July 31, 2010
Going Into Withdrawl: Eleventh Circuit Finds Rule 410(1) Inapplicable In Immigration Appeal
Federal Rule of Evidence 410(1) 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:
(1) a plea of guilty which was later withdrawn
As the recent opinion of the Eleventh Circuit in Garces v. U.S. Attorney General, 2010 WL 2899024 (11th Cir. 2010), makes clear, however, this Rule only holds that a withdrawn guilty plea is inadmissible in a later criminal trial for the same offense, and the Rule, like all Federal Rules of Evidence, does not apply to administrative proceedings.
In Garces, Roberto Garces petitioned the Tenth Circuit for review of a Board of Immigration Appeals' order dismissing his appeal from an immigration judge's order finding him removable under section 212(a)(2)(C) of the Immigration and Nationality Act as an alien whom the Attorney General "knows or has reason to believe is or has been an illicit trafficker in any controlled substance." In 1984, Garces pleaded guilty to cocaine trafficking and aggravated assault charges based on the advice of his attorney, who informed him that a guilty plea would not affect his immigration status. Garces, however,
eventually found out that, as far as federal immigration law is concerned, a felony drug conviction is very far from "nothing."...He learned that lesson when he first applied for permanent resident status and saw his application denied. That prompted Garces to return in August of 2000 to the same state court that had convicted him sixteen years earlier and file a motion...to vacate and set aside his guilty plea. His motion asserted that the plea was involuntary because the court had failed to advise him of potential immigration consequences as required by the Florida Rules of Criminal Procedure....The Florida court apparently agreed, because on August 11, 2000, it vacated Garces' guilty plea and resulting convictions. The same court order also noted that the state had decided to nol pros the original charges, not a surprising decision in light of the length of time that had elapsed.
In Garces' case, the BIA determined
"[t]he record evidence, including the police report and the ‘Motion to Vacate and Set Aside Guilty Plea’ in which the respondent confirms that he pled guilty to possession with intent to sell cocaine," constituted reasonable, substantial, and probative evidence supporting the IJ's finding that Garces was inadmissible because there was reason to believe he had engaged in drug trafficking.
In his petition to the Eleventh Circuit, Garces claimed that the BIA erred in considering the evidence related to his motion to vacate and set aside his guilty plea because it was inadmissible under Federal Rule of Evidence 410(1). The Eleventh Circuit disagreed, finding that
Rule 410 codifies and expands the Supreme Court's holding in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582 (1927), that a withdrawn guilty plea is not admissible in a later criminal trial for the same offense....Though its language is sweeping, Kercheval 's actual holding is limited to the context of a later criminal trial on the same offense.
Moreover, the court correctly noted that "it is a 'well-settled principle[ ]' that the Federal Rules of Evidence do not apply in administrative proceedings." (The court did, however, reverse and remand on other grounds).
July 30, 2010
Complete Reversal: Military Court Sets Aside Sexual Assault Conviction Based On Confessions Rule Of Completeness
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Unlike the Federal Rules of Evidence, however, the Military Rules of Evidence also have a "rule of completeness," Military Rule of Evidence 304(h)(2), dealing specifically with confessions, which provides that
If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.
The recent opinion of the U.S. Navy-Marine Corps Court of Criminal Appeals in United States v. Foisy, 2010 WL 2824964 (N.M.Ct.Crim.App. 2010), does a good job of laying out how military courts apply this latter Rule.
In Foisy, a panel of members with enlisted representation sitting as a general court-martial convicted Robert Foisy, contrary to his pleas, of violating a lawful general order and aggravated sexual assault based upon acts that he allegedly committed against LCpl S. Foisy gave an initial statement regarding the alleged crime on November 30, 2008, in which he
provided a detailed explanation of the evening in question, as well as events of the previous few days that bore on the matter in controversy....[T]he appellant noted that LCpl S had been "giving me strong sexual signs like saying I can't wait to have sex again because her boyfriend is gone right now [, and] she would touch my stomach and when she hugged me she would grind her self into me...." He also stated that when he left the room, LCpl S was wearing sweat pants and a hooded sweatshirt, but when he reentered the room, she climbed into bed with LCpl Rumsey wearing only a tee shirt and underwear, getting into the rack with LCpl Rumsey. Shortly thereafter, the appellant awoke with LCpl S at the sink washing her mouth out with water and making statements about being hot. He further said that LCpl S began to take her underwear off, but that he told her not to. According to the appellant's statement, a short time later LCpl S again got out of the rack and went to the sink, made additional statements about being hot and then took off her underwear. According to the appellant, LCpl S then stepped over him, got back into the rack, naked from the waist down, with her buttocks hanging over the bed, "kind of stuck up in the air like she was waiting for some one [sic] to do something...." The appellant stated that he covered LCpl S, but that she uncovered herself again. It was at that point that the appellant sa[id] he made physical contact with LCpl S.
On January 26, 2009, Foisy gave a second statement which began
when the appellant was nude, looking at and touching a naked LCpl S. [The second statement] omit[ted] all of the details which put the touching in context....
The agent typing up Foisy's second statement noted that it was a "supplementary statement." At the court-martial, the Government introduced Foisy's second statement, and, when Foisy sought to introduce his initial statement, the Government objected, citing hearsay, lack of foundation, and the rape shield rule. The military judge agreed and rejected Foisy's argument that the initial statement was admissible under the rule of completeness.
In addressing Foisy's ensuing appeal, the U.S. Navy-Marine Corps Court of Criminal Appeals noted that both Military Rule of Evidence 106 and Military Rule of Evidence 304(h)(2) applied and that the opinion of the United States Court of Appeals for the Armed Forces in United States v. Rodriguez, 56 M.J. 336 (U.S. Armed Forces 2002), set forth a non-exhaustive list of factors to consider in cases governed by these Rules:
(1) Has the prosecution attempted to "pick out the incriminating words in the statement or discussion and put them in evidence while at the same time excluding the remainder of the statement or conversation, in which the appellant sought to explain the incriminating passages"? (2) Is the appellant's subsequent statement separate and unrelated from the subject matter of the original confession, or is it part of or the product of the same transaction or course of action? (3) What is the elapsed time between the two statements, and were they made at different places and to a different set of persons? (4) Was the second statement made at the specific request of the appellant or the Government? (5) Was the defense invoking the rule of completeness as a matter of fairness, or merely attempting to present evidence of a defense without subjecting the appellant to cross-examination? (6) Did the appellant engage in a "pattern of deception with a variety of persons, and then argue that belated candor in a different setting justifies the introduction of otherwise inadmissible hearsay"?
According to the court,
The only factors clearly weighing in favor of exclusion of the initial statement are that the statements were taken about two months apart, and that the statements were taken by different agents. A closer balance exists with regard to the fifth factor. Undeniably, the appellant would have been able to present evidence of his defense without subjecting himself to cross-examination, and the complete statement would have provided a far more exhaustive explanation of events than contemplated by the Government when the partial statement was offered and admitted. However, on balance, this factor weighs in favor of admission of the statement as well, for the Government made the election to offer part of the statement in the first instance, prompting the defense to seek fairness through completion. The rules of completeness exist to address precisely what unfolded at trial in this case.
Although the court did not detail exactly how Foisy fared under each of the other factors, it found that
The appellant made two statements, in the same place, to agents of the same criminal investigative agency, explaining the same events, to defend against the same accusation....The two statements are manifestly related. In fact, inclusion of the qualifying language, "[t]his is a supplementary statement to add to the previous statement I gave to NCIS investigators," reflects the dependent nature of the admitted statement to the excluded statement. Standing alone, [the second statement] contains a statement, incriminating when taken out-of-context, which was "picked out" and presented to the members, while every effort was made to prevent the members from seeing the rest of the statement explaining that out-of-context statement. We reject any argument that the appellant himself was the architect of the second, admitted statement, and thus, should bear the impact of his own admissions as they stand, precisely because the agent's interrogation methodology blunted any need to again provide the details of the first statement: the appellant did not include the background details because the agent's own drop-in line explicitly incorporated the first statement into the "supplementary" statement. It is "manifestly unfair" to require the appellant to face his inculpatory admissions while simultaneously barring him from introducing the very statement his inculpatory remarks specifically supplemented by reference, especially when, as in this case, the appellant's story did not change.
The court thus found that the military judge erred in excluding Foisy's first statement, and because it found that Foist was materially prejudiced, it set aside Foisy's conviction.
July 29, 2010
A History Of Violence: Court Of Appeals Of Tennessee Makes Odd Comment About Violent Felonies In Rule 609 Ruling
Like its federal counterpart, Tennessee Rule of Evidence 609 permits a prosecutor to impeach a defendant through evidence of the defendant's prior conviction if the prosecutor can prove that the probative value of the conviction outweighs its prejudicial effect. What the Court of Criminal Appeals of Tennessee seems to have missed in its recent opinion in State v. Parham, 2010 WL 2898785 (Tenn.Crim.App. 2010), is the relevant question is how probative the prior conviction is on the issue of the defendant's credibility as a witness.
In Parham, Tarrence Parham, was convicted of attempted second degree murder and reckless aggravated assault. After he was convicted, Parham appealed, claiming, inter alia, that the trial court erred by allowing the prosecution to admit his prior reckless homicide conviction for impeachment purposes and that the error was prejudicial.
After finding that the issue was governed by Tennessee Rule of Evidence 609, the court held that,
In this case, the defendant's credibility was at issue because he testified in his own defense; therefore, any evidence regarding his credibility was probative. However, the defendant's credibility was not crucial to the state's case because of the nature of the evidence against him. The state argues that reckless homicide is a crime of violence and, as a violent felony, was probative of the defendant's credibility. We decline, however, to characterize reckless homicide as a crime of violence because it requires reckless conduct rather than intentional or knowing conduct....Because the defendant's reckless homicide conviction was not a violent felony, we decline to weigh it more heavily against his credibility than other non-violent felonies.
Huh? Why would a violent felony weigh more heavily against a defendant's credibility than a non-violent felony? The fact that a defendant committed a crime of violence says little about whether he is likely to lie on the witness stand. Conversely, if a defendant committed a non-violent felony like grand larceny, it would say a good deal more about his credibility. I'm not sure what the prosecution or the court was getting at in the above block quote, but the court found that the defendant's prior crime was not a crime of violence, so this ended up not being an issue.
The court then concluded that,
In this matter, the charged offenses of criminal attempt to commit first degree murder and aggravated assault were similar to the defendant's prior conviction. Reckless homicide is the "reckless killing of another" while first degree murder is the "premeditated and intentional killing of another."...Criminal attempt requires the defendant to act with the same culpability as the specific offense....The impeaching conviction and the charged offense of attempted first degree murder are similar in that they are both offenses against the person involving the "killing of another."...Aggravated assault is the intentional, knowing, or reckless commission of an assault that causes serious bodily injury or is accomplished through the use or display of a deadly weapon....Assault, as relative to this case, is intentionally, knowingly, or recklessly causing bodily injury to another....Aggravated assault and reckless homicide are similar because they may involve the same mental state and are offenses against the person. Because of the similarity between the charged offenses and the defendant's prior conviction, we conclude that “there [was] a danger that jurors [would] erroneously utilize the impeaching conviction as propensity evidence of guilt and conclude that since the defendant committed a similar offense, he...is probably guilty of the offense charged."...Therefore, the trial court committed error by admitting the prior conviction for impeachment purposes.
Nonetheless, the court found that this was harmless error based upon the overwhelming evidence of Parham's guilt and because "the trial court admonished the jury that the defendant's prior convictions were not evidence that he committed the charged offenses, and 'the trial court's limiting instruction ‘provided an adequate safeguard against any potential prejudice possibly engendered by the admission of the prior conviction.''" If the court really found that the evidence of Parham's guilt was overwhelming, I have no problem with the court's ruling. But if the appellate court based its conclusion on the belief that the instruction to jurors really removed the prejudice resulting from jurors hearing about the defendant's prior reckless homicide conviction, I think that its holding was issued on pretty shaky grounds.
July 28, 2010
Make Me Whole, Take 5: Court Of Appeals Of Minnesota Issues Another Ridiculous Opinion Under "Whole Person" Impeachment Theory
I have done a couple of previous posts (here, here, here, and here) about Minnesota's wrongheaded "whole person" approach to felony conviction impeachment, and I am going to continue posting about it until Minnesota courts abandon this horribly misguided approach. The latest example of Minnesota's miscarriage of justice is the opinion of the Court of Appeals of Minnesota in State v. James, 2010 WL 2899115 (Minn.App. 2010).
In James, Gary James was convicted of second-degree criminal sexual conduct. Before trial, the district court had granted the state's request to impeach James with evidence of a November 28, 2000 conviction of felon in possession of a firearm if he chose to testify at trial. After he was convicted, James appealed, claiming, inter alia, that this ruling constituted prejudicial error.
The Court of Appeals of Minnesota found that, pursuant to the opinion of the Supreme Court of Minnesota in State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978), the district court had to determine the admissibility of the conviction under Minnesota Rule of Evidence 609 with reference to five factors:
(1) the impeachment value of the prior crime; (2) the date of the conviction and the defendant's subsequent history; (3) the similarity of the past crime with the charged crime; (4) the importance of defendant's testimony; and (5) the centrality of the credibility issue.
In analyzing the first factor, basically every court analyzes how much bearing the prior crime has on witness (dis)honesty. In these courts, the first factor would militate against admission of a conviction for being a prior felon in possession of a firearm because it has little to no bearing on witness (dis)honesty.
Minnesota courts, however, do not follow this approach. Instead, in State v. Brouillette, 286 N.W. 2d 702, 707 (Minn. 1979), the Supreme Court of Minnesota found that "[j]ust because a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value." The court then explained "that impeachment by prior crime aids the jury by allowing it 'to see 'the whole person' and thus to judge better the truth of his testimony.'" In other words, according to Minnesota courts, any felony conviction, regardless of whether it has any relation to truth or falsity, has impeachment value, making the first factor (almost) always favor admission.
This is ridiculous, and James argued as much, claiming that "Minnesota courts have come to accept that conviction of any crime bears on credibility under the 'whole person' concept, yielding the result that the first factor 'always weighs in the state's favor." The Court of Appeals of Minnesota didn't even bother addressing the merits of this argument, instead glibly concluding
that under caselaw firmly establishing the "whole person" concept and its relationship to credibility, the first factor does not weigh against admissibility. While appellant's prior conviction does not appear to provide much illumination regarding the truth of what he might have testified to, a crime need not involve truth or falsity to have impeachment value under the "whole person" rationale.
Under the second factor, the court found that James' prior conviction was almost eight years before the charged offense, which militated against admissibility. Conversely, the court found that the conviction for being a felon in possession of a firearm was not at all similar to the charge of criminal sexual conduct, making the third factor cut in favor of admissibility (because there was little danger that the jury would misuse the conviction as propensity character evidence).
This left the court with the fourth and fifth factors and another ridiculous aspect of Minnesota precedent. According to the court,
The fourth and fifth Jones factors may be analyzed together....
It is undisputed that credibility was a central issue in this case....The supreme court has held that where credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admitting a prior conviction....Therefore, the fourth and fifth Jones factors weigh in favor of admissibility.
Again, this is not the way that most courts analyze these factors. Instead, most courts find that these factors counterbalance in most cases. If the defendant's testimony is very important, which it usually is, the fourth factor cuts against admissibility of the defendant's prior conviction because the defendant might choose not to testify in the event that the prosecution could impeach him. Conversely, if the defendant's testimony is very important, his credibility is also a central issue in the case, meaning that the fifth factor favors admissibility because the conviction as increased probative value for impeachment purposes. On the other hand, if a defendant is charged with grand theft auto and the only question at trial is the value of the car that the defendant stole, his testimony would not be very important but his credibility also wouldn't be a central issue, meaning that factors four and five would still cancel each other out.
But except in rare cases such as this latter example, factors four and five will always favor admission in Minnesota. And, as noted, factor one will always favor admission in Minnesota under the "whole person" approach. Thus, three out of the five factors will always favor admission in Minnesota. The appellate court in James found that the district court did not commit error "[b]ecause the majority of the Jones factors weigh in favor of admissibility." Under Minnesota law, though, that will almost always be the case.
July 27, 2010
Judge, Jury, And Witness: Court Of Appeals Of Texas Notes That Rule 605 Covers The Functional Equivalent Of Witness Testimony
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
And, as the recent opinion of the Court of Appeals of Texas, Waco, in Marriott v. State, 2010 WL 2869781 (Tex.App.-Waco 2010), makes clear, Rule 605 precludes not only judicial testimony but also judicial statements of fact that are the "functional equivalent of witness testimony."
In Marriott, Kandance Yancy Marriott was convicted by a jury for the offense of engaging in organized criminal activity. The evidence presented at trial established that
Marriott and her husband, Lynn, were engaged in the business of selling manufactured homes and land in a business called One-Way Home and Land. Lynn and David Martin became partners, with Martin providing financial backing on several projects, including One-Way. Their oral agreement was that Martin would provide the money and Lynn would provide the labor for whatever was needed for each project. At each sale, Martin would first recover his investment and then any profits were to be split equally between Martin and Lynn.
Martin and Lynn purchased a vacant former Burger King restaurant building to refurbish and convert to a Dickey's Barbecue restaurant in Navarro County. Martin provided the capital for the purchase and other amounts when and as requested by Lynn prior to August of 2004. They also were working to open a Huddle House restaurant together under the same terms. Martin and Lynn also entered into several other real estate purchases.
Martin discovered in August of 2004 that he had not been paid on some closings through One-Way. He was given spreadsheets from One-Way's bookkeeper and seized many of their records. The spreadsheet given to him in early August was different from the spreadsheet he received later in August. Martin ultimately discovered eighteen checks issued by title companies in his name that he did not receive. These checks formed the basis of the underlying offense alleged in the indictment, misapplication of fiduciary property.....
The checks contained forged endorsements and were deposited into various accounts, including One-Way, the Dickey's restaurant account, and the Huddle House account. Martin was an authorized signer on the Huddle House account but had no access to it, and was not an authorized signer on any of the other accounts into which the checks were deposited. Martin denied giving anyone authority to sign his name or to deposit those funds into those accounts. The checks were dated and deposited from October of 2003 through August of 2004. Martin testified that when he confronted Marriott and Lynn, Marriott stated that Martin had told them that they could take the money and deposit it elsewhere.
Marriott testified that Lynn would give her the checks and that she would deposit them wherever he told her to. She denied ever forging Martin's name on the checks, but did admit to writing “For deposit only” and the account number below the signature on the back of the check, which was already on there when Lynn gave her each check. She also admitted to filling out some of the deposit slips to the various accounts. She denied being in charge of the businesses and portrayed herself as an unknowing victim who only did what her husband told her to. She also minimized her involvement in Dickey's and the Huddle House. She was not an authorized signer on either the Dickey's or the Huddle House bank accounts.
During the operation of One-Way, Marriott and her employees would take whatever steps were necessary to ensure that potential buyers could qualify for loans. This included creating or altering official documents, forging signatures, falsifying social security income letters, falsely verifying employment and rental qualifications, paying off creditors for buyers, creating bank accounts with the buyer's name prior to closing, and forging the buyers' signatures on documents, all allegedly taught, required, and sometimes personally accomplished by Marriott. These activities resulted in many buyers who would not have otherwise qualified for loans being approved. Linda Howard, a former employee of One-Way, testified that every employee of One-Way, including herself, participated in these activities with Marriott. Lynn's involvement in the mortgage fraud was less clear, although Marriott testified that her husband was the one directing where those checks went.
After she was convicted, Marriott appealed, claiming, inter alia, "that the trial court erred by admitting a copy of a temporary injunction signed by the trial court in a civil proceeding between the parties relating to Martin's allegations of theft and fraud because it constituted an impermissible comment on the weight of the evidence by the trial court" in violation of Texas Rule of Evidence 605. The Court of Appeals of Texas, Waco, agreed, first finding that Rule 605 precludes not only judicial testimony but also judicial statements of fact that are the "functional equivalent of witness testimony."
The court then found that
The Honorable Robert G. Dohoney was assigned to hear both the civil case between Marriott, Lynn, and Martin and the criminal cases of Marriott and Lynn. An order was signed by Judge Dohoney during the civil case that granted a temporary injunction against Marriott and Lynn in favor of Martin, and contained specific findings regarding fraud perpetrated against Martin by Marriott. These specific allegations related to evidence introduced during the trial regarding these fraudulent acts. It is true that Judge Dohoney did not "step down from the bench" and become a witness in the very same proceeding over which he was currently presiding....
However, the findings contained in the temporary injunction in the civil case made by the same judge presiding over the criminal trial were intertwined with the jury's ultimate decision as to the existence of the combination, whether it was carrying on criminal activities, and whether or not Martin had been stolen from by Marriott. The temporary injunction, as admitted, contained findings of fact that certainly could convey to the jury his opinion of the case. We find that the trial court abused its discretion in the admission of the temporary injunction.
But while the court found error, it deemed this error to be harmless because
The overwhelming evidence was that Marriott was the individual in charge of the businesses and that everything went through her from the checks to instructions on how funds at closing were to be disbursed to the multitude of fraudulent acts perpetrated by the employees of One-Way and her husband. After examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect.
July 26, 2010
Bad Reputation: Alaska Case Reveals Differences Between Federal And Alaska Rules Of Evidence On Character/Reputation Evidence
Federal Rule of Evidence 404(a)(2) provides that
Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:....
In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.
Meanwhile, Alaska Rule of Evidence 404(a)(2) provides that
Evidence of a person's character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
Evidence of a relevant trait of character of a victim of crime offered by an accused, or by the prosecution to rebut the same, or evidence of a relevant character trait of an accused or of a character trait for peacefulness of the victim offered by the prosecution in a case to rebut evidence that the victim was the first aggressor....
The recent opinion of the Court of Appeals of Alaska in Proctor v. State, 2010 WL 2870106 (Alaska App. 2010), reveals the important difference between these rules and a possible difference between Federal Rule of Evidence 405(a) and Alaska Rule of Evidence 405(a) regarding the admissibility of reputation evidence.
In Proctor, Bradley Proctor was convicted of two counts of assault after a jury trial in which he claimed self-defense. Proctor did not present any evidence concerning the character of the alleged victim.
Midway through the presentation of the State's case, Proctor's attorney advised the court that the State intended to call correctional officers to testify about Proctor's propensity for violence. Defense counsel objected to this proposed testimony, which would be based on four or five incidents in which Proctor had been punished for assault or fighting during his incarceration prior to trial....
Proctor objected again before the officers were called to the stand on the basis that the officers did not have a proper knowledge of Proctor's reputation when he was out of custody. He argued that prison is a unique atmosphere and that the officers' knowledge of Proctor's conduct in custody would not be an accurate foundation for testimony about his reputation.
The judge stated that he understood Proctor to be arguing that opinion testimony by a prison official is never admissible because people behave differently in prison. The judge overruled this objection, explaining that Proctor could explore the witnesses' limited knowledge on cross-examination.
After Proctor was convicted, he appealed, claiming, inter alia, that the trial court erred by allowing the correctional officers to render this testimony. The Court of Appeals of Alaska disagreed, first finding that character evidence was admissible under Alaska Rule of Evidence 404(a)(2) because Proctor claimed self-defense. Undoubtedly, the court was correct, but it is equally correct that character evidence would have been inadmissible against Proctor if Federal Rule of Evidence 404(a)(2) applied.
Under the federal rule, a defendant's claim of self-defense does not open the door for the admission of character evidence, except in a homicide case. Conversely, under the Alaska rule, a defendant's claim of self-defense opens the door for the admission of character evidence in any case. I prefer the federal rule (minus the homicide exception. It is well established that character evidence is a Pandora's box that defendants can keep closed or open by deciding to inject the issue of character into their trials. But how does a defendant open the box merely by claiming self-defense? A defendant can claim that the alleged victim attacked him, but he is not necessarily claiming that the victim is a generally violent person.
Second, the Court of Appeals of Alaska noted that courts have split on the issue of whether evidence of a defendant's reputation in prison is admissible. The court, though, found that it did not have to resolve this issue because the scope of Alaska Rule of Evidence 405(a) is broader than the scope of Federal Rule of Evidence 405(a) and most state counterparts.
Federal Rule of Evidence 405(a) provides that
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
Meanwhile, Alaska Rule of Evidence 405(a) provides that
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation in any community or group in which the individual habitually associated or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
And, as the Court of Appeals of Alaska noted, the Commentary to Alaska Rule of Evidence 405(a) notes that
The Federal Rule, on which this Rule is modeled, does not indicate the scope of reputation evidence. This rule fills a gap left in the Federal Rule by clearly stating that reputation evidence is not confined to the community in which the defendant lives; reputation where the defendant works, goes to school or in a group with whom the defendant habitually associates will suffice.
I agree with the court that the Alaska rule fills in a gap left by the federal rule, but I also note that federal courts generally have had no problem finding that reputation evidence is not confined to the community in which the defendant lives. See, e.g., Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 101 (3rd Cir. 1999) (finding that a workplace may constitute a "community" for reputation evidence purposes). Thus, I'm not sure that Alaska Rule of Evidence 405(a) really is broader than Federal Rule of Evidence 405(a) and most state counterparts.
But that's not really the point. The courts excluding evidence of defendants' reputations in prison did not exclude such evidence because it failed to qualify as reputation evidence. They excluded it for the reason argued by Proctor: People act differently in prison than they act in the "real" world. In other words, Proctor's argument really was an argument under Rule 403 that the probative value of this reputation evidence was substantially outweighed by the danger of unfair prejudice. And, I would have liked to have seen the court engage with this argument a bit more.
July 25, 2010
Plain Justice: Court Of Appeals Of Minnesota Finds No Plain Error In Trial Court's Failure To Admit Statement Under Residual Exception
A statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name, address and present whereabouts of the declarant.
And it is well established under Federal Rule of Evidence 103(d) and Minnesota Rule of Evidence 103(d) that if a party does not raise an issue at trial but does raise it on appeal, the appellate court can reverse if the trial court committed plain error affecting substantial rights. In its recent opinion in State v. Martin, 2010 WL 2813485 (Minn.App. 2010), the Court of Appeals of Minnesota found that the trial court did not commit plain error in failing to admit a statement that the defendant claimed was admissible under Minnesota Rule of Evidence 807 for the first time on appeal. My question is whether a court could ever find plain error under such circumstances.
In Martin, De‘Arlo De'Laen Martin was convicted of first- and second-degree assault. At trial, Martin tried to introduce into evidence an exculpatory statement. Unfortunately, the opinion of the Court of Appeals of Minnesota did not provide any details regarding the statement, but it did indicate that Martin
urged admission of the exculpatory statement under Minn. R. Evid. 804(a)(5), which permits admission of a hearsay statement when the declarant is unavailable and "the proponent of the statement has been unable to procure the declarant's attendance...by process or other reasonable means." The district court refused to accept the statement because appellant had not personally served the declarant with a subpoena and therefore the declarant was not unavailable under the rule....This ruling was not an abuse of discretion.
(Although the court did not elaborate on this point, it is important to note that this statement of Rule 804(a)(5) is incorrect. If Martin were "unable to procure the declarant's attendance...by process or other reasonable means," that would merely render the declarant "unavailable," and Martin would still have to establish that the exculpatory statement qualified for admission under one of the hearsay exceptions contained in Minnesota Rule of Evidence 804(b).)
The court then noted that Martin claimed on appeal that the trial court should have admitted the exculpatory statement under Minnesota Rule of Evidence 807. The court disagreed, finding that
Generally, an issue cannot be raised for the first time on appeal....We nevertheless can review an issue not raised to the district court if it “implicates a plain error affecting substantial rights."...An error is plain if it is clear and obvious....If we determine that there was plain error that affected a party's substantial rights, we must evaluate whether the error should be addressed in order to ensure fairness and the integrity of the judicial process....
Because [Martin] did not offer the exculpatory statement under the residual exception, he did not provide a showing of "equivalent circumstantial guarantees of trustworthiness."...The district court did not have the benefit of the arguments that [Martin] makes here on appeal. Further, the declarant was not available for cross-examination, and his statement had not been subject to examination in any tribunal, something which can supply circumstantial guarantees of trustworthiness....
Finally, because a police witness testified as to the content of the exculpatory statement, [Martin]'s substantial rights were not affected. The district court did not commit plain error by refusing to admit the exculpatory statement .
I agree with the court's conclusion and wonder how an appellate court could ever find that a trial court committed plain error by failing to admit a statement under the residual exception. As noted, for a statement to be admissible under the residual exception, the proponent must provide pre-trial notice of its intention to admit the statement, which otherwise would not qualify for admission, under the exception. If an appellate court is reviewing for plain error, presumably the party did not provide this pre-trial notice, and the court would have no reason to believe that the statement would be admissible. How, then, could a court ever find plain error under these circumstances?