August 28, 2010
Let's (Not) Go To The Tape: First Circuit Notes That Rule Of Completeness Doesn't Apply To Unrecorded Oral Statements
Federal Rule of Evidence 106, the "rule of completeness," provides that
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
As the text of the Rule and the recent opinion of the First Circuit in United States v. Verdugo, 2010 WL 3260805 (1st Cir. 2010), make clear, the triggering event for application of Rule 106 is the admission of a writing or recorded statement (or part thereof); the Rule is not triggered by the introduction of testimony about unrecorded oral statements.
In Verdugo, Adolfo Verdugo and Rafael Fernández-Roque challenged their convictions for conspiracy to distribute and possess with intent to distribute cocaine. After he was arrested,
Verdugo initially denied having any involvement in the drug transaction. [DEA Agent Michael] Naylor then confronted Verdugo with evidence of his intercepted remarks to [Omar] Altamirano[-Nunez] regarding their planned meeting near Springfield, and Verdugo admitted that he had delivered the 29 kilograms of cocaine to Massachusetts two months earlier, but denied that he had received any money. Naylor also showed Verdugo a photograph of Altamirano, whom he identified as Juan Carlos. Verdugo agreed to cooperate, but told the agents that he had nothing to offer.
Agents then brought Verdugo to an interview room at the Pomona police station. There, Naylor presented Verdugo with a form explaining his Miranda rights and read the form to him. Verdugo signed the form, and the agents began questioning him. Verdugo immediately invoked his right to counsel and refused to acknowledge his earlier confession. The interview, which lasted approximately eight minutes, was recorded on videotape.
At trial, Naylor relayed the details of Verdugo's confession to the jury. Naylor thereafter sought to introduce the video of the interview, claiming that it contradicted Naylor's testimony. The district court, however, deemed the video inadmissible. On appeal, Verdugo claimed for the first time that the district court should have admitted the video under Federal Rule of Evidence 106. The First Circuit was easily able to turn this argument aside, noting that Verdugo's initial confession was not recorded and concluding "that Rule 106 does not apply to testimony about unrecorded oral statements such as the one that Verdugo gave to Naylor...when he was arrested."
August 27, 2010
Crimes And Misdemeanors? Arizona Court Implies Drug Convictions Can Qualify For Rule 609 Impeachment Based On Statutory Amendment
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted....
So, let's say that a defendant is convicted under a statute that mandates a sentence of probation, rather than imprisonment, for first-time convictions of personal possession or use of controlled substances or drug paraphernalia. But let's say that the statute also allows courts to impose additional probation conditions, including incarceration, for probation violations regarding court-ordered drug treatment, and courts can revoke probation for failure or refusal to participate in drug treatment. Could the conviction be admissible under Arizona Rule of Evidence 609(a)(1)? According to the recent opinion of the Court of Appeals of Arizona, Division One, in State v. Hatch, 2010 WL 3310267 (Ariz.App. Div. 1 2010), the answer seems to be "yes." I disagree.
In Hatch, the facts were as stated above, with the trial court permitting the prosecution to impeach the defendant. After he was convicted, the defendant appealed, citing the Supreme Court of Arizona's opinion in State ex rel. Romley v. Martin, 69 P.3d 1000 (Ariz. 2003), for the proposition that witnesses cannot be impeached under Arizona Rule of Evidence 609(a)(1) via convictions under A.R.S. § 13-901.01, the statute under which he was previously convicted.
The Court of Appeals of Arizona, Division One, however, noted that, at the time that Martin was decided, A.R.S. § 13-901.01 mandates a sentence of probation, rather than imprisonment, for first-time convictions of personal possession or use of controlled substances or drug paraphernalia. The court then noted that A.R.S. § 13-901.01 was since amended so that courts can now impose additional probation conditions, including incarceration, for probation violations regarding court-ordered drug treatment, and courts can revoke probation for failure or refusal to participate in drug treatment. According to the court,
The current statutory landscape has changed significantly since the time Martin was decided. Initially, Proposition 200's flat prohibition on imprisonment was dispositive on the notion of the seriousness of the covered offenses; minor, non-repetitive drug offenses were insufficiently grave to warrant impeachment given the statute's strictly therapeutic, non-punitive approach....After Proposition 302, however, such crimes are not properly characterized as unserious, but rather as felonies for which drug treatment is offered in the first instance, with incarceration allowed as an adjunct to probation or as a punitive sanction in the circumstances set forth statutorily. Failure or refusal to participate in treatment can now result in revocation of probation and consequent imprisonment, and mandatory probation is inapplicable if a defendant refuses drug treatment or rejects probation. A.R.S. § 13-901.01(G), (H)(2)-(3). This is a dramatic departure from the strictly therapeutic regime that was in place when Martin was decided.
The court then didn't answer the question of whether the trial court should have deemed the defendant's conviction admissible under Arizona Rule of Evidence 609(a)(1), finding that, even if it did, its admission constituted harmless error. But it seems clear to me that a first-time conviction of personal possession or use of controlled substances or drug paraphernalia is not a crime punishable by death or imprisonment in excess of one year Arizona Rule of Evidence 609(a)(1). Instead, if an individual commits such an offense and then commits a parole violation or act leading to parole being revoked, then the individual can be sentence to imprisonment in excess of one year. In the absence of this latter act, however, I don't see how Arizona Rule of Evidence 609(a)(1) could apply.
August 26, 2010
He Ain't Heavy, He's My Brother: Court Of Appeals Of Minnesota Concludes Jurors Would Have Ignored Brother's Character Testimony In Mercy Rule Appeal
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:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same....
In its recent opinion in State v. Pak, 2010 WL 3304693 (Minn.App. 2010), the Court of Appeals of Minnesota correctly found that the trial court erred in failing to admit evidence under this so-called "mercy rule," but I feel like it went too far in finding this error to be harmless.
In Pak, Henry Hyunchoon Pak was convicted of assault and emergency-call-interference. Prior to trial, Pak's counsel informed the trial court that he intended to call Pak's brother as a character witness, and the following colloquy ensued:
THE COURT: Character witnesses are usually not admissible in criminal cases. I don't know [what] the purpose of character witnesses would be, his character is not in dispute, is it? Do you [the prosecutor] intend to offer evidence as to his character?
THE PROSECUTOR: I have no character evidence, Judge.
THE COURT: So-
DEFENSE COUNSEL: That's fine then.
THE COURT: Those witnesses are not appropriate, all right? Step off and we'll get the jury up here....
Pak's counsel did not ask to make an offer of proof about the specifics of the brother's testimony, and the court proceeded immediately into jury selection.
After he was convicted, Pak appealed, claiming, inter alia, that the trial court by failing to allow him to introduce character testimony by his brother. In response, the court noted that, pursuant to Minnesota Rule of Evidence 103(a)(2),
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.
Ordinarily, then, Pak's counsel would not have preserved this issue for appellate review because he failed to make an offer of proof, but the Court of Appeals found that such an offer was not required in Pak's case because it was apparent from the context of the above colloquy that the brother intended to offer testimony about Pak's good character.
The court then agreed with Pak that the trial court erred by failing to allow him to admit his brother's character evidence but found the error to be harmless. The second reason the court gave for this conclusion was that the evidence in the case otherwise clearly supported a finding that Pak was guilty. I have no problem with this conclusion. I do, though, have a problem with the court's first conclusion, which was that
Had the brother testified, the district court would have properly limited his testimony to his personal opinion of [Pak] and his impression of [Pak]'s reputation, and the court would not have permitted him to recount specific instances of conduct....Additionally, the court would have instructed the jury that in weighing the testimony, the jury could consider the witness's relationship to the defendant, interest in the outcome of the case, and "any other factors that bear on believability and weight."...We are persuaded beyond a reasonable doubt that the jury would have given little, if any, weight to the brother's testimony.
Really? This just seems like overkill to me. I can understand that the court would be a bit skeptical that the jury would give much weight to character evidence rendered by the defendant's brother. But I don't see how it could be persuaded beyond a reasonable doubt that the jury would give little to no weight to the brother's testimony. Sure, the brother would be biased on his brother's behalf, but so would almost any character witness called on behalf of a party. And, at least the brother ostensibly knew Pak his whole life and could provide valuable insights into his character. I can understand the court finding that this evidence would not be enough to tip the scales of justice given the other evidence in this case. But did it really need to conclude beyond reasonable doubt that your average juror would completely or almost completely disregard what a brother says about his brother's character?
August 25, 2010
It Was(n't) A Privilege?: Eastern District Of Wisconsin Finds Rule 408 Didn't Create A Privilege
Federal Rule of Evidence 408 states:
(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
So, does Rule 408 merely deem evidence of settlement negotiations inadmissible at trial (when offered for certain purposes), or does it create an evidentiary privilege protecting such evidence? According to the recent opinion of the United States District Court for the Eastern District of Wisconsin in Thermal Design, Inc. v. Guardian Bldg. Products, Inc., 2010 3238921 (E.D. Wis. 2010), Rule 408 does not create a privilege, but you'd be hard pressed to explain why the court reached this conclusion.
The opinion in Guardian Building Products did not provide any facts, but it did indicate that Guardian brought a motion to compel production of a settlement agreement entered into between Thermal Design and the American Society of Heating, Refrigerating and Air-Conditioning Engineers. In response, "Thermal Design object[ed] that the settlement agreement [wa]s confidential." The United States District Court for the Eastern District of Wisconsin, however, found that "Thermal Design's disclosure of the settlement agreement would be subject to the protective order entered in this case" and that "[m]ost cases find that a settlement agreement is discoverable despite a confidential designation, especially when there is a protective order in place to prevent unauthorized disclosure."
In turn, Thermal Design cited an opinion of the United States District Court for the Northern District of Illinois, which "refus[ed] to order the disclosure of documents related to settlement discussions because of the 'public policy regarding confidentiality during settlement negotiations' embodied in Fed.R.Evid. 408." The court again turned this argument aside, finding that this opinion was "distinguishable because it d[id] not appear that the disclosure was protected by a protective order."
Moreover, the court found that
the use of Rule 408, a rule of evidence, to prohibit the disclosure of settlement documents during the discovery process is questionable. In re Subpoena Issued to Commodity Futures Trading Com'n, 370 F.Supp.2d 201, 211 (D.D.C.2005) ("Congress clearly enacted [Fed.R.Evid, 408] to promote the settlement of disputes outside the judicial process. However, it is equally plain that Congress chose to promote this goal through the limits on the admissibility of settlement material rather than limits on their discoverability") (emphases in original). Put simply, there is no controlling case in the Seventh Circuit, but the Court agrees with the cases which find that there is no federal privilege preventing the discovery of settlement agreements and related documents. In re Subpoena, 370 F.Supp.2d at 212 (declining to recognize federal settlement privilege); Id. at 209 n. 9, 11 (collecting cases finding for and against privilege); Tyco, 253 F.R.D. at 522.
This seems like a pretty weak conclusion to me. According to the court, some courts have found that Rule 408 creates a privilege, and some courts have found that it does not. The court then sided with the latter set of courts because....well I'm not sure. The court gave no reason. I'm also not sure that I buy the reasoning of the United States District Court for the District of Columbia in In re Subpoena Issued to Commodity Futures Trading Com'n, which found that Rule 408 "on its face contemplates that settlement documents may be used for several purposes at trial, making it unlikely that Congress anticipated that discovery into such documents would be impermissible." Evidentiary privileges also contemplate that privileged documents may be used for several purposes at trial. For example, the attorney-client privilege contemplates that privileged communications can be used to settle disputes between attorney and client at trial.
I haven't done enough research on the issue to be able to conclude that Rule 408 did or did not create a privilege, but it seems to me that the United States District Court for the Eastern District of Wisconsin didn't do enough research either or at least did not explain the findings of that research in its opinion.
August 24, 2010
And No Religion Too: Fourth Circuit Fails To Find Religious Impeachment Constitutes Plain Error
Federal Rule of Evidence 610 provides that
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.
The Government: Mr. Munir, you swore on the Bible. Are you a Christian?
Defendant: I'm Islam, but I speak a lot of the Bible too.
After the defendant is convicted, he appeals, claiming, inter alia, that this question violated Federal Rule of Evidence 610, and the government responds that the question was designed to ensure that the defendant took his oath seriously, not to impeach his credibility per se. How should the court rule? According to the recent opinion of the Fourth Circuit in United States v. Anwari, 2010 WL 3262224 (4th Cir. 2010), the court should rule in favor of the government, at least if the defendant did not object to the question.
In Anwari, the facts were as stated above, with the defendant failing to object to the government's question as required by Federal Rule of Evidence 103(a)(2). This meant that the Fourth Circuit could only reverse the defendant's conviction for plain error under Federal Rule of Evidence 103(d). And this was something that the court could not do, despite noting that the Second Circuit had deemed similar interrogation improper in its opinion in United States v. Kalaydjian, 784 F.2d 53 (2d Cir.1986).
The Second Circuit acknowledged that the defendant might have been successful on appeal if he objected and preserved the issue for appellate review but found that
because the Government only mentioned Anwari's religion once, and that because there is no Fourth Circuit case on point, [the defendant] cannot demonstrate that allowing the question was plainly erroneous. Moreover, again, the evidence against [the defendant] was ample, and the Government's isolated question, even if we assume it to have been erroneous, did not rise to the level of being so prejudicial as to affect the integrity of the trial.
August 23, 2010
There Will Be Blood: Ninth Circuit Case Raises Question Of Whether Biblical Passages Constitute Extraneous Prejudicial Information Under Rule 606(b)
Federal Rule of Evidence 606(b) provides that
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
So, let's say that a defendant is on trial for murder and during the sentencing phase of trial a juror studies the Bible, finds Genesis 9:6, which states that "[w]ho so sheddeth man's blood by man shall his blood be shed," and reads that passage to other jurors. After the jury sentences the defendant to death, can a juror impeach the verdict based upon this (mis)conduct? According to the recent opinion of the Ninth Circuit in Crittenden v. Ayres, 2010 WL 3274506 (9th Cir. 2010), the answer is "maybe," but the sentence won't be overturned.
The facts in Ayres were as stated above, with the defendant eventually making his allegation to the Ninth Circuit is a federal habeas petition. The question which it seemed that the court had to address was whether the Biblical passage constituted extraneous prejudicial information, which is generally defined as information not admitted into evidence which bears on a fact at issue. The Ninth Circuit noted that courts had split on this issue, with the Eleventh Circuit finding in McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir.2005), that Biblical passages constitute extraneous prejudicial information but the Fourth Circuit finding in Robinson v. Polk, 438 F.3d 350, 363 (4th Cir.2006), that biblical passages do not bear on facts at issue in a case and so are not "extraneous prejudicial information."
The Ninth Circuit, however, found that it did not need to revolve this split because even if the Biblical passage was extraneous prejudicial information, the juror's mention of it to other jurors was not sufficient to order a new sentencing phase of trial based upon its prior opinion in Fields v. Brown, 431 F.3d 1186 (9th Cir.2005). According to the court,
Our opinion in Fields, in which we also considered a claim of Bible-related juror misconduct, forecloses Crittenden's claim that Clark's mention of Genesis 9:6 prejudiced him. In Fields, the jury's discussion of biblical passages was far more extensive, but we nonetheless concluded, reviewing the matter de novo, that there was no prejudice. The foreperson there "checked the Bible and...made notes 'for' and 'against' imposition of the death penalty which he brought to the deliberations the next day."...His notes were passed around and the religious material "discussed by some jurors."...By contrast, nothing "but the briefest mention of the Bible verse took place" during penalty phase deliberations in [defendant]'s trial. As the district court found after ordering an evidentiary hearing, the only juror who recalled any mention of the biblical passage recalled that there was no discussion of it "except for a possible statement regarding the verse's irrelevance to the case." Moreover, the passage itself was innocuous compared to the contents of the foreperson's note in Fields, which quoted four passages besides Genesis 9:6, including the "eye for eye" maxim and Romans 13:1-5,...which has been understood as cloaking the "State with God's authority...."
I think that these are both pretty interesting questions, but I will only address the first one in this post. My inclination is to believe that Biblical passages are extraneous prejudicial information and that the narrow focus upon Biblical passages not bearing on facts at issue by the Fourth Circuit is misguided. Rather, I would contend that information which could cause jurors not to focus on facts at issue should constitute extraneous prejudicial information. In other words, if jurors followed Genesis 9:6, they would sentence the defendant to death based upon that passage rather than based upon the facts of the case.
August 22, 2010
Instant Recall: Supreme Court Of California Finds Statement Made Three Months After Event Qualified As Recorded Recollection
(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:
(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;
(2) Was made
(i) by the witness himself or under his direction or
(ii) by some other person for the purpose of recording the witness' statement at the time it was made;
(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and
(4) Is offered after the writing is authenticated as an accurate record of the statement.
(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.
So, when is the fact recorded fresh in the witness' memory? Seconds later? Minutes later? Hours? Weeks? Months? Years? According to the recent opinion of the Supreme Court of California in People v. Cowan, 2010 WL 3034725 (Cal. 2010), even facts recorded years after they occurred can qualify as recorded recollections under California Evidence Code Section 1237. I disagree.
In Cowan, Robert Cowan was convicted of the first degree murders of Clifford and Alma Merck.
On direct examination during the prosecution's guilt phase case-in-chief, Danny Phinney testified that on a date and time that he could not independently recall, he met defendant at an auto parts store. Defendant owed Phinney money. Phinney went to defendant's brother's house, where he looked at some items, including two jewelry boxes, jewelry, coins, a tooled leather wallet containing a driver's license bearing the name Mirck or Merck and a birth date in the early 1900's, and two Social Security checks with the name Merck on them. Phinney testified that he "would not have remembered any of" these facts had he "not seen the paperwork"-i.e., a transcript of an interview he had given police in December 1984 about the events described above. However, he remembered "out of my mind" that a 1922 silver dollar was among the coins he saw at the house.
Over defendant's hearsay objection, Detective Diederich testified that he interviewed Phinney on December 21, 1984, while Phinney was in custody following his arrest in October. The interview was tape-recorded and transcribed. During the interview, Phinney stated that the meeting with defendant at the auto parts store occurred during the first week of September 1984. Phinney also described various items of property he had seen at defendant's brother's house, including coins (one bearing the date 1922), costume jewelry, two government-type checks totaling about $600 made out to someone named Merck with an address on McClean Street, and a leather wallet with a driver's license and some other cards inside. After the interview, Phinney pointed out for Diederich the house in which he had seen the items.
After he was convicted, Cowan appealed, claiming, inter alia, that the trial court should have deemed Phinney's 1984 statement inadmissible because it was made three months after Phinney's alleged meeting with him, meaning that the statement was not made while the meeting was fresh in his memory under California Evidence Code Section 1237. The Supreme Court of California disagreed, finding that Cowan failed to preserve the issue for appellate review and that, in any event,
Defendant points to no authority for the proposition that such a lapse of time between the events recorded and the time of the recording renders a past statement inadmissible under Evidence Code section 1237, and we are aware of none. (Cf. People v. Miller, supra, 46 Cal.App.4th at p. 422 [recorded statement made at least three weeks after recorded events occurred was admissible under Evid.Code, § 1237].) Indeed, federal courts have admitted statements made after even greater lapses of time under the federal counterpart to section 1237, Federal Rule of Evidence 803(5). (United States v. Patterson (9th Cir.1982) 678 F.2d 774, 778-779 [10 months]; United States v. Williams (6th Cir.1978) 571 F.2d 344, 348-350 [six months]; United States v. Senak (7th Cir.1975) 527 F.2d 129, 139-142 [three years].) These courts reason that district courts should have the flexibility to consider all pertinent circumstances in determining whether the matter was fresh in the witness's memory when the statement was made. (United States v. Patterson, supra, 678 F.2d at p. 779.) We see no reason why a similar approach should not govern under Evidence Code section 1237. Here, Phinney's statement to Diederich describing the items he saw and when he saw them was fairly detailed, and he had sufficient recollection to lead Diederich to the house in which he had seen the items. Accordingly, there was a sufficient basis for concluding the events were reasonably fresh in Phinney's mind at the time he spoke to Diederich.
But are courts correct in this regard? The Advisory Committee's Note to Federal Rule of Evidence 803(5) indicates that "[t]he guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them. Owens v. State, 67 Md. 307, 316, 10 A. 210, 212 (1887)." Owens was a voter fraud case, and the recorded recollections made in that case were checks or marks "made contemporaneously with the transaction to which they relate," i.e., made "during the progress of the election."
The Advisory Committee's Note also indicates that "[n]o attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate." Appellate courts have used this sentence to find that trial courts did not err in admitting recorded recollections made well after an event. For instance, in the Patterson case listed above, the Ninth Circuit found no problem with the district court's admission of a recorded recollection made 10 months after an event because
Broad discretion for the trial judge is clearly intended under Fed.R.Evid. 803(5), as the advisory committee notes indicate: "No attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate."
I understand the finding that a trial judge has broad discretion. In my mind, though, that discretion only extends to recorded recollections made a few days after events. The word "contemporaneous" generally means "[o]riginating, existing, or happening during the same period of time." I could see a court finding that a recorded recollection made a few days after an event was made during the same period of time as the event. But I don't see how the term "contemporaneous" could be stretched to include recorded recollections made weeks, months, or event years after the event.