EvidenceProf Blog

I Need A Remedy: Middle District Of Georgia Finds Subjective Intent Not Dispositive In Subsequent Remedial Measures Analysis

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

The main ground for excluding evidence of subsequent remedial measures "rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety."  So, let's say that a company's product allegedly causes an injury. And let's say that after the injury, the company stops selling the product and begins selling a similar product that is safer. But let's say that the company's motivation for selling the new product rather than the old product has nothing to do with safety concerns. Is evidence of the change inadmissible even in the absence of a specific intent by the defendant to make a subsequent remedial measure? According to the United States District Court for the Middle District of Georgia in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 2010 WL 2015146 (M.D.Ga. 2010), the answer is "yes."

Unfortunately, the court did not provide many facts in its ObTape opinion. Basically, though, it seems like the plaintiffs were injured while using an ObTape Vaginal Sling intended to treat Stress Urinary Incontinence (This site explains the possible basis for the lawsuit). The plaintiffs sought to present evidence that, after her injury, the defendant withdrew ObTape from the market and began marketing Aris, a new suburethral sling product. According to the plaintiffs, this was not a subsequent remedial measure under Federal Rule of Evidence 407 because the defendant did not make the product change based upon concerns about safety. In other words, the crux of the plaintiffs' argument was that "it must be established that the defendant took the subsequent remedial measure for the specific purpose of remediating a problem."

The court disagreed, finding

that subjective intent or motive in taking a remedial measure is not a dispositive prerequisite for exclusion under Rule 407. Therefore, if the decision to stop selling ObTape subsequent to the injuries suffered by the Plaintiffs would have made the harm suffered by the Plaintiffs less likely had the product not been sold prior to their injuries, then the discontinuation of ObTape sales is not admissible "to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction."

-CM

Grave Secrets: Bones Episode Begs Question: Can The Alleged Victim Of A Crime Testify As An Expert Witness?

I am a fan of the TV show "Bones." Back in 2008, I did a post about a real case in which Kathy Reichs, the forensic anthropologist who wrote the books which served as the inspiration for the TV show, testified as an expert witness and was subjected to scathing comments from the prosecutor. Well, I finally caught up to last week's episode of "Bones," and it dealt with an interesting evidentiary question: Can the alleged victim of a crime testify as an expert witness at the trial of the defendant for committing that crime? According to the show, the answer is "no." In courts across the United States, however, the answer is "yes."

In last week's episode, "The Boy with the Answer," infamous "Bones" villain The Gravedigger was finally facing trial based upon allegedly burying alive a young boy, FBI Special Agent Seeley Booth, Dr. Jack Hodgins, and Dr. Temperance "Bones" Brennan. The problem was that Brennan and Hodgins were the only experts qualified to offer expert testimony which could have incriminated the defendant in the crime, and the show explained that the alleged victim of a crime could not testify as an expert witness at the trial of the defendant for committing that crime. The show also explained that this created a problem with regard to Booth, who for some reason also had to provide expert testimony.

So, what could the trio do? Well, they had prosecutor Caroline Julian drop the charges against the Gravedigger for the acts committed against them so that the Gravedigger was only charged with burying the boy alive. Thus, they were allowed to testify at that trial, resulting in the Gravedigger's conviction.

In a real court of law, however, they wouldn't have needed to make that decision. Instead, courts across the country have reached the same conclusion as the Court of Appeals of Louisiana in State v. Searcy, 621 So.2s 83 (La.App. 2 Cir. 1993). In Searcy, Danny Searcy was charged with felony theft, and John North, a building contractor and the alleged victim of the theft, testified as an expert witness with regard to the value of the lumber allegedly stolen by Searcy. After he was convicted, Searcy appealed, claiming, inter alia, that as the alleged victim of the crime, North could not testify as an expert witness. The court disagreed, finding that

The defendant does not complain that North lacked sufficient qualifications to testify as an expert. Instead, he asserts that North's testimony about value was improper because North was not an impartial and unbiased witness. Defendant cites, and we have found, no statutory or jurisprudential authority to support a per se prohibition against the testimony of a crime victim as an expert in the trial of the crime in which he was victimized.

-CM

You Have My Letter: Supreme Court Of Indiana Finds Letter Written To Victim Improperly Admitted Against Defendant Under Rule 410

Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that

Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer.

So, is a letter of apology written by the defendant to the victim inadmissible under this Rule? According to the recent opinion of the Supreme Court of Indiana in Gonzalez v. State, 2010 WL 1988134 (Ind. 2010), the answer is "yes" if the letter was written as part of the plea bargaining process.

In Gonzalez,

A truck driven by Gabino Gonzalez failed to yield at an intersection and struck a school bus operated by Evansville-Vanderburgh School Corporation ("EVSC")....Gonzalez was charged with criminal mischief, operating a vehicle while intoxicated, operating a vehicle with a blood alcohol content of 0.15 or more, and operating a vehicle while intoxicated endangering a person.

Gonzalez agreed to plead guilty to criminal mischief and operating a vehicle while intoxicated endangering a person. The trial court took the plea agreement under advisement and postponed the sentencing hearing to permit EVSC to consider whether to object to the agreement. Two weeks before the hearing, Gonzalez sent a letter to EVSC expressing his regret to all who were "involved in the terrible accident I caused," apologizing for his "irresponsible actions" and "poor decision to drink that day," and asking EVSC to show compassion to him and his family. He promised to seek alcohol counseling and asked EVSC to consider that "no one was hurt in the accident."

The court rejected the plea and the case went to trial where Gonzalez's letter was admitted over his objection. After the court dismissed the charge of operating a vehicle with a blood alcohol content of 0.15 or more, the jury found Gonzalez guilty of the remaining charges.

After Gonzalez was convicted, he appealed, claiming that his letter was inadmissible under Indiana Rule of Evidence 410, and the Court of Appeals of Indiana agreed and reversed, prompting the state's appeal to the Supreme Court of Indiana. The Supreme Court of Indiana agreed with the Court of Appeals that the letter should have been deemed inadmissible because, under Indiana law, a proposed "plea agreement must...be shown to the victim, who has a right to comment on the crime and the proposed sentence;" moreover, "[i]n the course of this process, the defendant may make statements to the victim...." Therefore, according to the Indiana Supremes, "[t]hese statements are within the language of...Evidence Rule 410 ("in connection with" a plea agreement)."  

In reaching this conclusion, the court clarified exactly when Indiana Rule of Evidence 410 applies:

Accordingly, we hold that for a statement to be a privileged communication, the defendant must have been charged with a crime at the time of the statement and the prosecutor and the defendant must have initiated discussions related to a plea agreement. Second, the statement must have been made with the intent of seeking a plea agreement or in contemplation of a proposed agreement. Third, the statement is privileged if made to someone who has the authority to enter into or approve a binding plea agreement or who has a right to object to or reject the agreement.

(The court, however, deemed the admission of the letter to be harmless error and affirmed Gonzalez's conviction).

-CM

We The Jury: Court Of Appeals Of Texas Finds Allegations Of Derogatory Intimidation Insufficient To Allow Jury Impeachment

Somewhat similar to its federal counterpart, Texas Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

In other words, jurors cannot impeach verdicts based upon allegations of threatened or actual physical violence or intimidation by other jurors (except in Minnesota). So, does this rule make sense? Well let's look at the recent opinion of the Court of Appeals of Texas, Tyler, in Lee v. State, 2010 WL 1899675 (Tex.App.-Tyler 2010).

In Lee, Darrell Lee was convicted of indecency with a child by contact. Lee thereafter appealed, claiming, inter alia, that he was entitled to a new trial hearing based upon evidence of juror misconduct.

In support of his motion, [Lee] attached the affidavit of juror Betty Hicks. In her affidavit, Juror Hicks stated that she believed [Lee] was not guilty and disbelieved the testimony of the alleged victim in the case. She stated further that "once my opinion was expressed in the jury room other jurors began to intimidate me in a derogatory fashion until I agreed to vote in favor of guilt." She then stated that she would have voted not guilty but for the misconduct of the other jurors.

The Court of Appeals disagreed, finding that Hicks' affidavit was inadmissible under Texas Rule of Evidence 606(b) because it merely alleged that there was an improper insider (intrajury) influence, not an improper outside influence. As support for its conclusion, the court cited to two previous opinions. In Thomas v. State, 84 S.W.3d 370 (Tex.App.-Beaumont 2002), a court did not allow a juror to impeach a verdict through allegations that she was involuntarily "pulled up" in her chair by the jury foreman, who also refused to submit her question to the court. And in Hart v. State, 115 S.W.3d 117 (Tex,App.-Texarkana 2000), a court refused to allow a juror to impeach a verdict through allegations that he wanted to change his "guilty" vote to "not guilty" but was repeatedly told by the other jurors that they would not allow him to do so.

So, do these rulings make sense? Should we uphold verdicts when other jurors refuse to allow a juror to change his vote? When the foreperson refused to allow another juror to submit a question to the court (or when the foreperson blocks another person from leaving the jury room)? When the foreperson engages in violence against another juror? When jurors intimidate another juror into changing her vote? I understand that courts want to protect the privacy of jurors and the sanctity of deliberations, but does the anti-jury impeachment rule go too far?

-CM

Benefit Of The Bargain: New Jersey Appellate Court Finds Improper Admission Of Plea Bargaining Statements Was Not Harmless Error

Like its federal counterpart, New Jersey Rule of Evidence 410 provides that

Except as otherwise provided in this rule, evidence of a plea of guilty which was later withdrawn, of any statement made in the course of that plea proceeding, and of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn, is not admissible in any civil or criminal proceeding against the person who made the plea or statement or who was the subject of the plea negotiations. However, such a statement is admissible (1) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should in fairness be considered contemporaneously with it, or (2) in a criminal proceeding for perjury, false statement, or other similar offense, if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

And, as the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Brabham, 2010 WL 1929560 (N.J.Super.A.D. 2010), makes clear, if a defendant's confessions made during plea discussions are admitted in violation of this Rule, it is going to be difficult for the court to find harmless error.

In Brabham, a jury found Orion T. Brabham guilty of second-degree burglary and fourth-degree theft. Those crimes were committed at the home of Catherine Zahos, and the prosecution had a good deal of incriminatory evidence against Brabham. For example, a gold medallion identified by Zahos as hers was recovered during a search of Brabham's home conducted by his parole officer in New York. Moreover,

New Jersey law enforcement officers, who testified at trial, repeated what they recalled about statements defendant made during two meetings. In April 2006, defendant told the officers that they had done their job by finding the person that did this, meaning himself. In May, defendant told the officers that he got the idea to use the back door from a television show, described the odor of smoke in the home of an old lady, "laugh[ed] about the fact that [she] kept getting up and coming back after him," and spoke of an encounter in a driveway with a woman accompanied by a large dog that caused him to abandon his plan to burglarize a home in her neighborhood.

The problem for the prosecution was that these confessions came during what were pretty clearly plea discussions at which the assistant prosecutor was present. On Brabham's appeal, the Superior Court of New Jersey, Appellate Division was thus easily able to find that Brabham's confessions were improperly admitted based upon New Jersey Rule of Evidence 410, but it still had to determine whether their admission was harmless error.

According to the court, their admission was not harmless error. Instead, it concluded that

While we have no doubt that the admissible evidence is adequate to permit a conviction, it is not sufficiently overwhelming to eliminate all reasonable doubt about whether the verdict would have been different if the statements were excluded....The statements at issue provided additional and persuasive evidence of guilt. The likely impact on jurors who heard the officers repeat defendant's recitation of facts disclosing his familiarity with the Zahos home and the victim's response to her attacker is too apparent to require elaboration. Accordingly, we conclude that defendant's conviction must be reversed and the case must be remanded for a new trial.

-CM

Tender Mercies: Why Evidence of Ununsual Maturity Shouldn't Be Enough To Rebut Preumption That Children Under 12 Are Of Tender Years

Like the vast majority of states, Mississippi has a "tender years" exception to the rule against hearsay. Specifically, Mississippi Rule of Evidence 803(25) provides an exception to the rule against hearsay for

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

In its recent opinion in McCrory v. State, 2010 WL 1855853 (Miss.App. 2010), the Court of Appeals of Mississippi noted that "[t]here is a rebuttable presumption that a child under the age of twelve is of tender years." So, when can this presumption be rebutted? As far as I can tell, no Mississippi court has conclusively answered that question, but I don't like what at least one Mississippi court has intimated.

Hayes v. State, 803 So.2d 473 (Miss.App. 2001), actually involved a thirteen year-old victim, L.G. L.G. was allegedly statutorily raped by Hayes and told an officer about the alleged act. The prosecution used this statement to prosecute Hayes. Hayes thereafter appealed, claiming, inter alia, that L.G. was not a child of tender years, meaning that her statement to the officer was not admissible under Mississippi Rule of Evidence 803(25).

Because L.G. was not under the age of twelve, there was no rebuttable presumption that L.G. was of tender years, but the trial court was still free to reach this conclusion, and the Court of Appeals of Mississippi could only have reversed for abuse of discretion.

Hayes argue[d] that L.G.'s testimony concerning her responsibilities at home and school showed she was mentally mature; thus, she did not fit into this tender years exception. With L.G.'s testimony, the attorneys asked questions that were intended to enlighten the court as to L.G.'s mental maturity. L.G. affirmed she knew the difference between a truth and a lie, that she helped both her grandmother and great grandmother with household chores (she lived with each at different times), and that she cares for her one year old sister and babysits her often. L.G. also was questioned concerning her school habits and the time she leaves and arrives home from school, and she was embarrassed when asked about physical parts of the body and when she was questioned concerning the incident at issue.

The Court of Appeals acknowledged these arguments but ultimately affirmed, concluding that

Those present when L.G. testified were able to evaluate her demeanor and behavior. We are not so fortunate to have been present; this is why our Court is allowed to reverse a trial judge only if we find he abused his discretion in such a situation where an evaluation of witness's demeanor is essential. On paper, those facts brought out on L.G.'s testimony seem reflective of things a mature adolescent would say. Reading the transcript further, though, the district attorney commented that from L.G.'s physical demeanor, "it appeared rather obvious that this is a child of tender years" and "I believe that her testimony, in toto, and her demeanor, in toto, before this Court demonstrate that she is an immature person. She may be mature appropriately for her age, but she is not as mature as an adult. She is certainly a child. She certainly comes across as a child, and is immature in the sense of being child of tender years." The judge agreed. Since we are not the triers of fact, we must note that Hayes has presented us with no evidence that the judge abused his discretion and we will not reverse without such evidence.

In other words, Mississippi courts look at the mental and emotional maturity of a child in determining whether she is of tender years. The implication would thus seem to be that the rebuttable presumption that a child under the age of twelve is of tender years can be rebutted by evidence that the child is mentally or emotionally mature beyond her years. So, does this make sense? I don't think so. Let's look at the reasons that states have tender years exceptions. According to Lynn McLain in Children are Losing Maryland's "Tender Years" War, 27 U. Balt. L. Rev. 21, 25 (1997), states have tender years exceptions for six reasons

(1) child abuse-- physical, sexual, and emotional--is a serious, widespread problem in the United States; (2) young children are particularly helpless, and they are unable to extricate themselves from seriously abusive homes or other environments without adult assistance; (3) effective remedial action cannot be taken without identifying the abuser, who is usually known only to the child and, sometimes, to someone who colludes with or covers up for the abuser; (4) for reasons explained by developmental psychology, very young children are often ruled incompetent to testify at trial, although they may have made reliable, concrete out-of-court statements at an earlier time; (5) even if permitted to testify at trial, young children are unlikely to be able to testify to an earlier event with the degree of memory that an adult could, and they are easily confused by a deft cross-examination; and (6) pre-existing, "firmly rooted" hearsay exceptions have been inadequate to permit the admission of all reliable out-of-court statements made by children.

So, do any of these reasons explain why Mississippi's tender years exception should not apply to the mentally and emotionally mature nine, ten, or eleven year-old? Even if a child is mature, a sexual act against her is still clearly child abuse, meaning that the first reason doesn't provide an explanation. I'm not sure that all of the maturity in the world is going to help a kid of these ages to be able to extricate herself from an abusive environment without adult assistance, meaning that the second reason doesn't provide an explanation. The third reason doesn't provide an explanation either because the abuser is still likely only known by the abuser and possibly a confidante. The fourth reason could provide an explanation in states whose tender years exceptions require that the child be unavailable to testify at trial. The language of Mississippi Rule of Evidence 803(25), however, makes clear that it applies even if the child testifies at trial, meaning that this reason doesn't provide an explanation. 

The fifth reason provides the only possible explanation. Perhaps an especially mature nine, ten, or eleven year-old could testify more effectively than her average counterpart, marginally decreasing the necessity of applying the tender years exception. But do we really think that even the most mature child of this age will be able to provide compelling enough testimony that the exception is not needed? I certainly don't think so. Moreover, this reason doesn't apply when the child does not testify at trial, a situation that is still covered by the language of Mississippi Rule of Evidence 803(25). Finally, the sixth reason doesn't provide an explanation either because if the state is relying upon the tender years exception, it means that no other hearsay exception applied.

Now, as I said before, as far as I am aware, no Mississippi court has found the rebuttable presumption rebutted, and I am not sure that a court would focus upon mental and emotional maturity in reaching such a conclusion. That said, Mississippi courts clearly have indicated that the presumption is rebuttable, and they have certainly intimated that evidence of unusual maturity is highly relevant to tender years determinations. Based upon the above analysis, I hope that the Mississippi presumption is rebuttable in name only or at least that a Mississippi court does not eventually find the presumption rebutted based upon an unusually mature nine, ten, or eleven year-old who is allegedly the victim of sexual abuse.

-CM

Just The Facts: Supreme Court Of North Dakota Finds NDRCP 56(e) Trumps NDRE 705 In Uninsured Motorist Appeal

Like its federal counterpart, North Dakota Rule of Evidence 705 provides that

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Also, like its federal counterpart, North Dakota Rule of Civil Procedure 56(e) provides in relevant part that, with regard to motions for summary judgment,

Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit must be attached thereto or served therewith.

So, do affidavits containing expert opinions submitted in connection with motions for summary judgment need to set forth specific facts showing there is a genuine issue for trial? In its recent opinion in Perius v. Nodak Mut. Ins. Co., 2010 WL 1875738 (N.D. 2010), the Supreme Court of North Dakota, like many courts before it, answered this question in the affirmative.

In Perius, Allen Perius appealed from a summary judgment dismissing his action against his motor vehicle insurer, Nodak Mutual Insurance Company, for no-fault benefits and for uninsured motorist coverage. Nodak had moved for summary judgment on the ground that Perius failed to sufficiently allege that he suffered any injuries from the car accident giving rise to his action. According to Nodak, the evidence clearly established that Perius was merely treated after the accident for an existing degenerative arthritis, with no competent, admissible evidence establishing that his claimed injuries were proximately caused by the motor vehicle accident.

Perius had

submitted affidavits of two of his treating medical providers, Dr. Michael Quast and Dr. Kelly Remillard. Dr. Quast's affidavit said Perius "is continuing to have persistent pain and I believe it is a result of traumatic arthritis from the injury" sustained in the motor vehicle accident. Dr. Quast's affidavit further stated, "To a reasonable degree of medical certainty, I believe the medical treatment I have provided Allen Perius and associated medical expenses are reasonable, necessary and related to the October 8, 2004 motor vehicle accident." Dr. Remillard's affidavit said, "To a reasonable degree of medical certainty, I believe the medical/chiropractic treatment I have provided Allen Perius and associated medical/chiropractic expenses are reasonable, necessary and related to the October 8, 2004 motor vehicle accident." Nodak responded that the affidavits of Dr. Quast and Dr. Remillard were conclusory and did not provide competent, admissible evidence of causation and that those affidavits should be excluded because they did not comply with applicable discovery rules.

The trial court agreed with Nodak and granted its motion for summary judgment, prompting Perius' appeal, which eventually reached the Supreme Court of North Dakota. The North Dakota Supremes noted the tension between Rule 705 and Rule 56(e) but noted that "[f]ederal courts have decided that although F.R.Ev. 705 permits experts to testify by opinion without disclosing underlying facts or data, affidavits containing expert opinions, like other materials submitted in opposition to a supported motion for summary judgment, must comply with F.R.Civ.P. 56(e) and set forth specific facts showing there is a genuine issue for trial."  

The court then noted that state courts across the country had reached the same conclusion and joined the chorus. That said, the court still reversed, finding that

Dr. Quast's affidavit stated that Perius continued to have persistent pain and that he believed Perius's pain was a result of traumatic arthritis from an injury in the October 2004 motor vehicle accident. Dr. Quast opined to a reasonable degree of medical certainty that the medical treatment he had provided Perius and the associated medical expenses were reasonable, necessary and related to the October 2004 motor vehicle accident. Dr. Quast's affidavit reflects his opinions were based on Perius's reports, on an MRI and on his treatment of Perius. These are the types of facts and sources of information reasonably relied upon by medical doctors when forming opinions about a patient's medical condition....

Dr. Quast's affidavit inferentially reflects personal knowledge as Perius's medical provider, sets forth admissible opinions on an ultimate issue to be decided by the trier of fact, and establishes that he was competent to render an opinion about his patient's condition....Although Dr. Quast's affidavit was minimal, we conclude the affidavit sets forth sufficient facts from a medical provider to raise a factual issue about whether the 2004 motor vehicle accident proximately caused Perius's claimed injuries and damages.

-CM