November 20, 2010
Follow My Voice: Seventh Circuit Reiterates Minimal Familiarity Standard Under Rule 901(b)(5)
Federal Rule of Evidence 901(b)(5) provides that the identification of a voice, "whether heard firsthand or through mechanical or electronic transmissions or recording," may be established by opinion testimony that is "based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." So, can an officer authenticate a defendant's voice on wiretapped telephone conversations based upon the officer listening to an approximately fifteen second voice exemplar at least fifty to sixty times? According to the recent opinion of the Seventh Circuit in United States v. Cruz-Rea, 2010 WL 4628670 (7th Cir. 2010), the answer is "yes," despite the absence of any empirical evidence on the reliability of voice identifications.
In Cruz-Rea, Rosalio Cruz-Rea appealed his convictions for conspiracy to possess with the intent to distribute more than five kilograms of cocaine and possession with intent to distribute 500 grams or more of cocaine in violation. In large part, these convictions were based upon
twenty-four wiretapped telephone conversations, including a conversation in which Cruz-Rea offered to sell cocaine that was "good for the frying pan" and a conversation in which Cruz-Rea discussed his plan to ship cocaine to Indianapolis via a car hauler carrying a Ford Explorer.
Officer Marytza Toy was the only witness who actually testified that she recognized Cruz-Rea as the speaker in each of the twenty-four recorded conversations. As noted, Officer Toy's familiarity with Cruz-Rea's voice came from listening to an approximately fifteen second voice exemplar at least fifty to sixty times.
In finding that Officer Toy provided proper authentication under Federal Rule of Evidence 901(b)(5), the Seventh Circuit noted that
We have consistently interpreted this rule to require that the witness have only "minimal familiarity" with the voice....Once the court admits voice identity testimony, opposing counsel may cast doubt upon the witness' opinion through cross-examination, additional testimony, or other evidence....It is ultimately the trier of fact's responsibility to determine the accuracy and reliability of the identification testimony, and when reaching its determination, the trier of fact may consider circumstantial evidence that tends to corroborate or contradict the identification.
The court thus could not
say as a matter of law that the low bar of minimal familiarity was not met in this case. Officer Toy testified that she became familiar with Cruz-Rea's voice by listening to an approximately fifteen second voice exemplar at least fifty to sixty times. Officer Toy then identified Cruz-Rea's voice on twenty-four wiretapped telephone conversations....Two different witnesses testified to having these exact conversations with Cruz-Rea on the telephone. Although neither of the two witnesses offered any voice identification testimony in court, their corroborating testimony tends to establish the accuracy of Officer Toy's voice identification. Given the length of the voice exemplar and the number of times that Officer Toy listened to the exemplar, the district court did not abuse its discretion in determining that the government had laid sufficient foundation for Officer Toy's voice identification testimony under Rule 901(b)(5)....The accuracy and reliability of the testimony was a question for the jury to weigh, and the court properly admitted the corroborating testimony to aid the jury in this role....We stress, however, that we arrive at this conclusion without the benefit of empirical evidence on the reliability of voice identifications, and as previously cautioned by this court in Jones, we can imagine a case in which the foundation for the voice identification testimony was so flimsy as to be deemed insufficient....
So my question is: Where is the empirical evidence? There is tons of research out there about the inaccuracy of eyewitness visual identifications, but I'm not aware of any studies about the effectiveness (or ineffectiveness) of voice identifications. My inclination is to believe that such studies would show that a standard of minimal familiarity is insufficient, but I would love to see the actual results.
November 19, 2010
Speed Bump: Tenth Circuit Finds Coconspirator Admission Motion Tolled Speedy Trial Clock
Pursuant to 18 U.S.C. Section 3161(c)(1) of the Speedy Trial Act,
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate judge on a complaint, the trial shall commence within seventy days from the date of such consent.
That said, Section 3161(h)(1)(D) of the Act provides that
The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to....
(D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion....
In Mulgado-Patida, Jose Mulgado-Patida (Defendant) was convicted of conspiracy to possess and distribute methamphetamine. He later appealed, claiming, inter alia, that the district court violated the Speedy Trial Act. In rejecting this argument, the Tenth Circuit noted that "[t]he period from October 15, 2008, until trial began on March 30, 2009, [wa]s excluded because of a motion filed by codefendant Christopher Vigil. Among other things, the motion sought a James hearing to determine whether statements by alleged coconspirators that would otherwise be hearsay would be admissible under the coconspirator exception."
The court then correctly noted that
A motion that "requires a hearing" tolls the speedy-trial clock from the filing of the motion until the conclusion of the hearing....A motion to determine the applicability of the coconspirator exception is such a motion. We have said that "a district court can only admit coconspirator statements if it holds a James hearing or conditions admission on forthcoming proof of a predicate conspiracy through trial testimony or other evidence" and have expressed a "strong preference for James proceedings."...Other circuits have decided that motions for James hearings are motions "necessitating hearings," and "[a]s such, the entire time from the filing of the motion to the conclusion of the hearing is excludable, even when the hearing is deferred until trial."
Thus, according to the Tenth Circuit,
Although the district court never set Vigil's motion for hearing, it explained its intention to make James determinations during the trial itself. Accordingly, the period from the filing of Vigil's motion until the start of trial on March 30, 2009, is excluded under § 3161(h)(1)(D).
November 18, 2010
Doctor, Doctor, Give Me The News: Court Of Appeals Of Iowa Notes That Rule 803(4) Covers Exculpatory Statements
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
But does Rule 5.803(4) only apply to inculpatory statements? That was the surprising conclusion reached by an Iowa trial court and correctly reversed by the Supreme Court of Iowa in its recent opinion in State v. Hanes, 2010 WL 4539192 (Iowa 2010).
Robert Hanes was convicted...of willful injury causing serious injury....The verdict [wa]s based on an incident between Hanes and Nathanial Taylor....According to Taylor, he was walking to a cigar store to redeem bottles and cans. Taylor claims one week earlier Hanes had given him $2.25 to purchase gizzards for Hanes, and Taylor did not purchase the gizzards or return the money. Hanes asked about the money and was angry and yelling. Taylor offered Hanes his cans, but Hanes pulled out a knife and said "I'm going to kill you" and "stabbed [Taylor] in the face." Taylor then grabbed Hanes's hand holding the knife, hit Hanes in the head, and kicked Hanes until Hanes said "stop." Hanes picked up a bottle of whiskey and walked into the park.
Hanes claimed he did not know Taylor and encountered him while walking home. Hanes testified Taylor struck him with the bag of cans and bottles, and Hanes struck back. Hanes testified he was defending himself, and he had previous boxing experience.
At trial, Hanes called the nurse practitioner who treated him, leading to the following exchange:
Q. Okay. And when Mr. Hanes presented himself, your hospital-to your hospital, what was his complaints?
A. Mr. Hanes' complaint is that he had been hit-
[Prosecutor] Objection, Your Honor, to the hearsay.
[Defense] Purposes of medical treatment, Your Honor.
The Court: It's still-If it's-it's subject to that exception, but it's not admissible because it would be exculpatory.
After Hanes was convicted, claiming, inter alia, that the nurse practitioner's testimony should have been admitted under Iowa Rule of Evidence 5.803(4). The Supreme Court of Iowa found that the trial court improperly focused upon the proposed testimony being exculpatory, finding that statements made for purposes of treatment or diagnosis
are admissible, regardless of whether they are exculpatory or inculpatory, if they fit within the two-part test this court has adopted. The two-part test requires the proponent of the statement to show: (1) the declarant's motive in making the statement is consistent with the purposes of promoting treatment, and (2) the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.
The court then noted that it was likely that the nurse practitioner's testimony would have qualified for admission under Iowa Rule of Evidence 5.803(4) but that it was impossible to tell because Hanes did not make an offer of proof. That said, based upon other errors committed by the trial court, the Supreme Court of Iowa was able to reverse Hanes' conviction.
The Passing Of Margaret A. Berger
I am saddened to pass along the news that Margaret A. Berger, the Trustee Professor of Law at the Brooklyn Law School and surely one of the most influential Evidence teachers and scholars in the world, has passed away. As Edward Cheng, her former colleague at Brooklyn, noted on the Evidence Professor listserv this morning: "She was an extraordinary scholar, teacher, and person. Our field will never quite be the same without her." For more on this amazing woman and her life, you can check out Tributes to Margaret A. Berger for the Science for Judges Programs, A Letter to Honor Professor Margaret Berger, and Professor Cheng's Festschrift in Honor of Margaret A. Berger.
November 17, 2010
Article Of Interest: Allison Orr Larsen's Bargaining Inside the Black Box
The vast majority of criminal cases are resolved by compromises in the form of plea bargains. Moreover, the purpose of Federal Rule of Evidence 410, which deems inadmissible statements made during the course of plea discussions, is to encourage such compromises. So, what happens to criminal cases that go to trial and are submitted to jurors for deliberations? Well, according to the terrific new article, Bargaining Inside the Black Box (forthcoming, Georgetown Law Journal), by Allison Orr Larsen, an Assistant Professor at the William & Mary Law School, most of these cases are resolved by compromises as well, in the form of compromise verdicts (including, but not limited to, verdicts reached when jurors, to avoid deadlocks, concede some issues so that other issues will be resolved in their favor). As Professor Larsen notes, these compromise verdicts are viewed quite differently than plea bargains: They are "generally dismissed as flaws in the jury process - examples of maverick jurors dishonoring their oath to uphold the law, and reasons why the jury should not be trusted with more power, for example, to participate in sentencing decisions." But should they be? Professor Larsen's fascinating argument is "that the best way to evaluate intrajury negotiation is to juxtapose it with the negotiation that dominates our criminal justice system and has already been subject to detailed study."
And by doing so, she reaches the conclusion
that while steps can and should be taken to improve intrajury negotiation, the common critiques of compromise verdicts - that they are lawless flaws in the jury system - do not have the force they might in a world without plea bargaining....Instead of quickly dismissing intrajury negotiation as an illegitimate process,...we should recognize it as a reality and seek to improve it with lessons we have learned from plea negotiations.
In Part I, Professor Larsen sets forth the reasons why it is likely that jurors compromise. She starts with two observations: (1) that criminal jurors commonly have a menu of options before them (such as lesser included offenses); and (2) that evidence shows that judges, prosecutors, and defense attorneys are keenly aware that juries compromise. Professor Larsen then proves that this awareness is well founded by citing fascinating
-jury survey data from the National Center for State Courts which show the prevalence of jury compromises (The most interesting statistic to me was that 54% of jury verdicts were rendered with at least one juror whose personal belief diverged from the final verdict); and
-results of mock jury simulations, which deal with the cognitive bias known as framing and the effects of multiple verdict options on deliberations (The most interesting information to me was that Scottish criminal jurors have three options: "guilty," "not guilty," and "not proven").
In Part II, Professor Larsen draws the analogy between plea negotiations and intrajury negotiations:
-they are both confidential enterprises;
-they both often involve verdict-driven deliberations
-jurors have a drive to compromise that is not all that different from the drive of prosecutors and criminal defendants to compromise;
-they are both subject to cognitive biases such as framing and anchoring; and
-they are both almost certainly here to stay, so it makes more sense to look at intrajury negotiations as a reality that we need to address rather than a problem that we must (try to) avoid (as when plea bargaining was "officially" prohibited and defendants were told to deny that any promises were made to them).
In Part III, Professor Larsen considers the differences between the two types of negotiations:
-jurors lack information possessed by prosecutors and criminal defense attorneys but, inter alia, they lack the "agency costs" that burden their counterparts;
-there is (usually but not always) an information and power imbalance between prosecutors and criminal defense attorneys while jurors (usually but not always) are relative equals;
-jurors use substantive law during intrajury negotiations differently than prosecutors use substantive law in their plea bargaining choices.
Finally, in Part IV, Professor Larsen asks whether compromise verdicts are indeed compromised or whether the conventional thinking misses the mark. And her conclusion is that "when intrajury negotiation and plea negotiations are juxtaposed, many objections to the former lose their force, and - perhaps more importantly - the analogy sheds light on important potential reforms." Specifically, she notes that
-while institutional limitations inherent in the jury system make good negotiations difficult, those limitations aren't quite as severe as we might think and no more severe than the limitations on the plea bargaining process (and the former limitations can be somewhat alleviated by, inter alia, informing juorors of some of the sentence implications that arise from the different offenses on their verdict forms);
-while compromise verdicts dilute the reasonable doubt standard, so do plea bargains (and the former dilution can be diminished in part by more forcefully instructing jurors that they don't need to reach a verdict);
-compromise verdicts are not jury nullification and at worst are "nullification light," an important backstop to protect defendants against the established "reach a plea bargain or face the trial penalty" system;
-compromise verdicts are no more an abandonment of the quest for truth than plea bargains.
Professor Larsen's article is both incredibly well written and incredibly persuasive and I highly recommend it to readers. I asked her what led her to write the article, and she responded:
I have always been fascinated with juries. And after (believe it or not) serving on a jury myself, my fascination with the subject peaked. I grew particularly interested in the negotiating dynamic that almost inevitably follows any time you lock 12 very different people in a room and tell them they can’t leave until reaching a unanimous verdict. It seemed to me that when multiple verdict options are present (as is generally the case with lesser included offenses), a compromise verdict – a deal among jurors in order to achieve unanimity on some mix of acquittals and convictions – is almost unavoidable.
After doing some research into the empirical jury literature, I quickly discovered that compromise jury verdicts are quite common and well documented. I was struck by how similar intrajury negotiation is to plea negotiation – the actors involved do not all view the case the same way, but they have incentives to reach a compromise, and they bargain with each other over the right outcome until ultimately making a deal. Surely there are significant differences between the two negotiations – and my paper discusses the implications that flow from these differences. But at the end of the day I was surprised that compromise verdicts are almost universally thought to be flaws in the jury system. This struck me as odd, considering so many criminal verdicts are the product of negotiation these days. My paper offers a new take on compromise verdicts through an analogy to plea bargaining. Instead of dismissing intrajury negotiation as illegitimate, I argue that we should accept it as a reality and from there seek to improve it with lessons drawn from plea negotiations.
November 16, 2010
Shield And Sword: Court Of Appeals Of Iowa Finds Prosecutor Improperly Used Rule 607 In Murder Appeal
The credibility of a witness may be attacked by any party, including the party calling the witness.
It is well established, however, that the State can only use this Rule as a shield and not as a sword, i.e., that the State is not entitled to place a witness on the stand who is expected to give unfavorable testimony and then, in the guise of impeachment, offer evidence which is otherwise inadmissible. And, as the recent opinion of the Court of Appeals of Iowa in State v. Bush, 2010 WL 4484401 (Iowa App. 2010), makes clear, if the State uses Rule 5.607 as a sword to get the defendant's confession(s) before the jury, an appellate court is likely to reverse.In Bush, Jacovan Bush was convicted of first-degree murder in connection with the shooting death of Thomas Horvath. After the shooting, Richard Beets and Reggie and Ricky Beard each made statements to the police in which they claimed, inter alia, that Bush admitted that he shot Horvath. Each of these men, however, recanted their statements before trial.
With their recantations in hand, Bush's attorney filed a motion in limine seeking to exclude the three men as State witnesses. He argued:
It is believed the State will call these witnesses in an effort to put inadmissible hearsay (their prior statements) in front of the jury under the guise of impeachment.
The district court denied the motion, reasoning that the State would not call these witnesses "for the sole purpose of impeaching the witness with hearsay that is favorable to the State." The court stated these witnesses would also presumably "set the stage for the shooting" and describe "incidents following the shooting."
The case then proceeded to trial, and the State basically called all three men for the sole purpose of impeaching them with evidence of their prior statements to the police. At least, that what the Court of Appeals of Texas, Houston, found in reversing Bush's conviction, finding "[o]n the face of the record,...the elicitation of details surrounding the crime was nothing more than a subterfuge for the real purpose of introducing the recanted statements." Furthermore, the court easily found that this error was not harmless based upon the obviously damaging nature of each of these witness' statements.
November 15, 2010
Forgive Me Father: Court Of Appeals Of Texas Finds Child Sexual Abuse Talk With Priest Not Covered By Privilege
Texas Rule of Evidence 505(b) provides that
A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser.
So, let's say that a Catholic priest calls a father based upon allegations that the father was sexually abusing his daughter, a member of his parish. Are the father's statements to the priest covered by this clergyperson-penitent privilege. According to the recent opinion of the Court of Appeals of Texas, Houston, in Gutierrez v. State, 2010 WL 4484350 (Tex.App.-Houston [1 Dist.] 2010), the answer is "no," at least if the priest makes the purpose of the conversation clear to the father.
In Gutierrez, R.G. reported alleged sexual abuse by her father, Rogelio Gutierrez, to Father Michael Minifie, a Catholic priest at her parish.
In response, Father Minifie told R.G. that he had a duty to contact the police. He drove R.G. to a Houston Police Department station, where Officer Flucas interviewed her about the abuse. The following day, R.G. told Gutierrez that she had revealed the abuse to Father Minifie. Two days after her outcry to the priest, R.G. also told her mother about the abuse. That day, Gutierrez asked R.G. for forgiveness, claiming he was a changed man and he was good with god. Similarly, when R.G.'s mother confronted Gutierrez, he simply asked her for forgiveness.
In the next days following R.G.'s outcry, Father Minifie became concerned because the police had not yet arrested Gutierrez, and he thought Gutierrez might come on church property, where children were present. As a result, he contacted the legal department of the Archdiocese of Galveston and Houston. Based on their advice, he called Gutierrez. His purpose was to put Gutierrez on notice that he, the parish and the archdiocese knew that someone had accused him of rape and sexual assault. Further, he testified that the purpose of the call was not to provide spiritual advice, and he was not calling in the capacity of a spiritual advisor. He did not mention R.G. by name and spoke of the allegations in only general terms.
In response, Gutierrez neither confirmed nor denied the allegations, but told Father Minifie that he was getting help and had gone to confession with another priest. He said he realized what he did, and he was trying to get his life back on track. He asked Father Minifie twice if he could meet with him, but Father Minifie declined because he said it would be a conflict of interest. Gutierrez responded that he understood why he could not meet with him. Further, he stated that he was reading the Bible and that we needed to reach down and let the Lord take care of this situation. He said, "It hurts, my daughter hurts." Lastly, he asked Father Minifie what was going to happen, and Father Minifie responded that he did not know.
This testimony was instrumental to the prosecution in procuring Gutierrez's conviction for sexual assault of a child and aggravated sexual assault of a child, and, after he was convicted, claiming, inter alia, that it was given in violation of Texas Rule of Evidence 505(b). The Court of Appeals of Texas, Houston, disagreed, finding that
Father Minifie initiated the phone conversation with Gutierrez to put him on notice that he, the parish, and the archdiocese were aware of the sexual assault allegations against him. Father Minifie's motive was concern for the children at his church because the police at that time had not yet arrested Gutierrez. We hold that the trial court reasonably could have concluded that the phone conversation was not made to Father Minifie in his professional character as a spiritual advisor, and was thus not privileged.
The court noted Gutierrez's argument "that although Father Minifie initiated the conversation for an administrative purpose, the communication is nonetheless privileged because Gutierrez sought spiritual guidance during the phone call." The Court of Appeals, however, determined that
the trial court reasonably could have concluded that Gutierrez did not expect that his communications would be confidential because Father Minifie had made it clear that he was not communicating with him in his professional character as spiritual advisor....At the beginning of the call, Father Minifie notified Gutierrez of his administrative purpose for the conversation. Also, when Gutierrez asked to see him, Father Minifie twice refused, stating that it would be a conflict of interest. Finally, although Gutierrez made comments of a religious nature, Father Minifie did not solicit these comments and did not respond to them.
Further, Gutierrez appeared to understand that Father Minifie would not communicate with him in his professional character as spiritual advisor. When Father Minifie refused to meet with him, Gutierrez responded that he understood why he could not. Also, Gutierrez notified him that he had already sought spiritual advice from another priest, who had heard his confession. We hold that the trial court did not abuse its discretion in overruling Gutierrez's privilege objection.
November 14, 2010
Electric Sheep: Court Of Appeals Of Indiana Notes That Statements Automatically Generated By Computers Can't Be Hearsay
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.
And, like its federal counterpart, Indiana Rule of Evidence 801(b) defines a declarant as "a person who makes a statement." And, as this definition and the recent opinion of the Court of Appeals of Indiana in Cranston v. State, 2010 WL 4410153 (Ind.App. 2010), make clear, because a declarant must be a person, a statement automatically generated by a computer cannot be hearsay.
In Cranston, Timothy Cranston
was pulled over on suspicion of drunk driving. Arresting Officer Lawrence Bendzen performed a battery of field sobriety tests. Cranston failed them all. Officer Bendzen transported Cranston to the county jail to conduct a certified chemical breath test.
Officer Bendzen administered the chemical breath test using a B.A.C. Datamaster with keyboard. Officer Bendzen first made sure that no foreign substances were inside Cranston's mouth. He then waited twenty minutes before proceeding. Officer Bendzen next entered a password on the Datamaster, inserted an evidence ticket into the machine, and typed in Cranston's biographical information. The machine displayed the instruction, "Please blow." Officer Bendzen placed a new mouthpiece onto the Datamaster's breath tube, and Cranston blew into the instrument. The Datamaster printed a ticket indicating that Cranston had provided an invalid breath sample. Officer Bendzen waited another twenty minutes and replaced the mouthpiece. Cranston delivered a second breath sample. This time the Datamaster printed a ticket reading in pertinent part:
--- BREATH ANALYSIS ---
BLANK TEST .00 00:47 INTERNAL STANDARD VERIFIED 00:47 SUBJECT SAMPLE .15 00:51 BLANK TEST .00 00:52ALCOHOL READINGS ARE EXPRESSED AS GRAMS OF ALCOHOL PER 210 LITERS OF BREATH
The State introduced at trial the evidence ticket printed from the Datamaster machine. Officer Bendzen authenticated the ticket, testified to his own certification in performing chemical breath tests, and explained the steps he followed in administering Cranston's test. The State also introduced an official certificate of compliance verifying routine inspection of the Datamaster.
After he was convicted, Cranston appealed, claiming
that the admission of the Datamaster evidence ticket violated his Sixth Amendment right to confrontation because he was afforded no opportunity to cross-examine "the forensic scientist who selected and prepared the breath test machine" or "any witness with knowledge of the scientific principles relied on by the BAC Datamaster, about the bases of that machine[']s conclusions regarding the type and quantity of alcohol present, or about the reliability or acceptance of those principles and conclusions."
In rejecting this argument, the Court of Appeals of Indiana noted that the admission of the evidence ticket could not have violated Cranston's rights under the Confrontation Clause because it was not hearsay. According to the court,
It is well-settled that "[b]ecause a declarant must be a 'person,' a statement automatically generated by a computer cannot be hearsay."...So-called "'[m]echanical hearsay' is not 'hearsay' because the problem is one of relevance-was the machine operating properly when it spoke, not a problem of perception, recollection, narration, or sincerity on the part of the machine.'"...Mechanically-generated or computerized information may constitute hearsay when incorporating a certain degree of human input and/or interpretation....But the B.A.C. Datamaster, for example, while requiring administrative input from the test operator and a breath sample from the test subject, calculates and prints a subject's blood alcohol concentration through a mechanical process involving no material human intervention....
As mechanically-generated data are not hearsay statements in the first instance, the prevailing view is that they cannot constitute testimonial hearsay for purposes of Crawford and the Confrontation Clause.