EvidenceProf Blog

EvidenceProf Blog's 4th Annual Halloween Movie Pick: Robert Siodmak's "The Spiral Staircase"

It's Halloween again, which means that it's time for EvidenceProf's Blog's fourth annual Halloween movie pick (after "The Gift," "Homecoming," and "Henry: Portrait of a Serial Killer"). For this year's pick, I'm once again digging into the archives from my days reviewing DVDs and pulling out a review. This one is of Robert Siodmak's "The Spiral Staircase." Siodmak is probably best known for 1946's noir classic "The Killers," which earned him an Oscar nomination for Best Direction, but 1945's "The Spiral Staircase" is also worth a watch on a dark and stormy night. 

"The Spiral Staircase"

Robert Siodmak (The Killers) fled Germany as the Third Reich rose to power so it's appropriate that he directed the 1946 thriller The Spiral Staircase, a turn-of-the-century serial killer thriller about a madman murdering women based on their mental and physical infirmities to cleanse the world of imperfections. Before emigrating, though, Siodmak was involved with the German expressionist movement and you can see all of its trademarks in Staircase: oblique camera angles, distorted compositions, a roving, subjective camera, and shots drenched with shadows.

Staircase was adapted from Ethel Lina's White's (The Lady Vanishes) novel "Some Must Watch," but the film is also clearly indebted to Freudian psychoanalysis and "The Birthmark," Nathaniel Hawthorne's disturbing short story of obsession. Siodmak literally drops us into the action with an overhead shot of the titular staircase that introduces us to the claustrophobic, Victorian mansion in which the heroine and audience will principally be confined for the next 83 minutes.

He then winks at us, Scream-style, by taking us to a hotel parlor where the audience is engrossed in a hand cranked silent film while the killer muffles his latest victim's futile screams upstairs. One of the patrons is Helen, the mute servant to a wealthy family, and the rest of the film stalks her as we try to figure out who amongst a Clue-ish cast of characters is out to get this scream queen who can't scream.

Siodmak directs with a panache that elevates Mel Dinelli's (The Window) potboiler script. The pic was filmed using leftover sets from Orson Wells' The Magnificent Ambersons and Siodmak similarly shoots with wide angle lenses to create a rich depth of field in which viewers focused on a foreground conversation might miss the killer's lightning strike silhouette in the background.

Staircase feels a bit like the darker half of Welles’ flick, with Siodmak employing composer Roy Webb, cinematographer Nicholas Musuraca, and set decorator Darrell Silvera, all of whom worked on Welles’ film and earned their horror stripes on Val Lewton productions like Cat People and The Seventh Victim. What distinguishes Staircase from these Lewton scarers, though, is Siodmak's use of distortion and fisheye lenses to show us the killer's skewed perception of reality in which the mute heroine’s mouth is blotted out. At other times, the frame is filled with Psycho-esque closeups of the killer’s glowering eye accompanied by Webb’s gothic chords.

As Helen, Dorothy McGuire (Gentleman’s Agreement) pantomimes a wide range of emotions in a performance that’s almost the equal of Samantha Morton’s brilliant work in Woody Allen's Sweet and Lowdown. Ethel Barrymore (None But the Lonely Heart) matches her in an Oscar-nominated turn as the mansion's bed-ridden but cantankerous matriarch.

The black-and-white pic is presented in its original 1:33:1 ratio with Dolby Digital 2.0 mono. Besides a trailer for Secret Window, there are no special features, but the flick’s worth a look to see the foreshadowing of modern thrillers like Mute Witness and Jennifer 8 and the nascent use of modern horror techniques such as the creaking door and flittering candlelight. 

-CM

Come Be My Conspiracy: Eleventh Circuit Finds Co-Conspirator Admission Rule Applies Against Late Arriving Co-Conspirators

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

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

But is one co-conspirator's admission admissible against another co-conspirator who had not yet joined the conspiracy at the time that the admission was made? According to the recent opinion of the Eleventh Circuit in United States v. Makarenkov, 2010 WL 4204637 (11th Cir. 2010), the answer is "yes."

In Makarenkov, Vitali Makarenkov and Stanislaw Satarinov were jointly charged with conspiracy to possess with the intent to distribute five kilograms or more of cocaine (Count One) and possession with intent to distribute 500 grams or more of cocaine (Count Two). Subsequently,

Makarenkov was tried alone. The jury found him guilty on Count One, but of the lesser-included offense of conspiracy to possess with the intent to distribute 500 grams or more of cocaine. He was found guilty as charged on Count Two. He was sentenced to seventy-two months on each count, with the sentences to run concurrently, and a forty-eight month term of supervised release on each count, to run concurrently.

After he was convicted, Makarenkov appealed, claiming, inter alia, that the district court erred in admitting recorded conversations between Satarinov, a co-conspirator, and a confidential informant. According to Makarenkov, these conversations took place before he allegedly joined the conspiracy and thus could not be admitted against him as co-conspirator admissions. The Eleventh Circuit disagreed, finding that "it is settled law in this circuit that 'a 'declaration of one co-conspirator is admissible against members of the conspiracy who joined after the statement was made.'' United States v. Lampley, 68 F.3d 1296, 1301 (11th Cir.1995)."

Indeed, the Eleventh Circuit's opinion in Lampley contains the following citation:

See also United States v. Brown, 943 F.2d 1246, 1255 (10th Cir.1991) (citing cases from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth Circuits in concluding that the "prevailing view among the circuits is that previous statements made by co-conspirators are admissible against a defendant who subsequently joins the conspiracy").

-CM

"The Wharton Brand": Eastern District Of Pennsylvania Finds Subsequent Remedial Measures Rule Applies To Breach Of Contract Actions In Action Against Penn

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Back in September 2009, I posted an entry about the Court of Appeals of Wisconsin finding that Wisconsin's counterpart to Rule 407 did not apply to criminal cases. I disagreed with this conclusion, and I think that the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Reynolds v. University of Pennsylvania, 2010 WL 4187935 (E.D.Pa. 2010), which found that Rule 407 applies to breach of contract actions, exposed the flaw in the reasoning of the Court of Appeals of Wisconsin.

In Reynolds, Frank Reynolds was a student in the Executive Masters in Management (EMTM) program at the University of Pennsylvania. Reynolds brought a breach of contract, unjust enrichment, and Unfair Trade Practices and Consumer Protection (UTPCPL) action against Penn, claiming that Penn officials failed to fulfill their promise to him that upon his completion of the EMTM program, he would in effect be considered a graduate of The Wharton School and benefit from "the Wharton Brand." In response to complaints by Reynolds and others regarding the issue of whether they would be entitled to these and other benefits, the

Penn administration scheduled a town hall meeting. The purpose of the meeting was to clarify the nature of the EMTM program's affiliation with the Wharton School....At that meeting Anjani Jain, Dean of the Wharton School, informed the audience that "you are students in the engineering school....The admissions are done [in] engineering. You go to commencement from Penn Engineering, and the degree you get is an engineering degree."...Jain also stated "I think for all intents and purposes your access to our alumni services is indistinguishable from those who have Wharton degrees."...Lyle Ungar, an EMTM co-director, acknowledged that "[there have] occasionally been mistakes made from within" with respect to the marketing of the program....He elaborated: "some of them to my horror only mention Wharton, which I think is, you know, unforgivable."...However, when asked later whether the EMTM program was "marketed as an exclusively Wharton program to any of you," unidentified audience members responded in the negative.

After the jury found for Penn on the UTPCPL claim, found for Reynolds on the breach of contract claim, and did not render a verdict of the unjust enrichment claim, the United States District Court for the Eastern District of Pennsylvania granted Penn's motion for a new trial.

Before the retrial, Reynolds claimed for the first time that he should be able to admit evidence concerning what happened at the town hall meeting despite the fact that it was evidence of subsequent remedial measures because "Rule 407 does not apply to breach of contract claims." The court rejected this argument and deemed the evidence admissible. This time, the jury found for Penn on the breach of contract claim but found for Reynolds on the unjust enrichment claim.

The parties then cross-appealed, and the court, inter alia, affirmed its ruling under Federal Rule of Evidence 407.

First, the court found that the plain language of the rule indicates that it applies to breach of contract actions, concluding that

Had the drafters of the Rule intended it to apply only to tortious conduct, they could have used the words "tortious conduct" in place of "culpable conduct." By choosing the broader of the two phrases, the drafters clearly demonstrated their intent not to confine the application of the Rule to tort cases. Because a breach of contract is culpable conduct...I find that the plain language of Rule 407 indicates that it applies to breach of contract cases. 

Second, the court found that the public policy underlying the Rule indicates that it applies to breach of contract actions, citing a Seventh Circuit opinion for the proposition that

"to use at a trial a revision in a contract to argue the meaning of the original version would violate Rule 407 of the Federal Rules of Evidence, the subsequent-repairs rule, by discouraging efforts to clarify contractual obligations, thus perpetuating any confusion caused by unclarified language in the contract."

Third, the court found that the application of Rule 407 must be predictable and that

the application of the Rule cannot depend on whether a plaintiff chooses, potentially years later, to bring a lawsuit sounding in tort or one sounding in contract. In order for the Rule to accomplish its salutary purpose of incentivizing remedial action, its application at trial must be predictable. That is, a potential defendant must be confident that when he takes remedial action it will not later be admitted at trial as evidence of his liability.

Reynolds's suggested distinction would dramatically reduce the predictability of the Rule's application. Before taking remedial action, a potential defendant would need to assess the likelihood that a plaintiff will couch his claim in contract terms. The mere possibility, however remote, that the facts might support a contract claim would interpose a substantial practical obstacle to the remedial action.

I agree with all three of the points made by the court and think that all of these points also explain why Rule should apply to criminal actions. Criminal conduct is culpable conduct, the public policy underlying the Rule indicates that it applies to breach of conduct actions (we don't want to discourage efforts to, say, remedy criminal negligence), and application of the Rule cannot depend on whether, say, the government chooses to bring an action sounding in criminal negligence after a plaintiff has already sued for civil negligence.

-CM

Article of Interest: Josephine Ross' Blaming the Victim: 'Consent' Within the Fourth Amendment and Rape Law

It used to be that courts applied an objective definition of consent in rape prosecutions. This was because of traditional force and resistance requirements:  

First, courts interpreted the element of force to require that the man overpower the woman or threaten her with death or physical injury. If a woman submitted to subtle forms of coercion, the law would view her submission as consent. Second, common law courts required rape victims to resist unwelcome advances "to the utmost."

As a result, "[i]nstead of crediting the victim's perspective,...court[s] turned the question of consent into a normative question about the quantity and quality of force used by the aggressor." Feminists, however, have been largely successful in getting courts and legislatures to eliminate or relax force and resistance requirements, leading to an increased focus on the alleged victim's subjective state of mind and an increased recognition of individual autonomy as the primary purpose of prohibiting sexual assault.

The converse, however, has occurred with regard to consent in the Fourth Amendment context.

It used to be that courts determined whether a suspect consented to a police search by applying a "totality of the circumstances" test which considered both subjective (the characteristics of the accused) and objective (the conduct of the police and the circumstances surrounding the interrogation) circumstances. But "[w]hile sexual assault law began to credit the subjective understanding of the person claiming she did not consent, Fourth Amendment law began eliminating the subjective inquiry almost entirely." That's not to say that courts have read subjective circumstances out of Fourth Amendment consent law.

"Officially, the subjective prong is still viable" in determining if a search was consensual, noted Ric Simmons, but after [the Supreme Court's opinion in United States v. Drayton, 536 U.S. 194 (2002], in practice, the voluntariness test for consent has become so inextricably linked to the objective Fourth Amendment test for seizure that it is unlikely that the subjective elements will ever be reaffirmed by the courts.” The majority framed this objective question of consent as whether a reasonable innocent person would know “that he or she was free to refuse” the search. Scholar Joshua Dressler summarized the current state of consent law in this way: "In reality, the concept of voluntariness is a normative one. The real issue for courts is whether the police methods of obtaining consent are morally acceptable." In other words, if the Court approves of the actions taken by police, it will deem that the individual submitted voluntarily. If the Court finds the actions of police to be unacceptable, then the Court will hold that the civilian merely submitted to a show of authority. In truth, the consent exception has nothing to do with what the victim of the search wanted.

So, should courts import modern consent doctrine from rape cases into  Fourth Amendment cases so that there is a "victim perspective" for searches and seizures and the recognition that autonomy and privacy are the core goals of consent policy? That's the argument by Josephine Ross, an Associate Professor and the Supervisor of the Criminal Justice Clinic at the Howard University School of Law, in her recent article, Blaming the Victim: 'Consent' Within the Fourth Amendment and Rape Law, 26 Harv. J. Racial & Ethnic Just. 1 (2010), which I highly recommend to readers. I asked Professor Ross what led her to write the article, and she responded as follows:

I am a long-standing feminist who teaches a criminal defense clinic. I noticed that on many occasions our client had received unwelcome attention by the police in a shakedown for drugs, but the court would not suppress the evidence because the clients allowed the police to search them. We had to tell our clients that the judge thinks “you should have fought back or tried to walk away” knowing full well that this might have made things worse for them at the time. It reminded me of the times juries told rape victims “you should have fought back. Because you didn’t, you must have wanted it.” Our clients didn’t want to be searched any more than the rape victim wanted sex.

 

I think many of the feminist critiques of the traditional rape doctrine are brilliant and wanted to bring their insights into the Fourth Amendment, using feminist theory to further an anti-racist agenda.

 

What people like most about this article is the use of the film “Crash”; I’m told you don’t have to have seen the movie to enjoy the analogies here.

-CM 

That's Settled: Eastern District Of Missouri Finds Documents Compiled During Settlement Negotiations Not Covered by Rule 408

Federal Rule of Evidence 408 provides:

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

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

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

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

Moreover, it is well established that Rule 408 covers not only statements made during settlement negotiations but also documents prepared for settlement negotiations. As the recent opinion of the United States District Court for the Eastern District of Missouri in Goodman Distribution, Inc. v. Haaf, 2010 WL 4117379 (E.D.Mo. 2010), makes clear, however, the Rule does not cover all documents prepared (or compiled or collected) during settlement negotiations.

In Haaf,

Goodman allege[d] Mary Haaf devised a scheme to submit false and fraudulent warranty claims. Goodman alleges between approximately August 21, 2009, and October 16, 2009, she submitted over 375 false claims. A list of the claims with the claim numbers, unit serial numbers, dates of approval, and check numbers [wa]s attached to the complaint as Exhibit B. According to Goodman, these claims were fraudulent in that: the work required to charge the unit ha[d] not been done; the work performed was not necessary; the unit was no longer under warranty; and/or the maximum $200.00 per unit limit under the cap replacement program had already been paid. Goodman state[d] it relied on the false statements defendants made in the warranty claims when it paid these allegedly fraudulent claims.

Plaintiff also allege[d] it inadvertently paid money to defendants that was not due or owed. Plaintiff alleges it mistakenly sent checks to defendants as a result of a typo. Plaintiff alleges it...demanded the return of this money, but defendants...refused to do so.

Goodman thus brought an action against Haaf and Herb Haaf, Inc. for  fraud, money had and received, and breach of contract. Before trial, the defendants moved, inter alia, pursuant to Federal Rule of Civil Procedure 12(f),

to strike Exhibit C from the complaint. Exhibit C contain[ed] invoices from Herb Haaf, Inc. to its customers, and warranty claim forms submitted to Goodman....

Defendants argue[d] the invoices and warranty claim forms attached as Exhibit C should be stricken because they are inadmissible under Rule 408...in that they were complied and provided to plaintiff during settlement negotiations.

In denying this motion, the court correctly noted that

The issue before the Court..., however, is not whether...the documents in the exhibit are admissible, but rather whether they are immaterial, impertinent, and scandalous matter. Rule 12 is directed to allegations in a complaint, not to the admissibility of evidence.

Moreover, the court correctly concluded that

In any event, Rule 408 would not apply to the documents at issue....

While the documents may have been complied and provided to plaintiff during settlement negotiations, they do not appear to have been prepared for the settlement negotiations. Upon examination, it would seem the documents were created by Herb Haaf, Inc. during the regular course of its business. "Rule 408 does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations."

-CM

Avoiding A Confrontation?: Does The Bruton Doctrine Cover Nontestimonial Hearsay After Crawford?

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that, at a joint trial, a defendant's Sixth Amendment right of confrontation is violated by admitting the confession of a non-testifying codefendant that implicates the defendant, regardless of any limiting instruction given to the jury. In other words, if Carl confesses to Police Officer Peters, "Dan and I robbed the bank," Carl's confession is inadmissible at the joint trial of Carl and Dan for bank robbery unless Carl takes the witness stand. According to the Court, this is not because the introduction of Carl's confession literally would violate Dan's right "to be confronted with the witnesses against him...." 

Instead, the Court correctly noted that a confession such as Carl's confession is technically only admissible against him, which is why a court arguably could admit Carl's confession along with a limiting instruction telling jurors to ignore the confession in determining Dan's guilt or innocence. See Bruton, 391 U.S. at 128 n.3 ("We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence,...the problem arising only because the statement was...admissible against the declarant."). The Court concluded, though, that there was a substantial threat that the jury would ignore such a limiting instruction and use the codefendant's confession as evidence of the other defendant's guilt, which is why such confessions are inadmissible unless the codefendant testifies.

This point is driven home by the fact that a "myriad [of] Courts of Appeals...have recognized that the rule and rationale of Bruton do not apply to bench trials." Johnson v. Tennis, 549 F.3d 296, 300 (3rd Cir. 2008). If Carl's confession literally violated Dan's right to be confronted with the witnesses against him, it would violate this right at both a jury trial and a bench trial.  But as noted, Carl's confession is not really admitted against Dan, and courts presume that judges are able to use Carl's confession solely as evidence of his guilt and not as evidence of Dan's guilt, which is why they don't apply Bruton to bench trials. See id.

Based upon this analysis, I don't think that the Supreme Court's landmark decision in Crawford v. Washington, 541 U.S. 36 (2004), had any impact on the Bruton doctrine. Almost every court, however, seems to disagree.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In other words, the Confrontation Clause is violated when testimony or testimonial hearsay is admitted against a defendant and he is not given the chance to cross-examine the declarant.

So, after Crawford, does the Bruton doctrine only cover testimonial hearsay? For instance, would Carl's confession to his friend Fred (which would likely not be defined as "testimonial" under Crawford and its progeny) that Dan and he robbed the bank be admissible at their joint jury trial only if Carl testified?

That takes us to the recent opinion of the United States District Court for the Eastern District of Virginia in United States v. Williams, 2010 WL 3909480 (E.D.Va. 2010). In Williams, Marvin Wayne Williams, Jr., Freddie Wigenton, and Deshawn Anderson were charged with conspiracy to distribute crack cocaine, intentional killing while engaged in drug trafficking, and use of a firearm during a drug offense relating in death. These defendants allegedly made statements to several witnesses incriminating both themselves and their co-defendants, and their joint trial is set for November 1, 2010.

The government moved to introduce these statements at trial, and, inter alia, Wigenton moved to suppress these statements, claiming that their admission would violate the Bruton doctrine (because apparently the defendants do not plan to testify at trial). If his case were being heard in most jurisdictions, Wigneton's motion likely would have been unsuccessful. The court noted that

the Government argues that Bruton, like the Confrontation Clause, is limited by Crawford to testimonial statements. The Government is in good company. See United States v. Dale, No. 08-3172, 2010 WL 2977410, at *9 (8th Cir. July 30, 2010) (defendant's statements to prisoner were not testimonial and therefore did not violate co-defendant's Confrontation Clause rights); United States v. Castro-Davis, 612 F.3d 53, 65 (1st Cir.2010) (finding defendant's recorded telephone statements to his mother non-testimonial); United States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir.2010) (“[T]he Bruton rule, like the Confrontation Clause on which it is premised, does not apply to nontestimonial hearsay statements.”); United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009) (same); United States v. Pike, 292 F. App'x 108, 112 (2d Cir.2008) (“[B]ecause the statement was not testimonial, its admission does not violate either Crawford or Bruton.”). If correct, this argument would bar the statements at issue in this case, because, having allegedly been made by Defendants to fellow prisoners, they are not testimonial. See Davis v. Washington, 547 U.S. 813, 825 (2006) (statements from one prisoner to another are “clearly” not testimonial).

Moreover, I have found several other opinions reaching the conclusion that, after Crawford, the Bruton doctrine covers only testimonial hearsay.

The United States District Court for the Eastern District of Virginia, however, rejected this argument, finding that while the Court in Crawford held that the Confrontation Clause covers testimonial hearsay, it did not hold that the Clause only covers testimonial hearsay. See Crawford, 541 U.S. at 60-61 ("Members of this Court and academics have suggested....two proposals: First, that we apply the Confrontation Clause only to testimonial statements....Second, that we impose an absolute bar to statements that are testimonial....In [White v. Illinois, 502 U.S. 346, 352-53 (1992)], we considered the first proposal and rejected it. Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether it survives our decision today...."). The opinion then provided some interesting reasons for why the Bruton doctrine should continue to apply to nontestimonial hearsay, and I will let readers review that opinion for those reasons.

The reason I'm not going to address the court's conclusion in this post, though, is that I don't even see how a case such as Williams triggers a Crawford analysis. This is because, as noted above, Bruton did not cover a case that literally triggered the Confrontation Clause. In Bruton, the Court noted that the codefendant's confession "was clearly inadmissible" against the defendant, just as Anderson's confession would be clearly inadmissible against Wigenton. Therefore because Carl's hearsay statement would not be admitted against Dan (and Anderson's hearsay statement would not be admitted against Wigenton), there is not a real Confrontation Clause issue, and Crawford does not apply.

Instead, as noted, the point of Bruton was that jurors would improperly use the codefendant's confession as evidence of the defendant's guilt even though the codefendant's confession was not being admitted against the defendant. Thus, the issue of whether the codefendant's confession is "testimonial" should be irrelevant unless jurors are less likely to use nontestimonial confessions as evidence of the defendant's guilt. And I don't think that this is the case. If Carl tells a cop, "Dan and I robbed the bank," the statement is almost certainly "testimonial," and, as noted, if Carl tells his friend the same, the statement is almost certainly "nontestimonial." I think that most would agree, though, that a juror hearing the latter confession is just as a juror hearing the former confession to use the confession as evidence of Dan's guilt. And that's why I think (a) that Crawford didn't alter the Bruton doctrine, and (b) that the Bruton doctrine covers nontestimonial hearsay. 

-CM

Your Friends & Neighbors: Court Of Appeals Of Michigan Finds Statements Of Abuse To Neighbors Are Not Testimonial

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." So, does is a statement by an alleged victim to her neighbor about an act of abuse committed against her "testimonial" and possibly violative of the Confrontation Clause? According to the recent opinion of the Court of Appeals of Michigan in People v. Stenberg, 2010 WL 3984639 (Mich.App. 2010), the answer is "no."

In Stenberg, Edward Stenberg was convicted of  first-degree murder, being a felon in possession of a firearm, and two counts of possession of a firearm during the commission of a felony. Stenberg allegedly murdered his wife, and, at trial, the prosecution called a neighbor to testify that the wife previously told him that Stenberg had assaulted her with a blackjack and tried to suffocate her with a pillow.

Upon Stenberg's ensuing appeal, the Court of Appeals of Michigan found that this testimony was properly admitted under Michigan's domestic violence exception to the propensity character evidence proscription and that Stenberg failed to preserve the issue of whether his wife's statement qualified as an excited utterance for appellate review. That left the issue of whether the introduction of the wife's statement ran afoul of the Confrontation Clause.

The Court of Appeals of Michigan found that it did not because the statement was not testimonial. According to the court,

The Crawford Court "le[ft] for another day," a comprehensive definition of "testimonial."... Id. But it did mention that testimonial statements would include, at a minimum, police interrogations and prior testimony from a preliminary hearing, a grand jury, or a trial....The Court explained that “"[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."...The Court later, while addressing only "police interrogations," determined that not all statements during police interrogations were testimonial. Davis v. Washington, 547 U.S. 813, 822....Statements made during police interrogations are testimonial when made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial....

Here, the statements at issue are the ones [the wife] gave to her neighbor, describing the assault. First, it is obvious that the circumstances surrounding this statement vastly differ from those mentioned in Crawford. The statements do not involve police interrogation or testimony from any prior proceeding. Second, even if one applies the police interrogation test described in Davis, it is apparent that an objective witness would not reasonably believe that her statements to a neighbor would be available for use at a later trial. In fact, the United States Supreme Court stated, in dicta, that statements to "friends and neighbors about abuse and intimidation" are nontestimonial and do not implicate the Confrontation Clause. Giles v. California, --- U.S. ----; 128 S Ct 2678, 2692-2693; 171 L.Ed.2d 488 (2008). Because Laura's statements to her neighbor were permissible under [the domestic violence exception], qualified as an excited utterance exception to hearsay, and were not testimonial, the trial court did not err when it admitted the statements, and defendant's claim fails.

-CM

Land Of Confusion: Massachusetts Court's Ruling On Prior Inconsistent Statement Reveals Problems With State's Lack Of Rules Of Evidence

With the Supreme Court of Illinois recently approving and promulgating Illinois Rules of Evidence, Massachusetts remains one of the few states without codified rules of evidence. In June 2006, the Supreme Judicial Court of Massachusetts did create the Advisory Committee on Massachusetts Evidence Law to prepare a Guide to the Massachusetts law of evidence. And while the Committee did create such a Guide listing Proposed Massachusetts Rules of Evidence, those Proposed Rules were never adopted, and they have been removed from the public eye at the request of the Committee. The result? Cases like Commonwealth v. Belmer, 1210 WL 2, in which the Appeals Court of Massachusetts revealed the tortured history of the rule regarding prior inconsistent statements in Massachusetts.

In Belmer, Dequan Belmer was convicted of assault and battery based upon acts that he allegedly committed against the fifteen year-old victim. The day after the alleged assault and battery,

the victim's mother, Edith Allen-Belmer, went to court and obtained an abuse prevention order against her husband, the defendant...In her affidavit in support of the restraining order, she swore under penalty of perjury that she and the defendant had been arguing the previous night about his infidelity. The victim had intervened and warned the defendant not to touch his mother. The defendant had responded by instigating a fight with the victim, which ended when the defendant "punch[ed] [the victim] in the face," knocking him to the floor. The blow left the victim bleeding and "dazed for about 2 or 3 second[s]." At a hearing..., Allen-Belmer repeated these claims under oath before a judge.

At trial, however,

Allen-Belmer denied that the defendant punched the victim. Instead, she claimed that her argument with the defendant was purely verbal, and that the defendant was "talk[ing] with his hands" during the argument. Eventually, the victim came out of his room and approached his parents. At that moment, the defendant accidentally struck the victim's face with his elbow. Afterwards, the defendant helped the victim up off the floor and took him to the bathroom to wash his wound.

At this point, over Belmer's objection, the prosecution introduced evidence of Allen-Belmar's prior inconsistent statements in the affidavit and at the hearing.

After he was convicted, Belmar appealed, claiming, inter  alia, that these prior inconsistent statements were improperly admitted. In addressing this issue, the Appeals Court of Massachusetts noted that the Supreme Judicial Court of Massachusetts in Commonwealth v. Daye, 469 N.E.2d 483 (Mass. 1984), adopted Proposed Massachusetts Rule of Evidence 801(d)(1)(A), which provided that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

In Daye, however, the court only adopted the Proposed Rule as it applied to prior grand jury testimony. Subsequently, however, courts adopted the Proposed Rule as it applied to probable cause hearing testimony and testimony from prior trials. In Belmer, the court adopted the Proposed Rule as it applied to Allen-Belmer's prior statements because they satisfied the two part test laid out by the Supreme Judicial Court of Massachusetts in Daye: (1) the declarant was subject to cross-examination, and (2) the prior statement was in the declarant's own words, as opposed to being simply "yes" or "no" answers to leading questions.

The court also noted that in Daye, the court also held that when a prior inconsistent statement "concerns an essential element of the crime, the Commonwealth must offer at least some corroborative evidence..." The court, however, noted that the Supreme Judicial Court of Massachusetts later concluded that this requirement affects only the sufficiency of the evidence, not the admissibility of the statement.

This is exactly the type of confusion and piecemeal approach that you get when a jurisdiction does not have codified rules of evidence, and I hope that Massachusetts changes its prior decision and eventually adopts its Proposed Rules of Evidence in some form. We'll see.

-CM

Some Call It Subterfuge: Court Of Appeals Of North Carolina Finds Prosecution's Impeachment Of Own Witness Was Proper

Like its federal counterpart, North Carolina Rule of Evidence 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling him. Rules such as North Carolina Rule of Evidence 607 were designed to replace the common law voucher rule, which held that a party, in effect, vouched for the credibility of the witnesses it called, meaning that it could not impeach them. A party, however, cannot call a witness for the sole or primary purpose of impeaching a witness, such as when a party calls a witness who it knows will not provide helpful testimony at trial so that the party can impeach the witness with a prior inconsistent statement that it helpful to the party. But how is a court supposed to decide when a party legitimately impeaches its own witness and when a party is using Rule 607 as a subterfuge for putting otherwise inadmissible hearsay before the jury? This was the question addressed by the recent opinion of the Court of Appeals of North Carolina in State v. Gabriel, 2010 WL 4068684 (N.C.App. 2010).

In Gabriel, Damien Lanel Gabriel was indicted on one count of first-degree murder and one count of assault with a deadly weapon with intent to kill inflicting serious injury. These crimes were committed at a house belonging to Dennis Brown.

At trial, the State called Brown to testify regarding the events leading up to, and immediately following, the shooting. Brown testified that he did not call Defendant on the day of the shooting and ask Defendant to bring a gun to Brown's house and also that he did not recall whether he saw Defendant enter Brown's house with a weapon immediately after the shooting. Because this testimony was inconsistent with Brown's prior statements to police, the State moved the court to allow the State to treat Brown as a hostile witness. After the court granted the motion over Defendant's objection, the State extensively cross-examined Brown on his prior statements. Brown denied telling police officers that he called Defendant to bring a gun and denied telling officers that he saw Defendant with a gun following the shooting.

The State later attempted to introduce a redacted version of a transcript of Brown's prior statements. Over Defendant's objection, the trial court ruled the statements admissible for the purpose of impeaching Brown's credibility.

After he was convicted, Gabriel appealed, claiming, inter alia, that the admission of Brown's out-of-court statements for the purpose of impeachment was error on the ground that "the prosecutor used the guise of impeaching its own witness as a subterfuge for putting otherwise inadmissible hearsay before the jury when the record failed to show the prosecutor was surprised by Brown's in-court testimony[.]" The Court of Appeals of North Carolina agreed with Gabriel that if this were what the prosecution did, its actions would have been improper, noting that in State v. Hunt, 378 S.E.2d 754 (N.C. 1989), the Supreme Court of North Carolina

acknowledged that the "overwhelming weight of federal authority with regard to the use of the identical Fed.R.Evid. 607 has long been that impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible."...

The Court in Hunt further noted that

[i]t is the rare case in which a federal court has found that the introduction of hearsay statements by the state to impeach its own witness was not motivated primarily (or solely) by a desire to put the substance of that statement before the jury. Circumstances indicating good faith and the absence of subterfuge in these exceptional cases have included the facts that the witness's testimony was extensive and vital to the government's case; that the party calling the witness was genuinely surprised by his reversal; or that the trial court followed the introduction of the statement with an effective limiting instruction.

The court, however, found that the case before it was one of these rare cases. According to the court,

the introduction of Brown's prior statements was preceded by a limiting instruction explaining to the jury that "the Court is allowing these exhibits to be admitted for one purpose and for one purpose alone, and that purpose is what is known as impeachment of certain testimony of the witness, Dennis Brown." These instructions are sufficient for the jury to distinguish this evidence as impeachment evidence, rather than substantive evidence.

Further,...in this case Brown's testimony was valuable to the State's case in that it described Brown's home and backyard in relation to the path through the woods leading to the shopping center where Defendant was spotted after the shooting, it laid the foundation for admission of Defendant's telephone calls from prison to Brown, and it corroborated other eyewitness testimony....

Finally, the facts of this case do not indicate...that "the state appeared to know before [the witness] was called to the stand that she would not cooperate by reiterating her prior statements."...In this case, while Brown's "lack of cooperation with the State and his failure to appear voluntarily until [ ] after being served with a show-cause order" certainly tend to show that Brown was reluctant to testify at Defendant's trial, there is nothing to indicate that the State knew Brown would refuse to testify to, or would testify inconsistently with, the matters contained in Brown's prior statement.

-CM

Heightened Everything?: Why The Fifth Circuit's "Heightened" Abuse Of Discretion Standard In Criminal Cases Isn't Really Heightened

Templeton argues that the district court abused its discretion when it admitted evidence of his prior cocaine trafficking and his 2004 arrest for cocaine possession. We review the admission of evidence under Federal Rule of Evidence 404(b) under a "heightened" abuse of discretion standard. "Evidence in criminal trials must be strictly relevant to the particular offense charged." United States v. Templeton, 2010 WL 4026122 (5th Cir. 2010).

So, what exactly does this mean? Is this "heightened" abuse of discretion standard different than the (regular) abuse of discretion standard used in civil cases? After my review of case law, my conclusion is that the answer is "no." 

In Templeton, as noted, the Fifth Circuit found that a "heightened" abuse of discretion standard applies to evidence admitted under Rule 404(b). This "heightened" abuse of discretion standard, however, does not apply only to evidence admitted under Rule 404(b) but also to evidence admitted under any rule of evidence in criminal trials. The first Fifth Circuit case to reach this conclusion was United States v. Anderson, 933 F.2d 1261 (5th Cir. 1991), in which the court held that

We apply a highly deferential standard to a trial court's evidentiary rulings and will reverse only for an abuse of discretion. Nevertheless, our review of evidentiary rulings in criminal trials is necessarily heightened. As the Supreme Court has instructed, evidence in criminal trials must be "strictly relevant to the particular offense charged." Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949).

Williams, a case decided before the adoption of the Federal Rules of Evidence, held that

Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct.

In other words, the language from Williams that the Fifth Circuit adopted in Anderson actually did deal with evidence admitted under Rule 404(b): character evidence. Basically, the Court was holding that even if character evidence (e.g., evidence that a defendant on trial for cracking a safe cracked a safe in the past) is somewhat relevant to the particular offense charged (e.g., to prove he knew how to crack safes), an appellate court should find error with a trial court's decision to admit it if it is not strictly relevant to the crime charged (e.g., if its admission was a waste of time or confused the jury).

If we look at the Federal Rules of Evidence, however, it is easy to see why the Fifth Circuit extended Williams' rationale to all criminal cases. Federal Rule of Evidence 401 provides that

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Relevant evidence, though, isn't automatically admissible. Instead, Federal Rule of Evidence 403 provides that

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

In other words, for evidence to be admissible, it can't simply be somewhat (or logically) relevant; instead, it must be strictly (or legally) relevant. But here's the thing. The Federal Rules of Evidence apply in both civil and criminal actions. Thus, evidence must be strictly relevant in both civil and criminal trials. Therefore, it seems to me that the Fifth Circuit's conclusion that a "heightened" abuse of discretion standard applies to criminal trials is a meaningless vestige from the days before the adoption of the Federal Rules of Evidence. Now that Rule 403 applies in both criminal and civil cases, the standard of review should be the same in both types of cases. And, in my review of Fifth Circuit cases, I have found no difference in the abuse of discretion standard used by the court in civil and criminal cases, despite the fact that the Fifth Circuit labels the standard in the latter type of cases as a "heightened" abuse of discretion standard.

-CM

Proper Proffer?: Third Circuit Finds No Problem With Proffer Statement Waiving Defendant's Right To Kastigar Hearing

In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that the Fifth Amendment does not require a grant of transactional immunity before a witness' testimony can be compelled; instead, a grant of use and derivative use testimony is coextensive with the privilege against self-incrimination. Conversely, the Court held that a mere grant of use immunity alone is not coextensive with the privilege. Thus, if the government decides to prosecute a witness who testified under an immunity agreement, the court will hold a Kastigar hearing to determine whether the prosecution is properly based upon independent evidence or whether it is improperly based upon evidence derived from the witness' testimony. 

Meanwhile, Federal Rule of Evidence 410(4) indicates that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

So, can the prosecutor force the defendant and his attorney to sign the following statement to get to the plea bargaining table?:

[T]he government may make derivative use of, and may pursue investigative leads suggested by, statements made or information provided by you or your client. That is:

[a] your client waves any right to challenge such derivative use and agrees that such use is proper; and

[b] your client agrees that Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 do not govern such derivative use.

This provision eliminates the necessity of a Kastigar hearing at which the government would have to prove that its evidence at trial or other legal proceeding is untainted by statements made or information provided during the “off-the-record” proffer.

According to the recent opinion of the Third Circuit in United States v. Merz, 2010 WL 3965856 (3rd Cir. 2010), the answer is "yes."

In Merz, Robert Merz was convicted of advertising, possessing, receiving, and transporting child pornography. Some of the evidence used to convict him was derived from statements that Merz made during plea discussions. Thos plea discussions were preceded by the defendant and his attorney signing the proffer statement listed above. 

After he was convicted, Merz appealed, claiming, inter alia, that "even though the Government's proffer letter reserved the right to make derivative use of his proffer statement, the Government's lack of good faith required the evidence derived from his proffer session be excluded." In rejecting this argument, the Third Circuit found that

Other Circuits have held that, because proffer agreements are interpreted in light of contract law principles, a provision allowing for derivative use is valid so long as the proffer letter clearly reserves the right to use derivative information....Like these courts, we decline to find that prosecutors violated a duty of good faith, if one applied, by adhering to the terms of the proffer letter. As the Government did not violate the terms of the agreement with Merz, there is no basis to exclude the evidence.

I guess I see the Third Circuit's point, but I think that the court missed Merz's point. I'm guessing that his point was that the government acted in bad faith by getting him to sign the proffer statement and make certain incriminatory statements while it had no intention of offering him a plea bargain. I'm not sure whether such bad faith by the government should be enough to have a proffer statement deemed invalid, but I think that the court should at least have explored this issue.

-CM

Arm Of The Judiciary: New Jersey Appellate Court Finds Judge's Clarification About Translations Didn't Violate Rule 605

A defendant is charged with armed robbery and related offenses. At trial, a Spanish speaking employee of the store that the defendant allegedly robbed testified through two interpreters that the defendant robbed the store. Thereafter, defense counsel impeaches the employee-witness through testimony that the witness gave during a pretrial hearing, during which he referred to the incident as an "asulto," which a different interpreter translated as an assault. During a lunch recess, the two trial interpreters approach the judge in his chambers and tell him that "asulto," has two meanings, assault and robbery. Over defense counsel's objection, the judge thereafter instructs the jury that the trial interpreters told him about the two meanings of "asulto." Has the judge committed error? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Baylor, 2010 WL 4028585 (N.J.Super.A.D. 2010), the answer is "no." I agree.

The facts in Baylor were as stated above. After the employee testified that the defendant robbed the store, defense counsel impeached him through the following exchange:

Q. And do you remember being asked the following questions and giving the following answer, on page 5 line 9?

A. Yes. Yes.

Q. Question by [the prosecutor] to you, "Did a robbery occur at the store on October 24th, 2005? Answer: It was kind of an assault."

A. A robbery, yes, a robbery. The come in with guns and it is a robbery...

THE COURT: Do you remember him asking you what happened and you said there was an assault, or like an assault?

THE WITNESS: Yes. Yes. Yes...

Q. And do you remember being asked yet again a second time,...again from [the prosecutor], "Now, you said the incident was kind of an assault? Yes, it was an assault."...

Sir, did you give the following answer a second time, “yes, it was an assault?”

A. Yes.

Subsequently, after the interpreters talked with the judge in his chambers, the judge gave the following jury instruction:

Now, another issue that has come up, the court reporters that we have today approached me at lunchtime and said, you know, there may be differences in interpretation of a given word, assault. And assault, they indicate may mean robbery in Spanish. Well, that could be important in this case. We have an interpretation from a couple of days ago....

There was a record from a couple days ago, and you heard the questioning in that connection by [defense counsel], he asked was it a robbery, and the answer a couple of days ago, it was an assault. Or it was a robbery, kind of an assault, and then he was further asked, he said it was a robbery. He said it was a robbery.

But there is much confusion in my mind that I felt I had to delve into this with this explanation, particularly so because today he did use both the phrases or both terms, and I asked our court reporter to read it back to everyone at lunchtime before you got here, and he said, yes, the assault, the robbery. So, there you are.

I'm not testifying, I'm only telling you that there is a question concerning that interpretation. I think counsel may ask questions to further clarify this of the witness himself. It is terribly important to have an understanding from him as to what he means by a given word. That is really the critical aspect of it, as I see it.

We reject defendant's contentions on appeal that the judge's instruction to the jury was error because it constituted hearsay, testimony by the judge, or expert evidence without proper foundation.

After the defendant was convicted, he appealed, claiming that the judge's actions violated New Jersey Rule of Evidence 605, which provides that "The judge presiding at the trial may not testify as a witness in that trial. No objection need be made to preserve the point." In rejecting this argument, the Superior Court of New Jersey, Appellate Division, found that

The judge gave explanatory instructions to the jury after the interpreters informed him of their clarification of Teofilo's testimony. The judge was no more a witness than at any other time when a trial judge instructs the jury regarding the law, a point of evidence, or the nature of a ruling that affects the jury's consideration of the evidence. Defendant's contention is untenable that the judge should have allowed a potentially incorrect interpretation to stand after it was brought to his attention. We find no abuse of discretion in the trial judge's clarification of the interpreters' translation.

What was unstated in the court's opinion, but what the trial judge correctly found, was that "court interpreters are an arm of the judiciary, to aid and assist." Why was this point important? Well, courts have found that judges violate Rule 605 if they engage in ex parte communications and then relay those communications to the jury. See, e.g., State v. Ryan, 601 N.W.2d 473 (Neb. 1999). Communications with interpreters, however, are not ex parte, i.e., with one party, because judges appoint interpreters pursuant to Federal Rule of Evidence 28 and state counterparts, meaning that they are an arm of the judiciary.

-CM

Discovery Channel: Eastern District Of California Notes That Rules Of Evidence Don't Govern Discovery

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

So, what happens if a party seeks information relating to the opposing party's subsequent remedial measure(s) during discovery? Does the opposing party have to respond to such a discovery request? Well, as the recent opinion of the United States District Court for the Eastern District of California in Bernat v. City of California, 2010 WL 4008361 (E.D. Cal. 2010), makes clear, the answer is likely "yes" because the Federal Rules of Evidence merely govern the admissibility of evidence and do not control pretrial discovery.

In Bernat, John Bernat brought an action against, inter alia, the City of California City, the California City Police Department, Officer Standish Knowlton, and Lieutenant Eric Hurtado, claiming that he was subjected to excessive force by defendants Knowlton and Hurtado. During discovery, Bernat propounded a request for documents upon City seeking information that is contained within Knowlton's and Hurtado's personnel records. The City indicated that it refused to produce some of these documents because they contained evidence of subsequent remedial measures, which is inadmissible under Federal Rule of Evidence 407.

In rejecting this argument, the United States District Court for the Eastern District of California noted that Federal Rule of Evidence 407, like other Federal Rules of Evidence, merely "governs the admissibility of evidence; is does not control pretrial discovery." Instead, the scope of pretrial discovery is governed by Federal Rule of Civil Procedure 26(b)(1), which provides that

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Based upon this standard, it is easy to see why evidence of subsequent remedial measures will often be discoverable even if it is not admissible at trial. Let's say that there are orders in Knowlton's and Hurtado's personnel records confining them to desk duty. These orders would clearly be subsequent remedial measures inadmissible under Federal Rule of Evidence 407. But it would be just as clear that some type of internal investigation against Knowlton and Hurtado regarding their actions against Bernat likely led to these orders. And the results of such an investigation would like be admissible. Thus, the discovery of evidence of these subsequent remedial measures would be calculated to lead to the discovery of admissible evidence and be proper under Federal Rule of Civil Procedure 26(b)(1).

-CM

This Can('t) Be My Testimony: Supreme Court Of Vermont Finds Judicial "Testimony" Automatically Requires New Trial

Like its federal counterpart, Vermont Rule of Evidence 605 provides that "[a] judge sitting at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." Moreover, it is well established that Rule 605 applies not only to statements formally given from the witness stand but also, inter alia, to judges engaging in off-the-record fact gathering. So, when a trial judge violates Rule 605 by engaging in such fact gathering, can an appellate judge deem this violation harmless error? According to the recent opinion of the Supreme Court of Vermont in State v. Gokey, 2010 WL 3934332 (Vt. 2010), the answer is "no."

In Gokey, Randall Gokey was charged with lewd or lascivious conduct with a child. On the morning of the second day of trial, Gokey's attorney reported that Gokey was having health issues, and the trial judge "granted a continuance until the early afternoon for medical personnel to examine [Gokey]. During this recess an ambulance transported [Gokey] to the emergency room of a nearby hospital." When trial resumed the next afternoon, Gokey's counsel reported that Gokey was still at the hospital, and the judge suspended trial until the next day.

The next day, there was a question about whether the trial had to be delayed again based upon medications taken by Gokey. After some initial proceedings, during which the judge talked with the officers who transported Gokey to the hospital there was a break, after which the judge offered the following summary of her actions during the break:

The first thing I did was call Walgreen's and talk to the pharmacy manager there, who I do not know. His name is Dave. I don't think I've ever met him and I don't go to that pharmacy and that's why I called that one. He told me that the dose of medication that Mr. Gokey is [on is] a high dose of medication. That certain people react to things in different ways, and it also depends on what other types of medication they're taking, and that drowsiness is a side effect of the medication, Meclizine. I described to him what [the transporting officer] had said at the bench about how quickly this came on today and he said that that is inconsistent with the effects of this medication.

Thereafter, the judge

recounted to the court a second conversation she held in chambers with the two transport officers "to get an indication from them as to Mr. Gokey's behavior yesterday after taking his medication." She declared that "based on everything I've heard, I believe...that Mr. Gokey is malingering at this point." Neither defense counsel nor the State received any notice of or were present at either of the judge's conversations with the pharmacy manager or the two transport officers. Having introduced the substance of the discussions, the judge then called the officers to the stand and questioned them under oath about defendant's conduct during transport and while in the court's holding cell. After she finished questioning the deputies, both defense and prosecution were provided an opportunity to question the officers. The State did not ask any questions; defense counsel did not question the first officer, but inquired of the second the number of persons in defendant's holding cell at the time the officer observed his condition.

Defense counsel then

notified the court that the nurse at the jail was ready to transmit the list of medications defendant had taken during the morning, so long as the court faxed the nurse an order to release the information. Defense counsel also argued a doctor would be needed to interpret the medications and explain their side effects. Finally, she noted that the pharmacy manager the court had contacted was not present in court. The judge responded, "I know and that's why I put it on the record, because it's clearly not evidence." The court refused to hear any more evidence or grant the order to release information and decided to proceed....

After Gokey was eventually convicted, he appealed, claiming, inter alia, that the trial judge's actions violated Vermont Rule of Evidence 605. In finding that the trial judge indeed violated Rule 605, the Supreme Court found that the Rule covers not only statements by judges formally given from the witness stand but also judges engaging in off-the-record fact gathering, which essentially transforms them into witnesses.

The court then noted that Gokey asked it "to adopt a standard that when a judge acts as a witness in violation of Rule 605 prejudice is presumed and the judgment must be reversed." The court then acknowledged that "[s]everal other state courts have done so in similar contexts, recognizing that 'imposing a burden on a litigant to prove prejudice through the testimony of one disqualified from testifying is an impossible standard.'" In agreeing with these courts and reversing Gokey's conviction, The Vermont Supremes concluded that

Here, the trial court's initiation of the ex parte communications, whether actually relied upon or not, severely impaired, if not completely ruined, any appearance of neutrality, and we must presume prejudice to defendant. Though the judge stated the call to the pharmacy and the in camera meeting with the officers was not evidence-indeed in ruling on defendant's competence she claimed she "rel[ied only] on... the sworn testimony of the transport officers"-the damage to the appearance of impartiality had been done. This strict standard assuming prejudice is especially important when it is the trial judge who acts inappropriately because any challenge to her authority necessarily places the lawyer in the untenable position of having to decide whether to let the statement go unchallenged or risk antagonizing the trial judge by questioning her impartiality....Rule 605 itself supports adoption of this standard as it expressly notes that: "No objection [to a judge testifying as witness] need be made in order to preserve the point." We likewise hold that no showing of prejudice is required.

-CM

Darlin' Don't Refrain: Sixth Circuit Finds No Problem With Improperly Timed Admission Of Prior Consistent Statements

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

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

So, what happens if a party introduces a witness' alleged prior consistent statement before the opposing party charges the witness with recent fabrication or improper influence or motive, but the opposing party does later levy such a charge against the witness? That was the question addressed by the recent opinion of the Sixth Circuit in United States v. Wells, 2010 WL 3958647 (6th Cir. 2010).

In Wells, Oscar Wells was convicted of conspiracy to violate, and three counts of substantive violations of, the Hobbs Act. This conviction was secured in large part based upon the testimony of Wells' alleged co-conspirators, Jimmy Gates and Liberator Noce, who testified against Wells after they reached plea bargains with the government.

During her opening statement, the prosecutor referenced statements that Gates and Noce made to the FBI before they reached plea agreements with the government indicated that these statements would be consistent with their testimony at trial. During his opening statement, defense counsel then argued that Gates and Noce were untrustworthy based upon the plea bargains that they struck with the government in exchange for their testimony at trial. Thereafter, the prosecutor introduced the prior consistent statements made by Gates and Noce to the FBI during her direct examinations of Gates and Noce.

After he was convicted, Wells appealed, claiming, inter alia, that it was improper for the prosecutor to mention the prior statements to the FBI during his opening statement because he had not yet charged these witnesses with recent fabrication or improper influence or motive. In addressing this argument, the Sixth Circuit found that

The prosecutor's remarks in her opening statement concerning the consistent pretrial statements made by Noce and Insana were risky if not improper. Although it was reasonable to expect that Defendant would challenge the credibility of the witnesses based on their motive to secure a favorable plea bargain, the admissibility of the prior statements still hinged on whether such an attack was actually made. It is conceivable, for example, that a defendant would refrain from making this type of credibility attack for the very purpose of preventing the admissibility of a prior consistent statement. It is undoubtedly tempting, but generally unwise, for a prosecutor to try to predict the strategy opposing counsel will adopt, and then to try to blunt the strategy's impact. By prematurely calling attention to prior consistent statements in the opening statement, a prosecutor creates the chance of mistrial and an issue for appeal.

That said, the court found that any error committed by the district court in allowing these remarks during the prosecutor's opening statement was harmless because

Any potential prejudice that might otherwise have been inflicted upon Defendant by the remarks about prior consistent statements vanished during Defendant's opening statement. Defendant offers no suggestion that he would have refrained from charging the witnesses with improper motive to avoid the introduction of the prior consistent statements. Any such suggestion, if made, would be implausible since a major part of Defendant's defense was an attack on the credibility of the government witnesses. The prosecutor's remarks did nothing more than predict what would soon come out properly in the course of witness examination. Furthermore, there was considerable evidence of Defendants guilt, viz. the bank records and testimony that Defendant made four cash deposits on days that Gates cashed checks from Noce. Under these circumstances, we do not view the prosecutor's remarks concerning the prior consistent statements as flagrant.

I agree with the court's conclusion based upon Wells failing to argue that he would have refrained from charging the witnesses with improper motive. If he had made this argument, however, I wonder whether the court would have reached the opposite conclusion?

-CM

I'll Be The Judge Of That: New Jersey Court Finds No Problem With Lengthy Judicial Interrogation Of Pro Se Defendant

Under New Jersey Rule of Evidence 614, "The judge, in accordance with law and subject to the right of a party to make timely objection, may call a witness and may interrogate any witness." In exercising this authority to interrogate witnesses, however, the judge must be sure to maintain his judicial neutrality and not assume the role of an advocate for either party. In its recent opinion in K.C. v. J.K., 2010 WL 4007554 (N.J.Super.A.D. 2010), the New Jersey Superior Court, Appellate Division, found that a trial judge properly exercised his authority under Rule 614 during his interrogation of a pro se defendant. If the defendant's allegations are true, I disagree.

In J.K., J.K. appealed from a final restraining order barring him from the residence and places of employment of plaintiff K.C. and prohibiting him from having any contact and communication with plaintiff and her two daughters, K.G. and B.G. One of the grounds for J.K.'s appeal was that

the judge only allowed [him] to utter one sentence on his presentation of his direct testimony before beginning a cross-examination. [J.K.] contend[ed] that the court's cross-examination covers eleven pages of testimony. He contends the judge's examination was replete with admonitions and skillful, adversarial questioning. [J.K.] urge[d] that the judge's questioning was "good lawyering," but improper from the bench.

In turning this argument aside, the court initially noted that "One of the natural parts of the judicial function, in its orthodox and sound recognition, is the judge's power and duty to put to the witnesses such additional questions as seem to him desirable to elicit the truth more fully." It then concluded,

We have carefully reviewed the transcript of the hearing and are satisfied that the judge did not exceed the bounds of the discretion accorded him with respect to questioning witnesses. This was, after all, a bench trial, and the judge, as finder of the facts, had a duty to search out the truth. There was no impermissible tilting of a trial in favor of plaintiff. Where a litigant appears pro se, the judge may often have "to focus the testimony and take over the questioning of the parties and witnesses." That is all that was done here.

Maybe it was, but not if K.C. was being accurate. As the court, noted, after a witness testifies, a judge may ask questions to elicit the truth more fully. And when a litigant is pro se, the judge may very well have to take over the questioning of witnesses to focus testimony after the litigant's interrogation has gone astray. But according to K.C., he got to utter merely one sentence of his self-interrogation/testimony before the judge interjected with an interrogation that covered eleven pages of testimony. To me, that seems wholly improper under Rule 614.

Now, maybe K.C. was exaggerating and he in fact went on for well more than a sentence, with the judge having to interject because it was clear that his self-interrogation/testimony was not focused. If that were the case, though, the appellate court should have said so.

-CM

The Accident Experiment: Court Refuses To Grant New Trial Despite Juror Performing Accident Scene "Experiment" In Car Crash Case

Federal Rule of Evidence 606(b) provides that

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

So, let's say that that there is a civil action and a trial based upon a car accident at a certain intersection. And let's say that a juror goes to the scene of the car accident and conducts an "experiment" related to the accident. The jury, however, does not discuss the experiment during deliberations. After the verdict is granted, if this experiment is exposed, should a new trial be granted? According to the recent opinion of the United States District Court for the Eastern District of Texas in Swanson v. Roehl Transport, Inc., 2010 WL 3702589 (E.D. Tex. 2010), the answer is "no." I disagree. 

Swanson arose

out of a collision between Plaintiff Arthur Swanson, Jr. ("Plaintiff" or "Swanson") and Defendant Paul Connell ("Defendant" or "Connell") at the intersection of Highway 59 and Highway 49 in Jefferson, Texas. A jury trial was held in this case on June 16 and 17, 2010. The jury reached a verdict finding Defendants liable and awarding Plaintiff $96,449.89 in damages. The Court subsequently reduced Plaintiff's recovery to $49,189.00 per the jury's apportionment of Plaintiff's responsibility in the amount of 49%.

Unfortunately, that's all we get in the way of facts from the opinion, but we are also told that, after the verdict was entered, Swanson moved for a new trial based upon the written statement and testimony of one juror, Ms. Guthrie, that another juror "practiced a test run toward an intersection" during the trial and concluded that she could easily stop her car going 40 m.p.h. without interfering with the intersection. (Based upon this statement and testimony, I think that we can assume that Swanson claimed that he was only driving 40 m.p.h. and yet could not avoid the subject collision).

In addressing this argument, the United States District Court for the Eastern District of Texas noted the dichotomy in Federal Rule of Evidence 606(b): While jurors can testify about the fact of extraneous prejudicial information, they cannot testify about the effect of such information on deliberations. Instead,

Because the Court cannot investigate the subjective effects of any allegedly prejudicial extraneous influences on the jury, the question of whether prejudice resulted from the juror's experiment must be resolved by the Court drawing reasonable inferences as to the probable effect of the juror's misconduct. "Though a judge lacks even the insight of a psychiatrist, he must reach a judgment concerning the subjective effects of objective facts without benefit of couch-interview introspections."

The court then attempted to draw such reasonable inferences, concluding that based upon

Ms. Guthrie testimony that the jury did not discuss [the] "experiment" at all during the deliberations and that no other jurors relayed their driving experiences, the Court finds that even if the juror's description of her driving "experiment" was improper and introduced extraneous information into the jury deliberations, it did not influence the jury's decision making process and, thus, did not create a reasonable probably of prejudice. Accordingly, the Court denies Plaintiff's request for a new trial based on juror misconduct on these grounds.

I think that these were unreasonable inferences. First, regardless of whether the juror mentioned the experiment to other jurors, he conducted the experiment himself, and this obviously prejudiced him in deciding that the Plaintiff was partially responsible. Second, from the above analysis, it is clear that the juror did indeed mention his experiment to the other jurors; the jury simply didn't discuss the experiment during deliberations. Frankly, I don't see how this fact makes the experiment less prejudicial. At least if the experiment were discussed, the jurors could have seen the likely flaws with the experiment. For example, was there precipitation on the ground at the time of the accident but not the experiment or vice versa? What was Swanson's car and what was the juror's car? Did the cars have the same braking systems?

These are exactly the types of possible differences that make such jury experiments improper, and the fact that the jury didn't discuss the experiment during deliberations makes it likely that at least some jurors took the experiment as strong evidence of the Plaintiff's fault. Therefore, I think that the court easily should have granted Swanson's motion for a new trial.

-CM

Not Accounting For Externalities: Court Of Appeals Of North Carolina Finds Dictionary Definitions Are Not External Information Under Rule 606(b)

Like its federal counterpart, North Carolina Rule of Evidence 606(b) provides that

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

And, as I have previously noted,

Some courts have held that jurors' use of a dictionary to define the elements of a crime or words in jury instruction does not constitute the use of extraneous prejudicial information because their use of the dictionary is for the purpose of defining a legal term rather and does not relate to "facts under deliberation." See, e.g., United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988).  Other courts have held that jurors' use of a dictionary is not inherently prejudicial but have noted that in rare cases such use can require a new trial.  See, e.g., United States v. Henley, 28 F.3d 1111, 1115-16 (9th Cir. 2001).  Finally, some courts have found that it's quite possible that jurors' use of a dictionary can require a new trial, especially when jurors use the dictionary to define legal terms. See, e.g., Sharrief v. Gerlach, 798 So.2d 646, 652 (Ala. 2001).

As the recent opinion of the Court of Appeals of North Carolina in State v. Patino, 2010 WL 3860847 (N.C.App. 2010), makes clear, North Carolina courts (kind of) fall under the first category of courts.

In Patino, Jonathan Patino was convicted of sexual battery. Thereafter,

the day after the verdict was delivered, at the start of the sentencing hearing, defendant's trial counsel moved for a new trial and told the trial court that several jurors had spoken with defense counsel and admitted looking up various legal terms (sexual gratification, reasonable doubt, intent, etc.), as well as the sexual battery statute, on the Internet during the trial. Defense counsel contended that the jury committed misconduct by consulting outside sources of information and disobeying the trial court's instruction not to do so. The trial court did not conduct any further inquiry and denied defendant's motion.

After he was sentenced, Patino appealed this and other rulings, and the Court of Appeals of North Carolina affirmed, finding that

Because definitions of legal terms are not extraneous information under Rule 606 and did not implicate defendant's constitutional right to confront witnesses against him, the allegations raised by defendant's trial counsel were not proper matters for an inquiry by the trial court. Thus, the trial court did not abuse its discretion in failing to conduct further inquiry into the allegations or in denying defendant's motion for a new trial.

I don't see the logic of the Court of Appeals of North Carolina. Extraneous prejudicial information is generally thought to be "information that was not admitted into evidence but nevertheless bears on a fact at issue in the case." Robinson v. Polk, 438 F.3d 350, 363 (4^th Cir. 2006). Now, dictionary definitions might not be prejudicial because they might not bear upon facts at issue in cases. But I don't see how they could be defined as anything but external in that they are information not presented at trial. I also think that they are prejudicial because they can compete with the legal definitions involved in a trial (e.g., the legal definition of "sexual gratification" could be quite different from the dictionary definition of "sexual gratification"). But I can at least see the logic of courts reaching the opposite conclusion. BuI don't see the logic of defining dictionary definitions as anything but external information.

-CM

My Memory Is Failing Me: California Court Finds Right To Confrontation Preserved Despite "Forgetful" Witness

California Evidence Code Section 240(a)(3) states that

Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following:

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

And the consequence of a declarant being unavailable as a witness is that certain hearsay statements are admissible under certain exceptions to the rule against hearsay. So, let's say that a declarant takes the witness stand at a criminal defendant's trial and testifies to memory loss. That declarant will be deemed "unavailable" under Section 240(a)(3), potentially allowing for the admission of some of his prior hearsay statements. But does the admission of such statements violate the defendant's rights under the Confrontation Clause? According to the recent opinion of the Court of Appeal, First District, Division 1, California, in In re T.G., 2010 WL 3898052 (Cal.App. 1 Dist. 2010), the answer is "no." As a general proposition, I agree, but I disagree with the court's conclusion in the case before it. 

In In re T.G., T.G. appealed from a jurisdictional order sustaining charges that he participated in the commission of an armed robbery and attempted to dissuade the victim from testifying against him. That victim was Miguel G., and at trial, he identified one of his robbers, but, when the prosecutor asked him to identify the second robber, he claimed he no longer remembered who the second person was. Thereafter,

The prosecutor got Miguel to admit that when questioned by police on the night of the robbery, he had (1) identified T.G. as the second robber, (2) provided a physical description of the second robber and description of his clothes that matched T.G. when he was apprehended a short time later, (3) pointed out T.G. as the second robber to police when he spotted him walking in the neighborhood that night, and (4) had been truthful with police when he described the incident and identified the second robber.

Then,

Pressed by an openly skeptical prosecutor to explain his inability to identify T.G. as the robber at the hearing, Miguel testified, "I don't know. I just don't remember. I got hit by a car and was in a coma for three days." Miguel could not remember when the accident happened except that it was after he was robbed. The prosecution sought to develop a different theory to explain Miguel's lapse of memory-his fear of T.G. taking retribution against him or his family for testifying against him. Miguel admitted that T.G. had called him and threatened him approximately three times since the robbery, and that friends of T.G. had also threatened him on the telephone and in person.

In his appeal, T.G. claimed that the admission of Miguel's prior statements violated his rights under the Confrontation Clause because Miguel was "unavailable" as a witness. In rejecting this argument, the court cited to the opinion of the United States Supreme Court in United States v. Owens, 484 U.S. 554 (1988), for the proposition that "Although the right of confrontation requires that an accused receive 'an adequate opportunity to cross-examine adverse witnesses'..., it does not protect against testimony that is 'marred by forgetfulness, confusion, or evasion.'"

Now, I certainly agree with the court that if Miguel indeed were suffering from memory loss, he was "unavailable" for purposes of the rule against hearsay but "available" for cross-examination for purposes of the Confrontation Clause. But that's not what the trial court found. According to the appellate court, "In this case, the trial court, the prosecution, and the defense itself all came to the conclusion that Miguel's claim of memory loss was fabricated."

This being the case, the court should have found that Miguel was not "unavailable" under California Evidence Code Section 240(a)(3). Instead, it should have required him to render complete testimony or be held in contempt of court. Because the court did not do so, I think that T.G.'s rights under the Confrontation Clause were violated.

-CM

Double Take: "The Good Wife" Gets Military Double Jeopardy Issue Right Based On "Dual Sovereignty" Doctrine

Last week's episode of "The Good Wife" was pretty interesting. At the start of the episode, Alicia and Will secure a "not guilty" verdict in Illinois state court for an Army reservist charged with murdering his wife. The reservist is then charged with the same crime in military court, with viewers given the explanation that double jeopardy does not apply. So, did the show get it right? It turns out that the answer is "yes" based upon the "dual sovereignty" doctrine. If you want a full explanation of the doctrine (and a fascinating theory of how it should apply in the international legal context), you should check out the excellent article by SMU Dedman School of Law Professor Anthony J. Colangelo, Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory, 86 Wash. U. L. Rev. 769 (2009). Here, however, are the basics:

The doctrine "is founded on the...conception of crime as an offense against the sovereignty of the government." It holds that "[w]hen a defendant in a single act violates the (peace and dignity) of two sovereigns by breaking the laws of each, he has committed two distinct 'offences.'" No violation of the prohibition on double jeopardy results from successive prosecutions by different sovereigns, according to the Court, because "by one act [the defendant] has committed two offences, for each of which he is justly punishable." The defendant, in other words, is not being prosecuted twice for the same "offence" if another sovereign successively prosecutes for the same act--even if the second sovereign prosecutes using a law identical to that used in the first prosecution.

So, what does this all mean with regard to the situation in "The Good Wife,"  and why did the show get it right? 

Well, in its 1907 opinion in Grafton v. United States, 206 U.S. 333 (1907), the Supreme Court

held that a homicide prosecution by military court martial foreclosed a successive prosecution for the same homicide by the civil justice system in the then-U.S. territory of the Philippines....[In Grafton], the court martial prosecuted Grafton for "the crime of homicide as defined by the Penal Code of the Philippines." Because the court martial applied the civil law definition of homicide, the Court found that the successive civil court prosecution at issue in the case was "for the identical offense."

The Supreme Court then turned to the argument that, notwithstanding the court martial use of the Filipino criminal code definition of homicide, the military and civil authorities in a U.S. territory constituted distinct sovereigns--each with an independent power to prescribe offenses and to prosecute--and consequently no double jeopardy barrier arose to block a successive civil court prosecution for the same acts. The Court rejected this argument and resolved the issue entirely in terms of jurisdiction.

Because Congress had exclusive prescriptive jurisdiction over the territories, and created the territorial courts and authorized their adjudicative jurisdiction, the courts were capable of applying only U.S. law. The Court found "[t]he jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount." It followed that "[i]f...a person be tried for an offense in a tribunal deriving its jurisdiction and authority from the United States and is acquitted or convicted, he cannot again be tried for the same offense in another tribunal deriving its jurisdiction and authority from the United States." Since both the military court martial and the territorial civil court derived jurisdiction from the U.S. government, and thus necessarily prosecuted for a crime against the laws of the United States, "a second trial of the accused for that crime in the same or another court, civil or military, of the same government" violated double jeopardy.

Thereafter, in 1950, this protection for servicemembers against double jeopardy was codified in Article 44(a) of the Uniform Code of Military Justice, which provides that “No person shall, without his consent, be tried a second time for the same offense." At this point, you may be thinking that it is clear that the reservist on "The Good Wife" could not have been prosecuted again in military court. But wait, there's more.

In its 1982 opinion in United States v. Stokes, 12 M.J. 229, (CMA 1982), the U.S. Court of Military Appeals (which has now been renamed the U.S. Court of Appeals for the Armed Forces) held that

When the Uniform Code was first enacted, it had not been firmly established that service members were entitled to the Fifth Amendment protection against former jeopardy....However, Article 44(a) of the Code...mooted the issue by commanding, "No person may, without his consent, be tried a second time for the same offense." Undoubtedly this provision was not intended to abolish the dual-sovereignties rule that had been applied in interpreting the constitutional guarantee against successive trials for the same offense. Thus, trial by a court-martial is barred by the Code only if the accused has already been tried in a court which derives its authority from the Federal Government....But a trial by court-martial is not barred if the earlier trial was by a state or foreign court. (emphasis added).

Thus, because the reservist's earlier trial was in Illinois state court, there was no double jeopardy problem with his subsequent trial by court-martial in military court.

That's not to say, though, that the show got everything right. During the court-martial, Alicia learns (1) that an Army wife previously said that the reservist's wife slept with her husband's Commanding Officer based upon the promise that he would prevent her husband from being redeployed, but (2) that she is unwilling to provide this testimony at trial. Thus, Alicia calls the Army wife, knowing that she has nothing useful to say at trial, for the sole purpose of thereafter calling another witness to impeach her through her prior inconsistent statement. Of course the purpose of this impeachment is not really to impeach the Army wife (i.e., to show that she is untrustworthy as a witness); instead, the purpose is for the prior statement to be considered as substantive evidence so that the Commanding Officer becomes an alternate suspect.

The classic case deeming such "impeachment" improper is actually a military case as well. In United States v. Ince, 21 F.3d 576 (4th Cir. 1994), Nigel Ince was charged with assault with a dangerous weapon, with intent to do bodily harm. At trial, the prosecution called Angela Neumann, who previously told a military policeman (MP) that Ince admitted to her that he committed the crime charged. When Neumann took the witness stand, however, she testified that her memory failed her. Thereafter, the prosecution called the MP to "impeach" her through her prior statement.

The first trial ended with a deadlocked jury, prompting a second trial, during which the prosecution again called Neumann, knowing that she had nothing to contribute to the prosecution's case. When she again claimed memory loss, the prosecution again called the MP to "impeach" her through her prior statement. In reversing Ince's conviction, the Fourth Circuit found that because the

so-called "impeachment" testimony was both highly prejudicial and devoid of probative value as impeachment evidence, the trial judge should have recognized the Government's tactic for what it was-an attempt to circumvent the hearsay rule and to infect the jury with otherwise inadmissible evidence of Ince's alleged confession.

In other words, you can't call a witness for the sole purpose of impeaching him or her (and getting his or her prior hearsay statement before the jury), so the technique used on "The Good Wife" was improper.

I'm not sure whether Ince was ever retried in federal district court. But if he were, and if he were acquitted, he could not have been subjected to a court-martial. Why? Unlike the defendant on "The Good Wife," he was tried in federal court, meaning that Article 44(a) of the Uniform Code of Military Justice was applicable and that double jeopardy precluded a successive prosecution.

-CM