EvidenceProf Blog

Complete Denial: Seventh Circuit Turns Aside Defendant's Fifth Amendment Argument Based Upon Rule Of Completeness

A defendant is on trial for defrauding the Medicare program. One piece of evidence that the prosecution admits against her is a redacted audio recording on which she seemingly makes incriminatory statements. On appeal, the defendant claims that the admission of the tape violated her Fifth Amendment privilege against self-incrimination because the redacted portions of the recording were exculpatory, but she would have needed to take the witness stand to explain why. How should the court rule? As the Seventh Circuit correctly found in its recent opinion in United States v. Phillips, 2010 WL 652852 (7th Cir. 2010), the court should found the argument without merit based upon the rule of completeness.

In Phillips, the facts were as listed above, with Theresa Phillips being the defendant. Specifically, the prosecution alleged that "Phillips and her company, Health Care Creations, defrauded the Medicare program by billing it for services that were not actually performed, were not medically necessary, and were provided by an unlicensed therapist instead of by a doctor as claimed."  

One piece of evidence admitted against Phillips at trial was a redacted audio recording and transcript of undercover investigators asking Phillips whether "you" participate in various aspects of Medicare billing....Phillips contend[ed] that she responded affirmatively to these questions addressed to "you" on behalf of her company-not herself personally-and that this might have been evident had the jury heard portions of the audio recording that were redacted, although she [wa]s unsure because she never received an unredacted version, or so she claim[ed]. The government ha[d] always contended that the redacted portions consisted solely of irrelevancies, such as silent airtime, and it argue[d] on appeal that it provided Phillips with the complete, unredacted version well before trial. 

According to the Seventh Circuit, the problem with Phillips' argument that the government never provided her with an unredacted version of the recordings was that 

Phillips was required to alert the trial court that the government had not provided her the complete recordings, in order to preserve her objection to the admission of the redacted version on the grounds that the complete version was unavailable. Having failed to do so, the circumstance of the government failing to provide an unredacted version “cannot be relied upon on appeal.

Moreover, the court turned aside Phillips aforementioned Fifth Amendment argument, noting that pursuant to Federal Rule of Evidence 106, the rule of completeness,

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Thus, according to the court,

Phillips need not have taken the stand to provide any exculpatory statements. All she had to do was identify them from the complete recording and have those portions introduced via Federal Rule of Evidence 106-as unlikely as this might have been, for as we revealed, the redacted portion inculpated her personally.

-CM

Mississippi Mud: Court Of Appeals Of Mississippi Reverses Conviction Based Upon Impeachment Of Non-Testifying Criminal Defendant

Similar to its federal counterpart, Mississippi Rule of Evidence 609(a)(1) provides that 

For the purpose of attacking the character for truthfulness of a witness, (1) evidence that (A) a nonparty witness 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 (B) a party 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 party.  

As I always tell my Evidence students, the only purpose of impeachment is to show the jury (or judge) that a witness' testimony is not necessarily trustworthy. What this means is that a criminal defendant's prior convictions cannot be admitted to impeach him unless he chooses to testify at trial. What this also means is that the Court of Appeals of Mississippi had to reverse Willie Joe Robinson's conviction in its recent opinion in Robinson v. State, 2010 611504 (Miss.App. 2010).

In Robinson, Willie Joe Robinson was convicted of burglary of a building and sentenced as a habitual offender to seven years in the custody of the Mississippi Department of Corrections." One of the pieces of evidence that the prosecution introduced against Robinson at trial was his 2001 conviction for attempted grand larceny. The trial court admitted this conviction for impeachment purposes under Mississippi Rule of Evidence 609(a)(1), and the Court of Appeals of Mississippi later found that this decision was erroneous because Robinson did not testify at trial.

Of course, an appellate court can still affirm a trial court's opinion if it reached the right evidentiary ruling based upon the wrong evidentiary rule, and the prosecution alleged on appeal that the conviction could have been admitted under Mississippi Rule of Evidence 404(b) to prove motive or intent. But according to the Court of Appeals of Mississippi, the problem in this regard was that the trial court record was insufficient for it to determine whether the conviction would have been admissible for these purposes. 

An appellate court can also affirm a trial court's opinion based upon a finding of harmless error. Here, however, the court did not find that the admission of the conviction was harmless, especially in light of the fact that the prosecutor told the jury during closing argument, "He's stolen before. He is, in fact, a thief."

-CM

The AALS Poster Project: Eric E. Johnson's Intellectual Property & Disability

Eric E. Johnson presesented the poster Intellectual Property & Disability (Download Intellectual Property & Disability):

 

Professor Johnson is a professor at The University of North Dakota School of Law, where he has taught since 2007. He teaches Torts, Intellectual Property, and Media & Entertainment Law. He has published articles such as Rethinking Sharing Licenses for the Entertainment Media, 26 Cardozo Arts & Entertainment Law Journal 391 (2008), and Calibrating Patent Lifetimes, 22 Santa Clara Computer & High Technology Law Journal 269 (2006). According to Professor Johnson,

The poster titled "Intellectual Property & Disability" is connected to an article I wrote that is forthcoming in volume 20 of the George Mason University Civil Rights Law Journal, which is titled "Intellectual Property's Need for a Disability Perspective." The poster tries to make the point - in a way that is personal to the viewer of the poster - that intellectual property law can have disparate effects on disabled and non-disabled people. The poster only references the Architectural Works Copyright Protection Act, but my article discusses other examples, including how Judge Alex Kozinski's leading trademark opinion in the New Kids on the Block case creates a legal doctrine that needlessly discriminates against persons with intellectual disabilities, and how a leading right-of-publicity case from Georgia unwittingly creates doctrine that has a discriminatory impact on blind persons.

-CM

The AALS Poster Project: Twinette Johnson's Reintroducing First-Year Students to Policy Based Reasoning Using "Hot Topics"

Twinette Johnson presented the poster Reintroducing First-Year Students to Policy Based Reasoning Using "Hot Topics" (Download Hot Topics):

 

Professor Johnson is a professor at the Saint Louis University School of Law, where she has taught since 2003. She is an Assistant Professor of Legal Writing, as well as the Associate Director of Bar Preparation Programs.  In addition to her teaching duties, Johnson has been a faculty moderator for the 100 Years of Women at Saint Louis University School of Law speaker series, and a coach for the Hispanic Law Student Association Moot Court Team. 

Here is Professor Johnson's explanation of her poster:

I developed an exercise using current events (“hot topics”) in an effort to get my students to see the importance of certain analytical tools when transitioning from predictive writing to persuasive writing.  One such tool is policy based reasoning. Over the years, I have found that students are reluctant to “create” policy based arguments or even use policy to support their arguments after they have been introduced to legal writing using the predictive memorandum.  I devised the hot topic exercise to get them to see how effective policy arguments could be in shaping the law and to reintroduce the tools necessary for making such effective arguments.  To facilitate this idea, I came up with several hot topics (term I learned from watching the ABC talk show–THE VIEW) and phrased them in the form of questions that students could answer. 

I try to make these as interesting and fun as possible.  For instance, in the past, one hot topic centered on whether pageant winners’ titles should be stripped for controversial behavior.  Another involved determining whether health issues faced by NFL players should prompt changes to the NFL pension and retirement scheme to accommodate players experiencing prolonged and extraordinary health care costs.  Yet another considered whether stuntmen should be honored with Academy Awards. 

Topics and positions (yes or no) are chosen by lottery.  Before the student presentations on these topics, we review what we’ve learned about devising policy rationales.  I then advise students to use these techniques to craft policy reasons to support their positions.  Because of the topics and because the structure of this exercise is a departure from the normal instruction, students have a lot of fun with this.  They enjoy being able to argue their position and actually carry this into their briefs and oral arguments.

-CM 

The AALS Poster Project: Jessica Owley Lippmann's Conservation Easements and Global Climate Change

Jessica Owley Lippmann presented the poster Conservation Easements and Global Climate Change (Download Conservation Easements and Global Climate Change):

 

Professor Lippmann is a professor at Pace Law School, where she has taught since 2009. Her teaching interests are in the areas of property, environmental law, administrative law, and Indian law. She has published articles such as The Emergence Exacred Conservation Easements, 84 Nebraska Law Review 1043 (2006), Preservation as Mitigation Under CEQA: Ho-hum or Uh-oh?, 14 Environmental Law News  18 (with David Levy) (2005), and Exacted Conservation Easements: The Hard Case of Endangered Species Protection, 19 Journal of Environmental Law and Litigation 293 (2004). According to Professor Lippmann,

the poster presents several projects that I am working on instead of just one paper. Generally, I have been exploring climate change and land conservation. Specifically, I am examining the use of one private land conservation tool (conservation easements) and how they are (1) affected by climate change and (2) can respond to climate change. The goal of my poser was to present three lines of inquiry on these topics to solicit feedback and interest from others in the field.

I decided to submit a poster to AALS because as a new professor, it is hard to make connections with people in (and out of) your field. I hoped this would provide me an opportunity to discuss my work with other scholars. This was mildly successful. Although few people stopped by during the designated poster session, several people e-mailed me to request a copy of my poster.
    
I will presenting some of these ideas at the upcoming Public Interest Environmental Law Conference in Eugene, OR and hope to have the first two papers ready in the fall.

-CM

Refresh My Recollection: SDNY Finds Production Of Notes Used Before Testifying To Be Necessary In The Interests Of Justice

Federal Rule of Evidence 612 indicates in relevant part that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

So, when is production necessary in the interests of justice under Rule 612(2)? That was the question addressed by the Unites States District Court for the Southern District of New York in its recent opinion in Thomas v. Euro RSCG Life, 2010 WL 565391 (S.D.N.Y. 2010).

In Thomas, the plaintiff brought a civil action for damages and remedies against Euro RSCG Life after the company allegedly began discriminating against her after she returned from maternity leave.

At plaintiff's deposition on January 20, 2010, plaintiff testified that she had looked at notes in preparation for her deposition that recounted the dates and substance of conversations plaintiff had had with former in-house counsel for defendant Euro RSCG Life, Peter Glass....Defense counsel promptly demanded that the notes be produced, but plaintiff's counsel objected on the ground that the notes were protected by attorney-client privilege.

The defendant thereafter moved to compel production of the notes, and the court found that while the notes would otherwise be protected by attorney-client privilege, the plaintiff waived the privilege by relying on the notes in connection with her deposition testimony. Of course, under Rule 612(2), the court also had to find that production was necessary in the interests of justice to grant the defendant's motion because the plaintiff only relied on the notes before testifying. And, according to the court,

just such a finding is compelled here. The notes are simply a factual recitation, arranged chronologically, and evince no work-product concerns. They relate to conversations about which the witness knew she would be questioned: indeed, plaintiff's counsel, in an earlier in-court conference, had repeatedly referenced these conversations as a basis for seeking various discovery in this case....Finally, since the subject matter of these conversations, and the conversations themselves, are likely to play a substantial role in plaintiff's case, it is in the interests of justice for defendants to be able to adequately cross-examine plaintiff by having access to notes that plaintiff admitted to reviewing so that she could answer questions "accurately."

-CM

Eyes Wide Shut, Take 2: Supreme Court Of Illinois Finds HGN Test Satisfies Frye Test, Just Not In The Case Before It

Back in October 2007, I posted an entry about People v. McKown, in which the Supreme Court of Illinois found that an Illinois trial court erred in taking judicial notice of the general acceptance of the reliability of Horizontal Gaze Nystagmus (HGN) test results in a drunk driving case. The court thus reversed the trial court's opinion, holding that a Frye hearing had to be held to determine whether there was general acceptance of the HGN test in the relevant scientific community. On Friday, the Supreme Court finally addressed the validity of that hearing in People v. McKown, 2010 WL 572082 (Ill. 2010), an opinion that is a victory for Illinois prosecutors in general but a loss for them in McKown itself.

In its opinion, the Supreme Court of Illinois began by explaining the basics of nystagmus and the HGN test:

Nystagmus is “an involuntary, rapid, rhythmic movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed, i.e., of two varieties.”...The methodology employed by law enforcement officers for conducting an HGN testing as a part of field-sobriety testing is explained in detail in our earlier opinion. In brief, the officer first questions the subject to determine whether he or she has any medical condition or is taking any medication that might affect the results of the test. If not, the officer performs a preliminary test to determine whether the pupils of the subject's eyes are of equal size and whether the eyes “track” equally as an object is moved, at eye level, from side to side. If so, the HGN test itself is performed. The officer looks for three “clues,” assessing each eye separately. The three clues are lack of smooth pursuit, distinct nystagmus at maximum deviation, and the onset of  nystagmus at an angle less than 45 degrees. One point is assigned for each clue that is present in either eye. Thus, the maximum score is six, which would indicate all three clues present in both eyes. A score of four or more is considered “failing” and indicative of alcohol impairment.

The Illinois Supremes then recounted all of the testimony presented at the Frye hearing (which you can read in the court's opinion) and set forth the trial court's five conclusions of law:

1. HGN testing satisfies the Frye standard in Illinois.

2. HGN testing is but one facet of field sobriety testing and is admissible as a factor to be considered by the trier-of-fact on the issue of alcohol or drug impairment.

3. A proper foundation must include that the witness has been adequately trained, has conducted testing and assessment in accordance with the training, and that he administered the particular test in accordance with his training and proper procedures.

4. [Testimony regarding] HGN testing results should be limited to the conclusion that a "failed" test suggests that the subject may have consumed alcohol and may [have] be[en] under the influence. There should be no attempt to correlate the test results with any particular blood-alcohol level or range or level of intoxication.

5. In conjunction with other evidence, HGN may be used as a part of the police officer's opinion that the subject [was] under the influence and impaired.

In upholding these conclusions, the Supreme Court of Illinois

agree[d] with the trial court that the relevant scientific fields that embrace the testing for and observation of HGN include medicine, ophthalmology, and optometry. Research and expert opinion in other scientific or medical fields, such as neurophysiology, might also be relevant.

According to the Illinois Supremes,

The trial court concluded that “both ophthalmology and optometry generally accept the principle that the HGN test may be an indicator of alcohol consumption.” The trial court stated, further, that the use of HGN test results at trial “should be limited to the conclusion that a ‘failed’ test suggests that the subject may have consumed alcohol and may [have] be[en] under the influence. There should be no attempt to correlate the test results with any particular blood-alcohol level or range or level of intoxication.”

We agree. Consumption of alcohol is a necessary precondition to impairment due to alcohol. Therefore, any evidence of alcohol consumption is relevant to the question of impairment....A failed HGN test is relevant to impairment in the same manner as the smell of alcohol on the subject's breath or the presence of empty or partially empty liquor containers in his car. Each of these facts is evidence of alcohol consumption and is properly admitted into evidence on the question of impairment.

We, therefore, adopt the trial court's finding that HGN testing is generally accepted in the relevant scientific fields and that evidence of HGN test results is admissible for the purpose of proving that a defendant may have consumed alcohol and may, as a result, be impaired.

So, why did the State lose despite these conclusions? Well, apparently, the arresting officer didn't perform the HGN test properly in McKown. According to the Supreme Court of Illinois, 

defense counsel was allowed to make an offer of proof during cross-examination of Master Sergeant Lebron. Lebron reviewed the transcript of Officer Klatt's trial testimony and stated that Klatt performed the test while defendant was seated; while the NHTSA manual requires that the subject be standing. Further, Klatt's testimony does not indicate that he questioned defendant about any eye problems, equal tracking, equal pupil size, or resting nystagmus. Lebron stated that he “would agree” with the statement that Klatt did not perform the test in accordance with NHTSA standards.

During its cross-examination of Dr. Citek, the defense again made an offer of proof regarding the manner in which Klatt conducted the HGN test in this case. Citek acknowledged that the officer's testimony did not state that he observed equal pupil size and equal tracking before he conducted the HGN test and that if the officer did skip these steps, the test results would not be reliable.

Page acknowledged that the HGN test must be performed according to NHTSA standards to be considered reliable as a field-sobriety test and that he has seen trained police officers administer the test incorrectly. He agreed that Klatt's trial testimony did not correctly describe the clues one observes when administering the HGN test.

Dr. Henson reviewed Klatt's testimony and stated based on that testimony, the test Klatt performed was not in compliance with NHTSA standards.

Based upon this and other corroborative evidence, the Supreme Court of Illinois found that the admission of testimony regarding the HGN test was reversible error and remanded for a new trial.

-CM