January 16, 2010
Call The Police: Seventh Circuit Explains Rationale(s) For Excluding Police Reports In Criminal Cases Under Rule 803(8)(B)
Federal Rule of Evidence 803(8)(B) provides that
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.
In other words, police reports are not admissible in criminal cases. But why? That was the question addressed by Judge Posner in his recent opinion in United States v. Hatfield, 2010 WL 114930 (7th Cir. 2010), although his analysis was irrelevant to his conclusion.
In Hatfield, Rex Hatfield and Everly Hatfield were convicted of conspiracy to burglarize pharmacies and to distribute controlled substances (including morphine methadone, oxycodone, fentanyl, alprazolam, cocaine, and hydrocodone), the use of which resulted in death or serious bodily injury-specifically, four deaths, plus a serious bodily injury to a fifth user of the defendants' drugs. Based upon an improper jury instruction, the Seventh Circuit, in an opinion written by Judge Posner, reversed and remanded.
In addition to the jury instruction, the defendants also challenged other actions by the district court. Specifically, inter alia,
One of the dead was an informant in another case against one of the two defendants. That case was dismissed on motion by the prosecutor when the informant died. The government was permitted to present certified documents from that case, including a criminal complaint alleging that the defendant had sold oxycodone to the informant and an order dismissing the case because of the informant's death, to back up its argument that the defendants had planned to kill her in order to stop her from testifying.
The Seventh Circuit noted that this "evidence consisted of public records, which usually are admissible even though they are hearsay, Federal Rule of Evidence 803(8)." That said, the court acknowledged that "there is an exception for the use in criminal cases of records that set forth 'matters observed by police officers and other law enforcement personnel.' These are not admissible. Rule 803(8)(B)."
That left the Seventh Circuit with the question of why police reports are inadmissible in criminal cases. The court noted that
“The apparent concern of the drafters [of the exception in Rule 803(8)(B)] was that use of records in criminal cases would cause 'almost certain collision with confrontation rights.'"...And during floor debates on the rule, "concern was expressed that [without the exception, Rule 803(8)] would allow the introduction against the accused of a police officer's report without producing the officer as a witness subject to cross-examination."
If this were the only concern, the prosecution might not have faced a problem on remand because
[t]he police officer who had signed the criminal complaint in that case testified at the trial of the present case about the proceedings in that other case, including the allegations in the complaint that he had drafted. So he was available for cross-examination.
The problem for the prosecution, though, was that this was not the only concern. Instead,
there is more to the exception than a concern with unavailability of cross-examination. There is also a concern that reports by law enforcers are less reliable than reports by other public officials because of law enforcers' adversary relation to a defendant against whom the records are sought to be used.
In the end, though, the Seventh Circuit found that this wasn't a problem for the prosecution in the case before it
because the key document is the order dismissing the criminal complaint, and although it does mention the reason the prosecutor gave for asking the court to dismiss the complaint, the order is a public record of the court's reason (the informant's death) rather than a record of observations by law enforcement officers.
January 15, 2010
Q & A: Ninth Circuit Finds DEA Agent's Testimony Didn't Cross Rule 704(b) Line In Drug Trafficking Appeal
A week ago, I posted an entry about a Maryland case in which the Court of Appeals of Maryland strained to find that a sergeant's testimony did not violate Maryland's counterpart to Federal Rule of Evidence 704(b), which 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.
The court's conclusion in that case was that even though the prosecutor's question crossed the Rule 704(b) line, the sergeant's answer did not. I agreed with this conclusion in theory, stating, "I have no doubt that a question that crosses the Rule 704(b) line can prompt a response that does not." I just didn't think that this conclusion applied to that Maryland case. Conversely, I think that the Ninth Circuit correctly applied this conclusion in its recent opinion in United States v. Anchrum, 2009 WL 5125788 (9th Cir. 2009), even though it claimed otherwise.
In Anchrum, Michael Anchrum was convicted of one count of possession of controlled substances with intent to distribute, two counts of assault on federal officers with a deadly or dangerous weapon, and one count of possession of firearms in furtherance of drug trafficking. The prosecution procured these convictions in part through the testimony of DEA Special Agent Kenneth Solek, who testified regarding the circumstances of Anchrum's arrest, including the following exchange:
Q: And also we had the presence of two guns in this car, and you had mentioned - or had testified earlier that one was on the floorboard and one was underneath the seat and they were both loaded. What's the significance of that to you in your experience.A: Well if-if you're driving around with a loaded weapon and you have narcotics in your car, then again, we're going back to what are you using the weapon for, why is it there. It's got to be there for a purpose. You're either going to use it, number 1, if you get stopped, to try to get away, which would be bad for us, for law enforcement. Number two, you're going to do a drug deal and you're worried that the person that you're giving your drugs to is going to rip you off, to try to steal your drugs instead of paying you money. Or, number 3, you do a successful drug deal and you're worried that somebody else that knows that you went over there and you just made $5,000 is going to come up and try to take your $5,000. So you have it for your protection, or you have it to-to get away with again. You know, the number 1-the bad reason.
After he was convicted, Anchrum appealed, claiming, inter alia, that Agent Solek's testimony crossed the Rule 704(b) line because the above question, "which referenced 'this car,' called for an opinion as to his particular mental state." The Ninth Circuit disagreed, noting that this question "ended with the call 'What's the significance of that to you in your experience?'" According to the court, this question thus did "not call for any discussion of Anchrum's mental state, but rather [called for] a discussion of the modus operandi of the drug dealers that Agent Solek had encountered 'in his experience.'" In other words, "Agent Solek 'offered no opinion as to whether [Anchrum] possessed the requisite criminal intent' to possess firearms, 'but instead described a common practice of those who do have such intent.'"
I disagree. It seems to me that the prosecutor's question was asking Agent Solek to rely on his past experience to conclude what mental state the driver of "this car" had in this particular case. And indeed, it seems clear to me that if Agent Solek had said, "Based upon my experience, the driver of this car was engaged in drug trafficking," the Ninth Circuit would have found that the testimony violated Federal Rule of Evidence 704(b).
Fortunately for the prosecution, however, whatever we might say about the propriety of the prosecutor's question, it seems equally clear that Agent Solek's testimony did not cross the Rule 704(b) line. Agent Solek never referenced "this car" or "this case." Indeed, he didn't even testify that the facts of the case before him were consistent with one particular state of mind. Instead, he merely said that the facts of the case before him could be consistent with three different types of behavior, making it clear that his testimony did not violate Federal Rule of Evidence 704(b).
January 14, 2010
As I Lay Dying: Court Of Appeals Of Michigan Finds Dying Declarant Had Personal Knowledge Based Upon Details Of Shooting
In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death
In Holbrook, Cameron Holbrook was convicted of first-degree murder and possession of a firearm during the commission of a felony based upon the shooting death of Gary Nelson, Jr. The Court of Appeals of Michigan in Holbrook did not provide many details about the shooting in its opinion, but it did note that, while he was dying based upon seven gunshot wounds, Nelson told police that his shooter was "Kimmy" -- Holbrook's nickname -- who was in a green Cadillac with another black man.
The prosecution introduced this statement at trial as a dying declaration, and, after he was convicted, Holbrook appealed, claiming, inter alia, "that the declarant of a dying declaration under MRE 804(b)(2) must also meet the personal knowledge requirement of MRE 602." The Court of Appeals of Michigan agreed with Holbrook on this point but disagreed with his argument that the prosecution failed to establish Nelson's personal knowledge of his shooter. According to the court,
Nelson was shot seven times. Most of the entry wounds were located in the front of his body. This would support an inference that Nelson was facing his attacker and had an opportunity to observe him. In addition, Nelson was also shot in his right hand, which is indicative of a defensive posture. A reasonable inference is that Nelson saw his attacker during the shooting and raised his hand to ward off the attacker. Furthermore, there existed additional evidence that Nelson's statement was not a mere opinion. Nelson was very specific regarding the details of his shooter. He told the police that the shooter was “Kimmy,” who was in a green Cadillac with another black man. The fact that Nelson was able to speak in such specific terms regarding the vehicle used and how many others were with defendant that night supports an inference that Nelson's statements were based on his personal knowledge and direct observation. Consequently, the necessity of meeting any requirements mandated by MRE 602 are satisfied since there was sufficient evidence to support a finding that Nelson had personal knowledge of his shooter. Therefore, the trial court did not err in admitting the statement.
January 13, 2010
Don't You Be Intimidated: Supreme Court Of New Hampshire Fails To Find Witness Intimidation Is Per Se A Crime Of Dishonesty Or False Statement Under Rule 609(a)(2)
For the purpose of attacking the character for truthfulness of a witness...evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
A defendant is charged with four counts of the sale of a narcotic drug. Those drugs were sold to an individual cooperating with the government who later testified against the defendant at trial. The defendant thereafter sought to impeach the cooperating witness with evidence of his prior conviction for witness intimidation. Should the trial court have admitted this impeachment evidence under New Hampshire Rule of Evidence 609(a)(2)? That was the question faced by the Supreme Court of New Hampshire in its recent opinion in State v. Brown, 2009 WL 5150345 (N.H. 2009).
The facts in Brown were as listed above. The evidence of the cooperating individual's witness intimidation conviction was
a computer printout dated March 10, 2008, the day before the defendant's trial began....The document show[ed] that the convictions occurred in Massachusetts and lists various convictions, including witness intimidation. It d[id] not provide any information that identifie[d] the precise Massachusetts law that was violated, nor d[id] it give any information whatsoever about the elements of the crime or the criminal conduct that the cooperating individual committed.
The trial court precluded the defendant from using this evidence to impeach the cooperating individual, and the Supreme Court of New Hampshire later agreed,
conclud[ing] that the document's generic reference to witness intimidation was insufficient for it to be "readily...determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness" as required under Rule 609(a)(2).
I disagree. Courts have found that certain crimes, such as subornation of perjury and larceny by trick, are per se crimes of dishonesty or false statement for Rule 609(a)(2) purposes. In State v. Delker, 666 P.2d 896, 898 (Wash.App. 1983), the Court of Appeals of Washington, Division 1, persuasively argued that witness intimidation falls into this category as well, concluding that
The gravamen of the offense of intimidating a witness is illegally attempting to change the testimony of that witness or prevent the witness from testifying at all. Thus, intimidation of a witness is very similar to subornation of perjury. It involves a direct interference with the court's fact-finding process and clearly involves dishonesty and false statement since the apparent purpose of intimidating a witness would be to cause false testimony or deny the court the benefit of the testimony altogether. A conviction for intimidating a witness bears directly upon the propensity of that defendant to testify truthfully.
I see the Supreme Court of New Hampshire's point that the defendant in Brown provided no information concerning the cooperating individual's conviction beyond the fact that it was a conviction for witness intimidation. At the same time, it seems clear to me that the New Hampshire Supremes could have inferred that this conviction must have involved the cooperating individual intimidating some prospective witness to prevent that witness from testifying at trial. And if the New Hampshire Supremes could have made that inference, I think that they should have found that this was a crime of dishonesty or false statement under New Hampshire Rule of Evidence 609(a)(2) pursuant to the reasoning in Delker.
(For what it's worth, I would guess that the cooperating individual was convicted under Massachusetts G.L. c.268, Section 13B, which provides that:
(1) Whoever, directly or indirectly, willfully
(a) threatens, or attempts or causes physical injury, emotional injury, economic injury or property damage to;
(b) conveys a gift, offer or promise of anything of value to; or
(c) misleads, intimidates or harasses another person who is:
(i) a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type;
(ii) a person who is or was aware of information, records, documents or objects that relate to a violation of a criminal statute, or a violation of conditions of probation, parole or bail;
(iii) a judge, juror, grand juror, prosecutor, police officer, federal agent, investigator, defense attorney, clerk, court officer, probation officer or parole officer;
(iv) a person who is or was furthering a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type; or
(v) a person who is or was attending or had made known his intention to attend a grand jury proceeding, trial or other criminal proceeding of any type with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby with a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type shall be punished by imprisonment for not more than 21/2 years in a jail or house of correction or not more than 10 years in a state prison, or by a fine of not less than $1,000 nor more than $5,000.)
January 12, 2010
Chicken Little Or Canary In The Coal Mine?, Take 4: Supreme Court Hears Oral Argument In Briscoe v. Virginia
Here is the transcript of yesterday's oral argument in Briscoe v. Virginia, the potentially landmark Confrontation Clause case that I have previously blogged about (here). I am in the process of finishing my exam grading for the fall semester, so I don't have time to address the oral argument now in much detail, but I should have some posts on the oral argument next week.
Is It Your Recollection?: Court Of Appeals Of Texas Allows Officer To Establish Accuracy Of Recorded Recollection
A memorandum or record concerning a matter about which a witness once had personal 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, unless the circumstances of preparation cast doubt on the document's trustworthiness. 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.
Rule 803(5) is a Rule 803 hearsay exception, meaning that such a "recorded recollection" can be admitted regardless of whether the declarant is available to testify at trial. When the declarant is available to testify at trial, he can establish that the recorded recollection reflected his knowledge correctly by providing testimony to that effect. But if the declarant is "unavailable" at trial, how can the proponent of a recorded recollection establish such accuracy? That was the question faced by the Court of Appeals of Texas, Waco, in its recent opinion in In re. J.W., 2009 WL 5155784 (Tex.App.-Waco 2009).
In J.W., an adjudication petition alleged that J.W., a juvenile,
committed criminal mischief ($1,500 or more but less than $20,000) by scratching K.H.'s car. The trial judge found that J.W. engaged in delinquent conduct by committing a lesser offense of criminal mischief ($500 or more but less than $1,500) and ordered J.W. to pay restitution.
K.H. reported the scratching of her car to Officer David Hoschar, who learned that G.A. was with J.W. on the night in question, and G.A. gave Hoschar the following statement:
On November 5th, 2007, while attending a basketball game, me and [J.W.] were walking out of the game and [K.H.] was walking in and me and [J.W.] walked a little bit further and J.W. started running towards the right in the back parking lot and I sat there waiting for my dad to get there and then like two minutes later [J.W.] started running back and I asked her why she was running and she said that she keyed her ([K.H.'s]) car and then we left.
The problem for the State was that when it called G.A. at trial,
She testified that she had recently been in an auto accident, had suffered a head injury, and had lost some memory. She did not remember the events of November 25, 2007. G.A. was shown the witness statement; she said that she did not recognize the document but did recognize her signature. She then read the statement to herself and said she did not remember the events described in it because of her memory loss. On voir dire, G.A. stated that she did not remember where she was when she signed it or signing the document.
Thus, while G.A. had the requisite "insufficient recollection" of the incident for her statement to be admitted as an recorded recollection under Texas Rule of Evidence 803(5), she also lacked the memory sufficient to be able to vouch for the accuracy of the statement required under the Rule. In other words, she was "unavailable" under Texas Rule of Evidence 804(a)(3) because she testified to a lack of memory concerning the making of the statement.
So, why did the Court of Appeals find that the State had established the accuracy of the statement? Well, the court noted that the State "relie[d] on Officer Hoschar's unobjected-to hearsay testimony that G.A. told him that her statement was true at the time she wrote it." According to the court,
Ideally, this evidence would come from the declarant, but under the circumstances of this case, we cannot say that the trial court abused its discretion in admitting the statement based on Officer Hoschar's unobjected-to hearsay testimony that G.A. told him that her statement was true.
January 11, 2010
Submission Guide for Online Law Review Supplements, Version 3.0 (1/11/2010), Now Available On SSRN
Today, I posted my Submission Guide for Online Law Review Supplements, Version 3.0 (1/11/2010) on SSRN. Version 3.0 has entries for two new journals: (1) Arguendo, the online supplement to The George Washington Law Review, and MISSing Sources, the online supplement to the Mississippi Law Journal. A few years ago, there were only a few of these supplements, and it was uncertain how much of an impact that they would have on legal scholarship. Now, however, by my count, 14 of the top 28 schools in the U.S. News law school rankings have online law review supplements.
January 10, 2010
Better Evidence Or Best Evidence?: Supreme Court Of Rhode Island Engages In Detailed Analysis Of Best Evidence Rule
Like its federal counterpart, Rhode Island Rule of Evidence 1002, its 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 or by statute.
However, also like its federal counterpart, Rhode Island Rule of Evidence 1003 provides that:
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
So, under what circumstances would it be unfair to admit a duplicate in lieu of the original? And what is the proponent to do if he is trying to introduce a duplicate under such circumstances? The answer can be found in the recent opinion of the Supreme Court of Rhode Island in State v. Grullon, 2009 WL 4722264 (R.I. 2009).
In Grullon, William Grullon appealed from his convictions for two counts of possession with intent to distribute cocaine and one conviction of conspiracy to violate Rhode Island's Uniform Controlled Substances Act. The evidence presented at trial established, inter alia, the following:
On February 18, 2005, Kevin Murray, a painting contractor and recovering drug addict, contacted the New Shoreham Police Department to discuss the flow of cocaine on Block Island. Murray met with Police Chief Vincent Carlone and Corporal Paul Deane to arrange a controlled purchase of cocaine from John Grullon, a Block Island resident who Murray had known for several years. The police supplied Murray with a $100 bill to purchase the cocaine. At a meeting at John's condominium, John agreed to sell Murray a small amount of cocaine for $60, which John retrieved from the hemline of a curtain covering a sliding glass door. Murray paid John with the $100 bill and received $40 in change plus a bag of cocaine.
[u]nder this exception, courts consistently find that a duplicate is inadmissible when the proponent offers a duplicate that fails to reproduce important or critical parts of an original, and the opponent establishes that the remainder is needed for some purpose such as cross-examination. Colin Miler,
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--
(1) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original Not Obtainable. No original can be obtained by any available judicial process or procedure; or
(3) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, the party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and the party does not produce the original at the hearing; or
(4) Collateral Matters. The writing, recording, or photograph is not closely related to a controlling issue.
It may be that the original $100 bill Murray used to purchase cocaine from John on February 18, 2005, was not obtainable either because it remained in John's possession, or it may be that the bill was in general circulation and not obtainable by any judicial process.