EvidenceProf Blog

Come Be My Conspiracy: Eleventh Circuit Finds Co-Conspirator Admission Rule Applies Against Late Arriving Co-Conspirators

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

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

But is one co-conspirator's admission admissible against another co-conspirator who had not yet joined the conspiracy at the time that the admission was made? According to the recent opinion of the Eleventh Circuit in United States v. Makarenkov, 2010 WL 4204637 (11th Cir. 2010), the answer is "yes."

In Makarenkov, Vitali Makarenkov and Stanislaw Satarinov were jointly charged with conspiracy to possess with the intent to distribute five kilograms or more of cocaine (Count One) and possession with intent to distribute 500 grams or more of cocaine (Count Two). Subsequently,

Makarenkov was tried alone. The jury found him guilty on Count One, but of the lesser-included offense of conspiracy to possess with the intent to distribute 500 grams or more of cocaine. He was found guilty as charged on Count Two. He was sentenced to seventy-two months on each count, with the sentences to run concurrently, and a forty-eight month term of supervised release on each count, to run concurrently.

After he was convicted, Makarenkov appealed, claiming, inter alia, that the district court erred in admitting recorded conversations between Satarinov, a co-conspirator, and a confidential informant. According to Makarenkov, these conversations took place before he allegedly joined the conspiracy and thus could not be admitted against him as co-conspirator admissions. The Eleventh Circuit disagreed, finding that "it is settled law in this circuit that 'a 'declaration of one co-conspirator is admissible against members of the conspiracy who joined after the statement was made.'' United States v. Lampley, 68 F.3d 1296, 1301 (11th Cir.1995)."

Indeed, the Eleventh Circuit's opinion in Lampley contains the following citation:

See also United States v. Brown, 943 F.2d 1246, 1255 (10th Cir.1991) (citing cases from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth Circuits in concluding that the "prevailing view among the circuits is that previous statements made by co-conspirators are admissible against a defendant who subsequently joins the conspiracy").

-CM

"The Wharton Brand": Eastern District Of Pennsylvania Finds Subsequent Remedial Measures Rule Applies To Breach Of Contract Actions In Action Against Penn

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Back in September 2009, I posted an entry about the Court of Appeals of Wisconsin finding that Wisconsin's counterpart to Rule 407 did not apply to criminal cases. I disagreed with this conclusion, and I think that the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Reynolds v. University of Pennsylvania, 2010 WL 4187935 (E.D.Pa. 2010), which found that Rule 407 applies to breach of contract actions, exposed the flaw in the reasoning of the Court of Appeals of Wisconsin.

In Reynolds, Frank Reynolds was a student in the Executive Masters in Management (EMTM) program at the University of Pennsylvania. Reynolds brought a breach of contract, unjust enrichment, and Unfair Trade Practices and Consumer Protection (UTPCPL) action against Penn, claiming that Penn officials failed to fulfill their promise to him that upon his completion of the EMTM program, he would in effect be considered a graduate of The Wharton School and benefit from "the Wharton Brand." In response to complaints by Reynolds and others regarding the issue of whether they would be entitled to these and other benefits, the

Penn administration scheduled a town hall meeting. The purpose of the meeting was to clarify the nature of the EMTM program's affiliation with the Wharton School....At that meeting Anjani Jain, Dean of the Wharton School, informed the audience that "you are students in the engineering school....The admissions are done [in] engineering. You go to commencement from Penn Engineering, and the degree you get is an engineering degree."...Jain also stated "I think for all intents and purposes your access to our alumni services is indistinguishable from those who have Wharton degrees."...Lyle Ungar, an EMTM co-director, acknowledged that "[there have] occasionally been mistakes made from within" with respect to the marketing of the program....He elaborated: "some of them to my horror only mention Wharton, which I think is, you know, unforgivable."...However, when asked later whether the EMTM program was "marketed as an exclusively Wharton program to any of you," unidentified audience members responded in the negative.

After the jury found for Penn on the UTPCPL claim, found for Reynolds on the breach of contract claim, and did not render a verdict of the unjust enrichment claim, the United States District Court for the Eastern District of Pennsylvania granted Penn's motion for a new trial.

Before the retrial, Reynolds claimed for the first time that he should be able to admit evidence concerning what happened at the town hall meeting despite the fact that it was evidence of subsequent remedial measures because "Rule 407 does not apply to breach of contract claims." The court rejected this argument and deemed the evidence admissible. This time, the jury found for Penn on the breach of contract claim but found for Reynolds on the unjust enrichment claim.

The parties then cross-appealed, and the court, inter alia, affirmed its ruling under Federal Rule of Evidence 407.

First, the court found that the plain language of the rule indicates that it applies to breach of contract actions, concluding that

Had the drafters of the Rule intended it to apply only to tortious conduct, they could have used the words "tortious conduct" in place of "culpable conduct." By choosing the broader of the two phrases, the drafters clearly demonstrated their intent not to confine the application of the Rule to tort cases. Because a breach of contract is culpable conduct...I find that the plain language of Rule 407 indicates that it applies to breach of contract cases. 

Second, the court found that the public policy underlying the Rule indicates that it applies to breach of contract actions, citing a Seventh Circuit opinion for the proposition that

"to use at a trial a revision in a contract to argue the meaning of the original version would violate Rule 407 of the Federal Rules of Evidence, the subsequent-repairs rule, by discouraging efforts to clarify contractual obligations, thus perpetuating any confusion caused by unclarified language in the contract."

Third, the court found that the application of Rule 407 must be predictable and that

the application of the Rule cannot depend on whether a plaintiff chooses, potentially years later, to bring a lawsuit sounding in tort or one sounding in contract. In order for the Rule to accomplish its salutary purpose of incentivizing remedial action, its application at trial must be predictable. That is, a potential defendant must be confident that when he takes remedial action it will not later be admitted at trial as evidence of his liability.

Reynolds's suggested distinction would dramatically reduce the predictability of the Rule's application. Before taking remedial action, a potential defendant would need to assess the likelihood that a plaintiff will couch his claim in contract terms. The mere possibility, however remote, that the facts might support a contract claim would interpose a substantial practical obstacle to the remedial action.

I agree with all three of the points made by the court and think that all of these points also explain why Rule should apply to criminal actions. Criminal conduct is culpable conduct, the public policy underlying the Rule indicates that it applies to breach of conduct actions (we don't want to discourage efforts to, say, remedy criminal negligence), and application of the Rule cannot depend on whether, say, the government chooses to bring an action sounding in criminal negligence after a plaintiff has already sued for civil negligence.

-CM

Article of Interest: Josephine Ross' Blaming the Victim: 'Consent' Within the Fourth Amendment and Rape Law

It used to be that courts applied an objective definition of consent in rape prosecutions. This was because of traditional force and resistance requirements:  

First, courts interpreted the element of force to require that the man overpower the woman or threaten her with death or physical injury. If a woman submitted to subtle forms of coercion, the law would view her submission as consent. Second, common law courts required rape victims to resist unwelcome advances "to the utmost."

As a result, "[i]nstead of crediting the victim's perspective,...court[s] turned the question of consent into a normative question about the quantity and quality of force used by the aggressor." Feminists, however, have been largely successful in getting courts and legislatures to eliminate or relax force and resistance requirements, leading to an increased focus on the alleged victim's subjective state of mind and an increased recognition of individual autonomy as the primary purpose of prohibiting sexual assault.

The converse, however, has occurred with regard to consent in the Fourth Amendment context.

It used to be that courts determined whether a suspect consented to a police search by applying a "totality of the circumstances" test which considered both subjective (the characteristics of the accused) and objective (the conduct of the police and the circumstances surrounding the interrogation) circumstances. But "[w]hile sexual assault law began to credit the subjective understanding of the person claiming she did not consent, Fourth Amendment law began eliminating the subjective inquiry almost entirely." That's not to say that courts have read subjective circumstances out of Fourth Amendment consent law.

"Officially, the subjective prong is still viable" in determining if a search was consensual, noted Ric Simmons, but after [the Supreme Court's opinion in United States v. Drayton, 536 U.S. 194 (2002], in practice, the voluntariness test for consent has become so inextricably linked to the objective Fourth Amendment test for seizure that it is unlikely that the subjective elements will ever be reaffirmed by the courts.” The majority framed this objective question of consent as whether a reasonable innocent person would know “that he or she was free to refuse” the search. Scholar Joshua Dressler summarized the current state of consent law in this way: "In reality, the concept of voluntariness is a normative one. The real issue for courts is whether the police methods of obtaining consent are morally acceptable." In other words, if the Court approves of the actions taken by police, it will deem that the individual submitted voluntarily. If the Court finds the actions of police to be unacceptable, then the Court will hold that the civilian merely submitted to a show of authority. In truth, the consent exception has nothing to do with what the victim of the search wanted.

So, should courts import modern consent doctrine from rape cases into  Fourth Amendment cases so that there is a "victim perspective" for searches and seizures and the recognition that autonomy and privacy are the core goals of consent policy? That's the argument by Josephine Ross, an Associate Professor and the Supervisor of the Criminal Justice Clinic at the Howard University School of Law, in her recent article, Blaming the Victim: 'Consent' Within the Fourth Amendment and Rape Law, 26 Harv. J. Racial & Ethnic Just. 1 (2010), which I highly recommend to readers. I asked Professor Ross what led her to write the article, and she responded as follows:

I am a long-standing feminist who teaches a criminal defense clinic. I noticed that on many occasions our client had received unwelcome attention by the police in a shakedown for drugs, but the court would not suppress the evidence because the clients allowed the police to search them. We had to tell our clients that the judge thinks “you should have fought back or tried to walk away” knowing full well that this might have made things worse for them at the time. It reminded me of the times juries told rape victims “you should have fought back. Because you didn’t, you must have wanted it.” Our clients didn’t want to be searched any more than the rape victim wanted sex.

 

I think many of the feminist critiques of the traditional rape doctrine are brilliant and wanted to bring their insights into the Fourth Amendment, using feminist theory to further an anti-racist agenda.

 

What people like most about this article is the use of the film “Crash”; I’m told you don’t have to have seen the movie to enjoy the analogies here.

-CM 

That's Settled: Eastern District Of Missouri Finds Documents Compiled During Settlement Negotiations Not Covered by Rule 408

Federal Rule of Evidence 408 provides:

(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.

Moreover, it is well established that Rule 408 covers not only statements made during settlement negotiations but also documents prepared for settlement negotiations. As the recent opinion of the United States District Court for the Eastern District of Missouri in Goodman Distribution, Inc. v. Haaf, 2010 WL 4117379 (E.D.Mo. 2010), makes clear, however, the Rule does not cover all documents prepared (or compiled or collected) during settlement negotiations.

In Haaf,

Goodman allege[d] Mary Haaf devised a scheme to submit false and fraudulent warranty claims. Goodman alleges between approximately August 21, 2009, and October 16, 2009, she submitted over 375 false claims. A list of the claims with the claim numbers, unit serial numbers, dates of approval, and check numbers [wa]s attached to the complaint as Exhibit B. According to Goodman, these claims were fraudulent in that: the work required to charge the unit ha[d] not been done; the work performed was not necessary; the unit was no longer under warranty; and/or the maximum $200.00 per unit limit under the cap replacement program had already been paid. Goodman state[d] it relied on the false statements defendants made in the warranty claims when it paid these allegedly fraudulent claims.

Plaintiff also allege[d] it inadvertently paid money to defendants that was not due or owed. Plaintiff alleges it mistakenly sent checks to defendants as a result of a typo. Plaintiff alleges it...demanded the return of this money, but defendants...refused to do so.

Goodman thus brought an action against Haaf and Herb Haaf, Inc. for  fraud, money had and received, and breach of contract. Before trial, the defendants moved, inter alia, pursuant to Federal Rule of Civil Procedure 12(f),

to strike Exhibit C from the complaint. Exhibit C contain[ed] invoices from Herb Haaf, Inc. to its customers, and warranty claim forms submitted to Goodman....

Defendants argue[d] the invoices and warranty claim forms attached as Exhibit C should be stricken because they are inadmissible under Rule 408...in that they were complied and provided to plaintiff during settlement negotiations.

In denying this motion, the court correctly noted that

The issue before the Court..., however, is not whether...the documents in the exhibit are admissible, but rather whether they are immaterial, impertinent, and scandalous matter. Rule 12 is directed to allegations in a complaint, not to the admissibility of evidence.

Moreover, the court correctly concluded that

In any event, Rule 408 would not apply to the documents at issue....

While the documents may have been complied and provided to plaintiff during settlement negotiations, they do not appear to have been prepared for the settlement negotiations. Upon examination, it would seem the documents were created by Herb Haaf, Inc. during the regular course of its business. "Rule 408 does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations."

-CM

Avoiding A Confrontation?: Does The Bruton Doctrine Cover Nontestimonial Hearsay After Crawford?

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that, at a joint trial, a defendant's Sixth Amendment right of confrontation is violated by admitting the confession of a non-testifying codefendant that implicates the defendant, regardless of any limiting instruction given to the jury. In other words, if Carl confesses to Police Officer Peters, "Dan and I robbed the bank," Carl's confession is inadmissible at the joint trial of Carl and Dan for bank robbery unless Carl takes the witness stand. According to the Court, this is not because the introduction of Carl's confession literally would violate Dan's right "to be confronted with the witnesses against him...." 

Instead, the Court correctly noted that a confession such as Carl's confession is technically only admissible against him, which is why a court arguably could admit Carl's confession along with a limiting instruction telling jurors to ignore the confession in determining Dan's guilt or innocence. See Bruton, 391 U.S. at 128 n.3 ("We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence,...the problem arising only because the statement was...admissible against the declarant."). The Court concluded, though, that there was a substantial threat that the jury would ignore such a limiting instruction and use the codefendant's confession as evidence of the other defendant's guilt, which is why such confessions are inadmissible unless the codefendant testifies.

This point is driven home by the fact that a "myriad [of] Courts of Appeals...have recognized that the rule and rationale of Bruton do not apply to bench trials." Johnson v. Tennis, 549 F.3d 296, 300 (3rd Cir. 2008). If Carl's confession literally violated Dan's right to be confronted with the witnesses against him, it would violate this right at both a jury trial and a bench trial.  But as noted, Carl's confession is not really admitted against Dan, and courts presume that judges are able to use Carl's confession solely as evidence of his guilt and not as evidence of Dan's guilt, which is why they don't apply Bruton to bench trials. See id.

Based upon this analysis, I don't think that the Supreme Court's landmark decision in Crawford v. Washington, 541 U.S. 36 (2004), had any impact on the Bruton doctrine. Almost every court, however, seems to disagree.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In other words, the Confrontation Clause is violated when testimony or testimonial hearsay is admitted against a defendant and he is not given the chance to cross-examine the declarant.

So, after Crawford, does the Bruton doctrine only cover testimonial hearsay? For instance, would Carl's confession to his friend Fred (which would likely not be defined as "testimonial" under Crawford and its progeny) that Dan and he robbed the bank be admissible at their joint jury trial only if Carl testified?

That takes us to the recent opinion of the United States District Court for the Eastern District of Virginia in United States v. Williams, 2010 WL 3909480 (E.D.Va. 2010). In Williams, Marvin Wayne Williams, Jr., Freddie Wigenton, and Deshawn Anderson were charged with conspiracy to distribute crack cocaine, intentional killing while engaged in drug trafficking, and use of a firearm during a drug offense relating in death. These defendants allegedly made statements to several witnesses incriminating both themselves and their co-defendants, and their joint trial is set for November 1, 2010.

The government moved to introduce these statements at trial, and, inter alia, Wigenton moved to suppress these statements, claiming that their admission would violate the Bruton doctrine (because apparently the defendants do not plan to testify at trial). If his case were being heard in most jurisdictions, Wigneton's motion likely would have been unsuccessful. The court noted that

the Government argues that Bruton, like the Confrontation Clause, is limited by Crawford to testimonial statements. The Government is in good company. See United States v. Dale, No. 08-3172, 2010 WL 2977410, at *9 (8th Cir. July 30, 2010) (defendant's statements to prisoner were not testimonial and therefore did not violate co-defendant's Confrontation Clause rights); United States v. Castro-Davis, 612 F.3d 53, 65 (1st Cir.2010) (finding defendant's recorded telephone statements to his mother non-testimonial); United States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir.2010) (“[T]he Bruton rule, like the Confrontation Clause on which it is premised, does not apply to nontestimonial hearsay statements.”); United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009) (same); United States v. Pike, 292 F. App'x 108, 112 (2d Cir.2008) (“[B]ecause the statement was not testimonial, its admission does not violate either Crawford or Bruton.”). If correct, this argument would bar the statements at issue in this case, because, having allegedly been made by Defendants to fellow prisoners, they are not testimonial. See Davis v. Washington, 547 U.S. 813, 825 (2006) (statements from one prisoner to another are “clearly” not testimonial).

Moreover, I have found several other opinions reaching the conclusion that, after Crawford, the Bruton doctrine covers only testimonial hearsay.

The United States District Court for the Eastern District of Virginia, however, rejected this argument, finding that while the Court in Crawford held that the Confrontation Clause covers testimonial hearsay, it did not hold that the Clause only covers testimonial hearsay. See Crawford, 541 U.S. at 60-61 ("Members of this Court and academics have suggested....two proposals: First, that we apply the Confrontation Clause only to testimonial statements....Second, that we impose an absolute bar to statements that are testimonial....In [White v. Illinois, 502 U.S. 346, 352-53 (1992)], we considered the first proposal and rejected it. Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether it survives our decision today...."). The opinion then provided some interesting reasons for why the Bruton doctrine should continue to apply to nontestimonial hearsay, and I will let readers review that opinion for those reasons.

The reason I'm not going to address the court's conclusion in this post, though, is that I don't even see how a case such as Williams triggers a Crawford analysis. This is because, as noted above, Bruton did not cover a case that literally triggered the Confrontation Clause. In Bruton, the Court noted that the codefendant's confession "was clearly inadmissible" against the defendant, just as Anderson's confession would be clearly inadmissible against Wigenton. Therefore because Carl's hearsay statement would not be admitted against Dan (and Anderson's hearsay statement would not be admitted against Wigenton), there is not a real Confrontation Clause issue, and Crawford does not apply.

Instead, as noted, the point of Bruton was that jurors would improperly use the codefendant's confession as evidence of the defendant's guilt even though the codefendant's confession was not being admitted against the defendant. Thus, the issue of whether the codefendant's confession is "testimonial" should be irrelevant unless jurors are less likely to use nontestimonial confessions as evidence of the defendant's guilt. And I don't think that this is the case. If Carl tells a cop, "Dan and I robbed the bank," the statement is almost certainly "testimonial," and, as noted, if Carl tells his friend the same, the statement is almost certainly "nontestimonial." I think that most would agree, though, that a juror hearing the latter confession is just as a juror hearing the former confession to use the confession as evidence of Dan's guilt. And that's why I think (a) that Crawford didn't alter the Bruton doctrine, and (b) that the Bruton doctrine covers nontestimonial hearsay. 

-CM

Your Friends & Neighbors: Court Of Appeals Of Michigan Finds Statements Of Abuse To Neighbors Are Not Testimonial

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." So, does is a statement by an alleged victim to her neighbor about an act of abuse committed against her "testimonial" and possibly violative of the Confrontation Clause? According to the recent opinion of the Court of Appeals of Michigan in People v. Stenberg, 2010 WL 3984639 (Mich.App. 2010), the answer is "no."

In Stenberg, Edward Stenberg was convicted of  first-degree murder, being a felon in possession of a firearm, and two counts of possession of a firearm during the commission of a felony. Stenberg allegedly murdered his wife, and, at trial, the prosecution called a neighbor to testify that the wife previously told him that Stenberg had assaulted her with a blackjack and tried to suffocate her with a pillow.

Upon Stenberg's ensuing appeal, the Court of Appeals of Michigan found that this testimony was properly admitted under Michigan's domestic violence exception to the propensity character evidence proscription and that Stenberg failed to preserve the issue of whether his wife's statement qualified as an excited utterance for appellate review. That left the issue of whether the introduction of the wife's statement ran afoul of the Confrontation Clause.

The Court of Appeals of Michigan found that it did not because the statement was not testimonial. According to the court,

The Crawford Court "le[ft] for another day," a comprehensive definition of "testimonial."... Id. But it did mention that testimonial statements would include, at a minimum, police interrogations and prior testimony from a preliminary hearing, a grand jury, or a trial....The Court explained that “"[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."...The Court later, while addressing only "police interrogations," determined that not all statements during police interrogations were testimonial. Davis v. Washington, 547 U.S. 813, 822....Statements made during police interrogations are testimonial when made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial....

Here, the statements at issue are the ones [the wife] gave to her neighbor, describing the assault. First, it is obvious that the circumstances surrounding this statement vastly differ from those mentioned in Crawford. The statements do not involve police interrogation or testimony from any prior proceeding. Second, even if one applies the police interrogation test described in Davis, it is apparent that an objective witness would not reasonably believe that her statements to a neighbor would be available for use at a later trial. In fact, the United States Supreme Court stated, in dicta, that statements to "friends and neighbors about abuse and intimidation" are nontestimonial and do not implicate the Confrontation Clause. Giles v. California, --- U.S. ----; 128 S Ct 2678, 2692-2693; 171 L.Ed.2d 488 (2008). Because Laura's statements to her neighbor were permissible under [the domestic violence exception], qualified as an excited utterance exception to hearsay, and were not testimonial, the trial court did not err when it admitted the statements, and defendant's claim fails.

-CM

Land Of Confusion: Massachusetts Court's Ruling On Prior Inconsistent Statement Reveals Problems With State's Lack Of Rules Of Evidence

With the Supreme Court of Illinois recently approving and promulgating Illinois Rules of Evidence, Massachusetts remains one of the few states without codified rules of evidence. In June 2006, the Supreme Judicial Court of Massachusetts did create the Advisory Committee on Massachusetts Evidence Law to prepare a Guide to the Massachusetts law of evidence. And while the Committee did create such a Guide listing Proposed Massachusetts Rules of Evidence, those Proposed Rules were never adopted, and they have been removed from the public eye at the request of the Committee. The result? Cases like Commonwealth v. Belmer, 1210 WL 2, in which the Appeals Court of Massachusetts revealed the tortured history of the rule regarding prior inconsistent statements in Massachusetts.

In Belmer, Dequan Belmer was convicted of assault and battery based upon acts that he allegedly committed against the fifteen year-old victim. The day after the alleged assault and battery,

the victim's mother, Edith Allen-Belmer, went to court and obtained an abuse prevention order against her husband, the defendant...In her affidavit in support of the restraining order, she swore under penalty of perjury that she and the defendant had been arguing the previous night about his infidelity. The victim had intervened and warned the defendant not to touch his mother. The defendant had responded by instigating a fight with the victim, which ended when the defendant "punch[ed] [the victim] in the face," knocking him to the floor. The blow left the victim bleeding and "dazed for about 2 or 3 second[s]." At a hearing..., Allen-Belmer repeated these claims under oath before a judge.

At trial, however,

Allen-Belmer denied that the defendant punched the victim. Instead, she claimed that her argument with the defendant was purely verbal, and that the defendant was "talk[ing] with his hands" during the argument. Eventually, the victim came out of his room and approached his parents. At that moment, the defendant accidentally struck the victim's face with his elbow. Afterwards, the defendant helped the victim up off the floor and took him to the bathroom to wash his wound.

At this point, over Belmer's objection, the prosecution introduced evidence of Allen-Belmar's prior inconsistent statements in the affidavit and at the hearing.

After he was convicted, Belmar appealed, claiming, inter  alia, that these prior inconsistent statements were improperly admitted. In addressing this issue, the Appeals Court of Massachusetts noted that the Supreme Judicial Court of Massachusetts in Commonwealth v. Daye, 469 N.E.2d 483 (Mass. 1984), adopted Proposed Massachusetts Rule of Evidence 801(d)(1)(A), which provided that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

In Daye, however, the court only adopted the Proposed Rule as it applied to prior grand jury testimony. Subsequently, however, courts adopted the Proposed Rule as it applied to probable cause hearing testimony and testimony from prior trials. In Belmer, the court adopted the Proposed Rule as it applied to Allen-Belmer's prior statements because they satisfied the two part test laid out by the Supreme Judicial Court of Massachusetts in Daye: (1) the declarant was subject to cross-examination, and (2) the prior statement was in the declarant's own words, as opposed to being simply "yes" or "no" answers to leading questions.

The court also noted that in Daye, the court also held that when a prior inconsistent statement "concerns an essential element of the crime, the Commonwealth must offer at least some corroborative evidence..." The court, however, noted that the Supreme Judicial Court of Massachusetts later concluded that this requirement affects only the sufficiency of the evidence, not the admissibility of the statement.

This is exactly the type of confusion and piecemeal approach that you get when a jurisdiction does not have codified rules of evidence, and I hope that Massachusetts changes its prior decision and eventually adopts its Proposed Rules of Evidence in some form. We'll see.

-CM