May 29, 2010
Jurors Behaving Badly: Eastern District Of California Precludes Jury Impeachment Regarding Intrajury Threats Of Violence
Just last week, I posted an entry about a recent opinion out of Texas in which an appellate court refused to allow a juror to impeach her verdict based upon allegations of derogatory intimidation by other jurors until she changed her vote. The basis for the court's refusal was Texas' counterpart to Federal Rule of Evidence 606(b), which 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 course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying .
The recent opinion of the United States District Court for the Eastern District of California in Dickson v. Subia, 2010 WL 1992580 (E.D. Cal. 2010), in which a juror was allegedly subjected to both verbal harassment and physical threats, was resolved on similar grounds.
In Subia, Bradford Dickson was convicted of fifteen sex offenses, including lewd and lascivious conduct on a child, oral copulation on a child, and unlawful sexual intercourse with a child. Dickson later filed a habeas petition with the Supreme Court of California, claiming, inter alia,
that his right to due process was violated by jury misconduct, which involved the "harassing and intimidation of a single jury member who expressed opposing viewpoints than others....”" Specifically, petitioner assert[ed] that juror Oluwasola Ifasade wanted to vote "not guilty," but was subjected to verbal harassment by the other jurors during deliberations until she changed her vote....Petitioner assert[ed] that Ifasade was also "physically threatened by another juror putting his hands in her face and yelling at her in an attempt to persuade her to change her vote, which ultimately she did against her better judgment."...In support of his contention, petitioner provide[d] declarations from Ifasade, as well as a private investigator who interviewed Ifasade and several other jurors in August 2006, two years after petitioner's conviction.
After the court rejected this petition, Dickson then filed a federal habeas petition with the United States District Court for the Eastern District of California which agreed with the California Supremes. According to the court,
Federal Rule of Evidence 606(b) prohibits jurors from testifying as to matters or statements occurring during the course of jury deliberations, as well as the effect of such matters or statements on any juror's mental processes or emotions in reaching a verdict....This provision also provides that "a juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying."...
Accordingly, absent an allegation by petitioner that extraneous prejudicial information invaded the jury room, this Court may not review the jury's deliberative process by considering statements made by Ifasade or any of the other jurors to impeach the verdict....The declarations provided by petitioner concern matters or statements which occurred during the course of jury deliberations, as well as the effect of such matters or statements on the jurors' mental processes or emotions in reaching a verdict....This Court may not consider the jurors' statements, years after petitioner's conviction, to impeach the verdict.
As I noted in my prior post, I understand that Federal Rule of Evidence 606(b) is designed to protect the privacy of jurors and the sanctity of deliberations? But do we want protect juror privacy when there are allegations of threatened violence, and do we want to uphold verdicts based upon such threats?
May 28, 2010
Prejudging: New Jersey Appellate Court Reverses Restraining Order Based On Trial Judge's Pror Knowledge
The judge presiding at the trial may not testify as a witness in that trial. No objection need be made to preserve the point.
As I noted in a recent post,
Normally, this Rule applies when a judge makes comments at trial that are the equivalent of testimony, but as the recent opinion of the Court of Appeals of Arkansas in Kinard v. Arkansas Dept. of Human Services, 2010 WL 1904515 (Ark.App. 2010), makes clear, the Rule also applies when a judge engages in off-the-record fact gathering.
In Kinard, the judge intentionally engaged in off-the-record fact gathering. But as the recent opinion of the Superior Court of New Jersey, Appellate Division in T.J. v. G.G., 2010 2089676 (N.J. Super.A.D. 2010), makes clear, the Rule also applies to a judge who unintentionally engages in off-the-record fact gathering.
In G.G., T.J., the plaintiff, and G.G., the defendant, had
a child who [wa]s almost three years old. Plaintiff T.J. alleged in her domestic violence complaint that defendant made a terroristic threat and committed an act of harassment while plaintiff and her mother were waiting for a visitation hearing outside of a courtroom in Essex County on July 2, 2008. According to plaintiff, defendant walked up to her and said, “this is your last time in court." Plaintiff testified she felt threatened by defendant's statement because of "the way he said it" and "the tone of his voice."
The following is an excerpt of an exchange between defense counsel and the trial judge concerning the latter allegation:
[DEFENDANT'S ATTORNEY]: There's no testimony before this Court, there's nothing in this record today that said that they recommend filing a restraining order.... [W]ith all due respect to the Court, I don't know where the Court's gathered that information.
THE COURT: Because the Court was here when it happened so the Court knows. I do recall-we can get the testimony from them, when it happened out in the hallway there was a large commotion, officers were out there, and the next thing the Court was advised was that plaintiff was filing a restraining order.
[DEFENDANT'S ATTORNEY]: Anybody can do that. How many times a day do they have to go out there and calm people down? ... With all due respect to this Court, the Court really shouldn't consider things that aren't in the record or consider prior knowledge that the Court has of the case in rendering a decision....
THE COURT: I didn't hear the threat. I just knew the process in which she filed. She was in front of me.
After the trial judge entered a domestic violence final restraining order against him, G.G. appealed, claiming, inter alia, that his matter should have been heard by a judge who was not familiar with the facts of the case. The appellate court agreed, citing comment 1 to New Jersey Rule of Evidence 605, which states that "When the judge is the trier of the facts he must not permit his own personal knowledge to influence his decision in the case." Because the appellate court found that the trial judge did allow his personal knowledge to influence its decision, it reversed and remanded.
May 27, 2010
Your Expert('s) Advide: District Of Puerto Rico Finds No Expert Disclosure Problem In Bed Burning Case
Federal Rule of Civil Procedure 26(a)(2) requires the proponent of expert testimony to disclose the witness' identity, along with a written report that contains, among other things, a “complete statement of all opinions the witness will express and the basis and reasons for them." As I noted in a recent post, "the sanction for noncompliance with this...rule is typically automatic and mandatory exclusion of the expert's testimony." But what requirements apply when a party wants to present the testimony of the opposing party's expert witness at trial? That was the question addressed by the United States District Court for the District of Puerto Rico in its recent opinion in Rosa-Melendez v. Invacare Corp., 2010 WL 1801789 (D.Puerto Rico 2010).
In Rosa-Melendez, Luis Rosa Rosa was a resident at an assisted living facility. His bed at the facility was made by Invacare, and one night the bed's electrical system began to burn the bed while he was lying in it. The bed eventually burst into flames, and Rosa Rosa eventually died as result of third degree burns he suffered from the fire. His son, Victor Colon Melendez, and others thereafter brought an action against Invacare and other defendants.
The plaintiffs then complied with Federal Rule of Civil Procedure 26(a)(2) in connection with the proposed expert testimony of their witness, Milton Castro. Milton, however, died before trial, and the plaintiffs planned to have his son testify in place of his father, but this substitution ended up not working out. The plaintiffs then disclosed their intention to rely instead on the expert opinion of Mr. Glen Robinson, the expert witness retained months earlier by the defendants.
The defendants countered that the plaintiffs failed to comply with the expert disclosure requirements of Federal Rule of Civil Procedure 26(a)(2) with regard to Robinson. The United States District Court for the District of Puerto Rico disagreed, finding that
First, plaintiffs' disclosed their desire to elicit Mr. Robinson's testimony at trial, albeit after numerous extensions of time, within the deadline set by the Court following the death of their former expert....Second, any danger of the kind of unfair surprise targeted by Rule 26 is minimal because Mr. Robinson has been a disclosed expert witness in this case for months....Further limiting any danger of surprise, plaintiffs have not indicated that they intend to elicit any testimony or opinion from Mr. Robinson that he has not already disclosed in his expert witness report....Accordingly, the Court does not find that plaintiffs have violated Rule 26 in any way sufficient to merit barring their use of Mr. Robinson's testimony at trial.
May 26, 2010
Did You Notice That? Court Of Appeals Of Ohio Avoids Internet Authentication Issue Through Judicial Notice
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
So, can internet printouts be admitted without the testimony of an authenticating witness? This was a question presented to the Court of Appeals of Ohio, Twelfth District in State v. Howard, 2010 WL 2029056 (Ohio App. 12 Dist. 2010), but one which it did not need to answer based upon judicial notice.
On the evening of January 6, 2009, appellant's husband, Dexter Howard, was rushed to Atrium Medical Center...for injuries he sustained while riding his neighbor's four-wheeler. As appellant waited at the hospital, she gave a written statement describing the accident to Trooper Brandon Rhule of the Ohio State Highway Patrol. Appellant told Trooper Rhule that "my husband and I were riding the [four]wheeler * * * I attempted to turn right into the driveway. The [four]-wheeler flipped and when I got up I saw Dexter lying on the ground." When Trooper Rhule specifically asked whether appellant was operating the four-wheeler at the time of the accident, she answered "yes." Meanwhile, as Dexter lay in his hospital bed, he spoke to another officer named Sergeant Tom Bloomberg. Dexter indicated that at the time of the accident, he was seated on the back of the four-wheeler while appellant drove.
The next day, Dexter contacted Sergeant Bloomberg to tell him that he was driving the four-wheeler at the time of the accident, and that appellant "had said what she had said because * * * she was trying to protect him."
As a result of her statement to Trooper Rhule, the appellant was charged with one count of falsification, a first-degree misdemeanor. The appellant was later convicted after a trial before the judge of the Franklin Municipal Court, and the appellant thereafter appealed, claiming that the state failed to offer any admissible evidence which proved that her statement occurred within the court's venue.
Specifically, the appellant claimed
that the trial court wrongfully took judicial notice that Atrium was located in Franklin Township because its decision was based on hearsay. Appellant argue[d] that in order for the state's internet printouts to be admissible, Evid.R. 901(A)-(B)(1) required a witness to testify that the printouts were what they were purported to be.
The Court of Appeals disagreed, finding that
A court may take judicial notice of a fact not subject to reasonable dispute that is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Evid.R. 201(B)(2). A court may take judicial notice, whether requested or not. Evid.R. 201(C). Further, "[j]udicial notice may be taken at any stage of the proceeding." Evid.R. 201(F). Once judicial notice of a fact is taken, a "party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken." Evid.R. 201(E)....
Upon review, we hold that the trial court took proper judicial notice that Atrium was located in Franklin Township. This fact is not subject to reasonable dispute because it is capable of accurate and ready determination by reference to the Warren County Auditor's website, a source whose accuracy cannot be questioned given its status as an official source of government information....As a result, the location of Atrium is subject to judicial notice under Evid.R. 201(B)(2).
May 25, 2010
Getting Distribution: Eighth Circuit Finds Testimony Concerning Intent To Distribute Fine Under Rule 704(b)
Federal Rule of Evidence 704(b) provides that
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
And, as the recent opinion of the Eighth Circuit in United States v. Parish, 2010 WL 2025365 (8th Cir. 2010), makes clear, testimony that a certain amount of drugs is consistent with possession with intent to distribute does not run afoul of this rule.
St. Louis Police Officer James Daly and his partner, Officer Joe Mader, received a tip from a confidential informant that a person named "Earl" was selling and distributing narcotics in the Gate District of St. Louis and that "Earl" was known to possess firearms. The confidential informant told the officers that "Earl" drove a newer model Ford Explorer with chrome rims. While Officer Daly listened in, the confidential informant called "Earl" and arranged for "Earl" to deliver crack cocaine on January 5, 2007, at around 8:00 p.m. On January 5, Officers Daly and Mader again met with the confidential informant, who called "Earl" to confirm the sale. During that call "Earl" arranged to meet at 1015 North Grand Avenue, a location in a strip mall.
At approximately 8:00 p.m. on January 5, Officers Daly and Mader, along with Sergeant Kenneth Hornak and Officer Ron Fowlkes, went to the area near the strip mall and set up surveillance. While on surveillance, Sergeant Hornak observed a Ford Explorer matching the confidential informant's description pulling into the parking lot....Sergeant Hornak and Officer Fowlkes, both in uniform, parked their unmarked police truck behind the Explorer at an angle. Officer Fowlkes got out of the truck and approached the Ford Explorer, identifying himself as a police officer. The driver (later identified as Earl Parish) looked at Fowlkes, placed the Explorer in reverse, and accelerated backward out of the parking space, ramming the police truck and knocking Sergeant Hornak to the ground. Parish also hit an occupied Ford Taurus backing out of a parking space. Parish attempted to flee the area in the Explorer, but the Explorer had become wedged into the police truck and could not accelerate forward. While the police officers were removing Parish from the vehicle, Parish ended up on the ground and banged his head. Officer Fowlkes took custody of Parish, and Officers Daly and Mader searched Parish's vehicle. On the floorboard of the driver's side of the vehicle, they observed two plastic bags, one containing what appeared to be crack cocaine and one containing what appeared to be compressed cocaine. The officers also found a fully loaded firearm under the passenger's seat and a digital electronic scale under the front driver's side seat .
Parish was thus arrested an subsequently charged with one count of knowingly and intentionally possessing with the intent to distribute a mixture or substance containing a detectable amount of cocaine base (crack) and one count of knowingly possessing a firearm in furtherance of a drug trafficking crime. At trial, testimony indicated that 11.74 grams of cocaine base or crack cocaine was seized from Parish's car, and Detective Michael Bradley, a detective assigned to the Drug Enforcement Administration Task Force, was asked,
Based on your years of experience in narcotics law enforcement and in being involved in undercover purchases and sales of crack cocaine, and in talking about defendants and confidential informants, and based on your own individual review of [the crack cocaine], are you able to form an opinion as to whether just based on that amount,[the crack cocaine] would have been intended for distribution or personal use?
Bradley responded, "I believe it would be intended for distribution."
After he was convicted, Bradley appealed, claiming, inter alia, that this testimony was improperly admitted under Federal Rule of Evidence 704(b). The Eighth Circuit disagreed, noting that "'[t]estimony that, when combined with other evidence, might imply or otherwise cause a jury to infer this ultimate conclusion...is permitted under the rule.'" And, according to the court, this was exactly the type of testimony provided by Bradley. According to the court," Bradley's testimony concerned the amount;...he did not directly testify to Parish's intent, although the jury was free to infer the ultimate conclusion.
May 24, 2010
Bad Habit: Supreme Court Of Alaska Finds Eight Photographs Of Parking Lot Insufficient As Habit Evidence
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
In order to present habit evidence, however, the proponent must be able to prove that a person or organization acted in a particular way with sufficient frequency and regularity. And, as the recent opinion of the Supreme Court of Alaska in Mueller v. Buscemi, 2010 WL 2011505 (Alaska 2010), makes clear, this is difficult to do.
Mueller slipped and was injured while attempting to enter her car in the rear parking lot of Buscemi's commercial building. She sued Buscemi for personal injuries suffered as a result of the accident, alleging that Buscemi's failure to treat icy conditions and to provide adequate exterior lighting was the proximate cause of her injuries. Mueller claim[ed] to have suffered personal injuries, incurred present and future medical expenses, and lost income because of Buscemi's allegedly negligent maintenance of the parking lot.
After trial, the jury found for Buscemi, prompting Mueller's appeal. Mueller claimed on appeal, inter alia,
that the superior court erred by excluding evidence of improper maintenance in and around Buscemi's building. She argue[d] that this evidence, photographs to be supported by witness testimony, was admissible under Alaska Rule of Evidence 406 because it established that "[i]gnoring maintenance ... was a routine practice of this landlord." Buscemi respond[d] that the photographic evidence Mueller presented was insufficient to establish that Buscemi had a routine practice of improperly maintaining the parking lot.
The Supreme Court of Alaska sided with Buscemi, noting that "[a] trial judge 'possess[es] the discretion usual in this field of circumstantial evidence to exclude (evidence of habit) if the habit is not sufficiently regular and uniform, or the circumstances sufficiently similar, to outweigh the danger, if any, of prejudice or confusion.'" According to the court, "In support of the contention that Buscemi had a habit of ignoring maintenance, Mueller offered eight photographs which appear[ed] to show a water heater, ceiling tiles, a fire extinguisher, a sink, and a wall." The problem, though, was that "[t]he photographs were unaccompanied by any indication of when they were taken."
The court concluded that "[t]his proffer was inadequate to establish a habit relating to maintenance of the parking lot under Rule 406" because
"It is only when examples offered to establish such pattern of conduct or habit are numerous enough to base an inference of systematic conduct and to establish one's regular response to a repeated specific situation...that they are admissible to establish pattern or habit." Because Mueller's proffer failed to establish a basis for the inference that Buscemi had a habit of improperly maintaining this commercial property, it was not an abuse of discretion for the trial court to exclude the eight photographs.
I agree and think that even if the photographs were taken on eight consecutive days, it would not have been enough to show that Buscemi regularly failed to maintain the area around the building. Instead, the sample size of about a week likely would have been inadequate. But if Mueller would have had a witness who used the parking lot on a daily basis for months or years who would have testified that the parking lot was consistently maintained poorly, that likely would have been adequate.
May 23, 2010
Getting (Un)Lucky In Kentucky: Court Of Appeals of Kentucky Finds Trial Court Used Incorrect Standard For Rule 609(b) Impeachment
Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.
In Smith v. Commonwealth, 2010 WL 2010730 (Ky.App. 2010), the trial court had deemed the alleged victims' convictions that were more than ten years old inadmissible because they did not relate to the issues before the trial court. And as the Court of Appeals of Kentucky found, this was clearly erroneous.
In Smith, David Smith
agreed to sell farm equipment for Linda Tackett (Linda) and her husband Grayson. The agreement provided that the Tacketts would receive the first $50,000 of the proceeds from the sale, and Smith would receive any amount in excess of $50,000 as his commission. Smith ultimately gave the Tacketts four checks totaling $68,000, all of which were returned by the bank for insufficient funds. A grand jury indicted Smith and he went to trial in the summer of 2008.
Eventually, Smith was convicted of theft by failure to make required disposition of property valued at $300 or more. After he was convicted, Smith appealed, claiming, inter alia, that the trial court erred by precluding him from impeaching the Tacketts through evidence of their 1995 convictions for obstructing justice. The trial court had deemed these convictions inadmissible because they did not relate to the issues before the trial court.
The Court of Appeals of Kentucky noted that the issue was governed by the opinion in Holt v. Commonwealth, 250 S.W.3d 647 (Ky. 2008), in which the Supreme Court of Kentucky found that when balancing probative value against prejudicial effect under Rule 609, courts should consider:
1) whether the witness has placed his credibility in issue by testifying in contravention to other witnesses; 2) whether the prior conviction being offered for impeachment is probative of truthfulness; 3) whether the case is civil or criminal; and 4) the age of the conviction sought to be introduced.
According to the court, then,
Based on our review of the record, it appears that the trial court determined to exclude evidence of the Tacketts' felony convictions because those convictions were not related to the issues before the trial court. Therefore, Smith is correct that the trial court did not apply the Holt standard in evaluating the admissibility of evidence regarding the Tacketts' prior felony convictions.
Indeed, if a witness' prior conviction were related to the issues before the trial court, it would make the conviction less likely to be admissible for impeachment purposes (because the jury would be more likely to misuse it as propensity character evidence. Nonethless, the court still found that the Tacketts' prior convictions were inadmissible under Kentucky Rule of Evidence 609(b) and thus found that the trial court's error was harmless.