March 20, 2010
Objectionable Objection?: Court Of Appeals Of North Carolina Affirms Impeachment Ruling Based Upon Lack Of Specific Objection
Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
As the Advisory Committee Note to Federal Rule of Evidence 609 makes clear, "Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." In other words, convictions more than 10 years old are almost never admissible for impeachment purposes. Of course, as the recent opinion of the Court of Appeals of North Carolina in State v. Graham, 2010 WL 916389 (N.C.App. 2010), makes clear, none of those matters unless opposing counsel raised a specific objection to the admission of such a remote conviction.
In Graham, Marcus Anthony Graham was convicted of felony child abuse inflicting serious bodily injury. Before trial, Graham brought a motion in limine to exclude evidence in response to the prosecution's notice of intention to seek the admission of convictions more than 10 years old under North Carolina Rule of Evidence 609(b). The trial court, however, reserved judgment until trial, where it could determine whether Graham was even going to testify.
At trial, Graham did indeed testify, and defense counsel did not initially renew his objection to the admission of Graham's remote convictions. Thereafter,
during cross-examination, [Graham] was asked a series of questions relating to his previous criminal convictions. Specifically, counsel for the State questioned [Graham] about any prior history of arrests for and convictions of giving false information to the police. After [Graham] admitted to a series of driving infractions, counsel for the State asked [Graham] whether "part of the driving violation is, when they pull you over, you give false names and other names; isn't that true, Mr. Graham, so you don't get charged?" At that point, defendant's trial counsel made a general objection, which the court overruled. Then, the following colloquy occurred:
Q: Well, Mr. Graham, five times in the past you've been convicted of giving false information to law enforcement, haven't you?
A: Can I explain?
A: All right. I don't deny the fact I been stopped when I had no business driving. I had no license. And I been stopped and in court for driving while license revoked and I have given another name, which is considered fictitious information to an officer.
After Graham was convicted, he appealed, claiming, inter alia, that the trial court improperly allowed for him to be impeached through evidence of his remote convictions. The Court of Appeals of North Carolina noted, however, that pursuant to North Carolina Rule of Appellate Procedure 10(a)(1), "In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context."
According to the court, defense counsel failed to comply with this Rule. Specifically, the court held that
In the instant case, defendant made a general objection after being asked a compound question with respect to the defendant's history of providing fictitious names and information to law enforcement officials in order to avoid criminal charges. It is unclear from the record what the specific grounds for the objection were. It is not the duty of this Court to postulate the various grounds for counsel's objection. Furthermore, defendant's objection was overruled without any further action. As the line of questioning reached the convictions that were the subject matter of defendant's motion in limine, the record is completely devoid of any further objection from defendant. It is well-established that a “ ‘motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.'"...Furthermore, we note that defendant does not allege plain error on appeal....Accordingly, we hold that defendant's general objection at the outset of the questioning is insufficient to preserve the question for appellate review.
March 19, 2010
The Giant(s) Of Illinois, Take 2: Special Committee On Illinois Evidence Issues Proposed Illinois Rules Of Evidence
the Illinois Supreme Court announced the formation of a Special Committee on Illinois Evidence with the aim of codifying existing evidentiary law so that it is available in a single source. The Special Committee, appointed by the Supreme Court, is composed of a blue ribbon roster of judges, practitioners, law professors and state legislators.
March 18, 2010
Judge, Jury, and Interrogator, Take 2: Court Of Appeals Of Virginia Finds Judicial Interrogation At Sentencing Hearing Was Proper
Federal Rule of Evidebce 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Virginia does not have codified rules of evidence, but its courts also generally allow judges to interrogate witnesses. In a post last week about Iowa Rule of Evidence 5.614(b) last week, I noted that Iowa courts discourage judicial interrogation, "particularly where the jury is the fact finder." The recent opinion of the Court of Appeals of Virginia in Aispuro v. Commonwealth, 2010 WL 906636 (Va.App. 2010), a case where the judge was the fact finder. And, as the court's opinion makes clear, judicial interrogation in such a case is not similarly discouraged.
In Aispuro, upon his plea of guilty, Jose Ramon Aispuro was convicted of felony child neglect. At the ensuing sentencing hearing, defense counsel asked Aispuro a question, and he began giving an answer. Defense counsel interrupted him, however, and told him to "Talk-talk to the Judge." The q & a between defense counsel and Aispuro then continued. Thereafter, the judge briefly interrogated Aispuro. At the end of the sentencing hearing, the court sentenced Aispuro to ten years imprisonment with all but three years suspended, followed by ten years of probation.
Subsequently, Aispuro filed a motion to reconsider his sentence, alleging that the trial judge abandoned her neutral judicial role and became a prosecutor in the case. The Court of Appeals of Virginia, however, found that this argument was without merit, initially noting that defense counsel invited at least some questioning of Aispuro when, on direct examination, he told him: “Talk to the Judge." I disagree with this conclusion. I can't tell for sure based upon the court's opinion, but it seems to me that defense counsel was merely telling Aispuro to direct his responses to the judge, and I certainly don't think that defense counsel was telling the judge that he could question Aispuro.
In the end, though, I don't think that this point matters because the court went on to find that
Even if defense counsel had not done this, it is not the case that judges are uniformly prohibited from questioning witnesses. "It is not to be inferred from what has been said that a trial judge may not ask questions of a witness either on his examination in chief or on cross-examination. The practice is common and perfectly permissible."...Many Virginia decisions emphasize that the trial judge must exercise this discretion cautiously and "should refrain from indicating in any way his views upon the weight or quality of the evidence."
Importantly, though, the court found that "the dominant rationale for this admonition appears to be the need to prevent the judge from invading the province of the jury." Thus, "[i]n a sentencing proceeding in which the judge is the fact finder these concerns are relaxed." Accordingly, the court found that the brief interrogation of Aispuro by the trial judge was proper.
March 17, 2010
Can You Corroborate That?: Ninth Circuit Denies Habeas Petition Because Of Uncorroborated Statement Against Interest
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid a claim by declarant against another, that a reasonable man in declarant's position would not have made the statement unless declarant believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
The main reason for the second sentence in this Rule is the fear that an accused will be able to introduce somebody else's confession to secure a "not guilty verdict," and then the prosecution will not be able to turn around and secure a conviction against the somebody else. A nice illustration of the type of situation that the second sentence seeks to avoid can be found in the recent opinion of the Ninth Circuit in Rhoades v. Henry, 2010 WL 761146 (9th Cir. 2010).
In Henry, Paul Ezra Rhoades was convicted of the first degree murder, first degree kidnapping, and robbery of Stacy Baldwin. Baldwin worked at the Red Mini Barn, and she was apparently abducted by a man driving a pickup truck at around midnight on February 27, 1987. At trial, Rhoades tried to present evidence concerning confessions by Keven Buchholz to the subject crime.
Buchholz was arrested at his parents' home on March 14, 1987, after his father called the police to report a fight. At the jail, Buchholz, while quite drunk, told the officer on duty that evening, Larry Christian, that he had shot the girl from the Mini Barn twice in the back. Christian reported the conversation to his supervisor, then returned. Buchholz repeated that he shot the girl from the Mini Barn twice in the back, had shot several times around the body, and had emptied the gun. Rhoades tried, unsuccessfully, to subpoena Buchholz for trial. He then sought to call Christian to testify to what Buchholz told him.Buchholz recanted the confession once sober, explaining that he was with his family the night of the murder. Family members confirmed this. In addition, Buchholz's fingerprints, hair sample, and shoe prints were taken; none matched anything connected to the crime. The police could not link Buchholz to the murder weapon, and determined that information in his confession could have come from public sources or gossip in the community.
The state moved to exclude Christian's testimony. Rhoades presented an offer of proof indicating that Christian would testify that Buchholz told him he shot the girl twice in the back; shot at her several times; stole a green pickup in Pocatello which he left at Fort Hall; and the gun was either a .38 caliber or a 9mm. The proffer also indicated that shell casings from both sizes were found at the scene. The trial court precluded Christian from testifying because it found that Buchholz's confession lacked sufficient corroboration to be trustworthy, thus Christian's testimony about what Buchholz told him would be hearsay under Rule 804(b)(3) of the Idaho Rules of Evidence.
After he was convicted, Rhoades filed a petition for writ of habeas corpus with the United States District Court for the District of Idaho. The district court denied that petition, and the Ninth Circuit thereafter agreed, finding that
With nothing to back up Buchholz's confession, it was unreliable. The jury would have had no opportunity to evaluate Buchholz's credibility and demeanor; Christian's testimony would have been the only testimony on the issue. Christian's recitation could not realistically have been a major part of Rhoades's defense given the circumstances in which Buchholz's statements were made, his recantation and alibi, and the dearth of independent evidence tying Buchholz to the crime. Further, an evidentiary rule such as Idaho Rule of Evidence 804(b)(3) serves the important role of excluding testimony that lacks significant indicia of reliability....Exclusion of Christian's testimony advances this purpose.
March 16, 2010
High Risk Insurance: Court Of Appeals Of Iowa Finds Evidence Of Liability Insurance Admissible To Impeach Plaintiff
Evidence that a person was or was not insured against liability is not admissible upon the issue whether he 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.
As the "such as" language from the Rule's second sentence makes clear, the listed permissible purposes are not exhaustive, just illustrative. This point is driven home by the recent opinion of the Court of Appeals of Iowa in Sweers v. Westfall, 2010 786036 (Iowa App. 2010), an opinion that also calls into question the efficacy of the Rule.
In Westfall, Scott Sweers,
was driving east on Kirkwood Boulevard in Iowa City. He was alone in his Audi, and was heading toward a fitness club that he used. A Jeep Liberty driven by Craig Westfall pulled north out off of a cross street that intersected Kirkwood Boulevard. Westfall intended to turn west on Kirkwood Boulevard. However, Westfall failed to see Sweers, and the left front bumper of his vehicle struck the passenger side of Sweers's smaller sedan. Photographs show that both right-side doors on Sweers's sedan were dented (the cost to repair Sweers's car was $3829), but no air bags in either vehicle deployed. Sweers was wearing his seatbelt. Sweers said he was okay at the time.Sweers went home after the accident, but decided to seek medical treatment later that night. The emergency room notes indicate Sweers's “insurance agent recommended he come in for a check up."
At trial, Sweers testified that he went to the emergency room after the car accident because he was "seriously worried about what was wrong with my shoulder." Thereafter, the trial court allowed defense counsel to impeach Sweers with evidence that he in fact went to the emergency room based upon the recommendation of of his insurance agent. After the jury only awarded Sweers $5206 in damages, he appealed, claiming, inter alia, that that the trial court improperly allowed for the admission of evidence that he had liability insurance.
The Court of Appeals of Iowa easily dispensed with this argument, concluding that the subject evidence was not introduced to prove that Sweers acted negligently or otherwise wrongfully; instead, it was introduced to impeach him. Having decided the issue, the court then went on to make the following observation:
jurors bring their common experiences to the courtroom. Certainly one of those common experiences is that motorists in the State of Iowa are required to and generally do carry insurance. Another of those common experiences is that when people are involved in a car accident, regardless of who is at fault, they frequently contact their insurance agent afterward. It is difficult to believe the admission of Sweers's statement altered the collective wisdom that this jury already had before trial commenced.
March 15, 2010
Immigration Man: Third Circuit Finds That Results Of Asylum Investigation Were Properly Admitted
It is well established that "[t]he Federal Rules of Evidence do not apply in immigration proceedings." Liu v. Attorney General of the United States, 2010 WL 772166 (3rd Cir. 2010). That said, "evidence must be probative and used in a fundamentally fair manner to satisfy concerns of due process." Id. And in its recent opinion in Liu, the Third Circuit found that the results of an investigation of asylum documents satisfied these concerns.
Yong Ho Liu, a native and citizen of the People's Republic of China, entered the United States at or near Miami, Florida, in September 2002, without a valid immigrant visa, and applied for entry as an immigrant. The Government charged him as removable. Liu conceded the charge, but applied for asylum, withholding, and protection under the Convention Against Torture...based on his and his wife's experiences with China's population control policies.
Specifically, Liu claimed that his wife was subjected to a forced abortion when she was pregnant and forced sterilization. However,
when the Government investigated the documents that Liu submitted in support of his claim, the birth control operation certificate was found to be counterfeit (a separately submitted fine receipt was found to be authentic, but Liu's payment of an unplanned birth fine alone does not amount to past persecution in this case). The certificate had a counterfeit stamp and bore the name of a doctor never employed by the hospital. (Moreover, the certificate, even if it had been found to be authentic, also only supports a claim that Liu's wife was sterilized; abortion, another option on the document, was not marked off.)
Liu claimed that the results of this investigation were hearsay and should not have been considered as part of his application for asylum. The Third Circuit noted that the Federal Rules of Evidence do not apply in immigration proceedings but that evidence must be probative and used in a fundamentally fair manner to satisfy concerns of due process. The court then found that the subject evidence satisfied this test because
the petitioner had ample time to consider the results of the investigation; the report was presented to Liu almost two years in advance of his hearing. Second,...the investigator directly communicated with the local officials who provided information for the report, and the investigator explained how she conducted the inquiry. Through her involvement, she could evaluate the credibility of the immediately preceding declarants....In short, under the circumstances of this case, there were sufficient indicia of reliability and trustworthiness such that Liu's due process rights were not violated by the admission of the report into evidence or the agency's reliance on it.
March 14, 2010
What's Your Damage?: Fifth Circuit Finds Lay Witness Can't Offer Opinion Testimony On Organic Brain Damage
Federal Rule of Evidence 701 provides that
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
As the Rule intimates, when testimony is based on scientific, technical, or other specialized knowledge, it can only be offered by an expert witness pursuant to Federal Rule of Evidence 702. And, under these Rules, the Fifth Circuit could make an easy ruling in its recent opinion in United States v. York, 2010 780166 (5th Cir. 2010): A lay witness cannot opine that his son suffers from organic brain damage.
In York, Timothy Lee York was convicted of arson, carrying a destructive device in relation to a crime of violence, and possession of a firearm not registered in the National Firearms Registration and Transfer Record. These convictions stemmed out of an incident in which York allegedly used a Molotov cocktail to start a fire at the Cooke County Courthouse in Gainesville, Texas.
As part of his defense, York sought to have his father testify about complications with York's birth leading his father to "'suspect that Mr. York suffered organic brain damage." The district court deemed this testimony irrelevant, and, on York subsequent appeal, the Fifth Circuit agreed that this testimony was irrelevant. Moreover, the Fifth Circuit found that
Even if proper evidence that York had suffered organic brain damage were relevant, the error was harmless because the defendant merely offered inadmissible opinion....The rules forbid lay opinions based on scientific, technical, or other specialized knowledge within the scope of Rule 702....The drafters added this language to Rule 701 to prevent parties from offering expert testimony as lay opinion and circumventing discovery rules....The distinction between lay and expert testimony is that lay testimony results from a process of reasoning familiar in everyday life, whereas expert testimony results from a process of reasoning that can only be mastered by specialists in the field....York's father's testimony seems to be speculative medical causation testimony. Testimony about York's birth and any brain damage caused by his birth requires specialized medical knowledge. It is not the type of opinion that one could reach as a process of everyday reasoning.