EvidenceProf Blog

I'm Not There: Texas Court Excludes Former Testimony Based On Absence Of Evidence Of Witness Unavailability

Similar to its federal counterpart, Texas Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

And, as with its federal counterpart (and all Rule 804(b) hearsay exceptions), Texas Rule of Evidence 804(b)(1) is only triggered if the witness is "unavailable" to testify as defined in Texas Rule of Evidence 804(a). And it was this latter requirement which presented a problem for the defendant in Williams v. State, 2010 WL 3503939 (Tex.App.-Waco 2010).

In Williams, Joe Sidney Williams was convicted of evading arrest or detention in a motor vehicle, enhanced by a prior conviction for evading arrest in a motor vehicle and a prior burglary conviction to a second degree felony for purposes of punishment. At trial, Williams sought to present the transcript of testimony from a witness at his trial leading to his prior conviction. According to Williams, the transcript was admissible under the former testimony exception contained in Texas Rule of Evidence 804(b)(1).

In rejecting this argument the Court of Appeals of Texas, Waco, did not state the nature of the witness' former testimony because it didn't have to. Instead, the court simply noted that

It is the burden of the proponent of testimony to establish that a witness is “unavailable” as defined by Rule 804(a). For example, for purposes of Rule 804(a)(5), the proponent of testimony must demonstrate that a good-faith effort was made prior to trial to locate and present the witness....

Here, the record is silent as to whether the witness is in fact unavailable, for what reason she was unavailable, or what Williams had done to attempt to secure her presence at trial. Because Williams did not establish that the witness was unavailable, the trial court did not abuse its discretion in sustaining the State's objection to the testimony.

-CM

What's Up Doc?: Connecticut Court Finds Statement About Assault Weapon Admissible Under Hearsay Exception

Like Federal Rule of Evidence 803(4), Section 8-3(5) of the Connecticut Code of Evidence provides an exception to the rule against hearsay for

A statement made for purposes of obtaining a 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 the medical diagnosis or treatment.

So, is a statement by a victim to a plastic and reconstructive surgeon concerning the nature of the weapon used to injure him reasonably pertinent to medical diagnosis or treatment? According to the recent opinion of the Supreme Court of Connecticut Appellate Court of Connecticut in State v. Serrano, 2010 WL 3397460 (Conn.App. 2010), the answer is "yes."

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

On the evening of August 2, 2005, in the city of Waterbury, the defendant and David Seekins, the victim, were arguing in a yard shared by several homes. Shortly before 10:30 p.m., the defendant brandished a blunt object. Donna Franco, the defendant's roommate, also was standing in the yard. She implored the defendant not to strike the victim. At least two of the defendant's neighbors, Jonathan Mendez and Daniel Medina, overheard Franco's pleas. Mendez heard Franco say either, "don't do it," or, "don't hit it," while Medina heard Franco say, "stop hitting him, you don't have to do that, don't hit him, you're going to kill him."

At some point thereafter, the defendant struck the victim on the head with the blunt object at least three times. Two of the defendant's neighbors, Mendez and Juana Ramirez, along with Jorge Reyes, a guest of Ramirez, saw the defendant attack the victim.

Subsequently,

Sun Yung Waitze, a plastic and reconstructive surgeon, first examined the victim approximately two days after he was admitted to the hospital. Waitze noted that the left side of the victim's head "had the most deformity" and asked the victim how he had been injured. The victim responded that he had been struck on the head with an unidentified blunt object. After completing his examination, Waitze concluded that the victim's injuries were serious enough to require surgery. Consequently, less than two weeks after the examination, Waitze performed surgery on the victim.

The defendant was thereafter charged with assault in the first degree, and Seekins did not testify at his trial. Dr. Waitze, however, did testify and, over objection indicated that Seekins said "that he had been beaten with a blunt object, although he was not sure of the exact nature of the object."

After he was convicted, Serrano appealed, claiming, inter alia, that Seekins' statement constituted inadmissible hearsay and that its admission violated his rights under the Confrontation Clause. The Supreme Court of Connecticut Appellate Court of Connecticut easily turned aside the latter argument, finding that

The circumstances of this case, viewed objectively, would not have led the victim reasonably to believe that his statement to his treating physician would be used later for prosecutorial purposes. Rather, the nature of the victim's statement, and the context in which it was elicited, make it clear that the victim reasonably expected that he was providing Waitze with information that would enable Waitze to provide the victim with proper medical treatment.

The Connecticut court Supremes then found that the statement qualified for admission under Section 8-3(5) of the Connecticut Code of Evidence, with Seekins' statement being reasonably pertinent to diagnosis or treatment because "Waitze testified that, as a surgeon, it was important for him to understand what caused the victim's injuries in order to provide the victim with effective medical treatment."

-CM 

Judge, Jury, And interrogator, Take 4: First Circuit Doesn't Reverse Despite Improper Judicial Interrogation

Federal Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Conversely, Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party," and Federal Rule of Evidence 614(c) provides that

Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let's consider the recent opinion of the First Circuit in United States v. Santana-Perez, 2010 WL 3491143 (1st Cir. 2010).

In Santana-Perez, Luis Eligio Santana-Pérez and Aquiles Carpio-Pouret were found guilty of violating 18 U.S.C. § 2237(a)(1), which makes it a crime "for the master, operator, or person in charge of a vessel of the United States, or a vessel subject to the jurisdiction of the United States, to knowingly fail to obey an order by an authorized Federal law enforcement officer to heave to that vessel." Their convictions were based upon the following facts:

In the pre-dawn hours of March 15, 2008, the Coast Guard cutter Matinicus was patrolling the Mona Passage between Puerto Rico and the Dominican Republic when a member of the crew sighted a small vessel leaving Mona Island, Puerto Rico and heading toward the Dominican Republic. The crew member reported the sighting to Chief Warrant Officer Michael Levecque, who ordered that the Matinicus be brought about to intercept the vessel. As it later turned out, Santana-Pérez was operating the small vessel and Carpio-Pouret was also in the vessel.

At around 5:10 a.m., the crew of the Matinicus activated its blue law enforcement light on the ship's mast; shined a spotlight on the defendants' vessel; blew the ship's whistle; and began directing the defendants to stop in both English and Spanish using the ship's loud hailer. The defendants did not stop at that time. A "non-compliant boarding team" launched from the Matinicus in a small vessel at 5:15 a.m. and arrived alongside the defendants' vessel one minute later. The boarding team activated a blue light on its vessel and began commanding the defendants to “stop the vessel, stop the vessel.” The defendants did not stop. The boarding team made a second approach while repeating the command to stop, but, again, the defendants did not stop. Finally, on a third approach, the boarding team told the defendants that force would be used if they did not stop. The defendants turned off their motor at that point and were taken into custody. About twelve minutes elapsed between the time the Matinicus activated its blue light and the time the defendants stopped.

After they were convicted, the defendants appealed, claiming, inter alia, that the district judge was overly aggressive and signaled to the jury that the judge disbelieved Carpio-Pouret's testimony. In reviewing this issue, the First Circuit focused upon the following exchange:

THE COURT: And how far from the coastline were the [fishing] traps?

DEFENDANT: Well, I can't tell you how far away those traps were because, as I stated earlier, I don't know about measurements out at sea. [ ... ]

THE COURT: How long have you been fishing?

DEFENDANT: All my life.

THE COURT: And you can't tell distances in the sea? You can't tell me those traps were ten, 15 miles offshore?

DEFENDANT: No, I can't say. [ ... ]

THE COURT: All right. And when your motor stopped working, were you near the other fishermen?

DEFENDANT: Not that close. We were barely able to see them.

THE COURT: Why didn't you communicate with them?

DEFENDANT: We didn't have any instruments to communicate with them. We tried to signal them with our shirts, but we were unsuccessful at that. [ ... ]

THE COURT: When you dropped off the gas, the motor was still operating?

DEFENDANT: That is correct.

THE COURT: And then you turned around and headed towards the Dominican Republic to get the traps; is that correct?

DEFENDANT: Well, no, sir. We headed somewhat parallel to-I don't know. But we headed-well, we headed southeast. I don't know, maybe it was that. I don't know what bearing we took. [ ... ]

THE COURT: And that was a course that was not taking you to the Dominican Republic.

DEFENDANT: No, sir.

According to the First Circuit,

this exchange and others like it skirted dangerously close to the line between questioning intended to clear up muddled or gap-filled testimony, which is permissible, and questioning that signals the court's disbelief of the witness, which is not...The question about distances at sea, in particular, implies that the court was having trouble believing Carpio-Pouret's story.

That said, the First Circuit noted that the defendants did not object to this judicial interrogation, meaning that it could only reverse for plain error, which it was not willing to find. So, does it make sense that a party has to object to judicial interrogation but does not have to object to judicial testimony (or the equivalent of testimony)?  The Advisory Committee Note to Federal Rule of Evidence 605 indicates that:

The rule provides an "automatic" objection. To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector.

Really? If a judge is testifying and a party objects, I could see the judge feeling that his integrity had been attacked. It seems to me, however, that the judge would mostly feel that his competence had been attacked and not that he was favoring one side over the other. And, of course, if the judge were indeed testifying, it would be clear that he made a mistake, and the trial could move on.

But, if a judge engages in overly aggressive interrogation and a party objects, it is hard to see how the judge could take the objection as anything but the party calling his integrity into question. Moreover, because it is not a black and white issue like judicial testimony, it is easy to see the objection having lingering effects. I thus don't see why an objection to judicial interrogation is required by an objection to judicial testimony is not.

-CM 

Make Me Whole, Take 6: Minnesota Judge Questions Validity Of Minnesota's "Whole Person" Impeachment Test

Similar to its federal counterpart, Minnesota Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

In other words, if a witness has a conviction for as crime involving dishonesty or false statement (e.g., perjury, larceny by trick), the conviction is automatically admissible to impeach the witness, i.e., to show that his testimony is not trustworthy. If a witness has a conviction for a crime not involving dishonesty or false statement, the conviction will only be admissible if its probative value for showing that the witness' testimony if not trustworthy outweighs the prejudicial effect of the conviction. Most courts hold that a prior conviction can only be admissible under Rule 609(a) if it is for a crime that has some bearing on witness honesty. As I have noted in several posts (here, here, here, here, and here), Minnesota courts are not among these courts. But, as the recent opinion of the Court of Appeals of Minnesota in State v. Coleman, 2010 WL 3463597 (Minn.App. 2010), some Minnesota judges are starting to challenge the conventional thinking.

In Coleman, Lamart Coleman was charged with third-degree criminal sexual conduct. At trial, the judge permitted the prosecutor to impeach Coleman through his prior fifth-degree controlled-substance conviction through the following exchange:

Q Were you sometime in 2007 convicted of a marijuana drug charge here in Hennepin County?

A Yes.

Q And that was a charge you pled guilty to. I believe it was a marijuana sale charge; is that right?

A Correct.

Thereafter, at the end of trial, the judge gave the jury the following instruction:

Impeachment. In deciding the believability and weight to be given the testimony of a witness you may consider ... evidence that the witness has been convicted of a crime. You may consider whether the kind of crime committed indicates the likelihood the witness is telling or not telling the truth. In the case of the defendant you must be especially careful to consider any previous conviction only as it may affect the weight of the defendant's testimony. You must not consider any previous conviction as evidence of guilt of the offense for which the defendant is on trial.

After he was convicted, Coleman appealed, claiming that this impeachment was improper, prompting the Court of Appeals of Minnesota to conduct a five factor analysis, with the first factor being the impeachment value of the prior conviction. On this point, Coleman claimed "that his prior conviction of controlled-substance crime did not involve dishonesty and had little bearing on his veracity or honesty." 

The problem for Coleman is that Minnesota courts don't actually care about the impeachment value of the prior conviction. Instead, Minnesota courts apply a "whole person" test under which any prior conviction is always viewed as having enough "impeachment" value to pass this factor because it allows the jury sees the witness' "whole person" and thus better assess his credibility. As many have before, Coleman attacked this "whole person" test, and as many have before, he failed. Instead, the majority reaffirmed the "whole person" test, meaning that he could be impeached without any showing that his prior conviction tended to show that he was untrustworthy.

Coleman did find a partial ally in concurring Judge Shumaker, who held that

Logically implicit in the authority for the admission of evidence of a prior conviction is the requirement that the crime is somehow plausibly related to the witness's capacity and disposition to tell the truth. If the nature of the prior crime or the manner of its commission does not reasonably shed some light on the question of credibility, I suggest that its admission is not within the purview of rule 609(a). Moreover, it presents the risk that the jury will then use the prior crime to draw a general negative character inference, namely, that the accused is a criminal who acted in conformity in the instant case with his criminal nature or propensity. Such an inference is expressly forbidden by Minn. R. Evid. 404(a).

I say that Judge Shumaker was only a "partial" ally because he concurred but did not dissent. This is because the judge found that it was logical for the trial court to conclude that a conviction for selling drugs does have some bearing on a witness' testimony. This makes it unlike, say, a conviction for assault, which might speak to his violent tendencies but not his tendency to be lie.

-CM

Essential Reading: Tenth Circuit Finds District Court Properly Excluded Character Evidence In Campaign Contributions Appeal

Federal Rule of Evidence 404(a)(1), the mercy rule, provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution....

That said, evidence admissible under Rule 404(a)(1) is still subject to Federal Rule of Evidence 405(a), which provides that

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

In other words, if a defendant is charged related to him accepting questionable campaign contributions, he could have a character witnesses testify that, in his opinion, the defendant is honest or that the defendant has a reputation for being honest. But as the recent opinion of the Tenth Circuit in United States v. McMahan, 2010 WL 3446852 (10th Cir. 2010), makes clear, the witness could not testify that the defendant refused to accept questionable campaign contributions in the past.

In McMahan, Jeff McMahan, the former Oklahoma State Auditor and Inspector, was convicted of one count of conspiracy and two counts of violating the Travel Act. These charges stemmed from an allegedly improper relationship between McMahan and Scott and Steve Phipps, who owned several abstract companies. It was alleged that the Phipps gave McMahan financial assistance and gifts in exchange for favors. For example, McMahan allegedly delayed an application by John Callaham to open an abstract company in Idabel, Oklahoma, that would have competed with one of their businesses.

During trial, McMahan attempted to elicit testimony from witnesses regarding specific instances when, inter alia, he refused to accept a questionable campaign contribution, and did not provide favorable treatment to Phipps. Each time, the district court...determined that although McMahan was entitled to present character evidence, he could not do so by offering evidence of specific instances of his conduct.

After he was convicted, McMahan appealed, claiming, inter alia, that these rulings were erroneous. The Tenth Circuit disagreed, finding that while McMahan was allowed to present character evidence under Federal Rule of Evidence 404(a)(1), he could only present opinion and/or reputation testimony under Federal Rule of Evidence 405(a).

The Tenth Circuit did note that Federal Rule of Evidence 405(b) provides that

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

The court, however, found that McMahan's character was not an essential element of any charge or defense. In other words, McMahan could generally be an honest man who took improper campaign contributions in this case or a generally dishonest man who acted honestly this one time. In other words, this was not a case like an action for negligent hiring where the plaintiff has to prove that the employee who was negligently hired was an alcoholic and that the defendant should have known this fact and not hired him. And, this was not a case where the defendant claimed entrapment, raising the issue of whether the defendant was predisposed to commit the subject crime.

-CM

The Wonder State: Eastern District Of Arkansas Finds Serious Flaw With Arkansas' Rape Shield Rule

This Court views the case as illustrating a serious flaw in Arkansas's criminal justice system, whereby Arkansas applies its rape shield statute in a broad and sweeping fashion without properly focusing on the constitutional rights of the accused. Jackson v. Hobbs, 2010 WL 3397370 (E.D.Ark. 2010).

This was a fairly bold statement by the United States District Court for the Eastern District of Arkansas. So, do the facts back it up?

The facts in Hobbs can be found in the Eastern District of Arkansas's prior opinion in Jackson v. Norris, 2010 WL 3447275 (E.D.Ark. 2010):  Artie Jackson was charged with first-degree sexual abuse and second-degree sexual assault of a minor child based upon acts that he allegedly committed against his then seven to twelve year-old stepgranddaughter, J.W.

J.W. first made allegations against Jackson when she was 14 years old....The allegations surfaced during a conversation between J.W. and her mother, Regina Barnes....

Barnes...confronted her daughter after learning that her daughter had possibly had a sexual encounter with a young man. In response to her mother's questioning, J.W. admitted having consensual sex with a teenage boy named Nigel. After learning that the encounter occurred at Nigel's house, J.W.'s mother asked her how she was able to get transportation to the boy's house. J.W. responded that “Paw-Paw” (referring to Jackson) had taken her there....

After her mother expressed shock and disbelief that Jackson would provide the necessary transportation, J.W. told her mother that Jackson "did a lot of things that y'all don't know about" and then proceeded to make the allegations leading to the criminal charges.

Generally, evidence of the alleged victim's other sexual conduct would be inadmissible under Arkansas' rape shield rule; however, Arkansas' rule has an exception if

the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature.... Ark.Code Ann Section 16-42-101(c)(2)(C).

At an in camera hearing, the prosecution argued that evidence of J.W.'s sexual act with Nigel was embarrassing to J.W. and had the capacity to unfairly prejudice and mislead jurors hearing its case. Jackson responded that the subject evidence showed that J.W. had a motive to shift her mother's emotional reaction from J.W. to Jackson, later claiming on appeal that evidence of other sexual conduct by an alleged victim should always be admissible if it proves that the victim had a motive to lie.

The court agreed with the prosecution, finding that the probative value of the evidence did not outweigh its inflammatory or prejudicial nature, but the United States District Court for the Eastern District of Arkansas disagreed in Jackson v. Norris and found that the exclusion of the subject evidence violated Jackson's constitutional rights, leading it to grant his petition for writ of habeas corpus. Then, in Jackson v. Hobbs, the court issued the quotation that started this post and, inter alia, granted Jackson's motion for Release Pending Appeal.

My response: Really? I could see a court finding the probative value of the subject evidence outweighed its prejudicial effect, but I can also see a court reaching the opposite conclusion as the trial court did in this case. But how did the trial court apply the rape shield rule in a broad and sweeping manner? The subject evidence consisted of a 14 year-old girl engaging in a sexual act with a peer. It is hard to imagine what type of evidence of other sexual conduct could be more embarrassing or prejudicial. Moreover, the subject evidence had no direct connection to Jackson beyond the fact that he apparently drove J.W. to the boy's house, reducing its probative value.

Indeed, the only "broad and sweeping" argument made in the case seems to be Jackson's argument that the rape shield rule must give way whenever the defendant has evidence of other sexual acts, an argument that courts categorically have rejected. See, e.g., Boggs v. Collins, 226 F.3d 728 (6th Cir. 2000). It seems to me that the Eastern District of Arkansas was not concerned with Arkansas courts applying the rape shield rule too broadly but instead concerned with the rape shield rule itself. And that is a scary thought.

-CM

My New Article: Anchors Away: Why the Anchoring Effect Suggests that Judges Should Be Able to Participate in Plea Discussions

Today, I posted my new article, Anchors Away: Why the Anchoring Effect Suggests that Judges Should Be Able to Participate in Plea Discussions, on SSRN. Here is the abstract:

The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias.

This article thus proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions. Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecutor and defense counsel laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence. This article contends that this type of judicial participation would reduce the anchoring effect because the expected post-plea sentence would replace the prosecutor’s opening offer as the anchor and produce fairer final plea bargains. This article also argues that such judicial participation would ameliorate many of the problems associated with the current plea bargaining system.

This completes a summer of plea bargaining research for me, with one of my other projects being my recent article, Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains.

-CM