EvidenceProf Blog

You're Out Of Your Element: Eighth Circuit Finds Statement Concerning Matter Outside Scope Of Employment Not An Employee Admission

Federal Rule of Evidence 801(d)(2)(D) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship....

The problem for the plaintiffs in the recent opinion of the Eighth Circuit in E.E.O.C. v. Con-Way Freight, Inc., 2010 WL 3655999 (8th Cir. 2010), was that while they had a statement by an employee of the defendant which potentially helped their case, they could not prove that the statement concerned a matter within the scope of his employment.

In Con-Way Freight,

The EEOC filed [an] action claiming that Con-Way failed to hire [Roberta] Hollins because of her race in violation of Title VII of the Civil Rights Act of 1964....After the court allowed Ms. Hollins to intervene, she added claims of race discrimination in violation of 42 U.S.C. § 1981 and Missouri state law.

Con-Way thereafter brought a motion for summary judgment dismissing the complaint, claiming, inter alia, that Hollins would not have been hired regardless of any discriminatory animus because she has two misdemeanor theft convictions and Con-Way has a policy of automatically disqualifying applicants with theft -related convictions.

The plaintiffs countered that when Hollins interviewed with Con-Way's Poplar Bluff branch service center manager, Kenneth Gaffney, she told him about her prior convictions and he responded that she should not worry about the misdemeanor convictions because Con-Way "won't go back that far" anyway. The plaintiffs claimed that this statement established that Con-Way did not have such a policy. The district court, however, deemed this statement inadmissible hearsay and granted Con-Way's motion for summary judgment.

The plaintiffs thereafter appealed, claiming, inter alia, that Gaffney's statement constituted an employee admission under Federal Rule of Evidence 801(d)(2)(D). The Eighth Circuit disagreed, finding that

We have held that party admissions must concern a matter within the scope of employment of the person making the statement....Here, Mr. Gaffney testified that he was not involved in the criminal background checks and was not given specific reasons when the personnel department disqualified an applicant; we cannot, therefore, say that the district court abused its discretion in concluding that Mr. Gaffney's comment was outside the scope of his employment. Even if the statement were admissible, moreover, the same lack of knowledge that rendered it inadmissible would render it insufficient to allow a reasonable jury to infer that Con-Way did not have a policy of automatically disqualifying applicants with theft-related convictions.

-CM

Empty Formalism Is A Vacuum To Be Abhorred: Eighth Circuit Notes That Parties Don't Need To Renew Objections To Definitive In Limine Rulings

A party files a motion in limine seeking to have certain evidence deemed admissible at trial. The court makes a formal ruling deeming the evidence inadmissible at trial. The party objects to this ruling and makes an offer of proof. At trial, does the party need to renew its objection and again make an offer of proof? As the Eighth Circuit artfully put it in its recent opinion in Shelton v. Kennedy Funding, Inc., 2010 WL 3719065 (8th Cir. 2010), the answer used to be "yes" but now it is "no."

In Shelton, Virgil Shelton brought a breach of contract and fraud action against Kennedy Funding, Inc. (KFI) arising out of the sale of a cemetery in Arkansas. Before trial, KFI brought a motion in limine seeking a ruling that Michael Leighton be allowed to testify on its behalf. Leighton is a partner in a law firm, and his associate, Joseph Barbiere, entered an appearance for KFI, but withdrew his representation on the last business day before trial. KFI recognized that an attorney generally may not testify on behalf of a party in Arkansas when a member of his firm is representing that party. KFI argued, however, that this general rule was inapplicable because (1) Barbiere had a very limited role in the litigation and (2) the district court granted Barbiere leave to withdraw before trial commenced.

The trial court disagreed and issued a "definitive" ruling that Leighton could not testify on KFI's behalf. KFI objected to this ruling and made an offer of proof regarding Leighton's proposed testimony, but it did not renew this objection (and make another offer of proof) at trial. 

After the jury found for Shelton, KFI appealed, claiming that the court's ruling was improper, and the Eighth Circuit noted that if this case were heard before 200, KFI would not have preserved the issue for appellate review. This was because, a party needed to renew its objection (and make another offer of proof) if the trial judge ruled against it during a pre-trial motion in limine  "before the 2000 amendments to Fed.R.Evid. 103. See, e.g., Dupre v. Fru-Con Eng'g Inc., 112 F.3d 329, 336-37 (8th Cir.1997) (holding that, notwithstanding obtaining a formal ruling on a motion in limine, a party's failure to make an offer of proof at trial waived any right to appellate review)."

Federal Rule of Evidence 103(a), however, was amended in 2000, and it now provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. - In 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.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. 

And, as the Advisory Committee Note to the 2000 amendment makes clear,

The amendment provides that a claim of error with respect to a definitive ruling is preserved for review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a). When the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity.

The Eighth Circuit noted this language and agreed with it, finding that "[e]mpty formalism is a vacuum to abhorred." The court thus found that KFI preserved the issue for appellate review but found that even if the trial court's ruling was erroneous, it was harmless.

-CM 

Tell Me Lies: Court Of Appeals Of Michigan Finds Misdemeanor False Pretenses Conviction Was Properly Admitted For Impeachment Purposes

Michigan Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination, and

(1) the crime contained an element of dishonesty or false statement, or

 

(2) the crime contained an element of theft, and

(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and

 

(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.

This Rule is thus actually quite different from Federal Rule of Evidence 609(a), which provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

As the recent opinion of the Court of Appeals of Michigan in People v. Rondo, 2010 WL 3565245 (Mich.App. 2010), makes clear, however, they are the same in at least one regard: They allow for witnesses to be impeached via misdemeanor convictions resulting from crimes of dishonesty or false statement.

In Rondo, Russell Rondo was convicted of assaulting, resisting, or obstructing a police office. He thereafter brought a claim for ineffective assistance of counsel, asserting, inter alia, that his trial counsel was ineffective because he failed to object when the prosecution impeached him through evidence of his prior conviction for false pretenses under $200. Rondo claimed that because this was a misdemeanor conviction, i.e., it was for a crime not punishable by imprisonment in excess of one year, it was inadmissible under .Michigan Rule of Evidence 609(a).

The court correctly rejected this argument, finding that the Rule covers (1) felony theft convictions and (2) felony or misdemeanor convictions for crimes of dishonesty or false statement. The result would have been the same under  Federal Rule of Evidence 609(a), which covers (1) all felony convictions and (2) felony or misdemeanor convictions for crimes of dishonesty or false statement.

-CM

The Giant(s) Of Illinois, Take 3: Supreme Court Of Illinois Approves And Promulgates Illinois Rules Of Evidence

Readers of this blog know about Illinois Supreme Court Chief Justice Thomas R. Fitzgerald and his intention to create Illinois Rules of Evidence. He announced this intention on September 6, 2008 and announced the creation of a Special Committee on Illinois Evidence on November 24, 2008. That Committee delegated to me the task of drafting a report comparing each Federal Rule of Evidence with the corresponding evidentiary principle that Illinois courts had developed in case law to assist the Committee in its creation of Illinois Rules of Evidence. In May 2009, with substantial assistance from John Marshall's Associate Dean for Academic Affairs and Professor Ralph Ruebner and law students Katie Anderson, Timothy Herman, and Jessica Kull, I submitted a 100 page report to the Committee. The Committee then created Proposed Illinois Rules of Evidence, and, in May 2010, there were public hearings regarding the Proposed Rules.

Today, I am happy to announce that the Supreme Court of Illinois has approved and promulgated Illinois Rules of Evidence, which will take effect on January 1, 2011. Here is the Press Release. And here are the Illinois Rules of Evidence along with a Committee Commentary.

(Hat tip to my colleague Mark Wojcik for the link).

-CM

As Seen on TV?: SDNY Finds Social Framework Testimony Wouldn’t Help Jurors Because Gender Stereotypes are Exposed on Sitcoms & News Reports

Moreover, the Court agrees with the Minnesota Court of Appeals' reasoning in Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355 (Minn.Ct.App.2003) wherein the court found that the trial court abused its discretion by admitting Dr. Borgida's testimony because the opinion was unhelpful to the jury. The court noted that “[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”...In addition, the court in Ray observed that “[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”...The Court agrees. E.E.O.C. v. Bloomberg L.P., 2010 WL 3466370 (S.D.N.Y. 2010).

Bloomberg involved an action by the EEOC against Bloomberg, LP.,  in which it alleged

that from approximately February 2002 through the present, Bloomberg engaged in a pattern or practice of unlawful employment practices, including discriminating against Claimants based on sex/pregnancy by: (1) paying them less total compensation after they announced their pregnancy and returned from maternity leave; (2) demoting them in title or in the number of employees directly reporting to them; (3) diminishing their responsibilities and/or replacing them with male employees junior to the Claimants; (4) excluding them from management meetings and otherwise isolating them once they announced their pregnancy and returned from maternity leave; and (5) subjecting them to stereotypes regarding female caregivers when they returned from maternity leave....EEOC further claim[ed] that Bloomberg engaged in unlawful employment practices by retaliating against the named Claimants and other similarly situated female employees who protested the alleged unlawful sex/pregnancy discrimination by reducing their compensation, criticizing their performance, reducing their job opportunities, and threatening to terminate them.

So, let's consider the proposed testimony of Dr. Borgida and the court's ruling and decide whether we agree with the conclusion of the court listed at the top of this post.

As the United States District Court for the Southern District of New York noted in its opinion in Bloomberg:

Dr. Borgida is a professor of psychology and law at the University of Minnesota (Twin Cities) and has a Ph.D. in psychology with a specialization in social psychology and psychology and law from the University of Michigan. Dr. Borgida engaged in what is called a “social framework analysis,” which “uses general conclusions from tested, reliable, and peer-reviewed social science research as a context for educating fact finders about the case facts at hand.”...The analysis “provides an assessment of general causation in a research area in order to inform the fact finders about more specific causation issues associated with a particular case.”...In conducting his analysis, Dr. Borgida reviewed several deposition transcripts as well as Bloomberg personnel materials.

Based upon his review of these materials, Dr. Borgida concluded that

the stereotypes about employees who are mothers and/or pregnant more likely than not influenced the perceptions, evaluations, and decisions about them at Bloomberg. The cultural and organizational context at Bloomberg more likely than not activated the gender stereotype about mothers as less competent and as less agentic and less committed to their careers. Given the subjectivity, discretion, and lack of accountability in the Bloomberg decision making process, stereotypic perceptions more likely than not influenced employment decisions about employees who are mothers and/or pregnant.

So, this was social framework evidence, a topic that I have discussed in a couple of prior posts, including my post about an excellent essay, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), by University of Colorado School of Law Professor Melissa Hart and Marquette University Law School Professor Paul Secunda. Courts have admitted and excluded such evidence for a variety of reasons, and I leave it up to readers to review the entire opinion of the United States District Court for the Southern District of New York in Bloomberg and this essay to see all of the reasons why the court was troubled by Dr. Borgida's proposed testimony and why other courts have reached different conclusions.

All I want to address is the reasoning used by the court that led this post. Under Federal Rule of Evidence 702, expert opinion testimony is only admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." The court found that Dr. Borgida's proposed testimony did not meet this standard because, as noted,

“[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”...In addition,...“[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”

Really? So, the average juror watches "Modern Family" and fair and balanced news broadcasts, and all of a sudden he or she is an expert on gender stereotypes and discriminatory treatment in the workplace such that testimony from an actual expert in the field wouldn't help the juror? Great! So, I think we can also assume that the average juror watches one of the CSIs, so who needs testimony by crime scene investigators? That testimony wouldn't be helpful! And, I'm sure the average juror watches "Bones," so there should never be any need for testimony by forensic anthropologists.

And while we're at it, I'm certain that most people have seen one of the Law & Orders, so who needs law school and the bar exam? You want to go to marriage counseling? Why? If "Modern Family" is your go-to source for gender discrimination information, why shouldn't it be your source for how to be a good spouse and parent? Heck, double it up with "The Middle," and you get a full hour of great advice a week.

In all seriousness, it seems to me that the United States District Court for the Southern District of New York made three primary assumptions in Bloomberg, none of which are defensible: (1) We live in an enlightened world where everybody recognizes that gender discrimination is prevalent; (2) sitcoms and news reports are reliable sources of information for real world issues; and (3) the average person has a good enough grasp of gender issues such that testimony from a bona fide expert would not be helpful to jurors hearing a gender discrimination case. Do you agree?

-CM

Impeachable Opinion: Southern District Of Illinois Badly Botches Rule 609(a)(1) Analysis

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

Most courts use a five factor analysis to determine whether convictions are admissible under this Rule. Sometimes, however, that analysis goes badly wrong as was the case with the recent opinion of the United States District Court for the Southern District of Illinois in United States v. Wooten, 2010 WL 3614922 (S.D. Ill. 2010).

In Wooten, Cortez Wooten was charged with possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base. Before trial, he filed a motion in limine for an order prohibiting the government from impeaching him through evidence of his 1998 conviction for distribution of cocaine base (and through evidence of a 1996 conviction). In addressing this motion, the United States District Court for the Southern District of Illinois noted that it applies a five factor analysis.

The first factor is the nature of the crime leading to the prior conviction and how much bearing it has on witness credibility. According to the court,

in general, prior felonies have some probative value on the issue of credibility....Thus, should Wooten testify the Court finds that a jury has the right to be apprised of the 1998 conviction.

The second factor is the remoteness/freshness of the prior conviction, and the court found that

Regarding the time of the 1998 conviction, Wooten was released from prison on his original sentence in April 2008 which is within the 10-year time limit under Rule 609(b). Further, the instant offense in this case occurred on February 17, 2010 which is less than two years from Wooten's release from prison under his original sentence. Thus, the 1998 conviction is timely.

The second factor is the similarity between the prior conviction and the present charge, and the court found that

this factor weighs against admissibility. Wooten's prior 1998 conviction was for distribution of cocaine base; he is now charged with possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base.

The fourth factor is the importance of the defendant's testimony and fifth factor is the centrality of the credibility issue. According to the court,

these factors weigh toward allowing the 1998 conviction into evidence, In the event that Wooten does testify, both Wooten's testimony and the credibility will be critical to the outcome of the case. The 1998 conviction need not come in unless Wooten testifies at trial that the testimony of the Government's witnesses was not true and correct. Thus, Wooten's credibility and testimony will be a key point of contention making his credibility a central issue.

The United States District Court for the Southern District of Illinois thus deemed the conviction admissible in the event that Wooten testified. My response: Of course it did. Federal Rule of Evidence 609(a)(1) covers felony convictions, i.e., convictions punishable by death or imprisonment in excess of one year.  And, according to the court, the first factor favored admissibility because "prior felonies have some probative value on the issue of credibility." Well, of course they do, but how much probative value did this conviction have? The implication of the court's curt conclusion was that the first factor would always favor admissibility.

Under the second factor, the court found that the conviction was "timely" because Wooten was released from incarceration less than two years before the crime charged. True, but his prior conviction was almost ten years before that crime. It thus seems to me that the second factor was a wash at best.

The court noted that the third factor weighed against admissibility, but it didn't note how strongly it weighed against admissibility based upon the fear that the jury would misuse the prior conviction to conclude, "Once a drug dealer, always a drug dealer" (rather than to conclude that Wooten was lying under oath).

Overall, though, easily the biggest problem with the court's analysis was its discussion of the fourth and fifth factors. According to the court, these factors both favored admissibility because Wooten's testimony and credibility would be critical to the outcome of the case if he testified. You think? It's hard to think of a case where the defendant's testimony and credibility wouldn't be critical, meaning that the fourth and fifth factors would (almost) always favor admissibility if the court's analysis were correct.

Of course, its analysis was not correct. Under the fourth factor, when the defendant's testimony would be important, the fourth factor cuts against admission because of the fear that the defendant will invoke his Fifth Amendment privilege against self-incrimination and not testify if he knows that his prior conviction(s) will be admissible to impeach him in the event that he testifies. Now, in that same case, the defendant's credibility would be critical, meaning that the fifth factor would favor admissibility, which would mean that factors four and five would cancel each other out.

That should have left the court with factors one through three. And, under those factors, we had a nearly ten year old conviction with low probative value on the issue of witness credibility and high similarity to the crime charged. The court thus should easily have granted Wooten's motion in limine.

-CM  

Youthful Indiscretions: Court Of Appeals Of Washington Finds Juvenile Adjudications Inadmissible To Impeach Prosecution Witness

Like its federal counterpart, Washington Rule of Evidence 609 provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a finding of guilt in a juvenile offense proceeding of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

I thought that the Court of Appeals of Washington, Division One, addressed a case in which a juvenile adjudication should have been deemed admissible in its recent opinion in State v. Jones, 2010 WL 3490255 (Wash.App. Div. 1 2010). The court disagreed.

In Jones, Leroy Jones was convicted of first degree assault with a deadly weapon. The evidence at trial established that

Leroy Jones was involved in a fight with Taurian Alford near a bus stop in downtown Seattle. Within minutes, three of Alford's friends, including T'Shaun Bennett and Devin Wilturner, ran up and joined the fight. When the police arrived, they saw that Jones had a knife in his hand and was being restrained by the others. He continued struggling and did not drop the knife until a police officer tasered him.

Jones was charged with second degree assault with a deadly weapon. At trial, the State argued that Jones attacked Alford with the knife, and that Alford's friends intervened to save him. The defense theory was that Jones pulled out his knife in self-defense only after Alford's friends attacked him.

The State produced a number of eyewitnesses. Alford's cousin T'Shaun Bennett testified he saw Alford and Jones arguing on the street and then heard Alford shout that Jones had a knife. Bennett saw the knife in Jones' hand as Jones chased Alford down the street. Bennett ran up and saw Jones on top of Alford, trying to stab him. Bennett and Wilturner struggled with Jones until the police arrived.

The State next presented eyewitness testimony of coworkers Endre Veka, Erik Fierce, Peter Schwab, and Gus Iverson. They testified they were returning to their office on the way back from a coffee break when Alford came running up to them and said “someone was chasing him,” or “he's trying to stab me.” At first they were skeptical of Alford's motives, but within seconds they saw Jones run up and attack Alford. They saw two more young men join the fight, apparently trying to subdue Jones. The four coworkers gave slightly varying descriptions of the events, including the point at which they noticed the knife, but all agreed that Alford appeared primarily to be defending himself.

The State sought a material witness warrant for Alford but was unable to secure his presence for trial. Meanwhile,

the sole defense witness was Mark Forbes, a transportation supervisor who was working nearby when the fight occurred. Forbes testified he saw two men walking together. They started arguing and then fighting. He saw three other men join the fight, and heard someone say he “had a knife.” He then noticed a knife cupped in the hand of one of the men. Forbes thought the man with the knife seemed to be protecting himself from the others.

At trial, Jones sought to impeach Bennett through his prior juvenile convictions for third degree possession of stolen property, third degree malicious mischief, and three convictions for second degree taking a motor vehicle under Rule 609(d). The trial court, however, precluded this impeachment, and, after Bennett was convicted, Jones appealed, claiming, inter alia, that "the juvenile convictions were necessary evidence because without them Bennett, Alford, and the others were unfairly sanitized, leading the jury to discredit Jones' self-defense claim. The Court of Appeals of Washington, Division One, rejected this argument, concluding that 

Jones present[ed] no persuasive reason why Bennett's prior juvenile adjudications would be necessary for a fair determination of Jones' guilt, apart from a general attack on credibility. Refusing to admit the evidence was not an abuse of discretion, and in any event, there is no reasonable probability the omission of this evidence materially affected the outcome, especially given the adverse testimony of the witnesses who had no criminal history.

I disagree. It seems to me that the key question at Jones' trial was when he pulled the knife. If he pulled it before he was attacked by Alford's friends, he could be found guilty of assault with a deadly weapon. If he pulled the knife after being attacked by Alford's friends, I think that at the least he would have a viable defense of imperfect self-defense.

The unbiased eyewitnesses who saw the fight differed with regard to when they noticed the knife. The victim, Alford, did not testify at trial. Apparently, neither of his friends besides Bennett testified at trial. Therefore, Bennett's testimony that Jones had the knife out before Bennett and his friends attacked him seems to me to be the key testimony in his case. Thus, it seems to me that evidence of Bennett's prior convictions, which had some decent bearing on his credibility, were necessary for a fair determination of Jones' guilt or innocence.

-CM

State Your Reasoning: Court Of Appeals Of North Carolina Finds Trial Court Failed To Conduct Proper Rule 609(b) Analysis

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

Evidence of a conviction under this rule is not admissible if a period of more than 10 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.

Rule 609(b) flips the typical Rule 403 balancing test, which deems evidence admissible as long as its probative value is not substantially outweighed by its prejudicial effect. It also requires trial courts to state specifically the facts and circumstances which led it to conclude that a more-than-ten-year-old conviction should be admissible for impeachment purposes. And, according to the opinion of the Court of Appeals of North Carolina in State v. Denton, 2010 WL 3633457 (N.C.App. 2010), a North Carolina trial court recently erred in applying the second aspect of Rule 609(b) while the prosecution's argument on appeal misstated the first aspect of the Rule.

In Denton, Jonathan Denton was convicted of possession of cocaine. Before Denton's trial, the State notified him of its intention to present evidence of his prior criminal convictions that were more than ten years old. Denton responded by filing a motion in limine seeking the exclusion of such evidence. While the trial court granted this motion in part, it found that 

The defendant's motion in limine as to [his convictions for] possession of stolen goods and the common law robbery and robbery with a dangerous weapon at this time is denied. But I'll have to conduct a weighing of that when we reach that point in the trial.

After the State rested, Denton renewed his motion in limine, and the trial court concluded that:

[S]ubject to further consideration as to balancing called for by the context in which the questions arise, I'm denying the motion in limine as to the possession of stolen goods, common law robbery and robbery with a dangerous weapon.

After he was thereafter impeached and convicted, Denton appealed, claiming, inter alia, that the trial court erred by admitting evidence of convictions that were more than ten years old without making findings as to “specific facts and circumstances” that justified their admission. The Court of Appeals of North Carolina agreed, finding that

Although the State asserts that “the trial judge complied with the balancing test required by the rule and determined, in his discretion, that the probative value of the convictions outweighed their prejudicial effect,” it has not cited us to any transcript excerpts that support this contention and we have not identified any support for this contention during our own examination of the record. In addition, the State's argument that the trial court adequately complied with N.C. Gen.Stat. § 8C-1, Rule 609(b) by finding “that the probative value of the convictions outweighed their prejudicial effect” misstates the applicable law, which requires the trial court to determine that the “probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” (emphasis added). Finally, the State contends that the trial court “specifically stated for the record that he had applied the balancing test required by the rule.” However, the trial court's only reference to the application of the required balancing test occurred at the time of its ruling denying Defendant's motion in limine “subject to further consideration as to balancing called for by the context in which the questions arise.” Although the State appears to argue that the trial court's reference to “further” balancing suggests that “previous” balancing had already occurred, the record clearly reflects that the trial court did not make any findings of the type required by N.C. Gen.Stat. § 8C-1, Rule 609(b). As a result, since “[t]here are no findings of specific facts and circumstances in the record to support the trial court's determination that the evidence was more probative than prejudicial,” “[t]he trial court's admission of defendant's prior convictions beyond ten years was error and we now examine whether defendant was prejudiced."   

That said, the court deemed this error harmless and thus affirmed Denton's conviction.

-CM

The Profile Doesn't Fit The Profile: Fifth Circuit Addresses Admissibility Of Drug Courier Profile Evidence Under Rule 704(b)

Federal Rule of Evidence 704(b) provides that

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

So, is drug courier profile evidence admissible under Rule 704(b)? That was the question addressed by the Fifth Circuit in its recent opinion in United States v. Gonzalez-Rodriguez, 2010 WL 3636986 (5th Cir. 2010).

In Gonzalez-Rodriguez, Rafael Gonzalez-Rodriguez was convicted of possession with intent to distribute more than 500 grams of methamphetamine. The evidence at trial established that

Gonzalez-Rodriguez drove a Freightliner tractor-trailer to the immigration checkpoint in Falfurrias, Texas....

The Freightliner was carrying a shipment of grapefruits destined for a Costco warehouse in Dallas, Texas....

Border Patrol Agents Abel Quintana and Victor Valdez were on duty...when Gonzalez-Rodriguez arrived at approximately 11:26 P.M. Agent Valdez is a trained K-9 handler and was with his canine, Ringo. As Gonzalez-Rodriguez approached the primary inspection area, Ringo pulled Agent Valdez to the back of the Freightliner. Agent Valdez signaled to Agent Quintana that Ringo had alerted to the trailer, and Agent Quintana asked Gonzalez-Rodriguez to drive to a secondary inspection area.

At secondary inspection, Agent Valdez...asked Gonzalez-Rodriguez to open the trailer door. After Gonzalez-Rodriguez opened the door, Ringo jumped on top of grapefruit bins stacked two high and ran full speed to the front of the trailer. Ringo started digging through a particular bin of grapefruits. Agent Valdez crawled to the area where Ringo was digging, moved some bags of grapefruits, and discovered bundles bearing an image of the grim reaper. Agent Valdez, with the assistance of other agents, ultimately recovered 124 such bundles weighing a total of 312.5 pounds. The bundles had been placed in the center of five different grapefruit bins, with grapefruits layered on all sides. The bundles contained extremely high quality methamphetamine, referred to as “ice” due to its purity, with an estimated street value of $10 to $40 million.

A bill of lading and log book were recovered from the Freightliner. The bill of lading was prepared by Interstate Fruit and indicates that Order 5349 contained 40 bins of 15-pound bags of grapefruit destined for a Costco warehouse in Dallas. Interstate Fruit's shed foreman testified that Order 5349 left Interstate at 12:56 P.M. The log book's latest entry, on the other hand, states that “Pickup # 4359” was made at 9:45 P.M. The log book was signed by Gonzalez-Rodriguez. It normally takes about one and one-half hours to drive from Interstate Fruit's warehouse in Donna to the immigration checkpoint in Falfurrias.

Moreover, Agent Robert Crawford of the Drug Enforcement Administration testified that

that he would “classify” the majority of people arrested at immigration checkpoints as couriers, and that couriers generally are at the bottom of drug organizations and do not actually handle the drugs they transport. Agent Crawford explained that this is to reduce the cost of the courier's services, and also to ensure that the courier has little information that could be traced back to the broader organization. Because drug couriers typically do not handle drugs, Agent Crawford testified that a courier probably did not hide the methamphetamine in Gonzalez-Rodriguez's trailer, and thus Agent Crawford did not expect to find, and was not surprised when he did not find, Gonzalez-Rodriguez's fingerprints on the bundles of methamphetamine. Agent Crawford additionally testified that large drug organizations often seek couriers with no criminal history to give an appearance of legitimacy to their operation. For a similar reason, Agent Crawford stated that drug organizations often try to hide their illegitimate contraband in seemingly legitimate places for transportation. He explained that drugs often are hidden in “false walls, false compartments, they will put it in engines, they will put it in tires, they will put it in produce just various different particular ways.” Indeed, Agent Crawford asserted that the “first thing” he wanted to know when conducting his investigation was whether the Freightliner was carrying a “legitimate load.” Agent Crawford further testified that two drain holes in the Freightliner's trailer had been plugged, and that this indicated an effort to impede a detectable drug odor. Finally, Agent Crawford suggested that Gonzalez-Rodriguez must have known about the drugs in the Freightliner because he falsified the Freightliner's log book. Gonzalez-Rodriguez did not object to any of this testimony.

After he was convicted, however, Gonzalez-Rodriguez appealed, claiming, inter alia, that this testimony was improperly received under Federal Rule of Evidence 704(b), and the Fifth Circuit reviewed for plain error. According to the court,

A drug courier profile is a compilation of characteristics used by law enforcement officers to identify individuals who might be involved in the trafficking of narcotics....In cases involving pure profile evidence, law enforcement personnel seek to testify that because a defendant's conduct matches the profile of a drug courier, the defendant must have known about the drugs he was transporting....We have repeatedly held that drug courier profile evidence is “inadmissible to prove substantive guilt based on similarities between defendants and a profile.”...This is because profile evidence may amount to the functional equivalent of an expert opinion that the defendant knew he was carrying drugs, see...Fed.R.Evid. 704(b), and also because profile evidence is likely to be overinclusive and its probative value low in relation to its prejudicial effect, see...Fed R. Evid. 403. That an individual fits a generic drug courier profile does not mean that the individual knew he was carrying drugs in a particular case, and “[i]t is the evidence showing the person's connection to drug trafficking that must form the basis for the conviction.”...Although the Government may introduce evidence that the defendant exhibited the individual behaviors that make up a drug courier profile, the Government may not define the profile or suggest that the defendant's behavior in fact fit the profile.

The Fifth Circuit found that some of Agent Crawford's testimony fell on the good side of this divide, such as his testimony

that most large quantity methamphetamine is produced in Mexico; that drug organizations use couriers to transport drugs to the United States for distribution; that drug organizations often transport drugs by hiding them in seemingly legitimate places; that couriers normally do not handle drugs; that a courier probably would not have been the person who hid the methamphetamine in the grapefruit; and that Agent Crawford therefore was not surprised when he did not find Gonzalez-Rodriguez's fingerprints on the bundles of methamphetamine.

That said, the court found that other portions of Agent Crawford's testimony crossed the line, such as his testimony

that drug couriers generally have no criminal history (The court found this to be "classic profile testimony: it describes a characteristic used by law enforcement officers to identify an individual who might be a drug courier.");

that the “first thing” he wanted to know when conducting his investigation was whether the Freightliner was carrying a “legitimate load,” such as “produce;” 

that Gonzalez-Rodriguez must have known about the drugs because he falsified the Freightliner's log book; and

that the majority of people arrested at immigration checkpoints are couriers (The court found that "[t]his testimony implied that Gonzalez-Rodriguez was a drug courier, and therefore knew he was carrying drugs, because he was arrested at a checkpoint."). 

In the end, however, the Fifth Circuit still affirmed, finding that the erroneous admission of this testimony did not affect Gonzalez-Rodriguez's substantial rights because "even excluding Agent Crawford's impermissible testimony, there is still extensive evidence that Gonzalez-Rodriguez knew about the drugs in the Freightliner."

-CM

Opinion Of Interest: Eleventh Circuit Affirmed Statement Against Interest Ruling In Drug Deal Appeal

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. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Of course, for a statement to be deemed a "statement against interest under Rule 804(b)(3), it must be clear that the statement was indeed against the declarant's interest, which was the problem for the appellant in the recent opinion of the Eleventh Circuit in United States v. Huerta, 2010 WL 3638789 (11th Cir. 2010).

In Huerta, Javier Huert was indicted on one count of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine and three counts of distribution of 5 grams or more of methamphetamine. Meanwhile, Manuel Camacho Barcenas was charged as a co-conspirator and pleaded guilty. The prosecution presented evidence at trial which established that

Peter Strautman, a convicted drug dealer who worked as a confidential informant with the DEA, arranged several controlled buys with Huerta and Barcenas. The deals were captured on audio and video recordings. In the calls and exchanges, Huerta acted as an interpreter for Barcenas and arranged the deals. And during one of the buys, Huerta informed Strautman that he had supplied drugs to a man named Paco, who was Strautman's previous supplier. Huerta said that he and Barcenas, “[w]e make a deal sometimes. Half and half.” Strautman understood this to mean that the two men sold drugs together. During his work for the DEA, Strautman also arranged controlled buys with each dealer alone. The controlled buy Strautman attempted to arrange with Huerta was unsuccessful because, as Huerta later explained to Strautman, Huerta had seen a suspicious car and cancelled the meeting. Strautman was unable to reschedule the buy.

Thereafter,

Huerta testified in his own defense. He explained that he and Barcenas were friends and that he had been helping tow cars to Barcenas's mechanics shop. He stated that he had been lying in the recorded phone calls to shield Barcenas, that he was present at the buys only to protect Barcenas, and that he did not receive any money from the buys. He denied that there was any conspiracy and explained that the deals mentioned in the recordings were car deals. Huerta then testified that he had received two letters from Barcenas while the case was pending. The government objected to the admission of these letters on hearsay grounds. Defense counsel responded that Barcenas was unavailable because, when called as a witness, he had invoked his Fifth Amendment right not to testify, and that the letters were trustworthy because Barcenas had admitted to the government that he wrote them. The court sustained the government's objection and excluded the letters.

After he was convicted, Huerta appealed, claiming, inter alia, that the district court should have deemed the letters admissible under Federal Rule of Evidence 804(b)(3). In one letter, Barcenas wrote that he was involved in “deals” and that he acted “because of the consumption of alcohol.” He further wrote that he would plead guilty, that he “should be responsible for it because no one else should pay the broken plates of someone else's,” and that he “assume[d] the responsibility that you had nothing to do with those charges.”

The Eleventh Circuit rejected Huerta's argument, finding that

Although both Huerta and the government agree that Barcenas was unavailable under Rule 804(a)(1), Huerta cannot show that the letters were admissible. The statements are vague and do not inculpate Barcenas to the extent that he reasonably would not have made the statement unless he believed it to be true. Moreover, the evidence at trial showed that Huerta and Barcenas were working together. Thus, the district court did not abuse its discretion in excluding the hearsay evidence, and we affirm Huerta's convictions.

I agree with the court. Barcenas indicates that he was involved in "deals" but never wrote what type of deals. Moreover, does it make sense that he would have been involved in drug deals "because of the consumption of alcohol"? Barcenas also made reference to being responsible based upon "broken plates." It is unclear how broken plates would relate to a drug deal. Maybe he was referring to broken license plates, and the "deals" to which he referred were drug deals. Or maybe he was referring to the subject drug deals, but it is impossible to tell from his confusing letters, which is why I think that the court properly found that they did not qualify for admission under Federal Rule of Evidence 804(b)(3).

-CM

The Informant!: Court Of Appeals Of Texas Opinion Lays Out Test For Exception To Informant Exception

Texas Rule of Evidence 508(a), Texas' informant privilege, provides that

The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

That said, there is an exception to this privilege contained in Texas Rule of Evidence 508(c)(2), which provides that

If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.

So, how exactly does this exception apply in practice? The recent opinion of the Court of Appeals of Texas, San Antonio, in Morin v. State, 2010 WL 3582382 (Tex.App.-San Antonio 2010), provides a pretty good indication.

In Morin, the evidence at trial established that

[William] Swisher met John Villarreal at Villarreal's apartment on June 24, 2007, where the two men used cocaine. After Swisher fell asleep on Villarreal's bed, Villarreal heard someone at his door. At the door was [Ruben] Morin, who pushed his way into the apartment. Morin placed a gun to Villarreal's chin upon entering the apartment and asked Villarreal whether Swisher had hidden any drugs or money inside the residence. Villarreal answered negatively and Morin attempted to arouse Swisher. Morin fired his pistol to awaken Swisher, who got up upon hearing the gunshot. Morin proceeded to confront Swisher about “messing around with [his] girlfriend”  and asked him where he had placed his money and drugs. Swisher responded that he did not know what Morin was talking about and gave Morin his wallet and car keys. Morin grabbed the items from Swisher and then shot him in the chest and stomach. Morin “paced back and forth” and then ran out of the apartment. Swisher did not survive the gunshot wounds he received from Morin and died on the floor of Villareal's apartment.

The authorities, with the assistance of a confidential informant, located Morin at an apartment later that day. Morin was apprehended by police following a brief “scuffle,” which occurred approximately forty to fifty feet away from the apartment. Officers entered the apartment from which Morin had emerged and conducted a protective sweep of the residence “to check for other combatants.” During the course of their protective sweep, officers observed drugs and drug paraphernalia in plain view as well as a cleaning crew inside the apartment. San Antonio Police Officer Daniel Molina prepared a warrant affidavit and secured a search warrant for the premises. Officers executed the warrant later that day and seized, among other items, clothing they believed Morin wore at the time of Swisher's death and multiple rounds of ammunition matching the caliber of the murder weapon.

In his ensuing murder trial, Morin's defense was that Morin postulates that Villarreal and Stephanie Ruiz framed him for Swisher's murder based upon discrepancies between their statements to police and their trial testimony. In an attempt to find evidence to support this theory, Morin sought an in camera to determine whether the informant possessed information concerning the names of other persons who might confirm his theory.

The trial court refused to hold such a hearing, and the Court of Appeals of Texas, San Antonio, agreed with this decision, finding that

The accused bears the threshold burden of demonstrating there is a reasonable probability the informer may give testimony necessary to a fair determination of the issue of guilt or innocence....To meet his burden, the accused must provide more than mere conjecture or speculation; he must show the informant's testimony would significantly aid the jury in determining guilt or innocence....The filing of a motion to disclose is insufficient to obtain a hearing, much less compel disclosure...However, because the defendant may not actually know the extent of the informant's involvement, he is only required to make a plausible showing of how the testimony may be important....

If the defendant meets this initial burden, the State must be given an opportunity to show, in camera, facts relevant to whether the informer can supply the alleged testimony....The trial court should order disclosure of the informant's identity if it finds a reasonable probability exists that the informer could give testimony necessary to a fair determination of guilt or innocence.

The Court of Appeals found that Morin failed to meet his threshold burden because

At the pretrial hearing on Morin's confidential informant motion, Officer Molina testified the informant did not participate in or witness Swisher's murder. He or she also did not observe Morin hide the murder weapon. Officer Molina confirmed the informant acquired his or her information from individuals who were not involved in the crime. He stated that the informant's information concerning the crime “had been passed along” to him or her during his or her telephone conversations with persons “other than the people that were involved in the crime."

Therefore, it was not plausible to believe that the informant's testimony would be important; instead, "Morin's argument amount[ed] to nothing more than supposition and conjecture unsupported by any evidence."

-CM

Article Of Interest: Social Networking and Workers' Compensation Law at the Crossroads

The question of whether and to what extent social networking evidence should be admissible is relatively new and has led to some interesting initial cases addressed on this blog (see here, here, here, here, and here). Now, it has led to an interesting article as well: Social Networking and Workers' Compensation Law at the Crossroads (forthcoming, Pace Law Review) by Professor Gregory M. Duhl of the William Mitchell College of Law and Jaclyn S. Millner of Fitch, Johnson, Larson & Held. 

According to the abstract:

Over the past decade, social networking has increasingly influenced the practice of both civil and criminal law. One way to illustrate those influences is to examine a “system” of laws and the parties and lawyers in that system. In this article, we examine how social networking has influenced workers’ compensation law, looking at, in particular, the intersection of professional responsibility, discovery, privacy, and evidence with social networking in state workers’ compensation systems.

Workers’ compensation laws are no-fault insurance systems designed to resolve disputes efficiently. Consequently, the rules of evidence are often more relaxed and the rules of discovery often more restricted than in state and federal court litigation. The flexible and self-contained structure of workers’ compensation systems provides an ideal backdrop against which to examine how information from social networking sites can be used as evidence to resolve civil disputes.

A state’s workers’ compensation system should use the rules that have traditionally applied to non-electronic information as a starting point to address issues arising from lawyers gathering and introducing into evidence information stored on social networking sites. At the same time, because of the efficiency of workers’ compensation law and the large discretion vested in its judges, workers’ compensation systems have the potential to be laboratories for new technologies and how they can be used in the resolution of disputes, both inside and outside of workers' compensation.

As the authors note in their conclusion,

The lawyers, judges, insurance companies, and parties within workers‘ compensation systems will increasingly confront the discovery, privacy, professional responsibility, and evidentiary issues that arise at the crossroads of workers‘ compensation law and social networking. In the absence of case law and ethics opinions that discuss these exact issues, this article starts with the rules that govern workers‘ compensation cases, and discusses how they might apply to lawyers gathering, producing, and introducing evidence from social networking sites.

-CM

Primary Motive: Court Of Appeals Of Arizona Finds Former Testimony Exception Applied To Bond Hearing Testimony

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

Former testimony in criminal actions or proceedings as provided in Rule 19.3(c), Rules of Criminal
Procedure.

In turn, Rule 19.3(c) provides that

(1) Admissibility. Statements made under oath by a party or witness during a previous judicial proceeding or a deposition under Rule 15.3 shall be admissible in evidence if:

(i) The party against whom the former testimony is offered was a party to the action or proceeding during which a statement was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party now has (no person who was unrepresented by counsel at the proceeding during which a statement was made shall be deemed to have had the right and opportunity to cross-examine the declarant, unless such representation was waived) and

(ii) The declarant is unavailable as a witness, or is present and subject to cross-examination.

So, does a criminal defendant have an interest and motive to cross-examine a witness at a hearing to hold him without bond that is similar to the interest and motive that he has to cross-examine the witness at his criminal trial? According to the recent opinion of the Arizona Court of Appeals, Division 1 in State v. Acuna, 2010 WL 3597233 (Ariz.App. Div. 1 2010), the answer is "yes."

In Acuna, Pasqual Sosimo Acuna was convicted of charges arising out of a confrontation and drive by shooting on December 31, 2007. At a hearing to determine whether Pasqual would be held without bond, Rosario Acuna, Pasqual's alleged accomplice, testified against him. At trial, however, despite being subpoenaed by the State, Acuna failed to appear, prompting the State to introduce his prior testimony under Rule 19.3(c). After he was convicted, Pasqual appealed, claiming, inter alia, that he did not   have an interest and motive to cross-examine Rosario at the bond hearing similar to the interest and motive that he has to cross-examine Rosario at his criminal trial?

The Arizona Court of Appeals, Division 1 found that he did, finding that

To hold the defendant without bond, the court must find “that the proof is evident or the presumption great that the person committed the offense for which the person is charged.”...At the bond hearing, Appellant was represented by counsel, who took advantage of his opportunity to cross-examine Rosario....Appellant's interest and motive to cross-examine Rosario was similar to his interest and motive at trial....

Appellant argues that the brevity of his cross-examination of Rosario indicates he did not have a similar motive at the bond hearing. He contends the questioning was limited to the actions of the occupants of the other truck, rather than examining Rosario's credibility or motive to lie. Although Appellant's case strategy may have motivated him to limit his cross-examination at the bond hearing, his interest in refuting the prosecution's proof that he had committed the offense was similar to his interest in rebutting the prosecution's evidence at trial....For these reasons, we affirm the trial court's finding that Appellant had an opportunity to cross-examine Rosario and a similar motive to do so.

-CM

Lie To Me: Court Of Appeals Of Arkansas Finds Trial Court Erred In Prior Inconsistent Statement Ruling

Like its federal counterpart, Arkansas Rule of Evidence 613 sets forth the procedure for admitting prior inconsistent statements for impeachment purposes. It provides that

(a)  Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.  

(b)  Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2). 

So, let's say that a witness makes a statement during trial and acknowledges that she made a prior inconsistent statement before trial. Can she thereafter be impeached via her prior inconsistent statement under Rule 613? According to the recent opinion of the Court of Appeals of Arkansas in White v. State, 2010 Ark. App. 588 (Ark.App. 2010), the answer is "no." I agree.

In White, Derrick White  was convicted  of first-degree battery after he allegedly shot Renekia White in the face.

The incident occurred at the home of Carey Walton, with whom Derrick White had resided until Walton ordered him out of the apartment after an argument the night before. On the day of the shooting, White had returned to Walton's residence to pick up some of his personal property. He again argued with Walton and punched her in the face. Renekia, a friend of Walton, was outside on the porch and was shot by White when he was leaving the apartment.

There was ample testimony, including that of White himself, that White pulled a handgun from his pocket, the gun discharged, and a bullet struck Renekia in the face. However, White claimed at trial that the shooting was accidental. None of the witnesses at trial testified that they heard White make any threats to use the weapon. Walton did, however, admit at trial that she made a statement to police shortly after the shooting in which she said that she heard White say, “I'm going to kill all of y'all.” When confronted by the statement, Walton attempted to explain the inconsistency by claiming that she was “hysterical” and that she was angry with White at the time.

At trial,

Walton initially claimed she did not remember what she told police that night, but after having her recollection refreshed by her written statement, she recalled the interview. She was directed to read a portion of the statement in which she told police that White had stated that “I'm going to kill all of y'all,” and then “raised the gun up.” Walton admitted that she remembered telling police that she saw the gun and fled because she thought that White was going to shoot her. Walton nonetheless denied hearing White make his threat, and claimed she was only repeating what Renekia had told her. She further claimed that her memory was impaired because she was “hysterical,” although she conceded that she “probably remembered the incident better back when it happened” than at the time of trial.

On cross-examination, Walton stated that she “stretched” the truth because she was mad at White. She unequivocally stated that she neither saw a gun nor heard White make the previously described threat. On re-direct, Walton confirmed that she lied to police when she stated that she saw a gun and heard White make his threat.

Thereafter,

The State then called Little Rock Police Officer Rian Heck. When Officer Heck attempted to testify about Walton's statement, White's counsel made a hearsay objection and responded to the State's argument that it would be a prior inconsistent statement with the assertion that it was inadmissible because Walton had “already admitted that she's lied in her earlier statements to the police. This is an unsworn [statement], and she's got sworn testimony today .” The trial court admitted the testimony to “impeach Walton.” The State also called Little Rock Police Officer Rodney Blocker who, over White's objection, also testified about the statement that Walton made to the police. During closing arguments, the State used Walton's unsworn statement that, prior to the shooting, she claimed that White said “I'm going to kill all of y['all.]"  

After he was convicted, White appealed, claiming, inter alia, that the trial court improperly allowed for the admission of Walton's prior inconsistent statements under Arkansas Rule of Evidence 613 because Walton had already admitted that she lied to the police in her earlier statements. The Court of Appeals of Arkansas agreed, concluding that "it is well-settled law that Walton's prior statement was not admissible for impeachment purposes under Rule 613(b) of the Arkansas Rules of Evidence because she admitted that she made a prior, inconsistent statement." (The court nonetheless affirmed based upon a finding of harmless error).

I agree with the court's ruling. A prior inconsistent statement not made under oath is hearsay and only admitted to impeach the witness, i.e., to show that she is untrustworthy as a witness. When the witness admitted to making a prior inconsistent statement, the inconsistency is revealed, and the only purpose in admitting the prior inconsistent statement would be to show the jury the substance of the prior statement, which is improper because the statement is hearsay.

-CM

Gasping At Straws: Fourth Circuit Finds Rule 606(b) Doesn't Cover Party's Observation Of Jury's Reaction To Evidence

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.

It is important to note, though, that the Rule only covers a juror's testimony and/or a juror's affidavit, a point not quite made clear by the recent opinion of the Fourth Circuit in Keeshan v. Eau Claire Cooperative Health Centers, Inc., 2010 WL 3556172 (4th Cir. 2010).

In Keeshan,

Dr. Susan Keeshan, a physician who is Jewish and of Hispanic descent, sued her former employer, Eau Claire Cooperative Health Centers, Inc. (the Cooperative), alleging under Title VII that she was terminated in retaliation for filing a complaint claiming that her supervisors discriminated against her because she is not black. Keeshan also brought claims under state law for wrongful discharge and nonpayment of wages. The district court granted summary judgment to the Cooperative on the wrongful discharge claim. After a trial the jury found for the Cooperative on the Title VII retaliation and South Carolina Payment of Wages Act claims[,] Keeshan appeal[ed]....

One of the grounds for Keeshan's appeal was that

Over objection from Keeshan's counsel, the jury heard Keeshan testify on cross-examination about her income after leaving the Cooperative. Keeshan said that her yearly income in 2007 was $300,000. Keeshan's counsel argued that her income after 2005 was irrelevant because she was not seeking back pay for any period after that year. The Cooperative's counsel responded that her current income was relevant in that it "show[ed] that she is much better off today than if she had stayed where she was."...Moreover, the Cooperative's counsel maintained that Keeshan's current salary was relevant to her request for punitive damages. The court was persuaded by the last point and ruled that the 2007 salary testimony was admissible if Keeshan sought punitive damages.

In her subsequent motion for a new trial, Keeshan argued "that the jury was unduly prejudiced after learning of her $300,000 salary" and "submitted an affidavit swearing that she heard 'gasps from the jury box” and that she could tell from the astonished looks on jurors' faces that they had already decided against her." The district court denied this motion, and the case eventually reached the Fourth Circuit on Keeshan's ensuing appeal. The Fourth Circuit agreed with Keeshan that 

that the district court's admission of her testimony on her post-termination income was based on an erroneous legal premise and was therefore an abuse of discretion. The court found the testimony relevant to Keeshan's request for punitive damages, which she sought under her Title VII retaliation claim. Title VII permits recovery of punitive damages from private employers "if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual."...This standard requires the plaintiff to show that the employer "discriminate[d] in the face of a perceived risk that its actions will violate federal law."...It is axiomatic that the purpose of punitive damages is to punish and deter defendants. "Most often ... eligibility for punitive awards is characterized in terms of a defendant's motive or intent."...That Keeshan's salary nearly doubled after leaving the Cooperative may indicate that Keeshan was better off in another job. But her improved financial status is irrelevant to her contention that the Cooperative terminated her with malice or reckless indifference to her right under Title VII to bring a racial and religious discrimination complaint.

In finding that this evidence was somewhat prejudicial (although the court ultimately found that its admission constituted harmless error), the Fourth Circuit relied upon Keeshan's affidavit, rejecting the Cooperative's argument that it was inadmissible under Federal Rule of Evidence 606(b) by finding that "Keeshan's affidavit is more accurately characterized as Keeshan's impression of the effect of her testimony on the jury, not evidence of a juror statement."

My response is that even if Keeshan's affidavit stated that she heard a juror saying, "I'm not giving her a dime," it still wouldn't have been covered by Rule 606(b). The reason is that the rule only covers juror affidavits, not affidavits by individuals who overhear conversations by members of the jury. Indeed, in the Supreme Court's most significant opinion on Rule 606(b) -- Tanner v. United States, 483 U.S. 107 (1987) -- the Court reaffirmed the Fourth Circuit opinion in United States v. Taliaferro, 558 F.2d 724, 725-726 (4th Cir. 1977), in which the court found that a marshal could properly testify about jury deliberations when he accompanied them to a club where the judge sent jurors to dine and deliberate.

-CM

Domestic Disturbance: Court Of Appeals Of Michigan Case Reveals DV Exception To Character Evidence Proscription In Michigan

Like its federal counterpart, Michigan Rule of Evidence 404(b) provides in relevant part 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....

That said, some states have a domestic violence exception under which the prosecution can present evidence of prior domestic violence to prove the defendant propensity to commit such acts and his likely conformity with that propensity at the time of the crime charged. And, as the recent opinion of the Court of Appeals of Michigan in People v. Branion, 2010 WL 3564746 (Mich.App. 2010), makes clear, Michigan has such an exception.

In Branion,

On September 22, 2008, defendant and his wife of 16 years, the victim in this case, were separated. That evening as the victim sat alone and watched television in her bedroom, defendant stood outside her open window and squirted lighter fluid through the screen. Defendant ignited his lighter and set the window, windowsill and curtains ablaze. The victim's roommate, and owner of the home, put out the fire and he and the victim escaped to a neighbor's house across the street to telephone the authorities. From this location, the victim saw defendant running away from her residence. Before trial, the prosecutor sought to admit evidence of seven prior instances of domestic abuse between defendant and the victim, one of which involved defendant attempting to set the victim on fire with lighter fluid.

The trial court admitted this evidence pursuant to, inter alia, MCL 768.27b, which provides in relevant part that

in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403.

After Branion was convicted of assault with intent to murder and arson, he appealed, claiming, inter alia, that the trial court should have deemed the subject evidence inadmissible because it failed the balancing test set forth by Federal Rule of Evidence 403, which provides that

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

The Court of Appeals of Michigan disagreed, finding that

The focus behind MRE 403 is whether the evidence was unfairly prejudicial, because the prosecutor's evidence, and all relevant evidence, for that matter, is inherently prejudicial to some extent...."This unfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock."...

Here, the prior acts of domestic abuse were highly probative for the prosecution to show defendant's character for assaulting the victim and his propensity to commit acts of violence against her window....

The evidence was prejudicial, but there was no danger that marginally probative evidence would be given undue weight or that it was inequitable for the prosecution to use it....The evidence also did not inject extraneous considerations into trial.

-CM

The Marrying Man: Supreme Judicial Court Of Massachusetts Finds Defendant Marrying His Alleged Victim Triggered Forfeiture By Wrongdoing Doctrine

On Monday, I posted an entry about the strangest spousal testimonial privilege case that I have ever seen. In that case, the State filed an order to show cause seeking to enjoin a planned marriage between the defendant and the alleged victim's sister until after the defendant's trial so that the sister could not invoke the spousal testimonial privilege. It took me a mere two days to find a spousal testimonial privilege that topped that one. Here is the question raised by the recent opinion of the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Szerlong, 2010 WL 3530019 (Mass. 2010): Does the forfeiture by wrongdoing doctrine apply when the defendant marries his alleged victim so that she can exercise the spousal testimonial privilege? According to the court, the answer is "yes."

In Szerlong,

At approximately 2 a.m. on December 13, 2007, the defendant entered his girl friend's home, grabbed her by the throat while she was asleep, and held a knife to her throat. On December 21, 2007, the defendant was charged in a criminal complaint with assault and battery...; assault by means of a dangerous weapon...; and home invasion,...and a warrant was issued for his arrest. The defendant and the victim had not been engaged to marry at the time of the assault, but they were married on January 5, 2008, at the North Attleborough town hall. On January 15, the defendant voluntarily surrendered himself to the court and was arraigned. At that time, the Commonwealth moved for a dangerousness hearing....At the dangerousness hearing on January 23, the victim testified that she was married to the defendant and invoked her spousal privilege. She continued to invoke her spousal privilege, and refused to testify at trial.

Before trial, however, "the Commonwealth moved in limine to admit hearsay statements made by the victim before she married the defendant to a close friend, to her sister, and to a police detective."  According to the Commonwealth, "by marrying the victim so that she could claim her spousal privilege, the defendant had forfeited his right to object on confrontation and hearsay grounds to the admission of her out-of-court statements under the forfeiture by wrongdoing doctrine." The trial court agreed, the statements were admitted at trial, and the defendant was eventually convicted of assault and battery.

The defendant thereafter appealed, and the Supreme Judicial Court of Masachussetts noted that in Commonwealth v. Edwards, 830 N.E.2d 158 (2005), it found that under Article 12 of the Masachusetts Declaration of Rights and Masachussetts' common-law rules of evidence (Masachussetts doesn't have codified rules of evidence), Masachussetts recognizes the doctrine of forfeiture by wrongdoing as long as

(1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to procure the witness's unavailability.

In Edwards, the Supreme Judicial Court of Masachussetts found that the defendant's act which procured the unavailability of the subject witness does not need to be criminal for the doctrine to apply, and the court in Szerlong found that the recent opinion of the United States Supreme Court in Giles v. California, 128 S.Ct. 2678 (2008) didn't require a change to this conclusion because it found that the doctrine broadly covers "conduct designed to prevent a witness from testifying."

Thereafter, the court affirmed the trial court's verdict, finding that

Though he made no findings of fact, the judge implicitly found that the defendant married the victim with the intent to enable her to claim her spousal privilege and thereby avoid testifying against the defendant....We conclude that this implicit finding is supported by a preponderance of the evidence....The defendant and the victim were not engaged to be married when the incident occurred on December 13, 2007, but they were wed in town hall on January 5, 2008, after Johnson reported the incident to the police but before the arraignment, while the defendant remained a fugitive. The defendant knew that, as a result of the marriage, the victim would be entitled to the spousal privilege, and that the victim intended to exercise the privilege because she did not want her testimony to cause his conviction. Even if the idea to marry originated with the victim, the defendant agreed to marry, and the victim's spousal privilege existed only because of his agreement. In these circumstances, the judge was entitled to infer that the defendant intended to make her unavailable to testify by agreeing to marry her. The judge did not need to find that making her unavailable as a witness was the defendant's sole or primary purpose in marrying her; it is sufficient that it was a purpose in marrying her.

This seems like a strange conclusion to me. It is the doctrine of forfeiture by "wrongdoing." And while the defendant's act of marrying his alleged victim was not criminal, it seems like a strain to deem it wrongdoing. Now, if the court were declaring the marriage a "sham" marriage like a marriage in which one of the parties is just trying to get a Green Card, then maybe that would be wrongdoing sufficient to trigger the doctrine. But it doesn't seem to me that the court was concluding that this was a sham marriage, just a marriage which also allowed the alleged victim to refuse to testify against her new husband.

If the court is correct, though, does that mean that we have seen the end of the classic case of the gangster marrying his moll to prevent her from testifying against him at trial? It might, and I'm not exactly shedding a tear over the defendant in Szerlong not being able to prevent the alleged victim's statements about the scary acts he allegedly committed against her from being admitted into evidence. I'm just not quite sure that this is the type of situation that the forfeiture by wrongdoing doctrine is intended to cover.

-CM

Changing Minds: Eighth Circuit Opinion Reveals That Arkansas Courts Admit Insurance-Related Statements Under Rule 803(3)

Like its federal counterpart, Arkansas Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. 

So, Rule 803(3) does not cover a declarant's statements related to his will, but does it cover a declarant's oral statements related to his insurance policy? According to many courts, the answer is "no." But, as the recent opinion of the Eighth Circuit in Conseco Life Ins. Co. v. Williams, 2010 WL 3447769 (8th Cir. 2010), makes clear, according to Arkansas courts, the answer is "yes."

In Williams,

Conseco Life Insurance Company...issued a life insurance policy...to Niki Williams..., who died following a battle with cancer. Niki's sister, Ellen Buckley, the named beneficiary, and Niki's sons, Eric and Harold Williams (collectively, "appellants"), the prior beneficiaries, both claimed the proceeds of the policy. Conseco interpled the $100,000 insurance proceeds pending the district court's resolution of the dispute. Buckley claimed that she, using a power of attorney, ultimately named herself beneficiary of the policy at Niki's behest. The appellants denied this and claimed that Buckley used undue influence to procure the policy change. Both sides filed cross summary judgment motions. The district court granted Buckley's motion based on witness affidavits, the record, and the holding of Primerica Life Ins. Co. v. Watson, 207 S.W.3d 443 (Ark. 2005). The appellants appeal, arguing that the district court abused its discretion in applying the Primerica hearsay exception to allow certain affidavits to come in as evidence to determine Niki's intent.

Specifically,

According to Buckley, before her death Niki expressed to several people her desire to change the policy beneficiary designation from the appellants to Buckley. In support of her summary judgment motion, Buckley submitted three affidavits-from Robert McGruder, Shelton Pitre, and Thorn-to support Buckley's contention that Niki desired the change in beneficiary.

In most jurisdictions, this evidence would have been inadmissible. As the Eighth Circuit noted,

These three affidavits are undoubtedly parol evidence and therefore hearsay, which is normally excluded under either the Federal Rules of Evidence 801(c) and 802 or the Arkansas Rules of Evidence 801(c) and 802, which match the Federal Rules in substance.

According to the court, though,

this case-decided under Arkansas law-represents an exception to general rule. Some states do require evidence of intent to be in writing if it relates to gifting in contracts, such as the contract in question....Arkansas does not. The Arkansas Supreme Court has interpreted Arkansas Rule of Evidence 803(3) to allow the admission of witness statements that recall hearing a deceased declarant speaking about the deceased's intention to change her insurance policy beneficiary in the future....These statements are an exception to the hearsay rule and the parol evidence is therefore admissible to prove the truth of the matter asserted and can be used to prove the intent of the unavailable, decease declarant.

The case in which the Arkansas Supremes reached this conclusion was the case cited by Buckley: Primerica Life Ins. Co. v. Watson, 207 S.W.3d 443 (Ark. 2005).

-CM

Real Housewife Of New Jersey: NJ Court Denies Motion To Enjoin Marriage To Prevent Application Of Spousal Testimonial Privilege

New Jersey Rule of Evidence 501(2) provides that

The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse consents, or (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse, or a child to whom the accused or the spouse stands in the place of a parent, or (c) such spouse is complainant.

In Matter of Kozlov, 398 A.2d 882 (N.J. 1979), however, the Supreme Court of New Jersey found that a criminal defendant can "pierce" this spousal testimonial privilege if three conditions are satisfied:

(1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) "by a fair preponderance of the evidence," the party must show "that the information [cannot] be secured from any less intrusive source."

In its recent opinion in State v. Mauti, 2010 WL 3488654 (N.J.SuperA.D. 2010), the Superior Court of New Jersey, Appellate Division, reviewed a trial court opinion permitting the prosecution to pierce the spousal testimonial privilege. Understandably, the court reversed this ruling.

In Mauti, "Joanne" L. alleged that James Mauti, a physician, her employer, and her older sister's boyfriend, sexually assaulted her. After several unsuccessful attempts to secure the voluntary appearance of the older sister, Jeannette, before the Grand Jury, the State subpoenaed her to appear, and she rendered testimony against Mauti, resulting in him being charged with first degree aggravated sexual assault. Before trial, however, Jeannette and Mauti announced their formal engagement to be married, prompting the State to file an order to show cause seeking to enjoin the marriage until the resolution of the pending criminal charge, but the trial court denied the motion, and the Appellate Division later denied the State's emergent application seeking the reversal of the trial court's ruling and the imposition of temporary restraints on the marriage.

Thereafter, Mauti and Jeannette wed, prompting defense counsel to fax a letter to the prosecutor's office stating that Jeannette was "now the holder of a spousal privilege pursuant to N.J.R.E. 501(2)" and that she was invoking her right not to testify against her husband. The State responded by filing a motion to pierce the spousal testimonial privilege, and the trial court granted it, finding that the State had satisfied the three conditions laid out in Kozlov.

Mauti thereafter appealed, and the Appellate Division correctly found that

Here, the State's application to pierce the spousal testimonial privilege in N.J.R.E. 501(2) does not involve a conflict between a defendant's constitutional right to a fair trial and a statutory right, nor is it grounded in a claim of waiver. The State's application simply seeks to compel defendant's spouse to testify about events she witnessed and actions she took after learning of the alleged assault against her sister.

Nonetheless, the court

recognize[d] the facts presented here create a morally compelling case for finding a means of piercing the spousal privilege in N.J.R.E. 501(2). Jeannette's role went far beyond that of a mere witness to defendant's incriminating behavior. By her own admission, Jeannette removed materially incriminating evidence from the crime scene. She thereafter consciously and affirmatively attempted to destroy or tamper with this evidence, by removing forensic or trace materials that could have empirically corroborated the complaining witness's account of the sexual assault. These acts are more akin to the acts of an accomplice than those of a supportive spouse. Finally, in a twist of irony, Jeannette was not defendant's spouse when she accomplished these acts.

Nonetheless, the court found ultimately found that the spousal testimonial privilege is still an enforceable privilege in New Jersey and that it could not create an exception to allow for the admission of Jeanette's testimony in this case, so it reversed the trial court's ruling.

-CM

You've Got Mail: Court Of Appeals Of North Carolina Implies E-Mail Was Properly Authenticated Under Rule 901(b)(4)

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

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

And, like its federal counterpart, North Carolina Rule of Evidence 901(b)(4) provides that

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

(4)     Distinctive Characteristics and the Like. – Appearance, contents, substance, internal  patterns, or other distinctive characteristics, taken in conjunction with circumstances.

And, as the recent opinion of the Court of Appeals of North Carolina in State v. Westrom, 2010 WL 3465716 (N.C.App. 2010), implies, parties should be able to authenticate e-mails under Rule 901(b)(4).

In Westrom, the defendant was convicted of violating a domestic violence protection order. The defendant had dated Carrie Lorraine Faber from 2005 to 2007, and, after their relationship ended, Faber was granted a one-year domestic violence protection order ("DVPO") on April 2008, which forbade contact, including the sending of e-mails, between the defendant and Farber. Thereafter, on June 5-6, 2008, Faber received several e-mails that she believed were from defendant:

At trial, the State introduced three e-mails, without objection, alleged to be from defendant. The first e-mail, sent 5 June 2008..., was sent from the address statestreet2513@yahoo.com. The body of the e-mail was blank, but Ms. Faber testified that when she initially opened the e-mail it included a message, signed by defendant, that disappeared after she read it. The other two e-mails, sent 6 June 2008..., were each shown as being sent from Ms. Faber's personal e-mail address and contained a link to an article about mediation.

Ms. Faber testified at trial that she recognized the e-mails as being authored by defendant based on defendant's prior behavior, the sender addresses and the content of the messages....The State also introduced an e-mail, without objection, sent by defendant on 27 February 2008, prior to the effective date of the DVPO....This e-mail was signed by defendant and sent from his personal e-mail address.

After he was convicted, the defendant appealed, claiming, inter alia, that these e-mails were improperly admitted because they were not properly authenticated. The Court of Appeals, disagreed, noting that the defendant had failed to preserve the issue for appellate review and implying that the e-mails were properly authenticated under North Carolina Rule of Evidence 901(b)(4). Such a finding would have been consistent with precedent from other jurisdictions. For instance, in United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000), the Eleventh Circuit found that e-mail was properly authenticated under Rule 901(b)(4) because

a number of factors support[ed] the authenticity of the e-mail. The e-mail sent to Yamada and von Gunten each bore Siddiqui's e-mail address “msiddiquo@jajuar1.usouthal.edu” at the University of South Alabama. This address was the same as the e-mail sent to Siddiqui from Yamada as introduced by Siddiqui's counsel in his deposition cross-examination of Yamada. Von Gunten testified that when he replied to the e-mail apparently sent by Siddiqui, the “reply-function” on von Gunten's e-mail system automatically dialed Siddiqui's e-mail address as the sender.

-CM