EvidenceProf Blog

Invasion Of Privacy: Court Of Appeals Of Texas Finds Trial Court Properly Excluded Evidence Of Alleged Victim's Prior Nonconsensual Sexual Acts Under Rape Shield Rule

Texas Rule of Evidence 412(a) provides that

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.

Meanwhile, Texas Rule of Evidence 412(b) provides that

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless [an exception applies].

The most typical rationale for such rape shield rules is that they prevent evidence of an alleged victim's prior sexual acts to be admissible to prove that the alleged victim has a propensity to consent to sexual acts and thus likely consented to the sexual act at issue. If this were the only rationale, evidence of an alleged victim's prior nonconsensual sexual acts would not be precluded under such rules. While not explaining its reasoning, the Court of Appeals of Texas, Forth Worth, did not reach this conclusion in its recent opinion in Bryan v. State, 2010 WL 1137038 (Tex.App.-Fort Worth 2010). This post explains why I agree with the court's conclusion.

In Bryan, the evidence at trial established the following:

When A.M. was six or seven years old, she lived with her mother D .M., her grandfather [Desmond] Bryan, and Bryan's wife in Bryan's house. A.M. was home alone with Bryan one day watching cartoons in the living room when he asked if she wanted to "see something." Bryan told A .M. to take off her underwear and lie down on the couch. He lay down next to her and licked her female sexual organ. Bryan told A.M. to go into his bedroom and get on the bed. Bryan got in bed with her and kissed A.M. on her mouth and cheeks. He got up, went to the restroom, shaved his face, and returned to the bedroom. He got back in bed with A.M., took off his pants and underwear, and exposed his penis to A.M. Bryan asked A.M. if she "wanted to," and A.M. responded, "No." Bryan got up and said, "Suit yourself." He put his pants and underwear back on and told her that if she told anyone, everyone would be mad at her and she would be taken away.

Several months later, A.M. moved to Scottsdale, Arizona to live with her father Michael and his girlfriend Tracie. Over a year after the incident with Bryan, A.M. wrote on a sticky note that she wanted to tell her dad something very serious. Tracie saw the note first and asked A.M. if she wanted to talk to her about it. A.M. told her that Bryan had sexually molested her. Tracie woke up Michael, and Michael and Tracie asked A.M. to explain what had happened. A.M. felt more comfortable writing it down than saying it; she wrote that her grandfather had licked her private and had said he enjoyed it. Michael contacted the police.

At the end of trial, Bryan was convicted of one count of aggravated sexual assault of a child and one count of indecency with a child by exposure. Bryan thereafter appealed, claiming, inter alia, that the trial erred by excluding evidence that A.M. was sexually assaulted by a maintenance worker prior to the incident with Bryan. According to Bryan, this evidence should not have been excluded under Texas' rape shield rule because it did not involve consensual sexual activity. The Court of Appeals of Texas, however, disagreed, finding that "rule 412 applies to evidence of the victim's 'past sexual behavior,' and courts have not limited its application to consensual behavior." 

The court didn't provide any explanation for its holding, but I think that it makes sense given the other rationales behind rape shield rules. Those rules are not solely designed to preclude the admission of evidence regarding an alleged victim's prior sexual acts to prove that the alleged victim is promiscuous. Instead, they are also designed to protect the privacy of the alleged victim and encourage victims to come forward. As the Advisory Committee Note to the federal rape shield rule indicates, the rule is designed in part to support "[t]he strong social policy of protecting a victim's privacy and encouraging victims to come forward to report criminal acts." Under this rationale there might even be a stronger basis for excluding evidence of an alleged victim's prior nonconsensual sexual acts than there is for excluding evidence of an alleged victim's prior consensual sexual acts.

-CM

Next Best Thing: Court Of Appeals Of Kentucky Finds 2007 Version Of Rental Folder Admissible Under Rule 1004(2)

Like its federal counterpart, Kentucky Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, in other rules adopted by the Kentucky Supreme Court, or by statute.

Also like its federal counterpart, however, Kentucky Rule of Evidence 1004(1) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.

Because of this latter Rule, the Court of Appeals of Kentucky in its recent opinion in Fabian Leon v. Penske Trucking Leasing Co., 2010 WL 140676 (Ky.App. 2010), was able to affirm the circuit court's order.

In Penske,

On March 31, 2005, Leon rented from Penske a 22-foot "medium reefer" refrigerated truck in Louisville, Kentucky. In order to take possession of the vehicle, Leon signed a Local Commercial Rental Agreement...which included a $1,000 limited liability waiver. The Agreement was placed in what Penske refers to as a "rental folder" which was given to Leon. The rental folder allegedly set out language holding Leon responsible for any damages caused by insufficient clearance, such as driving on a roadway that was too narrow for the vehicle or driving under an obstruction that was too low for the height of the vehicle. After renting the truck, Leon drove under an overpass which was too low for the vehicle, resulting in extensive damage to the truck and to the refrigeration unit which was affixed to the top of the truck.

Penske accordingly initiated an action against Leon to recover damages resulting from the accident. Penske, however, did not produce the original Agreement, and neither Penske nor Leon was able to produce a copy of the rental folder. Instead, Penske proved the contents of the rental folder by introducing into evidence a 2007 version of the rental folder.

After the jury found for Penske, Leon appealed, claiming, inter alia, that the original rental folder had to be introduced pursuant to Kentucky Rule of Evidence 1002. The Court of Appeals of Kentucky disagreed, finding that "In the matter before us, it is uncontested that the original rental folder was lost or destroyed, and Leon made no claim that Penske destroyed the original in bad faith." Accordingly, the court found that 2007 version of the rental folder admissible under Kentucky Rule of Evidence 1004(1). 

-CM

Expert Or Ex Parte?: Court Of Appeals Of Minnesota Finds Party Input Not Required Before Rule 706(a) Expert Appointments

Like its federal counterpart, Minnesota 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 text of this Rule and the recent opinion of the Court of Appeals of Minnesota in Duckwall v. Duckwall, 2010 WL 1286851 (Minn.App. 2010), make clear, while the Rule allows for input from the parties regarding appointment of experts, it does not require it.

In Duckwall, a Minnesota district court entered an order denying Adam Duckwall's motion to modify restrictions on his parenting time. Before entering this order, the court appointed Dr. Scott Fischer as an expert under Minnesota Rule of Evidence 706(a) to conduct a psychosexual examination of Duckwall. Dr. Fischer and another evaluator concluded after that examination

that "[appellant] has difficulties identifying and honoring the personal boundaries for himself and others" and that "[appellant] may present a sexual risk for adolescent females." With regard to his daughter, the evaluators stated, "we believe [appellant] has not nor is presently abusing his daughter in any form or fashion," however, "[appellant] demonstrated a few poor boundaries, judgment, and decision making related to his own three-year-old daughter." The evaluators recommended that appellant seek counseling for a minimum of 18 months on a weekly basis from a mental health professional who understands prevention and relapse of boundary violations.  

After the district court denied his motion, Duckwall appealed, claiming, inter alia, that the district judge's contact with Dr. Fischer was an improper ex parte communication with a nonparty and that "Minnesota Rule of Evidence 706(a) requires that the district court permit input from the parties as to the necessity of such an expert." The Court of Appeals of Minnesota disagreed, correctly concluding that "[a]lthough rule 706(a) allows for input from the parties, it does not require that the judge seek it, and allows the judge to appoint experts of its own selection."

-CM

Cellular: Court Of Special Appeals Of Maryland Finds Expert Testimony Required For Cellular Phone Tracking Testimony

Maryland Rule of Evidence 5-701 provides that

If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Meanwhile, Maryland Rule of Evidence 5-702 provides that

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

So, is testimony about where a suspect (generally) was at the time of a crime based upon cellular telephone tracking covered by Rule 5-701 or 5-702? That was the question addressed by the Court of Special Appeals of Maryland in its recent opinion in Wilder v. State, 2010 WL 1077325 (Md.App. 2010).

In Wilder, Aubrey David Wilder was convicted of various charges of first-degree assault, reckless endangerment, and the use of a handgun in the commission of a crime of violence based upon a shooting incident in the early morning hours of July 25, 2007 in Windsor Mill, Baltimore County. At trial, over defense counsel's objection, Detective Hanna "testified at length about mapping Wilder's whereabouts around the time of the shootings by the use of cell phone tracking and GPS technology."   

This testimony placed Wilder in the general vicinity of the shooting, but the prosecution did not qualify Hanna as an expert witness. This failure then formed the partial basis for Wilder's appeal. In his appellate brief, Wilder asserted that

[t]he admission of Detective Hanna's testimony directly contradict[ed] the holding of Ragland v. State, 385 Md. 706, 870 A.2d 609 (2005). In Ragland, the Court of Appeals held that "Md.Rules 5-701 and 5-702 prohibit the admission of “lay opinion” testimony based upon specialized knowledge, skill, experience, training, or education.” An expert from the cell phone company or an engineer familiar with cell phone technology would have been the proper person to testify as to those matters.

The court then noted that courts in other states had spilt on the issue and decided to side with those courts finding that expert testimony on the issue is required and decided to side with those courts requiring expert testimony because

In the case before us, Hanna's testimony implicated much more than mere telephone bills. He elaborated on the information provided by the cell phone records-the bills and records of calls-by his use of a Microsoft software program to plot location data on a map and to convert information from the cellular phone records in order to plot the locations from which Wilder used his cell phone. This procedure clearly required "some specialized knowledge or skill ... that is not in the possession of the jurors[.]"...

Following Ragland, the Court of Appeals has reiterated that "opinions based on a witness's 'training and experience ... should only [be] admitted as expert testimony, subject to the accompanying qualifications and discovery procedures.'"...Hanna's description of the procedures he employed to plot the map of Wilder's cell phone hits was not commonplace. Because his explanation of the method he employed to translate the cell phone records into locations is demonstrably based on his training and experience, we conclude that he should have been qualified as an expert under Md. Rule 5-702, and that the State was obliged to fulfill its discovery obligations....The trial court ought not have permitted Hanna to offer lay opinion testimony about the cell site location, and to describe the map created based on the cellular telephone records.

-CM

A Foolish Consistency, Take 3: Second Circuit Finds No Error With Admission Of Alleged Prior Consistent Statement

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.

Pursuant to the Supreme Court's opinion in Tome v. United States, 513 U.S. 150 (1995), it is well established that this Rule "permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive."  I don't see how the recent opinion of the Second Circuit in United States v. Burden, 2010 WL 1223186 (2nd Cir. 2010), is consistent with this construction of the Rule.

In Burden, several defendants, including Jermain Buchanan, appealed from their convictions on multiple counts including violations of the Racketeer Influenced and Corrupt Organizations Act, the Violent Crimes in Aid of Racketeering statute, and conspiracy to distribute cocaine and cocaine base. One of the incidents giving rise to the action against the defendants was a drive-by shooting in front of Marque Young's house, which resulted in Derek Owens being killed and Young being wounded so severely that he is now a paraplegic. 

Young testified at trial and described having seen Buchanan and another person as the shooters. He further testified that he had identified Buchanan in two separate photo spreads. During cross-examination, Buchanan's counsel attempted to introduce an October 1999 statement in which Young told police that he wasn't sure Buchanan was in the front passenger seat. The government objected and the district court sustained the objection. The government later stated that it would withdraw its objection if it could introduce a November 1999 statement in which Young identified Buchanan as the shooter under the theory that it was a prior consistent statement. The district court ultimately allowed both the October and November statements to be admitted.

Part of the basis for Buchanan's appeal was

that the November statement was not admissible under Federal Rule of Evidence 801(d)(1)(B) as a prior consistent statement because he had never made a charge of recent fabrication against Young. Instead, he argues that his goal in getting the October statement admitted was to impeach Young and make his trial testimony less believable because of his earlier inconsistent statements. Buchanan further argues that the government's purpose in introducing the November statement was improper bolstering of Young's credibility.

The Second Circuit disagreed, finding that

Buchanan was attempting to impeach Young, specifically by suggesting that his trial testimony in which he identified Buchanan as a shooter was a recent fabrication. Once allowed to raise that inference, the district court was well within its discretion to allow a month-later statement, consistent with the trial testimony, to be introduced to rebut the charge that Young's trial testimony was recently fabricated.

Really? I read Buchanan's impeachment of Young in one of two ways: First, Buchanan might have been trying to prove that Young was more uncertain about whether Buchanan was a shooter than his trial testimony would have suggested. In other words, Young's trial testimony was not a fabrication or based upon an improper motive or influence; it was based upon confusion. Second, Buchanan might have been trying to prove that Young's trial testimony was a fabrication, but not a recent fabrication.

It seems most likely to me that Buchanan was trying to prove that Young was uncertain of whether Buchanan was a shooter when he talked to police in October 1999. Then, something happened to cause Young to lie to cops in November 1999 and eventually at trial. If this was the case, Young's statement to the cops in November was not a prior consistent statement but came after some unstated improper influence or motive. And if that were the case, I don't see how Young's statement in November 1999 qualified as a prior consistent statement.

-CM

Applying The Scalpel To The Physician-Patient Privilege: Supreme Court Of Utah Finds Redacted Patient Records Admissible

Utah Rule of Evidence 506(b), Utah's physician-patient privilege, provides that

If the information is communicated in confidence and for the purpose of diagnosing or treating the patient, a patient has a privilege, during the patient's life, to refuse to disclose and to prevent any other person from disclosing (1) diagnoses made, treatment provided, or advice given, by a physician or mental health therapist, (2) information obtained by examination of the patient, and (3) information transmitted among a patient, a physician or mental health therapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or mental health therapist, including guardians or members of the patient's family who are present to further the interest of the patient because they are reasonably necessary for the transmission of the communications, or participation in the diagnosis and treatment under the direction of the physician or mental health therapist. 

In its recent opinion in Staley v. Jolles, 2010 WL 1133335 (Utah 2010), the Supreme Court of Utah had to address the issue of whether redacted patient records implicate this physician-patient privilege. And, as several other courts had previously found, the Utah Supremes concluded that the answer is "not usually."

In Jolles,

On April 10, 2003,...Denise Staley underwent a hysterectomy at St. Mark's Hospital....During the evening of April 11, and while on the floor  Four West, Ms. Staley was cared for by registered nurse Angela Stallings. Ms. Stallings had an additional six patients assigned to her during that same evening....

St. Mark's nursing guidelines suggest a minimum of six registered nurses be on duty if there are thirty-four patients to a floor. These guidelines also provide that if a patient's systolic blood pressure drops below 90 points, the patient's assigned nurse should report that drop to the patient's physician. Four West was staffed with only five registered nurses and had a total of thirty-four patients from the evening of April 11, at 11:00 p.m., until April 12, at 7:00 a.m. During the same evening, Ms. Staley's systolic blood pressure dropped from 132 to 86 points between the hours of 6:15 p.m. and 2:00 a.m. Ms. Staley's physician was never notified.

Ms. Staley claim[ed] Ms. Stallings was negligent and that St. Mark's knowingly and recklessly understaffed floor Four West. Ms. Staley claim[ed] that because of this understaffing Ms. Stallings was unable to adequately monitor and prevent permanent damage to Ms. Staley's kidneys, which resulted from the low blood pressure. To support her negligent staffing claim, Ms. Staley requested documentation reflecting the acuity of the other patients assigned to Ms. Stallings during the evening following Ms. Staley's surgery. Patient acuity refers to the amount of nursing care a patient requires. After a series of discovery motions, St. Mark's was ordered to produce either a chart reflecting the acuity of Ms. Stallings' patients or a statement discussing how patient acuity is assessed and communicated on floor Four West. St. Mark's chose the latter.

In response to the order, St. Mark's produced an affidavit of registered nurse How-Su Chen, the nursing manager for floor Four West....Ms. Chen...indicated that she had personally reviewed the six patient charts assigned to Ms. Stallings during the evening of April 11, and that in her opinion, Ms. Stallings' assignment was an appropriate staffing decision.

Ms. Staley then requested the six patient charts. Ms. Staley argued that it would be unfair and contrary to discovery for Ms. Chen to have access to the six patient charts without providing Ms. Staley an opportunity to review the records herself. St. Mark's refused to produce the six patient charts, arguing that they fall under the physician-patient privilege found in Utah Rule of Evidence 506(b). To overcome this physician-patient privilege, Ms. Staley...stipulated to redaction of all personal identifying information from the six patient charts as well as limiting review of the records to only attorneys and experts.  

St. Mark's rejected Staley's stipulation, and the district court sided with Staley, prompting St. Mark's interlocutory appeal to the Supreme Court of Utah. According to the Utah Supremes, the physician-patient privilege

requires two actors-a patient and a physician, and an exchange of confidential information concerning a particular subject matter-diagnosis and treatment. All of these elements must be present for the privilege to be activated; mere descriptions of diagnoses and treatments that make no reference to a patient are ineligible for protection under rule 506. Indeed, the presence of identifying information and the orders of the court are what make the information privileged. Without an identified individual connected to a diagnosis, the diagnosis contains nothing more than medical terminology.

Accordingly, the court sided with other courts in finding that the physician-patient privilege does not apply to redacted patient records, assuming that the redactions did indeed make it so that the patient could not be identified through the records produced. The court did "note that in some cases the prospect of preserving anonymity through redaction may be too uncertain to permit the production of redacted records," but found that the case before it was not one of those cases and thus affirmed the district court's ruling.

-CM

Play It Again, Sam: Eleventh Circuit Shows Reluctance To Reverse Under Second Sentence Of Rule 803(5)

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

If a trial court improperly allows for the admission of an important memo or record under this Rule, it is pretty clear that such a ruling can form the basis for a reversal on appeal. But what if the trial court properly allows for the admission of an important memo or record under this Rule but improperly allows the memo or record to be received as an exhibit? My reading of the recent opinion in United States v. Jones, 2010 WL 1254351 (11th Cir. 2010), is that the Eleventh Circuit would almost never reverse based upon such an error.

In Jones, Deon Monroe Jones was convicted of knowing possession of a firearm and ammunition by a convicted felon, knowing possession of a firearm and ammunition by a controlled substances user, knowing possession of ammunition by a convicted felon, and knowing possession of ammunition by a controlled substances user. At trial, the prosecution established the following:

In the early morning of June 1, 2004, David Buskirk...was shot with a .38 caliber bullet outside his home in Savannah, Georgia. Detective Robert Von Lowenfeldt...led the investigation into Mr. Buskirk's shooting, and, over the course of his investigation, identified Mr. Jones as a prime suspect. On June 18, 2004, Detective Von Lowenfeldt helped execute a warrant for Mr. Jones's arrest, for violation of his parole. During a search of Mr. Jones's bedroom at his mother's house, the police found twelve .38 caliber rounds and four .44 caliber rounds.

On June 23, 2004, Detective Von Lowenfeldt conducted a videotaped interview of sixteen-year-old Kelly Bigham....In their conversation, Ms. Bigham informed the detective that she had sold a .38 revolver to Mr. Jones. She described how she and Mr. Jones drove to a nice area of town, where Mr. Jones shot a white man. After the interview, Ms. Bigham directed Detective Von Lowenfeldt to the street on which Mr. Buskirk lived, and she demonstrated how Mr. Jones got out of the car, fired at the man, and got back into the car.

At trial, the prosecution played the videotaped interview to the jury pursuant to Federal Rule of Evidence 803(5) after Bingham testified that "she lacked 'clear and distinct recollection in [her] response to the question[s]' regarding the subject matter of her interview with Detective Von Lowenfeldt." 

During deliberation, the jury sent the court a note, requesting a second viewing of the video. Over Mr. Jones's objection, the district court allowed the video to be played for the jury a second time....The district court denied Mr. Jones's request that Ms. Bigham's cross-examination be read to the jury as well.    

After he was convicted, Jones appealed, claiming, inter alia, that by allowing for the video to be played for the jury a second time, the court in effect allowed for the video to be received as an exhibit. Jones claimed that this error was grounds for reversal in and of itself and that the trial court also denied him his confrontation rights under the Sixth Amendment by replaying the video without Bingham's cross-examination being heard again. The Eleventh Circuit disagreed, finding that

Though Ms. Bigham's testimony was important to the government's case, the second presentation of the video provided only cumulative evidence. The jury watched the entire filmed interview during trial. Also, while [another prosecution witness]'s testimony may have been contradictory, he did corroborate Ms. Bigham's interview as to the key elements of Counts One and Two-that Mr. Jones possessed a .38 revolver and shot a man with .38 caliber ammunition. Given this additional evidence, even absent a second viewing of the video, the government's case against Mr. Jones was strong. The record also demonstrates that the district court's refusal to read Ms. Bigham's cross-examination testimony did not affect the outcome of the case. Forty minutes after the second viewing, the jury sent the judge a note stating that "[t]he video did not change any positions."

My response: Of course the second presentation of the video was cumulative. But the whole point of the second sentence in Federal Rule of Evidence 803(5) is that the jury should only get one chance to hear a recorded recollection, with any cumulative presentation being prejudicial. And the fact that the trial court allowed the cumulative presentation of the video without the cumulative presentation of its accompanying cross-examination only underscores this prejudice.

Now, the Eleventh Circuit did note that the jury indicated that "[t]he video did not change any positions," but the court's opinion also indicates that the jurors requested the video on the first day of deliberations (the opinion doesn't indicate how long deliberations lasted). How firm could the jurors' positions have been on the first day of deliberations. And if all jurors thought that Jones was guilty before seeing the video, why didn't they just enter a guilty verdict at that point?

-CM