November 6, 2010
The Weight Of The Evidence: Court Of Appeals Of Texas Deemes Pretrial Hearing Testimony Admissible Under Rule 804(b)(1)
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. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.
So, does a criminal defendant have a motive to develop the testimony of a witness for the prosecution at a pretrial hearing determining the admissibility of hearsay statements that is similar to his motive to develop the testimony of the witness at trial? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Sanchez v. State, 2010 WL 4336169 (Tex.App.-San Antonio 2010), the answer is "yes." I disagree.
In Sanchez, Ivan William Sanchez was convicted of three counts of indecency with a child by sexual contact and one count of aggravated sexual assault of a child. Before Sanchez's trial, there was a pretrial hearing during which Angelica Newsome testified about a statement the complainant made to her regarding alleged acts of abuse committed against her by Sanchez. The purpose of this testimony was to determine whether the complainant's statement qualified for admission under Texas Code of Criminal Procedure article 38.072 Section 2(a)(3), which provides an an exception to the rule against hearsay for "outcry testimony" if, among other conditions, the statement describing the alleged offense was "made to the first person, 18 years of age or older, other than the defendant, to whom the child...made a statement about the offense or extraneous crime, wrong, or act." The trial court deemed the statement admissible. At trial, however, Newsome was unavailable, prompting the State to read into evidence the testimony Newsome gave at the pretrial hearing.
After he was convicted, Sanchez appealed, claiming that the admission of this testimony was improper under Texas Rule of Evidence 804(b)(1) and violated his rights under the Confrontation Clause because his motive to develop the testimony of Newsome at the pretrial hearing was not the same as his motive would have been at trial.
The Court of Appeals of Texas, San Antonio, disagreed, concluding that
In Texas, there is no bright-line rule that states pretrial hearings do not provide an adequate opportunity to cross-examine sufficient to satisfy confrontation clause requirements. Rule 804(b)(1) does not require that in order for prior testimony to be admitted as an exception to the hearsay rule the opponent of the evidence have had an identical motive to challenge the testimony at the prior proceeding as he now has at trial....Instead, the rule requires only that he have had a similar motive....Neither the form of the proceeding, the theory of the case, nor the nature of the relief sought need be the same....Only the particular issue about which the testimony was first offered must be substantially similar to the issue offered in the current action....
On appeal, appellant contends he was not given the opportunity at trial to "flesh out" any potential bias Newsome may have had, to question Newsome's ability to adequately recall events, or to expand on Newsome's admission at the pretrial hearing that she had "seizures and certain things [were] kind of foggy." The purpose of a hearing conducted pursuant to article 38.072 is to determine whether the outcry "statement is reliable based on the time, content, and circumstances of the statement."...Appellant contends the purpose of the pretrial hearing is different from cross-examination for purposes of the guilt/innocence stage of trial. Therefore, appellant concludes, he had no motive at the pretrial hearing to question Newsome about her bias, her recall, or her seizures.
One indicia of whether the child's outcry is reliable is whether evidence exists of prior prompting or manipulation by adults....Therefore, at the pretrial hearing, appellant had a basis for exploring whether Newsome held any bias against him that would have caused her to prompt or manipulate the complainant. Also, because the outcry statement must be one that in some discernible manner describes the alleged offense, appellant had a basis for exploring Newsome's ability to recall the time, content, and circumstances of the outcry. In fact, at the pretrial hearing, appellant's counsel conducted an extensive cross-examination of Newsome about the timing of the outcry and the specific words the complainant used in describing the offense, and Newsome's pretrial testimony was read at trial in its entirety, including counsel's cross-examination. We conclude appellant's motive to cross-examine Newsome at the pretrial hearing was similar to his stated motive for cross-examining her at trial. Therefore, appellant was not denied his constitutional right to confront a witness at trial.
I disagree. In determining whether a statement is admissible under an exception to the rule against hearsay, a trial court merely has to determine whether the proponent of the evidence has established all of the elements of the hearsay exception by a preponderance of the evidence. This isn't a terribly difficult standard to satisfy. As long as a witness is willing to take the stand and testify that all of the elements were satisfied, the court will likely deem the statement admissible, with any questions about the witness' issues with perception, memory, credibility, contradictions, etc. going to the weight of the evidence rather than its admissibility. As an example, in Cagle v. State, 976 S.W.2d 879, 882 (Tex.App.-Tyler 1998), the Court of Appeals of Texas, Tyler, found that an inconsistency between the testimony of the victim and the testimony of her mother regarding an "outcry statement" under Texas Code of Criminal Procedure article 38.072 Section 2(a)(3) went to the weight of the evidence and not the admissibility of the statement.
In other words, it seems clear to me that Sanchez knew that Newsome's testimony would be deemed admissible at the pretrial hearing. And sure, his attorney did engage in a somewhat extensive cross-examination of Newsome, but it seems to me that the purpose of this interrogation was to set things up for an even more extensive interrogation of Newsome at trial, the purpose of which would have been to call into question her credibility before the jury and not simply to call into question whether the elements of a hearsay exception had been established by a preponderance of the evidence.
November 5, 2010
Not Like The Other: Court Of Appeals Of North Carolina Stretches To Find Prior Rape Evidence Admissible Under Rule 404(b)
Federal Rule of Evidence 413(a) provides that
In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
So, can the prosecution in a rape case present evidence of prior similar rapes to prove that the defendant has a common plan or scheme for committing rape? According to the recent opinion of the Court of Appeals of North Carolina in State v. Davis, 2010 WL 4292081 (N.C.App. 2010), the answer is "yes," at least based upon the case before the court.
In Davis, Jon Raymond Davis, Jr. was indicted on one count of second-degree rape and one count of second-degree forcible sexual offense. At trial,
The prosecuting witness and victim in this case, Kendra, testified that on 24 June 2007, she received a phone call from Defendant inviting her to a cookout in Caldwell County. Kendra had met Defendant once before and thought at the time that he "seemed like a very nice man." Kendra accepted Defendant's invitation and gave Defendant directions to her parents' home where she was living. Defendant picked her up and took her back to his home. Kendra was 5′1″ tall and weighed about 95 pounds.
When they arrived at Defendant's home, another person named Travis was there. Kendra sat down in the living room and talked to Travis but Defendant left the room. Kendra opened a beer and consumed "maybe...like the top of it." After about ten to fifteen minutes, Kendra began to wonder what was going on because there "wasn't [sic] many people there for what was supposed to be the cookout. There wasn't any food or you know...." Kendra got up and went to look for Defendant. Kendra walked into a back bedroom. The door was halfway shut and when she walked in, Defendant stepped out from behind the door and shut the door behind her. It was dark outside but dimly lit inside, and she saw that he was naked from the waist down and had a condom on.
When Kendra attempted to leave the room, Defendant stepped in front of the door and backed up against it. Defendant said, "'Well, how aggressively do you want to fight[?]'" Defendant pushed Kendra back into the room toward a bed. Defendant instructed Kendra to remove her shorts, and when she refused, he grabbed her shirt and told her, "'Well, there is an easy way or we're going to do this the hard way, but it's going to happen.'" Defendant pushed her back onto the bed. Kendra felt that there was no way to get away from Defendant so she took her shorts off. Defendant got on top of her, forced her legs apart, and put his penis into her vagina. While he raped her, he held her wrist to her side and held her down, grabbed her face and forced her to look at him, and said several times, "You know you want this." He then held Kendra by the hair and forced her to perform oral sex on him for ten to fifteen minutes.
When he finished sexually assaulting Kendra, Defendant forced her to snort some white powder, threatening to give her "some more of it[,]" meaning sexual assault, if she refused. Afterward, Defendant drove Kendra back to her parents' house. On the way to her home, Defendant threatened that if she told anybody, he would hurt her daughter and "would say that [the sex] was over drugs." Defendant let Kendra use his cell phone on the way to let her family know she was on her way home.
The State offered the testimony of Laura under Rule 404(b). After conducting a voir dire of Laura, the trial court determined that Laura's testimony was admissible to show the existence of a common plan or scheme on the part of Defendant and, over Defendant's objection, allowed Laura to testify before the jury. Laura testified that in 1979 Defendant raped her. She testified that after having run into Defendant at a place called P.D. Scotts, Defendant twice stopped by her home, once when she was at her mailbox, and another time to ask directions. On 6 November 1979, he again stopped by her house late at night. Laura and her roommate invited Defendant in. After watching television for about 30 minutes, Defendant invited Laura to go with him to his friend's house. Laura accepted Defendant's invitation, and Defendant drove her to what ended up being his cousin's house. She and Defendant both had some mixed drinks while there.
When Laura first met Defendant, she was excited and had a positive perception of him. However, as the evening progressed, she "didn't care for the group [she] was with or how [Defendant] started treating or talking to [her]." When she told Defendant that she wanted to go home, he told her to walk. Laura began to walk home, but after she had walked about a half mile, Defendant pulled up beside her in his car. He apologized to her and told her that he would take her home. Laura got into his car, and Defendant began driving toward her home. When Defendant turned right at a place where he should have gone straight, Laura reiterated that she wanted to go home. Defendant told her that he was going to take her to one more place and then would take her home. Defendant took her to the end of a dead-end road at the Caldwell County landfill.
Defendant parked the car and began kissing Laura. When she moved to get out the passenger side door, he grabbed the door and locked it. Defendant pinned her down and was on top of her, having undone both her jacket and bra. At the time, Laura weighed "105, 115 [pounds] at the most." Defendant pinned one of her arms to her side while she attempted to start the car with the other hand. Defendant took the keys out of the ignition and threw them in the backseat. While Laura struggled to get to the other door, Defendant took off one leg of her jeans and one leg of her underwear. He then inserted his penis into her vagina. After he finished assaulting her, Defendant got the keys from the backseat and drove her home. When they arrived at her home, Laura told him not to ever come around her again. "[H]e just looks at me like I am insane. Like he hasn't done a thing in the world wrong."
After Davis was convicted, he appealed, claiming that Laura's testimony was insufficient to prove that he had a common plan or scheme for committing rape. The Court of Appeals of North Carolina disagreed, finding that
the challenged testimony tends to show that Defendant displayed similar behavior here in comparison to his actions in the prior rape of Laura. Specifically, in each situation, Defendant approached his victim and presented himself as a pleasant, harmless individual. Defendant knew both women socially, but did not have a relationship with them. Defendant invited each woman to accompany him. In each situation, Defendant was consuming alcohol and the victims each consumed some alcohol. On what was essentially the first date in each instance, Defendant secluded himself with the victim, either in a car or in a room, and blocked the door when the victim attempted to leave. In each case, the victim was petite. Defendant held the victim's wrist, pinned her body under him, got on top of her, and penetrated each one with his penis. After completing each assault, Defendant took the victim home. Both assaults took place at night in Caldwell County.
Moreover, the court rejected Davis' argument that the similarities between the 1979 assault and the present assault were simply "characteristics inherent to most crimes of that type," finding that "[t]he similarities between the crime charged and the prior acts admitted under Rule 404(b) need not 'rise to the level of the unique or bizarre' in order to be admissible." The court also found no problem with the fact that the prior crime was committed in 1979, concluding that "although there was a 28-year gap between the 1979 offense and the present offense, Defendant spent approximately 22 of those 28 years in prison, leaving only six years between the two crimes for purposes of the temporal requirement."
It seems to me that the court was really stretching in reaching these conclusions. One victim was 95 pounds and the other was 105-115 pounds, so that makes both victims "petite," and creates a similarity? One rape was in a car and the other was in a room, but Davis isolated both, so that creates a similarity? Davis forced one victim to use drugs and threatened her in the event that she told, and acted like he did nothing wrong with the other victim, but he took both victims home, so that creates a similarity? Sure, there were some broad similarities between the two crimes, but it seems to me that the dissimilarities far outweighed any similarities and that the court should have deemed the evidence inadmissible under North Carolina Rule of Evidence 404(b).
November 4, 2010
It's History: DDC Deems "Gangland" TV Episode From History Channel Inadmissible In Murder Prosecution On Rule 403 Grounds
A defendant is on trial for murder. That murder is the subject of an episode of the television show "Gangland" on the History Channel. The show intermingles photographs of the victim with footage of professional actors engaged in a purported reenactment of his death. The prosecution moves to introduce the videotape, and the defendant moves to exclude it on three grounds: (1) the videotaped reenactment is unfairly prejudicial and confusing and thus inadmissible under Federal Rule of Evidence 403; (2) the videotape consists of inadmissible hearsay offered to prove the truth of the matter asserted under Federal Rule of Evidence 801(c); and (3) admitting the videotape would deprive him of his rights under the Confrontation Clause because the actors in the videotape are in effect "witnesses" whom he will not be able to confront. How should the court rule? According to the recent opinion of the United States District Court for the District of Columbia in United States v. Williams, 2010 WL 4071388 (D.D.C. 2010), the defendant's first argument has merit, meaning that it didn't have to address the other two arguments. I agree but would also add that the other two arguments appear meritorious as well.
In Williams, the facts were as stated above. And the United States District Court for the District of Columbia accepted the defendant's argument that the videotape was inadmissible under Federal Rule of Evidence 403, which provides that
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
According to the court,
the videotape in this case is not an actual depiction of the alleged crime but rather a re-creation of the events as they supposedly occurred. An unknown producer created the reenactment for a television audience and hired actors to play the roles of victim and assailants. As the defendant notes, "[t]he producer [of the videotape] would have had every incentive to make the 'reenactment' as dramatic and sensationalistic as possible" in order to appeal to the emotions of the television audience....No one can know whether the producer did or did not act on that powerful incentive, or to what extent. Thus, the Court concludes that the prejudice to the defendant resulting from the admission of this videotape would be "unfair" because it would create a significant risk that the jury could find the defendant guilty based on the emotions stirred by the videotape, and not based on "proof specific to the offense charged."
Furthermore, the court rejected the prosecution's argument
that the videotape ha[d] some probative value because it would enable the jury to visualize certain aspects of the alleged crime. For example, the videotape assertedly would show jurors the difference in height between the defendant and the victim.
The court rejected this argument, finding that
There is no evidence...that the producers of the videotape used professional actors whose heights actually matched those of the defendant and victim; rather, the government state[d] only that there is a "relative" match in heights....Such uncertainty limits the probative value the videotape might have. The same is true with respect to the government's suggestion that the videotape will enable jurors to understand the exact movements of each of the alleged attackers. The government present[ed] no evidence that the producers who re-created the videotape had actual knowledge of these movements, or that they accurately reproduced the movements. When a party generates demonstrative evidence based on conditions that may be dissimilar to the actual conditions, the dissimilarities create uncertainty that undermines the probative value of the evidence....In this case, even if the videotape might inform jurors, the risk of inaccuracy both limits the videotape's probative value and increases the possibility of unfair prejudice.
Because the court found that the videotape was inadmissible under Federal Rule of Evidence 403, it did not need to address Williams' second and third arguments. It seems clear to me, though, that both of them had merit.
Federal Rule of Evidence 801(a) provides that
A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
And Federal Rule of Evidence 801(c) defines hearsay as
a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
It seems clear that a reenactment is a statement in that it is nonverbal conduct intended as an assertion and that the prosecution was offering it to prove the truth of the matter asserted (i.e., to prove that the reenactment showed how that murder occurred). The prosecution could have claimed that it was merely using the videotape as demonstrative evidence, but, as the court noted above, it seemed to fail the test for demonstrative evidence.
Moreover, even if the videotape met some exception to the rule against hearsay (and I don't think that it would have), I think that its admission would have violated the defendant's rights under the Confrontation Clause. This begs the question of whether the videotape was "testimonial," i.e., whether "it was made under circumstances which would lead a reasonable man to believe that his statement would be available for use at a later trial." I would guess that those involved with the making of the television show would have had this belief, meaning that the videotape's admission would have violated the Clause (assuming that there wasn't testimony by those involved with its making).
November 3, 2010
Changing Its Colors: Court Of Appeals Of Mississippi Deems Carpet Color Change Inadmissible Under Rule 407
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.
Thus, evidence of a subsequent remedial measure is inadmissible for some purposes but admissible for other purposes. It is important to keep in mind, though, that, as the rule indicates, a party can only use evidence of such a measure to prove feasibility of the measure (or ownership or control) if the other party has controverted feasibility (or ownership or control) as is made clear by the recent opinion of the Court of Appeals of Mississippi in Manning v. Gruich, 2010 WL 4188278 (Miss.App. 2010).
In Gruich, the following facts were established:
[Frank] Gruich owns Gruich Pharmacy Shoppe in Biloxi, Mississippi. Upon entering the pharmacy, patrons must step from the parking lot onto the sidewalk, which is three-and-a-half-inches high. For years, there was a green indoor/outdoor carpet that led from the parking lot to the front door of the pharmacy. The carpet was glued to the cement, and the edge of the carpet was folded over the curb.
On April 2, 2003, [Sarah] Manning went to the pharmacy to fill a prescription. Manning attempted to step onto the sidewalk, fell, and broke her left leg. Manning was rushed to the hospital. She waited there for hours before she received medical care. Then, she was transported to an out-of-state hospital for surgery. During this ordeal, Manning almost lost her leg. There is also evidence that she acquired further complications with her leg, which occurred in a subsequent surgery. Ultimately, the damage caused to Manning's leg left her physically disabled.
Manning thereafter filed a lawsuit against Gruich, alleging that her injury was caused by his negligence in maintaining his premises.
In preparation for trial, Manning took three sets of photographs of the area of her fall. The first set of photographs was taken within a few weeks of the incident and showed the carpet as it existed at the time of her fall. The photographs also showed that the curb to the left of the carpet was painted blue, indicating a handicap-accessible area; and the curb to the right of the carpet was painted yellow. The second set of photographs was taken approximately three months after the incident and showed changes that had been made to the carpet. At that time, the lip of the carpet had been removed, and the part of the curb that was once covered by the carpet was painted yellow. The third set of photographs was taken after Hurricane Katrina. Because of the hurricane, Gruich completely removed the carpet, which exposed the concrete that once lay underneath the carpet.
The court deemed the first and third set of photographs admissible, and Manning claimed that the second set of photographs was also admissible, inter alia, to show the feasibility of the precautionary measure of painting the carpet to make the area less dangerous. The trial court, however, deemed the photographs inadmissible, and the jury eventually returned a verdict for Gruich.
Manning thereafter appealed, claiming, inter alia, that the exclusion of these photographs made it so that she was not allowed to present her theory of the case concerning the effectiveness of a color transition. The Court of Appeals of Mississippi disagreed, finding that
Manning's counsel was allowed to question Gruich about the painted curb during cross-examination.
Gruich testified that the left side of the curb was painted blue to indicate handicap accessibility. He testified that there was no specific reason why the right side of the curb was painted yellow; it had been painted yellow for years. Manning's counsel asked Gruich whether he thought that painting the curb yellow would make it easier for a patron to gauge the height of the step. Gruich responded: "Not necessarily, no.” Manning's counsel asked Gruich whether he agreed that removing the carpet would make it easier to gauge the height of the curb, and Gruich disagreed. Gruich did agree that if the carpet had been bulging, it would be a dangerous situation. In addition, the first set of photographs, which were admitted into evidence, clearly showed that the curb to the left of the carpet was blue, and the curb to the right of the carpet was yellow.
Gruich disagreed that either painting the curb or removing the carpet would make it easier for patrons to gauge the height of the step. However, this does not equate to a dispute of the feasibility of precautionary measures. Gruich simply did not believe that these measures would help; he did not dispute the fact that they could be done. Because Gruich did not dispute whether precautionary measures could be taken and Manning was allowed to question Gruich about her theory of the case, we find that this exception to Rule 407 does not apply. This argument is without merit.
November 2, 2010
I Voted: Court Of Appeals Of Arkansas Finds Vote By Legislative Body Doesn't Constitute Settlement Negotiation Under Rule 408
Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Basically, Rule 408 deems inadmissible statements made during settlement negotiations. So, does the Rule apply to the vote of a legislative body to resolve a dispute? According to the recent opinion of the Court of Appeals of Arkansas in Weaver v. Collins, 2010 WL 4231468 (Ark.App. 2010), the answer is "no."
In Collins, Roosevelt Collins
filed a complaint against the City [of Helena-West Helena]...In his complaint, Collins claimed that he worked for the City of West Helena for more than twenty years and was employed as head of the street department for the last seven. When the West Helena City Council approved a budget for fiscal year 2005, Collins claimed that he was constructively fired from his position....Collins argued that then-mayor Johnny Weaver had the exclusive power to appoint him to the head of the street department, and the city council did not have the authority to remove him. Therefore, Collins sought a writ of mandamus requiring the mayor to reinstate him to his former position and to order the city council not to interfere with his reinstatement. Collins further sought "back pay for any time lost from his legitimate position." legitimate position.”
At trial, Collins called former alderman Calvin Holden, who
testified that he was a city-council member in West Helena in 2005, and that during the political fight the council was having with the mayor, the council voted to hire a new head of the street department. He said the council voted to hire Bobby Jones to replace Collins and to increase Jones's salary from the $21,000 Collins was receiving to $35,000. He said that when the city attorney explained to them that they had "made a violation" in terminating Collins from his position, they voted to compensate Collins for being fired.
The City objected that this testimony violated Arkansas Rule of Evidence 408, but the trial judge overruled the objection, and the jury eventually awarded Collins $33,000 in damages, the amount that the city council voted to award Collins.
The City thereafter appealed, but the Court of Appeals of Arkansas affirmed,
agree[ing] with Collins that Rule 408 ha[d] no bearing in this matter. A vote of a legislative body to resolve a dispute, which is then approved by the signature of the chief executive of that body, is not a negotiation. It is a resolution of a debt. The testimony and evidence before the trial court was that the city council met and voted to pay Collins $33,000.
I agree with the court. To me, the key element of a settlement negotiation is a meeting between the two sides. That was not the case in Collins because Collins was not involved in the vote by the city council.
November 1, 2010
Legally Blind, Take 2: Court Of Appeals Of Maryland Agrees With Me, Reverses Murder Conviction In Legally Blind Witness Case
Back in January 2009, I posted an entry about the retrial of Tony Williams for murder. Williams was convicted after a first trial based in large part on the testimony of eyewitness for the prosecution Brenda O'Carroll, the victim's neighbor. That conviction, however, was reversed after it was determined that the prosecution failed to disclose material impeachment evidence in violation of Brady v. Maryland, such as evidence that O'Carroll was legally blind. O'Carroll died before Williams' retrial, and, at that retrial, the prosecution successfully introduced O'Carroll's testimony from the first trial under Maryland Rule of Evidence 5-804(b)(1), which provides an exception to the rule against hearsay for
Testimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
On appeal, Williams claimed that the admission of this former testimony was erroneous because the prosecution's failure to disclose that O'Carroll was legally blind meant that he was not given a full and fair opportunity to probe and expose the infirmities of O'Carroll's testimony as is required under Rule 5-804(b)(1). The Court of Special Appeals of Maryland disagreed, concluding that
another witness testified that it was "pitch dark" at the time of the murder, and O'Connell testified, inter alia, that she was taking "medicine," receiving radiation, and had had eleven operations. According to the court, this gave defense counsel a motive to question O'Carroll about her eyesight at the first trial, which he did not do.
In disagreeing with this conclusion, I posted:
So, I ask readers: Do you think that Williams had a full and fair opportunity to challenge O'Carroll's testimony based upon her eyesight at the first trial? Or did the prosecution's failure to disclose evidence of her legal blindness render that opportunity something less than full and fair? I would argue the latter, and, I think that the Court of Appeals of Maryland might agree with me upon appeal.
In its recent opinion in Williams v. State, 2010 WL 4231296 (Md. 2010), the Court of Appeals of Maryland did just that.
In finding that O'Carroll's testimony from the first trial was improperly admitted at the second trial because Williams was not afforded a full and fair opportunity to develop her testimony, the Court of Appeals of Maryland found that
although petitioner may have had an opportunity to cross-examine Ms. O'Carroll at the first trial, it was not an adequate one, because he had not been informed that Ms. O'Carroll was "legally blind," or at least considered herself to be so. As such, we cannot say that her testimony with regard to what she said she saw was reliable. Although petitioner had the incentive to question the witness' perception, without knowing her statement to the detective, he would have had no reason to believe that she was "legally blind."
Then, in finding that the admission of this testimony required reversal and a new trial, the court concluded that
Petitioner was prejudiced significantly by the State's nondisclosure of Ms. O'Carroll's statements about her vision, and he was prejudiced equally in his second trial when her recorded testimony was played for the jury. Ms. O'Carroll was the sole eyewitness identifying petitioner as Ms. Drake's shooter. She testified at petitioner's first trial to seeing petitioner chase Ms. Drake into her apartment building, fire a gun at her, and drive off in his car. Petitioner was deprived of the opportunity to cross-examine the only eyewitness identifying him about the quality of her vision, inquiring into what she meant when she described herself as "legally blind."
October 31, 2010
EvidenceProf Blog's 4th Annual Halloween Movie Pick: Robert Siodmak's "The Spiral Staircase"
It's Halloween again, which means that it's time for EvidenceProf's Blog's fourth annual Halloween movie pick (after "The Gift," "Homecoming," and "Henry: Portrait of a Serial Killer"). For this year's pick, I'm once again digging into the archives from my days reviewing DVDs and pulling out a review. This one is of Robert Siodmak's "The Spiral Staircase." Siodmak is probably best known for 1946's noir classic "The Killers," which earned him an Oscar nomination for Best Direction, but 1945's "The Spiral Staircase" is also worth a watch on a dark and stormy night.
Robert Siodmak (The Killers) fled Germany as the Third Reich rose to power so it's appropriate that he directed the 1946 thriller The Spiral Staircase, a turn-of-the-century serial killer thriller about a madman murdering women based on their mental and physical infirmities to cleanse the world of imperfections. Before emigrating, though, Siodmak was involved with the German expressionist movement and you can see all of its trademarks in Staircase: oblique camera angles, distorted compositions, a roving, subjective camera, and shots drenched with shadows.
Staircase was adapted from Ethel Lina's White's (The Lady Vanishes) novel "Some Must Watch," but the film is also clearly indebted to Freudian psychoanalysis and "The Birthmark," Nathaniel Hawthorne's disturbing short story of obsession. Siodmak literally drops us into the action with an overhead shot of the titular staircase that introduces us to the claustrophobic, Victorian mansion in which the heroine and audience will principally be confined for the next 83 minutes.
He then winks at us, Scream-style, by taking us to a hotel parlor where the audience is engrossed in a hand cranked silent film while the killer muffles his latest victim's futile screams upstairs. One of the patrons is Helen, the mute servant to a wealthy family, and the rest of the film stalks her as we try to figure out who amongst a Clue-ish cast of characters is out to get this scream queen who can't scream.
Siodmak directs with a panache that elevates Mel Dinelli's (The Window) potboiler script. The pic was filmed using leftover sets from Orson Wells' The Magnificent Ambersons and Siodmak similarly shoots with wide angle lenses to create a rich depth of field in which viewers focused on a foreground conversation might miss the killer's lightning strike silhouette in the background.
Staircase feels a bit like the darker half of Welles’ flick, with Siodmak employing composer Roy Webb, cinematographer Nicholas Musuraca, and set decorator Darrell Silvera, all of whom worked on Welles’ film and earned their horror stripes on Val Lewton productions like Cat People and The Seventh Victim. What distinguishes Staircase from these Lewton scarers, though, is Siodmak's use of distortion and fisheye lenses to show us the killer's skewed perception of reality in which the mute heroine’s mouth is blotted out. At other times, the frame is filled with Psycho-esque closeups of the killer’s glowering eye accompanied by Webb’s gothic chords.
As Helen, Dorothy McGuire (Gentleman’s Agreement) pantomimes a wide range of emotions in a performance that’s almost the equal of Samantha Morton’s brilliant work in Woody Allen's Sweet and Lowdown. Ethel Barrymore (None But the Lonely Heart) matches her in an Oscar-nominated turn as the mansion's bed-ridden but cantankerous matriarch.
The black-and-white pic is presented in its original 1:33:1 ratio with Dolby Digital 2.0 mono. Besides a trailer for Secret Window, there are no special features, but the flick’s worth a look to see the foreshadowing of modern thrillers like Mute Witness and Jennifer 8 and the nascent use of modern horror techniques such as the creaking door and flittering candlelight.