August 14, 2010
Trial Separation:Court Of Appeals Of Virginia Finds Statement Of Intent To Divorce Covered By Rule 803(3)
Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay for
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
Virginia does not have codified rules of evidence, but Virginia courts have recognized a "state of mind" exception to the rule against hearsay, as is made clear by the recent opinion of the Court of Appeals of Virginia in State v. Creacey, 2010 WL 2998764 (Va.App. 2010).
On April 4, 2005, Margaret, husband's daughter, filed a petition for appointment of limited guardian and limited conservator in Fairfax County Circuit Court because of her father's "physical frailties and mental infirmities of old age." The petition alleged husband suffered from progressive dementia, thus requiring "permanent assistance to care for his physical and medical needs...."
By amended order January 29, 2007, the court found husband to be incapacitated and appointed Margaret and Steven (one of husband's sons) as co-guardians to "attend to the personal affairs...and [to] make decisions regarding his support, care, health, safety...." The order directed that wife have visits and telephone contact with husband. Barbara, another daughter, and Steven were appointed co-conservators to manage husband's estate and financial affairs. The order declined to appoint wife as guardian or conservator, finding she was not qualified. This order was not appealed.
On January 31, 2007, Margaret, as co-guardian of husband, filed a motion for permission to file complaint for divorce, contending a divorce was in husband's best interest. The motion alleged that contact with wife upset husband and he suffered health problems related to continued contact with wife. Husband's physician suggested terminating the visitations. The motion further recited the financial need to sell the marital residence, which wife refused to do, to insure husband's proper care. Such permission was granted by order entered May 10, 2007. That order was not appealed.
The co-guardian filed a complaint for divorce on husband's behalf on December 23, 2008, alleging husband and wife "have lived separate and apart without cohabitation and without interruption for a period of time in excess of one year, having last lived together as husband and wife on or about November of 2005." The trial court heard evidence on August 4, 2009 and considered arguments of counsel.
The court entered a final decree of divorce on August 11, 2009, finding husband and wife have lived separate and apart without any cohabitation and without interruption for over one year, having last lived together as husband and wife on or about November 11, 2005, and that husband "formed the intent to remain permanently separate and apart on or about August of 2006." The trial court, after considering conflicting evidence as to whether husband had an intent to be divorced at the time of separation, found that he did have that intent, indicating the guardian ad litem's testimony to be the most reliable.
The guardian ad litem testified that husband told him that he wanted to divorce wife. The guardian ad litem also offered one sentence of his report, which stated that
"During our meeting [August 14, 2006], Mr. Andrews expressed his desire to be divorced from his wife and the fact that two of his male children had been physically abusive to him."...
Appended to the guardian ad litem's report was a letter dated August 10, 2006, signed by husband which stated in part, "I need to divorce my wife, sell my home and live in safety and peace."
After the court entered the decree of divorce, wife appealed, claiming, inter alia, that husband's alleged statements of his intent to divorce were inadmissible hearsay. The Court of Appeals of Virginia disagreed, noting that there is a "state of mind" exception to the rule against hearsay, under which
1. The statement must refer to a presently existing state of mind. Although the mental state o[r] emotion must exist at the time of the declaration, it may relate to matters occurring in the past or in the future;
2. There must be no obvious indication of falsification or contrivance[.]
And, according to the court, husband's statements qualified for admission under this exception because
Here, husband's statement expressed a presently existing state of mind, i.e., his intent to divorce. Any conflict as to whether his statement was the product of falsification or contrivance was resolved by the fact finder who accepted those statements as true. Husband's state of mind was central to the proof of divorce and therefore highly relevant. "Intent in fact is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances. It is a state of mind which may be shown by a person's conduct or by his statements."
Inadmissible But Harmless: Fouth Circuit Affirms Conviction Despite Erroneous Admission of Evidence of Uncharged Murder
In United States v. Wilson, --- F.3d ---, 2010 WL 3156775 (4th Cir. Aug. 11, 2010), the U.S. Court of Appeals for the Fourth Circuit upheld a conviction despite the erroneous admission at trial of evidence concerning an uncharged murder.
Lorenzo A. Wilson appealed from his conviction for conspiracy to kidnap, in violation of 18 U.S.C. § 1201(c) and § 2, and his sentence of life imprisonment for that offense. The prosecution argued at trial that Wilson assisted in the kidnapping (in Washington, D.C.) and murder (in Maryland, bringing the case into the Fourth Circuit) of Eric Hayes on the evening of January 3, 2002. Id. at 2-6 [pin cites refer to the PDF of the opinion]. Wilson's trial was severed from the other defendants because of statements Wilson made implicating his coconspirators. (The court's opinion in United States v. Lighty, ---F.3d ---, 2010 WL 3156777, affirming the convictions of co-defendants tried separately, was issued on the same day.)
At Wilson's trial, the prosecution introduced evidence of a January 30, 2002 drive-by shooting which resulted in the death of Antoine Newbill. As in the Hayes murder, Wilson participated in the drive-by shooting of Newbill but did not kill the victim. The same shooter, Kenneth Jamal Lighty, killed Hayes and Newbill. Wilson, at 6-7. Lighty was sentenced to death for the Hayes killing. Lighty, at 3.
Although not charged with any crime related to the Newbill shooting, Wilson faced the following evidence at his trial, which he maintains should have been excluded under Federal Rule of Evidence 404(b) as evidence of "other wrongs or acts solely to prove [Wilson’s] bad character," Wilson, at 9:
[A witness] testified that Wilson told him that he 'and a couple of guys went [to Afton Street] and started shooting' 'at a crowd of guys down there' in order to confront a man known as 'Boo-Boo.' According to what Wilson told [the witness], 'they pulled up, [Wilson’s] window was rolled down and . . . he started firing at Boo-Boo.' Wilson claimed to have 'two guns in his hand,' and [the witness] recalled that Wilson thought 'one of them was probably a .25 or a .380, and the other one was probably a 9-millimeter.'
"Thomas Hart, one of the Afton Street Shooting victims, then testified that he, Newbill, and a man known as 'Boo- Boo' were standing on the street when a Ford Taurus drove by and shots were fired at them from the front passenger side and the rear of the car. Boo-Boo was not injured. Hart was shot in the foot, the arm, and the chest, and Newbill died as a result of gunshot wounds he received. [ ... ]
The Government then called Marlon Hines, who lived off of Afton Street and was in his home the day of the shooting, as a witness. Hines described Hart, Newbill, and Boo-Boo entering his home after the gunshots were fired. Newbill told Hines he could not catch his breath and that he thought he was shot. Hines testified that Newbill died in his (Hines’) home shortly thereafter. Hines also described an incident a day or two before the shooting. He and Newbill were driving together on Afton Street when Hines observed Boo-Boo, Wilson, Lighty, and another man engaged in a heated argument.
Wilson, at 9-11. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Wilson argued that the evidence should also have been barred by Rule 403, which allows exclusion of evidence "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."
The test for admissibility was the following:
We have adopted a four-prong test for assessing the admissibility of evidence under Rule 404(b): (1) it must be relevant to an issue other than character; (2) it must be necessary to prove an element of the crime charged; (3) it must be reliable; and (4) it must be admissible under Rule 403, in that the probative value of the evidence must not be substantially outweighed by its prejudicial effect. United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).
Wilson, at 13. Based on that test, the Fourth Circuit agreed that much of the Afton Street shooting evidence was improperly admitted. "The testimony of Hart, Hines, and the law enforcement personnel was even more tangential than [other] testimony. Their testimony did not connect the Afton Street Shooting and the Hayes kidnapping and murder because no connection existed. The events occurred at different times, at different places, and involved completely different motives. ... The Afton Street Shooting evidence was not inextricably intertwined with the Government’s case against Wilson for the Hayes kidnapping and murder." Id., at 14-15.
Unfortunately for Wilson, the court then held that the admission was harmless error, allowing his conviction to be affirmed.
"Having reviewed the record of Wilson’s trial, we conclude with fair assurance that the admission of the Afton Street Shooting evidence did not affect the judgment against him. The evidence of Wilson’s participation in the conspiracy to kidnap Hayes was overwhelming. Wilson confessed to his role in the kidnapping to two individuals ...
Wilson said that Lighty shot Hayes, and that Lighty had been arrested with the firearm he used to shoot Hayes. Ballistics evidence indicated the .380 caliber handgun Lighty possessed at the time he was arrested shared numerous rifling characteristics with the firearm used to shoot Hayes.
Id., at 17-18 (also reciting other evidence). While affirming the conviction, the court expressed its annoyance with the prosecutors. "As we recognized and cautioned with regard to Lighty, the admission of evidence of an uncharged murder is undoubtedly prejudicial. ... As in Lighty, the AUSAs exercised poor judgment in putting the Afton Street Shooting evidence before the jury in the guilt phase of Wilson’s trial. We explained above that such evidence was not necessary and its use pointlessly introduced error into the case. In different circumstances, such a misjudgment by the prosecutors could lead to the reversal of an otherwise valid conviction. We caution the U.S. Attorney’s office to exercise more prudent judgment in the future." Id. at 19-20 & n.17.
This case shows the tremendous power of harmless error analysis. As far as introducing error into a case with prejudicial evidence, one can hardly do better than informing a murder jury that the defendant was involved in an unrelated homicide weeks after the charged offense. But with sufficient evidence offered to prove the crime charged, an appeals court can chastise the prosecutor, hold that the trial judge has committed an abuse of discretion, and then affirm the conviction.
August 13, 2010
Evidence of Ineffective Assistance: N.J. Court Finds Counsel Inadequate for Failing to Brief Admissibility of Enhanced Audiotape
In State v. Reshevsky, --- A.2d ----, 2010 WL 3075483 (N.J. Super. A.D. Aug. 9, 2010), the Superior Court of New Jersey, Appellate Division heard an appeal for post-conviction relief based on a claim of ineffective assistance of trial counsel.
The case arose from a traffic court hearing at which defendant was found guilty of running a red light. After the trial, defendant said, "You lied" to Police Officer Denis Murphy, who had testified against him. In the hallway outside the courtroom, Murphy arrested Reshevsky for harassment, alleging that Reshevsky poked him repeatedly in the chest, which Reshevsky denied. Following the arrest, Reshevsky was led away by a different officer, and Murphy returned to testify in other traffic trials. While back in the courtroom, Murphy chatted with the prosecutor about Reshevsky and their hallway interaction. Portions of this conversation were taped by the court reporter.
At the harassment trial, the court heard the audiotape, substantial portions of which were inaudible. Reshevsky sought to introduce an enhanced version of the tape, along with expert testimony about the enhanced tape. He claimed that the enhanced tape proved that Murphy admitted to the prosecutor immediately after the arrest that Reshevshy had not poked him. The trial judge sought briefing on the admissibility of such a tape, which defense counsel did not provide. Eventually, the trial court declined to hear the enhanced tape and found Reshevshy guilty of harassment. Reshevshy sought post-conviction relief, asserting that his trial counsel was ineffective.
To win his ineffective assistance of counsel argument, Reshevshy needed to satisfy the two-pronged test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 688 (1984):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
466 U.S. at 687. The questions in Reshevshy are (1) whether trial counsel was deficient in not winning admissibility of the enhanced audiotape (or at least trying more effectively) and (2) whether, if ineffective, trial counsel's deficiency prejudiced Reshevshy's defense.
The appellate court found that Reshevshy made out a prima facie claim for both prongs of Strickland. First, enhanced audiotapes are commonly admitted in New Jersey courts and in federal courts. Second, because the enhanced tape captures Murphy replying, "No, but he was a pain" when the prosecutor asked if defendant poked him, Reshevshy, at 8, counsel's failure to get the tape into evidence prejudiced Reshevshy's case, which hinged on the claim that the officer is a liar.
The court explained:
When an attorney is instructed by a judge to brief a particular issue of law, here the admissibility of enhanced audiotapes, and fails to do so, his performance is clearly ineffective. ... The trial judge specifically ruled on the third day of trial, "But you didn't provide me with any authority that says you can introduce an inaudible tape into evidence and then offer enhancement testimony, and that's what I'd ask for. So were your expert here today ..., I was not prepared to allow him to testify." Thus, the expert's testimony and the enhanced audiotape were excluded because counsel did not brief the issue of their admissibility.
Id. at 26 [pin cites refer to the PDF of the opinion]. The court added, "Case law clearly establishes the admissibility of enhanced audiotapes which render inaudible portions of tapes audible by filtering out background noises. ... Had the trial judge been made aware of this case law, surely his concerns about the admissibility of the expert testimony and the enhanced audiotape would have been allayed." Id. at 27.
The court noted too that although the bulk of the relevant decisions appeared in federal cases, New Jersey's "Rules of Evidence were modeled on the federal rules and, although these federal cases are not binding in a state-court proceeding, they are nonetheless persuasive authority." Id.
Reshevshy, arrested at the traffic court in August 2000, will now have another day in court.
Drowning Your Sorrows: Supreme Court Of Arizona Finds No Error In Expert Testimony Regarding Drowning Under Rule 704
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Conversely, expert opinion is objectionable when it embraces an ultimate legal conclusion, i.e., when it tells the jury how it must resolve an issue. And, because the expert's testimony in State v. Chappell, 2010 WL 3000032 (Ariz. 2010), merely embraced an ultimate issue, the Supreme Court of Arizona correctly concluded that it was not objectionable.
In Chappell, Derek Chappell was convicted of first degree murder and child abuse and sentenced to death for the murder. The conviction stemmed from the drowning death of Devon Shackelford, the two year-old son of Chappell's girlfriend.
During the aggravation phase of the trial, the jury found three aggravating circumstances: (1) a previous conviction of a serious offense (child abuse)...; (2) the murder was committed in an especially cruel manner...; and (3) Chappell was an adult and the victim was under fifteen years of age at the time of the murder....
To find this second aggravating circumstance, the jury had to find that Chappell "committed the offense in an especially heinous, cruel or depraved manner."
After he was convicted and sentenced, Chappell appealed, claiming, inter alia, that testimony by the prosecution's expert, Dr. Hu, that drowning was a "horrifying experience" and a "10" on "scale of 1 to 10” was improper expert opinion on an ultimate issue. The Supreme Court of Arizona disagreed, finding that
Arizona Rule of Evidence 704 permits expert testimony that “embraces an ultimate issue to be decided by the trier of fact,” as long as the opinion "assist[s] the trier of fact to understand the evidence or to determine a fact in issue."...However, “[w]itnesses are not permitted as experts on how juries should decide cases."...
Chappell cites two out-of-state cases in which experts explicitly opined on whether the murder had been committed in the manner of the statutory aggravator. See State v. Hamilton, 681 So.2d 1217, 1225-26 (La.1996) (expert testified murder was “heinous, atrocious or cruel”); Commonwealth v. Crawley, 526 A.2d 334, 346-47 (Pa.1987) (expert defined torture as the production of "conscious pain" and testified that the murders satisfied "the definition of the word torture"). But, here, Dr. Hu merely testified about the experience of drowning and did not opine whether Devon's murder was committed in an "especially cruel" manner.
August 12, 2010
Phoning It In: Arizona Supreme Court Allows Telephonic Testimony in Involuntary Commitment Hearing
The Supreme Court Court of Arizona decided in In re MH-2008-000867, --- P.3d ----, 2010 WL 3034499 (Ariz. Aug. 5, 2010) that telephonic testimony by a psychiatric expert in an involuntary commitment hearing did not violate the rights of the patient.
The patient objected to the phoned-in testimony, arguing that his inability to confront the doctor violated his rights under the Due Process Clause of the Fourteenth Amendment, which he characterized as similar to those under the Confrontation Clause of the Sixth Amendment.The Supreme Court of the United States has stated, “[F]or the ordinary citizen, commitment to a mental hospital produces a massive curtailment of liberty, and in consequence requires due process protection.” Vitek v. Jones, 445 U.S. 480, 491-92 (1980) (internal quotations and citations omitted). The question addressed in MH-2008-000867 is whether due process protection requires the same ability to confront witnesses guaranteed by the Confrontation Clause in criminal cases.
Noting that no court to its knowledge has held that the Confrontation Clause applies to civil commitment hearings, the Arizona court held that "rather than the Confrontation Clause analysis demanded in criminal proceedings by the Sixth Amendment, the appropriate test to determine whether Fourteenth Amendment procedural due process has been afforded in this context is the one set forth in Mathews v. Eldridge, 424 U.S. 319 (1976)." In re MH-2008-000867, at ¶9. Mathews offers the following factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
424 U.S. at 335. After reviewing Arizona evidence rules encouraging in-person testimony but allowing telephonic testimony in certain circumstances, the court concluded, "In circumstances like those presented here, ... allowing telephonic testimony serves important governmental interests and does not significantly increase the risks of an erroneous deprivation." In re MH-2008-000867, at ¶13. Accordingly, the court held that admission of the testimony at issue did not deprive the patient of his Fourteenth Amendment rights. Id. at ¶14.
Play It Again, Sam: Court Of Appeals Of Arizona Affirms Conviction Despite Video Recorded Recollection Being Admitted As Exhibit
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
The recent opinion of the Court of Appeals of Arizona, Division 1, in State v. Martin, 2010 WL 3001900 (Ariz.App. Div. 1 2010), gives me the opportunity to revisit two issues recently discussed on this blog: (1) Does a videotape qualify as a recorded recollection under Rule 803(5); and (2) Will an appellate court ever reversed based upon a recorded recollection being improperly received as an exhibit?
On July 18, 2007, C.L., a forensic specialist with the Mesa Police Department, conducted a videotaped forensic interview of C.Y. Detective M., the case agent, monitored the live video and audio feed of the interview in another room. During the interview, C.Y. recounted numerous instances of Defendant engaging in sexual conduct with her. One of those instances occurred during the daytime while C.Y. was in bed with Defendant and he touched her inappropriately. C.Y. explained that she was wearing a “tank down” at the time. A similar incident involving improper touching occurred when Defendant was home alone with C.Y. and her half-sister, and the half-sister "fell off the bed."
At trial, and over defense counsel's objection, the trial court admitted the videotape into evidence under Arizona Rule of Evidence 803(5) and played it for the jury. Later, in response to a question from the jury, the judge allowed jurors to review the videotape during deliberations.
After he was convicted, Martin appealed, claiming, inter alia, that a videotape does not qualify as a recorded recollection under Arizona Rule of Evidence 803(5) and that the trial court erred by receiving the videotape into evidence and allowing jurors to review it during deliberations.
The Court of Appeals of Arizona, Division 1, rejected his first argument, finding that
Nothing in Rule 803(5) expressly limits the Rule's application "to written materials;" rather, Rule 803(5) states that it applies to "[a] memorandum or record." Accordingly, we must determine whether a videotape qualifies as a "memorandum or record." "We construe rules of evidence in the same manner that we construe statutes, 'giving effect to the plain meaning unless the language is ambiguous.'"...We may consult a dictionary when determining the ordinary meaning of a word.... In part, the Merriam-Webster's Dictionary defines the noun “record” as “something that records,” for example, “something that recalls or relates past events.” Merriam-Webster's Collegiate Dictionary, 1040 (11th ed. 2003) Additionally, "record" is also defined in part as "something on which sound or visual images have been recorded."...Similarly, "videotape" is defined as "a recording of visual images and sound (as of a television production) made on magnetic tape." Merriam-Webster's at 1394. Based on these common definitions, we hold that a videotape may qualify as a "record" for purposes of Rule 803(5).
Now, if the court wanted to find that the logic of Rule 803(5) extends to videotapes, I wouldn't necessarily agree with the court's conclusion, but I could respect its perspective. But instead, the court looked at the "plain meaning" of the language of the Rule. As noted, though, the second sentence of Rule 803(5) indicates that "[i]f admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party." To me, it is clear from this language that Rule 803(5) only applies to a written memorandum or record because a witness cannot read a videotape into evidence. Again, there might be good reasons to extend the logic of Rule 803(5) to videotapes, but I don't see how a plain reading of the entirety of the Rule supports this conclusion.
With regard to Martin's second argument, the appellate court agreed that "the trial court erred pursuant to the plain language of Rule 803(5) in receiving the videotape in evidence and making it available to the jury during deliberations." That said, the court needed to find prejudice to Martin to reverse, and it did not make such a finding because, inter alia, "[t]he jury could have found Defendant guilty on count two based solely on the jury's viewing of the videotape at trial."
This again leads me to ask whether an appellate court will ever reverse based upon a recorded recollection being improperly received as an exhibit. It seems to me that an appellate court will always do what the court did in Martin and simply affirm based upon a finding of harmless error. And what that means is that attorneys need to be prepared at trial with a copy of Rule 803(5) to show to the judge in the event that opposing counsel wants to introduce a recorded recollection as an exhibit.
August 11, 2010
Jeresy Sure: New Jersey Opinion Reveals Key Difference Between Federal And New Jersey Rule Of Evidence 703
Federal Rule of Evidence 703 provides that
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Meanwhile, New Jersey Rule of Evidence 703 provides that
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
In other words, New Jersey Rule of Evidence 703 does not have the final sentence contained in its federal counterpart. And, as the recent opinion of the New Jersey Superior Court, Appellate Division, in In re Civil Commitment of T.J.T., 2010 WL 2991041 (N.J.Super.A.D. 2010), makes clear, this difference is meaningful.
In T.J.T., T.J.T. appealed from an order that continued his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA). That order was based in part on the expert testimony of Dr. Roger Harris, a psychiatrist. In turn, Dr. Harris's testimony was based in part on reports by other psychiatrists or psychologists that had previously treated or examined T.J.T.
T.J.T. claimed that Dr. Harris's testimony was impermissibly based upon this inadmissible hearsay, but the Superior Court of New Jersey, Appellate Division, disagreed, finding that Dr. Harris's testimony was proper under New Jersey Rule of Evidence 703, concluding that
In rendering its decision, the court relied upon the diagnoses of the State's testifying witnesses who it found credible, not the diagnoses in the reports. Nor did Dr. Harris merely adopt the opinions of the non-testifying experts "because those opinions [were] congruent with the ones he...reached."...Rather, he referenced the non-testifying experts' reports for the purpose of apprising the trial court of the basis of his opinion. According to Dr. Harris, he only reviewed the reports of non-testifying experts "to see how they marshal support for their diagnosis and...make their ultimate opinion. I review that and give that some weight, but ultimately, I form my own opinion of diagnosis and whether or not [T.J.T.] meets criteria for continued civil commitment."
Of course, this block quote makes clear that the State also introduced into evidence the hearsay reports which formed the partial basis for Dr. Harris' testimony. Courts applying Federal Rule of Evidence 703 only could have allowed for the admission of the reports if they found that their probative value substantially outweighed their prejudicial effect. New Jersey Rule of Evidence 703, however, does not employ such a modified balancing test, and, as the court made clear, in New Jersey, "hearsay statements relied upon by an expert are ordinarily admissible for the limited purpose of apprising the jury of the basis of the expert's opinion, provided they are of a type reasonably relied upon by experts in the field."
Propensity or Risk: New Jersey Court Allows Evidence of Parent's Past Conduct in Abuse Case Despite Rule 404(b)
In New Jersey Div. of Youth and Family Services v. I.H.C., --- A.2d ----, 2010 WL 3033928 (N.J. Super. A.D. Aug. 5, 2010), a law guardian appealed on behalf of three children, arguing that the family court wrongly ordered the children returned to the home of their allegedly abusive and neglectful parents. In the family court, the law guardian stated that among other conduct, the abuse of the children's mother by their father (including some abuse in the presence of at least one of the children) subjected the children to risk of harm justifying removal from the home.
Among other evidence, the law guardian presented testimony of an ex-wife of the father concerning abuse he committed against her and their children during their marriage, acts which led to the father's criminal conviction for making terroristic threats. Id. at 21-24 [pin cites for I.H.C. refer to the opinion PDF on the court website]. The family court disregarded the ex-wife's testimony pursuant to New Jersey Rule of Evidence 404(b), which prohibits most "evidence of other crimes, wrongs, or acts ... to prove the disposition of a person in order to show that such person acted in conformity therewith." The Superior Court of New Jersey, Appellate Division, reversed, holding "that evidence of prior domestic violence committed by defendant-father against his ex-wife and the two children of a prior marriage was admissible in this case to prove the risk of harm to these children."
Before addressing the evidentiary issue, I should note that "significant litigation challenges the notion that witnessing domestic violence causes permanent emotional harm in the young." See N.J. Div. of Youth & Fam. Servs. v. S.S., 855 A.2d 8, 15-16 (N.J. Super. A.D. 2004); Nicholson v. Scoppetta, 820 N.E.2d 84 (N.Y. 2004) (answering questions certified from Second Circuit as part of protracted litigation concerning children removed from homes of battered parents); see also Marcy L. Karin, Changing Federal Statutory Proposals to Address Domestic Violence at Work, 74 Brook. L. Rev. 377, 381 & n.11 (2009) (discussing "policies that systematically remove the children of victims of domestic violence because the victims 'failed to protect' the children by 'allowing' them to witness the abuse"). The issues raised in such cases are beyond the scope of this post.
New Jersey Rule of Evidence 404(b) provides, in material part, that:
evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The rule is substantially similar to Federal Rule of Evidence 404(b) for purposes of this case. N.J.R.E. 404(b) and its federal counterpart exist primarily "to guard a defendant's right to a fair trial by avoiding the danger that a jury might convict the accused because the jurors perceive him to be a bad person." I.H.C. at 25.
As the federal advisory committee notes put it: "No mechanical solution is offered," and a determination of whether to admit evidence of other crimes for a proper purpose depends on "whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403."
Here, the New Jersey court distinguished use of evidence of prior bad acts for the purpose of proving a defendant's propensity to commit conduct like that charged in a particular case and use of such evidence to establish that children are in danger. "We now hold that in civil proceedings for the protection of a child, a parent or guardian's past conduct can be relevant and admissible in determining risk of harm to the child." I.H.C. at 28. The court provided multiple reasons for its decision and explained its scope:
The trial judge understood the significance of the experts' testimony but concluded that evidence of the risk that defendant-father would again engage in domestic violence was essentially synonymous with evidence of his propensity or disposition to commit domestic violence. The judge concluded that the evidence was therefore prohibited by the language of N.J.R.E. 404(b) when based on prior crimes or bad acts.
The abuse or neglect statutes, however, expressly require that the court assess risk to the children. … By the language of those statutes, the Legislature has made risk of harm, not just past injury or acts, relevant to determining whether a child is an abused or neglected child. Consequently, the risk, or pre-disposition, that a defendant may harm the children is expressly admissible in an abuse or neglect case despite the general evidentiary prohibition contained in N.J.R.E. 404(b).
We also note that in abuse or neglect cases, a judge rather than a jury hears the evidence and makes findings of fact. One of the primary reasons for the prohibition of character evidence to show disposition, namely, misuse of that evidence by lay jurors, is not present in such a non-jury case. …
Our conclusion does not mean that N.J.R.E. 404(b) should never be applied in abuse or neglect cases to determine admissibility of other crimes or bad acts evidence. … We only hold that where expert testimony in an abuse or neglect case provided support for a finding that defendant's prior acts of domestic violence show his disposition to commit such violence, the court should have admitted that evidence in assessing risk of harm to the children.
Id. at 31-33. The law guardian asked the New Jersey court to make a fine distinction between concluding that a prior criminal probably committed a specific crime and concluding that a prior abuser is probably a danger to his children. Guidance from the legislature, which enacted statutes anticipating the question, helped the court to decide that the distinction was valid.
August 10, 2010
No Alternative: Maine Supreme Judicial Court Affirms Exclusion of Alternative Suspect Theory
In my last post, I discussed State v. Mitchell, --- A.2d ---, 2010 WL 3034607 (Me. Aug. 5, 2010), wherein the Supreme Judicial Court of Maine held that use of an autopsy report did not deprive a murder defendant of his rights under the Confrontation Clause despite his inability to cross-examine the report's author.
This post discusses the trial court's rejection of the defendant's proffered evidence of an alternative suspect, a ruling affirmed on appeal (with one justice dissenting). Thomas Mitchell, charged with a 1983 murder, wished to introduce evidence supporting a theory that the crime was committed by the victim's neighbor. To review the trial court's rejection of the alternative suspect evidence, the Supreme Judicial Court considered Maine Rule of Evidence 403, which is identical to the analogous federal rule, along with constitutional doctrines protecting the accused’s opportunity to present a complete defense.
Maine Rule of Evidence 403 provides:
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.
For evidence regarding alternative suspects, Maine courts will admit evidence
if (1) the offered proof is admissible at trial, and (2) the admissible evidence “is of sufficient probative value to raise a reasonable doubt as to the defendant’s culpability” by establishing a reasonable connection between the alternative suspect and the crime. ... A defendant may establish a reasonable connection between the alternative suspect and the crime without clearly linking the alternative suspect to the crime, as is required in some other jurisdictions. ... In short, whether to admit alternative suspect evidence of any variety depends on both the admissibility of the information contained in the offer of proof and the probative value of the proffered evidence in establishing a reasonable connection between the alternative suspect and the crime.
Mitchell, at ¶25, ¶27, ¶30 (internal citation omitted). In Mitchell, the defendant was linked to the crime by DNA evidence, including material found in the victim's mouth and under her fingernails. The state's expert concluded that "The probability of a random match was one in 69.4 quadrillion." Id. at ¶16. Other evidence against Mitchell was quite strong. Id. at ¶2-¶17.
To rebut the state's case, Mitchell attempted to show that another man had committed the murder. Reviewing the proffered alternative suspect evidence, the court noted, "The only physical evidence offered by Mitchell that could reasonably connect the neighbor to the crime scene was the evidence connecting a pair of shoes owned by the neighbor to the shoe print evidence that was preserved at the crime scene. A lay witness was prepared to testify that the neighbor’s shoes were 'similar to' the shoe model that Mitchell owned and that 'the sole design of that model may resemble the one on [the neighbor’s] shoe'” (brackets in original). Finding this lay testimony inadmissible under Maine Rule of Evidence 701 (which concerns opinion testimony by lay witnesses), id. at ¶36, the court reviewed the remaining evidence at issue:
Assuming for purposes of our analysis that all of the other proof that Mitchell offered was admissible, we conclude that the court acted within the bounds of its discretion by excluding the alternative suspect evidence. Mitchell offered proof that the neighbor had a two-tone car [as did Mitchell, and such a car was seen near the victim's house], that he resembled the composite picture that the police developed with the mail carrier [who saw the car], that he had been violent before, that he did not necessarily like Flagg [the victim], that his alibi was unsubstantiated, that his behavior was strange after the murder, and that he could not be ruled out as the source of two indistinct fingerprints. These facts provide only weak proof of motive or propensity, and only moderately probative evidence of opportunity, mistaken identity, or suspicious post-crime behavior.
Id. at ¶38. The court found that the evidence "did not rise above the level of speculation and did not establish a reasonable connection between the neighbor and the crime" and accordingly found no abuse of discretion in the trial court's exclusion.
In dissent, Justice Silver argued that "Mitchell met the reasonable-connection standard." Id. at ¶51.
Mitchell proffered evidence including the description of a man seen driving suspiciously from the area and testimony that the neighbor fit the description and owned a similar car and clothing to the man; testimony that the shoe impressions taken from the scene were from a brand of shoe that the neighbor was known to own; evidence that the neighbor was violent; evidence that the neighbor dated a friend of the victim and that the victim had interfered in an argument between the neighbor and the woman; evidence that the neighbor had met the victim at a work party; evidence that the neighbor told police repeatedly that he was at a restaurant but none of the many employees who knew him well had seen him there; testimony that the neighbor acted oddly after the murder; and evidence that the neighbor had damage to his car consistent with damage that may have occurred to the car seen leaving the vicinity of the scene.
Id. Finding that such evidence is "much stronger than in cases where [the Supreme Judicial Court has] held that alternative suspect evidence was properly excluded," Justice Silver wrote that he "would vacate the judgment and remand for a new trial allowing the alternative-suspect evidence to be heard by the jury." Id. at ¶52, ¶54.
I lean toward the dissent's conclusion. At a minimum, it seems that the trial judge created a close question on appeal without good cause. The evidence against Mitchell was compelling (DNA, shoes matching footprints at the crime scene, prior animus toward the victim), making it highly unlikely that the alternative suspect evidence---even if potentially excludable---would have confused the jury. In addition, Mitchell was on trial for a heinous crime, for which he was eventually sentenced to life imprisonment. If he knew of another man who insulted the victim and otherwise acted in a suspicious manner, he deserved his chance to present his implausible theory of the case, however strong the state's evidence.
The Opinion Speaks For Itself: Western District Of Pennsylvania Finds That Res Ipsa Loquitur Is Not A Cause Of Action
Res ipsa loquitur (Latin for "the thing speaks for itself") is an evidentiary rule that a plaintiff can use when he has evidence that the defendant very likely injured him through negligence but cannot prove the particular manner in which the accident was caused. See Hector v. Christus Health Gulf Coast, 175 S.W.3d 832, 837 (Tex.App.-Houston 2005). The basic significance of res ipsa loquitur is that it allows the circumstantial evidence submitted by the plaintiff to get to a jury, and thus prevents summary judgment for the defendant on a cause of action sounding in negligence. As these descriptions and the recent opinion of the United States District Court for the Western District of Pennsylvania in Tennis v. Ford Motor Co., 2010 WL 2978073 (W.D.Pa. 2010), make clear, res ipsa loquitur is merely a rule of evidence and not a cause of action.
a fire...ignited unexpectedly and spontaneously from a 1997 Ford Expedition while it was parked inside of a warehouse on or about December 23, 2007....As a result of the fire, Plaintiffs allege[d] that they suffered "loss of income, interruption of their business, loss [sic] of improvements to the warehouse, business relocation expenses, loss of use of their money, loss of use of their property, damage to their property, loss of contents in the building, and incurred interest expenses to finance the repairs."...Plaintiffs claim[ed] that the smoke and heat from the fire damaged their real and personal property.
The plaintiffs thus brought a complaint against Ford, alleging the following causes of action:
(I) Strict Liability, (II) Negligence, (III) Breach of Implied Warranty of Merchantability, (IV) Fraud, (V) Negligent Misrepresentation, (VI) Fraud by Non-Disclosure, (VII) Breach of Contract, (VIII) Res Ipsa Loquitur, and (IX) Punitive Damages.
Ford, inter alia, moved to dismiss the count claiming res ipsa loquitur as an independent cause of action, citing Fassbinder v. Pa. R.R. Co., 322 F.2d 859, 863 (3rd Cir.1963) to support its argument that res ipsa loquitur is a rule of evidence and not a cause of action, a ground for recovery, or an issue. The United States District Court for the Western District of Pennsylvania agreed finding that
res ipsa loquitur is "only a shorthand expression for circumstantial proof of negligence, a rule of evidence."...It is "neither a rule of procedure nor one of substantive tort law."...Res ipsa loquitur is also not a theory of recovery, but rather a rule of circumstantial evidence....As a rule of evidence, the doctrine of res ipsa loquitur “is brought into play where the situation presented makes it applicable. It does not have to be pleaded in the complaint or noticed by specific designation to the adverse party at a pre-trial or at trial, since it is neither a cause of action not a ground for recovery, nor an issue.'"
August 9, 2010
The Autopsy Business: Maine Supreme Judicial Court Holds Medical Examiner Autopsy Report Not Testimonial
Many thanks to Colin for inviting me to visit here. I'll start with a case from Maine in which a decades-old murder case was closed with DNA evidence.
The Supreme Judicial Court of Maine held in State v. Mitchell, --- A.2d ---, 2010 WL 3034607 (Me. Aug. 5, 2010), that use of an autopsy report did not deprive a murder defendant of his rights under the Confrontation Clause despite his inability to cross-examine the report's author.
Since the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), much debate has ensued about what statements are "testimonial" and therefore are inadmissible absent cross-examination. The Sixth Amendment's Confrontation Clause provides "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him," and the Crawford Court held “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 541 U.S. at 68-69.
Crawford abrogated decades of precedent under which evidence admitted pursuant to hearsay exceptions did not violate the Confrontation Clause, so long as the evidence fell within “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” See Ohio v. Roberts, 448 U.S. 56, 66 (1980).
Because under Crawford the statement of an absent witness is inadmissible if "testimonial," courts have struggled to decide whether various categories of documents are testimonial. The Supreme Court's recent decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), holding that forensic evidence showing that material seized by police was cocaine could not be admitted unless the author was available for cross-examination, has further complicated the exercise. Here, the Maine court decided that use of an autopsy report (which other courts have held may be admitted as business records without offending Crawford, see, e.g., United States v. Feliz, 467 F.3d 227, 233-35 (2d Cir. 2006)) did not violate a defendant's rights.
The Maine court quoted Justice Thomas's concurrence in Melendez-Diaz, noting that because the decision holding the forensic evidence to be "testimonial" received only five votes, Justice Thomas's narrower interpretation of "testimonial" is controlling.
It is unclear whether the Court's holding in Melendez-Diaz should be applied so as to permit the State to offer an expert witness's testimony based on an autopsy report that the expert witness did not author. Justice Thomas stated in his concurring opinion that he “continue[s] to adhere to [his] position that the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” See id. at ----, 174 L.Ed.2d at 333 (Thomas, J., concurring) (quotation marks omitted). The opinion suggests that the rationale of Melendez-Diaz should be limited to trial-oriented documents and should not extend to documents, such as autopsy reports, that are produced during the investigation.
Mitchell, at ¶ 43. The opinion notes, however, that courts have diverged on how to treat autopsy reports, making the issue one to watch. Id. at ¶ 44.
To further support its conclusion, the Maine court noted a distinction between Mitchell and other cases concerning autopsy reports.
The present case is distinguishable from those cases that excluded autopsy reports because here, the State did not offer the autopsy report itself in evidence. Rather, the State offered the testimony of Greenwald to establish the cause of death and identify defensive wounds. Because Mitchell was able to cross-examine Greenwald [a different Medical Examiner] concerning her expert testimony, this case is also distinguishable from Melendez-Diaz, where no live witness was made available for cross-examination. See Lui, 221 P.3d at 955-56. Further, in light of Justice Thomas's concurrence in Melendez-Diaz, it appears unlikely that the majority of the Supreme Court intended to include autopsy information underlying expert testimony in the same category as evidence “prepared specifically for use at ... trial.” Melendez-Diaz, 557 U.S. at ----, 174 L.Ed.2d at 329; see also id. at ----, 174 L.Ed.2d at 333 (Thomas, J., concurring). For these reasons, the admission of Greenwald's testimony did not violate Mitchell's confrontation rights.
The Supreme Court may have to settle the questions of autopsy reports, including whether having a live witness opine on the basis of an absent witness's report satisfies the new Confrontation Clause jurisprudence. Requiring cross-examination of report authors could effectively create a statute of limitations for murder, for old cases will tend to have unavailable affiants. In Mitchell, for example, the autopsy occurred in 1983, and DNA evidence allowed the defendant's arrest only in 2006. (For a prescient student article raising this issue before Melendez-Diaz was decided, see Carolyn Zabrycki, Comment, Toward a Definition of "Testimonial": How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093, 1115 (2008).)
Mitchell also presents an interesting question of whether the trial court erred or abused its discretion in excluding evidence of an alternative suspect, to which I will return in my next post.
Inconsistent Inconsistency: Court Of Appeals Of Utah Opinion Reveals Differences Between Federal And Utah Rules Of Evidence On Prior Inconsistent Statements
Federal Rule of Evidence 801(d)(1)(A) provides that
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...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition....
Utah Rule of Evidence 801(d)(1)(A) is broader. It provides that
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...inconsistent with the declarant's testimony or the witness denies having made the statement or has forgotten....
In other words, under the federal rule, only sworn prior inconsistent statement qualify as nonhearsay, but, under the Utah, rule, even unsworn prior inconsistent statements qualify as nonhearsay. And, in the Court of Appeals of Utah's recent opinion in State v. Zaelit, 2010 WL 2961469 (Utah App. 2010), this distinction made all the difference.
In Zaelit, Zachery Don Zaelit was convicted of theft by receiving stolen property.
Zaelit's conviction was based on his participation in the theft of a vehicle. Three companions accompanied Zaelit on the night of the theft, one of whom pleaded guilty to his own participation in the crime. At trial, two law enforcement officers provided testimony establishing that all three of Zaelit's companions had made statements implicating Zaelit in the theft. However, at trial, each of the companions either denied having made the statements or asserted that his or her original statement to law enforcement was not true. Nevertheless, the jury found Zaelit guilty.
After he was convicted, Zaelit appealed, claiming, inter alia, that :the out-of-court statements could not support the verdict because the permissible use of a prior inconsistent statement under rule 801(d)(1) of the Utah Rules of Evidence is limited to impeachment." The Court of Appeals of Utah disagreed, finding that
The State correctly notes that rule 801(d)(1), which provides that prior inconsistent statements of a witness who testifies at trial are not hearsay...“deviates from the federal rule in that it allows use of [unsworn] prior [inconsistent] statements as substantive evidence,"...Thus, the out-of-court statements of the three witnesses could properly be used as substantive support for the verdict.
August 8, 2010
Please Welcome Guest Blogger Ben Trachtenberg
Ben Trachtenberg, a Visiting Associate Professor of Law at the University of Missouri School of Law, will be joining EvidenceProf Blog as a guest blogger starting tomorrow. Trachtenberg is a 2001 graduate of Yale University and a 2005 graduate of the Columbia Law School, where he was an Articles Editor on the Columbia Law Review and both a James Kent Scholar and Harlan Fiske Stone Scholar. Prior to visiting at Missouri, Trachtenberg was a judicial clerk for Judge José A. Cabranes of the Second Circuit, an associate at Covington & Burling LLP, and a Visiting Assistant Professor at the Brooklyn Law School.
Trachtenberg's publications include State Sentencing Policy and New Prison Admissions , 38 U. MICH. J.L. REFORM 479 (2005), Incarceration Policy Strikes Out: Exploding prison population compromises the U.S. justice system, A.B.A. JOURNAL, Feb. 2009, and Coconspirators, "Coventurers," and the Exception Swallowing the Hearsay Rule, 61 HASTINGS L.J. 581 (2010). At Missouri, he will be teaching Evidence, Criminal Procedure, and Trial Practice.
Kill Me Again: D.C. Court Of Appeals Narrowly Reads Forfeiture By Wrongdoing Doctrine In Stabbing Appeal
"Under the forfeiture-by-wrongdoing doctrine, a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying." Roberson v. United States, 961 A.2d 1092, 1095 (D.C.2008) (emphasis added) (citing Giles v. California, 128 S.Ct. 2678, 2684 (2008)).
And, as the above language, Giles, and the recent opinion of the District of Columbia Court of Appeals in Zanders v. United States, 2010 WL 2944294 (D.C. 2010), the doctrine of forfeiture by wrongdoing can never apply to statements made by the alleged victim of crime regarding the identity of the perpetrator of that crime. But what about if the perpetrator attacks the victim with the intent of killing him and later finishes the job. Can statements made between these two events be admitted under the doctrine?
In Zanders, Thomas Zanders was convicted of several felony offenses in connection with the stabbing of Allan Lancaster in May 2000, and of the murder of Lancaster and a bystander six weeks later. After the initial stabbing, Lancaster told police officers at the fire station and hospital where he was taken that he was stabbed by Zanders. Evidence produced at trial indicated that Zanders stabbed Lancaster because Lancaster had previously robbed Zanders. Six weeks after the stabbing, Zanders allegedly finished the job, murdering Lancaster as well as a bystander.
After Zanders was convicted, he appealed, claiming, inter alia, that Lancaster's statements after the stabbing were improperly admitted under the forfeiture by wrongdoing doctrine. The District of Columbia Court of Appeals agreed and reversed Zanders' convictions relating to the stabbing, finding that the prosecution failed to present any evidence that Zanders killed Lancaster with the purpose of preventing him from testifying against him. Instead, the court found that the evidence supported the theory that Zanders killed Lancaster as revenge for the robbery that Lancaster previously committed against Zanders.
I get the court's point, but I disagree. Instead, I think that in the unsuccessful-murder-attempt-followed-by-successful-murder-attempt fact pattern in cases such as Zanders, an intent to prevent the victim from testifying at trial should be implied. Sure, Zanders wanted to kill Lancaster based upon the robbery, which is what led to the initial stabbing. And, of course, that robbery still formed the partial basis for Zanders later, successful attempt at Zanders' life. But once Zanders failed in his initial attempt to kill Lancaster, isn't it pretty easy to infer that Zanders had an additional reason to want to kill Lancaster?
After his initial attempt to kill Lancaster failed, Zanders must have known that he could have been prosecuted for attempted murder and that Lancaster's testimony would have been essential to that prosecution. So, why couldn't the court assume that Zanders was motivated at least in part in his later, successful attempt at Lancaster's life by a desire to prevent Lancaster from implicating him at a trial related to the stabbing?