July 24, 2010
Conspiracy Theory: First Circuit Finds Co-Conspirator Admissions Present No Problems Under Crawford & Bruton
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that 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. And, in Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. As the recent opinion of the First Circuit in United States v. De La Paz-Rentas, 2010 WL 2813810 (1st Cir. 2010), makes clear, however, if a statement qualifies as a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E), it does not present any problems under either Crawford or Bruton.
In De La Paz-Rentas, the First Circuit was
presented with appeals by four defendants who were found guilty on firearms charges and, in one case, a drug charge, all of which stemmed from an undercover investigation into a weapons ring in Puerto Rico. The four defendants [we]re Pedro Molina-Bonilla..., Natanael De La Paz-Rentas..., Victor Sanjurjo-Nuñez..., and Waldemar Torres-González.
One piece of evidence linking Torres-González to the weapons and drug charges was the testimony of undercover officer Julio Ginés, who indicated that Nelson Font-González, another alleged co-conspirator, made statements implicating Torres-González in the crimes. Font-González did not testify at trial.
After he was convicted, Torres-González appealed, claiming, inter alia, that the admission of Font-González's statements violated his rights under the Confrontation Clause. The First Circuit disagreed, first finding that Font-González's statements qualified as co-conspirator admissions under Federal Rule of Evidence 801(d)(2)(E) because they were made "by a coconspirator of a party during the course and in furtherance of the conspiracy."
The court then found no problem with the statements under Crawford because "Crawford does not apply to statements deemed non-testimonial, and statements made in furtherance of a conspiracy 'by their nature [are] not testimonial.'" The court similarly found no problem under Bruton because Bruton "is concerned with the indirect impact on a defendant of a confession made by another defendant in a joint trial...; it does not bar the use of a co-conspirator statement made in furtherance of the conspiracy and admissible under a traditional hearsay exception."
July 23, 2010
A Foolish Consistency?: Minnesota Opinion Reveals Three Factor Test Minnesota Courts Use To Determine Admissibility Of Prior Consistent Statements
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness....
And, as the recent opinion of the Court of Appeals of Minnesota in State v. Morris, 2010 WL 2813345 (Minn.App. 2010), makes clear, courts in Minnesota apply a three factor test for determining whether a statement qualifies as a prior consistent statement under this Rule.
In Morris, Erwin Morris allegedly had
a dispute with his wife, R.H., over whether she served him poisoned grape juice....According to R.H., Morris "just turned [into] a different person" and began yelling at her and hitting her. She tried to escape by running up the stairs, but Morris dragged her back to the basement. He told her that he would "slice [her] throat" and harm the children if she screamed or called the police. The two then talked, and Morris calmed down.
While making breakfast the next morning, R.H. decided to use the opportunity to get out of the house. She gathered her daughters, flagged down a passing car, and went to her friend R.W.'s house.
R.W. observed that R.H. looked unkempt and her eyes were puffy. After R.H. described the incident with Morris, R.W. called the police. When the police arrived, R.H. was crying and her face appeared swollen. R.H. told the officers what happened the night before and the officers transported her to a shelter. Morris was arrested and charged with making terroristic threats...and domestic assault....
After R.H. testified, the state indicated its intention to offer portions of her statement to police as prior consistent statements. The district court met with counsel outside of the jury's presence to review the contents of the police report, determining on a line-by-line basis the portions of R.H.'s statement that were consistent with her trial testimony and the portions that were inconsistent and would be redacted. Morris objected to admission of the consistent statements only on the ground that they were cumulative. Morris objected to R.W.'s testimony as to what R.H. told her about the incident on hearsay grounds. The district court overruled the objections.
After he was convicted, Morris appealed, claiming, inter alia, that the district court erred in deeming portions of R.H.'s prior statement to police admissible under Minnesota Rule of Evidence 801(d)(1)(B). Initially, the Court of Appeals of Minnesota found that Morris failed to preserve this issue for appellate review because he merely claimed that these portions of R.H.'s prior statement were cumulative, not that they were hearsay.
The court then found that there was no plain error by the district court in admitting the portion of her prior statement. Morris had claimed that the admission of these portions of the statement violated State v. Bakken, 604 N.W.2d 106, 109 (Minn.App.2000), which held that, before admitting a prior consistent statement under Minnesota Rule of Evidence 801(d)(1)(B),
the district court must determine whether: (1) the witness's credibility has been challenged; (2) the prior statement would be helpful to the trier of fact in evaluating the witness's credibility; and (3) the prior statement and the trial testimony are consistent with each other.
The court disagreed, finding that
While the district court did not specifically address the Bakken factors, the record shows that the Bakken standard for admission was met. Morris's lawyer repeatedly challenged R.H.'s credibility. In his opening statement, counsel indicated that "[R.H.] is not consistent with her stories...none of it adds up. During cross-examination, counsel repeatedly attempted to impeach her testimony. And in questioning one of the police officers, defense counsel again attempted to impeach R.H.'s earlier testimony.
Implicit in the district court's admission of R.H.'s prior consistent statements to the police and R.W. is the determination that they would help the jury evaluate her credibility. The district court carefully reviewed the police report that contained R .H.'s statements to determine which statements were consistent with her trial testimony. Consistent with the parties' agreement, the district court redacted the portions of the police report that differed from R.H.'s trial testimony. Because the prior statements were consistent and assisted the jury in evaluating R.H.'s challenged trial testimony, we conclude that the district court did not commit plain error by admitting the prior consistent statements.
I agree with the court's conclusion but wonder about the second Bakken factor. If a witness' credibility has been challenged and he made a prior consistent statement, how would the prior consistent statement not be helpful to the trial of fact in evaluation the witness' credibility. In my mind, if factors one and three are satisfied, factor two will always be satisfied, but maybe I am missing an odd case where this conclusion would not be clear.
July 22, 2010
Ten Years Have Got Behind You: Tennessee Case Is Rare Case In Which Defendant's Remote Conviction Is Admissible Under Rule 609(b)
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.
In other words, convictions that are more than ten years old should rarely be admitted as impeachment evidence, and they should almost never be admitted against criminal defendants. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Byington, 2010 WL 2812664 (Tenn.Crim.App. 2010), however, presents one of the rare cases in which such evidence is admissible against a criminal defendant: when the subject conviction is a perjury conviction that is only slightly more than ten years old and that bears no resemblance to the crime charged.
In Byington, Terry Byington was convicted of DUI. At trial, the prosecution sought a ruling from the judge that Byington's conviction for perjury be admitted in the event that he testified. Byington was released from confinement for his perjury conviction in January 1991 and allegedly committed the DUI offense in December 2001, making his prior conviction slightly more than ten years old.
The trial court granted the prosecution's motion, and, after he was convicted, Byington appealed, claiming, inter alia, that this ruling was erroneous. The Court of Criminal Appeals of Tennessee disagreed, finding that
There are two criteria which are especially relevant when a determination is made on whether the probative value of a prior conviction outweighs any unfair prejudicial effect. These are the impeaching conviction's relevance to credibility, and the impeaching conviction's similarity to the charged offense....A perjury conviction is highly relevant to credibility, and is in no way similar to the offense of DUI. We believe that the circumstances in this case lead to a conclusion that the conviction's probative value substantially outweighed its prejudicial effect. The trial court did not err in ruling that the prior conviction was admissible to impeach Defendant's credibility. Defendant is not entitled to relief on this issue.
July 21, 2010
You'll Shoot Your Eye Out: Texas Case Involving BB Gun Stickup Reveals Basics Of Texas Rule Of Evidence 705(b)
Federal 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.
Texas Rule of Evidence 705(a) is similar. It provides that
The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.
Texas also, however, has Texas Rule of Evidence 705(b), which provides that
Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.
And, as the recent opinion of the Court of Appeals of Texas, Amarillo, in Blackburn v. State, 2010 WL 2802186 (Tex.App.-Amarillo 2010), makes clear, Rule 705(b) is mandatory.
In Blackburn, Charles Blackburn, Jr. was convicted by a jury of two counts of aggravated robbery, with an affirmative finding on use of a deadly weapon. The prosecution alleged that Blackburn, Jr. committed the robbery with a B.B. gun, which their expert witness, Chris Herndon, claimed qualified as a deadly weapon.
Early during Herndon's testimony, the State offered Exhibit No. 232, a receipt for a BB gun purchased for testing. The gun was identical to the one used in the robberies. Defense counsel requested, and was permitted, an opportunity to take Herndon on voir dire regarding the purchase of the BB gun. See Tex.R. Evid. 705(b). After voir dire, defense counsel lodged a relevancy objection to Exhibit No. 232. The trial court sustained the objection and disallowed introduction of the receipt.
When the State then offered Exhibit No. 233, a printout from the website of the BB gun manufacturer, Crosman Products, defense counsel objected “to hearsay as to anything that might be in these documents.” Before the trial court ruled, the prosecutor asked Herndon if the company specifics had aided him in his testing and whether the exhibit would aid the jury in understanding his testimony. After Herndon answered affirmatively, the State offered Exhibit No. 233 and defense counsel again objected on hearsay grounds.
In an ensuing colloquy, defense counsel asked the trial judge if he could take Herndon on voir dire regarding Exhibit 233, but the judge refused to allow voir dire.
After he was convicted, Blackburn, Jr. appealed, claiming, inter alia, that the trial court committed reversible error by precluding this latter voir dire. The Court of Appeals of Texas, Amarillo, agreed, finding that
Rule 705(b) of the Texas Rules of Evidence is clear. If a criminal defendant timely requests to conduct voir dire examination of an expert, the trial court shall permit him to question the expert on the underlying facts or data upon which the opinion is based....Rule 705 permits an abbreviated method of laying the groundwork before asking for an expert's opinion....As noted by the Court of Criminal Appeals, "the focus of Rule 705(b) is to prevent the jury from hearing the underlying facts and data which might ultimately be ruled as inadmissible."...
Rule 705(b) is mandatory....A trial court's denial of a timely and proper request constitutes error...In such a case, a reviewing court is required to decide whether the trial court's error was so harmful as to require reversal.
The appellate court, however, found that the trial court's error was not so harmful as to require reversal. According to the court, two bank tellers testified that they feared death or serious bodily injury from the (BB) gun, which was sufficient to establish that the gun was a deadly weapon. The court found this to be the case because "[e]ither expert testimony or lay testimony may be sufficient to support a deadly weapon finding by a jury."
July 20, 2010
Hired Gun: Court Of Appeals Of Utah Finds Evidence That Expert Was Hired By Insurance Company Inadmissible
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Of course, even when evidence of liability insurance is offered for a permissible purpose under Rule 411, it is still subject to the balancing test prescribed by Federal Rule of Evidence 403 and Utah Rule of Evidence 403, which indicates that
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
So, is evidence that an expert was hired by the defendant's insurance company admissible under Rule 411 and 403? According to the recent opinion of the Court of Appeals of Utah in Kearl v. Okelberry, 2010 WL 2784593 (Utah App. 2010), the answer is "no."
In Okelberry, Robert Kearl filed a negligence suit against Edwin Ray Okelberry for injuries sustained when a jack released and dropped a trailer on his leg. At trial, the defendant's expert, Dr. Smith, testified regarding Kearl's injury and tests that he performed on the jack. That's all I can say about Dr. Smith's testimony because, after the jury returned a verdict of no liability, Kearl appealed but failed to include "a transcript of Dr. Smith's testimony at trial."
Kearl alleged on appeal, inter alia, that the trial court erred by excluding evidence that Dr. Smith was "hired by" Okelberry's insurance company. According to Kearl, this evidence was admissible "to demonstrate Dr. Smith's bias." But the problem for Kearl was that he also failed to include the trial court's ruling on this issue at trial and the transcript from the hearing on his motion to admit this evidence. Thus, the Court of Appeals of Utah "assume[d] the regularity of the proceedings below" and denied Kearl's appeal.
In dicta, however, the court
note[d] that the merits of this claim are questionable at best. Evidence of a witness's connection to an insurance company is admissible only if there is a "substantial connection" between the witness and the insurance company.... A substantial connection exists, for example, when the witness maintains an employment relationship with the insurance carrier independent of the person's position as an expert witness....Here, Dr. Smith's only connection to the insurance company was that the company hired him as an expert witness.
July 19, 2010
What Can Brown Do For You?: First Circuit Upholds Hearsay Ruling Based Upon Defendant's Failure To Prove Declarant Unavailability
Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
In order for a party to be able to introduce such a statement against interest, however, the party must be able to prove that the declarant is "unavailable" to testify at trial as defined in Federal Rule of Evidence 804(a). This latter requirement was the problem for the defendant in the recent opinion of the First Circuit in United States v. Weekes, 2010 WL 2704610 (1st Cir. 2010).
Jerome Weekes and his associate Kelvin Brown were thrown out of a bar after arguing with another patron. Brockton Police Officer Michael Darrah, who was working as paid security at the bar, heard gunshots coming from their direction, called for backup, and gave chase. Darrah caught Brown as he and Weekes were trying to jump a fence. Weekes cleared the fence but was arrested by another officer a moment later. A search turned up Weekes's cell phone and a loaded gun near where he had landed, and two spent shell casings in the area from which Darrah believed the sounds of shooting had come.
Weekes was indicted on one count of being a felon in possession of a firearm...and was found guilty by a jury.
At trial, Weekes had sought to "testify that Brown had told him that he (Brown) had picked up the gun after it was dropped from a passing vehicle from which the two had been fired upon." Weekes had claimed "that this statement [wa]s not excludable under the hearsay rule because it was a statement against penal interest and Brown was unavailable to testify at trial." The district court, however, precluded Weekes from providing this testimony.
On Weekes' ensuing appeal, the First Circuit affirmed, finding that it did not need to resolve the question of whether Brown's alleged statement qualified as an excited utterance under Federal Rule of Evidence 804(b)(3). This was because, according to the court, Weekes failed to prove Brown's unavailability under Federal Rule of Evidence 804(a). Weekes ostensibly tried to prove Brown's unavailability under Federal Rule of Evidence 804(b)(3), which provides that a declarant is "unavailable" if the declarant
is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.
And, according to the First Circuit,
The sticking point here is the required showing of Brown's unavailability, and we do not think Weekes has demonstrated abuse of discretion in the district judge's finding that Weekes had not "show[n] at least a good faith effort to procure the witness'[s] attendance," a standard we have described as "relatively high."...He apparently did try to find Brown through Brown's friends and family, but he neither subpoenaed Brown at his last known address nor sought help from the district court, local law enforcement, or, curiously, Brown's counsel in the state court action in which the two were co-defendants....It is not enough to point, as Weekes does, to evidence that Brown made the statement; “there must be indicia of trustworthiness of the specific, essential assertions” to be repeated,...and Weekes points to none. There was no abuse of discretion in excluding Brown's hearsay.
July 18, 2010
A Bit Preliminary: Court Of Appeals Of Michigan Deals Preliminary Examination Testimony Admissible Under Former Testimony Exception
Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
A defendant is charged with murder. At the preliminary examination, he cross-examines an alleged eyewitness to that murder. At trial, the eyewitness invokes her Fifth Amendment privilege against self-incrimination and refuses to testify. Should her testimony at the preliminary examination be admissible under Michigan Rule of Evidence 804(b)(1)? According to the recent opinion of the Court of Appeals of Michigan in People v. Hadley, 2010 WL 2757143 (Mich.App. 2010), the answer is "yes." I disagree.
In People v. Hadley, 2010 WL 25757143 (Mich.App. 2010), William Hadley was charged with murder and
[a]t the preliminary examination, [Misty Mae] Hafley testified that on January 3, 2009, she and defendant were at the home of Georjean Hadley and her husband, with their children and several adult friends. Throughout the evening, defendant, Hafley and the other adults liberally consumed alcohol. After the children were asleep in a back bedroom of the home, an argument arose between defendant and Georjean in another room. When Hafley emerged from the children's room, she positioned herself between defendant and Georjean in an attempt to intercede in what had escalated into a physical altercation. During this confrontation, defendant shot Georjean with a handgun, killing her. Hafley hid the gun within the home at defendant's request. The police arrested both defendant and Hafley. During three subsequent interviews with police, Hafley provided different versions of the events of that night. Hafley admitted at the preliminary examination that all of these versions were false. After two days in jail, Hafley was released when she told police that defendant shot Georjean.
Thereafter, the trial court appointed counsel to Hafley, and
Hafley asserted her Fifth Amendment right to silence. As a result, the prosecutor sought to introduce Hafley's preliminary examination testimony at trial based on her unavailability. Defendant's counsel objected, asserting that his motivation for cross-examining Hafley had changed since the preliminary examination in light of...new evidence....Defense counsel indicated that his trial strategy had altered and that his focus was now on proving Hafley's culpability rather than merely impeaching her credibility. As such, defense counsel argued that her prior testimony was rendered inadmissible. The trial court conducted an evidentiary hearing, and...precluded the use of Hafley's preliminary examination testimony at trial.
In its ensuing appeal, the government claimed that Hafley's former testimony was admissible under Michigan Rule of Evidence 804(b)(1). The Court of Appeals of Michigan responded that in People v. Farguharson, it set forth a "nonexhaustive list of factors in determining whether the prosecution had a similar motive to examine a witness at a prior proceeding":
(1) whether the party opposing the testimony "had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue"; (2) the nature of the two proceedings-both what is at stake and the applicable burden of proof; and (3) whether the party opposing the testimony in fact undertook to cross-examine the witness (both the employed and available but forgone opportunities) .
Applying these factors, the court found that
Defendant's primary motivation at the preliminary examination was to impugn or call into question Hafley's credibility. Although defense counsel now contends that his motivation has changed from undermining Hafley's credibility to demonstrating her culpability, this constitutes a distinction without a difference. At trial, defendant will only be able to suggest Hafley's culpability by impeaching her credibility. There are no witnesses testifying that Hafley fired the fatal shot. Defense counsel impliedly acknowledged this when he stated that proving Hafley fired the gun "would allow the jury to fully understand why she's lying to cover her butt," and when he argued that showing Hafley's culpability would reveal her motive for lying and serve to seriously undermine her credibility. Consequently, the focus of defense counsel's cross-examination of Hafley has not altered....Therefore, we reverse the trial court's ruling precluding the admission of Hafley's preliminary examination testimony at trial.
Huh? Okay, I acknowledge that under the third factor, defense counsel cross-examined Hafley. But how, under the first factor, could the court find that Hadley had a substantially similar intensity to disprove Hafley's testimony at the preliminary examination as he would have had at trial? And how, under the second factor, could the court have found that the stakes were similar at the preliminary examination and at trial. At the preliminary examination, Hadley was merely doing a dry run of what he would eventually at trial. There was no applicable burden of proof and no danger that he would be convicted or lose his freedom at the preliminary examination. Knowing that Hafley admittedly had provided three prior false accounts of the subject crime, he easily could have held off on fully cross-examination during the preliminary examination so that Hafley was unprepared for a more intense cross-examination at trial.
I realize that there is a split on this issue. See Preliminary Hearings, 74 GEO. L. J. 647, 652 n.199 (1986)
A defendant may be able to argue that the motive for cross-examining a government witness differs in the preliminary examination because a defendant may not want to reveal his or her defense to the prosecution at this early stage. See United States ex rel. Haywood v. Wolff, 658 F.2d 455, 463 (7th Cir.) (test for determining whether preliminary examination testimony of deceased witness violates defendant's constitutional right of confrontation is whether cross-examination at preliminary examination provided sufficient indicia of reliability to evaluate truth of testimony when considered in conjunction with other evidence presented at trial), cert. denied, 454 U.S. 1088 (1981). But cf. Mechler v. Procunier, 754 F.2d 1294, 1300 (5th Cir. 1985) (when defendant was present and actively represented by counsel at preliminary examination, admission of unavailable government trial witnesses' preliminary examination testimony did not violate sixth amendment confrontation clause).
But, given the factor employed by the Court of Appeals of Michigan, I don't see how it reached the result that it reached.