EvidenceProf Blog

Keystone Case: Eastern District Of Pennsylvania Engages in Confusing Conviction Impeachment Analysis

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Now, take a look at the recent opinion of the United States District Court for the Eastern District of Pennsylvania in United States v. Bellinger, 2010 WL 3364335 (E.D. Pa. 2010), and see if you think that the court made the right ruling under Rule 609(b).

In Bellinger, Edward Bellinger was charged with possession of a firearm by a convicted felon. At trial, the prosecution impeached him with evidence that he was previously convicted of robbery in 1989. After he was convicted, Bellinger claimed, inter alia, that he received ineffective assistance of counsel because his trial counsel failed to raise a motion in limine to preclude the admission of his prior conviction for impeachment purposes. In addressing this argument, the Eastern District of Pennsylvania noted that courts in the Third Circuit determine the admissibility of prior convictions for impeachment purposes with reference to four factors:

(1) [T]he kind of crime involved, (2) when the conviction occurred, (3) the importance of the witness' testimony to the case, and (4) the importance of the credibility of the defendant.

Here was the court's analysis of the issue under these factors:

Without getting into a lengthy retrospective analysis of the propriety of admitting the records at issue here-a decision made by the trial court at trial-the Court simply states that it believes that the factors weigh in favor of the admission of the evidence of the previous conviction. For instance, under the fourth factor-the most relevant factor in the present robbery context-a robbery conviction is the kind of conviction that courts find to be probative of a defendant's veracity....Thus, the fourth prong weighs strongly in favor of admission, which mitigates against the first factor, which weighs slightly against admission, due to the fact that robbery and gun possession are not identical crimes with identical elements. It is true that the under the second prong, the crime occurred more than ten years before the March 2005 trial on felony possession, and that under the [third] prong, Bellinger's testimony would have been of central importance to the case. Nevertheless, reviewing the four factors leads the Court to conclude that Defendant's prior robbery conviction was properly admitted under Rule 609(a)(1), and that defense counsel's strategic decision not to challenge the government's motion in limine was not unreasonable or in error.

Now, let's sort through this analysis. First, why did the court find that the conviction was admissible under Rule 609(a)(1)? According to the court itself, the conviction was more than ten years old. Assuming that the court meant that Bellinger was released from confinement more than ten years before his latest trial, the prior conviction could have only been admissible under Rule 609(b), meaning that it could have only been admissible if its probative value substantially outweighed its prejudicial effect. According to the court, though, factors one, two, and three cut against admission while only factor four supported admission. It is this difficult to see how the probative value substantially outweighed its prejudicial effect. Moreover, even if Rule 609(a)(1) applied, it is difficult to see how probative value outweighed prejudicial effect as is required by the Rule.

Moreover, it appears that the court confused the factors. Under factor one, the court was supposed to consider how much bearing the conviction had on the issue of Bellinger's credibility, but the court considered this under factor four. And, under this factor, the court was supposed to consider the similarity between the prior conviction and the present charge, with prejudicial effect increasing with similarity (based upon the fear that the jury might misuse the prior conviction as propensity character evidence). But, the court's analysis made it seem like probative value increases with similarity, which is incorrect. Under the fourth factor, the court was supposed to consider whether the defendant testified to a version of events that conflicted with the version of events described by witnesses for the prosecution. Instead, as noted, it focused upon the extent to which the robbery conviction bore on Bellinger's credibility. All in all, this was a strange opinion by the court and one that I do not think is defensible.

-CM  

Modern Hatfield & McCoy: Court Of Appeals Of Kentucky Notes Differences Between Rules 803(6) & (8) In Boundary Dispute

Like its federal counterpart, Kentucky Rule of Evidence 803(8) provides an exception to rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

And, like its federal counterpart, Kentucky Rule of Evidence 803(6) provides an exception to rule against hearsay for

Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or other data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule:

(A) Investigative reports by police and other law enforcement personnel;

(B) Investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; and

(C) Factual findings offered by the government in criminal cases.

And, as the recent opinion of the Court of Appeals of Kentucky in Owens v. Davies, 2010 WL 3360453 (Ky.App. 2010), makes clear, the foundation requirements under Rule 803(8) are substantially more relaxed than the foundation requirement contained in the business records exception contained in Rule 803(6).

In Davies, Donald Owens, Sr., Donald Owens, Jr., and Judy Owens appealed from a judgment in favor of Samuel E. Davies, Linda G. Davies, Andreae Collins, Ella Collins, Eleanor Grace, and William Grace quieting title to a disputed boundary line. After the trial court found against them, the Owens appealed, claiming, inter alia, that the court erred by

admitting the record of a prior condemnation proceeding involving the properties because the evidence constituted hearsay and was admitted without a proper foundation. Citing KRE 902(4), the trial court admitted into evidence a certified copy of the record of a prior condemnation proceeding involving the properties at issue in this case on the grounds that the record was public. The Kentucky Transportation Cabinet had instituted condemnation proceedings against adjoining landowners Speed Campbell and Ashley Garland prior to the relocation of U.S. Highway 25E. Appellee, Samuel Davies, in his capacity as an attorney, represented both Campbell and Garland in the proceeding against the Commonwealth. The condemnation proceeding established a boundary point between the properties of Campbell and Garland where their properties adjoin U.S. Highway 25E.

Ostensibly, the Owens claimed on appeal that the appellees failed to lay a proper foundation for admission of the record of the prior condemnation hearing because no witness authenticated the record. The Court of Appeals of Kentucky disagreed, finding that

the foundation requirements under KRE 803(8) are substantially more relaxed than the foundation requirement contained in the business records exception contained in KRE 803(6)....KRE 803(8) does not require the testimony of a live witness to satisfy the foundation requirement....

We conclude the record of the prior condemnation proceeding involving the properties at issue was properly admitted as a public record. KRE 902(4) states in pertinent part: "An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by an official having the legal custody of the record." The Knox County Circuit Clerk certified the record and attested the record was a "true and correct copy." The trial court did not abuse its discretion by admitting the record of the prior condemnation proceeding.

-CM

That Was a Long Time Ago: Ohio Appellate Court Reverses Verdict Based Upon Improper Rule 609(B) Ruling

Like its federal counterpart, Ohio Rule of Evidence 609(B) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

And, as the recent opinion in Keaton v. Abbruzzese Bros., Inc., 2010 WL 3314342 (Ohio App. 10 Dist. 2010), makes clear, this is a difficult balancing test for parties to pass.

In Keaton, Mark A. Keaton appealed from a judgment entered upon a jury verdict in favor of  Abbruzzese Bros. Inc. and the Industrial Commission of Ohio, finding that Keaton was not entitled to participate in the state insurance fund for the condition of disc protrusion L5-S1. The facts in Keaton were undisputed: Keaton

was injured on October 7, 2004, in the course and scope of his employment with Abbruzzese, and a workers' compensation claim was allowed for multiple conditions. Thereafter, [Keaton] requested an additional allowance of "L5-S1 Disc Protrusion." In support of his request, [Keaton] relied on the medical report of Charles J. Kistler, D.O. The request for the additional claim was denied at all administrative levels; therefore, in accordance with R.C. 4123.512, [Keaton] filed an appeal with the Franklin County Court of Common Pleas.

In preparation for trial, Dr. Kistler's deposition was taken, at which time [Keaton]'s counsel objected to a line of questioning on cross-examination. A day prior to the jury trial conducted by a visiting judge, the assigned judge reviewed the deposition and overruled [Keaton]'s objections. The jury heard the evidence, and after deliberations rendered a verdict in favor of appellees finding [Keaton] was not entitled to the requested condition of L5-S1 disc protrusion.

The line of questioning dealt with Dr. Kistler's 1981 felony conviction for insurance fraud based upon his filing of false and inflated medical bills to an insurance company, and, after the jury found for the appellees, Keaton appealed this ruling. In addressing this issue, the court found that

pursuant to Evid.R. 609(B), evidence of Dr. Kistler's conviction was not admissible unless the trial court determined "in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." "Generally, convictions over ten years old rarely should be admitted under Evid.R. 609(B), and only in exceptional circumstances."

The court then found that Dr. Kistler did not open the door to interrogation regarding his prior conviction and concluded that

Dr. Kistler was the only witness testifying in support of the requested claim for L5-S1 disc protrusion. The majority of Dr. Kistler's cross-examination concerned his prior conviction; yet, the prior conviction, which concerned billing procedures, was completely unrelated to Dr. Kistler's opinion pertaining to diagnosis and causation. The admission into evidence of Dr. Kistler's stale conviction, particularly its underlying details, could do nothing more than prejudice the minds of the jurors, and any probative value did not substantially outweigh its prejudicial effect. In fact, the details of the underlying criminal conviction would not be admissible even under an appropriate use of Evid.R. 609 that permitted the admission of evidence of the criminal conviction itself. Thus, overruling appellant's objection to the admission of testimony regarding Dr. Kistler's prior criminal conviction was an abuse of discretion.

Frankly, I think that the court overstated its vase. Sure, the conviction could have prejudiced the minds of jurors, but could it really do "nothing more" than that? Couldn't it also show that the jurors shouldn't necessarily trust his testimony based upon his prior fraudulent behavior? Moreover, wouldn't the fact that the prior conviction was unrelated to Dr. Kistler's opinion concerning diagnosis and causation reduce the prejudicial effect of the prior conviction? That's the way that most courts look at it, but not the court in Keaton. Now, the conviction was pretty old and Dr. Kistler's testimony was pretty important, so I probably agree with the court that probative value of the conviction did not substantially outweigh its prejudicial effect. It is the analysis of the court that I found problematic.

-CM

Let's (Not) Go To The Tape: First Circuit Notes That Rule Of Completeness Doesn't Apply To Unrecorded Oral Statements

Federal Rule of Evidence 106, the "rule of completeness," provides that

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

As the text of the Rule and the recent opinion of the First Circuit in United States v. Verdugo, 2010 WL 3260805 (1st Cir. 2010), make clear, the triggering event for application of Rule 106 is the admission of a writing or recorded statement (or part thereof); the Rule is not triggered by the introduction of testimony about unrecorded oral statements.

In Verdugo, Adolfo Verdugo and Rafael Fernández-Roque challenged their convictions for conspiracy to distribute and possess with intent to distribute cocaine. After he was arrested,

Verdugo initially denied having any involvement in the drug transaction. [DEA Agent Michael] Naylor then confronted Verdugo with evidence of his intercepted remarks to [Omar] Altamirano[-Nunez] regarding their planned meeting near Springfield, and Verdugo admitted that he had delivered the 29 kilograms of cocaine to Massachusetts two months earlier, but denied that he had received any money. Naylor also showed Verdugo a photograph of Altamirano, whom he identified as Juan Carlos. Verdugo agreed to cooperate, but told the agents that he had nothing to offer.

Agents then brought Verdugo to an interview room at the Pomona police station. There, Naylor presented Verdugo with a form explaining his Miranda rights and read the form to him. Verdugo signed the form, and the agents began questioning him. Verdugo immediately invoked his right to counsel and refused to acknowledge his earlier confession. The interview, which lasted approximately eight minutes, was recorded on videotape.

At trial, Naylor relayed the details of Verdugo's confession to the jury. Naylor thereafter sought to introduce the video of the interview, claiming that it contradicted Naylor's testimony. The district court, however, deemed the video inadmissible. On appeal, Verdugo claimed for the first time that the district court should have admitted the video under Federal Rule of Evidence 106. The First Circuit was easily able to turn this argument aside, noting that Verdugo's initial confession was not recorded and concluding "that Rule 106 does not apply to testimony about unrecorded oral statements such as the one that Verdugo gave to Naylor...when he was arrested."

-CM

Crimes And Misdemeanors? Arizona Court Implies Drug Convictions Can Qualify For Rule 609 Impeachment Based On Statutory Amendment

Like its federal counterpart, Arizona Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted....

So, let's say that a defendant is convicted under a statute that mandates a sentence of probation, rather than imprisonment, for first-time convictions of personal possession or use of controlled substances or drug paraphernalia. But let's say that the statute also allows courts to impose additional probation conditions, including incarceration, for probation violations regarding court-ordered drug treatment, and courts can revoke probation for failure or refusal to participate in drug treatment. Could the conviction be admissible under Arizona Rule of Evidence 609(a)(1)? According to the recent opinion of the Court of Appeals of Arizona, Division One, in State v. Hatch, 2010 WL 3310267 (Ariz.App. Div. 1 2010), the answer seems to be "yes." I disagree.

In Hatch, the facts were as stated above, with the trial court permitting the prosecution to impeach the defendant. After he was convicted, the defendant appealed, citing the Supreme Court of Arizona's opinion in State ex rel. Romley v. Martin, 69 P.3d 1000 (Ariz. 2003), for the proposition that witnesses cannot be impeached under Arizona Rule of Evidence 609(a)(1) via convictions under A.R.S. § 13-901.01, the statute under which he was previously convicted.

The Court of Appeals of Arizona, Division One, however, noted that, at the time that Martin was decided, A.R.S. § 13-901.01 mandates a sentence of probation, rather than imprisonment, for first-time convictions of personal possession or use of controlled substances or drug paraphernalia. The court then noted that A.R.S. § 13-901.01 was since amended so that courts can now impose additional probation conditions, including incarceration, for probation violations regarding court-ordered drug treatment, and courts can revoke probation for failure or refusal to participate in drug treatment. According to the court,

In this case, defendant's prior conviction remained potentially punishable by imprisonment in excess of one year until the conditions of his probation were satisfied....

The current statutory landscape has changed significantly since the time Martin was decided. Initially, Proposition 200's flat prohibition on imprisonment was dispositive on the notion of the seriousness of the covered offenses; minor, non-repetitive drug offenses were insufficiently grave to warrant impeachment given the statute's strictly therapeutic, non-punitive approach....After Proposition 302, however, such crimes are not properly characterized as unserious, but rather as felonies for which drug treatment is offered in the first instance, with incarceration allowed as an adjunct to probation or as a punitive sanction in the circumstances set forth statutorily. Failure or refusal to participate in treatment can now result in revocation of probation and consequent imprisonment, and mandatory probation is inapplicable if a defendant refuses drug treatment or rejects probation. A.R.S. § 13-901.01(G), (H)(2)-(3). This is a dramatic departure from the strictly therapeutic regime that was in place when Martin was decided.

The court then didn't answer the question of whether the trial court should have deemed the defendant's conviction admissible under Arizona Rule of Evidence 609(a)(1), finding that, even if it did, its admission constituted harmless error. But it seems clear to me that a first-time conviction of personal possession or use of controlled substances or drug paraphernalia is not a crime punishable by death or imprisonment in excess of one year Arizona Rule of Evidence 609(a)(1). Instead, if an individual commits such an offense and then commits a parole violation or act leading to parole being revoked, then the individual can be sentence to imprisonment in excess of one year. In the absence of this latter act, however, I don't see how Arizona Rule of Evidence 609(a)(1) could apply.

-CM

He Ain't Heavy, He's My Brother: Court Of Appeals Of Minnesota Concludes Jurors Would Have Ignored Brother's Character Testimony In Mercy Rule Appeal

Like its federal counterpart, Minnesota Rule of Evidence 404(a)(1) 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:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same....

In its recent opinion in State v. Pak, 2010 WL 3304693 (Minn.App. 2010), the Court of Appeals of Minnesota correctly found that the trial court erred in failing to admit evidence under this so-called "mercy rule," but I feel like it went too far in finding this error to be harmless.

In Pak, Henry Hyunchoon Pak was convicted of assault and emergency-call-interference. Prior to trial, Pak's counsel informed the trial court that he intended to call Pak's brother as a character witness, and the following colloquy ensued:

THE COURT: Character witnesses are usually not admissible in criminal cases. I don't know [what] the purpose of character witnesses would be, his character is not in dispute, is it? Do you [the prosecutor] intend to offer evidence as to his character?

THE PROSECUTOR: I have no character evidence, Judge.

THE COURT: So-

DEFENSE COUNSEL: That's fine then.

THE COURT: Those witnesses are not appropriate, all right? Step off and we'll get the jury up here....

Pak's counsel did not ask to make an offer of proof about the specifics of the brother's testimony, and the court proceeded immediately into jury selection.

After he was convicted, Pak appealed, claiming, inter alia, that the trial court by failing to allow him to introduce character testimony by his brother. In response, the court noted that, pursuant to Minnesota Rule of Evidence 103(a)(2),

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Ordinarily, then, Pak's counsel would not have preserved this issue for appellate review because he failed to make an offer of proof, but the Court of Appeals found that such an offer was not required in Pak's case because it was apparent from the context of the above colloquy that the brother intended to offer testimony about Pak's good character.

The court then agreed with Pak that the trial court erred by failing to allow him to admit his brother's character evidence but found the error to be harmless. The second reason the court gave for this conclusion was that the evidence in the case otherwise clearly supported a finding that Pak was guilty. I have no problem with this conclusion. I do, though, have a problem with the court's first conclusion, which was that

Had the brother testified, the district court would have properly limited his testimony to his personal opinion of [Pak] and his impression of [Pak]'s reputation, and the court would not have permitted him to recount specific instances of conduct....Additionally, the court would have instructed the jury that in weighing the testimony, the jury could consider the witness's relationship to the defendant, interest in the outcome of the case, and "any other factors that bear on believability and weight."...We are persuaded beyond a reasonable doubt that the jury would have given little, if any, weight to the brother's testimony.

Really? This just seems like overkill to me. I can understand that the court would be a bit skeptical that the jury would give much weight to character evidence rendered by the defendant's brother. But I don't see how it could be persuaded beyond a reasonable doubt that the jury would give little to no weight to the brother's testimony. Sure, the brother would be biased on his brother's behalf, but so would almost any character witness called on behalf of a party. And, at least the brother ostensibly knew Pak his whole life and could provide valuable insights into his character. I can understand the court finding that this evidence would not be enough to tip the scales of justice given the other evidence in this case. But did it really need to conclude beyond reasonable doubt that your average juror would completely or almost completely disregard what a brother says about his brother's character?

-CM

It Was(n't) A Privilege?: Eastern District Of Wisconsin Finds Rule 408 Didn't Create A Privilege

Federal Rule of Evidence 408 states:

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

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

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

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

So, does Rule 408 merely deem evidence of settlement negotiations inadmissible at trial (when offered for certain purposes), or does it create an evidentiary privilege protecting such evidence? According to the recent opinion of the United States District Court for the Eastern District of Wisconsin in Thermal Design, Inc. v. Guardian Bldg. Products, Inc., 2010 3238921 (E.D. Wis. 2010), Rule 408 does not create a privilege, but you'd be hard pressed to explain why the court reached this conclusion.

The opinion in Guardian Building Products did not provide any facts, but it did indicate that Guardian brought a motion to compel production of a settlement agreement entered into between Thermal Design and the American Society of Heating, Refrigerating and Air-Conditioning Engineers. In response, "Thermal Design object[ed] that the settlement agreement [wa]s confidential." The United States District Court for the Eastern District of Wisconsin, however, found that "Thermal Design's disclosure of the settlement agreement would be subject to the protective order entered in this case" and that "[m]ost cases find that a settlement agreement is discoverable despite a confidential designation, especially when there is a protective order in place to prevent unauthorized disclosure."

In turn, Thermal Design cited an opinion of the United States District Court for the Northern District of Illinois, which "refus[ed] to order the disclosure of documents related to settlement discussions because of the 'public policy regarding confidentiality during settlement negotiations' embodied in Fed.R.Evid. 408." The court again turned this argument aside, finding that this opinion was "distinguishable because it d[id] not appear that the disclosure was protected by a protective order."

Moreover, the court found that 

the use of Rule 408, a rule of evidence, to prohibit the disclosure of settlement documents during the discovery process is questionable. In re Subpoena Issued to Commodity Futures Trading Com'n, 370 F.Supp.2d 201, 211 (D.D.C.2005) ("Congress clearly enacted [Fed.R.Evid, 408] to promote the settlement of disputes outside the judicial process. However, it is equally plain that Congress chose to promote this goal through the limits on the admissibility of settlement material rather than limits on their discoverability") (emphases in original). Put simply, there is no controlling case in the Seventh Circuit, but the Court agrees with the cases which find that there is no federal privilege preventing the discovery of settlement agreements and related documents. In re Subpoena, 370 F.Supp.2d at 212 (declining to recognize federal settlement privilege); Id. at 209 n. 9, 11 (collecting cases finding for and against privilege); Tyco, 253 F.R.D. at 522.

This seems like a pretty weak conclusion to me. According to the court, some courts have found that Rule 408 creates a privilege, and some courts have found that it does not. The court then sided with the latter set of courts because....well I'm not sure. The court gave no reason. I'm also not sure that I buy the reasoning of the United States District Court for the District of Columbia in In re Subpoena Issued to Commodity Futures Trading Com'n, which found that Rule 408 "on its face contemplates that settlement documents may be used for several purposes at trial, making it unlikely that Congress anticipated that discovery into such documents would be impermissible." Evidentiary privileges also contemplate that privileged documents may be used for several purposes at trial. For example, the attorney-client privilege contemplates that privileged communications can be used to settle disputes between attorney and client at trial.

I haven't done enough research on the issue to be able to conclude that Rule 408 did or did not create a privilege, but it seems to me that the United States District Court for the Eastern District of Wisconsin didn't do enough research either or at least did not explain the findings of that research in its opinion.

-CM

And No Religion Too: Fourth Circuit Fails To Find Religious Impeachment Constitutes Plain Error

Federal Rule of Evidence 610 provides that

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

At the start of the government's cross-examination of a criminal defendant, the following exchange takes place:

The Government: Mr. Munir, you swore on the Bible. Are you a Christian?

Defendant: I'm Islam, but I speak a lot of the Bible too.

After the defendant is convicted, he appeals, claiming, inter alia, that this question violated Federal Rule of Evidence 610, and the government responds that the question was designed to ensure that the defendant took his oath seriously, not to impeach his credibility per se. How should the court rule? According to the recent opinion of the Fourth Circuit in United States v. Anwari, 2010 WL 3262224 (4th Cir. 2010), the court should rule in favor of the government, at least if the defendant did not object to the question.

In Anwari, the facts were as stated above, with the defendant failing to object to the government's question as required by Federal Rule of Evidence 103(a)(2). This meant that the Fourth Circuit could only reverse the defendant's conviction for plain error under Federal Rule of Evidence 103(d). And this was something that the court could not do, despite noting that the Second Circuit had deemed similar interrogation improper in its opinion in United States v. Kalaydjian, 784 F.2d 53 (2d Cir.1986).

The Second Circuit acknowledged that the defendant might have been successful on appeal if he objected and preserved the issue for appellate review but found that

because the Government only mentioned Anwari's religion once, and that because there is no Fourth Circuit case on point, [the defendant] cannot demonstrate that allowing the question was plainly erroneous. Moreover, again, the evidence against [the defendant] was ample, and the Government's isolated question, even if we assume it to have been erroneous, did not rise to the level of being so prejudicial as to affect the integrity of the trial.

-CM

There Will Be Blood: Ninth Circuit Case Raises Question Of Whether Biblical Passages Constitute Extraneous Prejudicial Information Under Rule 606(b)

Federal Rule of Evidence 606(b) provides that

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

So, let's say that a defendant is on trial for murder and during the sentencing phase of trial a juror studies the Bible, finds Genesis 9:6, which states that "[w]ho so sheddeth man's blood by man shall his blood be shed," and reads that passage to other jurors. After the jury sentences the defendant to death, can a juror impeach the verdict based upon this (mis)conduct? According to the recent opinion of the Ninth Circuit in Crittenden v. Ayres, 2010 WL 3274506 (9th Cir. 2010), the answer is "maybe," but the sentence won't be overturned.

The facts in Ayres were as stated above, with the defendant eventually making his allegation to the Ninth Circuit is a federal habeas petition. The question which it seemed that the court had to address was whether the Biblical passage constituted extraneous prejudicial information, which is generally defined as information not admitted into evidence which bears on a fact at issue. The Ninth Circuit noted that courts had split on this issue, with the Eleventh Circuit finding in McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir.2005), that Biblical passages constitute extraneous prejudicial information but the Fourth Circuit finding in Robinson v. Polk, 438 F.3d 350, 363 (4th Cir.2006), that biblical passages do not bear on facts at issue in a case and so are not "extraneous prejudicial information." 

The Ninth Circuit, however, found that it did not need to revolve this split because even if the Biblical passage was extraneous prejudicial information, the juror's mention of it to other jurors was not sufficient to order a new sentencing phase of trial based upon its prior opinion in Fields v. Brown, 431 F.3d 1186 (9th Cir.2005). According to the court,

Our opinion in Fields, in which we also considered a claim of Bible-related juror misconduct, forecloses Crittenden's claim that Clark's mention of Genesis 9:6 prejudiced him. In Fields, the jury's discussion of biblical passages was far more extensive, but we nonetheless concluded, reviewing the matter de novo, that there was no prejudice. The foreperson there "checked the Bible and...made notes 'for' and 'against' imposition of the death penalty which he brought to the deliberations the next day."...His notes were passed around and the religious material "discussed by some jurors."...By contrast, nothing "but the briefest mention of the Bible verse took place" during penalty phase deliberations in [defendant]'s trial. As the district court found after ordering an evidentiary hearing, the only juror who recalled any mention of the biblical passage recalled that there was no discussion of it "except for a possible statement regarding the verse's irrelevance to the case." Moreover, the passage itself was innocuous compared to the contents of the foreperson's note in Fields, which quoted four passages besides Genesis 9:6, including the "eye for eye" maxim and Romans 13:1-5,...which has been understood as cloaking the "State with God's authority...."

I think that these are both pretty interesting questions, but I will only address the first one in this post. My inclination is to believe that Biblical passages are extraneous prejudicial information and that the narrow focus upon Biblical passages not bearing on facts at issue by the Fourth Circuit is misguided. Rather, I would contend that information which could cause jurors not to focus on facts at issue should constitute extraneous prejudicial information. In other words, if jurors followed Genesis 9:6, they would sentence the defendant to death based upon that passage rather than based upon the facts of the case.

-CM

Instant Recall: Supreme Court Of California Finds Statement Made Three Months After Event Qualified As Recorded Recollection

Like Federal Rule of Evidence 803(5), California Evidence Code Section 1237 provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made

(i) by the witness himself or under his direction or

(ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

So, when is the fact recorded fresh in the witness' memory? Seconds later? Minutes later? Hours? Weeks? Months? Years? According to the recent opinion of the Supreme Court of California in People v. Cowan, 2010 WL 3034725 (Cal. 2010), even facts recorded years after they occurred can qualify as recorded recollections under California Evidence Code Section 1237. I disagree.

In Cowan, Robert Cowan was convicted of the first degree murders of Clifford and Alma Merck.

On direct examination during the prosecution's guilt phase case-in-chief, Danny Phinney testified that on a date and time that he could not independently recall, he met defendant at an auto parts store. Defendant owed Phinney money. Phinney went to defendant's brother's house, where he looked at some items, including two jewelry boxes, jewelry, coins, a tooled leather wallet containing a driver's license bearing the name Mirck or Merck and a birth date in the early 1900's, and two Social Security checks with the name Merck on them. Phinney testified that he "would not have remembered any of" these facts had he "not seen the paperwork"-i.e., a transcript of an interview he had given police in December 1984 about the events described above. However, he remembered "out of my mind" that a 1922 silver dollar was among the coins he saw at the house.

Over defendant's hearsay objection, Detective Diederich testified that he interviewed Phinney on December 21, 1984, while Phinney was in custody following his arrest in October. The interview was tape-recorded and transcribed. During the interview, Phinney stated that the meeting with defendant at the auto parts store occurred during the first week of September 1984. Phinney also described various items of property he had seen at defendant's brother's house, including coins (one bearing the date 1922), costume jewelry, two government-type checks totaling about $600 made out to someone named Merck with an address on McClean Street, and a leather wallet with a driver's license and some other cards inside. After the interview, Phinney pointed out for Diederich the house in which he had seen the items. 

After he was convicted, Cowan appealed, claiming, inter alia, that the trial court should have deemed Phinney's 1984 statement inadmissible because it was made three months after Phinney's alleged meeting with him, meaning that the statement was not made while the meeting was fresh in his memory under California Evidence Code Section 1237. The Supreme Court of California disagreed, finding that Cowan failed to preserve the issue for appellate review and that, in any event,

Defendant points to no authority for the proposition that such a lapse of time between the events recorded and the time of the recording renders a past statement inadmissible under Evidence Code section 1237, and we are aware of none. (Cf. People v. Miller, supra, 46 Cal.App.4th at p. 422 [recorded statement made at least three weeks after recorded events occurred was admissible under Evid.Code, § 1237].) Indeed, federal courts have admitted statements made after even greater lapses of time under the federal counterpart to section 1237, Federal Rule of Evidence 803(5). (United States v. Patterson (9th Cir.1982) 678 F.2d 774, 778-779 [10 months]; United States v. Williams (6th Cir.1978) 571 F.2d 344, 348-350 [six months]; United States v. Senak (7th Cir.1975) 527 F.2d 129, 139-142 [three years].) These courts reason that district courts should have the flexibility to consider all pertinent circumstances in determining whether the matter was fresh in the witness's memory when the statement was made. (United States v. Patterson, supra, 678 F.2d at p. 779.) We see no reason why a similar approach should not govern under Evidence Code section 1237. Here, Phinney's statement to Diederich describing the items he saw and when he saw them was fairly detailed, and he had sufficient recollection to lead Diederich to the house in which he had seen the items. Accordingly, there was a sufficient basis for concluding the events were reasonably fresh in Phinney's mind at the time he spoke to Diederich.

But are courts correct in this regard? The Advisory Committee's Note to Federal Rule of Evidence 803(5) indicates that "[t]he guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them. Owens v. State, 67 Md. 307, 316, 10 A. 210, 212 (1887)." Owens was a voter fraud case, and the recorded recollections made in that case were checks or marks "made contemporaneously with the transaction to which they relate," i.e., made "during the progress of the election."

The Advisory Committee's Note also indicates that "[n]o attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate." Appellate courts have used this sentence to find that trial courts did not err in admitting recorded recollections made well after an event. For instance, in the Patterson case listed above, the Ninth Circuit found no problem with the district court's admission of a recorded recollection made 10 months after an event because

Broad discretion for the trial judge is clearly intended under Fed.R.Evid. 803(5), as the advisory committee notes indicate: "No attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate."

I understand the finding that a trial judge has broad discretion. In my mind, though, that discretion only extends to recorded recollections made a few days after events. The word "contemporaneous" generally means "[o]riginating, existing, or happening during the same period of time." I could see a court finding that a recorded recollection made a few days after an event was made during the same period of time as the event. But I don't see how the term "contemporaneous" could be stretched to include recorded recollections made weeks, months, or event years after the event.

-CM

Striking Out: District Of Arizona Finds Rule 11(f) Motion Inappropriate Vehicle For Evidentiary Objection

Federal Rule of Civil Procedure 11(f) provides that

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

So, let's say that a plaintiff includes factual allegations in a complaint which the defendant believes are based upon inadmissible evidence. Can the defendant move to strike these allegations under Rule 11(f)? According to the recent opinion of the United States District Court for the District of Arizona in TriQuint Semiconductor, Inc. v. Avago Technologies, Ltd., 2010 WL 3034880 (D. Ariz. 2010), the answer is "no."

In Avago, both TriQuint Semiconductor, Inc. and Avago  

had concerns about patent infringement and misappropriation of trade secrets....By spring of 2009, Plaintiff and Defendants entered into several discussions designed to settle the dispute....To facilitate these discussions, the parties entered into a Non-Disclosure Agreement ("NDA")....The NDA required both parties to not reveal any of the information obtained during the settlement discussions to third parties.

These discussions, however, were ineffective, and TriQuint later filed a complaint against Avago for patent infringement.

On July 23, 2009, Plaintiff filed a complaint against Defendants for patent infringement. Avago thereafter, inter alia, moved to strike paragraphs 45-49 of TriQuint's proposed amended complaint under Federal Rule of Civil Procedure 11(f) because they were based upon events occurred during settlement negotiations and evidence relating to such negotiations is inadmissible under Federal Rule of Evidence 408.

The United States District Court for the District of Arizona, however, denied this motion, finding that "Rule 12(f) governs striking material from pleadings, not evidence." Accordingly,

Disputes over Rule 408 should be resolved as evidentiary matters with motions in limine rather than prematurely in Rule 12(f) motions. Peace Software, Inc. v. Hawaiian Elec. Co., Inc., 2009 WL 3923350, *8-9 (D.Haw.2009) (noting that the court typically reviews only the face of the complaint to determine validity of Rule 12(f) motions and declining to strike allegations of a complaint under Rule 408 and an alleged NDA); see BPI Energy, Inc. v. IEC, No. CV-09-00408, 2007 WL 3355363, * 1 (S.D.Ill.2007) (denying motion to strike under a NDA and Rule 408, and holding “[t]he Second Amended Complaint is not evidence; rather it sets forth allegations. Therefore, on its face, Rule 408 is not applicable at this juncture.”); Steak Umm Co. v. Steak ‘em UP, Inc., No. CV-09-2857, 2009 WL 3540786, *3 (E.D.Pa.2009) (“[Rule 408] is a rule of evidence and does not govern pleadings;” denying motion where reference to settlement discussions may be potentially relevant).

-CM

Passion and Prejudice: Divided S.C. Supreme Court Allows Dramatic Funeral Footage in Sentencing Phase

Members of the Bixby family in Abbeville County threatened violence when South Carolina officials informed them of plans to "take advantage of a right of way ... across the Bixbys' property" to expand South Carolina Route 72.  Steven V. Bixby, son of the property owners, informed one official "that he was from New Hampshire and he said that, you know, their motto was something like, you know, if I can't --- I'd rather be dead if I can't be free, something like that."  Days later, he said he would "blow their mother f****** heads off if they step one step onto [his] parent's property" (asterisks in original).  He made good on his threats the next day, killing two law officers on his parents' land, and was convicted of murder and sentenced to death.  State v. Bixby, --- S.E.2d ----, 2010 WL 3219290, at *1-*3 (S.C. Aug. 16, 2010) [pin cites refer to Westlaw pagination]; see also Bob Moser, "The Abbeville Horror" (Southern Poverty Law Center "Intelligence Report," Spring 2004).

The appeal raised several interesting issues, including questions concerning the proper scope of voir dire in a capital case, the relevance of proffered evidence excluded by the trial judge concerning the family's prior experience with property disputes, and how ignorance of the proper location of South Carolina records concerning highway rights of way can disqualify a witness from testifying.  I recommend the entire opinion.  This post, however, concerns only the admission during the penalty phase of a videorecording of the funeral of a victim.

After the jury convicted Bixby of the murders, the court held a penalty phase proceeding to determine whether to impose the death penalty.  During the hearing, "it admitted a seven minute video showing portions of [one victim's] funeral."

The video at issue here contained footage that showed the folding of an American flag over the closed coffin; the playing of "Taps" on a trumpet; footage of mourners; and a recording of a fictional 911 call in which Deputy Wilson is given permission to "return home," a tradition at law enforcement funerals.  Over Appellant's objection, the trial judge concluded that the video was admissible because it went to the question of the victim's uniqueness, showed the harm committed by Appellant, and showed the impact of the victim's death on his family and the community.

Bixby, at *13.  The Supreme Court of South Carolina affirmed the conviction, voting 3-2 that the evidence was properly admitted.  Bixby offered two reasons that the evidence should have been rejected.  First, S.C. Stat. 16-3-25(C)(1) instructs the supreme court to consider whether a "sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor."  Second, S.C. Rule of Evidence 403 (which is identical to Fed. R. Evid. 403) provides that "relevant ... evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

The majority affirmed the death sentence with the following explanation:

Turning to Appellant's argument, ... this Court vacated [a different murderer's] death sentence holding that a staged funeral procession in which the solicitor draped a large, black shroud over a baby crib and dramatically wheeled it out of the courtroom introduced an arbitrary factor into the sentencing phase of the defendant's trial.  The instant matter is distinguishable from [the crib case] for one major reason: the video showed events that actually took place, whereas the [crib] funeral was a staged dramatization. ... A staged funeral procession in which a solicitor dramatically and in person drapes a shroud over a baby's crib has more of a tendency to elicit passion and prejudice than a videotape showing excerpts from a victim's actual funeral.

Turning to the State's argument, a State may conclude that victim impact evidence "is relevant to the jury's decision as to whether or not the death penalty should be imposed."  Payne, 501 U.S. at 827.  Victim impact evidence demonstrates "the loss to the victim's family and to society which has resulted from the [victim]'s homicide."  Id. at 822.  We find the videotape at issue was victim impact evidence because it showed the traditional trappings of a law enforcement officer's funeral, demonstrating the general loss suffered by society.  Additionally, the video showed footage of actual mourners, displaying for the jury the specific impact of the murder on particular members of society.  Thus, we hold the video was victim impact evidence pursuant to Payne.

Nonetheless, this evidence is subject to Rule 403, ....  We find the probative value of the videotape was not substantially outweighed by the danger of unfair prejudice.  As the trial judge ruled, the videotape was relevant to show the uniqueness of the victim, the harm committed by Appellant, and the impact of the victim's death on his family and society.

Additionally, deference is due to the trial court's admission of the evidence.  After all, "[a] trial judge has considerable latitude in ruling on the admissibility of evidence and his ruling will not be disturbed absent a showing of probable prejudice."  Ard, 332 S.C. at 378, 505 S.E.2d at 332.  In our view, it is not probable that Appellant was prejudiced by the State's presentation of the videotape at issue to the jury.

Bixby, at *14.  Writing for himself and another member of the court, Justice Pleicones dissented over the admission of the funeral video (along with the voir dire issue mentioned in passing above):

In my opinion, the video did not demonstrate anything about the victim's uniqueness, or the impact of his loss on his family or friends or on community groups with which he had been involved.  Instead, the video contains a staged 911 call which, we are informed, is standard at law enforcement funerals and thus not related to Deputy Wilson as an individual.  Moreover, video of unidentified mourners does not demonstrate the impact of Deputy Wilson's death on his family or friends, ... but rather reflects the affect of unidentified persons attending the funeral.  Payne evidence is intended to show the lasting consequences of victim's death, while a funeral video merely preserves the visible expressions of grief exhibited by persons attending the service.

Under Payne, the jury is constitutionally permitted to consider "the specific harm caused by the crime in question" through the introduction of "evidence about the victim and about the impact of the murder on the victim's family."  In my view, Payne evidence must be presented through testimony of those who have suffered as a result of the victim's death.  Cf. Humphries v. State, 351 S.C. 362, 570 S.E.2d 160 (2002) (Payne permits victim impact evidence in the form of testimony).  I find the video tape, including the staged 911 call, did not constitute Payne evidence.

Unlike the majority, I find appellant suffered prejudice as the result of this improper evidence.  I venture to say there are few individuals who could view this video without themselves being moved both by sympathy for the mourners and by outrage at the person who inflicted this suffering.  Even if appellant did not suffer prejudice, I would hold the admission of this video violated the statutory prohibition of a death sentence "imposed under the influence of passion, prejudice, or any other arbitrary factor," S.C. Code Ann. § 16-3-25(C)(1) (2003), and thus requires that we reverse the sentencing proceeding.

Id. at *19.  This sad case has spawned many legal arguments.  Those interested in the scope of offenses subject to capital punishment should see State v. Bixby, 373 S.C. 74, 644 S.E.2d 54 (S.C. 2007) (holding, over dissent of chief justice, that state could not seek death sentence against Rita Bixby, Steven's mother, because "the Legislature has not shown an intent to make one charged with accessory before the fact to murder death penalty-eligible").

Finally, I'd like to thank Colin once again for inviting me to guest blog during the past two weeks.  It has been a pleasure, and I hope to post here again in the future.

  - Ben Trachtenberg

Can I Get A Witness?: Second Circuit Finds Hearsay Declarants Not Covered By Jencks Act

18 U.S.C. Section 3500(b), part of the Jencks Act, provides that

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

Meanwhile, Federal Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

And, Federal Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

So, let's say that two defendants have several alleged co-conspirators. And let's say that that the prosecution does not plan to call these alleged co-conspirators as witnesses at trial but does plan to introduce their statements though other witnesses as co-conspirator admissions. Are the statements of these alleged co-conspirators covered by the Jencks Act because Rule 806 treats such declarants as witnesses? According to the recent opinion of the Second Circuit in United States v. Shyne, 2010 WL 3035519 (2nd Cir. 2010), the answer is "no."

In Shyne, the facts were as stated above, with the prosecution claiming that the alleged co-conspirators were not witnesses and thus not covered by the Jencks Act. Thus, the prosecution

provided defense counsel a three page letter that detailed what the district court characterized as impeachment material for those five coconspirators. The government did not, however, turn over to defense counsel a comprehensive set of notes from its proffer sessions with the non-testifying co-conspirators.

After they were convicted, the defendants appealed, claiming, inter alia, that "because Rule 806 treats a declarant as if he is a testifying witness for the purposes of attacking his credibility, the declarant must also be considered a witness under the Jencks Act." The Second Circuit noted that this was an issue of first impression for it but also noted that the D.C. Circuit had rejected a similar argument, finding that "merely because one set of rules...makes two distinct items equivalent for some specific purpose, it does not follow that they are equivalent for all related purposes."

The Second Circuit agreed with this holding, concluding that

The defendants' argument that because a non-testifying declarant's statement comes into evidence against them somehow converts that declarant into the equivalent of a witness who has appeared and testified under oath is the proverbial comparison of apples to oranges. The production of materials in possession of the Government that a defendant may use to take advantage of the opportunity to impeach a declarant under Rule 806 and the Government's obligation to produce such materials of which its agents have knowledge do not have their roots in the Jencks Act. Rather they arise under due process obligations articulated in Brady and Giglio, obligations with which the Government complied by issuing its letter describing the declarants' various foibles including the fact that one of the declarants lied during his proffer session....Although, for impeachment purposes, Rule 806 treats a declarant speaking in furtherance of the conspiracy as if he were a witness, we do not believe that also means that a declarant whose statement is being repeated and a witness who gives live testimony are equal under the Jencks Act. To hold otherwise would be contrary to the express language of the Jencks Act which states that no disclosure is warranted until "said witness has testified on direct examination in the trial of the case."...Appellants are unable to point to any cases to the contrary.

-CM

Identity Crisis: Oregon Court Admits Prior Crimes Evidence to Show Identity

The Court of Appeals of Oregon recently distinguished, for purposes of admitting evidence of prior crimes committed by a defendant, between the defenses of "The alleged crime never happened" and "You've charged the wrong person."  If a defendant asserts that the alleged crime never occurred, then evidence of similar prior acts by the defendant is inadmissible "propensity" evidence.  But if the defendant argues that someone other than the defendant did the deed, then evidence of the defendant's prior conduct may be admitted to prove "identity" of the perpetrator.

In State v. Pitt, --- P.3d ----, 2010 WL 3239406 (Or. App. Aug. 18, 2010), the prosecution charged Douglas Pitt with child molestation.  At trial, the jury heard "evidence of misconduct not charged in [the] indictment, including his earlier sexual abuse of the victim and her same-aged cousin."  The defendant appealed his conviction, arguing that the evidence was improperly admitted.  The appeals court affirmed, relying in part on the nature of Pitt's defense at trial.

Pursuant to Oregon Evidence Code 404(3),

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The rule is similar to Federal Rule of Evidence 404(b).

As summarized by defense counsel, Pitt's "defense is and has always been that this didn't happen, that he didn't do it, if it did happen, it wasn't him.  And so the question of intent is really not at issue in this case."  The court disagreed, stating that had Pitt relied solely on the "this didn't happen" theory, then his prior acts would have been inadmissible.  Because, however, he speculated (among other theories) "that the victim's initial identification of her abuser as 'Doug' was ambiguous, because Doug is not only defendant's name but also the name of one of the victim's relatives," Pitt placed the identity of the abuser into dispute, converting Pitt's prior abuse of the victim and her cousin from improper propensity evidence into evidence "admissible for other purposes, such as proof of ... intent."

The court carefully distinguished cases like Pitt's from those in which defendants advance "no argument that someone else had perpetrated acts of abuse against the victims."  In such cases, prior bad acts by defendants would not be admissible.  Pitt, at n.2.  Here, the court concluded "that, because one of defendant's theories was that someone else was the perpetrator of any abuse of the victim, the uncharged misconduct evidence was relevant to a contested fact, namely, the accuracy of the victim's identification of her abuser."

  - Ben Trachtenberg

Completely Infeffective: Court Of Appeals Of Indiana Uses Rule Of Completeness To Reject Ineffective Assistance Of Counsel Claim

Like its federal counterpart, Indiana 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 at that time the introduction of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it.

What this means is this whenever a party introduces part of a writing or recorded statement that helps his case, there will usually be another part of that writing/recorded statement or another writing/recorded statement that hurts his case. And what this means is that a party will likely be unable to prove a claim of ineffective assistance of counsel when his trial attorney fails to introduce a writing/recorded statement that is both helpful and hurtful to his case, which is what happened in the recent opinion of the Court of Appeals of Indiana in Chenoweth v. State, 2010 WL 3011960 (Ind.App. 2010).

In Chenoweth, James Chenoweth was charged with two counts of Class A felony child molesting. Before trial, there was a "Protected Person's Statute" ("PPS") hearing, during which (1) the alleged victim apparently merely testified that Chenoweth touched the outside with her vagina with his finger, and (2) the alleged victim's mother apparently testified that she did not tell two individuals that she saw the victim inappropriately playing with dolls. At trial, the alleged victim and her mother provided testimony that was apparently inconsistent with their testimony at the PPS hearing. At trial, however, defense counsel did not introduce the relevant portions of the transcript of the PPS hearing, and Chenoweth was eventually convicted of both counts of child molesting.

Chenoweth thereafter appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial attorney failed to introduce these portions of the transcript of the PPS hearing. The Court of Appeals of Indiana disagreed, finding that if Chenoweth's trial counsel would have introduced these favorable portions of the transcript, it would have opened the door for the admission of several other unfavorable portions of the transcript pursuant to Indiana Rule of Evidence 106. Specifically, the court noted that these unfavorable portions would have revealed that

(1) the victim was in fear of Chenoweth; (2) the victim had to sit on the prosecutor's lap during a portion of the questioning; and (3) a child psychologist testified that the victim described several sexual acts that involved her and Chenoweth. Additionally, trial counsel would have revealed that the victim now was afraid to enter bathrooms because of sexual acts that Chenoweth committed with her in his bathroom. Furthermore, trial counsel would have revealed the child psychologist's testimony that post-traumatic distress caused the victim's change of testimony.

Thus, the court found that "[g]iven the nature of these portions of the victim's PPS hearing testimony, trial counsel's decision to forgo the use of the transcript does not constitute ineffective assistance of counsel."

-CM

Domestic Abuse Exception Allows Prior Bad Acts Evidence Into Minnesota Court

Minnesota Rule of Evidence 404(b) restricts the admission of evidence concerning a party's prior bad acts.  The rule is similar to Federal Rule of Evidence 404(b).  In State v. Barnslater, --- N.W.2d ----, 2010 WL 3220020 (Minn. App. Aug. 17, 2010), the Minnesota Court of Appeals illustrated the importance of an exception to Rule 404 that applies to evidence of prior domestic abuse.

William Barnslater, convicted of "engaging in a pattern of harassing conduct" and of violating an order of protection concerning his former romantic partner (whose name is abbreviated in the opinion as "J.B."), argued on appeal that the trial court wrongly allowed the victim to testify about Barnslater's prior abuse of her and of her adult daughter.  In one incident described at trial, "Barnslater pushed J.B. to the floor, grabbed J.B.‘s daughter by the throat, and held J.B.‘s daughter so that her feet dangled above the floor. Based on this episode, Barnslater was convicted of fifth-degree domestic assault."  Barnslater, at 2-3 [pin cites refer to PDF of opinion].

Minn. Rule of Evid. 404(b) provides:

Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In a criminal prosecution, such evidence shall not be admitted unless (1) the prosecutor gives notice of its intent to admit the evidence consistent with the rules of criminal procedure; (2) the prosecutor clearly indicates what the evidence will be offered to prove; (3) the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence; (4) the evidence is relevant to the prosecutor’s case; and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant. ...

If the prior crime, wrong, or act was "similar conduct by the accused against the victim of domestic abuse, or against other family or household members," then the evidence is more easily admissible. Pursuant to Minn. Stat. § 634.20,

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. “Similar conduct” includes, but is not limited to, evidence of domestic abuse, violation of an order for protection ...; violation of a harassment restraining order ...; or [offenses involving stalking, harassment, and obscene telephone calls] ....

In State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004), the Supreme Court of Minnesota held that evidence admitted under Section 634.20 is admissible "without [the trial court] first determining that the evidence was clear and convincing."

Here, Barnslater was charged with engaging in a pattern of harassing conduct after he repeatedly bothered the victim, including calling her and her friends and even burgling her house.  Barnslater, at 3-4.  Because his prior conduct involved similar acts against J.B. and her daughter, the appeals court stated, "W]e need not address Barnslater's arguments that the notice and other requirements of Minn. R. Evid. 404(b) were not met."  Id. at 11 n.3.

The court explained that the availability of Section 634.20 depends on "whether the accused‘s underlying conduct constitutes domestic abuse ..., not on whether the particular offense ... charged" was a domestic abuse crime.  Id. at 8.  Accordingly, because the prosecution charged Barnslater with crimes against J.B., evidence of his prior domestic abuse of J.B. and her daughter was admissible regardless of what specific crime was charged in this case.

Note that the Federal Rules of Evidence contains rules similar to Section 634.20 concerning evidence of similar crimes in sexual assault cases and evidence of similar crimes in child molestation cases.  For a student comment advocating the adoption of rules similar to Minnesota's, see Sarah J. Lee, The Search for the Truth: Admitting Evidence of Prior Abuse in Cases of Domestic Violence, 20 U. Haw. L. Rev. 221, 240 (1998); see also Douglas E. Beloof & Joel Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims' Out of Court Statements as Substantive Evidence, 11 Colum. J. Gender & L. 1 (2002).

  - Ben Trachtenberg

Social Network: Court Of Appeals Of Ohio Finds Statement To Social Worker Covered By Rule 803(4)

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

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

So, does the exception only cover a statement made to a medical professional (or a statement made to a person with the intention that it be passed along to a medical professional), or does it also cover a statement made to a social worker? Most courts have found that Rule 803(4) covers statements made to social workers, which is what the Court of Appeals of Ohio, Ninth District, found in its recent opinion in State v. Evans, 2010 WL 2990871 (Ohio App. 9 Dist. 2010).

In Evans, Joseph Evans was indicted on three counts of rape of a minor under the age of thirteen and one count of pandering obscenity of a minor, M.E.

Beckwith-Laube, a licensed social worker since 1989, testified that she has worked as a social worker at Children's Hospital Children At Risk Evaluation ("C.A.R.E.") Center for the past thirteen years. She met with M.E. based on a referral from Children's Services and interviewed M.E. to obtain a history from her before M.E. was examined by the nurse practitioner. Upon completing the interview, Beckwith-Laube informed the nurse practitioner of M.E.'s history to aid the nurse in performing her medical examination. In order to avoid having to repeatedly interview M.E. as to the offenses, personnel from Akron Police Department, Children's Services, and Victim Assistance were able to observe the interview from another room.

After he was convicted, Evans appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial counsel failed to object to Beckwith-Laube's testimony, which consisted of inadmissible hearsay. The Court of Appeals of Ohio, Ninth District, disagreed, first finding that "trial counsel's failure to make objections is within the realm of trial tactics and does not establish ineffective assistance of counsel." Moreover, the court found that it had "previously recognized the testimony of social workers falls well within the non-hearsay provision outlined in Evid .R. 803(4)."

-CM 

Permanent Record: Middle School Fight Presented to Jury in Trial about Killing Committed Years Later

On July 2, 2005, Peter McGuane and Daniel McGuane, twin brothers, encountered Kelly Proctor, whom they disliked.  Like the twins, Proctor lived in Ayer, Massachusetts and was attending the town's Independence Day fireworks display.  After a verbal argument arose over a seemingly trivial matter, Peter slapped Proctor's face, whereupon Peter and Daniel beat Proctor to death despite the efforts of Proctor's girlfriend and another bystander to stop the beating.  Several witnesses said the twins, who are both over 6 feet tall, repeatedly kicked and beat Proctor, who was 5 foot 8, in the head as he lay on the ground.  Prosecutors charged the twins with manslaughter.

At trial, the McGuanes offered multiple theories of the case, suggesting that (1) Daniel's participation was justified as defense of another (i.e., Peter) and (2) Proctor's death was an accident.  See Com. v. McGuane, --- N.E.2d ----, 2010 WL 3171011 (Mass. Ct. App. Aug. 13, 2010); Mary E. Arata, "McGuane twins lose appeal of conviction," Nashoba Pub. Online (Aug. 13, 2010).  In addition, they objected based on Massachusetts Rule 404 to admission of evidence concerning prior bad acts.

The prosecution presented evidence of a middle school incident in which "Daniel grabbed the handle bars of a bike the victim was riding, and slapped him in the face" as well as "instances when the victim and the defendants 'trash talked' to each other, and the defendants called the victim a 'bitch.'"  McGuane, at *1 [pin cites are to the Westlaw pagination].

In addition to rejecting challenges to jury instructions beyond the scope of this post (but interesting enough to merit a dissent), the court held that Rule 404 did not bar the disputed evidence.  Rule 404 provides:

(a) Character Evidence Generally. 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 as follows:

    (1) Character of the Accused. In a criminal proceeding, the accused may offer evidence of a pertinent trait in reputation form only, and the prosecution may rebut the same.
    (2) Character of the Victim. In a criminal proceeding, in support of a claim of self-defense,
        (A) the accused may offer evidence known to the accused prior to the incident in question of the victim’s reputation for violence, of specific instances of the victim’s violent conduct, or of statements made by the victim that caused reasonable apprehension of violence on the part of the accused;
        (B) where the identity of the first aggressor is in dispute, the accused may offer evidence of specific incidents of violence allegedly initiated by the victim, or a third party acting in concert with or to assist the victim, whether known or unknown to the accused, and the prosecution may rebut the same in reputation form only.
    (3) Character of the Witness. Evidence of the character of a witness for truthfulness or untruthfulness, as provided in Sections 607, 608, and 609.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, nature of relationship, or absence of mistake or accident.

The court then recited authority from the Supreme Judicial Court construing the rule:

It is well established that the prosecution may not introduce evidence of the defendant's prior misconduct for the purpose of showing that he has a bad character or the propensity to commit the crime charged. See Mass. G. Evid. § 404(a) (2010). This evidence may be admissible if it is relevant for some other purpose. ... Mass. G. Evid. at § 404(b). Where the evidence is only marginally relevant, it should be excluded unless the probative value of the evidence outweighs the undue prejudice ‘that may flow from it.’ .... A judge's decision to admit such evidence is upheld unless there is clear error. ...

McGuane, at *4 (quoting Commonwealth v. Cruz, 456 Mass. 741, 751, 926 N.E.2d 142 (2010) (case cites within Cruz omitted)).  The court the applied the rule to Daniel's claim that the middle school slapping "incident occurred approximately six to eight years prior to the killing [and] was too remote in time, speculative, and prejudicial to be admissible."  Id.

There was no abuse of discretion. Here, the earlier incident between the defendant and the victim was relevant to explain what happened later, and was admissible because it was reasonably intertwined with the description of the events and presented a full picture of the events surrounding the killing. ... Moreover, there was evidence of ongoing animosity between the defendants and the victim-other incidents of verbal jousting between them, including the defendants calling the victim a “bitch.” The middle school incident was particularly relevant in this case, given that the defendants claimed that the victim's death occurred as the result of an accident. ...

Finally, any potential prejudice to Daniel caused by the admission of the evidence was mitigated by the limiting instructions contained in the final charge to the jury. The judge in this case, commendably sensitive to the potential for undue prejudice from the introduction of prior misconduct evidence, provided the jury with forceful limiting instructions at the close of the case.

Id.  The defendant's theory of the case made it easier for prosecutors to introduce evidence of his own prior bad acts toward the victim.

  - Ben Trachtenberg

My New Article -- Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence That They Rejected Favorable Plea Bargains

Today, I posted my new article, Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains, on SSRN. Here is the abstract:

Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions….” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence.

This article addresses the question of whether courts can consistently allow prosecutors to present defendants’ incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains. It concludes that courts cannot prevent defendants from presenting evidence that they rejected favorable plea bargains based upon Mezzanatto and that none of the arguments against admissibility hold water.  

-CM

Indiana Appeals Court to Psychologist: An Expert has an M.D., Unlike Thee

In a negligence action, plaintiff John Richmond alleged that he suffered back injuries and traumatic brain injury ("TBI") from a 2004 car accident.  To prove his claims concerning the TBI, he offered testimony from Sheridan McCabe, Ph.D., a psychologist who examined Richmond in 2006.  McCabe opined that (1) Richmond exhibits symptoms consistent with TBI, (2) Richmond did not exhibit such symptoms before the car accident, and (3) "it is my opinion that Mr. Richmond experienced a traumatic brain injury in the accident."  Bennett v. Richmond, --- N.E.2d ---, 2010 WL 3196193, at 3 (Ind. Ct. App. Aug. 13, 2010) [pin cites refer to opinion PDF].

The defendants (the driver of the truck that rear-ended Richmond and the company that employed the driver) appealed, arguing that McCabe's testimony should have been excluded by Indiana Rule of Evidence 702.  Distinguishing McCabe from medical doctors and others with "education or training relevant to determining the etiology of brain injuries," the court held that while McCabe could potentially testify about Richmond's medical condition (that is, his symptoms), "Dr. McCabe has not demonstrated that he is qualified to opine on causation in this case."  Bennett, at 8.  Concluding that absent evidence demonstrating that the accident was a but-for cause of Richmond's TBI, testimony about his symptoms was not relevant and therefore was inadmissible under Evidence Rule 402 ("Evidence which is not relevant is not admissible.").  Id. at 12.

Rule 702 provides:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

The court quoted a previous Indiana decision summarizing the holding of the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  Daubert construed Federal Rule of Evidence 702, which is quite similar to the analogous Indiana rule.  The Indiana court listed the following Daubert factors as useful in deciding whether to admit proffered expert testimony (while noting that the case is not binding in Indiana but is helpful):

(1) whether the theory or technique at issue can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the technique is generally accepted within the relevant scientific community.

Bennett, at 5 (quoting Shafer & Freeman Lakes Envtl. Conservation Corp. v. Stichnoth, 877 N.E.2d 475, 484 (Ind. Ct. App. 2007)).  Applying the Daubert factors and reviewing prior Indiana cases concerning TBI-related expert testimony, the court held as follows:

Dr. McCabe is not a medical doctor, but a psychologist. There was no showing that Dr. McCabe ever received any medical education or training or, in particular, any education or training relevant to determining the etiology of brain injuries. The evaluation of a brain injury, which is within Dr. McCabe's field of expertise, is distinct from the determination of the medical cause of a brain injury, which is generally exclusively within the purview of medical doctors. ... While specific degrees, certificates of training or membership in a professional organization are not required to give medical causation testimony, ... and a witness need not be licensed in order to assert an opinion in a given field, ... here, Dr. McCabe has not demonstrated that he is qualified to opine on causation in this case . ... Dr. McCabe testified only that, in his professional continuing education courses, he has “touched on subjects that relate to evaluation of traumatic brain injuries,” transcript at 311, and that he has received referrals from two Elkhart neurologists, id. at 69-70. We hold that the trial court abused its discretion when it permitted Dr. McCabe to testify that Richmond sustained a brain injury as a result of the accident with Bennett.

Bennett, at 8 (quotation marks, citations to authority, and footnote omitted).  Although the court's holding might suggest that only a witness with "M.D." following her name may opine as to the origin of a plaintiff's TBI, the court disclaimed that position:

To clarify, while medical doctors will obviously be the best candidates to opine on issues of medical causation, we do not hold that a psychologist is per se unqualified to give such testimony. Under Evidence Rule 702, our evaluation on appeal turns on the proffered expert's knowledge, skill, experience, training, or education. A witness's academic suffix is of course a relevant consideration, but it is not dispositive.

Id. at 8 n.3.  The analysis in Bennett, however, will likely cause plaintiffs' attorneys in subsequent Indiana trials (including, perhaps, a new trial in this case---the appeals court found the erroneous admission of McCabe's testimony was grounds to remand for a new trial) to seek experts with formal credentials that will impress judges.

  - Ben Trachtenberg