June 5, 2010
Travel Plans: Eleventh Circuit Precludes Jury Impeachment Regarding Foreman With Flight On 4th Day Of Delierations Pressuring Jury To Hurry
Federal 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 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.
So, let's say that a defendant is charged with money laundering and several drug crimes. Based upon the number of charges and the amount of evidence, the trial is fairly long: twenty days. These twenty days of trial are then followed by four days of deliberations, with the jury eventually finding the defendant guilty of all charges. After trial, however, an alternate juror contacts defense counsel and informs him that the jury foreman booked a flight to Las Vegas on what turned out to be the fourth day of deliberations and pressured the jury to hurry its deliberations. Should the defendant get a new trial, or should the court at least investigate these allegations of juror misconduct? According to the recent opinion of the Eleventh Circuit in United States v. Valencia-Trujillo, 2010 WL 2163105 (11th Cir. 2010), the answer is "no."
In Valencia-Trujillo, the defendant, Joaquin Mario Valencia-Trujillo, actually raised two arguments on appeal. His first argument, based upon the Supreme Court's opinion in McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984), was that the jury foreman failed to answer honestly a material question on voir dire and that a correct response would have provided a valid basis for a challenge for cause. And indeed, if the foreman lied about his travel plans during voir dire, Valencia-Trujillo likely would have received a new trial. But, according to the Eleventh Circuit,
Valencia-Trujillo...failed to demonstrate that the jury foreman dishonestly answered a material question in the initial juror questionnaire or during voir dire. Not only was the juror never asked a specific question about his travel plans, but Valencia-Trujillo concedes that "it is not known when the future foreman booked his travel to Las Vegas." Without evidence of when the juror made his travel plans, Valencia-Trujillo is unable to establish that the juror knowingly made any dishonest statement. He cannot satisfy the first prong of McDonough.
Valencia-Trujillo's second argument was that he was entitled to a new trial based upon jury misconduct by the jury foreman. The Eleventh Circuit, however, found that his problem in this regard was two-fold. First, he was not relying upon an allegations of a juror privy to deliberations; instead, he was relying upon speculation by an alternate juror who was not privy to jury deliberations. According to the court, though, even if a juror had come forth with allegations that the foreman pressured the jury to hurry its deliberations so that he could make his flight, it still would not have ordered a new trial or investigated these allegations because
To the extent that the jury foreman did pressure the jury to hurry its deliberations, that would constitute internal, instead of external, influence on the jury....Any evidence supporting Valencia-Trujillo's allegation would not be competent evidence with which he could impeach the jury's verdict. See...Fed.R.Evid. 606(b). A district court does not abuse its discretion when it decides not to investigate allegations of juror misconduct that are "entirely endemic to the deliberations."...Because Valencia-Trujillo has not made any showing that the jury was subjected to extrinsic influence, the district court did not abuse its discretion by deciding not to conduct an evidentiary hearing.
June 4, 2010
Truth And Consequences: Fourth Circuit Rejects Confrontation Clause Appeal Based Upon Absence Of Hearsay
Pursuant to the Supreme Court's opinion in Crawford v. Washington,
the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.
As noted above, though, the defendant only has a right to confront the maker of a statement when that statement is indeed hearsay. Thus, when the prosecution introduces a statement, but does not introduce it to prove the truth of the matter asserted in the statement, the Confrontation Clause does not apply, a fatal problem for the defendant in United States v. Hines, 2010 WL 2123695 (4th Cir. 2010).
In Hines, a jury convicted Hassan Hines of conspiracy to possess with intent to distribute cocaine, possession of a firearm after having previously been convicted of a crime punishable by more than one year, possession with intent to distribute marijuana, cocaine, and cocaine base, maintaining a residence for distributing controlled substances, and possession of a firearm in relation to a drug trafficking crime. He thereafter appealed, claiming, inter alia, that the trial court erred by allowing a government witness to testify to statements made to him by a confidential informant who did not testify at trial.
The Fourth Circuit did not set forth the content of those statements. But what was important to the court was that these statements were not admitted to prove the truth of the matter asserted in the statements; instead, they were merely admitted to "explain why authorities undertook an investigation into Hines." Accordingly, the statements were not hearsay as defined in Federal Rule of Evidence 801(c) because they were not admitted to prove the truth of the matter asserted. Thus, the Fourth Circuit found that Hines' appeal was without merit.
June 3, 2010
It's My Space, That's Why They Call It MySpace, Take 5: Maryland Court Applies Rule 901(b)(4) To Resolve MySpace Authentication Issue
A defendant is charged with second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. At the defendant's first trial, a witness testifies that he did not see the defendant pursue the victim into the bathroom (where he died) with a gun. The first trial ends in a mistrial, and, at a second trial, the witness changes his testimony and testifies that the defendant was the only person in the bathroom, other than the victim, when the fatal shots were fired. The witness claims that he fabricated his testimony at the first trial because the defendant's girlfriend threatened him. To corroborate this claim, the prosecution introduces into evidence a redacted printout obtained from a MySpace profile page allegedly belonging to the defendant's girlfriend, which said, in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant is thereafter convicted. Was that page properly admitted, and how can parties generally authenticate MySpace pages and comments as belonging to a particular person? Those were the questions addressed by the Court of Special Appeals of Maryland in its recent opinion in Griffin v. State, 2010 WL 2105801 (Md.App. 2010).
The facts in Griffin were as stated above, with Antoine Griffin being the defendant, Jessica Barber being his girlfriend, and Darvell Guest being the victim. On appeal, the state claimed that the MySpace page and comment were properly authenticated under Maryland's counterpart to Federal Rule of Evidence 901(b)(4), Maryland Rule of Evidence 5-901(b)(4), which indicated that evidence can be authenticated by
Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.
the State point[ed] to the content of the profile, which included Ms. Barber's photograph, her date of birth, and the references to her children. Further, it assert[ed]:
Three other considerations support the trial court's determination that the State had offered sufficient authentication evidence. In her testimony, Barber confirmed that Griffin sometimes went by the nickname "Boozy," the name used on the MySpace page. Additionally, Sergeant Cook's testimony should be deemed sufficient given that a MySpace website is a personal profile containing text and image content supplied not by MySpace itself, but rather by the site's individual users. The judge, moreover, provided a detailed limiting instruction clarifying the purpose for which the statement could be used and emphasized that the MySpace page should be afforded only "such weight as [the jurors] choose to give it."
The Court of Special Appeals of Maryland acknowledged that "the authentication concerns attendant to the use of evidence printed from a social networking Web site such as MySpace is a topic on which there is no Maryland precedent and scant case law from other jurisdictions." That said, the court noted that the leading case on the issue of authentication of electronic evidence is Lorraine v. Markel Am. Ins. Co., 241 F .R.D. 534 (D.Md.2007), in which the court noted that electronically stored information, including e-mails, text messages, chat room logs, and "Internet Website Postings" "may require greater scrutiny than that required for the authentication of 'hard copy’ documents,[ ]" but suggested that the existing rules governing authentication provide an adequate analytical framework to determine the admissibility of such evidence. The court noted that the Lorraine court then cited Federal Rule of Evidence 901(b)(4) as "one of the most frequently used to authenticate e-mail and other electronic records."
Relying upon Lorraine and similar opinions, the Court of Special Appeals of Maryland thus found that there was sufficient authentication of the MySpace page and comment, concluding,
The MySpace profile printout featured a photograph of Ms. Barber and appellant in an embrace. It also contained the user's birth date and identified her boyfriend as "Boozy." Ms. Barber testified and identified appellant as her boyfriend, with the nickname of "Boozy." When defense counsel challenged the State to authenticate the MySpace profile as belonging to Ms. Barber, the State proffered Sergeant Cook as an authenticating witness. He testified that he believed the profile belonged to Ms. Barber, based on the photograph of her with appellant; Ms. Barber's given birth date, which matched the date listed on the profile; and the references in the profile to "Boozy," the nickname that Ms. Barber ascribed to appellant.....
On the record before us, we have no trouble concluding that the evidence was sufficient to authenticate the MySpace profile printout. Therefore, the trial court did not err or abuse its discretion in admitting that document into evidence.
June 2, 2010
Make It A Habit: Supreme Court Of Nevada Finds Evidence of Doctor's Routine Properly Admitted As Habit Evidence
Evidence of the habit of a person or 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.
Pursuant to Federal Rule of Evidence 406 and many state counterparts, courts in many jurisdictions have allowed evidence of a medical practitioner's routine practice as evidence relevant to what the practitioner did on a particular occasion. And that is exactly what the Supreme Court of Nevada did in Thomas v. Hardwick, 2010 WL 2145367 (Nev. 2010).
Jesse “Ray” Thomas had undetected, advanced-stage coronary artery disease. On January 13, 2003, two weeks before his fatal heart attack, he went to WMC's emergency room, complaining of chest pains and sweatiness. The electrocardiogram and troponin tests Dr. Hardwick ran ruled out recent heart attack but not cardiovascular disease as the cause of his symptoms. The core question at trial was what Dr. Hardwick told Mr. Thomas when he saw him in the emergency room on January 13. Did Ray Thomas leave the hospital that day against medical advice, as respondents WMC and Dr. Hardwick maintain[ed]? Or was Ray Thomas told he was "fit as a fiddle" and could safely leave, as appellant Bobbie Thomas maintain[ed]?
The jury found that Ray left the hospital against medical advice and thus found that WMC did not act negligently and was not liable in Bobbie's action for wrongful death. At trial,
Dr. Hardwick testified that he has worked in WMC's emergency room since 1980, through which approximately 70,000 patients pass each year. This works out to 200 patients a day of which, on average, one patient a day presents with chest pain complaints. While Dr. Hardwick did not remember seeing Ray Thomas on January 13, 2003, his hospital chart was in evidence. Dr. Hardwick testified to what the chart recorded, including his dictated notes stating that he urged Mr. Thomas to be admitted for further tests but Mr. Thomas refused. Over objection, Dr. Hardwick testified that he routinely urges patients with chest pain complaints and inconclusive test results like Mr. Thomas's to be admitted and that he routinely records this advice in dictation, as he did here. The attending emergency room nurse gave similar testimony about her handwritten chart notes. She testified without separate objection that in the 12 years she had worked with Dr. Hardwick in the emergency room, he "admits everyone" who presents with symptoms like Mr. Thomas's.
After the jury found against her, Bobbie appealed, claiming, inter alia, that this testimony was improperly admitted. The Supreme Court of Nevada disagreed, finding that this testimony was admissible habit evidence under NRS 48.059(1). Specifically, the court noted that
"Courts in many jurisdictions have allowed evidence of a medical practitioner's routine practice as evidence relevant to what the practitioner did on a particular occasion.”"...Proof that Dr. Hardwick, when confronted with an emergency room patient experiencing unexplained chest pains of nonmuscular origin, routinely counsels the patient to be admitted to the hospital for observation and further testing was relevant, as was his habit of dictating multiple chart notes over the course of a patient's visit to the emergency room. This was legitimate circumstantial evidence that, consistent with Dr. Hardwick's routine, he counseled Mr. Thomas to be admitted to the hospital, as his dictated notes record.
June 1, 2010
Frustrated Incorporated: Court Of Criminal Appeals Of Alabama Reverses Robery Conviction Based On Improperly Admitted Coconspirator Admission
A statement is not hearsay if....[t]he statement is offered against a party and is....(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Because coconspirator admission rule only applies to statements made during the course and in furtherance of a conspiracy, it is well established that confessions made by one coconspirator after he has been apprehended are not admissible under the rule because they are in frustration of a conspiracy. This was an issue, however, that was not recognized by the trial court in the prosecution of Devane Hillard, which led to the opinion of the Court of Criminal Appeals of Alabama in Hillard v. State, 2010 WL 2148535 (Ala.Crim.App. 2010).
In Hillard, Devane Hillard was convicted of first-degree robbery. Police suspected that Danny "Big D" Shackelford was involved in a conspiracy with Hillard to commit the subject robbery, and Sergeant Ray Weihe
took Shackelford into custody. While in custody, Shackelford waived his right to counsel and gave a statement. According to Sergeant Weihe, Shackelford admitted his participation in the crime and stated that Hillard was involved in the planning and in the execution of the robbery.
Weihe testified to this confession at Hillard's trial, with the court finding the confession admissible as a coconspirator admission under Alabama Rule of Evidence 801(d)(2)(E). After Hillard was convicted, he appealed, claiming that Shackelford's statements were neither made during the course or in furtherance of the alleged conspiracy.
The Court of Criminal Appeals of Alabama agreed, finding that
Regarding the first requirement, "incriminating acts or statements of one [co-conspirator] after the ends of the conspiracy have been accomplished, and no longer exist, are not admissible against another...."Further, as the Supreme Court of the United States has explained, a “confession or admission by one coconspirator after he has been apprehended is not in any sense a furtherance of the criminal enterprise. It is rather a frustration of it....Following this approach, Alabama courts have repeatedly held "that a nontestifying codefendant's statement to police implicating the accused in the crime is inadmissible against the accused [and] does not fall within any recognized exception to the hearsay rule...."
The court thus found that Shackelford's confession was improperly admitted and reversed and remanded.
May 31, 2010
Leave It To The Experts: Supreme Court Of Kentucky Waffles Over Whether Nonexperts Can Authenticate Handwriting Based Upon Familiarity Acquired For Purposes Of Litigation
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.
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(2) Nonexpert testimony on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of litigation.
The way I see it, the language of Rule 901(b)(2) makes it clear that a party cannot authenticate a writing based upon nonexpert opinion testimony as to the genuineness of handwriting, based upon familiarity acquired for the purposes of litigation. According to the recent opinion of the Supreme Court of Kentucky in Roach v. Commonwealth, 2010 WL 2016851 (Ky. 2010), however, this is not so clear.
In Roach, Caryn Renee Roach was convicted of adult exploitation, three counts of second-degree criminal possession of a forged instrument, and being a second-degree persistent felony offender. The case arose when the family of 90-year-old Eba Wilson suspected that several checks written on her account had been forged. Police eventually suspected that it was Roach, Wilson's caretaker, who had forged Wilson's signatures on the checks.
At trial, Eba's son Wendell testified that the signatures on several of the subject checks did not appear to be Eba's. Lead detective Robert Duvall also testified that based upon his investigation into the case and Eba's signature, it appeared unlikely that several of the checks were signed by Eba.
After she was convicted, Roach appealed, claiming, inter alia, that Duvall's testimony was improperly received under Kentucky Rule of Evidence 901(b)(2) because Duvall was not qualified as an expert witness and he only gained familiarity with Eba's handwriting for the purposes of litigation. Based upon Wendell's testimony, the Supreme Court of Kentucky found that any error with the admission of Duvall's testimony was harmless. In an accompanying footnote, however, the court noted,
Without reaching the issue ourselves, we note that some other courts do not permit lay witness testimony concerning the authenticity of signatures where the witness only became familiar with the subject's handwriting in anticipation of litigation. See, e.g., Bell v. State, 910 So.2d 640, 644 (Miss.Ct.App.2005) (holding that authentication of handwriting by lay witness is only permitted under Mississippi rules of evidence if lay witness's familiarity with handwriting is “based upon familiarity not acquired for purposes of the litigation.”) (internal quotation marks omitted). We also note KRE 901 offers “[b]y way of illustration only, and not by way of limitation” an example of a proper means of authentication of a handwritten document by “[n]onexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of litigation.” KRE 901(b)(2). We neither adopt nor reject Roach's reading of this example of proper authentication of a document as clearly providing that lay witness testimony on handwriting is necessarily prohibited if the familiarity with the handwriting was acquired for purposes of litigation because we conclude that any error in the instant case was harmless.
Now, I certainly see the Supreme Court of Kentucky's point. Kentucky Rule of Evidence 901(b) states that each of its subsections are merely illustrations of types of testimony which automatically qualify as proper authentication under Rule 901(a). Therefore, just because Rule 901(b)(2) does not include nonexpert opinion testimony by a witness who only gained familiarity with handwriting for purposes of litigation does not mean that such testimony automatically fails Rule 901(a). I would argue, however, that the words of exclusion in Rule 901(b)(2) make clear that it was not intended that such testimony qualifies as proper authentication under Rule 901(a). And, indeed, the Advisory Committee's Note to the federal counterpart, to Kentucky Rule of Evidence 901(b)(2) provides that "[t]estimony based upon familiarity acquired for purposes of the litigation is reserved to the expert under the example which follows."
May 30, 2010
Proper Proffer: Second Circuit Construes Scope Of Substantive Rebuttal Waiver Provision Under Rule 410
Federal Rule of Evidence 410(4) indicates that
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Since the Supreme Court's decision in United States v. Mezzanatto, 513 U.S. 196 (1995), however, it is well established that prosecutors can get criminal defendants to waive the protections of this Rule. But if a defendant signs a waiver allowing for the use of his statements made during plea discussions as substantive evidence to rebut evidence offered or elicited or factual assertions made by or on behalf of him at trial, what exactly has he waived? That was the question addressed by the Second Circuit in its recent opinion in United States v. Oluwanisola, 2010 WL 2011317 (2nd Cir. 2010).
In Oluwanisola, Olawale Lateef Oluwanisola was convicted of conspiring to import heroin into the United States, conspiring to possess with intent to distribute heroin, and possessing heroin with intent to distribute. Before the commencement of plea bargaining, Oluwanisola signed a proffer agreement, which provided that the government would not use any of Oluwanisola's statements against him, except:
[T]he Office may use any statements made by [Oluwanisola]...as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [Oluwanisola] at any stage of a criminal prosecution....
During the ensuing proffer sessions, Oluwanisola admitted that he knew that envelopes he had when he was apprehended
contained heroin and that he was part of a heroin smuggling operation. With respect to the quantity of heroin, Oluwanisola admitted to receiving envelopes containing heroin well in excess of one kilogram.
Thereafter, the government determined that Oluwanisola was not fully truthful regarding the scope of his involvement with the conspiracy and did not offer him a cooperation agreement. At trial, the judge informed defense counsel that if he wanted to prevent the admission of Oluwanisola's incriminatory statements during the proffer sessions he had to limit his opening statement to generalized statements concerning the government's burden of proof and the jury's responsibilities; he could not reference certain elements of the crime and argue that the government would be unable to sustain its burden of proof as to those elements.
Later at trial, postal worker Dennis Coleman testified that he had seen Oluwanisola picking up mail at one of the suspect addresses and had reported the suspicious behavior to his supervisor. Defense counsel then asked whether there was a written report, which he explained to the court was relevant because it would “establish the date” of Coleman's observation of Oluwanisola. This date was relevant to whether the government could tie over one kilogram of heroin to deliveries picked up by Oluwanisola because the government's argument was based, in part, on the fact that Oluwanisola had been observed picking up deliveries for several months.
The court held, however, that defense counsel could not ask about the written report without opening the door to the proffer statements because the sole purpose of verifying the date would be to question the credibility of the witness.
After he was convicted, Oluwanisola appealed, claiming, inter alia, that both of these rulings were erroneous, and the Second Circuit agreed. With regard to the first ruling, the Second Circuit held that the issue was governed by its prior decision in United States v. Barrow, 400 F.3d 109 (2nd Cir. 2005). And, according to the court,
In this case, the district court made a distinction between "generally tell[ing] the jury about the burden of proof and the necessity of the government proving all elements of the crime" and arguing that "specific elements of the crime [have] not be[en] met," ruling that while the former would not trigger the waiver provision, the latter would. Barrow did not make such a distinction and we can think of no rationale that would compel such a result. Under the district court's interpretation of Barrow, even if the government failed to introduce any evidence on a certain element, defense counsel would not be permitted to draw the jury's attention to the lack of evidence in his opening statement without triggering the waiver provision in the proffer agreement. Interpreting the waiver provision to permit such a result would leave the defendant, for all practical purposes, defenseless. As the record makes clear, Mr. Nobel was compelled by the court's ruling to limit his opening statement to generalized statements concerning the government's burden of proof and the jury's responsibilities. Under Barrow, however, Mr. Nobel should have been permitted during his opening statement to reference certain elements of the crime and argue that the government would be unable to sustain its burden of proof as to those elements.
And, with regard to the latter ruling, the Second Circuit did
not believe that defense counsel's question c[ould] be construed as an implicit factual assertion that Oluwanisola did not pick up mail at that address. Under the government's construction of the waiver provision, defense counsel would be prohibited from asking a witness any question during cross examination about his testimony on direct-even if the testimony was misleading, weak, or contradictory-because the only plausible reason to do so would be to call into question the witness's credibility. We do not read the language in the waiver provision to prohibit Oluwanisola from placing the government's evidence in context, even if that context is that a government witness is not credible.
Accordingly, the Second Circuit vacated Oluwanisola's conviction.