March 13, 2010
Court Of Public Opinion: Supreme Court Of Washington Holds Judicial Findings Inadmissible Under Public Records Exception
Federal Rule of Evidence 803(8) 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 (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) 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.
It is well established that
Rule 803(8) was not intended to allow the admission of findings of fact by courts. Rule 803(8) is limited to investigations: "A judge in a civil trial is not an investigator, rather a judge." Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993).The advisory committee notes to Rule 803(8) also indicate that the intent of the rule's drafters was to allow for the admission of investigations by officials in the executive branch; there is no indication in those notes that the committee intended this exception to include findings of fact by judges. Herrick v. Garvey, 298 F.3d 1184, 1192 (10th Cir. 2002).
Washington doesn't have a state counterpart to Federal Rule of Evidence 803(8), but it has recognized a public records exception to the rule against hearsay in its case law. And, in its recent opinion in In re Detention of Pouncy, 2010 WL 817369 (Wash. 2010), the Supreme Court of Washington found that this exception does not apply to judicial opinions.
In Pouncy, "[f]ollowing trial, a jury found Curtis Pouncy to be a sexually violent predator." Pouncy thereafter sought a new trial, "claiming that the trial court erred when it failed to instruct the jury on the definition of 'personality disorder' and when it allowed the State to impeach Pouncy's expert using judicial findings about the expert set forth in a previous, unrelated trial." The Supreme Court of Washington granted Pouncy a new trial on the former issue and found that the State should not be allowed to impeach Pouncy based upon the prior judicial findings at that new trial.
On this latter issue, the court noted that the prior judicial findings would not have qualified for admission under Federal Rule of Evidence 803(8) for the reasons listed above. The court then noted that it did not have a formal state counterpart to this federal rule but that it had adopted such a counterpart in its precedent. The court, though, still found that the judicial findings
constituted inadmissible hearsay. There is no question that the...judge's findings were out-of-court statements used to prove the truth of the matter asserted....Although the judge's findings of fact were contained in a certified public document, the document is not included under the public records exception to the hearsay rule. In order to qualify for the exception, the proffered document "'must contain facts and not conclusions involving the exercise of judgment or discretion or the expression of opinion.'" Despite their designation as findings of fact, the...judge's credibility determinations...involved a discretionary exercise not contemplated by the public records exception to the hearsay rule.
Moreover, the court found that even if these judicial findings were not hearsay, they failed to pass the Rule 403 balancing test because they were "irrelevant, unduly prejudicial..., and impinged upon the jury's role as the sole determiner of credibility."
March 12, 2010
Judge, Jury, And Interrogator: Court Of Appeals Of Iowa Notes That Judicial Interrogation Of Witnesses Is Allowed But Not Encouraged
Like its federal counterpart, Iowa Rule of Evidence 5.614(b) provides that
When necessary in the interest of justice, the court may interrogate witnesses, whether called by the court or by a party.
Chad Benesh and Kim Neelans met on the Internet sometime in late March or April 2007. Benesh subsequently moved in with Neelans in the fall of 2007. Their intimate relationship ended, but they continued living together in Neelans's house. Neelans later moved to a condominium, and Benesh moved with her.
On November 13, 2008, Neelans returned home and discovered Benesh in bed with Maureece McDuffee. A fight ensued between Neelans and Benesh, and the police were called to the residence. Neelans was ultimately treated for a broken rib following the incident.
After McDufee testified as a defense witness and both sides finished interrogating her, the court stepped in, and the following exchange occurred:
[THE COURT]: Ma‘am, you testified ... that you were, quote, “so ashamed.” What were you ashamed of
A. I just-felt like the other woman, and I felt-I was humiliated and ashamed, because I knew I hadn't done anything wrong, but yet I felt, the way [Neelans] was talking, that I was guilty of something.
[THE COURT]: Ma‘am, once it became clear to you that [Benesh] either had been arrested or had been charged, you did not go to the police to give them a statement?
A. I didn't know I had to. I thought they would contact me if they needed me.
[THE COURT]: How would they have information as to how to get in touch with you? You didn't volunteer who you were.
[BENESH'S TRIAL COUNSEL]: Your honor, I'm going to object to the questions-
[THE COURT]: The objection is noted, for the record. It's in the record.
[BENESH'S TRIAL COUNSEL]: No. With respect to that particular question, a separate objection, your honor.
[THE WITNESS]: Would you repeat it, please?
[THE COURT]: You said that you did not give the police a statement. Would there have been some other way they could have otherwise identified you, without you coming over, as far as you know?
A. I thought when they took [Benesh's] statement, they would get ahold of me.
Benesh later moved for a mistrial on the ground that this judicial interrogation was improper, but the trial court denied the motion, and the Court of Appeals of Iowa later agreed. The appellate court did note that judicial interrogation "is not encouraged" and "that the better practice is for the trial judge to exercise restraint and avoid the fray as by questioning witnesses 'the court becomes vulnerable to a multiplicity of criticisms; bias, prejudice or advocacy,' particularly where a jury is the fact finder."
Nonetheless, the appellate court found that the trial court did not commit error because
the record d[id] not indicate the judge's questions emphasized the prosecution's case nor d[id] it show a jury could reasonably have interpreted the questions to mean the judge was siding with the State. Additionally, the questioning at issue did not discredit or impeach the witness's testimony on a key element or defense. The questioning at issue was merely to clarify the record.
March 11, 2010
Let's Compromise, Take 2: DDC Correctly Finds Rule 408 Inapplicable In Absence Of A Claim In Armenian Genocide Museum Dispute
Federal Rule of Evidence 408(a) provides that
Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
Last week, I posted an entry about the United States Court of Appeals for the District of Columbia incorrectly reversing a defendant's convictions by finding that the United States District Court for the District of Columbia failed to apply Federal Rule of Evidence 408(a) to an alleged settlement offer. As I noted in the post, the problem with the appellate court's opinion was that there was no "claim" at the time of the alleged offer, i.e., there was no litigation or threatened litigation. In Armenian Genocide Museum and Memorial, Inc. v. Cafesjian Family Foundation, Inc., 2010 WL 770557 (D.D.C. 2010), the United States District Court for the District of Columbia failed to apply Federal Rule of Evidence 408(a) to alleged settlement negotiations because there was no "claim." Will the United States Court of Appeals for the District of Columbia again erroneously reverse?
out of a very bitter and very unfortunate dispute between...The Armenian Genocide Museum & Memorial, Inc....and...The Cafesjian Family Foundation, Inc...., John J. Waters Jr...., John J. Waters Sr...., and Gerard L. Cafesjian..., relating to the construction of an Armenian genocide museum and memorial in Washington, D.C.
While Waters, Jr. was the Secretary and Treasurer of The Armenian Genocide Museum & Memorial ("AGM & M"), he executed a Memorandum of Agreement ("MO") between the museum and The Cafesjian Family Foundation, Inc. ("CFF"). According to AGM & M,
the evidence clearly show[ed] that the MOA was not filed in good faith and was not in AGM & M's best interests....[AGM & M] point[ed] to the fact that Waters Jr. executed the MOA while he was planning to resign as Secretary and Treasurer of AGM & M,...that Waters Jr. never informed the Board of his actions,...and that Cafesjian testified at deposition that the purpose of the MOA was to “protect myself,” “to prevent it from being sold out from under me,” and “to protect what was mine, according to the agreement that we had,”...[AGM & M] also contend[ed] that the MOA on its face create[d] a benefit for CFF to the detriment of AGM & M. This self-interested motive is apparent, [AGM & M] contend[ed], from Cafesjian's May 26, 2006, letter from his counsel to the Trustees proposing that he terminate his involvement with AGM & M and recover the Adjacent Properties.
According to the defendants, however, this letter was inadmissible under Federal Rule of Evidence 408(a) because it was sent in the context of settlement negotiations. But the district court disagreed, finding that
Rule 408 does not apply unless there is actually a claim in dispute between the parties, and at the time of this correspondence, it was not apparent that AGM & M had or would assert any claim against Cafesjian. The May 26, 2006, letter can only be construed as a proposal by Cafesjian to modify the existing contractual agreements between the parties, and Rule 408 does not exclude such evidence.
This ruling was absolutely correct, and I hope that the United States Court of Appeals for the District of Columbia views it the same way should the issue reach it.
March 10, 2010
Chicken Little Or Canary In the Coal Mine?, Take 5: Court Of Appeals Of North Carolina Strains To Find Confrontation Clause Wasn't Violated Despite Testimony Concerning Non-Testifying Chemist's Report
In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. As I noted in my post in response to the opinion, "[i]f you believe Justice Kennedy, the result of the decision will be the sky falling on many criminal prosecutions; if you believe Justice Scalia, Justice Kennedy is Chicken Little." Well, if courts take the lead of the Court of Appeals of North Carolina in its recent opinion in State v. Hough, 2010 WL 702458 (N.C.App. 2010), it looks like Justice Scalia will be proven right.
In Hough, Kerry McKinley Hough appealed from his convictions for possession of cocaine and trafficking in marijuana by possessing more than 10 pounds but less than 50 pounds. Police seized various drugs from Hough's residence, and those drugs were subjected to testing by forensic chemist Tony Aldridge, who retired before Hough's trial. Accordingly,
[a]t trial, Kamika Daniels Alloway..., a forensic chemist with the Charlotte-Mecklenburg Police Department crime laboratory, testified that she reviewed the lab reports of...Aldridge...and believed his analysis to be accurate. Alloway testified that the substance found [a] the trash can that [Hough] was rolling constituted 17.05 pounds of marijuana. The three bags recovered from [Hough's] garage contained cocaine and weighed 7.93 grams, 7.72 grams, and 7.87 grams respectively. The weight of the cocaine and the marijuana varied from the weights recorded at the scene by [a detective]; however, Alloway testified that the weights in the lab report did not include the packaging. Alloway admitted on cross examination that she did not test any of the substances herself and was not present when Aldridge conducted the tests.
After he was convicted, Hough appealed, claiming, inter alia, that Aldridge's lab reports were "testimonial" and thus admitted in violation of his rights under the Confrontation Clause pursuant to the Supreme Court's opinion in Melendez-Diaz. The Court of Appeals, however, rejected this argument, claiming that the reports were not admitted at trial to prove the truth of the matter asserted in them, distinguishing the case from Melendez-Diaz and North Carolina opinions decided in accordance with it. According to the court,
[u]pon review of Alloway's testimony, we conclude that her expert opinion was based on an independent review and confirmation of test results, unlike the situations presented in Melendez-Diaz [and subsequent North Carolina opinions]....The report at issue in this case formed the basis of Alloway's expert opinion, but was not offered for the proof of the matter asserted and was not prima facie evidence that the substances recovered from the crime scene were, in fact, marijuana and cocaine. It is not our position that every "peer review" will suffice to establish that the testifying expert is testifying to his or her expert opinion; however, in this case, we hold that Alloway's testimony was sufficient to establish that her expert opinion was based on her own analysis of the lab reports.
Moreover, the court found that "[o]ther federal courts have reached this same conclusion under similar facts."
I'm not sure that I agree with the court on this point. The first opinion cited by the court was United States v. Richardson, 537 F.3d 951 (8th Cir. 2008), in which the Eighth Circuit found no problem with a forensic chemist offering opinions based on DNA testing by another scientist in her office where the chemist "had an independent responsibility to do the peer review." And the second opinion cited by the court was United States v. Turner, 591 F.3d 928 (7th Cir. 2010), in which the Seventh Circuit found no problem with a senior forensic chemist offering opinions based on a cocaine identification by an analyst where the chemist "was the laboratory supervisor whose job was to personally check [the analyst]'s test results."
I can see why these courts reached these opinions although I am not sure that I agree with them. In each of these cases, the defendant could not confront the person who conducted the testing, but he could confront the person with responsibility for reviewing that testing. That was not the case, though, in Hough, where Alloway only reviewed Aldridge's testing because he retired.
If, as the court said, Alloway were only offering opinions regarding Aldridge's testing, this still wouldn't matter, but let's be honest. Alloway was serving as the vessel for the admission of Aldridge's testing. In effect, then, Aldridge's testing was being offered to prove the truth of the matter asserted, and Hough did not get the opportunity to confront him. Thus, the Court of Appeals of North Carolina should have found that Hough's rights under the Confrontation Clause were violated. And the fact that it didn't means that Justice Scalia could be proven correct in that the sky is not falling on criminal prosecutions.
March 9, 2010
It's All Subjective: Missouri Opinion Explains That Dying Declaration Exception Merely Requires Subjective Belief That Death Is Imminent
Missouri doesn't have official rules of evidence, but it does recognize a state counterpart to Federal Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay
[i]n 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 impeding death.
And, a sthe recent opinion of the Court of Appeals of Missouri, Western District, in State v. Minner, 2010 WL 769126 (Mo.App. W.D. 2010), makes, clear, all that matters under this dying declaration exception is the declarant's subjective belief that death is imminent, not the objective reasonableness of that belief.
In Minner, Vincent Minner was convicted of first degree murder, first degree assault, first degree burglary, and two counts of armed criminal action based upon his alleged shooting of Michael Terry. EMTs responded to the scene of that shooting and
initially treated Terry where he lay in the apartment. Captain James Hailey...then spoke with Terry. Hailey testified that Terry had gunshot wounds to his chest and head and that Terry was weak, ashen, and lying in blood. After conferring with a supervising officer, Hailey told Terry that it looked like he was dying and asked Terry who had shot him. Terry responded that the medics had told him that he was dying and that he knew that he was dying. Hailey again asked Terry who had shot him. Terry indicated to Minner.
Based upon this and other evidence, the trial court allowed Terry's identification of Minner as his shooter to be introduced at trial, and this evidentiary ruling formed one of the grounds for Minner's ensuing appeal. According to Minner,
Terry "was not a man near death, whether he thought he was or not." To support this argument, Minner point[ed] to the fact that medics were not providing frantic treatment to Terry, they were not even with Terry at the time his statement was made to Hailey, and Terry did not volunteer statements to loved ones. Though Terry was severely wounded, Minner argue[d] the scene described by Hailey was calm, more in keeping with a traditional interrogation. Based on these circumstances, Minner contend[ed] that it was not reasonable for Terry to believe he was dying. Of paramount importance to Minner's argument [wa]s the fact that Terry did not die soon after his statement. Minner essentially argue[d] that a declarant's stated belief that death is imminent must be objectively reasonable. Minner also argue[d] that even if Terry reasonably believed his death was imminent, there was no evidence Terry believed there was no hope of recovery.
The appellate court, however, found that this argument was without merit because "[a] declarant's subjective belief that death is imminent is all that need be shown." And if we think about the original basis for the dying declaration exception, this makes sense. The original basis for the exception was that a person didn't want to die with a lie on his lips (lest he go to hell), making dying declarations reliable. Thus, a hypochondriac could unreasonably believe that his paper cut would cause his imminent death, but as long as he actually believes that his death is imminent, that is all that matters under the dying declaration exception.
March 8, 2010
Did You Notice That?: Eighth Circuit Notes That Rule 404(b)'s Notice Requirement Doesn't Apply To Intrinsic Evidence
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Rule 404(b), which governs the admission into evidence of wrongful conduct other than the conduct at issue, applies only to extrinsic and not to intrinsic evidence. Evidence of other wrongful conduct is considered intrinsic when it is offered for the purpose of providing the context in which the charged crime occurred. Such evidence is admitted because the other crime evidence completes the story or provides a total picture of the charged crime."
March 7, 2010
Jury Duty: Eighth Circuit Overturns Ineffective Assistance Ruling Despite Rule 901(b)(3)
Federal Rule of Evidence 901(b)(3) provides that authentication can be accomplished by "[c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated." As I always tell my Evidence students, this means that a party can always, as a last resort, submit a handwriting exemplar and the subject writing to the jury to compare even if the party has no other way to authenticate the subject writing. This could have been an important point in the recent opinion of the Eighth Circuit in Rodela-Aguilar v. United States, 2010 WL 724654 (8th Cir. 2010).
In Rodela-Aguilar, Armando Rodela-Aguilar and others, including Arturo Navarette-Silva, were convicted of conspiring to distribute, and aiding/abetting possession with intent to distribute, methamphetamine. The most important piece of evidence tying Rodela-Aguilar to the conspiracy was an Express Mail label identifying him as the sender of a temporary license tag used on a car used by his alleged co-conspirators. At trial, a postal inspector testified on direct examination that an Express Mail label "is usually but not always prepared by the subject who is mailing it, prompting the following exchange between defense counsel and him during cross-examination:
Q: Now, you said that the section that described the person sending the mail may or may not be the actual person, in fact?
A: That's correct.
Q: There's no identification required for that?
A: That's correct.
Q: So I could walk into the post office right now, fill out an Express Mail thing from Rich Britain to anybody in California and use a local address here and that would get sent?
Also, during her cross-examination of a detective, defense counsel highlighted Rodela-Aguilar's
handwriting to the jury, clarifying that, on a Miranda waiver form, Rodela's signature was in the middle of the page whereas the listing of his name on the top of the form was “not his handwriting.” Then, during closing argument, [defense counsel] sought to minimize the significance of the mailing label:
Anybody can go in and put anybody's name on [the mailing label]. I could take any one of your names ... go on a break to the downtown post office [and] mail something to Timbuktu with your name as sender. That doesn't make it so.... There is a Miranda Waiver that Mr. Rodela signed.... And you can see how he does a lot of those capital letters. Especially he likes that capital A on the end. He likes the capital N and R.... The postal receipt didn't [prove] Mr. Rodela was the sender.
After he was convicted, Rodela-Aguilar filed a pro se motion for relief under 28 U.S.C. Section 2255, alleging ineffective assistance of counsel. The district court granted that motion, finding, inter alia, that
After reviewing Rodela's handwriting on the Miranda waiver form and the pleadings he has signed in this action, the Court finds that the handwriting on the mailing label does not match Rodela's, but rather, matches Navarrete's. Even without expert testimony, a comparison could have been made by the jury, see Fed.R.Evid. 901(b)(3), and the jury would probably have drawn the same conclusion as the Court if Rodela's attorney had presented the handwriting of Rodela and Navarrete for comparison to the label.
The Eighth Circuit thereafter reversed. It noted initially that it could not find defense counsel's performance deficient based upon failure to call a handwriting expert without "'evidence of what a scientific expert would have stated' at trial." The court did, though, find that defense counsel could have had the signature on the mail label authenticated as the signature of Navarette-Silva and not the signature of Rodela-Aguilar under Federal Rule of Evidence 901(b)(3).
But, according to the court, the government's case hinged on linking Rodela-Aguilar to Navarrete-Silva, the primary conspirator, and it did so through several pieces of evidence. The court thus found that
Defending this case, a competent attorney could reasonably conclude that persuading the jury Navarrete mailed the temporary tag to Castro using Rodela's name and a prior common address would play into the government's attempt to link her client to Navarrete....Thus, the tactic Ms. Nouri in fact pursed-simply raising doubt whether Rodela filled out the mailing label-was more consistent with her overall defense strategy.
Huh? This is like almost like a court saying it is a reasonable strategy for a defense attorney merely to argue that somebody besides the defendant might have committed murder when that attorney has direct evidence of a specific other person committing the murder. Now, I do get the court's point that the government's case hinged on connecting Rodela-Aguilar to Navarrete-Silva and that proving that Navarrete-Silva filled out the mail label would have further linked Rodela-Aguilar to him. But the Eighth Circuit itself noted that the government had already linked the two through several other pieces of evidence. This being the case, I don't see much harm in linking them through one other piece of evidence, especially when the alleged "link" consists of Navarrete-Silva and not Rodela-Aguilar doing something, the very something that was the key to the government's case.