this to be the case because "[e]ither expert testimony or lay testimony may be sufficient to support a deadly weapon finding by a jury."

-CM

Hired Gun: Court Of Appeals Of Utah Finds Evidence That Expert Was Hired By Insurance Company Inadmissible

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

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

Of course, even when evidence of liability insurance is offered for a permissible purpose under Rule 411, it is still subject to the balancing test prescribed by Federal Rule of Evidence 403 and Utah Rule of Evidence 403, which indicates 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.

So, is evidence that an expert was hired by the defendant's insurance company admissible under Rule 411 and 403? According to the recent opinion of the Court of Appeals of Utah in Kearl v. Okelberry, 2010 WL 2784593 (Utah App. 2010), the answer is "no."

In Okelberry, Robert Kearl filed a negligence suit against Edwin Ray Okelberry for injuries sustained when a jack released and dropped a trailer on his leg. At trial, the defendant's expert, Dr. Smith, testified regarding Kearl's injury and tests that he performed on the jack. That's all I can say about Dr. Smith's testimony because, after the jury returned a verdict of no liability, Kearl appealed but failed to include "a transcript of Dr. Smith's testimony at trial."

Kearl alleged on appeal, inter alia, that the trial court erred by excluding evidence that Dr. Smith was "hired by" Okelberry's insurance company. According to Kearl, this evidence was admissible "to demonstrate Dr. Smith's bias." But the problem for Kearl was that he also failed to include the trial court's ruling on this issue at trial and the transcript from the hearing on his motion to admit this evidence. Thus, the Court of Appeals of Utah "assume[d] the regularity of the proceedings below" and denied Kearl's appeal.

In dicta, however, the court

note[d] that the merits of this claim are questionable at best. Evidence of a witness's connection to an insurance company is admissible only if there is a "substantial connection" between the witness and the insurance company.... A substantial connection exists, for example, when the witness maintains an employment relationship with the insurance carrier independent of the person's position as an expert witness....Here, Dr. Smith's only connection to the insurance company was that the company hired him as an expert witness.

-CM 

What Can Brown Do For You?: First Circuit Upholds Hearsay Ruling Based Upon Defendant's Failure To Prove Declarant Unavailability

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

In order for a party to be able to introduce such a statement against interest, however, the party must be able to prove that the declarant is "unavailable" to testify at trial as defined in Federal Rule of Evidence 804(a). This latter requirement was the problem for the defendant in the recent opinion of the First Circuit in United States v. Weekes, 2010 WL 2704610 (1st Cir. 2010).

In Weekes,

Jerome Weekes and his associate Kelvin Brown were thrown out of a bar after arguing with another patron. Brockton Police Officer Michael Darrah, who was working as paid security at the bar, heard gunshots coming from their direction, called for backup, and gave chase. Darrah caught Brown as he and Weekes were trying to jump a fence. Weekes cleared the fence but was arrested by another officer a moment later. A search turned up Weekes's cell phone and a loaded gun near where he had landed, and two spent shell casings in the area from which Darrah believed the sounds of shooting had come.

Weekes was indicted on one count of being a felon in possession of a firearm...and was found guilty by a jury.

At trial, Weekes had sought to "testify that Brown had told him that he (Brown) had picked up the gun after it was dropped from a passing vehicle from which the two had been fired upon." Weekes had claimed "that this statement [wa]s not excludable under the hearsay rule because it was a statement against penal interest and Brown was unavailable to testify at trial." The district court, however, precluded Weekes from providing this testimony.

On Weekes' ensuing appeal, the First Circuit affirmed, finding that it did not need to resolve the question of whether Brown's alleged statement qualified as an excited utterance under Federal Rule of Evidence 804(b)(3). This was because, according to the court, Weekes failed to prove Brown's unavailability under Federal Rule of Evidence 804(a). Weekes ostensibly tried to prove Brown's unavailability under Federal Rule of Evidence 804(b)(3), which provides that a declarant is "unavailable" if the declarant

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

And, according to the First Circuit,

The sticking point here is the required showing of Brown's unavailability, and we do not think Weekes has demonstrated abuse of discretion in the district judge's finding that Weekes had not "show[n] at least a good faith effort to procure the witness'[s] attendance," a standard we have described as "relatively high."...He apparently did try to find Brown through Brown's friends and family, but he neither subpoenaed Brown at his last known address nor sought help from the district court, local law enforcement, or, curiously, Brown's counsel in the state court action in which the two were co-defendants....It is not enough to point, as Weekes does, to evidence that Brown made the statement; “there must be indicia of trustworthiness of the specific, essential assertions” to be repeated,...and Weekes points to none. There was no abuse of discretion in excluding Brown's hearsay.

-CM

A Bit Preliminary: Court Of Appeals Of Michigan Deals Preliminary Examination Testimony Admissible Under Former Testimony Exception

Like its federal counterpart, Michigan Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

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

A defendant is charged with murder. At the preliminary examination, he cross-examines an alleged eyewitness to that murder. At trial, the eyewitness invokes her Fifth Amendment privilege against self-incrimination and refuses to testify. Should her testimony at the preliminary examination be admissible under Michigan Rule of Evidence 804(b)(1)? According to the recent opinion of the Court of Appeals of Michigan in People v. Hadley, 2010 WL 2757143 (Mich.App. 2010), the answer is "yes." I disagree.

In People v. Hadley, 2010 WL 25757143 (Mich.App. 2010), William Hadley was charged with murder and

[a]t the preliminary examination, [Misty Mae] Hafley testified that on January 3, 2009, she and defendant were at the home of Georjean Hadley and her husband, with their children and several adult friends. Throughout the evening, defendant, Hafley and the other adults liberally consumed alcohol. After the children were asleep in a back bedroom of the home, an argument arose between defendant and Georjean in another room. When Hafley emerged from the children's room, she positioned herself between defendant and Georjean in an attempt to intercede in what had escalated into a physical altercation. During this confrontation, defendant shot Georjean with a handgun, killing her. Hafley hid the gun within the home at defendant's request. The police arrested both defendant and Hafley. During three subsequent interviews with police, Hafley provided different versions of the events of that night. Hafley admitted at the preliminary examination that all of these versions were false. After two days in jail, Hafley was released when she told police that defendant shot Georjean.

Thereafter, the trial court appointed counsel to Hafley, and

Hafley asserted her Fifth Amendment right to silence. As a result, the prosecutor sought to introduce Hafley's preliminary examination testimony at trial based on her unavailability. Defendant's counsel objected, asserting that his motivation for cross-examining Hafley had changed since the preliminary examination in light of...new evidence....Defense counsel indicated that his trial strategy had altered and that his focus was now on proving Hafley's culpability rather than merely impeaching her credibility. As such, defense counsel argued that her prior testimony was rendered inadmissible. The trial court conducted an evidentiary hearing, and...precluded the use of Hafley's preliminary examination testimony at trial.

In its ensuing appeal, the government claimed that Hafley's former testimony was admissible under Michigan Rule of Evidence 804(b)(1). The Court of Appeals of Michigan responded that in People v. Farguharson, it set forth a "nonexhaustive list of factors in determining whether the prosecution had a similar motive to examine a witness at a prior proceeding":

(1) whether the party opposing the testimony "had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue"; (2) the nature of the two proceedings-both what is at stake and the applicable burden of proof; and (3) whether the party opposing the testimony in fact undertook to cross-examine the witness (both the employed and available but forgone opportunities) .

Applying these factors, the court found that

Defendant's primary motivation at the preliminary examination was to impugn or call into question Hafley's credibility. Although defense counsel now contends that his motivation has changed from undermining Hafley's credibility to demonstrating her culpability, this constitutes a distinction without a difference. At trial, defendant will only be able to suggest Hafley's culpability by impeaching her credibility. There are no witnesses testifying that Hafley fired the fatal shot. Defense counsel impliedly acknowledged this when he stated that proving Hafley fired the gun "would allow the jury to fully understand why she's lying to cover her butt," and when he argued that showing Hafley's culpability would reveal her motive for lying and serve to seriously undermine her credibility. Consequently, the focus of defense counsel's cross-examination of Hafley has not altered....Therefore, we reverse the trial court's ruling precluding the admission of Hafley's preliminary examination testimony at trial.

Huh? Okay, I acknowledge that under the third factor, defense counsel cross-examined Hafley. But how, under the first factor, could the court find that Hadley had a substantially similar intensity to disprove Hafley's testimony at the preliminary examination as he would have had at trial? And how, under the second factor, could the court have found that the stakes were similar at the preliminary examination and at trial. At the preliminary examination, Hadley was merely doing a dry run of what he would eventually at trial. There was no applicable burden of proof and no danger that he would be convicted or lose his freedom at the preliminary examination. Knowing that Hafley admittedly had provided three prior false accounts of the subject crime, he easily could have held off on fully cross-examination during the preliminary examination so that Hafley was unprepared for a more intense cross-examination at trial.

I realize that there is a split on this issue. See Preliminary Hearings, 74 GEO. L. J. 647, 652 n.199 (1986)

A defendant may be able to argue that the motive for cross-examining a government witness differs in the preliminary examination because a defendant may not want to reveal his or her defense to the prosecution at this early stage. See United States ex rel. Haywood v. Wolff, 658 F.2d 455, 463 (7th Cir.) (test for determining whether preliminary examination testimony of deceased witness violates defendant's constitutional right of confrontation is whether cross-examination at preliminary examination provided sufficient indicia of reliability to evaluate truth of testimony when considered in conjunction with other evidence presented at trial), cert. denied, 454 U.S. 1088 (1981). But cf. Mechler v. Procunier, 754 F.2d 1294, 1300 (5th Cir. 1985) (when defendant was present and actively represented by counsel at preliminary examination, admission of unavailable government trial witnesses' preliminary examination testimony did not violate sixth amendment confrontation clause).

But, given the factor employed by the Court of Appeals of Michigan, I don't see how it reached the result that it reached.

-CM

Is It Your Recollection?: Florida Court Varies From Prior Florida Precedent In Recorded Recollection Ruling

Like Federal Rule of Evidence 803(5), Section 90.803(5) of the Florida Statutes provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

So, for a recorded recollection to be admissible under this rule, does the declarant need to lay a foundation for its admission by testifying at trial that he or she recorded the statement when the described events were fresh in his or her mind and attesting to the accuracy of the statement?  According to the recent opinion of the District Court of Appeal of Florida, Fifth District, in its recent opinion in Polite v. State, 2010 WL 2787457 (Fla.App. 5 Dist. 2010), the answer is "no," despite prior Florida precedent.

In Polite, Darius Polite was convicted of burglary of a dwelling with an assault or battery, robbery with a firearm, aggravated assault with a firearm, and possession of a firearm by a convicted felon. Falisa Levine was one of the alleged victims of these crimes, and, one hour after the subject crimes, she gave a sworn written statement to police, detailing the crimes and identifying Polite by name as one of the robbers.

At trial, Polite "testified that three men came to her house, kicked the door open, and put a gun to her daughter's face. Beyond this, [she] testified that she could not remember any more details at the time of trial." The prosecution thereafter had Levine read her sworn statement to the jury." On cross-examination, Levine testified that she could have made a mistake in her statement as "[t]hey was pressuring [her]" and she "[did not] even know if [she] got the right person."  

After he was convicted, Polite appealed, claiming, inter alia, that Levine's statement was inadmissible hearsay." And, according to polite, the statement did not qualify for admission under Section 90.803(5) of the Florida Statutes because, for a recorded recollection to be admissible under this rule, the declarant need to lay a foundation for its admission by testifying at trial that he or she recorded the statement when the described events were fresh in his or her mind and attesting to the accuracy of the statement.

The District Court of Appeal of Florida, Fifth District, found that Polite failed to preserve this issue for appellate review but found that he would have been unsuccessful even if he had. The court did first acknowledge that

Polite correctly points out that Florida case law, as it stands currently, does not allow a written statement to qualify as a past recollection recorded unless the declarant lays the foundation for its admission with testimony at trial that he or she recorded the statement when the described events were fresh in his or her mind, and attests to the accuracy of the statement (either by testifying that he or she made an accurate record of the fact or event or that he or she is confident that the facts would not have been written unless they were true). E.g., Hernandez v. State, 31 So.3d 873 (Fla. 4th DCA 2010) (holding that where witness was unable, or unwilling, to attest to the accuracy of the taped conversation, the state was not able to show it could introduce the same as a past recollection recorded); Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004) (holding audio-tape recordings were inadmissible as past recollection recorded where witnesses did not testify that the recordings accurately reflected their memories of events when made); Montano v. State, 846 So.2d 677 (Fla. 4th DCA 2003) (holding tape recorded statement given to police shortly after criminal incident was inadmissible under section 90.803(5) when witness did not remember its contents and did not testify that it correctly reflected her knowledge or that she tried to be truthful at the time of the making of the statement).

But the court disagreed with this precedent, finding that these cases were

contrary to the plain language of the statute and rule. Section 90.803(5) simply requires as a foundation that the statement is “shown to have been made by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.” The statute does not say that this “showing” must always (or only) be made by testimony from the declarant. A plain reading of the statute would allow admission of the statement so long as the state presented evidence (from any source) sufficient to support a finding that the statement was made when the matter was fresh in the witness' mind, and that it was accurate. This is the approach taken by several cases applying the companion provision in the federal rules relating to past recollection recorded- Federal Rule of Evidence 803(5)-or identical state evidence rules.

Applying this approach to the case before it, the court concluded that

the victim identified the written statement as the statement she gave to police on the day of the crime, approximately one hour after the events took place, and testified that she told the police what happened when they came to her house. Given the totality of the circumstances in this case, including that the witness swore to the statement as true at the time she gave it; that she was still consumed with the emotions of the event when talking with police; and that other evidence corroborated her statement, we find that there was sufficient evidence to lay a foundation for admission of the statement under section 90.803(5), even though the declarant herself never confirmed the accuracy of the statement at trial.

I agree with this approach. Like Federal Rule of Evidence 803, Section 90.803 of the Florida Statutes sets forth hearsay exceptions in which the availability of the declarant is immaterial. In other words, hearsay can be admissible under these exceptions, even if the declarant is unavailable. And if the declarant can be unavailable, then clearly the approach previously taken by the Florida courts is wrong.

That said, I am not sure about the court's specific conclusion. I understand what the court was saying in the last block quote above. But what about Levine's admission that she could have made a mistake in her statement as "[t]hey was pressuring [her]" and she "[did not] even know if [she] got the right person." It seems to me that this testimony easily could have been enough to deem her alleged recorded recollection inadmissible.

-CM  

Divide And Prejudice?: Arizona Court Finds No Prejudicial Joinder In Sex Abuse Case Based On Rule 413(a)

If a defendant is charged with several unrelated crimes, he has a good chance of having several counts severed based upon prejudicial joinder. In such a case, joinder would be prejudicial because if the defendant were given separate trials for each count, evidence of each alleged crime would likely be inadmissible in every other trial under Federal Rule of Evidence 404. Federal Rule of Evidence 413(a), however, provides that

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

Thus, if a defendant is charged with several unrelated crimes of sexual assault, he will have a tough time proving prejudicial joinder because evidence of each alleged crime would likely be admissible in every other trial under Federal Rule of Evidence 413(a), as was the case with the recent opinion of the United States District Court for the District of Arizona in United States v. Brown, 2010 WL 2771882 (D. Ariz. 2010).

In Brown, Anderson Brown entered into a plea agreement with the prosecution under which he would have pleaded guilty to sexual abuse with a minor. The court, however, rejected the plea deal. Thereafter, the government filed a superseding indictment which added two additional counts for sexual contact against a separate victim. Brown, inter alia, moved to sever the newly charged counts due to prejudicial joinder, but the United States District Court for the District of Arizona denied the motion. According to the court,

In this case, joinder would not be prejudicial because the evidence relating to each count likely would be admissible in each trial even if the counts were severed. Because the counts are sex-related crimes, the Federal Rules of Evidence permit the admission of other similar acts for any relevant purpose. See Fed.R.Evid. 413(a)....In a very similar case, the Eighth Circuit held that severance was not prejudicial because the evidence relating to other sexual acts would have been admissible even in separate trials. United States v. Running Horse, 175 F.3d 635, 637 (8th Cir.1999). In Running Horse, the defendant was charged with ten counts of sexual abuse against the same victim, as well as one count against a different victim....Defendant sought to sever the count against the different victim....Affirming the district court's denial of severance, the Eighth Circuit explained that the defendant was not prejudiced because Federal Rule of Evidence 413 would have allowed evidence of the other ten counts of sexual abuse in a separate trial for the eleventh count....Likewise, it is not yet apparent that the Defendant would experience prejudice because the Rules of Evidence would allow the same evidence to be admitted even if the Court severed the counts.

-CM

Drunk Dialing: Eighth Circuit Assumes 911 Call Was Improperly Admitted As Excited Utterance Based On Lack Of Personal Knowledge

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.

Meanwhile, Federal Rule of Evidence 602 provides that

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

And, as the recent opinion of the Eighth Circuit in United States v. Erickson, 2010 WL 2721026 (8th Cir. 2010), makes clear, a party cannot introduce an excited utterance unless it establishes that the declarant had personal knowledge of the startling event or condition.

In Erickson, Robert Erickson was charged with multiple counts of assault with a dangerous weapon and assault resulting in serious bodily injury, and the prosecution established, inter alia, the following facts at trial:

On January 1, 2008, Erickson attended a party at Sherry Erickson's residence at which some eight people had gathered and were drinking heavily throughout the night. Most of the individuals at the party were intoxicated, with the exception of Samantha Kitteaux, Erickson's cousin, who, because of her pregnancy, was not drinking. Erickson became increasingly agitated as the evening wore on, expressing anger that someone had stolen liquor from him and claiming that members of the group wanted to "jump him." At about 3:00 a.m. on January 2, Erickson became involved in an argument with Anthony Kitteaux. Erickson walked out of the residence and onto a front porch area. Anthony Kitteaux followed after him to see what Erickson was doing. In order to step outside, the parties had to pull back a blanket that had been hung over the doorway to provide additional insulation. As Anthony Kitteaux pulled back the blanket to look outside, Erickson slashed him across the face with a knife, leaving a large flap of skin hanging from Kitteaux's cheek. Kitteaux yelled, "ow, that mother f---er cut me" as he retreated back inside. Eli Antoine, who had been sitting inside, went to the door, whereupon Erickson swung the knife again, slashing Antoine across the palm of his left hand and lacerating the tendons and nerves connecting several of his fingers.

Erickson fled the residence on foot and several of the individuals who had been present at the party chased after him. Samantha Kitteaux and another individual, Frank Swalley, remained behind and made two 911 emergency calls as they attempted to help with the victims' wounds. During the second 911 call, Frank Swalley got on the phone and identified Erickson as the assailant. After arriving on the scene and briefly speaking with the witnesses, the police began searching for Erickson and apprehended him within walking distance of the residence. Erickson was arrested and taken to the local jail, where the officers took pictures of what appeared to be blood on his hands.

At trial,

Frank Swalley testified that Erickson became agitated during the evening and was hollering about someone trying to jump him. But Frank Swalley had no recollection of the stabbing or making a 911 call. Rather, he claimed that he had passed out from drinking and was awakened only after the assaults had already taken place. He testified that after he woke up he saw blood gushing from Eli Antoine's wound and used his belt as a makeshift tourniquet  to stop the bleeding.

The prosecution later introduced testimony from a 911 dispatcher who claimed "that an individual named 'Frankie'-recognized now as Frank Swalley-had identified Erickson as the attacker."

After he was convicted, Erickson appealed, claiming, inter alia, that Swalley's statements to the 911 dispatcher were inadmissible hearsay. The Eighth Circuit found that Swalley's statement met all of the requirements to qualify as excited utterances under Federal Rule of Evidence 803(2) but found that

The problem with the government's argument...[wa]s that the trial testimony did not make it clear how Swalley obtained the information that he related over the phone. The trial testimony indicated that Frank Swalley had passed out from drinking and was awakened only after the attack had already occurred. As related above, Frank Swalley testified that he had no recollection of the 911 call. The lack of detail in the trial record thus makes his statement difficult to evaluate because it is not clear how he came to the conclusion that Erickson had committed the crime.

According to the court,

In this case there are a number of conceivable explanations for Frank Swalley's belief that Erickson was the assailant-for example, someone who witnessed the attack could have told him; he might have observed people leaving the residence to chase after Erickson; or he could have based his conclusion on his earlier observation of Erickson's erratic, aggressive behavior. Because there is no way to identify the basis of the statement with any certainty, however, it is problematic whether it was properly admitted as an excited utterance.

I would go a bit further than the Eighth Circuit. By Swalley's own admission, he did not observe the assault but merely woke up in its aftermath. It is thus clear that he did not have personal knowledge of the assault and could not have testified regarding the assault or had his statements regarding the assault admitted under an exception to the rule against hearsay. In effect, the Eighth Circuit assumed the same result but found that any error in admitting Swalley's statements was harmless giving the otherwise overwhelming evidence of Erickson's guilt.

-CM

Northern District Of California Permits Defendants To Interrogate Title IX Plaintiff About Whether She Consented to Teacher’s Sexual Behavior When She Was 15

A plaintiff claims that she was 15 years-old when she was subjected to sexual molestation by her then 38 year-old teacher at a charter school.  Accordingly, she brings a Section 1983 action (1) against the school and its director/principal for failure to train and supervise, and (2) against the teacher for denial of equal protection. She also files a Title IX sex discrimination claim against all three defendants, a state law claim for negligent hiring and supervision against the school, and a state law invasion of privacy claim against the director/principal, who allegedly made a public announcement to the student body, disclosing details of the sexual conduct between the teacher and the plaintiff. During a deposition of the plaintiff, the parties disagree about the proper scope of questioning.  Among other things, defense counsel wants to interrogate the plaintiff about whether she "consented" to the sexual encounters with her teacher and whether the teacher's sexual behavior was "unwelcome" by her. The parties thereafter make their arguments to the court on the issue. How should the court rule? In its recent opinion in Doe v. Willits Unified School Dist., 2010 WL 2524587 (N.D. Cal. 2010), the United States District Court for the Northern District of California permitted such questioning. I strongly disagree.

Initially, the court noted that the Advisory Committee's Note to the federal rape shield rule, Federal Rule of Evidence 412, indicates that

Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery.

The court thus had to decide whether the plaintiff's "consent" to the teacher's sexual behavior was part of an element or defense in the case, and ostensibly found that it could only be an element in connection with the plaintiff's Title IX claim. The court then noted on the one hand "that the question has not yet been addressed in th[e Ninth C]ircuit." On the other hand, it found that each of the cases outside of the Ninth Circuit which had specifically considered whether consent is an element of a Title IX case had "held that consent is not part of the cause of action." Particularly persuasive for me was the opinion in Mary M. v. North Lawrence Community Sch. Corp., 131 F.3d 1220 (7th Cir. 1997), in which the Seventh Circuit held that if "children cannot be said to consent to sex in a criminal context, they similarly cannot be said to welcome it in a civil context. To find otherwise would be incongruous."

But rather than join all other courts and preclude the subject interrogation, the Northern District of California found that

because the law in this circuit is unsettled, and because this Court does not wish to prematurely define the elements of the causes of action in this case (a question more properly addressed by the trial judge), this Court will allow limited questions on the issue of whether plaintiff welcomed or consented to her sexual encounters with [the teacher]. Defendants therefore generally may ask plaintiff whether she wanted to engage in sexual conduct with [the teacher], and/or whether she initiated the sexual relationship.

Really? Rather than step on the toes of the trial judge or the Ninth Circuit, the court decided to allow interrogation of a child as to whether she "consented" to sexual relations with her 38 year-old teacher when she was 15? How exactly does such a conclusion cohere with the Advisory Committee's declaration that courts should presumptively issue protective orders and the categorical chorus of precedent precluding such interrogation? In seemingly trying to protect its opinion from appellate review, the court removed protection from the plaintiff.

-CM

Killing Me Softly: Court Of Appeals Of Ohio Case Reveals That Dying Declaration And Excited Utterance Exceptions Are Often Intertwined

Like its federal counterpart, Ohio Rule of Evidence 804(B)(2) provides an exception to the rule against hearsay "[i]n a prosecution for homicide or in a civil action or proceeding" for

a statement made by a declarant, while believing that his or her death was imminent, concerning the cause of what the declarant believed to be his or her impeding death.

And, like its federal counterpart, Ohio 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 Court of Appeals of Ohio, First District, in State v. Washington, 2010 WL 2697078 (Ohio App. 1 Dist. 2010), makes clear, statements covered by the former hearsay exception will almost always also be covered by the latter hearsay exception.

In Washington, Todd Kendal Washington was convicted of aggravated murder and aggravated robbery based upon the shooting death of Donald Williams. According to testimony presented at trial, after Williams was shot four or five times, he fell to the ground, stating, "my stomach is burning." As nearby neighbors called 911, Williams squeezed his fiancée's hand as she implored him to stay with her. Thereafter, Sergeant Michael Machenheimer and Officer Ronald Fuller from the Cincinnati police arrived on the scene while Williams was still lying injured in the street. Machenheimer asked Williams if he knew who had shot him, and he said, "Yes, his name is Kendal." Meanwhile, Fuller testified that Williams had told him that "Kendal shot me." Moments after making these statements, Williams died.

After he was convicted, Washington appealed, claiming, inter alia, that Williams' statements identifying him were inadmissible hearsay. The Court of Appeals of Ohio disagreed, finding that Williams' statements were admissible under Ohio Rule of Evidence 804(B)(2) because

[t]he evidence in this case supports the trial court's finding that Williams believed that his death was imminent. He had been shot four to five times at close range, and he had fallen to the ground, stating "my stomach is burning." He squeezed his fiancée's hand as she implored him to stay with her. His eyes kept rolling back in his head, and his breathing was labored. Although he was able to tell police officers that "Kendal" had shot him, he died moments later. Under the circumstances, we cannot hold that the trial court abused its discretion in admitting the statements into evidence as dying declarations.

Moreover, the court found that

[e]ven if Williams's statements were not dying declarations, the trial court found that they would also have been admissible under the hearsay exception for excited utterances. Evid.R. 803(2)  defines an excited utterance as "[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."...In this case, Williams was under the stress of an undoubtedly startling condition-he had been shot four to five times. He immediately identified "Kendal" as the person who had just shot him.

Indeed, it is difficult to think of a case in which a statement would qualify as a dying declaration but not qualify as an excited utterance. I guess that the only such case would be one in which the victim wanted to die or calmly accepted his fate before making his statement. In such a case, the victim would not (still) be under the stress of the startling even causing his death, making the excited utterance exception inapplicable.

-CM

Updated Submission Guide for Online Law Review Supplements Posted On SSRN

The fall submission season is almost upon us, and today, I updated my Submission Guide for Online Law Review Supplements. I did not add any new online supplements to my guide, but this version of the guide contains some important changes that some journals made to their submissions guidelines. You can download a copy of the updated guide from SSRN by clicking here.