EvidenceProf Blog

Striking Out: District Of Arizona Finds Rule 11(f) Motion Inappropriate Vehicle For Evidentiary Objection

Federal Rule of Civil Procedure 11(f) provides that

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

So, let's say that a plaintiff includes factual allegations in a complaint which the defendant believes are based upon inadmissible evidence. Can the defendant move to strike these allegations under Rule 11(f)? According to the recent opinion of the United States District Court for the District of Arizona in TriQuint Semiconductor, Inc. v. Avago Technologies, Ltd., 2010 WL 3034880 (D. Ariz. 2010), the answer is "no."

In Avago, both TriQuint Semiconductor, Inc. and Avago  

had concerns about patent infringement and misappropriation of trade secrets....By spring of 2009, Plaintiff and Defendants entered into several discussions designed to settle the dispute....To facilitate these discussions, the parties entered into a Non-Disclosure Agreement ("NDA")....The NDA required both parties to not reveal any of the information obtained during the settlement discussions to third parties.

These discussions, however, were ineffective, and TriQuint later filed a complaint against Avago for patent infringement.

On July 23, 2009, Plaintiff filed a complaint against Defendants for patent infringement. Avago thereafter, inter alia, moved to strike paragraphs 45-49 of TriQuint's proposed amended complaint under Federal Rule of Civil Procedure 11(f) because they were based upon events occurred during settlement negotiations and evidence relating to such negotiations is inadmissible under Federal Rule of Evidence 408.

The United States District Court for the District of Arizona, however, denied this motion, finding that "Rule 12(f) governs striking material from pleadings, not evidence." Accordingly,

Disputes over Rule 408 should be resolved as evidentiary matters with motions in limine rather than prematurely in Rule 12(f) motions. Peace Software, Inc. v. Hawaiian Elec. Co., Inc., 2009 WL 3923350, *8-9 (D.Haw.2009) (noting that the court typically reviews only the face of the complaint to determine validity of Rule 12(f) motions and declining to strike allegations of a complaint under Rule 408 and an alleged NDA); see BPI Energy, Inc. v. IEC, No. CV-09-00408, 2007 WL 3355363, * 1 (S.D.Ill.2007) (denying motion to strike under a NDA and Rule 408, and holding “[t]he Second Amended Complaint is not evidence; rather it sets forth allegations. Therefore, on its face, Rule 408 is not applicable at this juncture.”); Steak Umm Co. v. Steak ‘em UP, Inc., No. CV-09-2857, 2009 WL 3540786, *3 (E.D.Pa.2009) (“[Rule 408] is a rule of evidence and does not govern pleadings;” denying motion where reference to settlement discussions may be potentially relevant).

-CM

Passion and Prejudice: Divided S.C. Supreme Court Allows Dramatic Funeral Footage in Sentencing Phase

Members of the Bixby family in Abbeville County threatened violence when South Carolina officials informed them of plans to "take advantage of a right of way ... across the Bixbys' property" to expand South Carolina Route 72.  Steven V. Bixby, son of the property owners, informed one official "that he was from New Hampshire and he said that, you know, their motto was something like, you know, if I can't --- I'd rather be dead if I can't be free, something like that."  Days later, he said he would "blow their mother f****** heads off if they step one step onto [his] parent's property" (asterisks in original).  He made good on his threats the next day, killing two law officers on his parents' land, and was convicted of murder and sentenced to death.  State v. Bixby, --- S.E.2d ----, 2010 WL 3219290, at *1-*3 (S.C. Aug. 16, 2010) [pin cites refer to Westlaw pagination]; see also Bob Moser, "The Abbeville Horror" (Southern Poverty Law Center "Intelligence Report," Spring 2004).

The appeal raised several interesting issues, including questions concerning the proper scope of voir dire in a capital case, the relevance of proffered evidence excluded by the trial judge concerning the family's prior experience with property disputes, and how ignorance of the proper location of South Carolina records concerning highway rights of way can disqualify a witness from testifying.  I recommend the entire opinion.  This post, however, concerns only the admission during the penalty phase of a videorecording of the funeral of a victim.

After the jury convicted Bixby of the murders, the court held a penalty phase proceeding to determine whether to impose the death penalty.  During the hearing, "it admitted a seven minute video showing portions of [one victim's] funeral."

The video at issue here contained footage that showed the folding of an American flag over the closed coffin; the playing of "Taps" on a trumpet; footage of mourners; and a recording of a fictional 911 call in which Deputy Wilson is given permission to "return home," a tradition at law enforcement funerals.  Over Appellant's objection, the trial judge concluded that the video was admissible because it went to the question of the victim's uniqueness, showed the harm committed by Appellant, and showed the impact of the victim's death on his family and the community.

Bixby, at *13.  The Supreme Court of South Carolina affirmed the conviction, voting 3-2 that the evidence was properly admitted.  Bixby offered two reasons that the evidence should have been rejected.  First, S.C. Stat. 16-3-25(C)(1) instructs the supreme court to consider whether a "sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor."  Second, S.C. Rule of Evidence 403 (which is identical to Fed. R. Evid. 403) provides that "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."

The majority affirmed the death sentence with the following explanation:

Turning to Appellant's argument, ... this Court vacated [a different murderer's] death sentence holding that a staged funeral procession in which the solicitor draped a large, black shroud over a baby crib and dramatically wheeled it out of the courtroom introduced an arbitrary factor into the sentencing phase of the defendant's trial.  The instant matter is distinguishable from [the crib case] for one major reason: the video showed events that actually took place, whereas the [crib] funeral was a staged dramatization. ... A staged funeral procession in which a solicitor dramatically and in person drapes a shroud over a baby's crib has more of a tendency to elicit passion and prejudice than a videotape showing excerpts from a victim's actual funeral.

Turning to the State's argument, a State may conclude that victim impact evidence "is relevant to the jury's decision as to whether or not the death penalty should be imposed."  Payne, 501 U.S. at 827.  Victim impact evidence demonstrates "the loss to the victim's family and to society which has resulted from the [victim]'s homicide."  Id. at 822.  We find the videotape at issue was victim impact evidence because it showed the traditional trappings of a law enforcement officer's funeral, demonstrating the general loss suffered by society.  Additionally, the video showed footage of actual mourners, displaying for the jury the specific impact of the murder on particular members of society.  Thus, we hold the video was victim impact evidence pursuant to Payne.

Nonetheless, this evidence is subject to Rule 403, ....  We find the probative value of the videotape was not substantially outweighed by the danger of unfair prejudice.  As the trial judge ruled, the videotape was relevant to show the uniqueness of the victim, the harm committed by Appellant, and the impact of the victim's death on his family and society.

Additionally, deference is due to the trial court's admission of the evidence.  After all, "[a] trial judge has considerable latitude in ruling on the admissibility of evidence and his ruling will not be disturbed absent a showing of probable prejudice."  Ard, 332 S.C. at 378, 505 S.E.2d at 332.  In our view, it is not probable that Appellant was prejudiced by the State's presentation of the videotape at issue to the jury.

Bixby, at *14.  Writing for himself and another member of the court, Justice Pleicones dissented over the admission of the funeral video (along with the voir dire issue mentioned in passing above):

In my opinion, the video did not demonstrate anything about the victim's uniqueness, or the impact of his loss on his family or friends or on community groups with which he had been involved.  Instead, the video contains a staged 911 call which, we are informed, is standard at law enforcement funerals and thus not related to Deputy Wilson as an individual.  Moreover, video of unidentified mourners does not demonstrate the impact of Deputy Wilson's death on his family or friends, ... but rather reflects the affect of unidentified persons attending the funeral.  Payne evidence is intended to show the lasting consequences of victim's death, while a funeral video merely preserves the visible expressions of grief exhibited by persons attending the service.

Under Payne, the jury is constitutionally permitted to consider "the specific harm caused by the crime in question" through the introduction of "evidence about the victim and about the impact of the murder on the victim's family."  In my view, Payne evidence must be presented through testimony of those who have suffered as a result of the victim's death.  Cf. Humphries v. State, 351 S.C. 362, 570 S.E.2d 160 (2002) (Payne permits victim impact evidence in the form of testimony).  I find the video tape, including the staged 911 call, did not constitute Payne evidence.

Unlike the majority, I find appellant suffered prejudice as the result of this improper evidence.  I venture to say there are few individuals who could view this video without themselves being moved both by sympathy for the mourners and by outrage at the person who inflicted this suffering.  Even if appellant did not suffer prejudice, I would hold the admission of this video violated the statutory prohibition of a death sentence "imposed under the influence of passion, prejudice, or any other arbitrary factor," S.C. Code Ann. § 16-3-25(C)(1) (2003), and thus requires that we reverse the sentencing proceeding.

Id. at *19.  This sad case has spawned many legal arguments.  Those interested in the scope of offenses subject to capital punishment should see State v. Bixby, 373 S.C. 74, 644 S.E.2d 54 (S.C. 2007) (holding, over dissent of chief justice, that state could not seek death sentence against Rita Bixby, Steven's mother, because "the Legislature has not shown an intent to make one charged with accessory before the fact to murder death penalty-eligible").

Finally, I'd like to thank Colin once again for inviting me to guest blog during the past two weeks.  It has been a pleasure, and I hope to post here again in the future.

  - Ben Trachtenberg

Can I Get A Witness?: Second Circuit Finds Hearsay Declarants Not Covered By Jencks Act

18 U.S.C. Section 3500(b), part of the Jencks Act, provides that

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

Meanwhile, Federal Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

And, Federal Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

So, let's say that two defendants have several alleged co-conspirators. And let's say that that the prosecution does not plan to call these alleged co-conspirators as witnesses at trial but does plan to introduce their statements though other witnesses as co-conspirator admissions. Are the statements of these alleged co-conspirators covered by the Jencks Act because Rule 806 treats such declarants as witnesses? According to the recent opinion of the Second Circuit in United States v. Shyne, 2010 WL 3035519 (2nd Cir. 2010), the answer is "no."

In Shyne, the facts were as stated above, with the prosecution claiming that the alleged co-conspirators were not witnesses and thus not covered by the Jencks Act. Thus, the prosecution

provided defense counsel a three page letter that detailed what the district court characterized as impeachment material for those five coconspirators. The government did not, however, turn over to defense counsel a comprehensive set of notes from its proffer sessions with the non-testifying co-conspirators.

After they were convicted, the defendants appealed, claiming, inter alia, that "because Rule 806 treats a declarant as if he is a testifying witness for the purposes of attacking his credibility, the declarant must also be considered a witness under the Jencks Act." The Second Circuit noted that this was an issue of first impression for it but also noted that the D.C. Circuit had rejected a similar argument, finding that "merely because one set of rules...makes two distinct items equivalent for some specific purpose, it does not follow that they are equivalent for all related purposes."

The Second Circuit agreed with this holding, concluding that

The defendants' argument that because a non-testifying declarant's statement comes into evidence against them somehow converts that declarant into the equivalent of a witness who has appeared and testified under oath is the proverbial comparison of apples to oranges. The production of materials in possession of the Government that a defendant may use to take advantage of the opportunity to impeach a declarant under Rule 806 and the Government's obligation to produce such materials of which its agents have knowledge do not have their roots in the Jencks Act. Rather they arise under due process obligations articulated in Brady and Giglio, obligations with which the Government complied by issuing its letter describing the declarants' various foibles including the fact that one of the declarants lied during his proffer session....Although, for impeachment purposes, Rule 806 treats a declarant speaking in furtherance of the conspiracy as if he were a witness, we do not believe that also means that a declarant whose statement is being repeated and a witness who gives live testimony are equal under the Jencks Act. To hold otherwise would be contrary to the express language of the Jencks Act which states that no disclosure is warranted until "said witness has testified on direct examination in the trial of the case."...Appellants are unable to point to any cases to the contrary.

-CM

Identity Crisis: Oregon Court Admits Prior Crimes Evidence to Show Identity

The Court of Appeals of Oregon recently distinguished, for purposes of admitting evidence of prior crimes committed by a defendant, between the defenses of "The alleged crime never happened" and "You've charged the wrong person."  If a defendant asserts that the alleged crime never occurred, then evidence of similar prior acts by the defendant is inadmissible "propensity" evidence.  But if the defendant argues that someone other than the defendant did the deed, then evidence of the defendant's prior conduct may be admitted to prove "identity" of the perpetrator.

In State v. Pitt, --- P.3d ----, 2010 WL 3239406 (Or. App. Aug. 18, 2010), the prosecution charged Douglas Pitt with child molestation.  At trial, the jury heard "evidence of misconduct not charged in [the] indictment, including his earlier sexual abuse of the victim and her same-aged cousin."  The defendant appealed his conviction, arguing that the evidence was improperly admitted.  The appeals court affirmed, relying in part on the nature of Pitt's defense at trial.

Pursuant to Oregon Evidence Code 404(3),

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted 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.

The rule is similar to Federal Rule of Evidence 404(b).

As summarized by defense counsel, Pitt's "defense is and has always been that this didn't happen, that he didn't do it, if it did happen, it wasn't him.  And so the question of intent is really not at issue in this case."  The court disagreed, stating that had Pitt relied solely on the "this didn't happen" theory, then his prior acts would have been inadmissible.  Because, however, he speculated (among other theories) "that the victim's initial identification of her abuser as 'Doug' was ambiguous, because Doug is not only defendant's name but also the name of one of the victim's relatives," Pitt placed the identity of the abuser into dispute, converting Pitt's prior abuse of the victim and her cousin from improper propensity evidence into evidence "admissible for other purposes, such as proof of ... intent."

The court carefully distinguished cases like Pitt's from those in which defendants advance "no argument that someone else had perpetrated acts of abuse against the victims."  In such cases, prior bad acts by defendants would not be admissible.  Pitt, at n.2.  Here, the court concluded "that, because one of defendant's theories was that someone else was the perpetrator of any abuse of the victim, the uncharged misconduct evidence was relevant to a contested fact, namely, the accuracy of the victim's identification of her abuser."

  - Ben Trachtenberg

Completely Infeffective: Court Of Appeals Of Indiana Uses Rule Of Completeness To Reject Ineffective Assistance Of Counsel Claim

Like its federal counterpart, Indiana Rule of Evidence 106 provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require at that time the introduction of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it.

What this means is this whenever a party introduces part of a writing or recorded statement that helps his case, there will usually be another part of that writing/recorded statement or another writing/recorded statement that hurts his case. And what this means is that a party will likely be unable to prove a claim of ineffective assistance of counsel when his trial attorney fails to introduce a writing/recorded statement that is both helpful and hurtful to his case, which is what happened in the recent opinion of the Court of Appeals of Indiana in Chenoweth v. State, 2010 WL 3011960 (Ind.App. 2010).

In Chenoweth, James Chenoweth was charged with two counts of Class A felony child molesting. Before trial, there was a "Protected Person's Statute" ("PPS") hearing, during which (1) the alleged victim apparently merely testified that Chenoweth touched the outside with her vagina with his finger, and (2) the alleged victim's mother apparently testified that she did not tell two individuals that she saw the victim inappropriately playing with dolls. At trial, the alleged victim and her mother provided testimony that was apparently inconsistent with their testimony at the PPS hearing. At trial, however, defense counsel did not introduce the relevant portions of the transcript of the PPS hearing, and Chenoweth was eventually convicted of both counts of child molesting.

Chenoweth thereafter appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial attorney failed to introduce these portions of the transcript of the PPS hearing. The Court of Appeals of Indiana disagreed, finding that if Chenoweth's trial counsel would have introduced these favorable portions of the transcript, it would have opened the door for the admission of several other unfavorable portions of the transcript pursuant to Indiana Rule of Evidence 106. Specifically, the court noted that these unfavorable portions would have revealed that

(1) the victim was in fear of Chenoweth; (2) the victim had to sit on the prosecutor's lap during a portion of the questioning; and (3) a child psychologist testified that the victim described several sexual acts that involved her and Chenoweth. Additionally, trial counsel would have revealed that the victim now was afraid to enter bathrooms because of sexual acts that Chenoweth committed with her in his bathroom. Furthermore, trial counsel would have revealed the child psychologist's testimony that post-traumatic distress caused the victim's change of testimony.

Thus, the court found that "[g]iven the nature of these portions of the victim's PPS hearing testimony, trial counsel's decision to forgo the use of the transcript does not constitute ineffective assistance of counsel."

-CM

Domestic Abuse Exception Allows Prior Bad Acts Evidence Into Minnesota Court

Minnesota Rule of Evidence 404(b) restricts the admission of evidence concerning a party's prior bad acts.  The rule is similar to Federal Rule of Evidence 404(b).  In State v. Barnslater, --- N.W.2d ----, 2010 WL 3220020 (Minn. App. Aug. 17, 2010), the Minnesota Court of Appeals illustrated the importance of an exception to Rule 404 that applies to evidence of prior domestic abuse.

William Barnslater, convicted of "engaging in a pattern of harassing conduct" and of violating an order of protection concerning his former romantic partner (whose name is abbreviated in the opinion as "J.B."), argued on appeal that the trial court wrongly allowed the victim to testify about Barnslater's prior abuse of her and of her adult daughter.  In one incident described at trial, "Barnslater pushed J.B. to the floor, grabbed J.B.‘s daughter by the throat, and held J.B.‘s daughter so that her feet dangled above the floor. Based on this episode, Barnslater was convicted of fifth-degree domestic assault."  Barnslater, at 2-3 [pin cites refer to PDF of opinion].

Minn. Rule of Evid. 404(b) provides:

Evidence of another crime, wrong, or act 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. In a criminal prosecution, such evidence shall not be admitted unless (1) the prosecutor gives notice of its intent to admit the evidence consistent with the rules of criminal procedure; (2) the prosecutor clearly indicates what the evidence will be offered to prove; (3) the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence; (4) the evidence is relevant to the prosecutor’s case; and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant. ...

If the prior crime, wrong, or act was "similar conduct by the accused against the victim of domestic abuse, or against other family or household members," then the evidence is more easily admissible. Pursuant to Minn. Stat. § 634.20,

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. “Similar conduct” includes, but is not limited to, evidence of domestic abuse, violation of an order for protection ...; violation of a harassment restraining order ...; or [offenses involving stalking, harassment, and obscene telephone calls] ....

In State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004), the Supreme Court of Minnesota held that evidence admitted under Section 634.20 is admissible "without [the trial court] first determining that the evidence was clear and convincing."

Here, Barnslater was charged with engaging in a pattern of harassing conduct after he repeatedly bothered the victim, including calling her and her friends and even burgling her house.  Barnslater, at 3-4.  Because his prior conduct involved similar acts against J.B. and her daughter, the appeals court stated, "W]e need not address Barnslater's arguments that the notice and other requirements of Minn. R. Evid. 404(b) were not met."  Id. at 11 n.3.

The court explained that the availability of Section 634.20 depends on "whether the accused‘s underlying conduct constitutes domestic abuse ..., not on whether the particular offense ... charged" was a domestic abuse crime.  Id. at 8.  Accordingly, because the prosecution charged Barnslater with crimes against J.B., evidence of his prior domestic abuse of J.B. and her daughter was admissible regardless of what specific crime was charged in this case.

Note that the Federal Rules of Evidence contains rules similar to Section 634.20 concerning evidence of similar crimes in sexual assault cases and evidence of similar crimes in child molestation cases.  For a student comment advocating the adoption of rules similar to Minnesota's, see Sarah J. Lee, The Search for the Truth: Admitting Evidence of Prior Abuse in Cases of Domestic Violence, 20 U. Haw. L. Rev. 221, 240 (1998); see also Douglas E. Beloof & Joel Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims' Out of Court Statements as Substantive Evidence, 11 Colum. J. Gender & L. 1 (2002).

  - Ben Trachtenberg

Social Network: Court Of Appeals Of Ohio Finds Statement To Social Worker Covered By Rule 803(4)

Like its federal counterpart, Ohio Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

So, does the exception only cover a statement made to a medical professional (or a statement made to a person with the intention that it be passed along to a medical professional), or does it also cover a statement made to a social worker? Most courts have found that Rule 803(4) covers statements made to social workers, which is what the Court of Appeals of Ohio, Ninth District, found in its recent opinion in State v. Evans, 2010 WL 2990871 (Ohio App. 9 Dist. 2010).

In Evans, Joseph Evans was indicted on three counts of rape of a minor under the age of thirteen and one count of pandering obscenity of a minor, M.E.

Beckwith-Laube, a licensed social worker since 1989, testified that she has worked as a social worker at Children's Hospital Children At Risk Evaluation ("C.A.R.E.") Center for the past thirteen years. She met with M.E. based on a referral from Children's Services and interviewed M.E. to obtain a history from her before M.E. was examined by the nurse practitioner. Upon completing the interview, Beckwith-Laube informed the nurse practitioner of M.E.'s history to aid the nurse in performing her medical examination. In order to avoid having to repeatedly interview M.E. as to the offenses, personnel from Akron Police Department, Children's Services, and Victim Assistance were able to observe the interview from another room.

After he was convicted, Evans appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial counsel failed to object to Beckwith-Laube's testimony, which consisted of inadmissible hearsay. The Court of Appeals of Ohio, Ninth District, disagreed, first finding that "trial counsel's failure to make objections is within the realm of trial tactics and does not establish ineffective assistance of counsel." Moreover, the court found that it had "previously recognized the testimony of social workers falls well within the non-hearsay provision outlined in Evid .R. 803(4)."

-CM 

Permanent Record: Middle School Fight Presented to Jury in Trial about Killing Committed Years Later

On July 2, 2005, Peter McGuane and Daniel McGuane, twin brothers, encountered Kelly Proctor, whom they disliked.  Like the twins, Proctor lived in Ayer, Massachusetts and was attending the town's Independence Day fireworks display.  After a verbal argument arose over a seemingly trivial matter, Peter slapped Proctor's face, whereupon Peter and Daniel beat Proctor to death despite the efforts of Proctor's girlfriend and another bystander to stop the beating.  Several witnesses said the twins, who are both over 6 feet tall, repeatedly kicked and beat Proctor, who was 5 foot 8, in the head as he lay on the ground.  Prosecutors charged the twins with manslaughter.

At trial, the McGuanes offered multiple theories of the case, suggesting that (1) Daniel's participation was justified as defense of another (i.e., Peter) and (2) Proctor's death was an accident.  See Com. v. McGuane, --- N.E.2d ----, 2010 WL 3171011 (Mass. Ct. App. Aug. 13, 2010); Mary E. Arata, "McGuane twins lose appeal of conviction," Nashoba Pub. Online (Aug. 13, 2010).  In addition, they objected based on Massachusetts Rule 404 to admission of evidence concerning prior bad acts.

The prosecution presented evidence of a middle school incident in which "Daniel grabbed the handle bars of a bike the victim was riding, and slapped him in the face" as well as "instances when the victim and the defendants 'trash talked' to each other, and the defendants called the victim a 'bitch.'"  McGuane, at *1 [pin cites are to the Westlaw pagination].

In addition to rejecting challenges to jury instructions beyond the scope of this post (but interesting enough to merit a dissent), the court held that Rule 404 did not bar the disputed evidence.  Rule 404 provides:

(a) Character Evidence Generally. 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 as follows:

    (1) Character of the Accused. In a criminal proceeding, the accused may offer evidence of a pertinent trait in reputation form only, and the prosecution may rebut the same.
    (2) Character of the Victim. In a criminal proceeding, in support of a claim of self-defense,
        (A) the accused may offer evidence known to the accused prior to the incident in question of the victim’s reputation for violence, of specific instances of the victim’s violent conduct, or of statements made by the victim that caused reasonable apprehension of violence on the part of the accused;
        (B) where the identity of the first aggressor is in dispute, the accused may offer evidence of specific incidents of violence allegedly initiated by the victim, or a third party acting in concert with or to assist the victim, whether known or unknown to the accused, and the prosecution may rebut the same in reputation form only.
    (3) Character of the Witness. Evidence of the character of a witness for truthfulness or untruthfulness, as provided in Sections 607, 608, and 609.

(b) Other Crimes, Wrongs, or Acts. 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, nature of relationship, or absence of mistake or accident.

The court then recited authority from the Supreme Judicial Court construing the rule:

It is well established that the prosecution may not introduce evidence of the defendant's prior misconduct for the purpose of showing that he has a bad character or the propensity to commit the crime charged. See Mass. G. Evid. § 404(a) (2010). This evidence may be admissible if it is relevant for some other purpose. ... Mass. G. Evid. at § 404(b). Where the evidence is only marginally relevant, it should be excluded unless the probative value of the evidence outweighs the undue prejudice ‘that may flow from it.’ .... A judge's decision to admit such evidence is upheld unless there is clear error. ...

McGuane, at *4 (quoting Commonwealth v. Cruz, 456 Mass. 741, 751, 926 N.E.2d 142 (2010) (case cites within Cruz omitted)).  The court the applied the rule to Daniel's claim that the middle school slapping "incident occurred approximately six to eight years prior to the killing [and] was too remote in time, speculative, and prejudicial to be admissible."  Id.

There was no abuse of discretion. Here, the earlier incident between the defendant and the victim was relevant to explain what happened later, and was admissible because it was reasonably intertwined with the description of the events and presented a full picture of the events surrounding the killing. ... Moreover, there was evidence of ongoing animosity between the defendants and the victim-other incidents of verbal jousting between them, including the defendants calling the victim a “bitch.” The middle school incident was particularly relevant in this case, given that the defendants claimed that the victim's death occurred as the result of an accident. ...

Finally, any potential prejudice to Daniel caused by the admission of the evidence was mitigated by the limiting instructions contained in the final charge to the jury. The judge in this case, commendably sensitive to the potential for undue prejudice from the introduction of prior misconduct evidence, provided the jury with forceful limiting instructions at the close of the case.

Id.  The defendant's theory of the case made it easier for prosecutors to introduce evidence of his own prior bad acts toward the victim.

  - Ben Trachtenberg

My New Article -- Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence That They Rejected Favorable Plea Bargains

Today, I posted my new article, Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains, on SSRN. Here is the abstract:

Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions….” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence.

This article addresses the question of whether courts can consistently allow prosecutors to present defendants’ incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains. It concludes that courts cannot prevent defendants from presenting evidence that they rejected favorable plea bargains based upon Mezzanatto and that none of the arguments against admissibility hold water.  

-CM

Indiana Appeals Court to Psychologist: An Expert has an M.D., Unlike Thee

In a negligence action, plaintiff John Richmond alleged that he suffered back injuries and traumatic brain injury ("TBI") from a 2004 car accident.  To prove his claims concerning the TBI, he offered testimony from Sheridan McCabe, Ph.D., a psychologist who examined Richmond in 2006.  McCabe opined that (1) Richmond exhibits symptoms consistent with TBI, (2) Richmond did not exhibit such symptoms before the car accident, and (3) "it is my opinion that Mr. Richmond experienced a traumatic brain injury in the accident."  Bennett v. Richmond, --- N.E.2d ---, 2010 WL 3196193, at 3 (Ind. Ct. App. Aug. 13, 2010) [pin cites refer to opinion PDF].

The defendants (the driver of the truck that rear-ended Richmond and the company that employed the driver) appealed, arguing that McCabe's testimony should have been excluded by Indiana Rule of Evidence 702.  Distinguishing McCabe from medical doctors and others with "education or training relevant to determining the etiology of brain injuries," the court held that while McCabe could potentially testify about Richmond's medical condition (that is, his symptoms), "Dr. McCabe has not demonstrated that he is qualified to opine on causation in this case."  Bennett, at 8.  Concluding that absent evidence demonstrating that the accident was a but-for cause of Richmond's TBI, testimony about his symptoms was not relevant and therefore was inadmissible under Evidence Rule 402 ("Evidence which is not relevant is not admissible.").  Id. at 12.

Rule 702 provides:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

The court quoted a previous Indiana decision summarizing the holding of the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  Daubert construed Federal Rule of Evidence 702, which is quite similar to the analogous Indiana rule.  The Indiana court listed the following Daubert factors as useful in deciding whether to admit proffered expert testimony (while noting that the case is not binding in Indiana but is helpful):

(1) whether the theory or technique at issue can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the technique is generally accepted within the relevant scientific community.

Bennett, at 5 (quoting Shafer & Freeman Lakes Envtl. Conservation Corp. v. Stichnoth, 877 N.E.2d 475, 484 (Ind. Ct. App. 2007)).  Applying the Daubert factors and reviewing prior Indiana cases concerning TBI-related expert testimony, the court held as follows:

Dr. McCabe is not a medical doctor, but a psychologist. There was no showing that Dr. McCabe ever received any medical education or training or, in particular, any education or training relevant to determining the etiology of brain injuries. The evaluation of a brain injury, which is within Dr. McCabe's field of expertise, is distinct from the determination of the medical cause of a brain injury, which is generally exclusively within the purview of medical doctors. ... While specific degrees, certificates of training or membership in a professional organization are not required to give medical causation testimony, ... and a witness need not be licensed in order to assert an opinion in a given field, ... here, Dr. McCabe has not demonstrated that he is qualified to opine on causation in this case . ... Dr. McCabe testified only that, in his professional continuing education courses, he has “touched on subjects that relate to evaluation of traumatic brain injuries,” transcript at 311, and that he has received referrals from two Elkhart neurologists, id. at 69-70. We hold that the trial court abused its discretion when it permitted Dr. McCabe to testify that Richmond sustained a brain injury as a result of the accident with Bennett.

Bennett, at 8 (quotation marks, citations to authority, and footnote omitted).  Although the court's holding might suggest that only a witness with "M.D." following her name may opine as to the origin of a plaintiff's TBI, the court disclaimed that position:

To clarify, while medical doctors will obviously be the best candidates to opine on issues of medical causation, we do not hold that a psychologist is per se unqualified to give such testimony. Under Evidence Rule 702, our evaluation on appeal turns on the proffered expert's knowledge, skill, experience, training, or education. A witness's academic suffix is of course a relevant consideration, but it is not dispositive.

Id. at 8 n.3.  The analysis in Bennett, however, will likely cause plaintiffs' attorneys in subsequent Indiana trials (including, perhaps, a new trial in this case---the appeals court found the erroneous admission of McCabe's testimony was grounds to remand for a new trial) to seek experts with formal credentials that will impress judges.

  - Ben Trachtenberg

One Time Offer: Court Of Appeals Of North Carolina Rejects Rule 106 Appeal Based Upon Lack Of Offer Of Proof

Like its federal counterpart, North Carolina Rule of Evidence 106 provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him 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.

And, like its federal counterpart, North Carolina Rule of Evidence 103(a)(2) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

In other words, if the judge excludes evidence that a party offers under Rule 106 -- the rule of completeness -- the party must make an offer of proof regarding the excluded evidence under Rule 103(a)(2) or the issue will not be preserved for appellate review. Unfortunately for the defendant in State v. Jacobs, 2010 WL 3001653 (N.C.App. 2010), this is something that he failed to do.

In Jacobs, Deangelo Donnell Jacobs was convicted of discharging a weapon into an occupied dwelling, possession of a firearm by a convicted felon, discharging a firearm in the city, and injury to real property. After Jacobs allegedly committed the subject crimes, he was brought to the Clinton Police Department and gave a written statement.  Later that day, he was interrogated by Detective Sergeant Pietrolaj and gave a statement to Pietrolaj. At trial, Pietrolaj testified regarding this second statement. Thereafter,

During his cross-examination of Detective Sergeant Pietrolaj, defendant attempted to introduce an additional written statement he had made prior to Detective Sergeant Pietrolaj's questioning him. The State objected, and the court considered the issue after it excused the jury. Defendant's counsel identified the statement as a copy of a handwritten statement defendant had written approximately ten minutes before the interview. The State argued that defendant's handwritten statement would be hearsay unless and until defendant testified, and the trial court sustained the objection. Defendant never testified at trial, and the statement was not introduced into evidence.

After trial, Donnell appealed, claiming, inter alia, that the trial court erred in excluding his written statement, which should have been admissible under North Carolina Rule of Evidence 106. The Court of Appeals of North Carolina disagreed, finding that

Here, because defendant's handwritten statement obviously was available to defendant, as it was discussed during the trial and it appears that the trial court reviewed it. However, defendant did not make an offer of proof of the statement, and it is not included in our record, so defendant has not met his burden of demonstrating that his statement was "explanatory or relevant."...Because "we cannot say that the trial court's decision...was so arbitrary that it could not have been supported by reason[, t]his assignment of error is overruled."

-CM

Hearsay Within Hearsay: Supreme Court of South Dakota Offers Two Ways to Introduce Double Hearsay From Police Reports

Of all the gin joints, in all the towns, in all the world, Rusty Johnson chose the wrong bar in Marvin, South Dakota.  From the ensuing police report, it appears that Johnson "used to go with" the girlfriend of Cory O’Farrell, a bar employee, and O’Farrell made clear that Johnson was not welcome.  See Johnson v. O'Farrell, --- N.W.2d ----, 2010 WL 3172275 (S.D. Aug. 11, 2010), at ¶8.  O'Farrell may have then "'tackled' Johnson from behind and threw him across the bar into a wall."  Id. at ¶3.  Then again, perhaps through no fault of O'Farrell's, "Johnson 'lost his balance,' hit the wall, and fell."  Id.  Either way, Johnson ended up with a broken leg.  Id. at ¶10 n.2.

Cory O'Farrell and his employer (Kela O'Farrell, the bar owner and Cory O'Farrell's husband^[FN1]) testified in support of the "lost his balance" theory.  Johnson, as might be expected, pressed the "threw him across the bar" theory.  At issue on appeal was whether the trial judge properly admitted a police report taken by a Grant County deputy sheriff on the night Johnson broke his leg.  Like police reports generally, the sheriff report at issue is hearsay, and it contained an additional level of hearsay in the form of statements by Cory and Kela O'Farrell written down by the deputy sheriff.  In the majority opinion and a separate concurrence, justices of the Supreme Court of South Dakota offered two methods for properly admitting the O'Farrells' statements into evidence.

The key portion of the police report said this:

This officer asked the bartender [Kela] what took place. She stated that Cory O’Farrell walked over to Rusty Johnson and told him to leave the bar. She stated the next thing she saw, Cory O’Farrell had thrown Rusty against the wall. She stated that Rusty fell on the floor. ... This Officer asked [Cory] what started the fight. [Cory] stated that Rusty used to go with his girlfriend, and he didn’t want him in the bar. [Cory] stated that he did throw him, but he didn’t know [how] he got hurt.

Id. at ¶5.  The court promptly rejected the reasoning used by the trial judge to admit the report while noting that "admitting evidence on an incorrect ground will be affirmed if the evidence was admissible on a different ground." Id. at ¶12.  The majority opinion then held that the statements were admissible using a combination of Rule 803(6), codified at SDCL 19-16-10, and Rule 801(d)(2)(1), codified at SDCL 19-16-3.  Rule 803(6) provides that:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, is not excluded by § 19-16-4 [Rule 802, barring most hearsay], even though the declarant is available as a witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this section includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Quoting the advisory committee note for Federal Rule of Evidence 803(6), the court held that "where the technical requirements of Rule 803(6) are met, a police report is admissible as a business record at the reporter level, as distinguished from the witness level."  In other words, the officer's observations are admissible but statements of others contained in a report are inadmissible hearsay unless themselves covered by an exception to the hearsay rule. Id. at ¶20-¶21.

Enter Rule 801(d)(2), which defines party admissions as "not hearsay."  Under Rule 801(d)(2)(1), a party's "own statement, in either his individual or a representative capacity" is not hearsay.  (The analogous federal rule is at 801(d)(2)(A).)  Because the witnesses whose statements appear in the police reports were the defendants, the statements were party admissions contained in a business record.  Accordingly, they were properly admitted even though the deputy sheriff did not testify at trial.  Id. at ¶22 (quoting Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 801.30[2] (2d ed 2009) ("One type of '[p]arty admission[ ] commonly admitted into evidence include[s] a defendant's statements to police[.]'")).

In a concurring opinion, two justices suggested that the initial hearsay hurdle (that is, admitting the police report) could have been cleared by using Rule 803(8), codified at SDCL 19-16-12 (concerning public records and reports), instead of the business records exception.  Johnson, ¶28-¶32.  Rule 803(8)(3) provides that:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... [i]n civil actions and proceedings ..., factual findings resulting from an investigation made pursuant to authority granted by law, are not excluded by § 19-16-4 [Rule 802, barring most hearsay], even though the declarant is available as a witness, unless the sources of information or other circumstances indicate lack of trustworthiness.

Noting that "[o]ther jurisdictions have used a similar rule in admitting information from police reports in civil cases," the concurrence observed:

Although [the police] report contains hearsay, the relevant portion... would have been admissible under ... (Rule 803(8))'s exception because: (1) The report was from a public office, i.e. the Grant County Sheriff's Office, and [the deputy sheriff] was acting within his authority as a Deputy Sheriff; (2) The report sets "forth ... factual findings resulting from an investigation made pursuant to authority granted by law"; (3) The report was offered in a civil action; and, (4) "[T]he source of information or other circumstances [did not] indicate [a] lack of trustworthiness."

Were Rule 803(8) used to justify the initial admission of the report as a public record, analysis of the technical requirements of the business records exception (e.g., that the record was "kept in the course of a regularly conducted business activity, and [that] it was the regular practice of that business activity to make the memorandum, report, record, or data compilation") could be avoided.

  - Ben Trachtenberg

FN1. The opinion does not explain how Cory O'Farrell is married to his employer, Kela O'Farrell, and concurrently has a "girlfriend."↩

The Other (Wo)Man: Supreme Court Of Connecticut Finds Exclusion Of Evidence Violated Right to Present A Defense

It is well established that "[t]he federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense....The sixth amendment...[guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies....When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense....

In its opinion in Holmes v. South Carolina, the United States Supreme Court found that South Carolina courts erred by applying a rule that precluded a defendant from presenting evidence concerning an alternate suspect theory where there is strong evidence of the defendant's guilt, especially where there is strong forensic evidence. The recent opinion of the Supreme Court of Connecticut in State v. Hedge, 2010 WL 2889494 (Conn. 2010), is not all that different.

In Hedge, the Supreme Court of Connecticut found that the jury reasonably could have found the following facts:

In the early morning hours of May 11, 2002, Officers Nick Grasso and Raymond Ryan of the Bridgeport police department were patrolling the area around Marina Village, a public housing project in the city of Bridgeport. At the time, they were assigned to the Mayor's Office of Special Targets (MOST) detail, which was charged with conducting "proactive police work." The area around Marina Village was known to the officers for its heavy drug trafficking and other crime. At approximately 1:30 a.m., Grasso and Ryan observed the defendant driving a tan Toyota Camry heading northbound on Columbia Street. The vehicle was owned by the defendant's girlfriend, Renita Lathrop. There were no other vehicles on the road when the officers observed the defendant. When the defendant came to the intersection of Columbia Street and Johnson Street, he turned right onto Johnson Street, which was the only direction he could turn at that intersection. The officers observed that the defendant had failed to use his turn signal and immediately pulled him over. Grasso approached the driver's side of the defendant's vehicle while Ryan approached the passenger's side. Both officers were carrying flashlights. Grasso asked the defendant for his driver's license, vehicle registration and proof of insurance. The defendant informed the officer that he did not have his license in his possession and proceeded to look in the glove compartment and the center console compartment for the other documents. While the defendant was searching for those documents, Grasso shined his flashlight inside the vehicle and noticed "loose cash" on or around the front passenger seat or center console, as well as a single, small Ziplock bag containing what appeared to be narcotics. Grasso immediately ordered the defendant out of the vehicle and placed him under arrest. After placing the defendant in the back of his police cruiser, Grasso told Ryan about the bag of narcotics that he had seen and asked him to return to the defendant's vehicle to retrieve it and to search for additional contraband. Ryan had not noticed the Ziplock bag when he shined his flashlight inside the automobile even though, in contrast to Grasso, he had an unobstructed view of the center console and the front passenger seat from where he was standing.

Ryan, who recently had completed a course on motor vehicle searches and secret compartments, searched the defendant's vehicle. While examining the front seats, he noticed that the front passenger side rug was pulled out from under the dashboard. When he examined the area more closely, he found a black pouch containing eighty-eight small Ziplock bags of cocaine in a hidden compartment under the dashboard. He then searched the driver's side of the vehicle and discovered another hidden compartment, which held a black pouch containing approximately 100 "slabs" of cocaine and fifteen "folds" of heroin. The total amount of cash that was seized from the vehicle was $59.

The defendant was later charged with and convicted of  possession of opium with intent to sell by a person who is not drug dependent, possession of cocaine with intent to sell by a person who is not drug dependent, possession of narcotics with intent to sell within 1500 feet of a public housing project and failure to appear in the first degree. At trial, the defendnat had tried to present evidence that "Kim Jackson, a convicted drug offender, had driven Lathrop's vehicle within twenty-four hours of the defendant's arrest and, on previous occasions, had left drugs and money in that vehicle." The trial court, however, excluded this evidence because of the significant evidence of the defendant's guilt and the failure of this proffered evidence to do more than raise "mere suspicion" of Jackson's involvement with the subject crime. 

After he was convicted, the defendant appealed, claiming, inter alia, that this ruling violated his right to present a defense, and the Supreme Court of Connecticut agreed, finding that

the trial court improperly excluded evidence that Jackson, a convicted drug dealer, drove Lathrop's vehicle within twenty-fours of the defendant's arrest. The trial court found that the evidence that the defendant proffered established a possible motive for Jackson to commit the crime but did not establish a direct connection between Jackson and the crime. Although we agree with the trial court that the evidence established motive, we disagree that it failed to demonstrate a sufficiently direct connection between Jackson and the crime. To the contrary, Lathrop's testimony placed Jackson at the scene of the crime-her vehicle-within twenty-four hours of the defendant's arrest and in possession of drugs. The fact that Jackson borrowed Lathrop's vehicle on the same day that the defendant had borrowed it provided Jackson with the opportunity to place the drugs inside the secret compartments. Jackson's prior convictions for the manufacture and sale of narcotics, and his history of leaving drugs and money in the very same vehicle, provide a substantial basis for inferring that he may have done so on the day in question. Moreover, according to Lathrop, the defendant had borrowed her vehicle on only two occasions prior to his arrest, and for a relatively short period of time on the night of his arrest. In contrast, Jackson had used Lathrop's vehicle throughout the entire week preceding the defendant's arrest. Furthermore, the vast majority of the drugs found in the vehicle were secreted, out of view and under the dashboard; consequently, at a minimum, it is plausible that the defendant was unaware that the drugs had been hidden there. Finally, the defendant's sole defense at trial was that the drugs found in Lathrop's vehicle belonged to someone else, and that he was unaware that they were in the vehicle when he was stopped by the police. Thus, the excluded evidence was highly relevant to the defendant's defense and to the central question before the jury, namely, whether a reasonable doubt existed as to the defendant's guilt. We conclude, therefore, that the trial court's exclusion of the third party culpability evidence deprived the defendant of the opportunity to present his version of the facts to the jury and to explain to the jurors who, if not him, committed the offenses with which he was charged.

-CM