Saturday, August 21, 2010
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."
Friday, August 20, 2010
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.
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."
Thursday, August 19, 2010
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.
Completely Infeffective: Court Of Appeals Of Indiana Uses Rule Of Completeness To Reject Ineffective Assistance Of Counsel Claim
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).
Wednesday, August 18, 2010
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].
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).
Tuesday, August 17, 2010
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].
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.
Monday, August 16, 2010
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.
One Time Offer: Court Of Appeals Of North Carolina Rejects Rule 106 Appeal Based Upon Lack Of Offer Of Proof
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.
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.
Sunday, August 15, 2010
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 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.