EvidenceProf Blog

Take Out Some Insurance: Court Of Appeals Of Kentucky Notes Exceptions To Rule 411 But Finds Them Inapplicable In Car Crash Appeal

Like its federal counterpart, Kentucky 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.  

As the recent opinion of the Court of Appeals of Kentucky in Akers v. Cross, 2010 WL 1133083 (Ky.App. 2010), makes clear, there are exceptions to this rule although the court ultimately found that they did not apply in the case before it.

In Cross,

an automobile accident...occurred on January 5, 2004, between vehicles operated by Jerry Akers and...Rose Mary Gensler Cross. The Akers named Cross and State Farm (in its role as the Akers' underinsured carrier) as defendants, and both Cross and State Farm retained counsel and filed answers. Coincidentally, State Farm was also the general liability carrier for Cross.

During proceedings connected to the accident, State Farm never chose to preserve its subrogation rights against Cross by offering to pay the Akers the liability limits of Cross' policy; however, State Farm did attend and elicit some testimony at the deposition of one of Akers' experts. After this deposition,

State Farm moved the trial court to bifurcate the Akers' [underinsured motorist] claim from its automobile negligence claim, in order to excuse it from participating at the trial and prohibit the Akers from identifying it as a party before the jury. The Akers opposed State Farm's motion, arguing that State Farm must be identified to the jury because it chose to participate in [the expert]'s deposition and, thus, actively participated in the proceedings....[T]he trial court granted State Farm's motion. The Akers moved the trial court to reconsider, and the trial court denied their motion....

After trial, the jury found in favor of Cross, Akers appealed, claiming that State Farm should have been identified to the jury. The Court of Appeals of Kentucky noted that evidence of liability insurance is generally admissible to show culpability under Kentucky Rule of Evidence 411. The court noted, however, that there are several exceptions to this rule, including two which might have applied in the case before it:

The first exception holds that where an uninsured or underinsured motorist carrier with a direct contractual obligation to the plaintiff elects to participate actively in the trial, it may not do so anonymously; rather, it must reveal its identity to the jury....The second exception holds that, in the absence of “active participation” in defending the action, that same carrier must still reveal its identity to the jury if it chose to preserve its subrogation rights....This result is mandated even if the carrier only participated in discovery and pretrial motions.

The court then quickly found that the second exception did not apply and found that the first exception did not apply because

neither a representative nor counsel for State Farm attended the trial. And, we do not construe a few questions by State Farm at one deposition as actively participating in the proceedings. Moreover, the Akers have failed to produce any authority demonstrating that this exception should encompass State Farm's very limited participation.

-CM

Ten Years Have Got Behind You: Supreme Court of Mississippi Affirms Conviction Because Defense Counsel Fails To Cite Rule 609(b)

Like its federal counterpart, Mississippi Rule of Evidence 609 provides, inter alia, that a criminal defendant can be impeached through his prior felony convictions not involving dishonesty or false statement if their probative value outweighs their prejudicial effect. Moreover, it is well established that a criminal defendant cannot appeal a trial court's ruling deeming his prior convictions admissible to impeach him unless he actually takes the witness stand and subjects himself to impeachment (or at least proffers his proposed testimony). Defense counsel in these cases thus faces a difficult decision. Does he have his client take the witness stand, knowing that his prior convictions could lead to his present conviction, but also knowing that he will be able to appeal the present conviction? Or does he have his client avoid taking the witness stand, hoping that this will lead to his client winning at trial but knowing that if he loses, no appeal can follow? It is tough to fault defense counsel for making either of these choices, but it is apparently easier to fault defense counsel for Ivan McClellan based upon the recent opinion of the Supreme Court of Mississippi in McClellan v. State, 2010 WL 1077322 (Miss. 2010).

In McClellan, Ivan Russell McClellan was convicted of possessing two methamphetamine precursors and possessing 250 dosage units of pseudoephedrine. Previously,  McClellan was convicted of burglary on July 3, 1996, and received a three-year sentence. At the close of the prosecution's case in McClellan, the trial judge ruled that this prior conviction would be admissible to impeach McClellan should he testify on his own behalf, finding that the probative value of this conviction outweighed any prejudicial effect. McClellan thereafter did not testify.

After he was convicted, McClellan appealed, claiming, inter alia, that the trial court erred in deeming his prior convcition admissible for impeachment purposes. The Supreme Court of Mississippi, however, found that it did not need to address this issue because

Where a criminal defendant chooses not to testify after the trial court has ruled that his or her prior convictions may be used as impeachment evidence, the defendant is procedurally barred from arguing on appeal that such a ruling prevented his putting on a defense or had a "chilling effect" on his right to testify if he fails to proffer his proposed testimony...."At the very least, a defendant wishing to present the point on appeal, absent having taken the witness stand himself, must preserve for the record substantial and detailed evidence of the testimony he would have given so that we may gauge its importance to his defense."...Because McClellan failed to proffer his testimony, he is procedurally barred from arguing that the trial court's ruling which would have allowed the State to impeach him with his prior burglary conviction prevented his putting on a defense.

In a footnote, though, the Mississippi Supremes deduced that McClellan's conviction was more than ten years old at the time of his trial. If this fact were true, McClellan's prior conviction should have been governed by Mississippi Rule of Evidence 609(b), which provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten 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 the specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten 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 eviidence.

The court noted, however, that it did not need to address this issue because defense counsel failed to raise it either at trial of on appeal.

-CM

Did You Notice That?: Second Circuit Discusses Interplay Between Rules 201 And 605

Under Federal Rule of Evidence 201(c), "A court may take judicial notice, whether requested or not." Meanwhile, pursuant to Federal Rule of Evidence 605,

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

So, what happens when a judge makes a statement of common knowledge during a trial? Is this simply the judge taking judicial notice of a matter of common knowledge in accordance with Federal Rule of Evidence 201(c) or is the judge improperly testifying in violation of Federal Rule of Evidence 605? According to the recent opinion of the Second Circuit in United States v. Bari, such a statement is simply the judge taking judicial notice.

In Bari, Bari pleaded guilty to, and was convicted of, one count of bank robbery and sentenced principally to 188 months' imprisonment to be followed by five years' supervised release. During Bari's supervised release, "the United States Probation Office submitted to the District Court an Amended Request for Court Action alleging that Bari had violated the terms of his supervised release."

The U.S. Probation Office claimed that Bari violated the terms of his supervised release by, inter alia, robbing a bank, and the judge hearing the action, Judge Chin,

considered evidence that the bank's surveillance footage showed that the robber wore a yellow rain hat and that a yellow rain hat was found in the garage of Bari's landlord. He stated as follows:

In addition, and I think this is the strongest piece of evidence frankly, we have the yellow hat. I am convinced from looking at the surveillance video [from the bank] of September 9 that [the hat found in the garage] is the same type of hat as appears in the video. It may not be precisely the actual hat, but it is the same type of hat. It is just too much of a coincidence that the bank robber would be wearing the same hat that we find in [his landlord's] garage....

Judge Chin then noted several similarities between the hat found in the landlord's garage and the hat worn by the robber. To emphasize the similarity between the hats, he stated that "there are clearly lots of yellow hats out there," and that "[o]ne can Google yellow rain hats and find lots of different yellow rain hats."... Earlier in the proceeding, he had also stated that "[w]e did a Google search, and you can find yellow hats, yellow rain hats like this. But there are also lots of different rain hats, many different kinds of rain hats that one could buy."  

After Judge Chin determined that Bari violated the terms of his supervised release, Bari appelead, claiming that Judge Chin violated Federal Rule of Evidence 605 through his actions. The Second Circuit disagreed, finding that Judge Chin was simply taking judicial notice of a matter of common knowledge in accordance with Federal Rule of Evidence 201(c) (The Second Circuit correctly noted that the Federal Rules of Evidence do not apply in supervised release revocation hearings but still looked to them for guidance in its opinion). 

According to the Second Circuit,

Rule 605 prohibits the judge presiding at the trial from testifying in that trial as a witness. Rule 201 permits a judge to take judicial notice of certain types of facts. Logically, then, if a fact is of a kind that a judge may properly take judicial notice of it, then he is not improperly “testifying” at trial by noting that fact. Any other conclusion would lead to Rule 605 effectively subsuming Rule 201. If, after all, a judge was improperly testifying at trial each time he took judicial notice of a fact, it would be effectively impermissible to take judicial notice of any fact. Accordingly, we must first consider whether the judge was taking permissible judicial notice of a fact, pursuant to Rule 201. If he could not have taken judicial notice of that fact within the bounds of Rule 201-because, for example, it was not a “matter[ ] of common knowledge”-then we consider whether the judge violated Rule 605. Here, we conclude that Judge Chin did permissibly take judicial notice of the fact that there are many kinds of rain hats for sale, and therefore we need not consider whether he “testified” at a trial over which he was presiding.

-CM

A Foolish Consistency: Fifth Circuit Case Reveals Odd Aspect Of Louisiana's "Prior" Consistent Statement Rule

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

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

Seemingly similarly, Louisiana Code of Evidence article 801(d)(1)(B) provides that

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

As the recent opinion of the Fifth Circuit in Jones v. Cain, 2010 WL 909084 (5th Cir. 2010), makes clear, however, there is a clear (and bizarre) difference between the two rules.

Now, the facts in Cain were quite odd. After a jury trial in Louisiana, Terrance Jones was convicted of second degree murder in 2001. After he exhausted his appeals in the state court system, he filed a petition for writ of habeas corpus with the United States District Court for the Eastern District of Louisiana. That court denied his motion, prompting his appeal to the Fifth Circuit. 

One of the grounds for Cain's appeal was that the trial court improperly allowed for the admission of recorded statements of an absent witness for the prosecution, finding that they constituted consistent statements under Louisiana Code of Evidence article 801(d)(1)(B). Cain claimed that the admission of these statements violated his rights under the Confrontation Clause, and because Cain's initial trial was in 2001, the Fifth Circuit found that the issue was governed by Ohio v. Roberts. 

Under Roberts, one of the key questions was whether a particular hearsay exception was "firmly rooted." And, according to the Fifth Circuit, Federal Rule of Evidence 801(d)(1)(B) likely is "firmly rooted because

In Tome v. United States, the Supreme Court held that, under the Federal Rules of Evidence, a prior consistent statement used to rebut a charge of improper motive must have been made before the improper motive allegedly arose....The pre-motive requirement, it explained, was “[t]he prevailing common-law rule for more than a century before adoption of the Federal Rules of evidence."

Conversely, the Fifth Circuit found that

Louisiana's prior consistent statement rule has no such requirement. For Louisiana article 801 to be eligible as a firmly rooted hearsay exception, it cannot contravene more than 100 years of common law evidence practice. 

I much prefer the federal rule to the Louisiana rule. Take the following case: Dan is on trial for murder. William testifies and provides an alibi for Dan. On cross-examination, the prosecution asks William, "Isn't it true that Dan gave you $10,000 to help you start a restaurant three weeks ago?" and William responds "Yes." The prosecution has now at least impliedly claimed that William's testimony was the product of Dan's $10,000. Under either the federal or Louisiana rule, defense counsel can now ask William about a statement he made to a friend a month before trial where he claimed that Dan had an alibi. This makes sense. If William said that Dan had an alibi before Dan gave him the money, Williams testimony likely wasn't the product of the money.

Under the Louisiana rule, but not the federal rule, William could also testify that he told a friend two weeks before trial that Dan had an alibi, i.e., after Dan gave him the money. This makes no sense to me. If the consistent statement came after the improper motive, how does it prove that the trial testimony was not the product of that motive? It doesn't according to Federal Rule of Evidence 801(d)(1)(B) and most state counterparts, but for whatever reason, Louisiana thinks differently.

-CM 

Hostile Takeover: Third Circuit Reverses Murder Conviction Because Of Overly Loquacious Trial Judge

Federal Rule of Evidence 611(c) provides that

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

It is up to the judge to determine whether a witness is in fact a hostile witness, but, as the recent opinion of the Third Circuit in Government of the Virgin Islands v. Williams, 2010 WL 939916 (3rd Cir. 2010), makes clear, the judge shouldn't share (all of) his reasoning with jurors.

In Williams,  Gregory Williams was convicted by a jury of first degree murder and related charges involving assault and illegal use of weapons. Williams thereafter appealed, claiming, inter alia, that judge engaged in reversible misconduct. One of these acts of misconduct occurred after defense counsel attempted to question an eyewitness for the prosecution, who admitted that he had used marijuana before observing the subject crime and claimed that “the weed does-don't affect you mentally-it just give you a natural high." After  defense counsel attempted to challenge Smith's ability to identify Williams given the fact that he was enjoying his “natural high,” counsel was admonished by the trial judge who made the following comment in the presence of the jury, and while sustaining an objection by the prosecution:

But get to the-get to the perception. Because I'll tell you something. There's a lot of people I does smell that they be smoking, smoking thing, as you pass the cars, and they're better drivers than a lot of these other people on the road that just can't drive.

[The trial judge] continued with additional commentary:

So, my policies might be different from all the other judges. But, then again, I have been here longer than all the other judges. I'm the most senior associate judge so I don't-I have been doing this for a long time and nobody has ever found fault with it. So I don't follow the young folks. I go with my own policy. I've been around longer than all of them. Three of them put together don't have as much years as I have. So, I have my own policy.

All three Third Circuit judges hearing Williams' appeal found that this commentary was judicial misconduct sufficient to award Williams a new trial. One of the judges, though, wrote a separate concurrence to note that a separate act of judicial conduct would have been enough in and of itself to award Williams a new trial. Specifically,

At trial, Makeda Petersen was called as a witness to testify by the Government, and she testified that Williams was not the shooter at the scene. The Government, dissatisfied with her testimony, moved to have Petersen declared a hostile witness under Federal Rule of Evidence 611(c). The court agreed with the Government, and then, in the presence of the jury, stated that it had declared Petersen to be a hostile witness. The trial judge went on to state that the court "deems her to be uncooperative and evasive, and particularly twice she has rejected questions by the Government calling her."

According to the concurring judge,

The prejudicial effect of remarks like this underscores why courts should not explain evidentiary rulings in the jury's presence. The trial judge's characterization of Petersen's testimony as "uncooperative and evasive" could very well have influenced the jury's assessment of whether or not to credit her testimony....In a case such as this, in which the jury heard contradictory accounts of the critical events and its ultimate decision depended upon whether it believed Petersen's testimony, judicial statements bearing upon the credibility of a witness, such as the trial judge's characterization of Petersen's testimony here, could be highly influential.

-CM

What Are Your Intentions?: Seventh Circuit Finds Expert Testimony Was Properly Precluded Under Rule 704(b) In Sexting 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.

This Rule was originally "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," and it was passed in the wake of the shootings of Ronald Reagan and John Lennon. As the recent opinion of the Ninth Circuit in United States v. Hofus, 2010 WL 986799 (9th Cir. 2010), makes clear, however, this Rule also applies to testimony that a defendant engaged in "sexting" with a minor would never act on the intentions expressed in his texts.

In Hofus, Terrance Hofus was convicted of attempting to coerce and entice a minor to engage in sexual activity. The facts of the case were as follows:

In February 2008, several 12 to 16-year-old girls had a sleep over party....During the party, two of the young girls, M.M. and B.T., took nude photos of themselves and sent them by cell phone to a 15-year-old boy, T.H. Although unclear exactly how Hofus learned about the photos,...after the party B.T. began receiving text messages from a number she did not recognize. From that number, Hofus sent her various sexual messages and told her that unless she and M.M. met with him to do sexual things, he would send the nude photos to everyone they knew and post them on the Internet.

After the party, M.M. also exchanged text messages with Hofus, thinking that he was the 15-year-old boy. When these texts became very sexual, M.M. told her mother and older sister about them. M.M.'s sister called the number and told him to stop calling her 14-year-old sister....

Although it was later determined that Hofus's phone did not give him the ability to actually view the nude photos, he made the girls believe he had seen them and had them in his possession. For example, Hofus sent B.T. a text that he was at a Kinko's copy shop and had found a way to enlarge cell phone images to poster size: "think that if we printed up the 2 of u girls and hung them up at the high skol that it wud help u keep u r promise to me they look hot there a lot detail big."

B.T. eventually told a teacher about the problem, and, ultimately, the FBI took over the investigation. Special Agent Anna Brewer took M.M.'s cell phone and downloaded the voicemail messages from Hofus. Brewer also took B.T.'s cell phone and found several text messages from Hofus....

Agent Brewer posed as B.T. and began texting with Hofus. Brewer recorded all text messages and voicemails that were received on B.T.'s phone. Brewer asked for the pictures back; Hofus asked what she was willing to do to get them. Later, Hofus apparently became suspicious and asked her "Why are u talking 2 the police” and “some one knows a detective.” Hofus asked B.T. to promise that whatever they might do would stay between them-“no friends parents police." He insisted on talking to B.T. on the phone to arrange a meeting....

With her parents' permission, B.T. spoke to Hofus on a monitored phone and arranged to meet him at the Parklane movie theater to see the movie Juno. Following their conversation, he continued to send her sexually explicit texts asking about her sexual experiences.

On March 16, the FBI set up surveillance at the Parklane movie theater. At noon, Hofus sent a text asking, "Are u going to let me taste u naked." He also sent a message suggesting B.T. go to the McDonald's near the theater instead. When the agents went to the McDonalds, they noticed Hofus sitting on a bus stop bench across the street from the theater, using his cell phone, and arrested him.

At his trial, Hofus sought to have a Dr. McEllistrem testify, inter alia, that "it was unlikely Hofus would act on the intentions expressed in his texts." The district court, however, precluded this testimony, and the Seventh Circuit later agreed, finding that there is "a distinction between the intent to persuade or attempt to persuade a minor to engage in a sex act and the intent to actually commit the criminal sex act itself." In other words, because Hofus was charged with attempting to coerce and entice a minor to engage in sexual activity, the question of whether he was likely to act on his expressed intentions was irrelevant.

Moreover, the Seventh Circuit found that even if this likelihood was relevant, it would have violated Federal Rule of Evidence 704(b) because

To say that Hofus meant the texting only as fantasy is simply another way of saying he did not really intend to entice or persuade the young girls, which is precisely the question for the jury. If the jury accepted Dr. McEllistrem's testimony that Hofus engaged in texting B.T. “in fantasy alone,” it would necessarily follow that Hofus did not possess the requisite mens rea....Such an opinion would thus run afoul of Rule 704(b)'s prohibition on such testimony.

-CM

Expert Advice: Seventh Circuit Notes That Judges Might Want To Appoint Experts In Fair Debt Collection Practices Cases

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

As the Seventh Circuit noted in its recent opinion in DeKoven v. Plaza Associates, 2010 WL 938025 (7th Cir. 2010), judges "rarely exercise[]" their powers under this Rule and appoint their own experts, but they might want to consider doing so in Fair Debt Collection Practices Act cases.

In DeKoven, plaintiffs brought two closely related class action suits under the Fair Debt Collection Practices Act, claiming that the Plaza Associates debt-collection agency improperly sent them denning letters, i.e., letters of collection. Under the Fair Debt Collection Practices Act, "a debt collector can, if authorized by the creditor whom he is representing, make his initial offer a final one, he cannot pretend that it is final if it is not, in the hope that the debtor will think it final."  The letters sent to one of the plaintiffs, Doris DeKoven, stated that

“we have been authorized to offer you the opportunity to settle this account with a lump sum payment for 65% of the above balance due, which is equal to $2,459.22. This offer will be valid for a period of thirty-five (35) days from the date of this letter." 

The plaintiffs' expert conducted a survey. 

The survey staff interviewed 160 shoppers at a mall in a Chicago suburb. Half were shown the letter to Kubert; the other half-the members of the control group-were shown the letter minus the “valid for a period” and “satisfactory proof” paragraphs....

After the survey respondents read the letter (either the survey letter or the control letter, depending on which group a respondent had been placed in), they were first asked questions about the letter orally, then given orally two answers to choose between, and finally handed a card with the answers printed on it and asked to pick one of them. The cards also contained a third answer option, which had not been presented orally: "DON'T KNOW/NOT SURE." The critical question, asked of the respondents in both groups, was what the respondent thought would happen if he or she didn't accept the offer in the letter-would it be renewed or extended, or was this the last chance to get a discount off the balance owed?

Of the respondents in the survey group, 59 percent thought the offer was final, 26 percent thought that it would be renewed or extended, and 15 percent didn't know or weren't sure. The corresponding percentages in the control group were 24 percent, 10 percent, and  66 percent.

The district court, however, deemed this evidence inadmissible under Federal Rule of Evidence 702 because, inter alia, "the members of the control group may well have been confused by the omission from the cropped letter of any reference to a deadline."

The Seventh Circuit later affirmed and noted, inter alia, that

Suits under the Fair Debt Collection Practices Act have repeatedly come to grief because of flaws in the surveys conducted by the plaintiffs' experts....District judges may want to consider exercising the clearly authorized but rarely exercised option of appointing their own expert to conduct a survey in FDCPA cases....Judges can assure themselves of the expert's neutrality by (as in arbitration) asking the parties' own experts to nominate a third expert to be the court-appointed expert....A genuine neutral should be easy to find in the field of survey research because few survey researchers have settled views about debt collection.

The decision to appoint an expert is within the discretion of the trial judge, of course, and we merely invite consideration of the possibility of using this procedural device to improve judicial understanding of survey methodology. Although the judge is authorized to allocate the cost of the court-appointed expert between the parties, Fed.R.Evid. 706(b), we do not suggest that the defendant should be made to contribute to the cost of a survey conducted by the neutral expert, for in cases under the Fair Debt Collection Practices Act defendants rarely conduct their own surveys but are content to point out the deficiencies in plaintiffs' surveys. A survey conducted by a neutral is a possible alternative to the often unedifying spectacle of a battle of party-appointed experts.

-CM