January 1, 2011
By Way Of Limitation: Supreme Court Of Arizona Addresses Inadequate Limiting Instructions Under Rule 105
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
And, as the recent opinion of the Supreme Court of Arizona in State v. Gomez, 2010 WL 5173627 (Ariz. 2010), makes clear, the submission of an inadequate instruction does not waive the defendant's right to a limiting instruction in a case covered by Rule 105.
Joseph Wesley Gomez was arrested and charged with crimes related to a home invasion. Police collected items from the crime scene and submitted them, along with a blood sample taken from Gomez, to a laboratory. The laboratory analyzed DNA from the items and compared the results with the DNA from the blood sample.
In performing DNA testing and analysis, the laboratory used an "assembly line" method that involved seven steps. During the first six steps of the process, technicians isolate and amplify the DNA and generate profiles. The technicians do not interpret data or draw conclusions during these first six steps, in which machines are used for every step except the initial screening of submitted items for DNA. Various technicians involved in the laboratory processes did not testify at Gomez's trial.
The State instead called a single witness about the DNA testing. That witness, a senior forensic analyst and supervisor at the laboratory, testified in detail about the laboratory's operating procedures, standards, and safeguards. Although the analyst had not witnessed all of the steps in the process, she had checked the technicians' records for any deviations from the laboratory's protocols. The analyst had performed the initial evidence screening and DNA extraction on most of the items, and she testified about the chain of custody for all items. For each sample, the analyst personally performed the final step in the process, interpretation and comparison. This step required her to compare the DNA profiles generated in the laboratory, and it was the only step involving human analysis.
The analyst testified that several profiles derived from evidence at the crime scene "matched" the profile obtained from Gomez's blood sample. The data from the testing process were not introduced into evidence as exhibits.
Now, if this data were introduced, it could have violated Gomez's rights under the Confrontation Clause pursuant to the Supreme Court's opinion in Melendez-Diaz v. Massachusetts. But, the prosecution instead used the new technique of merely having the analyst use this data as the basis for her opinion under Rule 703, thus circumventing the Confrontation Clause.
After the prosecution used this technique, however, Gomez requested a jury instruction pursuant to Arizona Rule of Evidence 105 that "[t]he work of non-testifying witnesses is admitted only to allow the consideration of the reasons for the expert's opinion." The trial court rejected this instruction, and the Court of Appeals of Arizona agreed, finding that the instruction was legally flawed.
The Supreme Court of Arizona disagreed with the Court of Appeals that the legally flawed nature of the instruction meant that the court did not have to give some limiting instruction. Instead, according to the court, if evidence is admissible for one purpose but inadmissible for another and the defendant asks for a legally flawed limiting instruction, the trial court should correct it and issue the correct limiting instruction. The problem for Gomez, though, was that the data was not in fact admitted, meaning that Arizona Rule of Evidence 105 was not triggered and that no limiting instruction was warranted.
December 31, 2010
Brother To Brother: First Circuit Finds Private Confession To Brother Not Admissible Under Rule 804(b)(3)
Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
So, would it be correct to make a blanket statement that a private confession to a brother can never constitute a statement against interest under Rule 804(b)(3)? The First Circuit didn't go quite that far in its recent opinion in Santiago v. O'Brien, 2010 WL 5175178 (1st Cir. 2010), but it came pretty darn close.
In O'Brien, Peter Santiago was convicted in Massachusetts of
trafficking in two hundred or more grams of cocaine....His defense was that the drugs and drug-dealing paraphernalia found in his apartment belonged to Oley Saradeth-an acquaintance who stayed in Santiago's apartment from time to time and who died of pneumonia in the interim between the police raid in November 1997 and the trial in October 1998. Although Santiago testified that the drugs were Oley's, this effort to shift blame was hampered by the trial court's refusal to admit into evidence a confession Oley purportedly made to his brother, Fanta Saradeth.
After Santiago unsuccessfully appealed in the state court system, he filed a petition for a writ of habeas corpus in federal district court, claiming that he should have been allowed to introduce Oley's statement as a statement against interest. The district court, however, denied the petition, and the First Circuit affirmed, first noting that
In excluding the December 1997 confession, the trial court accepted the Commonwealth's argument that a statement made only to one's brother is not genuinely against the speaker's penal interest because the speaker assumes the statement will remain private; further, the court found that the statement was uncorroborated by any circumstances indicating its trustworthiness.
The First Circuit was somewhat skeptical of this holding, finding that
Whether the first ground (if intended as a blanket statement rather than a judgment on the particular facts) accords with Massachusetts law is unclear....Elsewhere, statements made in private-even when the possibility of future disclosure seems remote-may at least on some facts nevertheless be against penal interest.
The court, however, did not need to resolve this issue because it ultimately concluded that
private statements, even if potentially against penal interest, are not all the same, and the trial court's grounds of decision in this case overlap: a private confession to a brother, where there is nothing to suggest it will become public while the speaker is alive, is at best minimally "against penal interest" and certainly not (standing alone) shown to have a further hallmark of trustworthiness. Here, the supposed confession, as clarified on cross-examination, is not even a straightforward exculpation of Santiago. It was surely not shown to be "trustworthy" hearsay.
December 30, 2010
It's An Eye Roller: Court Of Appeals Of Alaska Precludes Jury Impeachment Based On Prosecutor's Eye Rolling
Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement 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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
So, does this Rule prevent the receipt of juror affidavits indicating that the prosecutor rolled his eyes during certain parts of trial? According to the recent opinion of the Court of Appeals of Alaska in Silvera v. State, 2010 WL 5129199 (Alaska App. 2010), the answer is "yes."In Silvera, Michael A. Silvera was convicted of second-degree assault after he cut David Moore in the face with a knife during an argument between Moore and Silvera's fiancée. After he was convicted,
Silvera filed a motion for a new trial, arguing that five jurors had witnessed eye-rolling and other inappropriate facial expressions by the prosecutor throughout the trial. Silvera argued that this conduct deprived him of a fair trial because it conveyed the prosecutor's personal opinion about his guilt and veracity, and suggested that the prosecutor had personal knowledge of facts not in evidence.
The trial judge, however, denied the motion, promoting Silvera's appeal after he was convicted. In rejecting Silvera's argument that he should have been able to introduce juror affidavits to prove this prosecutorial misconduct, the Court of Appeals of Alaska noted that
It could be argued that the juror affidavits submitted by Silvera were wholly inadmissible. The relevant portion of Evidence Rule 606(b) states that a court is prohibited from receiving the testimony or affidavits of jurors when offered to impeach a verdict, unless the testimony or affidavits relate to "whether extraneous prejudicial information was improperly brought to the jury's attention." This court has stated that, for purposes of Rule 606(b), "extraneous" information means information that reaches the jurors other than through the normal trial process. Thus, when a lawyer engages in improper argument, or when a witness gives a non-responsive answer, or offers objectionable testimony, or makes an otherwise improper statement in open court, these improprieties do not constitute "extraneous" information within the meaning of Rule 606(b).
We are aware of some federal authority suggesting that there may be occasions when information that reaches the jury through the normal trial process may still be deemed "extraneous" for purposes of the federal analog to Evidence Rule 606(b). The parties have not briefed this issue. And, as we are about to explain, we need not resolve this issue-because, even if the affidavit Silvera submitted in superior court was admissible under Evidence Rule 606(b), it fails to establish that Silvera is entitled to relief.
This was because, as the court went on to explain,
The affidavit that Silvera submitted d[id] not connect the prosecutor's challenged conduct to the testimony of any particular witness or to any particular piece of evidence; nor d[id] the affidavit establish with any certainty how pervasive the prosecutor's reactions were, or whether the prosecutor appeared to be intentionally directing these reactions to the members of the jury.
December 29, 2010
Battle Of The Transcripts: Eleventh Circuit Finds No Problem With Circumscription Of Paralegal Transcriptionist's Testimony
It's common at trial to have the so-called "battle of the experts," in which the prosecution's expert might claim that there were defensive wounds on the victim's body while the defense expert might claim that there were no such wounds. In United States v. Gayle, 2010 WL 5174536 (11th Cir. 2010), however, there was the much rarer "battle of the transcripts," with the key being that the defense transcriptionist was not an expert.
In Gayle, Ryan Gayle was convicted of importation of 1,000 kilograms or more of marijuana and conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana. Lloyd Garrick, a confidential informant for Immigration and Customs Enforcement was Gayle's alleged co-conspirator, with the subject conspiracy consisting of importing marijuana from Jamaica.
Garrick recorded many of his conversations with Gayle, and
Gayle objected to the introduction of transcripts of [the] audiotaped conversations between him and Garrick. Gayle and Garrick spoke English with the Jamaican patois, which differs from standard English in many ways, and Gayle argued that the government's transcripts were not an accurate translation or transcription of the conversations. Gayle produced his own set of transcripts, but suggested that the jury should listen to the tapes without the benefit of any transcripts. Because the parties had not been able to agree on a stipulated set of transcripts and the court found that the value of the transcripts outweighed the possibility of jury confusion, it denied Gayle's objection and ruled that each side could introduce its transcripts during its own case in chief.
During his case in chief,
Gayle introduced his transcripts through the paralegal transcriptionist who had prepared them. The transcriptionist described in detail the discrepancies between the two sets of transcripts, but the court restricted her from testifying as to the meaning of certain patois words or as to which of the transcripts was more correct.
After Gayle was convicted, he appealed, claiming, inter alia, that the district court improperly circumscribed the testimony of the paralegal transcriptionist. The Eleventh Circuit disagreed, holding that
opinions and inferences by a lay witness are limited to those (1) rationally based on the witness's perceptions; (2) helpful to a clear understanding of her testimony or a determination of a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge that requires expert testimony. See Fed.R.Evid. 701. The correctness of a translation is a question of fact for the jury, and the district court does not abuse its discretion by requiring an alternate translation to be properly authenticated by an interpreter.
December 28, 2010
What Kind Of Right?: Court Of Appeals Of Michigan Finds Rape Shield Rule Vests Rights In Victims
MCL 750.520j, Michigan's rape shield statute, provides that:
(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted ... unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim's past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
In its recent opinion in People v. Hoskinson, 2010 WL 5129891 (Mich.App. 2010), the Court of Appeals of Michigan rejected the appellant's argument that he could present evidence of the alleged victim's sexual conduct to prove that she consumed a high level of alcohol on the night he allegedly sexually assaulted her. In rejecting this argument, the court concluded: "Allowing the jury to hear about a victim's sexual past to prove the victim consumed a high level of alcohol is not a recognized exception, and such a rule would violate a victim's rights under the rape shield statute."
At first blush, this sentence seems innocuous, something we might see in any case denying an appellant's rape shield appeal. But at second glance, it seems much more significant.
So, what's the significance? Well, most rape shield opinions only reference the rights of the defendant, with the question being whether the application of a rape shield rule, a rule of evidence, violates the rights of the defendant. Indeed, Federal Rule of Evidence 412, the federal rape shield rule, specifically indicates that there is an exception to the rule for "evidence the exclusion of which would violate the constitutional rights of the defendant."
Conversely, you don't often see a rape shield case mention the victim's rights. Indeed, a quick WESTLAW search of "victim's rights" /p "rape shield" returned no results in the ALLFEDS database. The same search returned 8 results, including People v. Hoskinson, in the ALLSTATES database. 4 of these results come from Montana courts, which do seem to embrace the idea of Montana's rape shield rule vesting rights in the victim.
Some of the other results are less clear. In a Georgia case, it was the appellant himself who claimed that the alleged victim's rights under Georgia's rape shield rule had to yield to his right to confront witnesses against him. And, in an Illinois case, the court referenced the alleged victim's rights under Illinois' rape shield rule only as part of its finding that those rights had to yield to the defendant's confrontation rights.
So, the opinion of the Court of Appeals of Michigan in People v. Hoskinson is actually fairly atypical and, I would claim, important. Why? Well, if the prosecution is prosecuting a defendant for rape and loses a rape shield ruling, the prosecution might not choose to appeal that ruling before the evidence is presented And, if the rape shield rule is just a rule of evidence, the alleged victim presumably could not appeal that ruling on her own. But, if the rule creates rights in the victim, maybe she would be able to appeal.
Meanwhile, if an alleged victim in a civil action for sexual assault loses a rape shield ruling ruling, and the rape shield rule is just a rule of evidence, all she has at her disposal is the typical appeal process. But, if the rule creates rights, she might have alternative avenues to relief.
Of course, this all depends on the nature of the rights created by a rape shield rule. Is it a right to privacy? Is it a right to bodily integrity? Is it Constitutionally based? Very few courts have even found that rape shield rules vest rights in victims, let alone addressed the question of what types of rights they create. But perhaps the opinion in People v. Hoskinson is a sign that this is about to change.
December 27, 2010
Diagnosis Rape: Court Of Appeals Of Mississippi Finds Statements Made To Social Worker Admissible Under Rule 803(4)
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, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term "medical" refers to emotional and mental health as well as physical health.
As the recent opinion of the Court of Appeals of Mississippi in Cox v. State, 2010 WL 5093619 (Miss. 2010), makes clear, however, statements do not need to be made to a diagnostician (or even a medical professional) to be admissible under this Rule.
J.R., while filling her car with gas, was approached by a man, later identified as the defendant, [Patrick] Cox, who threatened to kill her if she did not do what he said. Cox forced J.R. into the backseat of her Chevrolet Equinox, and as she pleaded for him to release her, Cox drove away from the gas station. J.R. remembered she had her cell phone in her back pocket, and as discretely as possible, she dialed numbers in an effort to be rescued. She first dialed 911; not knowing if her call had been received, she then dialed her friend, Maria Wright, and then her ex-husband, Gregory Young. J.R. left the phone on while she continued to plead with Cox to let her go.
Cox eventually pulled the car over and got into the backseat with J.R. and demanded that she remove her clothes. J.R. testified that Cox began to lick her neck and breast, and once J.R. removed her clothes, Cox raped her. Fortunately, as Cox was distracted by another vehicle passing by, J.R. was able to escape from her backseat and run to a BP gas station operated by Willie Harris. Harris let J.R. into his store, found her something to cover up with, and called the police.
J.R. was then taken to the University of Mississippi Medical Center (UMC). While at the hospital, J.R. was interviewed by Martha Pentecost, a UMC social worker, and Patty Welch, a UMC registered nurse. Jackson Police Officer Taafee N. Hughes and Detective Kimberly Brown were also present for the interview. In the interview, J.R. told Pentecost and Welch that she had been kidnapped and forced into her car against her will. She further testified that she was raped, and a rape kit was then prepared to test J.R.'s person. Welch also noted that she found "redness" on J .R.'s labia minor.
At trial, Pentecost testified regarding J.R.'s statements (although the opinion of the Court of Appeals of Mississippi doesn't no reveal the exact nature of Pentecost's testimony). After Cox was convicted of carjacking, kidnapping, and the forcible rape, he appealed, claiming, inter alia, that Pentecost's testimony was inadmissible under Mississippi Rule of Evidence 803(4) because Pentecost was not a diagnostician.
The Court of Appeals of Mississippi disagreed, concluding that Rule 803(4)
states that if the trial court finds the circumstances surrounding the statement indicate substantial trustworthiness, the statement can be admitted regardless as to whom the statement was made. The trial court found that because the statements were made after J.R. had just been brought into the hospital and because they were made in the company of a nurse and a police officer, there was enough trustworthiness to admit the statements. Furthermore, Pentecost's testimony was corroborated by a UMC registered nurse, Welch, and J.R. herself.
The more interesting question to me, which the court did not address, is whether J.R.'s statements were "testimonial" and violative of the Confrontation Clause in the event that she did not testify (the court's opinion does not make clear whether J.R. testified). The fact that a police officer and detective were present for the interview of J.R. make me think that her statements would indeed be "testimonial."
December 26, 2010
The Wicked Run Away: The Surprising Legal Focus Of The Coen Brothers' "True Grit"
Yesterday, I saw the Coen brothers' latest movie, "True Grit," the remake of the 1969 film starring John Wayne, with both being based upon the book by Charles Portis. One of my reactions: The Coens have learned a lot about the law since they made "Intolerable Cruelty," which I regard as one of the most legally inaccurate movies of all time.
But this was clearly not the case with "True Grit," an old school Western with a surprising legal focus. First, there's a scene which I will be sure to use in my Criminal Law classes that focuses on the distinction between Malum in se and Malum prohibitum:
Azh I understand it, Chaney—or Chelmzhford, azh he called himshelf in Texas—shot the shenator’zh dog. When the shenator remonshtrated Chelmzhford shot him azh well. You could argue that the shooting of the dog wazh merely an inshtansh of malum prohibitum, but the shooting of a shenator izh indubitably an inshtansh of malum in shay.
Malum in se. The distinction is between an act that is wrongin itself, and an act that is wrong only according to our lawsand mores. It is Latin.
I am struck that LeBoeuf is shot, trampled, and nearly severs his tongue and not only does not cease to talk but spills the banks of English.
The Mattie in this exchange is a fourteen year-old spitfire played by the terrific Hailee Steinfeld, and, as the exchange reveals, she knows a good deal about the law. Indeed, earlier in the film, there are a couple of snappy scenes between Colonel Stonehill and her in which she uses the threat of litigation (at the hands of Lawyer J. Noble Daggett of Dardanelle, Arkansas) to her advantage.
Later, we learn that the ex-wife of Jeff Bridges' incorrigible U.S. Marshal Reuben "Rooster" Cogburn unsuccessfully tried to get him to become a lawyer:
She had taken a notion she wanted me to be a lawyer. Bought a heavy book called Daniels on Negotiable Instruments and set me to reading it. Never could get a grip on it and I was happy enough to set it aside and leave Texas. There ain’t but about six trees between there and Canada, and nothing else grows but has stickers on it. I went to—
This being an Evidence blog, though, my main focus is on earlier scene in the movie in which Cogburn is on trial for the shooting deaths of two Wharton boys. Cogburn's defense (like the defense of Timothy Olyphant's Marshal Raylan GIvens) is that the shootings were justified. At trial, the following exchange occurs:
The woman was out in the yard dead with blowflies on her face and the old man was inside with his breast blowed open by a scatter-gun and his feet burned. He was still alive but just was. He said them two Wharton boys had done it, rode up drunk—
Dying declaration, your honor.
Overruled. Procede, Mr. Cogburn.
Interesting. Federal Rule of Evidence 804(b)(2), which is based upon common law court practice such as the practices likely followed in 19th Century Arkansas (when and where the movie takes place), provides an exception to the rule against hearsay
In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
Now, for the most part, this exception comes into play to prove that the defendant killed the victim such as when Victim says, "Defendant shot me" just before dying. And, occasionally, the exception comes into play to prove that the defendant did not kill the victim such as when Victim says, "Defendant didn't shoot me" or "[Someone else] shot me" just before dying.
What's different about the dying declaration in "True Grit" is that it is the statement of a victim not being used in a prosecution for the victim's death. And technically, I think that the film is probably right that a dying declaration can be used at any prosecution for homicide and not solely at a prosecution for the killing of the victim who made the statement.
That said, I've never seen a dying declaration in such a case, and I don't know that such a declaration would ever be practically admissible in such a case. You see, the Coen brothers (or at least the lawyer and judge in the movie) didn't quite get it right. The old man's statement was not being offered to prove the truth of the matter asserted, i.e., that the two Wharton boys shot him. Instead, it was being offered to prove the effect on the listener, Cogburn, to prove why he had reasonable apprehension of the Wharton boys and why the shooting was justified.
[EDIT 1/14: As Larvell Blanks correctly notes in the comments, the trial at which Cogburn is testifying is NOT a criminal prosecution of him for murdering the Wharton boys. Instead, it is the prosecution of the surviving Wharton boy -- Odus -- for murder. Therefore, the statement that the Wharton boys committed the murder is being admitted to prove the truth of the matter asserted, making it hearsay, but it is admissible as a dying declaration.].