EvidenceProf Blog

Say Anything?: Jeopardy Question About New Miranda Opinion Gets It Almost Completely Correct

Last night's episode of Jeopardy! featured the category "A Murder Investigation," with The Closer's Kyra Sedgwick reading the clues. The $1000 clue in the category was:

Getting confessions, Brenda's specialty, will be easier now that the Supreme Court has ruled that any response to interrogation means you've waived your rights under this 1966 decision

And the Question/Answer was Miranda v. Arizona, 384 U.S. 436 (1966). But what was the Supreme Court ruling referenced in the clue, and is it really true that any response to interrogation means that a suspect has waived his Miranda rights?

The opinion referenced in the clue is the Supreme Court's recent opinion in Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). In Thompkins, Van Chester Thompkins was arrested in connection with a mall shooting in Michigan, and Detective Helgert presented him with the following form derived from Miranda:

NOTIFICATION OF CONSTITUTIONAL RIGHTS AND STATEMENT

1. You have the right to remain silent.

2. Anything you say can and will be used against you in a court of law.

3. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions.

4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.

5. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” Brief for Petitioner 60 (some capitalization omitted).

At the detective's behest, Thompkins read the fifth warning out loud to ensure that Thompkins could read (English) and then read the other four Miranda warnings out loud and asked Thompkins to sign the form to demonstrate that he understood his rights, "but Thompkins declined to sign the form." It is unclear whether Thompkins later verbally confirmed that he understood the rights listed on the form, but it is clear that officers then began an interrogation of him.

At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney....Thompkins was "[l]argely" silent during the interrogation, which lasted about three hours....He did give a few limited verbal responses, however, such as "yeah," "no," or "I don't know." And on occasion he communicated by nodding his head....Thompkins also said that he "didn't want a peppermint" that was offered to him by the police and that the chair he was "sitting in was hard."...

About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, "Do you believe in God?"...Thompkins made eye contact with Helgert and said "Yes," as his eyes "well[ed] up with tears."...Helgert asked, "Do you pray to God?" Thompkins said "Yes."...Helgert asked, "Do you pray to God to forgive you for shooting that boy down?"...Thompkins answered "Yes" and looked away....Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later....

At trial, Thompkins was convicted after his statements during this interrogation were presented into evidence, and he appealed, claiming, inter alia, that

(1) he “invoke[d] his privilege” to remain silent by not saying anything for a sufficient period of time, so the interrogation should have “cease[d]” before he made his inculpatory statements; and

(2) he did not waive his right to remain silent.

His appeal eventually reached the United States Supreme Court, which rejected his first argument, finding that "an accused who wants to invoke his or her right to remain silent to do so unambiguously." In other words, a suspect must affirmatively and unambiguously invoke his right to remain silent, and merely remaining silent (i.e., mere silence) does not invoke the right to remain silent.

And, in rejecting Thompkins' second argument, the Court concluded that a waiver of the right to remain silent does not have to be explicit; instead, "[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent."

So, Jeopardy! almost got it completely right. Why do I say almost? Well, according to the Court,

If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate "a valid waiver" of Miranda rights....The prosecution must make the additional showing that the accused understood these rights.

-CM

A Bit Presumptuous: Sixth Circuit Finds Undisclosed 15 Year Old Convictions Didn't Violate Brady

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. But is evidence of prior convictions of a "jailhouse snitch" material for Brady purposes if those convictions were more than ten years old? According to the recent opinion of the Sixth Circuit in Brooks v. Tennessee, 2010 WL 4721099 (6th Cir. 2010), the answer is "no."

In Brooks, Donald Gene Brooks was convicted of first-degree felony murder, especially aggravated robbery, theft of property valued over $1,000, and setting fire to personal property. At Brooks' trial,

Michael Wayne Nelson, a convicted felon then serving time in prison, testified that he and Brooks shared a cell in the Montgomery County Jail on June 7, 1996. Nelson stated that Brooks confessed his guilt to Nelson. Brooks provided Nelson with details of the crime....He also told Nelson that the only evidence against Brooks was his companion at the time of the crime, and that he wished that he had killed his companion as well.

Nelson admitted during his direct examination that he had prior convictions for larceny from a person, grand larceny, and escape. He also acknowledged that he was facing breach-of-trust charges at the time of his testimony for failing to return to the Nashville Community Service Center after having been placed on parole.

The prosecution, however, did not disclose to Brooks, inter alia, that Nelson had 15 year-old convictions for perjury and embezzlement. After he was convicted, Brooks filed a petition for federal habeas corpus relief, claiming, inter alia, that the prosecution failed to timely disclose material evidence, including evidence of these prior convictions. In denying this portion of the petition, the Sixth Circuit found that

under Tennessee evidentiary law, Nelson's convictions for perjury and forgery were presumptively inadmissible due to the fact that they were over 15-years old at the time of Brooks's August 1996 trial. See Tenn. R. Evid. 609(b). We therefore conclude that, although this issue is uncomfortably close to the constitutional line, the undisclosed evidence was not material under Brady.

Technically, the Sixth Circuit was correct because Tennessee Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

But why stop the analysis there? Who cares whether the evidence of these convictions was presumptively admissible? Even assuming that Brady only covers admissible evidence, the relevant question that the Sixth Circuit should have asked was: Would evidence of these convictions have been admissible? And I think that at least with regard to the perjury conviction, the answer should have been "yes." Indeed, back in July, I posted an entry about an opinion of the Court of Criminal Appeals of Tennessee which found that a perjury conviction that was more than 10 years old was admissible under Rule 609(b) based upon its high probative value.

-CM

Honorable Discharge: Supreme Court Of Maine Debates When A Jury is Discharged For Jury Impeachment Purposes

Like its federal counterpart, Maine 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 juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning any juror's 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 a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.

As the Supreme Court of Maine noted in its recent opinion in State v. Hurd, 2010 WL 4608732 (Me. 2010), this Rule precludes a juror from impeaching a verdict, except under limited circumstances, once the court has taken the verdict and discharged the jury. So, when exactly is the jury discharged? That was the question that split the court in Hurd. 

In Hurd,

Ryan Hurd, Chad Bernier, and their foreman, Terry "TJ" Richardson, were working together on a construction project....After work..., the three men...had a cookout behind their motel and began drinking beer and hard liquor. When they ran out of liquor, Hurd drove them in his car...to Farmington. There they bought some beer and then went to a bar.

At the bar, all three men appeared intoxicated, though to some observers in the bar, Hurd appeared the most intoxicated. As the men were getting ready to leave the bar, a patron overheard them decide that Hurd would drive. However, no one saw who was actually driving when the car left the parking lot, and one or more bar patrons had told Richardson that he should drive because Hurd was not "good enough to drive."

As the driver was attempting to return to Kingfield, speeding in excess of ninety miles per hour, he lost control of the car in New Vineyard. The car left the road; hit a utility pole on the driver's side near the steering column, breaking the pole off; hit a tree stump; and came to rest on its roof.

Rescuers arriving at the scene found Richardson deceased on the driver's side of the car. Bernier, badly injured, was in the back seat. Hurd was apparently ejected from the vehicle and walked to a nearby house from where the owner called 911, triggering the emergency response.

In the hours and days following the accident, Hurd, and later Bernier, gave several conflicting statements as to who was driving the vehicle at the time of the accident.

Ryan Hurd was charged with one count of manslaughter, one count of OUI (Class C), and another count of OUI (Class D), which was later dismissed. At trial, the court advised the jury that a person may commit aggravated OUI as a principal or as an accomplice and instructed the jury that if it concluded that the State had failed to prove all elements of aggravated OUI, the jury must then consider if the State had proved Hurd's guilt for aggravated OUI as an accomplice (The theory on accomplice liability was that Hurd had been driving his car when the men left the bar and then switched seats with Richardson, aiding Richardson in the commission of the crime of aggravated OUI).

At the end of trial,

As to Count I, manslaughter, the foreperson reported a verdict of "not guilty." The clerk then asked the jury for its verdict with respect to Count II of the indictment, the count of aggravated OUI. The foreperson replied, "not guilty."...In response to a question by the clerk, the jury acknowledged that these were its verdicts. The court then thanked the jurors for their service, expressed regret that at points the trial had been interrupted, and discharged them from any further obligation to serve as jurors for five years. The court later reported on the record that the jurors had appeared confused when they were discharged, but that the court believed at the time that the jurors were reacting, perhaps in fear, to the emotional response in the courtroom.

The jurors left the courtroom and returned to the jury room. Within a minute or two, a judicial marshal reported to the court that the jury needed to speak to the court. The court then entered the jury room and spoke very briefly to the jury. Shortly thereafter, the jury stated in writing that it "understood there to be 3 charges and wish to speak to that as well." Over Hurd's objection, the court wrote a note back to the jury, asking, "What were the 3 charges you voted on?" The jury replied, "1. Manslaughter 2. Aggravated OUI 3. Accomplice liability." The court understood that to mean that the jury had voted on accomplice liability as though it were a separate count.

At the State's suggestion, and over Hurd's objection, the court submitted a special verdict form to the jury, asking it to "return to the jury room for further deliberations" to answer specifically whether the jury found Hurd guilty or not guilty of "aggravated operating under the influence" and whether it found Hurd guilty or not guilty of “aggravated operating under the influence-accomplice liability.” The court told the jury that it would "wait for [its] further deliberations and [its] verdict in written form on Count II."

The jury retired for just under nine minutes. The jury stated on the verdict form, which was read in open court, that it found Hurd not guilty of aggravated operating under the influence, but that it found Hurd guilty of "aggravated operating under the influence-accomplice liability." The jury was again discharged. The court entered a judgment of conviction on the count of aggravated OUI.

Hurd thereafter moved for entry of the jury's original verdict of not guilty on the count of aggravated OUI, claiming that the jury should not have been allowed to impeach its verdict after it was discharged. The Supreme Court of Maine agreed, finding that Maine Rule of Evidence 606(b) precludes jurors from impeaching their verdicts after they have been discharged and that what transpired at trial violated this Rule.

In a dissenting opinion, Justice Jabar disagreed, finding that the jury had not been "discharged" at the time the jury found Hurd guilty. According to Justice Jabar, a  

discharge has not occurred where the jury (1) continues to function as an undispersed unit; (2) is not subject to any outside pressures, communications, or influences; and (3) remains under the control of the court.

And, according to Justice Jabar, "[a]lthough the authority is not uniform, this approach has significant support in other jurisdictions."

-CM

Like A Bad Habit: New Jersey Court Uses Reputation Evidence Rule In Eviction Appeal

New Jersey Rule of Evidence 406 provides that

(a) Evidence, whether corroborated or not, of habit or routine practice is admissible to prove that on a specific occasion a person or organization acted in conformity with the habit or routine practice.

(b) Evidence of specific instances of conduct is admissible to prove habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice.

Meanwhile, N.J.S.A. 2A:18-61.1(j) provides that

No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes...except upon establishment of one of the following grounds as good cause:

j. The person, after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.

So, what does the definition of "habit" in New Jersey Rule of Evidence 406 tell us about the definition of "habitually" under N.J.S.A. 2A:18-61.1(j)? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in Matthew G. Carter Apartments v. Richardson, 2010 WL 4739934 (N.J.Super.A.D. 2010), the answer is "a great deal."

In Richardson,

In January 2009, plaintiff served defendant with a "notice to cease," alleging she had paid her rent late in February and July 2008, and in January 2009. The notice to cease further provided that "[u]nder New Jersey law, if [defendant] pa[id][her] rent late two more times...[plaintiff] m[ight] terminate [her] tenancy and evict [her] for habitual late payment for [sic] rent." The notice to cease further advised defendant that plaintiff would continue to accept her rent even if paid late, but that it "d[id] not go along with the fact that [she][was] paying it late." This non-waiver of plaintiff's eviction rights was more fully set forth in the last paragraph of the notice to cease.

Defendant tendered her rent in a timely fashion every month from February to May 2009. When she paid her June rent on June 18, plaintiff served her with a "1st Violation" of the notice to cease on June 26, reiterating that it was accepting the late rent but not waiving any rights to evict defendant in the future....On July 1, plaintiff tendered a new lease to defendant, which all parties executed on July 6. This was the first “new lease” defendant received since the inception of her tenancy in 1995. Defendant paid her August rent on August 12, two days after the grace period provided in the new lease. Plaintiff served defendant with a "2nd violation" of the notice to cease on August 14, again reserving its right to evict defendant.

On September 9, plaintiff served defendant with a notice to quit and demand for possession, terminating defendant's tenancy effective November 1....On November 3, plaintiff filed its complaint seeking possession pursuant to N.J.S .A. 2A:18-61.1(j).

The judge concluded that the plaintiff had established the statutory grounds for eviction and entered the judgment for possession. In reversing, the Superior Court of New Jersey, Appellate Division, held that

"Habitual" is defined as "customary, usual." Black's Law Dictionary 640 (5th ed.1979). Our Rules of Evidence also provide guidance as to the plain meaning of "habit." N.J.R.E. 406(b) permits the proof of "habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice." "A habit...is the person's regular practice of responding to a particular kind of situation with a specific type of conduct."...As used in N.J.S.A. 2A:18-61.1(j), the Court has said that whether conduct is "'habitual' is a function of time and circumstances."...

Applying these basic principles, we conclude that plaintiff failed to demonstrate that defendant had, after receipt of the notice to cease, "habitually" paid her rent in an untimely fashion. The notice to cease was served on defendant on or about January 21, 2009. Thereafter, she paid her rent in a timely fashion in nine of the next eleven months prior to the December 15, 2009 trial. Defendant paid her rent late in June (eight days after the grace period), and in August (two days after the grace period), i.e., she was late by a total of ten days during the eleven-month period. The statute “requires a continuing course of conduct by the tenant over a period of time...."...We cannot conclude on these facts that after the notice to cease was served, defendant was "habitually" late in her rental payments.

-CM

habut rent

Matthew G. Carter Apartments v. Richardson
--- A.3d ----, 2010 WL 4739934
N.J.Super.A.D.,2010.

http://www.judiciary.state.nj.us/opinions/a1992-09.pdf

Confusion Causin' Pollution: Court Of Appeals Of Indiana Finds Rule 407 Applies In Insurance Coverage Dispute Cases

Like its federal counterpart, Indiana Rule of Evidence 407 provides that

When after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. 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.

Rule 407 is typically associated with personal injury and other negligence cases, but does it also apply in insurance coverage dispute cases? According to the recent opinion of the Court of Appeals of Indiana in State Auto. Mut. Ins. Co. v. Flexdar, Inc., 2010 WL 4723188 (Ind.App. 2010), the answer is "yes."

In Flexdar,

Flexdar, Inc., manufactured rubber stamps and printing plates at its factory in Indianapolis. Flexdar's machinery employed the chemical solvent trichloroethylene (TCE), which leaked from the factory premises and contaminated subsoil and groundwater. The Indiana Department of Environmental Management ordered Flexdar to investigate the contamination and informed Flexdar that it could be liable for the costs of cleanup. Flexdar requested defense and indemnification from its commercial general liability insurer, State Automobile Mutual Insurance Company, and State Auto filed [an] action seeking declaration that it owed no coverage.

The basis for the State Auto's action was an exclusion in Flexdar's policy, which indicated that, inter alia,

This insurance does not apply to:

(1) "Bodily injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:

Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

Both parties moved for summary judgment, and, in support of its motion, Flexdar

tendered to the trial court, among other things, a new policy endorsement form that State Auto drafted in 2004. The new form specifically identified TCE and other substances as examples of "pollutants" for purposes of State Auto's pollution exclusion. Flexdar introduced the new endorsement form to show that its own policy was ambiguous and that State Auto recognized the need to clarify it by naming TCE as a pollutant. The trial court struck the evidence as irrelevant.

Nonetheless, the trial court still entered summary judgment in favor of Flexdar, prompting State Auto's appeal. And while the Court of Appeals of Indiana affirmed the trial court's entry of summary judgment in favor of Flexdar, it agreed with the trial court that the new policy endorsement was inadmissible.

Specifically, the court found that this evidence was inadmissible under Rule 407. The court acknowledged that "Rule 407 is typically associated with personal injury and other negligence cases." According to the court, though, "Rule 407 is worded broadly,...and courts have applied it in many other contexts including intentional tort and contract claims." Moreover, the court noted that in cases such as Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1045 (7th Cir.2007), "authorities have read Rule 407 to exclude evidence of subsequent policy revisions in insurance coverage disputes."

The court then

agree[d] with Pastor and conclude[d] that Rule 407 may bar evidence of subsequent policy revisions offered to resolve ambiguity in an executed insurance contract.

Here, Flexdar and State Auto executed several CGL policies subject to a pollution exclusion. The parties now disagree as to whether the term "pollutant" in the exclusion is ambiguous or contemplates a leakage of TCE. State Auto apparently revised its standard policy forms in 2004 to specify TCE as a pollutant. In line with the foregoing, we conclude that any modifications that State Auto made to its policy forms in 2004 constitute subsequent remedial clarifications which are not admissible to interpret Flexdar's insurance contract and prove State Auto's liability.

-CM

That's Unfair: Second Circuit Finds Sodomy Character Evidence Not Unfairly Prejudicial

Federal Rule of Evidence 414(a) provides that

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

Rule 413, like its counterparts Rules 414 and 415, was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994. The drafters' purpose was to supersede Rule 404(b)'s prohibition on evidence of like conduct showing propensity in sexual assault and child molestation cases. Of course, evidence sought to be admitted under Rule 414(a) is still subject to Federal Rule of Evidence 403, which provides that

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

But when is evidence of past sexual crimes "unfairly" prejudicial, presenting a problem under Rule 403, and when is it merely "highly" prejudicial? That was the question addressed by the recent opinion of the Second Circuit in United States v. Davis, 2010 WL 4366481 (2nd Cir. 2010). And I would say that the court got it wrong.

In Davis, William Davis was convicted of one count of sexual exploitation of a minor, two counts relating to child pornography, and one count of being a felon in possession of ammunition. At trial, the district court allowed the prosecution to present evidence, pursuant to Federal Rule of Evidence 414(a), of Davis' 1991 conviction for sodomy by forcible compulsion (The conviction was redacted by stipulation to reflect only the fact of conviction upon a guilty plea to a sodomy offense involving a child below the age of 14 and not the fact that the child was Davis' daughter).

After he was convicted, Davis appealed, claiming, inter alia, that the district court should have deemed evidence of the conviction inadmissible under Federal Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. The Second Circuit disagreed, finding that

We previously considered the interplay between Rules 414 and 403 in United States v. Larson, 112 F.3d 600, 604-05 (2d Cir.1997). We noted that the legislative sponsors of Rule 414 expected that convictions within its ambit would normally be admitted and that their prejudicial value would normally not be outweighed by the risk of prejudice....Although the 1991 conviction in the pending case is 19 years old, the convictions in Larson were between 16 and 20 years old. There can be no doubt that admission of a prior conviction for child molestation carries a high risk of prejudice for any defendant, especially one charged with sexual exploitation of a minor. However, as the Seventh Circuit has observed, such evidence may be "highly prejudicial" but not necessarily "unfairly prejudicial." United States v. Sebolt, 460 F.3d 910, 917 (7th Cir.2006) (emphasis in original)....

The calibration necessary to distinguish "highly" prejudicial from "unfairly" prejudicial will often be difficult to determine. In this case, the District Judge demonstrated his concern for the issue by...encouraging the stipulation that redacted from the record the explosive fact that the victim of the 1991 conviction was the Defendant's daughter. Mindful of the congressional expectations concerning Rule 414, an expectation normally to be honored unless application of the rule would offend the Due Process Clause, we cannot say that the District Court's allowable discretion in the admission of evidence was exceeded in this case.

So, what was the Seventh Circuit's point in Sebolt, and does it apply to Davis? Well, in Sebolt, Philip Sebolt was charged with using his computer to commit various federal crimes involving child pornography. And, at trial, the prosecution presented evidence that he had previously molested a relative. The prosecution presented evidence of this prior act to prove Sebolt's motive for committing the crime charged, and the district court admitted the evidence along with a limiting instruction which told the jury not to use the evidence as propensity character evidence.

After Sebolt was convicted, he appealed, claiming that the district court should have deemed the evidence inadmissible because it was highly prejudicial. According to the court,

Sebolt correctly state[d] that evidence of child molestation is highly prejudicial. However it is not unfairly prejudicial in Sebolt's case. A limiting instruction was given regarding other bad acts evidence, and the government did not overstep its bounds in this regard.

So, how does this apply to Davis? The answer is that it doesn't. Sebolt says that when character evidence is used to prove a permissible purpose under Rule 404(b) and not as propensity character evidence, the evidence is not unfairly prejudicial when a limiting instruction is issued. When, however, character evidence is used under Rule 414 (or Rule 413 or Rule 415), it is used as propensity character evidence. Now, the Second Circuit may be correct "that the legislative sponsors of Rule 414 expected that convictions within its ambit would normally be admitted and that their prejudicial value would normally not be outweighed by the risk of prejudice." That is not to say, though that such evidence lacks the danger of unfair prejudice. It does, which is exactly why it would otherwise be excluded under Rule 404.

-CM

Double Your Hearsay: SDNY Finds Customer Complaints In Business Records Inadmissible In Action Against MTA

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The rationale behind the Rule is that employees of a business have an interest in recording events accurately to ensure that the business functions smoothly. Conversely, customers of that business have no similar interest, so customer complaints are not admissible under this Rule. Instead, they are hearsay within hearsay and inadmissible unless they meet an independent exception to the rule against hearsay as is clear from the recent opinion of the United States District Court for the Southern District of New York in Rivera v. Metropolitan Transit Authority, 2010 WL 4545579 (S.D.N.Y. 2010).

In Rivera, two Hispanic males brought an action under 42 U.S.C. § 1981 and 1983, among others, against the Metropolitan Transportation Authority ("MTA"), a number of MTA police officers, and others for, among other things, false arrest and excessive use of force. The plaintiffs' complaint alleged that they were singled out for this alleged treatment by reason of their race and ethnicity.

The defendants moved for partial summary judgment on, inter alia, the plaintiffs § 1981 claim. According to the court, the plaintiffs' memorandum made only a few assertions in support of the notion that any of the defendants intended to discriminate on the basis of race, including that

• "Defendant Sullivan has numerous complaints against him for racial slurs ... (Statement of Facts J Supra & Exh. EE)." [and]

• "The vast majority of civilians who filed complaints against Defendant MTAPD Officers and alleged excessive force were non-Caucasian or had names that indicate that they are ethnically diverse. ( Id.)"

And, according to the court,

The first two of plaintiffs' assertions rely on their Exhibit EE, which consists of documents relating to civilian complaints and investigations thereof made with respect to three of the individual defendants. Even taking the complaints at face value, they (1) reveal no substantiated complaints-not "numerous complaints"-against Sullivan for the use of a racial or ethnic slur, and (2) do not indicate the race or names of the complainants. None is a sworn statement by a complainant testifying to anything that any of the subjects of the complaints did or said. Inasmuch as the documents contain MTA accounts of what complainants said, they presumably are admissible under Fed.R.Evid. 801(d)(2) and/or 803(6), at least against the MTA, for the fact that the complainants made the allegations reported. They are not, however, admissible for the truth of what the complainants said. Plaintiffs' Exhibit EE therefore is insufficient on either ground to raise a genuine issue of material fact with respect to the allegation that any of the individual defendants acted with discriminatory intent.

In other words, the customer complaints were hearsay within hearsay under Federal Rule of Evidence 805 because they were statements by non-MTA employees and thus inadmissible to prove the truth of the matter asserted unless they met an independent exception to the rule against hearsay.

-CM

The Invention Of Lie Detection: Dr. William Marston And The Creation Of The Lie Detector Test, Frye, & Wonder Woman

I recently came across an interesting piece of information: Wonder Woman's creator, Dr. William Moulton Marston, created not only her Lasso of Truth, but also the systolic blood pressure test, i.e., the predecessor to the modern lie detector (polygraph) test. The systolic blood pressure test should be familiar to those who have taken Evidence in law school because it was the subject of the landmark expert evidence opinion, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Apparently, Marston was both a graduate psychology and law student at Harvard in 1915 when he began working on his blood pressure approach to deception (Marston eventually got his law degree in 1918). He got the idea for a lie detection machine based upon blood pressure after his wife, Elizabeth, suggested to him that "When she got mad or excited, her blood pressure seemed to climb." Marston eventually created his systolic blood pressure test, and,"[a]ccording to Marston..., he and his colleagues tested a total of 100 criminal cases in Boston criminal court, and his systolic blood pressure test led to correct determinations in 97 of them...." Dr. Marston soon thereafter either coined the phrase "lie detector" himself or adopted it from a reporter to whom he described the wonders of his device. See Vincent V. Vigluicci, Note, Calculating Credibility:  State v. Sharma and the Future of Polygraph Admissibility in Ohio and Beyond, 42 AKRON L. REV. 319, 321 (2009).

Thereafter,

After World War I, Marston pursued an academic career, and he appeared as an expert witness in the now famous 1923 Frye case, in which the defense unsuccessfully attempted to introduce his expert testimony as to the innocence of the defendant on the basis of his systolic blood pressure test....Frye was accused of murder in the District of Columbia and, after first denying all knowledge of the event, confessed and provided police with correct details of the killing. A few days later, Frye recanted the confession, claiming that he admitted to the crime because he had been promised a share of the reward for his own conviction. Marston then gave Frye his deception test in a D.C. jail and found his claim of innocence to be entirely truthful. When Marston was introduced as an expert witness at trial, the presiding judge excluded the evidence on the grounds that the test had been administered in jail 10 days before Frye testified in court and that it was irrelevant to the veracity of his testimony. Frye was convicted of murder....The case was appealed on the ground that the trial judge erroneously excluded Marston’s testimony. On appeal, the circuit court argued that the judge was correct in excluding the evidence....

Specifically, according to the court in Frye,

Just when a scientific principle or discovery crosses the line between the experimental and the demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-organized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

This Frye test, which focuses upon whether a technique of technology has general acceptance in the relevant expert field, thereafter ruled the roost in courts across the country for the next seven decades and explains why lie detector evidence has been deemed inadmissible everywhere except New Mexico: Dr. Marston's test results were deemed inadmissible in Frye. And while there were some indications that courts' attitudes toward lie detector evidence would change after the Supreme Court's landmark 1993 opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), that door was effectively shut by the Supreme Court's opinion five years later in United States v. Scheffer, 523 U.S. 303 (1998).

So, if there were no Dr. Marston, what would lie detectors look like today? Presumably, Frye would not have taken a lie detector test and there would have been no Frye test. So, would some other opinion have taken hold in the absence of Frye and been applied by courts across the country? Or would different jurisdictions have created different rules? And would there have been the uniform rejection of lie detector test results? We'll never know.

What we do know is that there wouldn't have been a Wonder Woman without Dr. Marston.

In 1940, when he was serving as an educational consultant for Detective Comics, Inc. (now known as DC Comics), Marston asked why there was not a female hero. Max Gaines, then head of DC Comics, was intrigued by the concept and told Marston that he could create a female comic book hero—a "Wonder Woman"—which he did, using a pen name that combined his middle name with Gaines's: Charles Moulton.

Wonder Woman first appeared in a nine-page center spread in the December-January 1941 issue of All Star Comics. Then, in January 1942, she debuted in Sensation Comics number one, with a full version of her origin and her first adventure, armed with her bulletproof bracelets, magic lasso, and her Amazonian training. For our purposes, Wonder Woman’s magic lasso is her most notable possession and a link to the original and modern myth of the invincibility of the polygraph:

The magic lasso was supposedly forged from the Magic Girdle of Aphrodite, which Wonder Woman’s mother was bequeathed by the Goddess. Hephastateus borrowed the belt, removed links from it, and that is where the magic lasso came from. It was unbreakable, infinitely stretchable, and could make all who are encircled in it tell the truth.

-CM

Car And Driver: Court Of Appeals Of Texas Lays Out Corroborating Circumstances Test For Statements Against Interest

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

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

So, when do the corroborating circumstances clearly indicate the trustworthiness of the statement? That was the question addressed by the recent opinion of the Court of Appeals of Texas, Amarillo, in Rodriguez v. State, 2010 WL 4628580 (Tex.App.-Amarillo 2010).

In Rodriguez, Jose Angel Rodriguez, was convicted by a jury of evading arrest or detention. Rodriguez claimed that while he was in a car that pulled over in response to police cruiser but then drove up; he claimed, though, that he was merely a passenger, with Eric Mendoza being the driver. At trial, Rodriguez attempted to support this claim by calling

his great-grandmother, Juanita Rodriguez, to testify about a telephone conversation she had with Mendoza two months earlier. Before she could testify concerning Mendoza's statements, the State objected to the testimony as hearsay. In response to the State's objection, [Jose] contended the statement was admissible as a statement against interest. Outside the presence of the jury, Rodriguez testified that she had a telephone conversation with Mendoza, who had called to speak to Jose. Rodriguez stated: "He [Mendoza] told me that he was driving. My son was asleep beside him, but he got scared and jumped to the back when he was stopped."

The trial court, however, precluded this testimony, finding that while Mendoza's alleged statement would have been a statement against interest, there were not corroborating circumstances clearly indicating the trustworthiness of the statement. In reviewing this issue on appeal, the Court of Appeals of Texas, Amarillo, found that the Court of Criminal Appeals of Texas has identified a number of factors that are relevant to this inquiry:

(1) whether the guilt of the declarant is inconsistent with the guilt of the defendant; (2) whether the declarant was so situated that he might have committed the crime; (3) the timing of the declaration; (4) the spontaneity of the declaration; (5) the relationship between the declarant and the party to whom the statement was made; and (6) the existence of independent corroborative facts.

In applying these factors to the case before it, the court found that

Mendoza's statement was against his penal interest and, with Appellant's upcoming trial, it is not unreasonable to assume he anticipated that his statement would be disclosed to authorities or the trial court. In addition, Mendoza was in a position where he could have committed the crime and his guilt would have necessarily precluded Appellant's guilt. Furthermore, Appellant's own trial testimony corroborates Mendoza's statement.

On the other hand, Mendoza had no relationship, familial or otherwise, with Appellant's great-grandmother and his statement lacked spontaneity because it was purportedly made in response to a query from Appellant's great-grandmother regarding Mendoza's reluctance to testify at her great-grandson's upcoming trial. Furthermore, the trustworthiness of the statement was directly attacked by Officer Taylor's testimony that he had seen Appellant exit and enter his car on the driver's side at a convenience store shortly before the offense occurred. In addition, the trustworthiness of the statement was controverted by Deputy Valdez's testimony that, as he approached the car at the second stop, he observed Appellant slide over from the driver's seat to the front passenger seat and Mendoza move from the front passenger seat to the backseat. Furthermore, that Appellant had been driving the car was consistent with his ownership interest in the vehicle. In addition, Appellant's testimony that he was asleep for two hours immediately prior to the second stop was contradicted by Officer Taylor's testimony that less than two hours prior to the second stop, he observed the car empty and later observed Appellant exiting and entering the driver's side of the car at a convenience store.

-CM

Do You Remember?: Court Of Appeals Of Indiana Defines "Insufficient Recollection" Under Rule 803(5)

Like its federal counterpart, Indiana Rule of Evidence 803(5) provides that

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

So, when does a witness have "insufficient recollection" for Rule 803(5) purposes? Must the witness have no present knowledge of the pertinent information, or is it enough if the witness has insufficient recollection to testify fully and accurately? As the recent opinion of the Court of Appeals of Indiana in Horton v. State, 2010 WL 4634609 (Ind.App. 2010), makes clear, Indiana courts used to apply the former standard but now apply the latter standard. 

In Horton, Randy Horton was convicted of six counts of child molesting as Class A felonies and three counts of child molesting as Class C felonies. The alleged victim was R.M., the child of Horton's girlfriend, and the Madison County Department of Child Services videotaped an interview with R.M., in which she provided a detailed explanation of the type, extent, and duration of sexual molestation by Horton.

At trial, R.M. was able to testify about several acts of sexual molestation that Horton committed against her. She, however, was unable to remember one specific act of molestation Horton allegedly committed against her, prompting the prosecution to play the videotaped interview for the jury pursuant to Indiana Rule of Evidence 803(5).

After he was convicted, Horton appealed, claiming, inter alia, the prosecution failed to satisfy the "insufficient recollection requirement of Rule 803(5) because R.M. "had a complete and accurate recollection of the events," but "[s]he was unable to remember and testify concerning allegations" that Horton told R.M. to insert her fist into his anus."

In rejecting this argument, the Court of Appeals of Indiana noted that

In Smith v. State, 719 N.E.2d 1289 (Ind.Ct.App.1999), we concluded that "[e]arlier Indiana law required that the witness be shown to have no present knowledge of the pertinent information. Under the new [recorded recollection] rule, a witness need not be shown to be completely without present memory; he need only be shown to have insufficient recollection to...testify fully and accurately."

-CM

Follow My Voice: Seventh Circuit Reiterates Minimal Familiarity Standard Under Rule 901(b)(5)

Federal Rule of Evidence 901(b)(5) provides that the identification of a voice, "whether heard firsthand or through mechanical or electronic transmissions or recording," may be established by opinion testimony that is "based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." So, can an officer authenticate a defendant's voice on wiretapped telephone conversations based upon the officer listening to an approximately fifteen second voice exemplar at least fifty to sixty times? According to the recent opinion of the Seventh Circuit in United States v. Cruz-Rea, 2010 WL 4628670 (7th Cir. 2010), the answer is "yes," despite the absence of any empirical evidence on the reliability of voice identifications. 

In Cruz-Rea, Rosalio Cruz-Rea appealed his convictions for conspiracy to possess with the intent to distribute more than five kilograms of cocaine and possession with intent to distribute 500 grams or more of cocaine in violation. In large part, these convictions were based upon

twenty-four wiretapped telephone conversations, including a conversation in which Cruz-Rea offered to sell cocaine that was "good for the frying pan" and a conversation in which Cruz-Rea discussed his plan to ship cocaine to Indianapolis via a car hauler carrying a Ford Explorer.

Officer Marytza Toy was the only witness who actually testified that she recognized Cruz-Rea as the speaker in each of the twenty-four recorded conversations. As noted, Officer Toy's familiarity with Cruz-Rea's voice came from  listening to an approximately fifteen second voice exemplar at least fifty to sixty times.

In finding that Officer Toy provided proper authentication under Federal Rule of Evidence 901(b)(5), the Seventh Circuit noted that

We have consistently interpreted this rule to require that the witness have only "minimal familiarity" with the voice....Once the court admits voice identity testimony, opposing counsel may cast doubt upon the witness' opinion through cross-examination, additional testimony, or other evidence....It is ultimately the trier of fact's responsibility to determine the accuracy and reliability of the identification testimony, and when reaching its determination, the trier of fact may consider circumstantial evidence that tends to corroborate or contradict the identification.

The court thus could not

say as a matter of law that the low bar of minimal familiarity was not met in this case. Officer Toy testified that she became familiar with Cruz-Rea's voice by listening to an approximately fifteen second voice exemplar at least fifty to sixty times. Officer Toy then identified Cruz-Rea's voice on twenty-four wiretapped telephone conversations....Two different witnesses testified to having these exact conversations with Cruz-Rea on the telephone. Although neither of the two witnesses offered any voice identification testimony in court, their corroborating testimony tends to establish the accuracy of Officer Toy's voice identification. Given the length of the voice exemplar and the number of times that Officer Toy listened to the exemplar, the district court did not abuse its discretion in determining that the government had laid sufficient foundation for Officer Toy's voice identification testimony under Rule 901(b)(5)....The accuracy and reliability of the testimony was a question for the jury to weigh, and the court properly admitted the corroborating testimony to aid the jury in this role....We stress, however, that we arrive at this conclusion without the benefit of empirical evidence on the reliability of voice identifications, and as previously cautioned by this court in Jones, we can imagine a case in which the foundation for the voice identification testimony was so flimsy as to be deemed insufficient....

So my question is: Where is the empirical evidence? There is tons of research out there about the inaccuracy of eyewitness visual identifications, but I'm not aware of any studies about the effectiveness (or ineffectiveness) of voice identifications. My inclination is to believe that such studies would show that a standard of minimal familiarity is insufficient, but I would love to see the actual results.

-CM

Speed Bump: Tenth Circuit Finds Coconspirator Admission Motion Tolled Speedy Trial Clock

Pursuant to 18 U.S.C. Section 3161(c)(1) of the Speedy Trial Act,

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate judge on a complaint, the trial shall commence within seventy days from the date of such consent.

That said, Section 3161(h)(1)(D) of the Act provides that

The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to....

(D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion....

And, as the recent opinion of the Tenth Circuit in United States v. Mulgado-Patida, 2010 WL 4627875 (10th Cir. 2010), makes clear, evidentiary motions sometimes fall under Section 3161(h)(1)(D). 

In Mulgado-Patida, Jose Mulgado-Patida (Defendant) was convicted of conspiracy to possess and distribute methamphetamine. He later appealed, claiming, inter alia, that the district court violated the Speedy Trial Act. In rejecting this argument, the Tenth Circuit noted that "[t]he period from October 15, 2008, until trial began on March 30, 2009, [wa]s excluded because of a motion filed by codefendant Christopher Vigil. Among other things, the motion sought a James hearing to determine whether statements by alleged coconspirators that would otherwise be hearsay would be admissible under the coconspirator exception."

The court then correctly noted that

A motion that "requires a hearing" tolls the speedy-trial clock from the filing of the motion until the conclusion of the hearing....A motion to determine the applicability of the coconspirator exception is such a motion. We have said that "a district court can only admit coconspirator statements if it holds a James hearing or conditions admission on forthcoming proof of a predicate conspiracy through trial testimony or other evidence" and have expressed a "strong preference for James proceedings."...Other circuits have decided that motions for James hearings are motions "necessitating hearings," and "[a]s such, the entire time from the filing of the motion to the conclusion of the hearing is excludable, even when the hearing is deferred until trial." 

Thus, according to the Tenth Circuit,

Although the district court never set Vigil's motion for hearing, it explained its intention to make James determinations during the trial itself. Accordingly, the period from the filing of Vigil's motion until the start of trial on March 30, 2009, is excluded under § 3161(h)(1)(D).

-CM

Doctor, Doctor, Give Me The News: Court Of Appeals Of Iowa Notes That Rule 803(4) Covers Exculpatory Statements

Like its federal counterpart, Iowa Rule of Evidence 5.803(4) provides an exception to the rule against hearsay for

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

But does Rule 5.803(4) only apply to inculpatory statements? That was the surprising conclusion reached by an Iowa trial court and correctly reversed by the Supreme Court of Iowa in its recent opinion in State v. Hanes, 2010 WL 4539192 (Iowa 2010).

In Hanes,

Robert Hanes was convicted...of willful injury causing serious injury....The verdict [wa]s based on an incident between Hanes and Nathanial Taylor....According to Taylor, he was walking to a cigar store to redeem bottles and cans. Taylor claims one week earlier Hanes had given him $2.25 to purchase gizzards for Hanes, and Taylor did not purchase the gizzards or return the money. Hanes asked about the money and was angry and yelling. Taylor offered Hanes his cans, but Hanes pulled out a knife and said "I'm going to kill you" and "stabbed [Taylor] in the face." Taylor then grabbed Hanes's hand holding the knife, hit Hanes in the head, and kicked Hanes until Hanes said "stop." Hanes picked up a bottle of whiskey and walked into the park.

Hanes claimed he did not know Taylor and encountered him while walking home. Hanes testified Taylor struck him with the bag of cans and bottles, and Hanes struck back. Hanes testified he was defending himself, and he had previous boxing experience.

At trial, Hanes called the nurse practitioner who treated him, leading to the following exchange:

Q. Okay. And when Mr. Hanes presented himself, your hospital-to your hospital, what was his complaints?

A. Mr. Hanes' complaint is that he had been hit-

[Prosecutor] Objection, Your Honor, to the hearsay.

[Defense] Purposes of medical treatment, Your Honor.

The Court: It's still-If it's-it's subject to that exception, but it's not admissible because it would be exculpatory.

After Hanes was convicted, claiming, inter alia, that the nurse practitioner's testimony should have been admitted under Iowa Rule of Evidence 5.803(4). The Supreme Court of Iowa found that the trial court improperly focused upon the proposed testimony being exculpatory, finding that statements made for purposes of treatment or diagnosis

are admissible, regardless of whether they are exculpatory or inculpatory, if they fit within the two-part test this court has adopted. The two-part test requires the proponent of the statement to show: (1) the declarant's motive in making the statement is consistent with the purposes of promoting treatment, and (2) the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.

The court then noted that it was likely that the nurse practitioner's testimony would have qualified for admission under Iowa Rule of Evidence 5.803(4) but that it was impossible to tell because Hanes did not make an offer of proof. That said, based upon other errors committed by the trial court, the Supreme Court of Iowa was able to reverse Hanes' conviction.

-CM

The Passing Of Margaret A. Berger

I am saddened to pass along the news that Margaret A. Berger, the Trustee Professor of Law at the Brooklyn Law School and surely one of the most influential Evidence teachers and scholars in the world, has passed away. As Edward Cheng, her former colleague at Brooklyn, noted on the Evidence Professor listserv this morning: "She was an extraordinary scholar, teacher, and person. Our field will never quite be the same without her." For more on this amazing woman and her life, you can check out Tributes to Margaret A. Berger for the Science for Judges Programs, A Letter to Honor Professor Margaret Berger, and Professor Cheng's Festschrift in Honor of Margaret A. Berger.

Article Of Interest: Allison Orr Larsen's Bargaining Inside the Black Box

The vast majority of criminal cases are resolved by compromises in the form of plea bargains. Moreover, the purpose of Federal Rule of Evidence 410, which deems inadmissible statements made during the course of plea discussions, is to encourage such compromises. So, what happens to criminal cases that go to trial and are submitted to jurors for deliberations? Well, according to the terrific new article, Bargaining Inside the Black Box (forthcoming, Georgetown Law Journal), by Allison Orr Larsen, an Assistant Professor at the William & Mary Law School, most of these cases are resolved by compromises as well, in the form of compromise verdicts (including, but not limited to, verdicts reached when jurors, to avoid deadlocks, concede some issues so that other issues will be resolved in their favor). As Professor Larsen notes, these compromise verdicts are viewed quite differently than plea bargains: They are "generally dismissed as flaws in the jury process - examples of maverick jurors dishonoring their oath to uphold the law, and reasons why the jury should not be trusted with more power, for example, to participate in sentencing decisions." But should they be? Professor Larsen's fascinating argument is "that the best way to evaluate intrajury negotiation is to juxtapose it with the negotiation that dominates our criminal justice system and has already been subject to detailed study."

And by doing so, she reaches the conclusion

that while steps can and should be taken to improve intrajury negotiation, the common critiques of compromise verdicts - that they are lawless flaws in the jury system - do not have the force they might in a world without plea bargaining....Instead of quickly dismissing intrajury negotiation as an illegitimate process,...we should recognize it as a reality and seek to improve it with lessons we have learned from plea negotiations.

In Part I, Professor Larsen sets forth the reasons why it is likely that jurors compromise. She starts with two observations: (1) that criminal jurors commonly have a menu of options before them (such as lesser included offenses); and (2) that evidence shows that judges, prosecutors, and defense attorneys are keenly aware that juries compromise. Professor Larsen then proves that this awareness is well founded by citing fascinating  

-jury survey data from the National Center for State Courts which show the prevalence of jury compromises (The most interesting statistic to me was that 54% of jury verdicts were rendered with at least one juror whose personal belief diverged from the final verdict); and

-results of mock jury simulations, which deal with the cognitive bias known as framing and the effects of multiple verdict options on deliberations (The most interesting information to me was that Scottish criminal jurors have three options: "guilty," "not guilty," and "not proven").

In Part II, Professor Larsen draws the analogy between plea negotiations and intrajury negotiations:

-they are both confidential enterprises;

-they both often involve verdict-driven deliberations

-jurors have a drive to compromise that is not all that different from the drive of prosecutors and criminal defendants to compromise;

-they are both subject to cognitive biases such as framing and anchoring; and

-they are both almost certainly here to stay, so it makes more sense to look at intrajury negotiations as a reality that we need to address rather than a problem that we must (try to) avoid (as when plea bargaining was "officially" prohibited and defendants were told to deny that any promises were made to them).

In Part III, Professor Larsen considers the differences between the two types of negotiations:

-jurors lack information possessed by prosecutors and criminal defense attorneys but, inter alia, they lack the "agency costs" that burden their counterparts;

-there is (usually but not always) an information and power imbalance between prosecutors and criminal defense attorneys while jurors (usually but not always) are relative equals;

-jurors use substantive law during intrajury negotiations differently than prosecutors use substantive law in their plea bargaining choices.

Finally, in Part IV, Professor Larsen asks whether compromise verdicts are indeed compromised or whether the conventional thinking misses the mark. And her conclusion is that "when intrajury negotiation and plea negotiations are juxtaposed, many objections to the former lose their force, and - perhaps more importantly - the analogy sheds light on important potential reforms." Specifically, she notes that

-while institutional limitations inherent in the jury system make good negotiations difficult, those limitations aren't quite as severe as we might think and no more severe than the limitations on the plea bargaining process (and the former limitations can be somewhat alleviated by, inter alia, informing juorors of some of the sentence implications that arise from the different offenses on their verdict forms);

-while compromise verdicts dilute the reasonable doubt standard, so do plea bargains (and the former dilution can be diminished in part by more forcefully instructing jurors that they don't need to reach a verdict);

-compromise verdicts are not jury nullification and at worst are "nullification light," an important backstop to protect defendants against the established "reach a plea bargain or face the trial penalty" system;

-compromise verdicts are no more an abandonment of the quest for truth than plea bargains.

Professor Larsen's article is both incredibly well written and incredibly persuasive and I highly recommend it to readers. I asked her what led her to write the article, and she responded:

I have always been fascinated with juries.   And after (believe it or not) serving on a jury myself, my fascination with the subject peaked.  I grew particularly interested in the negotiating dynamic that almost inevitably follows any time you lock 12 very different people in a room and tell them they can’t leave until reaching a unanimous verdict.   It seemed to me that when multiple verdict options are present (as is generally the case with lesser included offenses), a compromise verdict – a deal among jurors in order to achieve unanimity on some mix of acquittals and convictions – is almost unavoidable. 

After doing some research into the empirical jury literature, I quickly discovered that compromise jury verdicts are quite common and well documented.   I was struck by how similar intrajury negotiation is to plea negotiation – the actors involved do not all view the case the same way, but they have incentives to reach a compromise, and they bargain with each other over the right outcome until ultimately making a deal.  Surely there are significant differences between the two negotiations – and my paper discusses the implications that flow from these differences.  But at the end of the day I was surprised that compromise verdicts are almost universally thought to be flaws in the jury system.  This struck me as odd, considering so many criminal verdicts are  the product of negotiation these days.    My paper offers a new take on compromise verdicts through an analogy to plea bargaining.   Instead of dismissing intrajury negotiation as illegitimate, I argue that we should accept it as a reality and from there seek to improve it with lessons drawn from plea negotiations.

-CM

Shield And Sword: Court Of Appeals Of Iowa Finds Prosecutor Improperly Used Rule 607 In Murder Appeal

Like its federal counterpart, Iowa Rule of Evidence 5.607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

It is well established, however, that the State can only use this Rule as a shield and not as a sword, i.e., that the State is not entitled  to place a witness on the stand who is expected to give unfavorable testimony and then, in the guise of impeachment, offer evidence which is otherwise inadmissible. And, as the recent opinion of the Court of Appeals of Iowa in State v. Bush, 2010 WL 4484401 (Iowa App. 2010), makes clear, if the State uses Rule 5.607 as a sword to get the defendant's confession(s) before the jury, an appellate court is likely to reverse.

 In Bush, Jacovan Bush was convicted of first-degree murder in connection with the shooting death of Thomas Horvath. After the shooting, Richard Beets and Reggie and Ricky Beard each made statements to the police in which they claimed, inter alia, that Bush admitted that he shot Horvath. Each of these men, however, recanted their statements before trial.

With their recantations in hand, Bush's attorney filed a motion in limine seeking to exclude the three men as State witnesses. He argued:

It is believed the State will call these witnesses in an effort to put inadmissible hearsay (their prior statements) in front of the jury under the guise of impeachment.

The district court denied the motion, reasoning that the State would not call these witnesses "for the sole purpose of impeaching the witness with hearsay that is favorable to the State." The court stated these witnesses would also presumably "set the stage for the shooting" and describe "incidents following the shooting."

The case then proceeded to trial, and the State basically called all three men for the sole purpose of impeaching them with evidence of their prior statements to the police. At least, that what the Court of Appeals of Texas, Houston, found in reversing Bush's conviction, finding "[o]n the face of the record,...the elicitation of details surrounding the crime was nothing more than a subterfuge for the real purpose of introducing the recanted statements." Furthermore, the court easily found that this error was not harmless based upon the obviously damaging nature of each of these witness' statements.

-CM

Forgive Me Father: Court Of Appeals Of Texas Finds Child Sexual Abuse Talk With Priest Not Covered By Privilege

Texas Rule of Evidence 505(b) provides that

A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser.

So, let's say that a Catholic priest calls a father based upon allegations that the father was sexually abusing his daughter, a member of his parish. Are the father's statements to the priest covered by this clergyperson-penitent privilege. According to the recent opinion of the Court of Appeals of Texas, Houston, in Gutierrez v. State, 2010 WL 4484350 (Tex.App.-Houston [1 Dist.] 2010), the answer is "no," at least if the priest makes the purpose of the conversation clear to the father.

In Gutierrez, R.G. reported alleged sexual abuse by her father, Rogelio Gutierrez, to Father Michael Minifie, a Catholic priest at her parish.

In response, Father Minifie told R.G. that he had a duty to contact the police. He drove R.G. to a Houston Police Department station, where Officer Flucas interviewed her about the abuse. The following day, R.G. told Gutierrez that she had revealed the abuse to Father Minifie. Two days after her outcry to the priest, R.G. also told her mother about the abuse. That day, Gu[]tierrez asked R.G. for forgiveness, claiming he was a changed man and he was good with god. Similarly, when R.G.'s mother confronted Gutierrez, he simply asked her for forgiveness.

In the next days following R.G.'s outcry, Father Minifie became concerned because the police had not yet arrested Gutierrez, and he thought Gutierrez might come on church property, where children were present. As a result, he contacted the legal department of the Archdiocese of Galveston and Houston. Based on their advice, he called Gutierrez. His purpose was to put Gutierrez on notice that he, the parish and the archdiocese knew that someone had accused him of rape and sexual assault. Further, he testified that the purpose of the call was not to provide spiritual advice, and he was not calling in the capacity of a spiritual advisor. He did not mention R.G. by name and spoke of the allegations in only general terms.

In response, Gutierrez neither confirmed nor denied the allegations, but told Father Minifie that he was getting help and had gone to confession with another priest. He said he realized what he did, and he was trying to get his life back on track. He asked Father Minifie twice if he could meet with him, but Father Minifie declined because he said it would be a conflict of interest. Gutierrez responded that he understood why he could not meet with him. Further, he stated that he was reading the Bible and that we needed to reach down and let the Lord take care of this situation. He said, "It hurts, my daughter hurts." Lastly, he asked Father Minifie what was going to happen, and Father Minifie responded that he did not know.

This testimony was instrumental to the prosecution in procuring Gutierrez's conviction for sexual assault of a child and aggravated sexual assault of a child, and, after he was convicted, claiming, inter alia, that it was given in violation of Texas Rule of Evidence 505(b). The Court of Appeals of Texas, Houston, disagreed, finding that

Father Minifie initiated the phone conversation with Gutierrez to put him on notice that he, the parish, and the archdiocese were aware of the sexual assault allegations against him. Father Minifie's motive was concern for the children at his church because the police at that time had not yet arrested Gutierrez. We hold that the trial court reasonably could have concluded that the phone conversation was not made to Father Minifie in his professional character as a spiritual advisor, and was thus not privileged.

The court noted Gutierrez's argument "that although Father Minifie initiated the conversation for an administrative purpose, the communication is nonetheless privileged because Gutierrez sought spiritual guidance during the phone call." The Court of Appeals, however, determined that

the trial court reasonably could have concluded that Gutierrez did not expect that his communications would be confidential because Father Minifie had made it clear that he was not communicating with him in his professional character as spiritual advisor....At the beginning of the call, Father Minifie notified Gutierrez of his administrative purpose for the conversation. Also, when Gutierrez asked to see him, Father Minifie twice refused, stating that it would be a conflict of interest. Finally, although Gutierrez made comments of a religious nature, Father Minifie did not solicit these comments and did not respond to them.

Further, Gutierrez appeared to understand that Father Minifie would not communicate with him in his professional character as spiritual advisor. When Father Minifie refused to meet with him, Gutierrez responded that he understood why he could not. Also, Gutierrez notified him that he had already sought spiritual advice from another priest, who had heard his confession. We hold that the trial court did not abuse its discretion in overruling Gutierrez's privilege objection.

-CM

Electric Sheep: Court Of Appeals Of Indiana Notes That Statements Automatically Generated By Computers Can't Be Hearsay

Like its federal counterpart, Indiana Rule of Evidence 801(c) defines hearsay as

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

And, like its federal counterpart, Indiana Rule of Evidence 801(b) defines a declarant as "a person who makes a statement." And, as this definition and the recent opinion of the Court of Appeals of Indiana in Cranston v. State, 2010 WL 4410153 (Ind.App. 2010), make clear, because a declarant must be a person, a statement automatically generated by a computer cannot be hearsay.

In Cranston, Timothy Cranston

was pulled over on suspicion of drunk driving. Arresting Officer Lawrence Bendzen performed a battery of field sobriety tests. Cranston failed them all. Officer Bendzen transported Cranston to the county jail to conduct a certified chemical breath test.

Officer Bendzen administered the chemical breath test using a B.A.C. Datamaster with keyboard. Officer Bendzen first made sure that no foreign substances were inside Cranston's mouth. He then waited twenty minutes before proceeding. Officer Bendzen next entered a password on the Datamaster, inserted an evidence ticket into the machine, and typed in Cranston's biographical information. The machine displayed the instruction, "Please blow." Officer Bendzen placed a new mouthpiece onto the Datamaster's breath tube, and Cranston blew into the instrument. The Datamaster printed a ticket indicating that Cranston had provided an invalid breath sample. Officer Bendzen waited another twenty minutes and replaced the mouthpiece. Cranston delivered a second breath sample. This time the Datamaster printed a ticket reading in pertinent part:

--- BREATH ANALYSIS ---

BLANK TEST	.00	00:47
INTERNAL STANDARD	VERIFIED	00:47
SUBJECT SAMPLE	.15	00:51
BLANK TEST	.00	00:52

ALCOHOL READINGS ARE EXPRESSED AS GRAMS OF ALCOHOL PER 210 LITERS OF BREATH

The State thereafter charged Cranston with misdemeanor operating while intoxicated endangering a person and misdemeanor operating a vehicle while intoxicated with an alcohol concentration equivalent to .15 or greater.  At trial,

The State introduced at trial the evidence ticket printed from the Datamaster machine. Officer Bendzen authenticated the ticket, testified to his own certification in performing chemical breath tests, and explained the steps he followed in administering Cranston's test. The State also introduced an official certificate of compliance verifying routine inspection of the Datamaster.

After he was convicted, Cranston appealed, claiming

that the admission of the Datamaster evidence ticket violated his Sixth Amendment right to confrontation because he was afforded no opportunity to cross-examine "the forensic scientist who selected and prepared the breath test machine" or "any witness with knowledge of the scientific principles relied on by the BAC Datamaster, about the bases of that machine[']s conclusions regarding the type and quantity of alcohol present, or about the reliability or acceptance of those principles and conclusions."

In rejecting this argument, the Court of Appeals of Indiana noted that the admission of the evidence ticket could not have violated Cranston's rights under the Confrontation Clause because it was not hearsay. According to the court,

It is well-settled that "[b]ecause a declarant must be a 'person,' a statement automatically generated by a computer cannot be hearsay."...So-called "'[m]echanical hearsay' is not 'hearsay' because the problem is one of relevance-was the machine operating properly when it spoke, not a problem of perception, recollection, narration, or sincerity on the part of the machine.'"...Mechanically-generated or computerized information may constitute hearsay when incorporating a certain degree of human input and/or interpretation....But the B.A.C. Datamaster, for example, while requiring administrative input from the test operator and a breath sample from the test subject, calculates and prints a subject's blood alcohol concentration through a mechanical process involving no material human intervention....

As mechanically-generated data are not hearsay statements in the first instance, the prevailing view is that they cannot constitute testimonial hearsay for purposes of Crawford and the Confrontation Clause.

-CM

In Conclusion: Southern District Of Texas Finds Testimony About Copyright Violations Violates Rule 704(a)

Federal Rule of Evidence 704(a) states that

Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Conversely, expert witnesses are not allowed not testify in the form of ultimate legal conclusions? So, when does an opinion properly embrace an ultimate issue, and when does an opinion improperly embrace an ultimate legal conclusion? It's a thin line, but it is one that was recently crossed according to the recent opinion of the United States District Court for the Southern District of Texas in Interplan Architects, Inc. v. C.L. Thomas, Inc., 2010 WL 4065465 (S.D.Tex. 2010).

C.L. Thomas involved the following facts:

Interplan Architects, Inc. ("Plaintiff") is a company whose business involves architectural planning, architectural design, and preparation of architectural construction documents, including, but not limited to, architectural site plans, architectural floor plans, architectural exterior elevations, interior designs, and construction documents ("Architectural Documents")....

Between 2003 and 2004, Plaintiff was hired by C.L. Thomas ("Defendant Thomas") to prepare Architectural Documents for nine different Speedy Stop convenience stores in south Texas. For Speedy Stop store numbers 59 and 82, Plaintiff submitted proposals to Defendant Thomas describing the services it would provide in connection with the projects (the "Design Proposals"). The Design Proposals contained language asserting Plaintiff's ownership of the Architectural Documents it prepared in connection with the projects and limiting Defendant Thomas's ability to copy or distribute the plans without Plaintiff's permission....

Defendant Thomas allege[d] that, during the design process, it provided Plaintiff with many drawings and files from other third-party vendors, consultants, and even other architects in order to prepare the Architectural Documents....In 2003 and 2004, employees of C.L. Thomas requested and received from Plaintiff electronic copies of Plaintiff's Architectural Documents. Plaintiff provided the requested electronic Architectural Documents as CAD files in electronic format on a computer-readable disk...

In 2004, Defendant Thomas hired Morris & Associates ("Defendant Morris") and Hermes Architects ("Defendant Hermes") to provide architectural design and construction drawings for a total of thirteen different Speedy Stop stores (the "Infringing Stores")....Defendant Thomas admits that it furnished Defendant Morris with CAD files of at least some of Plaintiff's Architectural Documents and that Defendant Morris replaced Plaintiff's title block on the Architectural Documents with its own. Defendant Thomas also admits that it furnished Defendant Hermes with copies of Defendant Morris's Architectural Documents.

In 2006, Plaintiff's president, Marcel Meijer, allegedly discovered the existence of the Infringing Stores. Plaintiff subsequently registered copyrights for architectural works and technical drawings related to the Speedy Stop stores it had designed for Defendant Thomas. Thereafter, Plaintiff filed suit against Defendant Thomas, Defendant Morris, and Defendant Hermes...for copyright infringement...and violation of integrity of copyright management information under the Digital Millennium Copyright Act....Defendants...asserted various defenses to Plaintiff's claims, including, among others, that Defendant Thomas is a joint author of Plaintiff's Architectural Documents, that Plaintiff granted Defendant Thomas an implied nonexclusive license to copy and use Plaintiff's Architectural Documents, and that Plaintiff does not hold a valid copyright for architectural works and technical drawings.

Defendant Thomas planned to present the testimony of architect Andrew Noble, who would have testified consistent with his expert report. In that report, inter alia, Noble

cite(d) various publications of the U.S. Copyright Office regarding copyright law, applies them to the facts presented to him, and concludes that: (a) Defendant Thomas was a joint author with Plaintiff in the design of Speedy Stop Store No. 85; (b) the plans for Store No. 85 were a derivative work; (c) the design of Store No. 85 was not uniquely Plaintiff's; (d) Plaintiff did not acquire transfer of ownership from Defendant Thomas or other contributors for their respective portions of the design; and (e) Plaintiff did not possess sufficient ownership to claim a sole copyright to the Speedy Stop stores....

In deeming this proposed testimony inadmissible, the United States District Court for the Southern District of Texas correctly concluded that

Whether Defendant Thomas is a joint author, whether Plaintiff's designs are derivative works, whether Plaintiff has sufficient ownership to claim copyright, whether Plaintiff's design is unique and gives rise to ownership, and whether Plaintiff acquired ownership from Defendant Thomas are all issues for the trier of fact to decide....Mr. Noble impermissibly uses the legal standards and applies them to the facts of the case in order to make legal conclusions....Mr. Noble may not tell the trier of fact what result to reach with respect to these issues.

-CM

Death Becomes Her: The Good Wife Partially Gets Psychotherapist-Patient Privilege Issue Right

This week's episode of "The Good Wife" had Alicia and company litigating a "test case" in which the allegation was that the defendant-pharmaceutical company's antidepressant caused the client's mother to kill herself and her husband. If the firm won, it would have opened the door for an easy class action lawsuit against the company and millions of dollars for both victims and the firm. The case, though, never went to verdict, with the company agreeing to a $35 million settlement. Why?

Well, part of the pharmaceutical company's defense (presented by terrific guest star Michael J. Fox) was that it wasn't the drug that caused the murder-suicide; it was the mother's belief that her husband was sleeping with their daughter. And, to establish this defense, the company called the mother's therapist to testify that the mother told him about these suspicions in the months before her death. This led to Alicia and company calling a former patient of the therapist to testify that the shrink engaged in sexual relations with her, prompting him to move his practice from Illinois to Wisconsin. This testimony leads the pharmaceutical company to enter into the settlement (although Fox's attorney later explains that this was always the company's plan).

So, why was the therapist allowed to testify about the mother-patient's suspicions? The show explains that while the psychotherapist-patient privilege normally deems such communications confidential and the privilege survives the patient's death in Illinois, it does not survive the patient's death in Wisconsin. Therefore, the therapist's move to Wisconsin meant that any statements made by the mother after the move were not protected by the privilege? So, did the show get it right? 

Wisconsin's psychotherapist-patient privilege is contained in Wisconsin Stat. Section 905.04(2), which provides that

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor (emphasis added).

Meanwhile, Wisconsin Stat. Section 905.04(4(c) states the there is the following exception to the privilege:

There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense (emphasis added).

Thus, the show was correct that the psychotherapist-patient privilege did not cover the mother's statements to the therapist in Wisconsin. So, what about Illinois? Well, Illinois has a similar exception to its psychotherapist-patient privilege in 740 ILCS 110/10(a)(2):

Records or communications may be disclosed in a civil proceeding after the recipient's death when the recipient's physical or mental condition has been introduced as an element of a claim or defense by any party claiming or defending through or as a beneficiary of the recipient, provided the court finds, after in camera examination of the evidence, that it is relevant, probative, and otherwise clearly admissible; that other satisfactory evidence is not available regarding the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from any injury which disclosure is likely to cause (emphasis added).

So, there also should have been no problem with the therapist testifying with regard to statements made to him by the mother-patient while he was practicing in Illinois.

-CM