December 18, 2010
Lacking Substance: Supreme Court Of Kansas Finds Evidence Of Liability Insurance Was Inadmissible To Prove Bias
Federal Rule of Evidence 411 provides that
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Meanwhile, K.S.A. 60-454 provides that
Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.
In other words, Kansas's counterpart to Rule 411 makes no mention of evidence of liability insurance being admissible for other purposes such as proving bias. As the recent opinion of the Supreme Court of Kansas in Kansas Medical Mut. Ins. v. Svaty, 2010 WL 5033519 (Kan. 2010), makes clear, however, Kansas courts have read such language into K.S.A. 60-454 and applied the "substantial connections test" applied by most jurisdictions.
Jeanette Allen filed [an] underlying medical malpractice action against William Slater, M.D. During pretrial discovery, Dr. Slater designated Dr. Ted Macy as his expert witness. The use of Dr. Macy as an expert became a point of contention, leading Allen to file a motion to strike Dr. Macy as an expert. Judge Ron Svaty, the district judge presiding over the underlying medical malpractice action, denied the motion but allowed additional discovery regarding Dr. Macy and his opinions. In addition to interrogatories seeking supplementation of Dr. Macy's opinions and some additional information, Allen served a notice of subpoena duces tecum to take the deposition of officials at KaMMCO. Dr. Macy is an insured of KaMMCO, and Allen believed this formed a connection between Dr. Macy and Dr. Slater because Dr. Slater testified at his deposition that he was insured "by KaMMCO or a branch of KaMMCO."
In addressing Allen's argument, the Supreme Court of Kansas noted that while Federal Rule of Evidence 411 explicitly allows for evidence of liability insurance to be admitted to prove bias, K.S.A. 60-454 contains no such explicit provision. That said, the Kansas Supremes noted that in State Farm Fire & Casualty Co. v. Hornback, 217 Kan. 17, 535 P.2d 441 (1975), it found no reversible error in disclosing the existence of liability insurance to show witness interest or bias.
The Court then found, however, that evidence of liability insurance is not automatically admissible to prove bias; instead, it pointed out that
other jurisdictions have considered the question of whether evidence that an expert witness is a member of the same member-owned insurance company as a defendant may be admitted at trial....
In considering that situation, most jurisdictions apply what has become characterized as a "connections test" or a "substantial connections test." "The substantial connection analysis looks to whether a witness has 'a sufficient degree of 'connection' with the liability insurance carrier to justify allowing proof of this relationship as a means of attacking the credibility of the witness.'"
And, according to the court, the problem for Allen was that most "jurisdictions have reached the conclusion that evidence of both physicians being members of the same mutual insurance company is not admissible, without a showing of a substantial connection between the expert and the company." And because Allen could not show such a substantial connection, the Kansas Supremes rejected her argument.
December 17, 2010
Treatment Options: Court Of Appeals Of Texas Finds Statements Not Covered By Alcohol/Drug Treatment Privilege
Texas Rule of Evidence 509(b) provides that
There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.
In Murray v. State, 2010 WL 4924913 (Tex.App.-Dallas 2010), the appellant claimed that he went to a healing center seeking treatment for drug or alcohol abuse, making his statements to the center's staff covered by Rule 509(b). The Court of Appeals of Texas, Dallas, disagreed.
In Murray, Daniel Edward Murray pleaded guilty to possession of child pornography, indecency with a child, and aggravated sexual assault of a child. Thereafter, Murray appealed, claiming, inter alia, that the trial court erred by denying his motion to suppress. In that motion, he moved to suppress statements that he made to the staff at the Sante Healing Center. Murray claimed that he went to that center to receive treatment for drug or alcohol abuse, making his statements to the staff privileged under Texas Rule of Evidence 509(b). The State countered that Murray went to the center seeking treatment for sexual issues, which is why his statements were relevant to the criminal action against him.
In siding with the State and finding that Murray's statements were not privileged, the Court of Appeals of Texas, Dallas, held that
The only evidence presented at the hearing on the motion to suppress was the Sante records. Murray entered Sante on September 7, 2003. He told Sante that he quit using drugs after his high school graduation and, other than an occasional social drink, quit using alcohol in 2000. The records contain many statements by Murray acknowledging his past drug and alcohol use and that he was drinking heavily at the time of the alleged offenses. However, his "stated goals for treatment" when he was admitted to Sante were (1) learn why I still have pedophilic thoughts; (2) learn how to manage these thoughts since they probably never go away entirely; and (3) reduce shame by talking about these issues in a safe and therapeutic setting. Murray made numerous statements while at Sante that he was seeking treatment to address his attraction to minor girls. His primary goals on discharge from Sante were (1) to be able to live a normal life; (2) to establish and learn how to maintain recovery from the urges to fantasize about young girls; and (3) to feel good about himself and not experience the extreme low self-esteem that he had been living with for years. Further, Sante's treatment plan for Murray related to sexual issues, not drug or alcohol abuse.
December 16, 2010
Frownin' Bob: Sixth Circuit Finds Rule 704(b) Violation, Harmless Error In Enzyte Appeal
Federal Rule of Evidence 704(b) provides that
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
As I have noted before, however, courts almost always find that violations of Rule 704(b) constitute harmless error, which is exactly what the Sixth Circuit found in its recent opinion in United States v. Warshak, 2010 WL 5071766 (6th Cir. 2010).
Berkeley Premium Nutraceuticals, Inc., was an incredibly profitable company that served as the distributor of Enzyte, an herbal supplement purported to enhance male sexual performance. In [an] appeal, defendants Steven Warshak..., Harriet Warshak..., and TCI Media, Inc...., challenge[d] their convictions stemming from a massive scheme to defraud Berkeley's customers.
You may remember the commercials for Enzyte. As the Sixth Circuit's opinion noted,
The popularity of Enzyte appears to have been due in large part to Berkeley's aggressive advertising campaigns. The vast majority of the advertising-approximately 98%-was conducted through television spots. Around 2004, network television was saturated with Enzyte advertisements featuring a character called "Smilin' Bob," whose trademark exaggerated smile was presumably the result of Enzyte's efficacy. The "Smilin' Bob" commercials were rife with innuendo and implied that users of Enzyte would become the envy of the neighborhood.
But there were many problems with the way that Berkeley Premium Nutraceuticals marketed and distributed Enzyte, with one of them being that the customer satisfaction rate touted by the company "was totally spurious." (You can read the court's opinion for all of the other problems)
After their convictions, one of the grounds for the defendants' appeal was that the district court improperly received certain testimony from Special Agent Jerry Simpson. Specifically,
At trial, Agent Simpson made three statements that the defendants contend[ed] violated [Rule 704(b)]. First, Simpson stated that "the business dealings of TCI Media were commingled with the personal dealings of Mr. Warshak[,] and...it was done with an intent to conceal the true nature and disposition of the funds that came in and out of the TCI Media account." Second, on cross-examination, Simpson testified that certain cash transactions "were designed to conceal money laundering." Finally, during redirect, Simpson stated that the defendants had made "transfers among...various business and personal accounts that were multi-layered transactions that, in [his] opinion, were designed to conceal the true source and application of the funds.” This testimony was allowed to stand over the defense's rather ardent objections that Simpson had violated Rule 704(b).
According to the Sixth Circuit,
Notwithstanding the district court's reluctance to exclude them, Simpson's statements clearly ran afoul of Rule 704(b). In suggesting that certain transactions were undertaken with "an intent to conceal," Simpson spoke directly to the core issue of the requisite mens rea. That is impermissible. Furthermore, Simpson's remarks with respect to the "design" of the transactions also implicate the issue of intent. To say that a transaction is designed to achieve a certain effect is tantamount to declaring that the individual who conducted the transaction intended to achieve that outcome....True, a witness may permissibly testify that the effect of a transaction is to conceal,...but that is not what Simpson did when he stated that the intent of the transactions was to mask the source or nature of the funds at issue. Thus, it appears that the district court abused its discretion in admitting certain portions of Simpson's testimony.
Nonetheless, the court found that this error was harmless because, inter alia,
The jurors were faced with evidence of an expansive and convoluted tangle of financial transactions, evidence that would, standing alone, be more than sufficient basis to support the conclusion that Warshak's intent in making the charged transactions was to conceal the source of the funds.
December 15, 2010
Truth Of The Matter: Supreme Court Of Mississippi Finds Doctor's Affidavit Was Properly Admitted
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition....
Because such a prior inconsistent statement is not hearsay, it is both admissible to impeach the witness and to prove the truth of the matter asserted as is made clear by the recent opinion of the Supreme Court of Mississippi in James K. Triplett as the Administrator of the Estate of Jean B. Triplett, Deceased v. River Region Medical Corporation, 2010 WL 5093777 (Miss. 2010).In Triplett,
On January 6, 2004, Jean Triplett...underwent an elective hip-replacement surgery due to her struggles with bilateral degenerative hip disease. Approximately one day after the surgery, Triplett suffered from a stroke and eventually died on October 25, 2006. Triplett's heirs and estate...filed suit in the Circuit Court of Warren County, Mississippi. River Region Medical Corporation, William C. Porter Jr., M.D., John Adams, M.D., Patty Stone, CRNA, Gladys Howard, R.N., and John and Jane Does 1-20...were named as Defendants. Prior to the jury trial, River Region filed a motion for summary judgment, which was granted as to Dr. Porter, Howard, and River Region regarding any liability for Dr. Lamar McMillin, the physician who performed the surgery, under the theory of respondeat superior. At the close of the trial, the jury returned a verdict in favor of River Region, after which Triplett's heirs filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied; and Triplett's heirs timely appealed....
One of the grounds for the appeal was that the Circuit Court improperly allowed for the admission of an affidavit executed by Dr. Badr, River Region's expert witness, setting forth his opinion of the case. During cross-examination, the Triplett heirs questioned Dr. Badr regarding the medical care provided to Triplett, while simultaneously reading into evidence parts of Dr. Badr's affidavit that contained prior inconsistent statements. Upon re-direct examination, River Region thereafter moved to place the affidavit into evidence, and the Circuit Court allowed the affidavit to be introduced into evidence over a hearsay objection made by the Triplett heirs.
In finding that the Circuit Court acted properly, the Supreme Court of Mississippi noted that the affidavit was given under oath, making it nonhearsay under Mississippi Rule of Evidence 801(d)(1)(A). Therefore, the affidavit was admissible not only to impeach Dr. Badr but also to prove the truth of the matter asserted in the affidavit, which is why River Region could place it into evidence.
December 14, 2010
Play It Again: Court Of Appeals Of Texas Finds No Problem With Admission Of Translation After Playing Of Spanish Confession
Texas Rule of Evidence 1009(a) provides that
A translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial.
Meanwhile Texas Code of Criminal Procedure 38.30(a) provides that
When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for the person charged or the witness. Any person may be subpoenaed, attached or recognized in any criminal action or proceeding, to appear before the proper judge or court to act as interpreter therein, under the same rules and penalties as are provided for witnesses. In the event that the only available interpreter is not considered to possess adequate interpreting skills for the particular situation or the interpreter is not familiar with use of slang, the person charged or witness may be permitted by the court to nominate another person to act as intermediary between the person charged or witness and the appointed interpreter during the proceedings.
In its recent opinion in Peralta v. State, 2010 WL 4851388 (Tex.App.-El Paso 2010), the Court of Appeals of Texas, El Paso, found that the government's compliance with these two provisions rendered meritless the appellant's argument that the introduction of the translation of his Spanish language confession after that confession was played to the jury was improper. I'm not sure that I agree.
In Peralta, Daniel Peralta was charged with sexually assaulting his wife. After Peralta was arrested in connection with this crime, he gave a videotaped confession, with both the questions and answers being in Spanish. After the prosecution played the video for the jurors at trial, it introduced a transcribed English translation of the video that was accompanied by a sworn affidavit detailing the interpreter's qualifications.
After Peralta was convicted, he appealed, claiming, inter alia,
that because the video was entirely in Spanish, it was error to play it to the jury without a qualified interpreter providing a contemporaneous translation either by simultaneous in-court translation or by embedding a translation into the video via subtitles. The State respond[ed] the video was properly admitted since no contemporaneous translation was necessary and the video was properly authenticated.
In siding with the State, the Court of Appeals of Texas, El Paso, found that the interpreter was properly qualified as an expert under Texas Code of Criminal Procedure 38.30(a) and that the translation was properly admitted under Texas Rule of Evidence 1009(a).
With due respect to the court, I don't think that it really addressed the merits of the appellant's argument. His argument really seemed to be based upon the rule of completeness, Texas Rule of Evidence 106, which provides that
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. "Writing or recorded statement" includes depositions.
In other words, Peralta's argument seemed to be that even if the translation was admissible, it should have been admitted contemporaneously with the Spanish language video. And this makes sense to me. You could easily see a defendant saying something in a sarcastic or joking manner like, "Yeah, I'm a bad guy." If this statement were in Spanish and the translation were presented simultaneously with a recording of the statement, jurors could disregard this statement. If the translation were not presented until after the recording were played, the jurors might not make this realization.
December 13, 2010
Trust Me: Eighth Circuit Finds EPA Report Inadmissible Because Of Disclaimer
Federal Rule of Evidence 703 provides that
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Meanwhile, Federal Rule of Evidence 803(8)(C) provides an exception to the rule against hearsay for
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
And, Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
The common theme: If a piece of evidence is not trustworthy, it can't be used under any of these Rules as is made clear by the recent opinion of the Eighth Circuit in Junk v. Terminix Intern. Co., 2010 WL 4978801 (8th Cir. 2010).
Rene Junk brought [an] action in state court on behalf of her son, Tyler (T.J.) Junk, against Terminix International Company (Terminix), Dow Chemical Company and Dow AgroSciences LLC (collectively Dow), and Terminix employee Jim Breneman. Junk alleged that T.J.'s multiple medical conditions were caused by exposure to Dursban, an insecticide manufactured by Dow, distributed by Terminix, and applied to the Junk household by Breneman and other Terminix employees. After Dow removed the case to federal district court, Junk moved to remand for lack of diversity since Junk and defendant Breneman were both citizens of Iowa. The district court denied the motion after concluding that Breneman had been fraudulently joined to evade diversity. Junk's claims against Breneman were subsequently dismissed, and summary judgment was entered for Dow and Terminix.
Junk thereafter appealed, claiming, inter alia, that the district court erred in granting the defendants' motion in limine to exclude an Environmental Protection Agency report that summarized research on the effect of chlorpyrifos exposure on pregnant women, fetuses, and children. The district court had granted this motion after examining a disclaimer on the report which stated that the "information provided does not necessarily reflect the views of the [EPA], and no official endorsement should be inferred." (The disclaimer further stated that the report is "not sufficiently detailed nor is it intended to be used directly for environmental assessments or decision making."). According to the district court, this disclaimer "appeared to cast doubt on its trustworthiness" and rendered it inadmissible under "Fed.R.Evid. 803(8)(C), 703, or 803(18)."
In affirming this ruling, the Eighth Circuit first found that even if the report otherwise qualified for admission under Federal Rule of Evidence 803(8)(C), the district court reasonably exercised its discretion in determining that this disclaimer indicated "a lack of trustworthiness," rendering the report inadmissible. Moreover, the Eighth Circuit found that
Junk's argument that the EPA report is admissible through Dr. Bearer's expert testimony under Rule 703 also fails. Rule 703 provides that "[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion...unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Because the report takes the form of a brief summary of research rather than a scholarly publication, the court could determine that it had little probative value. The district court also concluded that the report's unfair prejudicial effect could be substantial if the jury were misled "into believing that [the] report records findings by the EPA." Because we agree that the report's probative value was minimal and its prejudicial potential substantial, we conclude that the district court did not abuse its discretion in excluding it.
December 12, 2010
Conspiracy Theory: Seventh Circuit Finds Statement About Disposing Murder Weapon Qualifies As Co-Conspirator Admission
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
So, are statements about disposing the murder weapon later in the month after a shooting during the course of an in furtherance of the conspiracy to murder the victim? According to the recent opinion of the Seventh Circuit in United States v. Nicksion, 2010 WL 4978819 (7th Cir. 2010), the answer is "yes."
Orlandes Nicksion and Mark Cubie, along with several others including Nicksion's cousin, Ronald Terry, were charged with drug trafficking conspiracy and various drug and gun offenses. After withdrawing his guilty plea, Nicksion proceeded to trial. A jury subsequently convicted him of drug trafficking conspiracy,...aiding the discharge of a firearm during the drug trafficking conspiracy,...and being a felon in possession of a firearm.
The trial of these alleged co-conspirators
consisted of two main components: the drug trafficking conspiracy and the [Earl] Benion homicide. Nicksion's arguments on appeal only concern the latter. To briefly summarize the former, the evidence showed that, from 2002 to 2005, Nicksion, Cubie, Terry, and others were involved in procuring large quantities of cocaine, crack, and marijuana from Chicago sources for distribution in Milwaukee, Wisconsin. In general, Nicksion and Cubie would obtain the drugs and provide Terry with a supply to sell. The conspirators used an apartment in a duplex owned by Nicksion's great-uncle, Robert Bridges, and his wife for drug trafficking. At times, Bridges also assisted with drug sales.
The evidence of the homicide showed that, on September 18, 2002, Benion's son, Sirus (age twelve at the time), saw Nicksion and Terry repeatedly drive by his home in a silver Monte Carlo with Illinois plates, while his father was outside. At one point, Nicksion blew Benion a kiss. Terry shot Benion that night, and Benion died the next day.
Later in the month after the shooting, Terry told Bonds that he (Terry) needed to get rid of the gun because it was "hot." Bonds testified this statement at trial, and, after Nicksion was convicted, he appealed, claiming, inter alia, that this statement was inadmissible hearsay. The Seventh Circuit disagreed, finding that Terry's statement to Bonds was made in an attempt to get rid of the murder weapon and was this in furtherance of (and presumably during the course of) the conspiracy.