EvidenceProf Blog

Don't Deal In No Kind Of Hearsay: Pennsylvania Court Reverses Order Regarding Prisoner Under Residuum Rule

I have previously posted on this blog about the residuum rule, pursuant to which factual findings at an administrative hearing cannot be exclusively based on hearsay. In Pennsylvania, courts refer to this rule as the "Walker Rule" based upon the opinion of the Commonwealth Court of Pennsylvania in Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa.Cmwlth. 1976), and in Speight v. Department of Corrections, application of this rule led to reversal of an order of the Department of Corrections.

In Speight, James Speight appealed from an order of the Department of Corrections requiring him to reimburse Pennsylvania in the amount of $5,979.85 assessed against his inmate account for costs stemming from his violation of established prison rules necessitating his hospitalization. Specifically,

On March 13, 2008, Speight was issued Misconduct No. A824777 for charges of possession or use of a dangerous or controlled substance, possession of contraband, and tattooing or other forms of self-mutilation. Specifically, he took approximately 10 seizure pills (Depakene) in front of a nurse and corrections officer during the med line on F Block. He had to be taken to the infirmary and then to an outside hospital for treatment due to his actions.

Speight thereafter pleaded guilty to charges connected with this incident and, at an administrative assessment hearing to determine the amount of the costs incurred to be deducted from his account, 

The Department's witness, Leslie Wynn..., a Department accountant, presented three medical bills totaling $5,979.85. She stated that one bill was for the ambulance and the other two were from the hospital for various lab charges and the ICU. The bills were not authenticated by sworn affidavit of the record keeper for the ambulance company or the hospital, nor did any witnesses appear on their behalf.

After the hearing, the hearing examiner assessed Speight's account $5,979.85, prompting his appeal. During that appeal, "[t]he Department d[id] not contend that the medical bills were business records but instead argue[d] that the medical bills were properly admitted into evidence as unobjected-to hearsay." The problem for the Department in this regard was that these medical bills were the only pieces of evidence presented by it, meaning that its case was exclusively based upon hearsay. Accordingly, the Commonwealth Court of Pennsylvania found that the hearing examiner's assessment was not properly supported under the Walker Rule and reversed the hearing examiner's determination.

-CM

Private Eyes, Take 2: Tenth Circuit Case Reveals Different Treatments Of Private Detectives And Governmental Case Agents Under Rule 615

A few weeks ago, I posted an entry about Federal Rule of Evidence 615, which 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.

That post dealt with the recent opinion in United States v. McClendon, 2010 WL 272878 (6th Cir. 2010), in which the Sixth Circuit found, inter alia, that defense counsel's private investigator was not an "essential" person under Rule 615(3). The recent opinion of the Tenth Circuit in United States v. Lott, 2010 WL 529310 (10th Cir. 2010), reveals how courts treat governmental case agents under Rule 615 and raises questions about the Rule's fairness.

In Lott, Johnny Marton Lott sought a certificate of appealability from the Tenth Circuit to challenge the district court's denial of his motion to vacate, set aside, or correct his sentence for various drug-related crimes. Lott alleged, inter alia, that his attorney rendered ineffective assistance by failing to seek sequestration of the government's case agent, Detective Phil Long, during his trial under Federal Rule of Evidence 615. According to the Tenth Circuit,

The Rule requires courts to sequester witnesses at the request of a party, but contains exceptions for “an officer or employee of a party which is not a natural person designated as its representative by its attorney” and “a person whose presence is shown by a party to be essential to the presentation of the party's cause.” Fed.R.Evid 615(2)-(3). Detective Long, as the government's case agent and “the person most knowledgeable about the facts,” Dist. Ct. Op. at 7, would have fallen in either or both of these categories, had Mr. Lott's counsel made a motion under Rule 615. Therefore, counsel's performance on this issue was not deficient, and thus Mr. Lott cannot establish that he received ineffective assistance of counsel.

According to the Notes of Committee on the Judiciary, Senate Report No. 93-1277, which accompanied Rule 615, however, Long likely did not fall under Rule 615(3). That Report indicated that

Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in--he always has the client with him to consult during the trial. The investigative agent's presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty. Yet, it would not seem the Government could often meet the burden under rule 615 of showing that the agent's presence is essential. (emphasis added). Furthermore, it could be dangerous to use the agent as a witness as early in the case as possible, so that he might then help counsel as a nonwitness, since the agent's testimony could be needed in rebuttal. Using another, nonwitness agent from the same investigative agency would not generally meet government counsel's needs.

This problem is solved if it is clear that investigative agents are within the group specified under the second exception made in the rule, for "an officer or employee of a party which is not a natural person designated as its representative by its attorney." It is our understanding that this was the intention of the House committee. It is certainly this committee's construction of the rule. (emphasis added)

In other words, a governmental case agent likely does not qualify under Rule 615(3), but he does qualify under Rule 615(2) because he is the officer or employee of a party which is not a natural person -- the government. Conversely, as the Sixth Circuit found in McClendon, a private investigator hired by defene counsel likely does not qualify under Rule 615(3), and he does not qualify under Rule 615(2) because he is the employee of a natural person.

So, is there  justification for treating a governmental case agent differently from defense counsel's private investigator? According to the aforementioned Notes of Committee on the Judiciary, Senate Report No. 93-1277, the government's situation with its case agent compares with defense counsel's situation with his client. But is that really the case? Presumably, the case agent knows most or all of the details of the prosecution case, from forensic evidence to proposed testimony. Conversely, the defendant knows his proposed testimony and some of the details of his case, but I would argue that he knows much less than a governmental case agent or a private investigator hired by defense counsel. In McClendon, defense counsel argued that his private investigator interviewed several government witnesses and could have provided immediate insight to their cross-examinations if allowed to remain in the courtroom. Could the typical defendant provide a similar service?

-CM  

Book 'Em Danno: First Circuit Finds That Booking Sheet Is Not Covered By Law Enforcement Exception In Rule 803(8)(B)

Federal Rule of Evidence 803(8) 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 (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) 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.

Rule 803(8)(B) contains what is known as the "law enforcement exception," pursuant to which police reports are inadmissible in a criminal case when offered by the prosecution. But does this exception cover routine, non-adversarial documents, such as booking sheets? That was the question of first impression addressed by the First Circuit in its recent opinion in United States v. Dowdell, 2010 WL 481416 (1st Cir. 2010).

In Dowdell, Darryl Dowdell was convicted of distribution of cocaine base. He thereafter appealed, claiming, inter alia, that the district court erred in admitting a booking sheet that contained the photograph of Dowdell in a blue checkered shirt on which an eyewitness based his identification of him and a textual description of Dowdell's clothing as including a "blue plaid shirt." The district court allowed for the admission of this booking sheet, finding that the law enforcement exception was not meant to encompass routine, non-adversarial documents.

On Dowdell's appeal, the First Circuit noted that this was a matter of first impression for it but that "those circuits to have considered the issue have all found that the limitation in Rule 803(8)(B) does not exclude routine observations that are inherently non-adversarial." The First Circuit then agreed with this courts, concluding that

Drawing a line at routine, non-adversarial documents would best comport with the purpose for which Congress originally approved the exception. The Rule's enactment history indicates that "the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases."...Congress was generally "concerned about prosecutors attempting to prove their cases in chief simply by putting into evidence police officers' reports of their contemporaneous observations of crime."  

The court then found that the booking sheet was admissible under this reading of the law enforcement exception because

The rote recitation of biographical information in a booking sheet ordinarily does not implicate the same potential perception biases that a subjective narrative of an investigation or an alleged offense might. A booking sheet does not recount the work that led to an arrest so much as the mere fact that an arrest occurred. As a result, unlike the investigative reports that lie at the heart of the law enforcement exception, booking sheets raise little concern that suspicion of guilt will function as proof of guilt.  

-CM

Double Waiver: Eleventh Circuit Finds Defendant Waived Rule 609 Issue But That Government Waived The Issue Of Defendant's Waiver

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

When a court does allow impeachment of a criminal defendant under this Rule, the prosecution thereafter usually cross-examines the defendant about his conviction, thereby discrediting his direct testimony. In order to reduce the sting of such cross-examinations, defense attorneys began to elicit such convictions from criminal defendants during direct examinations. This practice greatly diminished, however, in the wake of the opinion in Ohler v. United States, 529 U.S. 753 (2000), in which the Supreme Curt found that a defendant waives his objection to a court's Rule 609 ruling by using such a technique. As the recent opinion of the Eleventh Circuit in United States v. Lewis, 2010 WL 438367 (11th Cir. 2000), makes clear, however, the government itself can waive the issue of the defendant's waiver.

In Lewis, Walter Lewis was convicted of conspiracy to possess with intent to distribute five or more kilograms of cocaine. 

Before trial the prosecution gave notice that, if Lewis chose to testify, it would impeach him with evidence of a thirteen-year-old state conviction for cocaine trafficking. The district court granted the government's motion in limine and admitted the conviction, finding that its probative value as impeachment evidence substantially outweighed its prejudicial impact....After losing the battle to keep out the evidence, Lewis made a tactical decision to lessen its impact by preemptively disclosing the prior conviction. Lewis took the stand and denied any involvement in the drug conspiracy. Asked on direct examination if he had ever been convicted of a felony, Lewis acknowledged that he had pleaded guilty to the state charge after he had been caught carrying some cocaine, which he claimed had been for personal use.

After he was convicted, Lewis appealed, claiming, inter alia, that the district court erred in deeming his conviction admissible for impeachment purposes in the event that he testified at trial. The Eleventh Circuit noted that Lewis waived his objection to the district court's ruling by having his attorney question him about his conviction during direct examination. But the court also found that "the government...itself waived the issue of Lewis's waiver by failing to raise it or even mention Ohler in its brief on appeal." Nonetheless, the Eleventh Circuit found that even if the district court erred, any error was harmless because

Lewis's credibility had already been thoroughly impeached by the testimony of witnesses that they had either sold cocaine to him or bought it from him on numerous occasions, by recorded conversations in which he could be heard discussing drug deals with a government informant, and by his own inability to offer a believable explanation for the large sums of cash police had found him with during two different traffic stops.  

(As a side note, it seems to me that the district court's ruling was almost certainly wrong. The Advisory Committee's Note to Rule 609 indicates that "[a]lthough convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." Considering the similarity between Lewis' prior conviction and the crime charged and the danger that the jury would misuse the prior conviction as propensity character evidence, this almost certainly was not an exceptional case.).

-CM 

No Expertise Required: United States District Court For The District Of Colorado Notes Lack Of Affirmative Obligation On Courts To Exercise Their Rule 706 Powers

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. 

But when should a court appoint an expert witness? And is there any affirmative obligation on courts to exercise their Rule 706 powers? According to the United States District Court for the District of Colorado, the answer to the latter question is "not really."

The opinion in Nagim does not give us any of the facts of the case except for the fact that Ronald Nagim was acting pro se and that he made a motion that could have been construed as a request pursuant to Rule 706 for the court to appoint an “[e]xpert for Plaintiff's Credit Report.” According to the court, however, the problem for the plaintiff was that "Rule 706 provides no explicit instruction as to when an expert should be appointed by the Court." (The court cited Wright & Gold for the proposition that “[w]hile Rule 706 provides no standard for determining when to appoint an expert, the policy [of promoting accurate factfinding] underlying the provision supplies some guidance.”).

The court then noted that "[c]ourts have hesitated to find any affirmative obligation to exercise their Rule 706 power." According to the court, "[i]n the absence of 'complex scientific evidence or complex issues,' the circuit courts have held that a district court does not abuse its discretion in declining to appoint an expert pursuant to Rule 706."

The Court then found that

the issues in the case are not overly complex or scientific. It appears that both the Court and a jury would be able to understand the issues presented by Plaintiff's case without the assistance of a court-appointed expert.

Accordingly, the court denied the plaintiff's motion.

-CM

I Swear: Court Of Appeals Of Minnesota Notes Flexibility Of Courts In Allowing Children To Be Sworn As Witnesses

Like its federal counterpart, Minnesota Rule of Evidence 603 provides that

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.   

And, as the recent opinion of the Court of Appeals of Minnesota in In the Matter of the Welfare of J.J.W., 2010 WL 431490 (Minn.App. 2010), makes clear, courts have been flexible in allowing children to be sworn as a witness.

In J.J.W., J.J.W. was charged with delinquency for second-degree criminal sexual conduct based upon acts that he allegedly committed against his four year-old niece, T.B. At a competency voir dire, T.B.

told the judge her name and age, who did her hair, corrected the judge when he misstated her date of birth, told the judge that she went to a preschool which was not close to her home, that she watched Barack Obama on television, what toys she received for Christmas, and that it snowed the previous day. She also identified the gender of the judge and mother, and corrected the judge when he asked if it would be a lie to say mother was a boy. However, she could not recount what she had eaten for breakfast, whether she watched television, identify her favorite beverage, recall whether she celebrated Christmas, or name the president.

The court found that this was enough to establish T.B.'s competency to testify at trial (and the Court of Appeals later concluded that this was the correct ruling). Subsequently,

[t]he day after the competency hearing, T.B. testified. The district court swore T.B. as a witness based on the following exchange: “[T.B.], you have just the cutest smile, [T.B.]. You going to tell us the truth today. Yes? All right. The record should reflect that she shook her head yes.” In the previous voir dire establishing competency, the district court and T.B. had discussed the difference between telling lies and truths, and T.B. had identified statements by the district court about the judge's gender and mother's gender as false.

T.B. thereafter testified against J.J.W., who was eventually adjudicated as delinquent. J.J.W. then appealed, claiming, inter alia, that the judge did not properly administer an oath or affirmation to T.B. in compliance with Minnesota Rule of Evidence 603. The Court of Appeals of Minnesota noted that in its previous opinion in State v. Morrison, 437 N.W.2d 422 (Minn.App. 1990), it found the procedure proper when "the child witness 'indicated she knew what a lie was, what the truth was, and nodded her head when asked to promise to tell the truth.'"   

The court the found that "[t]he administration of the oath" in the case before it

invoked the importance of honesty on the witness stand. The swearing-in was accomplished in a manner similar to that in Morrison: the district court asked if the witness would tell the truth and the witness promptly nodded her head in affirmance.

J.J.W. argued, however, that "[e]ven if the affirmation complied with Minnesota law,...United States Supreme Court jurisprudence regarding the Confrontation Clause of the Sixth Amendment bars her testimony." The court noted, though, that the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), did not address the validity of oaths under Rule 603 and found that "[p]ost-Crawford federal cases decided under a federal rule concerning oaths, which is similar to the Minnesota rule, have been flexible in allowing children to be sworn as a witness." Based upon this flexibility, the court had no problem upholding the procedure used by the lower court. 

-CM

Impeachable Offenses: Opinion Reveals Differences Between Federal And Indiana Rules Of Evidence 609(a)(1)

Federal Rule of Evidence 609(a) provides that:

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

As the recent opinion of the Court of Appeals of Indiana in Perry v. State, 2010 WL 415281 (Ind.App. 2010), makes clear, Indiana Rule of Evidence 609(a) is both narrower and broader than its federal counterpart.

In Perry, Rodney Perry was convicted of dealing in cocaine and possession of cocaine. Those convictions came after Perry participated in a drug deal with Nicholas Riedman, a confidential informant. At trial, Riedman testified against Perry, who sought to impeach him through evidence of his prior conviction for possession of marijuana. The trial court, however, precluded such impeachment, and this ruling formed the partial basis for Perry's appeal.

In considering that appeal, the Court of Appeals of Indiana noted that the issue was governed by Indiana Rule of Evidence 609(a), which provides that:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime shall be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement.

Under this Rule, the court easily concluded that Riedman's conviction was inadmissible for impeachment purposes because possession of marijuana is neither an enumerated crime under Indiana Rule of Evidence 609(a)(1) nor a crime involving dishonesty or false statement under Indiana Rule of Evidence 609(a)(2).

As noted above, Perry reveals that Indiana Rule of Evidence 609(a) is both narrower and broader than its federal counterpart. It is broader because it allows for the admission of even misdemeanor convictions for crimes such as robbery and burglary while its federal counterpart only allows for the admission of felony convictions for these crimes (unless they involve dishonesty or false statement). Conversely, it is narrower because it does not allow for the admission of felony convictions for crimes such as larceny or drug trafficking while its federal counterpart could allow for their admission.

(As a side note, I find it odd that Indiana Rule of Evidence 609(a)(1) covers perjury while Indiana Rule of Evidence 609(a)(2) covers "a crime involving dishonesty or false statement." Isn't that overkill?)

-CM