December 11, 2010
Maintaining Consistency: 3rd Circuit Allows For Impeachment Through Simple Assault Conviction
Federal Rule of Evidence 609(a) provides that
For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
In other words, evidence of a witness' prior conviction is only admissible to impeach him if the conviction is a felony conviction or a conviction for a crime of dishonesty or false statement. As the recent opinion of the Third Circuit in United States v. Castro, 2010 WL 4948946 (3rd Cir. 2010), makes clear, however, this limitation does not apply if the witness claims that he doesn't have a criminal past.
In Castro, Cesar Castro was convicted of one count of aggravated unlawful reentry after deportation. During his testimony at trial, Castro referred to his 1990 conviction for conspiring to sell cocaine and described it as "an agreement that was reached. They did not find me guilty. There was no trial. That was the only error in my life, that I was in the wrong place at the wrong time."
The trial court thereafter allowed the prosecution to impeach Castro with evidence of his 2007 conviction for misdemeanor simple assault. After he was convicted, Castro appealed, claiming that evidence of this conviction was inadmissible under Federal Rule of Evidence 609(a), under which evidence of a witness' prior conviction is only admissible to impeach him if the conviction is a felony conviction or a conviction for a crime of dishonesty or false statement.
The Third Circuit disagreed, finding that Rule 609(a) did not apply because
In this case, evidence of the 2007 simple assault conviction contradicted a specific fact Castro testified about-that the 1990 conviction for conspiring to sell cocaine was his only violation of law. Therefore, the District Court did not abuse its discretion.
December 10, 2010
Adopted Logic: D.C. Court Of Appeals Finds Adoptive Admissions Can't Violate Confrontation Clause
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held 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. Thus, if a statement is not testimonial, there is no problem with its admission under the Confrontation Clause.
Thus, in United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit found a co-conspirator admission admissible without regard for the Confrontation Clause because co-conspirator admissions are deemed nontestimonial, even if they are made to confidential informants. In its recent opinion in Wilson v. United States, 2010 WL 1790365 (D.C. 2010), the District of Columbia Court of Appeals found the same with regard to adoptive admissions, even if they are made by someone working with the government and wearing a wire.
FBI Agent Brad Garrett testified that during the investigation of decedent's death, one of [Bryan]'s friends, Tracy Thompson, told investigators that he had given [Bryan] a gun. Agent Garrett further testified that Thompson offered to allow agents to place video and audio recording equipment in his car and to engage appellant in a conversation that investigators could record. During a recorded conversation that took place on January 6, 2005, [Bryan] denied killing his wife but told Thompson that he had thrown the gun that Thompson had given him into the Patuxent River right after the police called him to inform him that his wife's body had been found....[T]he government relied on the videotape to prove that Thompson gave [Bryan] a gun a week before Inga Wilson's murder.
At trial, Thompson did not testify, prompting Bryan to appeal, claiming, inter alia, that the admission of the recorded conversation violated his rights under the Confrontation Clause. The District of Columbia Court of Appeals disagreed, initially noting that any admissions made by Bryan himself were admissible without regard for the Confrontation Clause and that some of Thompson's statements were not admitted to prove the truth of the matter asserted, meaning that they also presented no Confrontation Clause problem. The government, though, acknowledged that it had admitted other statements by Thompson at trial as adoptive admissions under Federal Rule of Evidence 801(d)(2)(B), i.e., as statements in which Bryan manifested an adoption or belief in their truth.
According to Bryan, the admission of these statements by Thompson thus violated his rights under the Confrontation Clause because Thompson's statements were "testimonial" in that they were made under circumstances which would lead a reasonable man to believe that his statement would be available for use at later trial. Now, the opinion of the District of Columbia's decision was somewhat complicated in that it explored the differences between federal and D.C. evidence law, but the heart of the court's opinion was this:
[T]he fact that Thompson made the statements while cooperating with the FBI in an effort to elicit and record incriminating statements by [Bryan] makes it much more difficult (if possible at all) to conclude that the statements...were non-testimonial. Our conclusion that the statements (together with [Bryant]'s responses) were not hearsay, but instead were [Bryant]'s own adoptive admissions, obviates the need for an analysis of whether the statements were testimonial.
In other words, according to the court, Thompson's statements were, in effect, Bryant's statements under the adoptive admissions rule, meaning that there was no Confrontation Clause problem because an accused can't claim that he lacks the ability to confront himself.
December 9, 2010
Lied And Prejudice: Eighth Circuit Finds Proposed Rule 608(b) Evidence Failed Rule 403 Balancing Test
Federal Rule of Evidence 608(b) provides in relevant part that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
As the recent opinion of the Eighth Circuit in United States v. Alston, 2010 WL 4923288 (8th Cir. 2010), makes clear, however, it is important to note that cross-examination under Rule 608(b) is still subject to the balancing test set forth in 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.
In Alston, Donnell Alston was convicted on each count of a two-count indictment for (1) knowingly possessing with intent to distribute more than 50 grams of cocaine base; and (2) knowingly possessing with intent to distribute cocaine. At trial, Officer Greg Napier testified that after Alston was arrested, he
advised Alston of his Miranda rights and interviewed him. Alston admitted that the drugs and paraphernalia in the hotel room were his and that he had been distributing them. Detective Napier did not make an audio or video recording of Alston's confession but instead took notes of the statement and wrote a report.
Alston's theory of the case was that Napier created this confession out of cloth. The district court, however, precluded him from cross-examining Napier about an incident in which Napier allegedly challenged a prisoner to a fight and then lied about it afterward.
In rejecting Alston's appeal, the court found that this proposed cross-examination, while potentially valid under Rule 608(b), violated Rule 403 because
Detective Napier's testimony relating Alston's confession was certainly important. Yet, while "confessions have profound impact on the jury,"..., such that a police officer's description of a confession is correctly subjected to intense cross-examination, Alston's confession was not the only evidence linking Alston to room 416 and the drugs. As described at length above, the other evidence in this case circumscribes the importance of Detective Napier's testimony. Additionally, the proffered hearsay evidence is not all that probative of Detective Napier's character for truthfulness, even if it is true that Detective Napier lied to his superiors (a finding we do not make). It is evidence of an isolated event of a different character from the one at issue here. There, Detective Napier allegedly lied to protect himself from punishment. Here, Detective Napier essentially allegedly invented a complex confession to secure a drug conviction. The difference in motive is clear, and that difference lowers the probative value of the evidence....
In addition to having only limited probative value, the proffered cross-examination would have created a danger of unfair prejudice. As the exhibits to the Government's motion show, Detective Napier was found to have engaged only in ridiculing or taunting a prisoner and was reinstated. As a sister circuit has recognized, when the previous allegations of misconduct leveled against a witness resulted in no sanctions or sanctions completely unrelated to the witness' character for truthfulness, the danger is great that a jury will infer more from the previous investigation than is fairly inferable....To have allowed the cross-examination would have resulted in the kind of mini-trial on a peripherally related matter that the Rule is designed to prevent.
December 8, 2010
Structural Wound: First Circuit Implies Improper Jury Instructions Can Form Proper Predicate For Jury Impeachment
Federal Rule of Evidence 606(b) provides that
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
Based upon this language, I don't understand an important part of the recent opinion of the First Circuit in United States v. Jadlowe, 2010 WL 4910239 (1st Cir. 2010).
In Jadlowe, Marc Jadlowe was charged with various drug-related crimes. Before opening statements, the district judge instructed the jury as follows:
I just have a few special instructions about your conduct as jurors. The first one is the hardest. You are not to discuss the case with each other or anyone else until you retire to the jury room at the end of the case to deliberate on your verdict.
This rule is not as strict as it sounds. When I say you are not to discuss the case, I mean it in this sense. You are not to express an ultimate opinion about the outcome of the case.
Personally, even this rule, the way I state it, I don't think is a terribly good rule. I understand the reason for it. The thought is that because some of us tend to be more opinionated and assertive than others, jurors who are more assertive will tend to influence the opinions of fellow jurors if jurors are talking about the case before they hear all of the evidence. I think this, in fact, underestimates the intelligence of almost all the jurors that I have worked with over the years, but, nonetheless, this is the federal rule. It's been abolished in a number of states, but it is the federal rule. So we have to respect it. Like I say, whether we agree with the wisdom of a rule or not, it is the rule, the rule we follow.
But, again, don't over-interpret what I said. Of course you'll talk about interesting things that happened during the course of the trial, idiosyncracies of the judge and the lawyers, interesting things witnesses say, significant pieces of evidence. Just do not express an opinion about the case, again, until you begin deliberations and each have an opportunity to make your opinions known.
According to the First Circuit, defense counsel correctly but unsuccessfully objected that "it's inappropriate for the jurors to discuss the case in any way, shape, or form until all of the evidence is in, they've heard closing argument, and they'[v]e heard your Honor's charge." This left the question of whether this erroneous instruction required a new trial after Jadlowe was convicted. Jadlowe claimed that the error was structural and automatically required a new trial "because a defendant would never be able to probe the jury's deliberations to prove prejudice. Inquiries into jury deliberations are, in fact, narrowly restricted by Federal Rule of Evidence 606(b), which bars juror testimony "as to any matter or statement occurring during the course of the jury's deliberations."
The First Circuit disagreed, finding that
The relevant inquiry...is not into the nature of the formal deliberations that occurred once the presentation of evidence concluded, but the nature of any juror discussion about the case prior to the formal deliberations. Probing such premature discussions is neither impermissible nor impossible. Indeed, courts routinely examine allegations of juror misconduct involving improper external influences and communications among jurors, and we see no relevant distinction between those contexts and this one. The threshold question would be whether any premature discussion took place. If so, was it among all jurors or just a few? Did discussion occur regularly through the proceedings, or only once-and at what point? What was the content of the discussion?
With due respect to the First Circuit, courts indeed have found that there is a relevant distinction. Courts generally found that jury instructions are neither extraneous prejudicial information nor an improper outside influence, meaning that the way that jurors interpret and/or apply them cannot form the proper basis for jury impeachment (see, e.g., here).
December 7, 2010
Mississippi Confidential: Supreme Court Of Mississippi Discusses Two Marital Privileges In Manslaughter Appeal
Mississippi Rule of Evidence 504(b) provides that
In any proceeding, civil or criminal, a person has a privilege to prevent that person's spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse.
Meanwhile, Mississippi Rule of Evidence 601(a) provides that
In all instances where one spouse is a party litigant the other spouse shall not be competent as a witness without the consent of both, except as provided in Rule 601(a)(1) or Rule 601(a)(2)....
The Supreme Court of Mississippi's recent opinion in Newell v. State, 2010 WL 4882026 (Miss. 2010), provides an interesting, albeit somewhat flawed, discussion of these two marital privileges.
In Newell, James C. Newell appealed his conviction for manslaughter stemming from his altercation with and fatal shooting of Adrian Boyette in the parking lot of the Slab House bar in Lowndes County. The facts adduced at trial revealed that
Newell married his wife Diane on April 30, 2008, despite a previously tumultuous relationship. During their two-week marriage, Newell suspected Diane of cheating on him with Tony Hayes, with whom she previously had lived. In fact, Newell already had consulted an attorney about getting a divorce from Diane because of her suspected infidelity. On May 14, 2008, at around 5:00 p.m., Newell called Diane's cell phone and left two voicemail messages. In the first message, he threatened to shoot Diane and Tony, but in the second message he recanted. Nonetheless, later that evening, Newell drove from Vernon, Alabama, over the state line to the Slab House bar on Caledonia-Vernon Road in Lowndes County, Mississippi. He stated that he went there to confirm Diane's and Tony's relationship before he went through with the divorce.
Newell went to the Slab House but came across Boyette instead of Diane and Tony. According to the prosecution, Newell took out his anger on Boyette by shooting and killing him, but Newell claimed that he was acting in self-defense.
After he was convicted, Newell appealed, claiming, inter alia, that the trial court improperly allowed for the admission his two voicemail messages, which he claimed were inadmissible under either Mississippi Rule of Evidence 504(b) or Mississippi Rule of Evidence 601(a). The Supreme Court of Mississippi disagreed, finding that
the same facts negate both spousal privilege and spousal incompetency. Newell's message threatened to shoot Diane and Tony. Because this threat would have been communicated to Tony or the police, it is not "confidential" under Rule 504....But even if we accept Newell's argument that a private threat is not intended for disclosure, both spouses waived Rules 504 and 601 by their respective actions....Investigators obtained Diane's cell phone on Newell's request. At the time he asked the officers to check her phone, he knew that damaging messages were there. Diane surrendered her phone and provided the password to her voicemail. Thus, neither Rule 504 nor Rule 601 applies.
I agree with this latter conclusion but disagree with the former conclusion as applied to Mississippi Rule of Evidence 601(a). While Mississippi Rule of Evidence 504(b) only covers confidential marital communications, Rule 601(a) provides that a spouse is not competent to testify her party-spouse, unless there is waiver. There is no requirement that the subject of that testimony be confidential communications.
Now, both of these rules are also deemed inapplicable in cases in which the action against the defendant spouse is premised upon crimes committed against the other spouse or their children. Interestingly enough, this exception would not have applied in Newell because Newell was charged with a crime against Boyette and not a crime against Diane, even though the first voicemail involved a threat against Diane.
December 6, 2010
Under Pressure: Ninth Circuit Finds Negotiation Statements Admissible Despite Rule 408 To Prove Inappropriate Pressure
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.
As the language of Rule 408(b) makes clear, the three permitted uses listed are not exhaustive but instead only examples of permissible purposes. In its recent opinion in Costanich v. Department of Social and Health Services, 2010 WL 4910222 (9th Cir. 2010), the Ninth Circuit found that evidence of settlement negotiations was admissible for a purpose not enumerated under Rule 408(b). I'm not sure that I agree.
In Costanich, Washington state revoked Kathie Costanich's foster care license and instituted guardianship termination proceedings against her following an investigation by a Department of Social and Health Services ("DSHS") social worker, Sandy Duron, which purportedly revealed "emotional abuse" of the children in Costanich's care. Costanich's thereafter brought a § 1983 claim against Duron, DSHS, and other DSHS officials for deprivation of her due process rights to her foster care license and guardianship of her dependents, and the district court granted summary judgment in favor of all DSHS personnel on the basis of absolute and qualified immunity.
Costanich thereafter appealed, and, in part of its opinion, the Ninth Circuit noted that DHS informed Costanich of its finding of emotional abuse
in a meeting in November 2001. According to the testimony of several officials, DSHS also told her that if she would not appeal the finding of emotional abuse and would agree to participate in a corrective management plan, DSHS would not seek termination of her guardianship of [her foster children].
The Ninth Circuit then noted that
Defendants moved to strike this evidence on the ground that the proposal constituted an inadmissible settlement offer. See Federal Rule of Evidence 408(a)(1). The district court ruled that the evidence was not offered as proof of liability "but to show that DSHS inappropriately pressured [Costanich] to accept its abuse finding." DSHS waived its challenge to the district court's ruling by failing to raise it in the opening brief....Again, even if DSHS had properly preserved this challenge, we would conclude that the district court did not abuse its discretion in admitting the evidence.
This seems like a strange ruling to me. It seems like in most settlement negotiations, the strategy of a party making a settlement offer is to claim that the other party is better off taking the offer than going to trial (e.g., "Give me $10,000 today or you might be paying me $100,000 after trial"). It seems to me that what DSHS did was no different. Their offer was Costanich not appealing the finding of emotional abuse in exchange for DSHS not seeking termination of her guardianship. The court(s) construed this as inappropriate pressure, but it seems to me that it was exactly the type of negotiation that occurs in most actions and that should be covered by Federal Rule of Evidence 408.
December 5, 2010
The Shipping News: Eastern District Of Wisconsin Finds Data From Customs Records Admissible Under Rule 803(17)
Federal Rule of Evidence 803(17) provides an exception to the rule against hearsay for
Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
As I have previously noted (see, e.g., here), this exception covers entries from the Kelley Blue Book. And, as the recent opinion of the United States District Court for the Eastern District of Wisconsin in Fond du Lac Bumper Exchange, Inc. v. Jui Li Enterprise Co. Ltd., 2010 WL 4867617 (E.D. Wis. 2010), makes clear, the exception also covers certain data compilations from Customs records.
In Jui Li Enterprise Co.,
Plaintiffs, Fond du Lac Bumper Exchange, Inc. and Vehimax International, LLC, American purchasers of sheet metal aftermarket auto parts ("AM Parts"), br[ought]...consolidated, putative class actions alleging that defendants, Taiwanese manufacturers of such parts, and their American subsidiaries, violated Section 1 of the Sherman Anti-Trust Act by entering into an agreement to fix the prices of many AM Parts and to engage in other anti-competitive conduct.
The defendants thereafter, inter alia, moved to dismiss based upon lack of subject matter jurisdiction because, under the Foreign Trade Antitrust Improvements Act of 1982 ("FTAIA"), the Sherman Act
shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless-(1) such conduct has a direct substantial and reasonably forseeable effect... on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations...and (2) such effect gives rise to a claim under the provisions of this Act, other than this action.
The United States District Court for the Eastern District of Wisconsin thus noted that "as a result of the FTAIA, federal courts do not have jurisdiction over most cases involving foreign commerce." That said, the court noted that "the FTAIA does not bar jurisdiction if the conduct at issue involves import trade or commerce or has a direct, substantial, and reasonably foreseeable effect on import trade or commerce."
The court then found such an effect in the case before it because, inter alia, the
plaintiffs present[ed] information from U.S. Customs records indicating that defendants ship millions of dollars of AM Parts to the United States. Among this information is material identifying defendant Gordon as a consignee, i.e., recipient of AM Parts. The information is based on bills of lading compiled by a company whose business is to compile data based on Customs records. Defendants argue that I should not consider this information, but I conclude that it is admissible as an exception to the hearsay rule. See Fed.R.Evid. 803(17) (making admissible “published compilations generally used and relied upon by the public or by persons in particular occupations”). The declaration of Ryan Peterson is sufficient to establish that the compilation is of the type specified in the Rule. Thus, based on the above-described activities, it is reasonable to conclude that defendants' alleged conduct involves import trade or commerce.