EvidenceProf Blog

Brother To Brother: First Circuit Finds Private Confession To Brother Not Admissible Under Rule 804(b)(3)

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

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

So, would it be correct to make a blanket statement that a private confession to a brother can never constitute a statement against interest under Rule 804(b)(3)? The First Circuit didn't go quite that far in its recent opinion in Santiago v. O'Brien, 2010 WL 5175178 (1st Cir. 2010), but it came pretty darn close.

In O'Brien, Peter Santiago was convicted in Massachusetts of

trafficking in two hundred or more grams of cocaine....His defense was that the drugs and drug-dealing paraphernalia found in his apartment belonged to Oley Saradeth-an acquaintance who stayed in Santiago's apartment from time to time and who died of pneumonia in the interim between the police raid in November 1997 and the trial in October 1998. Although Santiago testified that the drugs were Oley's, this effort to shift blame was hampered by the trial court's refusal to admit into evidence a confession Oley purportedly made to his brother, Fanta Saradeth.

After Santiago unsuccessfully appealed in the state court system, he filed a petition for a writ of habeas corpus in federal district court, claiming that he should have been allowed to introduce Oley's statement as a statement against interest. The district court, however, denied the petition, and the First Circuit affirmed, first noting that

In excluding the December 1997 confession, the trial court accepted the Commonwealth's argument that a statement made only to one's brother is not genuinely against the speaker's penal interest because the speaker assumes the statement will remain private; further, the court found that the statement was uncorroborated by any circumstances indicating its trustworthiness.

The First Circuit was somewhat skeptical of this holding, finding that

Whether the first ground (if intended as a blanket statement rather than a judgment on the particular facts) accords with Massachusetts law is unclear....Elsewhere, statements made in private-even when the possibility of future disclosure seems remote-may at least on some facts nevertheless be against penal interest.

The court, however, did not need to resolve this issue because it ultimately concluded that

private statements, even if potentially against penal interest, are not all the same, and the trial court's grounds of decision in this case overlap: a private confession to a brother, where there is nothing to suggest it will become public while the speaker is alive, is at best minimally "against penal interest" and certainly not (standing alone) shown to have a further hallmark of trustworthiness. Here, the supposed confession, as clarified on cross-examination, is not even a straightforward exculpation of Santiago. It was surely not shown to be "trustworthy" hearsay.

-CM

It's An Eye Roller: Court Of Appeals Of Alaska Precludes Jury Impeachment Based On Prosecutor's Eye Rolling

Similar to its federal counterpart, Alaska Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement 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, 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 for these purposes.

So, does this Rule prevent the receipt of juror affidavits indicating that the prosecutor rolled his eyes during certain parts of trial? According to the recent opinion of the Court of Appeals of Alaska in Silvera v. State, 2010 WL 5129199 (Alaska App. 2010), the answer is "yes." 

In Silvera, Michael A. Silvera was convicted of second-degree assault after he cut David Moore in the face with a knife during an argument between Moore and Silvera's fiancée. After he was convicted, 

Silvera filed a motion for a new trial, arguing that five jurors had witnessed eye-rolling and other inappropriate facial expressions by the prosecutor throughout the trial. Silvera argued that this conduct deprived him of a fair trial because it conveyed the prosecutor's personal opinion about his guilt and veracity, and suggested that the prosecutor had personal knowledge of facts not in evidence.

The trial judge, however, denied the motion, promoting Silvera's appeal after he was convicted. In rejecting Silvera's argument that he should have been able to introduce juror affidavits to prove this prosecutorial misconduct, the Court of Appeals of Alaska noted that

It could be argued that the juror affidavits submitted by Silvera were wholly inadmissible. The relevant portion of Evidence Rule 606(b) states that a court is prohibited from receiving the testimony or affidavits of jurors when offered to impeach a verdict, unless the testimony or affidavits relate to "whether extraneous prejudicial information was improperly brought to the jury's attention." This court has stated that, for purposes of Rule 606(b), "extraneous" information means information that reaches the jurors other than through the normal trial process. Thus, when a lawyer engages in improper argument, or when a witness gives a non-responsive answer, or offers objectionable testimony, or makes an otherwise improper statement in open court, these improprieties do not constitute "extraneous" information within the meaning of Rule 606(b).

We are aware of some federal authority suggesting that there may be occasions when information that reaches the jury through the normal trial process may still be deemed "extraneous" for purposes of the federal analog to Evidence Rule 606(b). The parties have not briefed this issue. And, as we are about to explain, we need not resolve this issue-because, even if the affidavit Silvera submitted in superior court was admissible under Evidence Rule 606(b), it fails to establish that Silvera is entitled to relief.

This was because, as the court went on to explain,

The affidavit that Silvera submitted d[id] not connect the prosecutor's challenged conduct to the testimony of any particular witness or to any particular piece of evidence; nor d[id] the affidavit establish with any certainty how pervasive the prosecutor's reactions were, or whether the prosecutor appeared to be intentionally directing these reactions to the members of the jury.

-CM

Battle Of The Transcripts: Eleventh Circuit Finds No Problem With Circumscription Of Paralegal Transcriptionist's Testimony

It's common at trial to have the so-called "battle of the experts," in which the prosecution's expert might claim that there were defensive wounds on the victim's body while the defense expert might claim that there were no such wounds. In United States v. Gayle, 2010 WL 5174536 (11th Cir. 2010), however, there was the much rarer "battle of the transcripts," with the key being that the defense transcriptionist was not an expert.

In Gayle, Ryan Gayle was convicted of importation of 1,000 kilograms or more of marijuana and conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana. Lloyd Garrick, a confidential informant for Immigration and Customs Enforcement was Gayle's alleged co-conspirator, with the subject conspiracy consisting of importing marijuana from Jamaica.

Garrick recorded many of his conversations with Gayle, and

Gayle objected to the introduction of transcripts of [the] audiotaped conversations between him and Garrick. Gayle and Garrick spoke English with the Jamaican patois, which differs from standard English in many ways, and Gayle argued that the government's transcripts were not an accurate translation or transcription of the conversations. Gayle produced his own set of transcripts, but suggested that the jury should listen to the tapes without the benefit of any transcripts. Because the parties had not been able to agree on a stipulated set of transcripts and the court found that the value of the transcripts outweighed the possibility of jury confusion, it denied Gayle's objection and ruled that each side could introduce its transcripts during its own case in chief.

During his case in chief,

Gayle introduced his transcripts through the paralegal transcriptionist who had prepared them. The transcriptionist described in detail the discrepancies between the two sets of transcripts, but the court restricted her from testifying as to the meaning of certain patois words or as to which of the transcripts was more correct.

After Gayle was convicted, he appealed, claiming, inter alia, that the district court improperly circumscribed the testimony of the paralegal transcriptionist. The Eleventh Circuit disagreed, holding that

opinions and inferences by a lay witness are limited to those (1) rationally based on the witness's perceptions; (2) helpful to a clear understanding of her testimony or a determination of a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge that requires expert testimony. See Fed.R.Evid. 701. The correctness of a translation is a question of fact for the jury, and the district court does not abuse its discretion by requiring an alternate translation to be properly authenticated by an interpreter.

-CM

What Kind Of Right?: Court Of Appeals Of Michigan Finds Rape Shield Rule Vests Rights In Victims

MCL 750.520j, Michigan's rape shield statute, provides that:

(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted ... unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim's past sexual conduct with the actor.

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

In its recent opinion in People v. Hoskinson, 2010 WL 5129891 (Mich.App. 2010), the Court of Appeals of Michigan rejected the appellant's argument that he could present evidence of the alleged victim's sexual conduct to prove that she consumed a high level of alcohol on the night he allegedly sexually assaulted her. In rejecting this argument, the court concluded: "Allowing the jury to hear about a victim's sexual past to prove the victim consumed a high level of alcohol is not a recognized exception, and such a rule would violate a victim's rights under the rape shield statute."

At first blush, this sentence seems innocuous, something we might see in any case denying an appellant's rape shield appeal. But at second glance, it seems much more significant.

So, what's the significance? Well, most rape shield opinions only reference the rights of the defendant, with the question being whether the application of a rape shield rule, a rule of evidence, violates the rights of the defendant. Indeed, Federal Rule of Evidence 412, the federal rape shield rule, specifically indicates that there is an exception to the rule for "evidence the exclusion of which would violate the constitutional rights of the defendant."

Conversely, you don't often see a rape shield case mention the victim's rights. Indeed, a quick WESTLAW search of "victim's rights" /p "rape shield" returned no results in the ALLFEDS database.  The same search returned 8 results, including People v. Hoskinson, in the ALLSTATES database. 4 of these results come from Montana courts, which do seem to embrace the idea of Montana's rape shield rule vesting rights in the victim.

Some of the other results are less clear. In a Georgia case, it was the appellant himself who claimed that the alleged victim's rights under Georgia's rape shield rule had to yield to his right to confront witnesses against him. And, in an Illinois case, the court referenced the alleged victim's rights under Illinois' rape shield rule only as part of its finding that those rights had to yield to the defendant's confrontation rights.

So, the opinion of the Court of Appeals of Michigan in People v. Hoskinson is actually fairly atypical and, I would claim, important. Why? Well, if the prosecution is prosecuting a defendant for rape and loses a rape shield ruling, the prosecution might not choose to appeal that ruling before the evidence is presented And, if the rape shield rule is just a rule of evidence, the alleged victim presumably could not appeal that ruling on her own. But, if the rule creates rights in the victim, maybe she would be able to appeal.

Meanwhile, if an alleged victim in a civil action for sexual assault loses a rape shield ruling ruling, and the rape shield rule is just a rule of evidence, all she has at her disposal is the typical appeal process. But, if the rule creates rights, she might have alternative avenues to relief.

Of course, this all depends on the nature of the rights created by a rape shield rule. Is it a right to privacy? Is it a right to bodily integrity? Is it Constitutionally based? Very few courts have even found that rape shield rules vest rights in victims, let alone addressed the question of what types of rights they create. But perhaps the opinion in People v. Hoskinson is a sign that this is about to change.

-CM

 

Diagnosis Rape: Court Of Appeals Of Mississippi Finds Statements Made To Social Worker Admissible Under Rule 803(4)

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

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term "medical" refers to emotional and mental health as well as physical health.

As the recent opinion of the Court of Appeals of Mississippi in Cox v. State, 2010 WL 5093619 (Miss. 2010), makes clear, however, statements do not need to be made to a diagnostician (or even a medical professional) to be admissible under this Rule.

In Cox,  

J.R., while filling her car with gas, was approached by a man, later identified as the defendant, [Patrick] Cox, who threatened to kill her if she did not do what he said. Cox forced J.R. into the backseat of her Chevrolet Equinox, and as she pleaded for him to release her, Cox drove away from the gas station. J.R. remembered she had her cell phone in her back pocket, and as discretely as possible, she dialed numbers in an effort to be rescued. She first dialed 911; not knowing if her call had been received, she then dialed her friend, Maria Wright, and then her ex-husband, Gregory Young. J.R. left the phone on while she continued to plead with Cox to let her go.

Cox eventually pulled the car over and got into the backseat with J.R. and demanded that she remove her clothes. J.R. testified that Cox began to lick her neck and breast, and once J.R. removed her clothes, Cox raped her. Fortunately, as Cox was distracted by another vehicle passing by, J.R. was able to escape from her backseat and run to a BP gas station operated by Willie Harris. Harris let J.R. into his store, found her something to cover up with, and called the police.

J.R. was then taken to the University of Mississippi Medical Center (UMC). While at the hospital, J.R. was interviewed by Martha Pentecost, a UMC social worker, and Patty Welch, a UMC registered nurse. Jackson Police Officer Taafee N. Hughes and Detective Kimberly Brown were also present for the interview. In the interview, J.R. told Pentecost and Welch that she had been kidnapped and forced into her car against her will. She further testified that she was raped, and a rape kit was then prepared to test J.R.'s person. Welch also noted that she found "redness" on J .R.'s labia minor.

At trial, Pentecost testified regarding J.R.'s statements (although the opinion of the Court of Appeals of Mississippi doesn't no reveal the exact nature of Pentecost's testimony). After Cox was convicted of carjacking, kidnapping, and the forcible rape, he appealed, claiming, inter alia, that Pentecost's testimony was inadmissible under Mississippi Rule of Evidence 803(4) because Pentecost was not a diagnostician.

The Court of Appeals of Mississippi disagreed, concluding that Rule 803(4)

states that if the trial court finds the circumstances surrounding the statement indicate substantial trustworthiness, the statement can be admitted regardless as to whom the statement was made. The trial court found that because the statements were made after J.R. had just been brought into the hospital and because they were made in the company of a nurse and a police officer, there was enough trustworthiness to admit the statements. Furthermore, Pentecost's testimony was corroborated by a UMC registered nurse, Welch, and J.R. herself.

The more interesting question to me, which the court did not address, is whether J.R.'s statements were "testimonial" and violative of the Confrontation Clause in the event that she did not testify (the court's opinion does not make clear whether J.R. testified). The fact that a police officer and detective were present for the interview of J.R. make me think that her statements would indeed be "testimonial."

-CM

The Wicked Run Away: The Surprising Legal Focus Of The Coen Brothers' "True Grit"

Yesterday, I saw the Coen brothers' latest movie, "True Grit," the remake of the 1969 film starring John Wayne, with both being based upon the book by Charles Portis. One of my reactions: The Coens have learned a lot about the law since they made "Intolerable Cruelty," which I regard as one of the most legally inaccurate movies of all time.

But this was clearly not the case with "True Grit," an old school Western with a surprising legal focus. First, there's a scene which I will be sure to use in my Criminal Law classes that focuses on the distinction between Malum in se and Malum prohibitum:

LeBoeuf

Azh I understand it, Chaney—or Chelmzhford, azh he called himshelf in Texas—shot the shenator’zh dog. When the shenator remonshtrated Chelmzhford shot him azh well. You could argue that the shooting of the dog wazh merely an inshtansh of malum prohibitum, but the shooting of a shenator izh indubitably an inshtansh of malum in shay.

Rooster 

Malla-men what?

Mattie

Malum in se. The distinction is between an act that is wrongin itself, and an act that is wrong only according to our lawsand mores. It is Latin.

Rooster

I am struck that LeBoeuf is shot, trampled, and nearly severs his tongue and not only does not cease to talk but spills the banks of English.

The Mattie in this exchange is a fourteen year-old spitfire played by the terrific Hailee Steinfeld, and, as the exchange reveals, she knows a good deal about the law. Indeed, earlier in the film, there are a couple of snappy scenes between Colonel Stonehill and her in which she uses the threat of litigation (at the hands of Lawyer J. Noble Daggett of Dardanelle, Arkansas) to her advantage.

Later, we learn that the ex-wife of Jeff Bridges' incorrigible U.S. Marshal Reuben "Rooster" Cogburn unsuccessfully tried to get him to become a lawyer:

Rooster

She had taken a notion she wanted me to be a lawyer. Bought a heavy book called Daniels on Negotiable Instruments and set me to reading it. Never could get a grip on it and I was happy enough to set it aside and leave Texas. There ain’t but about six trees between there and Canada, and nothing else grows but has stickers on it. I went to— 

This being an Evidence blog, though, my main focus is on earlier scene in the movie in which Cogburn is on trial for the shooting deaths of two Wharton boys. Cogburn's defense (like the defense of Timothy Olyphant's Marshal Raylan GIvens) is that the shootings were justified. At trial, the following exchange occurs:

Cogburn

The woman was out in the yard dead with blowflies on her face and the old man was inside with his breast blowed open by a scatter-gun and his feet burned. He was still alive but just was. He said them two Wharton boys had done it, rode up drunk—

Mr. Goudy

Objection. Hearsay.

Mr. Barlow

Dying declaration, your honor.

Judge

Overruled. Procede, Mr. Cogburn.

Interesting. Federal Rule of Evidence 804(b)(2), which is based upon common law court practice such as the practices likely followed in 19th Century Arkansas (when and where the movie takes place), provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Now, for the most part, this exception comes into play to prove that the defendant killed the victim such as when Victim says, "Defendant shot me" just before dying. And, occasionally, the exception comes into play to prove that the defendant did not kill the victim such as when Victim says, "Defendant didn't shoot me" or "[Someone else] shot me" just before dying.

What's different about the dying declaration in "True Grit" is that it is the statement of a victim not being used in a prosecution for the victim's death. And technically, I think that the film is probably right that a dying declaration can be used at any prosecution for homicide and not solely at a prosecution for the killing of the victim who made the statement.

That said, I've never seen a dying declaration in such a case, and I don't know that such a declaration would ever be practically admissible in such a case. You see, the Coen brothers (or at least the lawyer and judge in the movie) didn't quite get it right. The old man's statement was not being offered to prove the truth of the matter asserted, i.e., that the two Wharton boys shot him. Instead, it was being offered to prove the effect on the listener, Cogburn, to prove why he had reasonable apprehension of the Wharton boys and why the shooting was justified.

[EDIT 1/14: As Larvell Blanks correctly notes in the comments, the trial at which Cogburn is testifying is NOT a criminal prosecution of him for murdering the Wharton boys. Instead, it is the prosecution of the surviving Wharton boy -- Odus -- for murder. Therefore, the statement that the Wharton boys committed the murder is being admitted to prove the truth of the matter asserted, making it hearsay, but it is admissible as a dying declaration.].

-CM

In Jury, We Trust: Court Of Appeals Of Colorado Allows Juror To Discount Effect Of Prejudicial Article

We trust jurors. We have to. This is the basis for Federal Rule of Evidence 606(b), which 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.

As Justice O'Conner noted in Tanner v. United States, 483 U.S. 107 (1987), "There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it." But what happens when jurors are exposed to extraneous prejudicial information or an improper outside influence? Do we still trust jurors when they say that they verdicts were not tainted by such information or influence? According to the recent opinion of the Court of Appeals of Colorado in People v. Moore, 2010 WL 5013681 (Colo.App. 2010), the answer is "yes." I'm not sure that I agree. 

In Moore, Lessell Henry Moore appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree murder, two counts of first degree burglary, first degree assault, sexual assault, menacing, and violation of a protection order. One of the grounds for his appeal was that the husband of one of the jurors read an article to his juror-wife. This article, inter alia, contained information about Moore's extensive criminal history which was inadmissible at trial because it contained propensity character evidence. Indeed, the juror-wife revealed this fact at trial, but the trial judge denied Moore's motion to excuse her after she said that she did not really pay attention to the article and could remain fair and impartial.

The Court of Appeals of Colorado allowed the juror-wife to impeach the jury's verdict based upon this allegation because the article constituted extraneous prejudicial information under Colorado Rule of Evidence 606(b). This left the question of whether the juror's exposure to this information required a new trial, and the court found that it did not because

In response to the court's questions, juror S said that: her husband read the article to her while she was in another room; she did not pay much attention to him; she did not remember anything from the article about defendant; and she could remain fair and impartial....

Defendant's citation of [People v. Moore, 701 P.2d 1249, 1252-53 (Colo.App.1985)] for the proposition that a new trial was required, because the prior conviction information would have warranted reversal if offered directly into evidence, is misplaced. Here, the trial court accepted the juror's statement that although she recalled some information from the article, she did not remember any information concerning defendant.

Really? The original basis for precluding jurors from impeaching their own verdicts was that a person testifying to his own wrongdoing was, by definition, an unreliable witness. If it seems that extraneous prejudicial information or an improper outside influence reached the jury, of course this rule needs to be pushed aside because the concern is that someone besides the jurors tainted the verdict. But if the juror was implicated in the wrongdoing (and I would say that the wife-juror was), shouldn't the old rationale apply, and shouldn't the juror be precluded from testifying that the information/influence had no impact on his or her decision (and this is even assuming that jurors should ever be allowed to testify about the effect of information/influence on decisions)?

-CM

A Misunderstanding: Court Of Appeals Of Texas Precludes Jury Impeachment Based On Juror Misimpression For Video

A defendant is on trial for driving while intoxicated (DWI). At trial, the prosecution shows a videotape to the jury in which the defendant says that he "took responsibility before." After the jury convicts the defendant, jurors approach defense counsel and inform him that they thought based upon the video that the defendant had been convicted of DWI before. In fact the defendant had no prior DWI convictions. Should the jurors be able to impeach their verdict? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Salazar v. State, 2010 WL 4840491 (Tex.App.-San Antonio 2010), the answer is "no." 

In Salazar, the facts were as stated above. In addressing the defendant's appeal, the court held that the issue was governed by Texas Rule of Evidence 606(b), which 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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

And, according to the court, the problem for the defendant was that he made

no allegation of outside influence that was improperly brought to bear upon the jurors. Instead, [defendant] appears to complain that the jurors reached erroneous conclusions from the evidence. In a similar case, S.P., this court, in finding counsel was not ineffective for failing to raise a juror misconduct issue, stated there was no jury misconduct when the jury discussed the thickness of the probation file and speculated that the accused juvenile had been in trouble before....Likewise, this court refused to find jury misconduct when one juror incorrectly informed the other jurors that the court papers that were in evidence reflected that the accused had served jail time for his first two DWI offenses when, in fact, they did not....Rather than outside influence, we described this situation as one in which "a juror misinterpreted documents in evidence."....In another similar case, the Corpus Christi Court of Appeals found no jury misconduct when, during deliberations, the jurors discussed the fact that the accused used his left hand to pick up a cup, which was consistent with the testimony of some other witnesses.

-CM

Judicial Guidance: Court Of Appeals Of Kentucky Applies Three Factor Test To Judicial Interrogation

Like its federal counterpart, Kentucky Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." But when does a judge cross the line into advocate for one of the parties, necessitating a new trial? As the recent opinion of the Court of Appeals of Kentucky in Amos v. Clubb, 2010 WL 5018471 (Ky.App. 2010), makes clear, however, many courts have adopted a three-factor test to determine whether judicial interrogation is proper.

In Clubb, Jackie Amos and Patricia Sibley unsuccessfully challenged the validity of the Last Will and Testament of Terry Clubb. They thereafter appealed from the trial court's judgment upholding a jury verdict finding that Terry's will was not the result of undue influence.

That will was executed at the office of attorney Bill Brammel, with Josh Clubb, a law clerk, and Toni Hall, an administrative assistant, witnessing Terry's signature. At trial, Brammel and Hall both testified that Clubb appeared to be competent when he executed his will. After both of the parties interrogated these witnesses, the trial judge stepped in and conducted his own interrogations.

After the trial court found that Terry's will was not the result of undue influence, Amos and Sibley appealed, claiming, inter alia, that the trial judge's questioning of Brammel and Hall unduly enhanced those witnesses' credibility, to the prejudice of their case. In addressing this argument, the Court of Appeals of Kentucky found that

A trial judge, when questioning a witness, should avoid imposing her opinion as to the credibility of that witness and must avoid crossing the line between impartial arbiter and advocate....To guide trial judges, the Supreme Court of Kentucky adopted the three-factor test used in Federal courts.

First, in a lengthy, complex trial, judicial intervention is often necessary for clarification. Second, if the attorneys in a case are unprepared or obstreperous or if the facts are becoming muddled and neither side is succeeding at attempts to clear them up, judicial intervention may be necessary for clarification. Third, if a witness is difficult, if a witness' [sic] testimony is unbelievable and counsel fails to adequately probe, or if the witness becomes inadvertently confused, judicial intervention may be needed.

Moreover, according to the court,

none of the three factors applies to this case. The trial was lengthy, but not overly complex. The attorneys were neither unprepared nor obstreperous. In fact, they appeared to be well prepared and fully cooperative with each other and the court. Finally, neither Brammel nor Hall was a difficult witness. Therefore, under Terry, it appears the trial judge should have resisted the urge to insert herself into the proceedings.

Thus, the court found that the judicial interrogation was erroneous, but it found this error to be harmless because

the trial judge's questioning of Brammel and Hall dealt exclusively with the issue of Terry's competence. That issue, by itself, was not before the jury. The issue before the jury was whether Terry's Will was the product of undue influence and, while competency is a factor in determining undue influence, it is not the only factor.

Several witnesses did testify that Terry was weak, had difficulty speaking in his final days, and sometimes repeated himself; testimony that did not necessarily contradict the testimony of Brammel and Hall. None of the witnesses testified that Terry was unaware of what was taking place on March 22 when he discussed the provisions of his Will with Brammel or on March 25 when he executed his Will. Furthermore, we note that it was Terry who asked Dean to recommend an attorney and that Dean recommended Brammel because he was “an ethical man” and “a good Christian man.” Faced with this evidence, and in particular Dean's testimony regarding Brammel's character, we conclude that any enhanced credibility that Brammel and Hall received by the trial judge's questioning was not prejudicial to Jackie and Patricia's case. Therefore, although unwarranted, we discern no reversible error in the trial judge's questioning of Brammel and Hall.

-CM

Uncompromising: Eastern District Of Tennessee Precludes Jury Impeachment To Prove Compromise Verdict

A defendant is charged with twelve counts. During deliberations, the jury sends a note to the judge which indicates that some jurors would not vote guilty. The note apparently also contains information about the numerical division of the jury. The judge reads aloud to the prosecutor and defense counsel the portion of the note that says that some jurors would not vote guilty. The judge then informs the parties that the note contains information about the numerical division of the jury, but the judge does not reveal this numerical information. The judge thereafter asks the parties for objections to an Allen charge. When the parties don't object, the judge recalls the jury and gives them the Allen charge. Later that day, the jury returns a verdict convicting the defendant on some charges but acquitting him on others. Should defense counsel be able to see the entire note and/or interview jurors to determine whether there was a compromise verdict? According to the recent opinion of the United States District Court for the Eastern District of Tennessee in United States v. Kennedy, 2010 WL 5057210 (M.D. Tenn. 2010), the answer is "no" on both counts.

In Kennedy, the facts were as stated above. In finding that defense counsel could not interview jurors to determine whether there was a compromise verdict, the court held that "juror testimony is not admissible to show a compromise verdict." Indeed, the Advisory Committee's Note to Federal Rule of Evidence 606(b) clearly indicates that jurors can't impeach their verdicts through allegations of a compromise verdict.

Moreover, in finding that the judge acted properly in connection with the Allen charge, the Middle District of Tennessee held that

Other Circuits have upheld the process the Court utilized in this action. In [United States v. Henry, 325 F.3d 93, 106 (2nd Cir. 2003), the district court received a similar note from the jury and elected not to reveal the exact numerical division to the attorneys, but gave an Allen charge....The Second Circuit rejected the defendant's argument for review of the entire note, but the Circuit ruled that the trial court should have informed counsel that it was not revealing to disclose vote split. Id. The Second Circuit relied on United States v. Robinson, 560 F.2d 507, 511-12 (2d Cir.1977), where the district court received two jury notes and revealed the general nature of the first note, but did not disclose the vote split cited in the note. Upon receipt of a second note, the district court sealed that note without informing counsel of any of its contents. There, the concurring and dissenting judges agreed that not revealing the vote split among jurors was proper. Id. at 524. (Oakes, J., dissenting) ("The trial court here should have revealed to counsel the substance of the juror's note, without disclosing the individual juror's name or the jury vote."). The Fifth Circuit is in accord. United States v. Warren, 594 F.2d 1046, 1049 (5th Cir.1979) (district court did not err in failing to disclose the vote of the jury).

-CM

It's Settled: Court Of Appeals of Texas Finds Burden Is On Party Raising Rule 408 To Prove Settlement Negotiations

Similar to its federal counterpart, Texas Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

As the recent opinion of the Court of Appeals of Texas, Fort Worth, in Vinson Minerals, Ltd. v. XTO Energy, Inc., 2010 WL 6118649 (Tex.App.-Fort Worth 2010), makes clear, however, the burden is on the party objecting to evidence under Rule 408 to show that it was a part of settlement negotiations and not offered for another purpose.

XTO Energy involved oil and gas leases that

originated in 2001 between Johnny Vinson, Vinson Minerals, Ltd., and others as lessors and Threshold Development Company as lessee. Threshold is a Vinson family company in that the owners, officers, and directors are members of the Vinson family. In 2003, Antero Resources Corporation bought Threshold's interests as lessee in the leases for $25 million.

In early 2005, the Vinsons began disputing Antero's calculations of royalty payments to the Vinsons from 2003 to 2005 and commenced an audit of Antero's accounting records of royalties. By letter of January 25, 2005, the Vinsons informed Antero that they were "waiting on requested information to complete [the] audit of production and royalty payments" and that the Vinsons' "potential claim" for royalty underpayment was $2 million. In March 2005, the Vinsons provided Antero with audit exceptions listing, among other complaints, improper deductions from royalty payments for compression, fuel, treating, and transportation charges by an "affiliated" pipeline owned by Antero "to be determined" but "estimated...to be in the range of $600,000."

The relationship between the parties deteriorated as the Vinsons raised other issues, including claims for reassignment of undeveloped acreage, drill site issues, and road and surface damage issues. On July 11, 2005, the Vinsons filed suit against Antero for numerous claims-including trespass, breach of contract, incorrect calculation and underpayment of royalties and other production costs, surface damages, and failure to develop-seeking an unspecified amount of damages and attorney fees.

In the meantime, two months before the Vinsons filed suit, XTO acquired Antero and the leases.

Thereafter,

On March 16, 2006, XTO's counsel wrote the Vinsons' counsel, summarizing the current status of the ongoing settlement discussions on all issues and proposing that XTO recalculate all prior royalties under a revised methodology and format and "in due course, make a retroactive payment to bring all prior periods up to the new payment methodology." The letter requested that the Vinsons present a settlement demand "to resolve all issues in the case" as follows:

Please discuss these issues with your client and present XTO a settlement demand to resolve all issues in the case. If we have misunderstood your pleading in any respect, or if you would need to discuss any of these issues prior to submitting a demand, please call me at your convenience.

The Vinsons' attorney responded with a three page letter dated May 12, 2006, which closed with the following paragraph:

Considering each of these factors, [the Vinsons] conservatively believe [ ]this case has a value greatly in excess of $30,000,000. Recognizing the risks of litigation and the costs associated therewith, I have been authorized to settle all claims in exchange for a payment in the amount of $9,500,000 and XTO bringing itself into compliance with the Barnett Shale Project Agreement by signing JOA's correctly identifying Threshold's before and after payout working interests after XTO acquired Sinclair Oil Corporation's interest in said agreement, in the same manner as all previously executed JOA's.

XTO later filed a motion to exclude this May 12th letter under Texas Rule of Evidence 408, and the trial court granted the motion. The Vinsons later appealed, claiming, inter alia, that this "letter was not a compromise settlement demand but was clearly a "Demand Letter" notifying XTO of its obligation to pay an amount that XTO knew it owed but was withholding until all issues could be resolved."

The Court of Appeals of Texas, Fort Worth, disagreed, first noting that "[t]he burden is on the party objecting to evidence under rule 408 to show that it was a part of settlement negotiations and not offered for another purpose." The court then agreed with the trial court, concluding that

The May 12 letter speaks for itself. It begins with a discussion of settlement, states that it is in response to XTO's request for a settlement demand, clearly and unambiguously concludes with a settlement demand for "all claims," and was written during the parties' ongoing negotiations for settlement of an existing lawsuit that included the Vinsons' claim for underpayment of royalties. The May 12 letter also concludes by conceding a right to which the Vinsons believe they are entitled.

-CM

Let's Go To The Tape: Supreme Court Of South Carolina Finds Prisoner Video Admissible In Death Penalty Appeal

A defendant is convicted of two counts of armed robbery, two counts of murder, one count of burglary of a dwelling, first degree, one count of attempt to burn, and one count of criminal sexual conduct, first degree. During the sentencing phase of trial and over the defendant's objection, the State introduced a video recording showing prison guards using pepper-spray to force the defendant to comply with a pat-down request. The events documented on the tape occurred the night that the defendant was found guilty. The defendant refused to allow prison guards to touch him when the guards requested that he place his hands on the wall for a pat-down. The guards explained that the pat-down was policy and indicated that if he continued to refuse, the defendant would be pepper-sprayed. The defendant continued to resist after several requests for compliance, so the guards used pepper-spray to restrain him. At the end of the sentencing phase of trial, the defendant was given the death penalty. Did the trial court properly allow for admission of the tape? According to the recent opinion of the Supreme Court of South Carolina in State v. Torres, 2010 WL 5071684 (S.C. 2010), the answer is "yes."

The facts in Torres were as stated above. In turning aside the appellant's argument that the video recording was improperly admitted, the Supreme Court of South Carolina cited its previous opinion in State v. Burkhart, 371 S.C. 482, 487, 640 S.E.2d 450, 453 (2007), for the proposition that "[A]daptability to prison life...is clearly admissible[] and...evidence of the defendant's characteristics may include prison conditions if narrowly tailored to demonstrate the defendant's personal behavior in those conditions."

The South Carolina Supremes then concluded that

The video recording in this case demonstrates exactly the type of evidence that Burkhart permits. The video shows [appellant's] behavior in a routine prison situation where he repeatedly refused to accede to prison guards' numerous requests to submit to a pat-down. Because the video recording is probative on the issue of [appellant's] adaptability to prison life, which is a legitimate concern in the sentencing phase of a capital case, the video does not introduce an arbitrary factor into the jury's determination.

The court did note that the evidence was still subject to South Carolina 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 the court ultimately held that

the trial judge's ruling was correct because the probative value far outweighs any prejudice stemming from the video and any unfair prejudice is de minimis. The video recording presented the jury with competent evidence to showcase [appellant's] character and adaptability to prison life by illustrating [appellant] in an actual routine prison situation. While prior testimony had already established [appellant's] prior convictions and his problems with maintaining parole conditions, this video recording was unique in its application to a specific parameter held by this Court to not be arbitrary in the sentencing phase of a capital murder trial.

-CM

Moving Target: Court Of Criminal Appeals Of Texas Clarifies Similar Motive Requirement Under Rule 804(b)(1)

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

In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.

But when exactly is there is a similar motive to develop the testimony of a witness? That was the question addressed by the recent opinion of the Court of Criminal Appeals of Texas in its recent opinion in Martinez v. State, 2010 WL 5093405 (Tex.Crim.App. 2010).

In Martinez, Raymond Martinez

was convicted of capital murder in October 1989....Pursuant to the jury's answers to the statutory punishment issues, the trial court sentenced appellant to death....This conviction and sentence were affirmed on direct appeal....In September 2007, this Court granted habeas corpus relief, set aside appellant's death sentence, and remanded the case to the trial court for a new punishment hearing.

Martinez's conviction and sentence were in large part based upon the testimony of Johnny DeAnda, and DeAnda passed away before Martinez's new punishment hearing. The prosecution thus introduced DeAnda's testimony from the first trial pursuant to Texas Rule of Evidence 804(b)(1).

After DeAnda was again sentenced to death, he appealed, claiming, inter alia, that DeAnda's testimony was improperly admitted under Rule 804(b)(1) because "his prior counsel did not have a similar motive for cross-examining DeAnda at the previous trial." Part of the basis for his argument was "that because the punishment charge to the jury in 1989 did not contain a separate mitigation instruction, [he] did not have the same motivation to cross-examine DeAnda regarding mitigation as he did in 2009, when the jury charge contained a separate mitigation instruction."

The Court of Criminal Appeals of Texas disagreed, finding that

While the language of the 1989 supplemental instruction is undeniably different from the language of the 2009 mitigation special issue, the purpose of each instruction was the same: to instruct the jury to consider mitigating evidence that might cause the jury to determine that a life sentence would be a more appropriate sentence than death. The parties, issues, and underlying purpose of the jury charge were the same in both 1989 and 2009. Further, defense counsel in 1989 and 2009 had the similar motive of presenting mitigating evidence to the jury. That appellant is now dissatisfied with the depth of prior counsel's cross-examination of DeAnda does not affect that motive....Therefore, the trial court did not violate appellant's Sixth Amendment right to confront and cross-examine a witness by admitting DeAnda's former testimony. 

-CM

Lacking Substance: Supreme Court Of Kansas Finds Evidence Of Liability Insurance Was Inadmissible To Prove Bias

Federal Rule of Evidence 411 provides that

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

Meanwhile, K.S.A. 60-454 provides that

Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.

In other words, Kansas's counterpart to Rule 411 makes no mention of evidence of liability insurance being admissible for other purposes such as proving bias. As the recent opinion of the Supreme Court of Kansas in Kansas Medical Mut. Ins. v. Svaty, 2010 WL 5033519 (Kan. 2010), makes clear, however, Kansas courts have read such language into K.S.A. 60-454 and applied the "substantial connections test" applied by most jurisdictions. 

In Svaty,

Jeanette Allen filed [an] underlying medical malpractice action against William Slater, M.D. During pretrial discovery, Dr. Slater designated Dr. Ted Macy as his expert witness. The use of Dr. Macy as an expert became a point of contention, leading Allen to file a motion to strike Dr. Macy as an expert. Judge Ron Svaty, the district judge presiding over the underlying medical malpractice action, denied the motion but allowed additional discovery regarding Dr. Macy and his opinions. In addition to interrogatories seeking supplementation of Dr. Macy's opinions and some additional information, Allen served a notice of subpoena duces tecum to take the deposition of officials at KaMMCO. Dr. Macy is an insured of KaMMCO, and Allen believed this formed a connection between Dr. Macy and Dr. Slater because Dr. Slater testified at his deposition that he was insured "by KaMMCO or a branch of KaMMCO."

In addressing Allen's argument, the Supreme Court of Kansas noted that while Federal Rule of Evidence 411 explicitly allows for evidence of liability insurance to be admitted to prove bias, K.S.A. 60-454 contains no such explicit provision. That said, the Kansas Supremes noted that in State Farm Fire & Casualty Co. v. Hornback, 217 Kan. 17, 535 P.2d 441 (1975), it found no reversible error in disclosing the existence of liability insurance to show witness interest or bias.

The Court then found, however, that evidence of liability insurance is not automatically admissible to prove bias; instead, it pointed out that

other jurisdictions have considered the question of whether evidence that an expert witness is a member of the same member-owned insurance company as a defendant may be admitted at trial....

In considering that situation, most jurisdictions apply what has become characterized as a "connections test" or a "substantial connections test." "The substantial connection analysis looks to whether a witness has 'a sufficient degree of 'connection' with the liability insurance carrier to justify allowing proof of this relationship as a means of attacking the credibility of the witness.'"

And, according to the court, the problem for Allen was that most "jurisdictions have reached the conclusion that evidence of both physicians being members of the same mutual insurance company is not admissible, without a showing of a substantial connection between the expert and the company." And because Allen could not show such a substantial connection, the Kansas Supremes rejected her argument.

-CM

Treatment Options: Court Of Appeals Of Texas Finds Statements Not Covered By Alcohol/Drug Treatment Privilege

Texas Rule of Evidence 509(b) provides that

There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.

In Murray v. State, 2010 WL 4924913 (Tex.App.-Dallas 2010), the appellant claimed that he went to a healing center seeking treatment for drug or alcohol abuse, making his statements to the center's staff covered by Rule 509(b). The Court of Appeals of Texas, Dallas, disagreed.

In Murray, Daniel Edward Murray pleaded guilty to possession of child pornography, indecency with a child, and aggravated sexual assault of a child. Thereafter, Murray appealed, claiming, inter alia, that the trial court erred by denying his motion to suppress. In that motion, he moved to suppress statements that he made to the staff at the Sante Healing Center. Murray claimed that he went to that center to receive treatment for drug or alcohol abuse, making his statements to the staff privileged under Texas Rule of Evidence 509(b). The State countered that Murray went to the center seeking treatment for sexual issues, which is why his statements were relevant to the criminal action against him.

In siding with the State and finding that Murray's statements were not privileged, the Court of Appeals of Texas, Dallas, held that

The only evidence presented at the hearing on the motion to suppress was the Sante records. Murray entered Sante on September 7, 2003. He told Sante that he quit using drugs after his high school graduation and, other than an occasional social drink, quit using alcohol in 2000. The records contain many statements by Murray acknowledging his past drug and alcohol use and that he was drinking heavily at the time of the alleged offenses. However, his "stated goals for treatment" when he was admitted to Sante were (1) learn why I still have pedophilic thoughts; (2) learn how to manage these thoughts since they probably never go away entirely; and (3) reduce shame by talking about these issues in a safe and therapeutic setting. Murray made numerous statements while at Sante that he was seeking treatment to address his attraction to minor girls. His primary goals on discharge from Sante were (1) to be able to live a normal life; (2) to establish and learn how to maintain recovery from the urges to fantasize about young girls; and (3) to feel good about himself and not experience the extreme low self-esteem that he had been living with for years. Further, Sante's treatment plan for Murray related to sexual issues, not drug or alcohol abuse.

-CM

Frownin' Bob: Sixth Circuit Finds Rule 704(b) Violation, Harmless Error In Enzyte Appeal

Federal Rule of Evidence 704(b) provides that

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

As I have noted before, however, courts almost always find that violations of Rule 704(b) constitute harmless error, which is exactly what the Sixth Circuit found in its recent opinion in United States v. Warshak, 2010 WL 5071766 (6th Cir. 2010).

In Warshak,

Berkeley Premium Nutraceuticals, Inc., was an incredibly profitable company that served as the distributor of Enzyte, an herbal supplement purported to enhance male sexual performance. In [an] appeal, defendants Steven Warshak..., Harriet Warshak..., and TCI Media, Inc...., challenge[d] their convictions stemming from a massive scheme to defraud Berkeley's customers.

You may remember the commercials for Enzyte. As the Sixth Circuit's opinion noted,

The popularity of Enzyte appears to have been due in large part to Berkeley's aggressive advertising campaigns. The vast majority of the advertising-approximately 98%-was conducted through television spots. Around 2004, network television was saturated with Enzyte advertisements featuring a character called "Smilin' Bob," whose trademark exaggerated smile was presumably the result of Enzyte's efficacy. The "Smilin' Bob" commercials were rife with innuendo and implied that users of Enzyte would become the envy of the neighborhood.

But there were many problems with the way that Berkeley Premium Nutraceuticals marketed and distributed Enzyte, with one of them being that the customer satisfaction rate touted by the company "was totally spurious." (You can read the court's opinion for all of the other problems)

After their convictions, one of the grounds for the defendants' appeal was that the district court improperly received certain testimony from Special Agent Jerry Simpson. Specifically,

At trial, Agent Simpson made three statements that the defendants contend[ed] violated [Rule 704(b)]. First, Simpson stated that "the business dealings of TCI Media were commingled with the personal dealings of Mr. Warshak[,] and...it was done with an intent to conceal the true nature and disposition of the funds that came in and out of the TCI Media account." Second, on cross-examination, Simpson testified that certain cash transactions "were designed to conceal money laundering." Finally, during redirect, Simpson stated that the defendants had made "transfers among...various business and personal accounts that were multi-layered transactions that, in [his] opinion, were designed to conceal the true source and application of the funds.” This testimony was allowed to stand over the defense's rather ardent objections that Simpson had violated Rule 704(b).

According to the Sixth Circuit,

Notwithstanding the district court's reluctance to exclude them, Simpson's statements clearly ran afoul of Rule 704(b). In suggesting that certain transactions were undertaken with "an intent to conceal," Simpson spoke directly to the core issue of the requisite mens rea. That is impermissible. Furthermore, Simpson's remarks with respect to the "design" of the transactions also implicate the issue of intent. To say that a transaction is designed to achieve a certain effect is tantamount to declaring that the individual who conducted the transaction intended to achieve that outcome....True, a witness may permissibly testify that the effect of a transaction is to conceal,...but that is not what Simpson did when he stated that the intent of the transactions was to mask the source or nature of the funds at issue. Thus, it appears that the district court abused its discretion in admitting certain portions of Simpson's testimony.

Nonetheless, the court found that this error was harmless because, inter alia,

The jurors were faced with evidence of an expansive and convoluted tangle of financial transactions, evidence that would, standing alone, be more than sufficient basis to support the conclusion that Warshak's intent in making the charged transactions was to conceal the source of the funds.

-CM

Truth Of The Matter: Supreme Court Of Mississippi Finds Doctor's Affidavit Was Properly Admitted

Like its federal counterpart, Mississippi Rule of Evidence 801(d)(1)(A) 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...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition....

Because such a prior inconsistent statement is not hearsay, it is both admissible to impeach the witness and to prove the truth of the matter asserted as is made clear by the recent opinion of the Supreme Court of Mississippi in James K. Triplett as the Administrator of the Estate of Jean B. Triplett, Deceased v. River Region Medical Corporation, 2010 WL 5093777 (Miss. 2010). 

In Triplett,

On January 6, 2004, Jean Triplett...underwent an elective hip-replacement surgery due to her struggles with bilateral degenerative hip disease. Approximately one day after the surgery, Triplett suffered from a stroke and eventually died on October 25, 2006. Triplett's heirs and estate...filed suit in the Circuit Court of Warren County, Mississippi. River Region Medical Corporation, William C. Porter Jr., M.D., John Adams, M.D., Patty Stone, CRNA, Gladys Howard, R.N., and John and Jane Does 1-20...were named as Defendants. Prior to the jury trial, River Region filed a motion for summary judgment, which was granted as to Dr. Porter, Howard, and River Region regarding any liability for Dr. Lamar McMillin, the physician who performed the surgery, under the theory of respondeat superior. At the close of the trial, the jury returned a verdict in favor of River Region, after which Triplett's heirs filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied; and Triplett's heirs timely appealed....

One of the grounds for the appeal was that the Circuit Court improperly allowed for the admission of an affidavit executed by Dr. Badr, River Region's expert witness, setting forth his opinion of the case. During cross-examination, the Triplett heirs questioned Dr. Badr regarding the medical care provided to Triplett, while simultaneously reading into evidence parts of Dr. Badr's affidavit that contained prior inconsistent statements. Upon re-direct examination, River Region thereafter moved to place the affidavit into evidence, and the Circuit Court allowed the affidavit to be introduced into evidence over a hearsay objection made by the Triplett heirs.

In finding that the Circuit Court acted properly, the Supreme Court of Mississippi noted that the affidavit was given under oath, making it nonhearsay under Mississippi Rule of Evidence 801(d)(1)(A). Therefore, the affidavit was admissible not only to impeach Dr. Badr but also to prove the truth of the matter asserted in the affidavit, which is why River Region could place it into evidence.

-CM

Play It Again: Court Of Appeals Of Texas Finds No Problem With Admission Of Translation After Playing Of Spanish Confession

Texas Rule of Evidence 1009(a) provides that

A translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial.

Meanwhile Texas Code of Criminal Procedure 38.30(a) provides that

When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for the person charged or the witness. Any person may be subpoenaed, attached or recognized in any criminal action or proceeding, to appear before the proper judge or court to act as interpreter therein, under the same rules and penalties as are provided for witnesses. In the event that the only available interpreter is not considered to possess adequate interpreting skills for the particular situation or the interpreter is not familiar with use of slang, the person charged or witness may be permitted by the court to nominate another person to act as intermediary between the person charged or witness and the appointed interpreter during the proceedings.

In its recent opinion in Peralta v. State, 2010 WL 4851388 (Tex.App.-El Paso 2010), the Court of Appeals of Texas, El Paso, found that the government's compliance with these two provisions rendered meritless the appellant's argument that the introduction of the translation of his Spanish language confession after that confession was played to the jury was improper. I'm not sure that I agree.

In Peralta, Daniel Peralta was charged with sexually assaulting his wife. After Peralta was arrested in connection with this crime, he gave a videotaped confession, with both the questions and answers being in Spanish. After the prosecution played the video for the jurors at trial, it introduced a transcribed English translation of the video that was accompanied by a sworn affidavit detailing the interpreter's qualifications.

After Peralta was convicted, he appealed, claiming, inter alia,

that because the video was entirely in Spanish, it was error to play it to the jury without a qualified interpreter providing a contemporaneous translation either by simultaneous in-court translation or by embedding a translation into the video via subtitles. The State respond[ed] the video was properly admitted since no contemporaneous translation was necessary and the video was properly authenticated.

In siding with the State, the Court of Appeals of Texas, El Paso, found that the interpreter was properly qualified as an expert under Texas Code of Criminal Procedure 38.30(a) and that the translation was properly admitted under Texas Rule of Evidence 1009(a).

With due respect to the court, I don't think that it really addressed the merits of the appellant's argument. His argument really seemed to be based upon the rule of completeness, Texas Rule of Evidence 106, which provides that

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

In other words, Peralta's argument seemed to be that even if the translation was admissible, it should have been admitted contemporaneously with the Spanish language video. And this makes sense to me. You could easily see a defendant saying something in a sarcastic or joking manner like, "Yeah, I'm a bad guy." If this statement were in Spanish and the translation were presented simultaneously with a recording of the statement, jurors could disregard this statement. If the translation were not presented until after the recording were played, the jurors might not make this realization.

-CM

Trust Me: Eighth Circuit Finds EPA Report Inadmissible Because Of Disclaimer

Federal Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

Meanwhile, Federal Rule of Evidence 803(8)(C) provides an exception to the rule against hearsay for

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

And, Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

The common theme: If a piece of evidence is not trustworthy, it can't be used under any of these Rules as is made clear by the recent opinion of the Eighth Circuit in Junk v. Terminix Intern. Co., 2010 WL 4978801 (8th Cir. 2010).

In Junk,

Rene Junk brought [an] action in state court on behalf of her son, Tyler (T.J.) Junk, against Terminix International Company (Terminix), Dow Chemical Company and Dow AgroSciences LLC (collectively Dow), and Terminix employee Jim Breneman. Junk alleged that T.J.'s multiple medical conditions were caused by exposure to Dursban, an insecticide manufactured by Dow, distributed by Terminix, and applied to the Junk household by Breneman and other Terminix employees. After Dow removed the case to federal district court, Junk moved to remand for lack of diversity since Junk and defendant Breneman were both citizens of Iowa. The district court denied the motion after concluding that Breneman had been fraudulently joined to evade diversity. Junk's claims against Breneman were subsequently dismissed, and summary judgment was entered for Dow and Terminix.

Junk thereafter appealed, claiming, inter alia, that the district court erred in granting the defendants' motion in limine to exclude an Environmental Protection Agency report that summarized research on the effect of chlorpyrifos exposure on pregnant women, fetuses, and children. The district court had granted this motion after examining a disclaimer on the report which stated that the "information provided does not necessarily reflect the views of the [EPA], and no official endorsement should be inferred." (The disclaimer further stated that the report is "not sufficiently detailed nor is it intended to be used directly for environmental assessments or decision making."). According to the district court, this disclaimer "appeared to cast doubt on its trustworthiness" and rendered it inadmissible under "Fed.R.Evid. 803(8)(C), 703, or 803(18)."

In affirming this ruling, the Eighth Circuit first found that even if the report otherwise qualified for admission under Federal Rule of Evidence 803(8)(C), the district court reasonably exercised its discretion in determining that this disclaimer indicated "a lack of trustworthiness," rendering the report inadmissible. Moreover, the Eighth Circuit found that

Junk's argument that the EPA report is admissible through Dr. Bearer's expert testimony under Rule 703 also fails. Rule 703 provides that "[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion...unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Because the report takes the form of a brief summary of research rather than a scholarly publication, the court could determine that it had little probative value. The district court also concluded that the report's unfair prejudicial effect could be substantial if the jury were misled "into believing that [the] report records findings by the EPA." Because we agree that the report's probative value was minimal and its prejudicial potential substantial, we conclude that the district court did not abuse its discretion in excluding it.

-CM

Conspiracy Theory: Seventh Circuit Finds Statement About Disposing Murder Weapon Qualifies As Co-Conspirator Admission

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

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

So, are statements about disposing the murder weapon later in the month after a shooting during the course of an in furtherance of the conspiracy to murder the victim? According to the recent opinion of the Seventh Circuit in United States v. Nicksion, 2010 WL 4978819 (7th Cir. 2010), the answer is "yes."

In Nicksion,

Orlandes Nicksion and Mark Cubie, along with several others including Nicksion's cousin, Ronald Terry, were charged with drug trafficking conspiracy and various drug and gun offenses. After withdrawing his guilty plea, Nicksion proceeded to trial. A jury subsequently convicted him of drug trafficking conspiracy,...aiding the discharge of a firearm during the drug trafficking conspiracy,...and being a felon in possession of a firearm.

The trial of these alleged co-conspirators

consisted of two main components: the drug trafficking conspiracy and the [Earl] Benion homicide. Nicksion's arguments on appeal only concern the latter. To briefly summarize the former, the evidence showed that, from 2002 to 2005, Nicksion, Cubie, Terry, and others were involved in procuring large quantities of cocaine, crack, and marijuana from Chicago sources for distribution in Milwaukee, Wisconsin. In general, Nicksion and Cubie would obtain the drugs and provide Terry with a supply to sell. The conspirators used an apartment in a duplex owned by Nicksion's great-uncle, Robert Bridges, and his wife for drug trafficking. At times, Bridges also assisted with drug sales.

The evidence of the homicide showed that, on September 18, 2002, Benion's son, Sirus (age twelve at the time), saw Nicksion and Terry repeatedly drive by his home in a silver Monte Carlo with Illinois plates, while his father was outside. At one point, Nicksion blew Benion a kiss. Terry shot Benion that night, and Benion died the next day.

Later in the month after the shooting, Terry told Bonds that he (Terry) needed to get rid of the gun because it was "hot." Bonds testified this statement at trial, and, after Nicksion was convicted, he appealed, claiming, inter alia, that this statement was inadmissible hearsay. The Seventh Circuit disagreed, finding that Terry's statement to Bonds was made in an attempt to get rid of the murder weapon and was this in furtherance of (and presumably during the course of) the conspiracy.

-CM