EvidenceProf Blog

New Problem. Old Solution: Andrew Perlman's "The Legal Ethics Of Metadata Mining" & What I Think It Tells Us About Compelled Forensic Imaging

Metadata is essentially information that is embedded in -- not apparent on the face of -- electronic documents, such as word processing files or spreadsheets.  Metadata can contain a wide range of information, including the name of the person who originally authored the document, the date the document was created, the dates it was edited, the names of other people who edited it, and even the contents of previous edits. Andrew M. Perlman, The Legal Ethics of Metadata Mining, Akron Law Review (forthcoming)

Obviously, metadata can be extremely important to litigants as Professor Perlman makes clear in the following example:

Consider a case in which a large volume of electronic documents are produced in response to a discovery request.  The parties did not agree in advance whether metadata was discoverable, and the recipient wants to review the metadata of the produced documents to determine who authored them and on what dates.  In some cases, the discovery documents were produced in their native format (e.g., Microsoft Word’s “.doc” format), so the information is easily discoverable in the metadata.   

Other electronic documents, however, were converted to Adobe’s “.pdf” format before production.  The sender digitally redacted (and asserted a privilege regarding) some of the text in those documents through the use of what is effectively a digital black magic marker that covers the visible text.  The receiving lawyer, however, knows how to remove the digital "black out" and examine the text that lies underneath.  Is it ethically permissible for the lawyer to do so? 

This question of whether and to what extent litigants may engage in metadata mining is the question that Professor Perlman addresses in his forthcoming article, and, as he notes, it is a question that has divided bar associations. As Professor Perlman notes,

Seven bar associations have concluded that it is generally unethical to review a document’s metadata unless the sending party has expressly permitted it....Two bar associations – the American Bar Association and the Maryland State Bar Association – have rejected these arguments....[Specifically], the American Bar Association has concluded that metadata mining should be handled in the same way as inadvertent disclosures more generally....[Meanwhile], [f]our bar associations have concluded that metadata mining should be permissible, at least in some circumstances.

According to Professor Perlman, flat bans on metadata mining are problematic because flat bans are overbroad, metadata mining serves legitimate purposes, metadata mining is not like snooping in someone's briefcase, and metadata mining will not increase the cost of legal services. Professor Perlman concludes that "[t]he best approach to metadata mining is to analogize it to the review of inadvertently disclosed documents more generally [because] [t]he two issues are conceptually indistinguishable." Thus, the ABA's approach is the approach that all bar associations should adopt. New problem. Old solution.

I agree with Professor Perlman and think that I have found a similar new discovery problem that deserves an old solution: compelled forensic imaging:

A forensic image, mirror image, or clone copy “is a forensic duplicate, which replicates bit for bit, sector for sector, all allocated and unallocated space, including slack space, on a computer hard drive.” Communications Center, Inc. v. Hewitt, 2005 WL 3277983, No. Civ.S-03-1968 WBS KJ (E.D.Cal, April 25, 2005). Forensic imaging is not uncommon during civil discovery, “and district courts have, for various reasons, compelled the forensic imaging and production of opposing parties‘ computers.” John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008).   

For instance, in “cases where trade secrets and electronic evidence are both involved, the Courts have granted permission to obtain mirror images of the computer equipment which may contain electronic data related to the alleged violation.” Balboa Threadworks, Inc. v. Stucky, 2006 WL 763668, No. 05-1157-JTM-DWB at *3 (D. Kan., March 24, 2006). Moreover, “courts have also compelled production based upon discrepancies or inconsistencies in a response to a discovery request or the responding party’s unwillingness or failure to produce relevant information.” White v. Graceland College Center for Professional Development & Lifelong Learning, Inc., 2009 WL 722056, No.07-2319-CM at *7 (D. Kan., March 18, 2009). That said, “[c]ourts have been cautious in requiring mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature.” Stucky, 20009 WL 763668 at *3.

This caution is based in large part upon the Advisory Committee's Note to Federal Rule of Civil Procedure 34(a)(1)(A), which generally governs “[r]equests for physical inspection of another party’s hard drives or requests for forensic and mirror imaging of hard drives....” White, 2009 WL 722056 at *7. Rule 34(a)(1)(A) provides that:

A party may serve on any other party a request within the scope of Rule 26(b)(2):

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:

(A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.

This provision is a relatively new wrinkle to Rule 34(a) which was added when the Rule was amended in 2006. The Advisory Committee's Note to the amendment indicated that

Inspection or testing of certain types of electronically stored information or of a responding party's electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.

This Note strongly suggests “that direct inspection of an opponent’s hard drive is not routine, but may be justified in some circumstances....” White, 2009 WL 722056 at *7. But what are those circumstances? On one end of the spectrum, courts consistently have refused to compel forensic imaging in response to requests that were extremely broad, with the connection between computers and claims attenuated. On the other, courts have compelled such imaging when the requesting party can prove some inconsistency or impropriety by the responding party. Courts, however, have  not articulated any singular evidentiary showing required of requesting parties to compel forensic imaging. This places the current state of the law in this emerging field in a similar position to the crime-fraud exception to the attorney-client privilege before the Supreme Court’s 1989 opinion in United States v. Zolin, 491 U.S. 554 (1989).  

Before the Court’s opinion in Zolin, “some courts had endorsed the practice of automatic inspection of the alleged material by the judge to determine the applicability of the crime-fraud exception.” S. Aftab Sharif, Case Comment, Another Independent Evidence Rule Goes Up in Smoke:  The Supreme Court Strikes a Balance in United States v. Zolin, 109 S.Ct. 2619 (1989), 16 T. MARSHALL L. REV. 127, 142 (1990). Meanwhile, “many jurisdictions followed an analysis set out in United States v. Shewfelt,” in which the Supreme Court “held that before the privileged status of communications can be lifted, the government must first establish a prima facie case of fraud independently of the said communications.” Kendall C. Dunston, Student Commentary, The Crime-Fraud Exception to the Attorney-Client Privilege, 20 J. LEGAL PROF. 231, 237 (1995-1996). Finally, some courts, such as the Ninth Circuit, “barred all use of in camera review for” purposes of determining whether communications fell within the crime-fraud exception to the attorney-client privilege. Zolin, 291 U.S. 554, 565 n.9.

In Zolin, the Supreme Court reviewed the Ninth Circuit opinion barring in camera ruling and reversed while also disagreeing with those courts requiring a prima facie case. Id. at 572. According to the Court, a prima facie case is merely what is needed to overcome the privilege, and “a lesser evidentiary showing is needed to trigger in camera review....” Id. According to the court that showing is “‘a showing of a factual basis adequate to support a good faith belief by a reasonable person[]’...that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.” Id. (quoting Caldwell v. District Court, 644 P.2d 26, 33 (Colo. 1982)).

I think that courts should require the evidentiary showing of parties seeking compelled forensic imaging. If a party can present evidence adequate to support a good faith belief by a reasonable person that compelled forensic imaging may reveal evidence to uncover electronic data related to the alleged violation, the court should compel it.

-CM

Jury Worry: Colorado Court Of Appeals Adopts ABA Approach To Jury Challenges

American Bar Association, Standards for Criminal Justice: Trial by Jury, Standard 15-2.7(a) provides that

All challenges, whether for cause or peremptory, should be addressed to the court outside of the presence of the jury, in a manner so that the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of the court's ruling on the challenge.

Conversely, "[s]everal jurisdictions have determined that whether challenges for cause are made and argued in open court is a matter of discretion left to the trial court." In its recent opinion in People v. Flockhart, 2009 WL 4981910 (Colo.App. 2009), the Colorado Court of Appeals agreed with the ABA. I agree based upon the reasons cited by the court as well as Federal Rule of Evidence 606(a).

In Flockhart, Rhoderick T. Flockhart was convicted of possession of marijuana and distribution of marijuana. Before trial, defense counsel informed the judge that he planned to challenge several prospective jurors for cause, and the judge informed him that such challenges would be conducted in front of all of the prospective jurors. Without objection, defense counsel proceeded to challenge the prospective jurors for cause, and "[t]he court questioned the challenged jurors until it was satisfied they could be fair and impartial, and then denied the challenges."    

After Flockhart was convicted, he appealed, claiming, inter alia, that the court should not have heard argument on challenges for cause in front of the prospective jurors. The Colorado Court of Appeals noted the split between court following the aforementioned ABA approach and courts leaving the matter to the discretion of the trial court. The court then agreed with the ABA approach, first noting that 

The ABA Commentary to Standard 15-2.7 explains that statements made by counsel in the course of a challenge may offend a challenged juror and might tend to bias that juror against the challenging counsel and his client.

The court then noted that

Likewise, the Virginia Court of Appeals found that where the trial judge stated in a juror's presence that defense counsel was challenging him for cause and then heard the prosecution's response to the challenge in front of the juror, the procedure "created the possibility of bias in the mind of the juror against the defendant, where bias may not have previously existed."

While the court thus adopted the ABA approach, it nonetheless affirmed Fockhart's conviction, finding that he failed to object to the court's procedure, meaning that he had to establish plain error. And it found that he could not establish such error because "the bases for the challenges [were not] so obviously inflammatory as to raise a presumption that bias resulted." (Unfortunately, the court didn't explain the bases for Flockhart's challenges for cause).

I agree with the ABA approach. As I argued in my recent article, Dismissed with Prejudice,

requiring criminal defendants to inquire into the biases of prospective jurors would be fundamentally unfair because such questions could easily inject race into trial as a primary issue and alienate jurors who might feel implicitly accused of harboring said bias. [FN477]

[FN477] See Butler v. Hosking, No. 93-5976, 1995 WL 73132, at *9 (9th Cir. 1995) (“[C]ounsel may have wished to avoid implicitly accusing potential jurors of racism or expressly injecting race into the trial as a primary issue.”); Leading Cases, supra note 476, at 247 (“A lawyer cannot easily inquire into a potential juror's biases without insulting or alienating that person, onlooking jurors or prospective jurors.”).

There is, however, another reason that I agree with the ABA approach. Federal Rule of Evidence 606(a) provides that 

A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

If a party must be afforded the opportunity to object to juror testimony outside the presence of the jury, why shouldn't a party be afforded the opportunity to challenge prospective jurors outside the presence of the prospective jury? Moreover, some states, like Colorado, have versions of Federal Rule of Evidence 606(a) which do not even require an objection to jury testimony to preserve the issue for appeal. For instance, Colorado Rule of Evidence 606(a) provides that

A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. No objection need be made in order to preserve the point.

In states where parties don't even have to object to jury testimony based upon fears about how the jury would react, surely parties must be allowed to challenge prospective jurors outside the presence of the prospective jury.

-CM

The AALS Poster Project: Team-Based Learning in law

Sophie Sparrow and Margaret Sova McCabe  presented the poster Team-Based Learning in law (Download McCabe Sparrow TBL Poster):

Professor Sparrow is a professor at The Franklin Pierce Law Center, where she teaches Legal Skills I & II, Remedies, and Torts. In January, 2004, she won the Inaugural Award for Innovation and Excellence in Teaching Professionalism, sponsored by the American Bar Association and Conference of Chief Justices. She has published articles such as Practicing Civility in the Legal Writing Course: Helping Law Students Learn Professionalism 13 Leg. Writing 113 (2008), What Helps Law Professors Develop as Teachers? -- An Empirical Study, 14 Widener L. Rev. 149 (2008) (with Gerald F. Hess), and Uncovering the Student Perspective - Six Questions to Ask Before Class 1 Amer. Just. L. Rev. 901 (2008).

Professor McCabe is also a professor at The Franklin Pierce Law Center, where she teaches Legal Skills I & II and Food Law. She is a moot court board advisor and had continued her general practice from before she became a professor on a contract basis, focusing on research and writing projects, particularly in municipal law, land use and civil litigation. She has published articles such as Practice Writing: Do Writing Programs Really Teach Practical Skills?, Phoenix L. Rev. (Fall 2008) (with Amy Vorenberg), Got Controversy? Milk Does, 13 Drake J. Agric. L. 475 (2008), and The Battle of the Bulge:  Evaluating Law as a Weapon Against Obesity, 3 Food L. & Pol'y 135 (2007).

Here is their description of the poster:

The co-presenters have used team-based learning in required and elective courses for the past two years. Their classroom and outside research has shown that team-based learning

· Increased student engagement in class;

· Promotes students' higher-order thinking skills;

· Provides collaboration and professionalism skills;

· Provides students w/immediate feedback on multiple varied assessments;

· Allows professors to cover as much or more material; and

· Is scalable to classes with over 80 students

Team-based learning is a learner-centered teaching strategy designed to promote active engagement and deep learning. Educators have applied the principles of team-based learning for over 30 years, using it in 23 countries in a range of disciplines, including the arts, medicine, and business. In team-based learning, professors first identify core learning objectives, design learning units, and then sequence a series of formative and summative assessments over the semester to engage students at increasingly higher levels of thinking. During the course, students collaborate in permanent diverse teams of 5-7 students. Students earn grades on their individual work, team performance, and their contribution to their teams.

With the use of early assessments and immediate feedback, targeted team in-class problems, and team accountability, teachers can increase students’ depth of knowledge, mastery of skills, and development of professional values. Law professors can use team-based learning to implement positive changes in legal education as recommended by the Carnegie’s Educating Lawyers and Stuckey’s Best Practices for Legal Education.

And you can download a copy of the handout on Team-Based Learning that they presented at AALS by clicking here: Download Handout

 

-CM

The AALS Poster Project: Gregory S. Gordon's Complementarity and Alternative Justice

Gregory S. Gordon presented the poster, Complementarity and Alternative Justice (Download Complementarity and Alternative Justice): 

Professor Gordon is a professor at The University of North Dakota School of Law, where he teaches criminal law, criminal procedure, international law and international human rights law and serves as the Director of the UND Center for Human Rights and Genocide Studies.  Before becoming a professor, he worked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda, where he served as Legal Officer and Deputy Team Leader for the landmark "media" cases, the first international post-Nuremberg prosecutions of radio and print media executives for incitement to genocide. His publications include An African Marshall Plan: Changing U.S. Policy to Promote the Rule of Law and Prevent Mass Atrocity in D.R. Congo , 32 Fordham Int'l L.J. 1361 (2009), From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework, 98 J. Crim. L. & Criminology 853 (2008), and Toward an International Criminal Procedure: Due Process Aspirations and Limitations, 45 Colum. J. Transnat'l L. 635 (2007).

His poster is connected to his forthcoming article of the same name, 88 Or. L. Rev. ___ (forthcoming 2010). According to Professor Gordon,

The poster begins at the top by presenting the issue: whether a country asking for deferral of a prosecution by the International Criminal Court (ICC) can satisfy the ICC's complementarity standard when the country seeks to replace the ICC prosecution with use of "alternative justice mechanisms" (AJM), such as truth commissions, customary local procedures, lustration, reparations or amnesties.  It will then set out the relevant rule -- Article 17 of the ICC's Rome Statute, pursuant to which complementarity awards primacy of jurisdiction to a state's domestic courts unless the ICC determines the state "unwilling or unable genuinely to prosecute."  The poster then points out that, unfortunately, the statutory language and materials interpreting Article 17 provide only general suggestions for how the ICC could determine whether alternative mechanisms render a case inadmissible under the complementarity regime.  The poster then offers a solution -- using a set of five analytic criteria to formulate an admissibility test in such cases: (1) circumstances surrounding the ICC referral and request for deferral; (2) state of affairs in the domestic jurisdiction seeking the deferral; (3) the AJM itself; (4) crimes at issue; and (5) the prosecution target.  This text is framed on either side by photographs showing a scene of alternative justice (a customary local procedure in Africa called gacaca) and modern international criminal justice (a court proceeding at the ICC).  An arrow protrudes from each photograph and points toward the center of the poster -- a box with text containing the solution to the problem.  The box is framed on either side by a customary justice logo (from Rwanda)and the logo of the ICC.

I wanted to do this in poster form because I thought it would be a compelling argument from a visual perspective.  The poster creation process also helped me distill the paper more effectively for an oral presentation I did on it at the AALS conference.  It will also be helpful for a presentation I will be doing on the paper at the University of Kansas School of Law in February.

-CM

Reasonable Doubt: Seventh Circuit Finds That Data Disclosure Was Reasonable For Rule 1006 Purposes

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

In its recent opinion in United States v. Isaacs, 2010 WL 252278 (7th Cir. 2010), the Seventh Circuit addressed the issue of whether the government made available to a defendant duplicates for examination and/or copying at a reasonable place and time. The Seventh Circuit found that it did, but I am not sure that I agree.

In Isaacs, Mark O. Isaacs was convicted of fraudulently using unauthorized access devices. The prosecution procured Isaacs' conviction in large part through the presentation of several summary exhibits, which were created from CDs containing voluminous computer records. 

At [a pretrial] hearing, Isaacs argued that, just three days before trial, his stand-by counsel had received a new set of CDs containing voluminous computer records from the government. He asserted that he needed more time to compare the data on the new set of CDs, which comprised the underlying data used to compile the summary exhibits, to that which had been previously produced by the government on an earlier set of CDs. Isaacs further explained that the new set of CDs contained 25,000 pages of data and because it would take about six or seven hours to print the data, a continuance was warranted.

In response,

The government's counsel...represented that the new set of CDs contained the same underlying data that had been previously disclosed to Isaacs in 2006 on the earlier set of CDs. The government produced a new set of CDs before trial because the earlier set of CDs contained extraneous and inadmissible information, and one set of data lists was difficult to read. On the new set of CDs, the government redacted information related to a defendant in another case and PrimeCo and West Interactive data that was not related to the summary exhibits in this case. The government also converted one set of data lists from Microsoft Excel to Microsoft Access to make it more readable. The government's counsel explained that the redaction of the data and reformatting change did not effect the summary exhibits: they remained the same. Furthermore, the government's counsel had an understanding with Isaacs's prior counsel that the new set of CDs would be produced closer to trial and would only include the underlying data used to prepare the summary exhibits. The government's counsel stated there was a delay in producing the new set of CDs because the PrimeCo employee responsible for the summary exhibits no longer worked at the company.

The district court agreed withe government that it had complied with Federal Rule of Evidence 1006, and the Seventh Circuit subsequently affirmed, finding 

Isaacs's contention that the government violated Rule 1006 without merit. As discussed above, the government produced the earlier set of CDs containing the underlying data used to create the summary exhibits to Isaacs in 2006. Thus, Isaacs had at least fifteen months to review the data and compare it to the summary exhibits to determine if there were any inaccuracies; he does not claim in this appeal that the underlying data or summary exhibits were inaccurate or erroneous. Because the government complied with Rule 1006, the district court properly admitted the summary exhibits into evidence.

I'm not sure that I agree. First, by the government's own admission, at least one set of data lists in the original set of CDs was difficult to read. The government only produced the new set of CDs with the more readable data list three days before trial. That doesn't seem especially reasonable to me. Nor do I find the fact that the government produced the original set of CDs in 2006 to be dispositive. According to the government, the new set of CDs contained 25,000 pages of data. This means that the original set of CDs, which contained extraneous and prejudicial information, must have been more than 25,000 pages. I don't see how it was reasonable or fair to force the defense to wade through so much useless information, even if it had fifteen months to complete the task. 

But there's no reason to trust my opinion on the matter. The government admitted that it had an agreement with Isaacs' prior counsel to produce the new set of CDs closer to trial but (ostensibly) well earlier than three days before trial. It thus seems clear that defense counsel thought that it was important to have the new set of CDs sufficiently in advance of trial, with their production only being delayed by an error. This being the case, I don't see why the district court refused to grant the continuance.

-CM

Program on Understanding Law, Sciene & Evidence (PULSE) Symposium @ UCLA School of Law, February 18, 2010, 9:00 a.m.-6:00 p.m.

Inaugural Symposium: Forensic Science

A Blueprint for the Future

Feb 18th, Thursday, 9 - 6 p.m. (public panels) |  UCLA School of Law

For more information and to register please go to the Symposium website:

www.law.ucla.edu/pulse/symposium  

Symposium Speakers:

Michael Chamberlain
Simon Cole
Itiel Dror
Ingrid Eagly
Barry Fisher
Hon. Nancy Gertner
Dean Gialamas
Sam Gross
Max Houck
Keith Inman
Sheila Jasanoff
Jerry Kang
David Kaye
Jay Koehler
Glenn Langenburg
Ken Melson
Jennifer Mnookin
Joe Peterson
D. Michael Risinger
Norah Rudin
David Stoney
Jay Siegel

THIS SYMPOSIUM IS MADE POSSIBLE,
IN PART, THANKS TO THE
GENEROUS CONTRIBUTIONS OF
A. BARRY & LORI CAPPELLO TO THE UCLA SCHOOL OF LAW.

Forensic science - from latent fingerprint analysis to firearms identification to DNA - is often among the most significant evidence introduced in criminal cases. Over the last few decades, it has also been the subject of significant controversy, with defense attorneys arguing that long-accepted forensic techniques lack scientific validation, and prosecutors vociferously defending their accuracy and reliability.

Last February, the National Academy of Sciences (NAS) issued a major and long-awaited report assessing the strengths and limitations of forensic science in the United States. The report explicitly criticized the lack of empirical and research basis underpinning some of the claims routinely made by many forensic scientists in court, and called for significant changes and major overhaul to our system of forensic science.  This NAS report, which spurred congressional hearings and was recently cited in the Supreme Court, quickly garnered a great deal of attention from scholars, practitioners, and political stakeholders alike.

One year after this report, what, if anything has changed? This public symposium takes the one-year anniversary of the report as an opportunity to reflect on the aftermath of the National Academy report, its effects on courts, practitioners, scholars, and the forensic science community. But even more important, this symposium look forward to ask what does the future hold for forensic science? Flashing forward one decade or two, what should we expect,  what should we fear, and what should we hope for? In this one-day symposium, key stakeholders will consider and help to create a blueprint for the future of forensic science.

This symposium, organized by UCLA's new Program on Understanding Law, Science, and Evidence (PULSE http://www.law.ucla.edu/pulse), brings together an extraordinary group of leading participants in the forensic science debates, including forensic practitioners, attorneys, law professors, psychologists, and judges, to engage in robust presentations and debates about the future of forensic science.

Panel topics to include:   (1) The Central Debates Facing the Forensic Sciences; (2) Reflections on the National Academy Report: One Year later; (3) The Future of Forensic Science: Utopian Hopes and Rose-Colored Possibilities; and (4) Back To Reality: What to Expect for the Future of Forensic Science.

REGISTRATION IS REQUIRED.  To register, please go to www.law.ucla.edu/pulse/symposium and click for online registration.

Registration is free for UCLA students, faculty and staff.  Advance registration is $50 for all others (including lunch).  On-site registration, space permitting, will be $75.00

MCLE credit available. UCLA School of Law is a State Bar of California approved MCLE provider.

PULSE INAUGURAL LECTURE<http://www.law.ucla.edu/home/index.asp?page=3267>
February 17, 2010   |   UCLA School of Law

"Reframing Rights: The Constitutional Implications of Technological Change"

Professor Sheila Jasanoff<http://www.hks.harvard.edu/about/faculty-staff-directory/sheila-jasanoff>
Pforzheimer Professor of Science and Technology Studies at the John F. Kennedy School of Government at Harvard University

12:15 p.m. – lunch available at noon

To attend, RSVP to pulse@law.ucla.edu

Competent Opinion: Supreme Court Of New Hampshire Reverses Sexual Assault Conviction Based Upon Incorrect Competency Ruling

New Hampshire Rule of Evidence 601 provides that:

(a) General rule of competency. Every person is competent to be a witness except as otherwise provided by statute or in these rules. 

(b) Incompetence of a witness. A person is not competent to testify as a witness if the court finds that the witness lacks sufficient capacity to observe, remember and narrate as well as understand the duty to tell the truth.

It was the finding of the Supreme Court of New Hampshire in its recent opinion in State v. Horak, 2010 WL 114537 (N.H. 2010), that the complainant lacked this last capacity that led it to reverse and remand.

In Horak, Christopher Horak was convicted of sexual assault for engaging in sexual contact with a person thirteen years of age or older whom he knew to be mentally defective. Horak lived with the complainant and her mother for nine years, and the complainant was twenty-two years old and "born with disabilities and required daily care such as changing her diapers and assistance with showering, dressing and brushing her teeth."  

Horak was convicted in large part based upon the testimony of the complainant, and, after he was convicted, he appealed, claiming that the trial court should have deemed the complainant incompetent to testify at trial. Now, the opinion goes into quite a bit of detail regarding the questioning leading to the complainant being deemed competent to testify at trial, and you can read all of this questioning in the court's opinion. Here, however, are the three main exchanges:

One

On direct examination of the complainant, the prosecutor inquired:

Q. And now do you know the difference between telling the truth and a lie?

A. Yeah.

Q. And is it-is it good or bad to tell the truth?

A. I'm not sure about that.

Q. Is it good or bad to tell a lie?

A. No, I'm not sure about the lie.

Q. And do you want to tell the truth?

A. Of course.

Two

On voir dire, the defense attorney asked her whether it is “okay to sometimes lie?” The following exchange then took place:

A. Oh, well, sometimes to lie.

Q. Can you say that again...?

A. Sometimes is a lie.

Q. When is [it] okay to lie?

A. Well, that's a hard question. I don't know what is a lie, but-I don't know what is a lie. I don't know a lie. I can't remember. I can't remember anything.

Q. So can you think of any examples when it's okay to lie?

A. Yeah.

Q. Can you tell us one of those examples?

A. What's that?

Q. When it's okay to lie?

A. That's a hard question to ask. I don't-I don't know what it is. Oh, man, I can't remember anything of this, oh, God. I can't get it all out. I'm here to tell the truth. I'm here to tell the truth of what happened.

Three

Finally,

the trial court questioned the complainant. After asking the complainant to identify what the judge held in his hand, to which she replied, "Pen," the judge asked whether, if he told her what he was holding was a glass, "would I be lying or would I be telling the truth?" The complainant responded, "What do you mean?" The judge again asked whether, if someone told the complainant what the judge was holding was a glass, "would that person be lying or telling the truth?" The complainant answered, "a lie."

The court then asked:

THE COURT: ... Can you tell me what happens if somebody lies?

A. What do you mean?

THE COURT: Well, that's what I want to know from you. What happens if somebody lies? They don't tell the truth? What do you think happens to people?

A. Oh, boy. They get in trouble when they lie.

After the complainant's last answer, the trial court ruled that she was competent to testify. After he was convicted, Horak appealed, claiming, inter alia, that the trial court erred in deeming the complainant competent to testify, and the Supreme Court of New Hampshire

agree[d] with the defendant that the complainant's single correct answer, considered together with her prior incorrect ones, does not demonstrate that she understood the difference between the truth and a lie. We cannot agree with the State that "[a]fter confusing voir dire from both sides, the trial court was able to cut through the confusion." Rather, the record shows only that the trial court was able to elicit a correct response to the same type of question that both parties had previously posed and to which the complainant had responded incorrectly.

The court thus reversed Horak's conviction. This ruling was a difficult one for me to swallow, but looking at the above facts, I don't see how the court could have reached a different result because it seems clear that the complainant did not fully understand the duty to tell the truth.

-CM

Private Eyes Are Watching You: Sixth Circuit Finds Sequestration Of Defense Private Investigator Proper Under Rule 615

Federal Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

You are a trial judge and have decided to order witnesses excluded. Defense counsel argues that the order should not apply to the defense's private investigator because the investigator interviewed several government witnesses and could provide immediate insight to their cross-examinations if allowed to remain in the courtroom. How should you rule under Federal Rule of Evidence 615(3)? That was the answer facing the Sixth Circuit in its recent opinion in United States v. McClendon, 2010 WL 272878 (6th Cir. 2010).

The facts in McClendon were as listed above, with  Brian McClendon on trial for offenses related to his role in the robbery of an armored car guard at a Wal-Mart store and a subsequent drug conspiracy funded by the fruits of that robbery. After defense counsel asked that the private investigator be allowed to remain in the courtroom, the District Court denied this request, instead choosing to provide McClendon's counsel with frequent breaks to discuss the case with the investigator and allow the investigator to obtain transcripts from the other witnesses.

After McClendon was convicted, he appealed on this and other grounds, and the Sixth Circuit found that the district court did not err in this regard.  According to the Sixth Circuit,

We find that the District Court's modifications allowed McClendon's investigator to participate significantly in his defense and that the investigator's presence was not "essential." These frequent breaks provided ample opportunity for the private investigator to assist McClendon's counsel. Additionally, the Court gave the investigator materials, such as access to the transcripts of witness testimony, that allowed him to aid defense counsel in the impeachment of witnesses and strategic defense planning. The District Court acted appropriately within its discretion. The decision to exclude the private investigator, and instead provide other modifications, did not prejudice McClendon's right to a fair trial.

I agree with the Sixth Circuit's conclusion and think that this was a good example of a court making reasonable accommodations despite finding that Federal Rule of Evidence 615(3) was inapplicable. Of course, this begs the question of what the Sixth Circuit would have done if the district court did not make such accommodations. I have seen defendants make Fifth and Sixth Amendment challenges to trial court decisions under Federal Rule of Evidence 615 (see, e.g., United States v. Edwards, 526 F.3d 747 (11th Cir. 2008), but I have never seen them succeed. I wonder what would happen, though, in the case of a person whose presence is very important but not quite essential?

-CM