EvidenceProf Blog

Youthful Indiscretions: Court Of Appeals Of Washington Finds Juvenile Adjudications Inadmissible To Impeach Prosecution Witness

Like its federal counterpart, Washington Rule of Evidence 609 provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a finding of guilt in a juvenile offense proceeding of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

I thought that the Court of Appeals of Washington, Division One, addressed a case in which a juvenile adjudication should have been deemed admissible in its recent opinion in State v. Jones, 2010 WL 3490255 (Wash.App. Div. 1 2010). The court disagreed.

In Jones, Leroy Jones was convicted of first degree assault with a deadly weapon. The evidence at trial established that

Leroy Jones was involved in a fight with Taurian Alford near a bus stop in downtown Seattle. Within minutes, three of Alford's friends, including T'Shaun Bennett and Devin Wilturner, ran up and joined the fight. When the police arrived, they saw that Jones had a knife in his hand and was being restrained by the others. He continued struggling and did not drop the knife until a police officer tasered him.

Jones was charged with second degree assault with a deadly weapon. At trial, the State argued that Jones attacked Alford with the knife, and that Alford's friends intervened to save him. The defense theory was that Jones pulled out his knife in self-defense only after Alford's friends attacked him.

The State produced a number of eyewitnesses. Alford's cousin T'Shaun Bennett testified he saw Alford and Jones arguing on the street and then heard Alford shout that Jones had a knife. Bennett saw the knife in Jones' hand as Jones chased Alford down the street. Bennett ran up and saw Jones on top of Alford, trying to stab him. Bennett and Wilturner struggled with Jones until the police arrived.

The State next presented eyewitness testimony of coworkers Endre Veka, Erik Fierce, Peter Schwab, and Gus Iverson. They testified they were returning to their office on the way back from a coffee break when Alford came running up to them and said “someone was chasing him,” or “he's trying to stab me.” At first they were skeptical of Alford's motives, but within seconds they saw Jones run up and attack Alford. They saw two more young men join the fight, apparently trying to subdue Jones. The four coworkers gave slightly varying descriptions of the events, including the point at which they noticed the knife, but all agreed that Alford appeared primarily to be defending himself.

The State sought a material witness warrant for Alford but was unable to secure his presence for trial. Meanwhile,

the sole defense witness was Mark Forbes, a transportation supervisor who was working nearby when the fight occurred. Forbes testified he saw two men walking together. They started arguing and then fighting. He saw three other men join the fight, and heard someone say he “had a knife.” He then noticed a knife cupped in the hand of one of the men. Forbes thought the man with the knife seemed to be protecting himself from the others.

At trial, Jones sought to impeach Bennett through his prior juvenile convictions for third degree possession of stolen property, third degree malicious mischief, and three convictions for second degree taking a motor vehicle under Rule 609(d). The trial court, however, precluded this impeachment, and, after Bennett was convicted, Jones appealed, claiming, inter alia, that "the juvenile convictions were necessary evidence because without them Bennett, Alford, and the others were unfairly sanitized, leading the jury to discredit Jones' self-defense claim. The Court of Appeals of Washington, Division One, rejected this argument, concluding that 

Jones present[ed] no persuasive reason why Bennett's prior juvenile adjudications would be necessary for a fair determination of Jones' guilt, apart from a general attack on credibility. Refusing to admit the evidence was not an abuse of discretion, and in any event, there is no reasonable probability the omission of this evidence materially affected the outcome, especially given the adverse testimony of the witnesses who had no criminal history.

I disagree. It seems to me that the key question at Jones' trial was when he pulled the knife. If he pulled it before he was attacked by Alford's friends, he could be found guilty of assault with a deadly weapon. If he pulled the knife after being attacked by Alford's friends, I think that at the least he would have a viable defense of imperfect self-defense.

The unbiased eyewitnesses who saw the fight differed with regard to when they noticed the knife. The victim, Alford, did not testify at trial. Apparently, neither of his friends besides Bennett testified at trial. Therefore, Bennett's testimony that Jones had the knife out before Bennett and his friends attacked him seems to me to be the key testimony in his case. Thus, it seems to me that evidence of Bennett's prior convictions, which had some decent bearing on his credibility, were necessary for a fair determination of Jones' guilt or innocence.

-CM

State Your Reasoning: Court Of Appeals Of North Carolina Finds Trial Court Failed To Conduct Proper Rule 609(b) Analysis

Like its federal counterpart, North Carolina Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Rule 609(b) flips the typical Rule 403 balancing test, which deems evidence admissible as long as its probative value is not substantially outweighed by its prejudicial effect. It also requires trial courts to state specifically the facts and circumstances which led it to conclude that a more-than-ten-year-old conviction should be admissible for impeachment purposes. And, according to the opinion of the Court of Appeals of North Carolina in State v. Denton, 2010 WL 3633457 (N.C.App. 2010), a North Carolina trial court recently erred in applying the second aspect of Rule 609(b) while the prosecution's argument on appeal misstated the first aspect of the Rule.

In Denton, Jonathan Denton was convicted of possession of cocaine. Before Denton's trial, the State notified him of its intention to present evidence of his prior criminal convictions that were more than ten years old. Denton responded by filing a motion in limine seeking the exclusion of such evidence. While the trial court granted this motion in part, it found that 

The defendant's motion in limine as to [his convictions for] possession of stolen goods and the common law robbery and robbery with a dangerous weapon at this time is denied. But I'll have to conduct a weighing of that when we reach that point in the trial.

After the State rested, Denton renewed his motion in limine, and the trial court concluded that:

[S]ubject to further consideration as to balancing called for by the context in which the questions arise, I'm denying the motion in limine as to the possession of stolen goods, common law robbery and robbery with a dangerous weapon.

After he was thereafter impeached and convicted, Denton appealed, claiming, inter alia, that the trial court erred by admitting evidence of convictions that were more than ten years old without making findings as to “specific facts and circumstances” that justified their admission. The Court of Appeals of North Carolina agreed, finding that

Although the State asserts that “the trial judge complied with the balancing test required by the rule and determined, in his discretion, that the probative value of the convictions outweighed their prejudicial effect,” it has not cited us to any transcript excerpts that support this contention and we have not identified any support for this contention during our own examination of the record. In addition, the State's argument that the trial court adequately complied with N.C. Gen.Stat. § 8C-1, Rule 609(b) by finding “that the probative value of the convictions outweighed their prejudicial effect” misstates the applicable law, which requires the trial court to determine that the “probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” (emphasis added). Finally, the State contends that the trial court “specifically stated for the record that he had applied the balancing test required by the rule.” However, the trial court's only reference to the application of the required balancing test occurred at the time of its ruling denying Defendant's motion in limine “subject to further consideration as to balancing called for by the context in which the questions arise.” Although the State appears to argue that the trial court's reference to “further” balancing suggests that “previous” balancing had already occurred, the record clearly reflects that the trial court did not make any findings of the type required by N.C. Gen.Stat. § 8C-1, Rule 609(b). As a result, since “[t]here are no findings of specific facts and circumstances in the record to support the trial court's determination that the evidence was more probative than prejudicial,” “[t]he trial court's admission of defendant's prior convictions beyond ten years was error and we now examine whether defendant was prejudiced."   

That said, the court deemed this error harmless and thus affirmed Denton's conviction.

-CM

The Profile Doesn't Fit The Profile: Fifth Circuit Addresses Admissibility Of Drug Courier Profile Evidence Under Rule 704(b)

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

So, is drug courier profile evidence admissible under Rule 704(b)? That was the question addressed by the Fifth Circuit in its recent opinion in United States v. Gonzalez-Rodriguez, 2010 WL 3636986 (5th Cir. 2010).

In Gonzalez-Rodriguez, Rafael Gonzalez-Rodriguez was convicted of possession with intent to distribute more than 500 grams of methamphetamine. The evidence at trial established that

Gonzalez-Rodriguez drove a Freightliner tractor-trailer to the immigration checkpoint in Falfurrias, Texas....

The Freightliner was carrying a shipment of grapefruits destined for a Costco warehouse in Dallas, Texas....

Border Patrol Agents Abel Quintana and Victor Valdez were on duty...when Gonzalez-Rodriguez arrived at approximately 11:26 P.M. Agent Valdez is a trained K-9 handler and was with his canine, Ringo. As Gonzalez-Rodriguez approached the primary inspection area, Ringo pulled Agent Valdez to the back of the Freightliner. Agent Valdez signaled to Agent Quintana that Ringo had alerted to the trailer, and Agent Quintana asked Gonzalez-Rodriguez to drive to a secondary inspection area.

At secondary inspection, Agent Valdez...asked Gonzalez-Rodriguez to open the trailer door. After Gonzalez-Rodriguez opened the door, Ringo jumped on top of grapefruit bins stacked two high and ran full speed to the front of the trailer. Ringo started digging through a particular bin of grapefruits. Agent Valdez crawled to the area where Ringo was digging, moved some bags of grapefruits, and discovered bundles bearing an image of the grim reaper. Agent Valdez, with the assistance of other agents, ultimately recovered 124 such bundles weighing a total of 312.5 pounds. The bundles had been placed in the center of five different grapefruit bins, with grapefruits layered on all sides. The bundles contained extremely high quality methamphetamine, referred to as “ice” due to its purity, with an estimated street value of $10 to $40 million.

A bill of lading and log book were recovered from the Freightliner. The bill of lading was prepared by Interstate Fruit and indicates that Order 5349 contained 40 bins of 15-pound bags of grapefruit destined for a Costco warehouse in Dallas. Interstate Fruit's shed foreman testified that Order 5349 left Interstate at 12:56 P.M. The log book's latest entry, on the other hand, states that “Pickup # 4359” was made at 9:45 P.M. The log book was signed by Gonzalez-Rodriguez. It normally takes about one and one-half hours to drive from Interstate Fruit's warehouse in Donna to the immigration checkpoint in Falfurrias.

Moreover, Agent Robert Crawford of the Drug Enforcement Administration testified that

that he would “classify” the majority of people arrested at immigration checkpoints as couriers, and that couriers generally are at the bottom of drug organizations and do not actually handle the drugs they transport. Agent Crawford explained that this is to reduce the cost of the courier's services, and also to ensure that the courier has little information that could be traced back to the broader organization. Because drug couriers typically do not handle drugs, Agent Crawford testified that a courier probably did not hide the methamphetamine in Gonzalez-Rodriguez's trailer, and thus Agent Crawford did not expect to find, and was not surprised when he did not find, Gonzalez-Rodriguez's fingerprints on the bundles of methamphetamine. Agent Crawford additionally testified that large drug organizations often seek couriers with no criminal history to give an appearance of legitimacy to their operation. For a similar reason, Agent Crawford stated that drug organizations often try to hide their illegitimate contraband in seemingly legitimate places for transportation. He explained that drugs often are hidden in “false walls, false compartments, they will put it in engines, they will put it in tires, they will put it in produce just various different particular ways.” Indeed, Agent Crawford asserted that the “first thing” he wanted to know when conducting his investigation was whether the Freightliner was carrying a “legitimate load.” Agent Crawford further testified that two drain holes in the Freightliner's trailer had been plugged, and that this indicated an effort to impede a detectable drug odor. Finally, Agent Crawford suggested that Gonzalez-Rodriguez must have known about the drugs in the Freightliner because he falsified the Freightliner's log book. Gonzalez-Rodriguez did not object to any of this testimony.

After he was convicted, however, Gonzalez-Rodriguez appealed, claiming, inter alia, that this testimony was improperly received under Federal Rule of Evidence 704(b), and the Fifth Circuit reviewed for plain error. According to the court,

A drug courier profile is a compilation of characteristics used by law enforcement officers to identify individuals who might be involved in the trafficking of narcotics....In cases involving pure profile evidence, law enforcement personnel seek to testify that because a defendant's conduct matches the profile of a drug courier, the defendant must have known about the drugs he was transporting....We have repeatedly held that drug courier profile evidence is “inadmissible to prove substantive guilt based on similarities between defendants and a profile.”...This is because profile evidence may amount to the functional equivalent of an expert opinion that the defendant knew he was carrying drugs, see...Fed.R.Evid. 704(b), and also because profile evidence is likely to be overinclusive and its probative value low in relation to its prejudicial effect, see...Fed R. Evid. 403. That an individual fits a generic drug courier profile does not mean that the individual knew he was carrying drugs in a particular case, and “[i]t is the evidence showing the person's connection to drug trafficking that must form the basis for the conviction.”...Although the Government may introduce evidence that the defendant exhibited the individual behaviors that make up a drug courier profile, the Government may not define the profile or suggest that the defendant's behavior in fact fit the profile.

The Fifth Circuit found that some of Agent Crawford's testimony fell on the good side of this divide, such as his testimony

that most large quantity methamphetamine is produced in Mexico; that drug organizations use couriers to transport drugs to the United States for distribution; that drug organizations often transport drugs by hiding them in seemingly legitimate places; that couriers normally do not handle drugs; that a courier probably would not have been the person who hid the methamphetamine in the grapefruit; and that Agent Crawford therefore was not surprised when he did not find Gonzalez-Rodriguez's fingerprints on the bundles of methamphetamine.

That said, the court found that other portions of Agent Crawford's testimony crossed the line, such as his testimony

that drug couriers generally have no criminal history (The court found this to be "classic profile testimony: it describes a characteristic used by law enforcement officers to identify an individual who might be a drug courier.");

that the “first thing” he wanted to know when conducting his investigation was whether the Freightliner was carrying a “legitimate load,” such as “produce;” 

that Gonzalez-Rodriguez must have known about the drugs because he falsified the Freightliner's log book; and

that the majority of people arrested at immigration checkpoints are couriers (The court found that "[t]his testimony implied that Gonzalez-Rodriguez was a drug courier, and therefore knew he was carrying drugs, because he was arrested at a checkpoint."). 

In the end, however, the Fifth Circuit still affirmed, finding that the erroneous admission of this testimony did not affect Gonzalez-Rodriguez's substantial rights because "even excluding Agent Crawford's impermissible testimony, there is still extensive evidence that Gonzalez-Rodriguez knew about the drugs in the Freightliner."

-CM

Opinion Of Interest: Eleventh Circuit Affirmed Statement Against Interest Ruling In Drug Deal Appeal

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Of course, for a statement to be deemed a "statement against interest under Rule 804(b)(3), it must be clear that the statement was indeed against the declarant's interest, which was the problem for the appellant in the recent opinion of the Eleventh Circuit in United States v. Huerta, 2010 WL 3638789 (11th Cir. 2010).

In Huerta, Javier Huert was indicted on one count of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine and three counts of distribution of 5 grams or more of methamphetamine. Meanwhile, Manuel Camacho Barcenas was charged as a co-conspirator and pleaded guilty. The prosecution presented evidence at trial which established that

Peter Strautman, a convicted drug dealer who worked as a confidential informant with the DEA, arranged several controlled buys with Huerta and Barcenas. The deals were captured on audio and video recordings. In the calls and exchanges, Huerta acted as an interpreter for Barcenas and arranged the deals. And during one of the buys, Huerta informed Strautman that he had supplied drugs to a man named Paco, who was Strautman's previous supplier. Huerta said that he and Barcenas, “[w]e make a deal sometimes. Half and half.” Strautman understood this to mean that the two men sold drugs together. During his work for the DEA, Strautman also arranged controlled buys with each dealer alone. The controlled buy Strautman attempted to arrange with Huerta was unsuccessful because, as Huerta later explained to Strautman, Huerta had seen a suspicious car and cancelled the meeting. Strautman was unable to reschedule the buy.

Thereafter,

Huerta testified in his own defense. He explained that he and Barcenas were friends and that he had been helping tow cars to Barcenas's mechanics shop. He stated that he had been lying in the recorded phone calls to shield Barcenas, that he was present at the buys only to protect Barcenas, and that he did not receive any money from the buys. He denied that there was any conspiracy and explained that the deals mentioned in the recordings were car deals. Huerta then testified that he had received two letters from Barcenas while the case was pending. The government objected to the admission of these letters on hearsay grounds. Defense counsel responded that Barcenas was unavailable because, when called as a witness, he had invoked his Fifth Amendment right not to testify, and that the letters were trustworthy because Barcenas had admitted to the government that he wrote them. The court sustained the government's objection and excluded the letters.

After he was convicted, Huerta appealed, claiming, inter alia, that the district court should have deemed the letters admissible under Federal Rule of Evidence 804(b)(3). In one letter, Barcenas wrote that he was involved in “deals” and that he acted “because of the consumption of alcohol.” He further wrote that he would plead guilty, that he “should be responsible for it because no one else should pay the broken plates of someone else's,” and that he “assume[d] the responsibility that you had nothing to do with those charges.”

The Eleventh Circuit rejected Huerta's argument, finding that

Although both Huerta and the government agree that Barcenas was unavailable under Rule 804(a)(1), Huerta cannot show that the letters were admissible. The statements are vague and do not inculpate Barcenas to the extent that he reasonably would not have made the statement unless he believed it to be true. Moreover, the evidence at trial showed that Huerta and Barcenas were working together. Thus, the district court did not abuse its discretion in excluding the hearsay evidence, and we affirm Huerta's convictions.

I agree with the court. Barcenas indicates that he was involved in "deals" but never wrote what type of deals. Moreover, does it make sense that he would have been involved in drug deals "because of the consumption of alcohol"? Barcenas also made reference to being responsible based upon "broken plates." It is unclear how broken plates would relate to a drug deal. Maybe he was referring to broken license plates, and the "deals" to which he referred were drug deals. Or maybe he was referring to the subject drug deals, but it is impossible to tell from his confusing letters, which is why I think that the court properly found that they did not qualify for admission under Federal Rule of Evidence 804(b)(3).

-CM

The Informant!: Court Of Appeals Of Texas Opinion Lays Out Test For Exception To Informant Exception

Texas Rule of Evidence 508(a), Texas' informant privilege, provides that

The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

That said, there is an exception to this privilege contained in Texas Rule of Evidence 508(c)(2), which provides that

If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.

So, how exactly does this exception apply in practice? The recent opinion of the Court of Appeals of Texas, San Antonio, in Morin v. State, 2010 WL 3582382 (Tex.App.-San Antonio 2010), provides a pretty good indication.

In Morin, the evidence at trial established that

[William] Swisher met John Villarreal at Villarreal's apartment on June 24, 2007, where the two men used cocaine. After Swisher fell asleep on Villarreal's bed, Villarreal heard someone at his door. At the door was [Ruben] Morin, who pushed his way into the apartment. Morin placed a gun to Villarreal's chin upon entering the apartment and asked Villarreal whether Swisher had hidden any drugs or money inside the residence. Villarreal answered negatively and Morin attempted to arouse Swisher. Morin fired his pistol to awaken Swisher, who got up upon hearing the gunshot. Morin proceeded to confront Swisher about “messing around with [his] girlfriend”  and asked him where he had placed his money and drugs. Swisher responded that he did not know what Morin was talking about and gave Morin his wallet and car keys. Morin grabbed the items from Swisher and then shot him in the chest and stomach. Morin “paced back and forth” and then ran out of the apartment. Swisher did not survive the gunshot wounds he received from Morin and died on the floor of Villareal's apartment.

The authorities, with the assistance of a confidential informant, located Morin at an apartment later that day. Morin was apprehended by police following a brief “scuffle,” which occurred approximately forty to fifty feet away from the apartment. Officers entered the apartment from which Morin had emerged and conducted a protective sweep of the residence “to check for other combatants.” During the course of their protective sweep, officers observed drugs and drug paraphernalia in plain view as well as a cleaning crew inside the apartment. San Antonio Police Officer Daniel Molina prepared a warrant affidavit and secured a search warrant for the premises. Officers executed the warrant later that day and seized, among other items, clothing they believed Morin wore at the time of Swisher's death and multiple rounds of ammunition matching the caliber of the murder weapon.

In his ensuing murder trial, Morin's defense was that Morin postulates that Villarreal and Stephanie Ruiz framed him for Swisher's murder based upon discrepancies between their statements to police and their trial testimony. In an attempt to find evidence to support this theory, Morin sought an in camera to determine whether the informant possessed information concerning the names of other persons who might confirm his theory.

The trial court refused to hold such a hearing, and the Court of Appeals of Texas, San Antonio, agreed with this decision, finding that

The accused bears the threshold burden of demonstrating there is a reasonable probability the informer may give testimony necessary to a fair determination of the issue of guilt or innocence....To meet his burden, the accused must provide more than mere conjecture or speculation; he must show the informant's testimony would significantly aid the jury in determining guilt or innocence....The filing of a motion to disclose is insufficient to obtain a hearing, much less compel disclosure...However, because the defendant may not actually know the extent of the informant's involvement, he is only required to make a plausible showing of how the testimony may be important....

If the defendant meets this initial burden, the State must be given an opportunity to show, in camera, facts relevant to whether the informer can supply the alleged testimony....The trial court should order disclosure of the informant's identity if it finds a reasonable probability exists that the informer could give testimony necessary to a fair determination of guilt or innocence.

The Court of Appeals found that Morin failed to meet his threshold burden because

At the pretrial hearing on Morin's confidential informant motion, Officer Molina testified the informant did not participate in or witness Swisher's murder. He or she also did not observe Morin hide the murder weapon. Officer Molina confirmed the informant acquired his or her information from individuals who were not involved in the crime. He stated that the informant's information concerning the crime “had been passed along” to him or her during his or her telephone conversations with persons “other than the people that were involved in the crime."

Therefore, it was not plausible to believe that the informant's testimony would be important; instead, "Morin's argument amount[ed] to nothing more than supposition and conjecture unsupported by any evidence."

-CM

Article Of Interest: Social Networking and Workers' Compensation Law at the Crossroads

The question of whether and to what extent social networking evidence should be admissible is relatively new and has led to some interesting initial cases addressed on this blog (see here, here, here, here, and here). Now, it has led to an interesting article as well: Social Networking and Workers' Compensation Law at the Crossroads (forthcoming, Pace Law Review) by Professor Gregory M. Duhl of the William Mitchell College of Law and Jaclyn S. Millner of Fitch, Johnson, Larson & Held. 

According to the abstract:

Over the past decade, social networking has increasingly influenced the practice of both civil and criminal law. One way to illustrate those influences is to examine a “system” of laws and the parties and lawyers in that system. In this article, we examine how social networking has influenced workers’ compensation law, looking at, in particular, the intersection of professional responsibility, discovery, privacy, and evidence with social networking in state workers’ compensation systems.

Workers’ compensation laws are no-fault insurance systems designed to resolve disputes efficiently. Consequently, the rules of evidence are often more relaxed and the rules of discovery often more restricted than in state and federal court litigation. The flexible and self-contained structure of workers’ compensation systems provides an ideal backdrop against which to examine how information from social networking sites can be used as evidence to resolve civil disputes.

A state’s workers’ compensation system should use the rules that have traditionally applied to non-electronic information as a starting point to address issues arising from lawyers gathering and introducing into evidence information stored on social networking sites. At the same time, because of the efficiency of workers’ compensation law and the large discretion vested in its judges, workers’ compensation systems have the potential to be laboratories for new technologies and how they can be used in the resolution of disputes, both inside and outside of workers' compensation.

As the authors note in their conclusion,

The lawyers, judges, insurance companies, and parties within workers‘ compensation systems will increasingly confront the discovery, privacy, professional responsibility, and evidentiary issues that arise at the crossroads of workers‘ compensation law and social networking. In the absence of case law and ethics opinions that discuss these exact issues, this article starts with the rules that govern workers‘ compensation cases, and discusses how they might apply to lawyers gathering, producing, and introducing evidence from social networking sites.

-CM

Primary Motive: Court Of Appeals Of Arizona Finds Former Testimony Exception Applied To Bond Hearing Testimony

Arizona Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Former testimony in criminal actions or proceedings as provided in Rule 19.3(c), Rules of Criminal
Procedure.

In turn, Rule 19.3(c) provides that

(1) Admissibility. Statements made under oath by a party or witness during a previous judicial proceeding or a deposition under Rule 15.3 shall be admissible in evidence if:

(i) The party against whom the former testimony is offered was a party to the action or proceeding during which a statement was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party now has (no person who was unrepresented by counsel at the proceeding during which a statement was made shall be deemed to have had the right and opportunity to cross-examine the declarant, unless such representation was waived) and

(ii) The declarant is unavailable as a witness, or is present and subject to cross-examination.

So, does a criminal defendant have an interest and motive to cross-examine a witness at a hearing to hold him without bond that is similar to the interest and motive that he has to cross-examine the witness at his criminal trial? According to the recent opinion of the Arizona Court of Appeals, Division 1 in State v. Acuna, 2010 WL 3597233 (Ariz.App. Div. 1 2010), the answer is "yes."

In Acuna, Pasqual Sosimo Acuna was convicted of charges arising out of a confrontation and drive by shooting on December 31, 2007. At a hearing to determine whether Pasqual would be held without bond, Rosario Acuna, Pasqual's alleged accomplice, testified against him. At trial, however, despite being subpoenaed by the State, Acuna failed to appear, prompting the State to introduce his prior testimony under Rule 19.3(c). After he was convicted, Pasqual appealed, claiming, inter alia, that he did not   have an interest and motive to cross-examine Rosario at the bond hearing similar to the interest and motive that he has to cross-examine Rosario at his criminal trial?

The Arizona Court of Appeals, Division 1 found that he did, finding that

To hold the defendant without bond, the court must find “that the proof is evident or the presumption great that the person committed the offense for which the person is charged.”...At the bond hearing, Appellant was represented by counsel, who took advantage of his opportunity to cross-examine Rosario....Appellant's interest and motive to cross-examine Rosario was similar to his interest and motive at trial....

Appellant argues that the brevity of his cross-examination of Rosario indicates he did not have a similar motive at the bond hearing. He contends the questioning was limited to the actions of the occupants of the other truck, rather than examining Rosario's credibility or motive to lie. Although Appellant's case strategy may have motivated him to limit his cross-examination at the bond hearing, his interest in refuting the prosecution's proof that he had committed the offense was similar to his interest in rebutting the prosecution's evidence at trial....For these reasons, we affirm the trial court's finding that Appellant had an opportunity to cross-examine Rosario and a similar motive to do so.

-CM