EvidenceProf Blog

The AALS Poster Project: Eric Johnson's The Wypadki: Facilitating a class-wide group outline

Eric E. Johnson presented the poster The Wypadki: Facilitating a class-wide group outline (Download The Wypadki):   

Professor Johnson is a professor at The University of North Dakota School of Law, where he has taught since 2007. He teaches Torts, Intellectual Property, and Media & Entertainment Law. He has published articles such as Rethinking Sharing Licenses for the Entertainment Media, 26 Cardozo Arts & Entertainment Law Journal 391 (2008), and Calibrating Patent Lifetimes, 22 Santa Clara Computer & High Technology Law Journal 269 (2006). According to Professor Johnson,

The poster titled "The Wypadki: Facilitating a Class-Wide Group Outline" describes a way to use a wiki to help the members of law-school class build a single group outline. I am of the opinion that the easier way to learn is usually the better way. Thus, if I can help everyone avoid the need to reinvent the wheel by writing their own outline from scratch, I think that's a good thing. For one, it frees up their time for more
intellectually challenging tasks -- finding connections, applying doctrine to problems, or what have you. A webpage with links to various wypadkis is here: http://www.eejlaw.com/wypadki/.

-CM

The AALS Poster Project: Sarah Redfield's A Rising Tide Raises All Boats

Sarah Redfield presented the poster, A Rising Tide Raises All Boats (Download A Rising Tide Raises All Boats):

 

Professor Redfield is a professor at The Franklin Pierce Law Center, where she teaches Administrative Process, Education Law, Legal Skills I & II, Property, and Special Education Law. She has published articles such as The Educational Pipeline from Preschool to Professional School: Working to Increase Diversity in the Profession, 75 The Bar Examiner #2 (May 2006), Law Schools Cannot Be Effective in Isolation, 1 BYU Educ. L.J. (2005), and The Convergence of Education and Law : A New Class of Educators and Lawyers, 36 Ind. L. Rev. 609 (2003). Additionally, her book, Thinking Like a Lawyer: An Educator's Guide to Legal Analysis and Research, was published in 2002 by Carolina Academic Press.

The poster is connected to her book, Diversity Realized: Putting the Walk with the Talk for Diversity in the Legal Profession. For background into what led her to create the poster, you can look through the following power point presentation connected to the poster (Download Redfield PowerPoint).

-CM

The Crime And The Cover-Up, Take 2: Third Circuit Finds Phone Conversations Constituted Co-Conspirator Admissions In Drug Appeal

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.

Because this Rule only covers statements made during the course and in furtherance of conspiracies, it usually does not cover statements made by a co-conspirator after he is apprehended by police. The recent opinion of the Third Circuit in United States v. Jones, 2010 WL 1220960 (3rd Cir. 2010, provides an exception to this general rule.

In Jones, Chesney Jones was convicted of  unlawful possession and distribution of at least 50 grams of crack cocaine, and at least 5 kilograms of cocaine hydrochloride, interstate travel in aid of racketeering, making false statements, and conspiracy to distribute drugs.

After her arrest for a parole violation, Jones asked to speak to Drug Enforcement Agents and admitted that she was a drug "runner" and had supplied multiple shipments of cocaine hydrochloride to a buyer, Lance Harper, for approximately one year. Jones agreed to cooperate with law enforcement and made recorded phone calls to Harper and other individuals involved in drug trafficking. During one recorded meeting with Harper, Jones attempted to tip him off that she was cooperating with law enforcement. Jones testified at her trial, retracted everything she had told agents, and denied being involved with drug trafficking.

At trial, the prosecution introduced the recordings of these phone conversations under Federal Rule of Evidence 801(d)(2)(E). On appeal, Jones claimed, inter alia, that these recordings were improperly admitted because these conversations were neither made during the course of the conspiracy -- which ended when she confessed to the DEA agents -- nor in furtherance of the conspiracy (because she was giving up the conspiracy). The Third Circuit, however, disagreed, finding that "the government provided evidence that during Jones' conversations with Harper she attempted to warn him that they were being recorded-therefore, the conspiracy had not ended and the statements were made in furtherance of the conspiracy."  In other words, because these conversations were at least partially an attempt to cover up the conspiracy, they were admissible as co-conspirator admissions.

-CM 

Dead Man's Chest, Take 3: Court Of Appeals Of Minnesota Opinion Makes Clear That Elimination Of Dead Man's Statute Does Not Eliminate Hearsay Concerns

As I have previously noted on this blog,

Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate....The theory behind these statutes is that the interested person has reason to fabricate his testimony, and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury. 

As I have also previously noted on this blog, most states have repealed their Dead Man's Statutes. As the recent opinion of the Court of Appeals of Minnesota in Bronczyk v. Bronczyk, 2010 WL 1029738 (Minn.App. 2010), makes clear, however, the repeal of a Dead Man's Statute merely means that the person who talked to the now deceased or incapacitated person is no longer incompetent to testify; it does not mean that the rule against hearsay is satisfied.

In Bronczyk,

Anthony J. Bronczyk, Sr. (decedent) commenced a lawsuit...seeking a judgment determining that respondents, six of decedent's children, had no right, title, or interest in certain real estate and rescinding a quit claim deed that purportedly conveyed the real estate from decedent and his wife to respondents. The complaint state[d]:

In June of 1995, [respondent] Katherine J. Bronczyk, one of [decedent's] daughters, caused to be prepared a Quit Claim Deed from [decedent] to [respondents] as grantees ... and on June 28, 1995, fraudulently and intentionally caused signatures to be placed thereon and the instrument notarized as though it were the signatures of [decedent] and [his] then wife, Katherine R. Bronczyk, who is now deceased, without the presence of either [decedent] or [his] wife at the purported time of acknowledgement of the deed, without consent and with intent to defraud [decedent].

The complaint further alleged that decedent never signed the deed, and that if he did, such signature could only have been the result of his daughter, respondent Katherine J. Bronczyk, taking advantage of decedent's vulnerability and "fraudulently inducing [his] signature by falsely and fraudulently representing to [decedent] that the deed was for some other purpose." The complaint asserted that decedent did not become aware of the deed or the alleged fraud until October 2001. Decedent passed away in either July or August 2007 while the litigation was pending. Prior to his death, decedent assigned his interest in this lawsuit to his son, appellant Thomas A. Bronczyk.

Thomas tried to prove the above facts through an affidavit prepared by the decedent about a year before he died as well as through his own testimony regarding conversations he had with the decedent in which the decedent denied signing the deed. The trial court, however, found the affidavit and testimony inadmissible, prompting Thomas' appeal. In that appeal, Thomas claimed that the affidavit was admissible under Minnesota Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay 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.

The Court of Appeals of Minnesota correctly held, however, that the decedent did not prepare his affidavit while believing his death to be imminent, rendering this dying declaration exception inapplicable.

With regard to his proposed testimony, Thomas claimed that it should have been deemed admissible because Minnesota dispensed with its Dead Man's Statute by passing Minnesota Rule of Evidence 617, which provides that

A witness is not precluded from giving evidence of or concerning any conversations with, or admissions of a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof.

The Court of Appeals of Minnesota, however, again correctly concluded that this Rule merely meant that Thomas was no longer incompetent to testify regarding the decedent's statements. The court noted that Thomas still had to prove that the decedent's statement met some applicable exception to the rule against hearsay. Because Thomas did not point to any applicable exception, the trial court properly excluded his testimony.

-CM

Judge, Jury, And interrogator, Take 3: Seventh Circuit Doesn't Reverse Despite Improper Judicial Interrogation

Federal Rule of Evidence 605 provides that

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.

Conversely, Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party," and Federal Rule of Evidence 614(c) provides that

Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let's consider the recent opinion of the Seventh Circuit in United States v. Barnhart, 2010 WL 1136522 (7th Cir. 2010).

In Barnhart, Gregory Barnhart was convicted of two counts of wire fraud-one involving a fraud on a former employer and the other involving a fraudulent scheme to obtain a $500,000 loan from Sun Trust Bank secured by E.I. du Pont de Nemours abd Company. After he was convicted, Barnhart appealed, claiming, inter alia, "that the district judge's questioning of witnesses was highly prejudicial and either overtly or subtly conveyed a bias in favor of the government." And the Seventh Circuit agreed with him, noting that, inter alia,

the court engaged in a quasi-cross-examination of a defense witness by using leading questions in a way that largely dismissed his testimoiny;

several questions from the judge served to emphasize uncontested facts that were highly unfavorable to the defense; and

interrogated a witness for the prosecution in a way that bolstered his credibility and took the wind out of the sails of the defense attorney's cross-examination.

According to the Seventh Circuit,

Considered as a whole and in light of the entire trial, the judge's questioning of the witnesses went beyond mere clarification and instead gave the impression that the judge disbelieved Barnhart's defense. Trial judges need not be silent spectators, but they are neutral arbiters; the quantity and quality of the judge's questions in this case conveyed an improper skepticism about Barnhart's defense.

The problem for Barnhart, however, was that he did not object to the judge's questions, meaning that the Seventh Circuit could not reverse for abuse of discretion but instead had to find plain error. Because it could not find plain error, the Seventh Circuit was not able to reverse. Conversely, if the district judge testified, the Seventh Circuit could have reversed if it merely found that the trial judge abused his discretion.

Does this disntiction make sense? The Advisory Committee Note to Federal Rule of Evidence 605 indicates that:

The rule provides an "automatic" objection. To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector.

But what about the situation in Barnhart? If defense counsel objected to the district judge's questions, wouldn't the judge have felt that his integorty was being attacked? I can't think of any good reason why an objection to judicial interrogation is required but an objection to judicial testimony is not.

-CM

A Foolish Consistency, Take 2: New Jersey Court Finds No Error With Admission Of Prior Consistent Statement Before Charge Of Recent Fabrication

Like Federal Rule of Evidence 801(d)(1)(B), New Jersey Rule of Evidence 803(a)(2) allows for the admission of:

A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement...is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.

In other words, an attorney is allowed to admit a witness' prior consistent statement after opposing counsel has charged the witness with recent fabrication or improper influence or motive to rebut that charge. According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Hay, 2010 WL 1028048 (N.J.Super.A.D. 2010), however, there is no unfair prejudice if an attorney is allowed to admit a witness' prior consistent statement before opposing counsel has made such a charge. I disagree.

In Hay, Andre T. Hay was convicted of second-degree aggravated assault, third-degree terroristic threats, fourth-degree unlawful possession of a weapon, and third-degree possession of a weapon for an unlawful purpose. These convicted stemmed out of acts that Hay allegedly committed against the mother of his children, who later that day reported these acts to Dr. Randall Lewis at the Union County Community Hospital.

At Hay's trial, Dr. Lewis testified concerning what the alleged victim told him. The alleged victim thereafter testified concerning the acts Hay allegedly committed against her. Subsequently, defense counsel's cross-examination of the alleged victim "suggested that the victim did not seek medical assistance or speak with the police until a considerable time after the incident and that she later approached the prosecutor to have the charges dropped before ultimately deciding to prosecute the case."  

After Hay was convicted, he appealed, claiming, inter alia, that Dr. Lewis' testimony concerning the alleged victim's statements constituted inadmissible hearsay. The Superior Court of New Jersey, Appellate Division disagreed, finding that the alleged victim's statements were admissible under New Jersey Rule of Evidence 803(c)(4) as statements made for purposes of medical treatment or diagnosis. If the court stopped with that holding, it would not have committed error.

The court, however, went on to find that it was "satisfied that the statement was admissible as a prior consistent statement of a witness testifying at trial." The court noted that defense counsel did not charge the alleged victim with recent fabrication until after Dr. Lewis had testified concerning her prior consistent statement but found that "[n]o prejudice arose simply from the fact that Dr. Lewis testified to this consistent statement before defense counsel raised the issue of recent fabrication when he thereafter cross-examined the victim." I disagree.

I see this situation as the converse to the situation where a judge deems a criminal defendant's prior convictions admissible against him for impeachment purposes. Under these circumstances, if the defendant chooses not to testify, he cannot appeal the judge's ruling because, inter alia, if he testified, the prosecution could have chosen not to impeach him.

Now, let's look at Hay. Sure, defense counsel charged the alleged victim with recent fabrication. But would he have done so if the court had not already allowed for the admission of her prior consistent statements to Dr. Lewis? In other words, in Hay, defense counsel risked nothing by charging the victim with recent fabrication because her prior consistent statements had already been admitted. But would he have taken the same risk if the cat were not already out of the bag? That's a question we can't answer, but we can answer that this is not the situation envisioned by the prior consistent statement rule.

-CM

Simply The Best: Court Of Appeals Of Georgia Notes That Satisfying Best Evidence Rule Doesn't Satisfy Rule Against Hearsay

Similar to Federal Rule of Evidence 1002, OGCA Section 24-5-4(a), Georgia's Best Evidence Rule, provides that "[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." As the recent opinion of the Court of Appeals of Georgia in McKinley v. State, 2010 WL 1136202 (Ga.App. 2010), makes clear, however, just because a party satisfies the Best Evidence Rule does not mean that it satisfies the rule against hearsay.

In McKinley, Marcus McKinley was convicted of robbery by intimidation and hijacking a motor vehicle. McKinley allegedly committed these crimes on June 18, 2007, and his alibi was that at the time of the crimes, he was at the Dekalb County Recorder's Court resolving outstanding traffic citations. In rebuttal, the State introduced, as State's Exhibits 21 and 22, copies of two of the traffic citations, certified by the clerk of the DeKalb County Recorder's Court, that were stamped "FTA," with "FTA" meaning failure to appear.

The State claimed that these copies were admissible as copies of exemplifications of public records transmitted by facsimile. The trial court agreed, but the Court of Appeals of Georgia later reversed, finding that this showing merely satisfied the Best Evidence Rule and not the rule against hearsay. According to the appellate court,

In this case, the State introduced Exhibits 21 and 22 to prove the truth of the statement of the unidentified person who stamped "FTA" on the citations (presumably the clerk of the DeKalb County Recorder's Court) that McKinley failed to appear for his court date. Despite McKinley's strenuous objection to the documents as hearsay, the State argued only the issue of authentication and never identified any exception to the rule prohibiting hearsay that would authorize admitting the documents. The trial court then admitted the exhibits "pursuant to the provisions of OCGA Section 24-5-20" without any determination that they fell within an exception to the rule prohibiting the use of hearsay, saying “I think [McKinley's] other objections go to weight rather than threshold admissibility." This was error.

Now, the court did note that the copies of the traffic citations likely could have been admissible under the business records (I would think public records) exception to the rule against hearsay, but it found that the problem for the State under this exception was that the State did not call any witnesses to lay the proper foundation for admission of these citations. 

-CM