March 6, 2010
Remote Control? Pennsylvania Court Upholds Admission Of M.O. Evidence Despite Its Remoteness
Pennsylvania does not have a counterpart to Federal Rule of Evidence 414(a), which provides that
In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
That said, the state does have Pennsylvania Rule of Evidence 404(b), its counterpart to Federal Rule of Evidence 404(b), which provides that evidence of other crimes, wrongs, or acts of an individual is admissible for certain purposes such as proving common plan or scheme/m.o. And, in its recent opinion in Commonwealth v. Aikens, 2010 WL 737642 (Pa.Super. 2010), the Superior Court of Pennsylvania found that this rule covered a prior act of child molestation by a criminal defendant, despite its remoteness.
In the case at bar, we believe that the fact pattern involved in the two incidents was markedly similar. In both cases, the victims were of like ages: T.S. was fourteen years old, and V.B. was fifteen years old. Both victims were Appellant's biological daughters. Appellant initiated the contact during an overnight visit in his apartment. He began the sexual abuse by showing the girls pornographic movies. The assaults occurred in bed at night. While Appellant raped V.B. and indecently assaulted T.S., T.S. stopped Appellant from disrobing her and committing the more serious sexual assault. In addition, Appellant mimicked the grinding movements of sexual intercourse on T.S. in order to sexually gratify himself. These matching characteristics elevate the incidents into a unique pattern that distinguishes them from a typical or routine child-abuse factual pattern. Hence, we reject Appellant's position that we are pigeonholing sexual abuse cases to such an extent that any prior instance of child abuse would be admissible in a subsequent child abuse prosecution....As was the case in Hughes, the similarities at issue herein were "not confined to insignificant details that would likely be common elements regardless of who committed the crimes."
Moreover, the court found that
Concededly, the time lapse at issue in this case was lengthy. V.B.'s abuse started in fall 1986 and ended in approximately 1990....The rape introduced at this trial occurred fifteen years prior to the assault at issue....Thus, there was a ten-to-eleven-year period between the end of that abuse and the present abuse. However, as we noted in Luktisch, remoteness is merely one factor to be considered in determining admissibility; the importance of the gap in time is inversely proportional to the similarity between the crimes. In this case, the parallels are striking. The abuse was perpetrated in an identical manner on victims with identical characteristics and in an identical setting. The only exception was that the victim herein was able to stop the abuse from escalating. Hence, the fact that V.B .'s abuse occurred remotely to that in the present case was not determinative of the issue. In addition, since the crimes were comparable, the probative value of the evidence of V.B.'s abuse outweighed its prejudicial impact.
I'm not sure that I agree. Evidence offered to prove common plan or scheme usually consists of evidence of several prior similar acts such that the trier of fact would conclude that all of the acts must have been committed by the same person, i.e., the defendant. in Aikens, the prosecution only had evidence of acts involving the alleged victim -- T.S. -- and one other victim -- V.B. Given this, I think that the evidence regarding acts against V.B. were at best barely admissible, and that is before even taking account of the remoteness of those acts. With that remoteness factored in, I find it difficult to believe that evidence of these prior acts should have been admissible to prove common plan or scheme.
March 5, 2010
Victim Of Circumstance?: Court Of Appeals Of Ohio Makes Seemingly Strange Hearsay Ruling Regarding Criminal Defendant's Statements
Ohio Rule of Evidence 803(1) provides an exception to the rule against hearsay for
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness.
And Ohio Rule of Evidence 803(2) provides an exception to the rule against hearsay for
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
The recent opinion of the Court of Appeals of Ohio, Eighth District, in State v. Bunch, 2010 WL547402 (Ohio App. 8 Dist. 2010), seems to imply, though, that criminal defendants can never use these exceptions to introduce their own, exculpatory statements. I disagree.
In Bunch, the Court of Appeals of Ohio found that the prosecution established the following facts at trial:
On the evening of September 21, 2008, defendant got into an argument with his step-father, James McIntyre (“victim”), at 3706 Rolliston Avenue in Shaker Heights, Ohio. Victim and his wife had repeatedly told defendant not to come to the house. Defendant was living in the detached garage at the time. As the argument became heated, defendant left the house, went into the garage, broke the cable to the overhead door, and came back into the house through the side entrance. In the meantime, victim grabbed two knives and headed toward the side door. As defendant entered the house, he encountered victim, who had a knife in each hand, and defendant pushed victim down the uncarpeted basement stairs. Victim broke his left wrist and fractured a bone in his face, which required surgery.
The defendant raised a the defense of self-defense at trial, but the trial court precluded him from presenting the testimony of his arresting officer, who allegedly would have testified that the defendant told him that "he was acting in self-defense and that he pushed victim because victim came at him with a knife in each hand."
Unfortunately, the opinion of the Court of Appeals did not provide any details regarding those statements to allow me to determine whether either of the aforementioned exceptions were applicable. Presumably, this was because the court was so sure that they didn't apply. Why? Well, according to the court,
Ohio case law shows that, often, statements made by victims of crimes may be introduced as present sense impressions or excited utterances if they were made while the victim “was in fear and under the stress of a startling event * * * and were not the product of reflective thought.”...However, in the instant case, the nature of, and circumstances surrounding, defendant's statements to the police "indicate lack of trustworthiness" and undermine the purpose of the rule against hearsay. We find the case before us similar to State v. Watkins,...in which the Tenth District Court of Appeals held that the "statement of a suspect who has slashed three people with a knife, made several hours after the incident, can hardly be deemed to be a trustworthy statement for the purposes of affording it an exception to the hearsay rule. The admissibility of such a statement would be a clear avoidance of the hearsay rule."
Now, maybe it is implied in this holding that the defendant's statement in Bunch were several hours after the incident, but, again, there court provided no clear timeframe. Instead, it seems clear to me that the court is saying that exculpatory statements by criminal defendants can never qualify as excited utterances. I'm not sure that I agree with such a holding even in a garden variety criminal case, but I certainly disagree with it in a self-defense case.
In Bunch, the defendant claimed self-defense. His claim was thus that he was the (or at least, a) victim, pushing the "victim" because the "victim" came at him with knives. And it is not like this was a completely meritless claim. As noted, the Court of Appeals recognized that the facts at trial established that the victim had a knife in each hand before the defendant pushed him. This being the case, why should the court have treated the defendant any differently than the alleged victim of a crime who is not a criminal defendant?
March 4, 2010
The Underlying Theme: Court Of Appeals Of Tennessee Doesn't Require Deposition's Disclosure Despite Rule 705
The expert may testify in terms of opinion or inference and give reasons without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
A defendant's expert offers opinion testimony after testifying that she read an otherwise inadmissible deposition along with other material provided to her in order to understand what happened in the case. Should that expert be required to disclose the contents of that deposition on cross-examination. I say "yes." In its recent opinion in Melton v. BNSF Ry. Co., 2010 WL 597457 (Tenn.Ct.App. 2010), the Court of Appeals of Tennessee said "no."
On July 11, 2006, Ronald Melton...was struck by a rail car in the BNSF Tennessee Yard and died as a result of his injuries. At the time of his death, Mr. Melton was employed by...BNSF Railway Company...as a “carman.” Mr. Melton and his co-worker, John Carnell...had been instructed to locate and repair a rail car with a bent pin lifter. The car needing repair was located on track 301, a protected track....Mr. Melton and Mr. Carnell went to track 2051...(“Track 51”) to look for the rail car needing repair. The parties dispute whether Pat Vaiden..., a Leadman for BNSF and Mr. Melton's supervisor, sent Mr. Melton and Mr. Carnell to Track 51 or Track 301.
Track 51 is a “bad order” track, where cars needing repair are sent. The rail cars on track 51 are “humped” onto the track-that is they are moved down an incline onto track 51, passing through “retarders,” which reduce the speed, and then roll freely until they are stopped by the force of gravity or until they come into contact with another car. The section of track 51 at issue is located in an area of the yard that is sloped on either side and referred to as the “bowl.”
Mr. Melton drove a BNSF road truck to locate the rail car needing repair. He parked the road truck between track 301 and track 51 with the rear of the road truck facing south. Two cars were coupled... together on track 51, rail car AOK-181556 (“AOK”) and rail car FURX-824206 (“FURX”), adjacent to where Mr. Melton parked the road truck. There were several other rail cars north of these two coupled rail cars. Upon exiting the road car, Mr. Melton told Mr. Carnell to be careful as track 51 was a “live” track. Mr. Melton and Mr. Carnell then walked in a northerly direction up track 51, looking for the rail car needing repair. When they could not find it, they decided to return to their truck to call Mr. Vaiden for more information. Upon reaching the truck, Mr. Melton went towards the driver's side and Mr. Carnell went towards the passenger side. After the two parted, Mr. Carnell saw a rail car approaching from the south on track 51 and yelled to warn Mr. Melton. The car Mr. Carnell saw was CEFX-30498 (“CEFX”), which had been humped onto track 51. CEFX collided with FURX causing FURX and AOK to move forward. AOK struck Mr. Melton, causing his injuries. The parties dispute where exactly Mr. Melton was in relation to his road truck and the track when he was struck.
Foster Peterson was an expert hired by BNSF after the accident to do an investigation and was eventually deposed; he did not testify at trial and his deposition was not introduced into evidence. Dr. Elaine Serina, however, did offer expert opinion testimony for BNSF. And, at one point in her testimony, "Dr. Serina did testify that she read the Peterson deposition along with other material provided to her in order to understand what happened in the case." Later, though,
Mrs. Melton's counsel actually asked Dr. Serina, “Isn't it true, Dr. Serina, that you had to rely upon the basic investigative facts that Foster Peterson provided, because you did not have any of your own?” Dr. Serina responded that she reviewed it, but did not rely on it for her opinion, indicating that her knowledge of the facts in the deposition was not necessary for her to form her opinion. As Dr. Serina stated, her opinions were based on the injuries to Mr. Melton, the geometry of the rail car and the body dimensions of Mr. Melton. In fact, Dr. Serina testified that she did not even receive the deposition at issue until after she wrote her report.
According to the trial court, Dr. Serina was then required to disclose the contents of that deposition on cross-examination, but the Court of Appeals of Tennessee disagreed, finding that
While we do not want to create a situation where an expert may simply deny that he relied on material provided to him in forming his opinion in order to curtail cross-examination, there must be some indication that the material upon which cross-examination is sought provides, at least in part, the underlying facts and data upon which the expert's opinion is based. In this case, there is simply no indication that any material from the Peterson deposition, while read, underlies Dr. Serina's opinion. Therefore, we find that cross examination based on the Peterson deposition was improper.
I think, though, that the court created the very situation that it was trying to avoid. Dr. Serina clearly testified that she read the Peterson deposition (and other material) to understand what happened in the case. This being the case, how could the court find that the Peterson deposition did not underly her expert opinion? The implication of Dr. Serina's testimony is that, without the deposition, she would have had an incomplete understanding of what happened in the case. This being the case, the deposition clearly underlay her testimony and should have been fair game for cross-examination under Tennessee Rule of Evidence 705.
March 3, 2010
Let's Compromise: Court Reverses Convictions Of Fraternity's Former National Treasurer's Under Rule 408
Federal Rule of Evidence 408 provides:
(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
In United States v. Davis, 2010 WL 668879 (D.C. Cir. 2010), the United States Court of Appeals for the District of Columbia reversed the convictions of a former national treasurer of the Phi Beta Sigma fraternity for bank fraud, first-degree fraud, and first-degree theft based upon the alleged improper admission of evidence in violation of Federal Rule of Evidence 408. I disagree.
The Phi Beta Sigma national treasurer is the elected, unpaid custodian of all fraternity funds. Two main financial controls cabin the treasurer's discretion in dealing with the funds. First, before any expense is paid, the fraternity's executive director, national president, and treasurer must each sign a "voucher" documenting and authorizing the payment. Second, the president and the treasurer must co-sign each fraternity check. The executive director is a full-time employee with an office at the fraternity's headquarters; neither the president nor the treasurer have offices. As a result, each check and voucher must be mailed from one officer to the next until all signatures are gathered.
Davis disregarded these policies during his tenure as national treasurer from 1999 to 2003. Some checks he wrote without obtaining an approved voucher. Many checks contained only Davis's signature. On others Davis also signed or stamped the president's name. In the spring of 2003, the fraternity investigated financial irregularities and learned that Davis had written checks to cash, a violation of another fraternity policy. That June, the fraternity suspended Davis as treasurer.
Thereafter, the new treasurer, Jimmy Hammock,
asked Davis to produce the financial records Davis maintained on the fraternity's behalf. Davis provided some unused checks and financial reports but no cancelled checks or bank statements. Hammock also asked Davis why he had written fraternity checks payable to cash. Davis explained that he transferred the funds to the fraternity's payroll account.
Hammock testified about a second conversation with Davis regarding these checks. Hammock told Davis the fraternity had found $29,000 in checks made out to cash, none of which was deposited in the fraternity's bank account as Davis had claimed. Over an objection based on Rule 408 of the Federal Rules of Evidence, Hammock related the rest of the conversation: “Terry asked-he said ‘Can we just split this $29,000.00 and make this situation just go away?’.... I told him that [the] amount was in excess of a hundred thousand dollars. Terry's statement to me at that point was, ‘I can't afford to pay that amount,’ and then I told him-I said, ‘Terry, if you want to do some-negotiate some kind of settlement, you need to talk to our legal counsel or our international president."
After he was convicted, Davis appealed, claiming that Hammock's testimony was improperly received in violation of Federal Rule of Evidence 408. The United States Court of Appeals for the District of Columbia agreed, finding that
There can be no doubt that Davis offered to compromise a disputed claim. His offer was to split the $29,000 in checks to cash he thought the fraternity had discovered. The claim "was disputed as to validity or amount," FED.R.EVID. 408(a): Davis did not confess to taking the fraternity's money; he said that he had deposited the cash checks into the fraternity's payroll account; and Hammock rejected Davis's explanation....It is also clear that the government intended to introduce Davis's settlement offer in order to prove Davis's guilt, or in the words of Rule 408(a), his "liability."
So, why do I disagree with the court? I don't think that there was a "claim" at the time that Davis made his offer. It is well established that there is only a "claim" for Federal Rule of Evidence 408 purposes when there is an "existing dispute." Cassiano v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1343 (9th Cir. 1987). For instance, in Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365, 1373 (10th Cir. 1977), the Tenth Circuit found that there was not yet a claim when "discussions had not crystallized to the point of threatened litigation, a clear cut-off point...."
At the point when Davis made his offer, there was no litigation, i.e., no lawsuit, and I don't think that there was threatened or anticipated litigation. If and when Davis eventually talked with Phi Beta Sigma's counsel or international president, I think it would be safe to say that there was anticipated litigation. But at the point where Davis and Hammock were just having preliminary conversations, I think that the conversations were just that, preliminary. Therefore, I don't think that the court should have found that Federal Rule of Evidence 408 was applicable.
March 2, 2010
My New Article: Lawyers, Guns, and Money: Why the Tiahrt Amendment’s Ban on the Admissibility of ATF Trace Data in State Court Actions Violates the Commerce Clause and the Tenth Amendment
Everyone today is understandably focused on McDonald v. City of Chicago, in which the Supreme Court could eventually find that the Second Amendment is incorporated through the Fourteenth Amendment's Due Process Clause and/or that the Second Amendment is one of the privileges and immunities of the citizens of the United States. While Chicago's gun laws could be deemed unconstitutional as a result of this opinion, they also spawned Congressional legislation which arguably exceeded Congress' Commerce Clause power and violated the Tenth Amendment. That legislation is the Tiahrt Amendment, and, according to my friend at the Brady Center to Prevent Gun Violence, the issue of whether the Amendment is (un)constitutional is set to become the new big issue after McDonald v. City of Chicago. Here is the abstract of my article on the issue, which you can now download from SSRN:
The Tiahrt Amendment provides in relevant part that ATF trace data "shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court..." This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as well as federal court proceedings, it is defensible, if at all, under Congress’ Commerce Clause power.
President Obama backed away from a campaign promise to repeal the Amendment, but the Amendment appears vulnerable to constitutional attack. In United States v. Lopez, the Supreme Court found that the Gun-Free School Zones Act (GFSZA) of 1990 exceeded Congress' Commerce Clause power because it was directed at criminal conduct, not commerce, and in Printz v. United States, it found that interim provisions in the Brady Handgun Violence Prevention Act violated the Tenth Amendment because they purported to direct state executive officers to participate in the administration of a federally enacted regulatory scheme. This article argues that the state court evidentiary provisions on the Tiahrt Amendment are not meaningfully different from the GFSZA and the interim Brady provisions, rendering them similarly indefensible under the Commerce Clause and the Tenth Amendment.
March 1, 2010
Emergency Urgent?: Supreme Court Grants Cert In Confrontation Clause Case Concerning Preliminary Inquiries of Wounded Citizens
Today, the Supreme Court granted cert in Michigan v. Bryant, where the issue is
Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?
Courtsey of SCOTUSblog, here are the opinion below (from the Supreme Court of Michigan), the petition for certiorari, and the brief in opposition. I am finishing off an article for the spring submission cycle, so I haven't had a chance to look at these documents in much detail, but it seems to me that the above issue is highly dependent on the facts, so I am not sure what type of opinion we should expect to see from the Supreme Court. I will have more on this case over the next few days.
Northwestern Colloquy Publishes Final Version of My Essay, Crossing Over
February 28, 2010
For A Limited Time: Opinion Reveals That Mississippi Courts Once Required Sua Sponte Limiting Instructions After Objection To Character Evidence
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.
As the language of the Rule makes clear, a court only needs to issue a limiting instruction "upon request." As the recent opinion of the Court of Appeals of Mississippi in Lindsey v. State, 2010 WL 615649 (Miss.App. 2010), makes clear, such a request was not always required.
Q: Why are you [at the Walnut Grove Youth Correctional Center]?A: Armed robbery.Q: Armed robbery. How long have you been there?A: Since 2006.Q: And Mr. Dotson was coming around to serve paperwork on you. You said it was an RVR. What does that mean?A: A rule violation report.Q: So you were in trouble when he came to serve you some papers, weren't you?A: Yes, sir.Q: It had something else to do with something else you have been in trouble for besides that shank?By Mr. Smith: Your Honor, I would object to this line [of questioning] as irrelevant. He's here about whether or not he had a shank in his cell and not anything else.By Mr. Thames: He opened the door.By the Court: It's just like in a trial of a case, you cannot mention that a person has committed another crime. He has testified it was a RVR [sic], rule violation report, which is the same principle as not being allowed to introduce evidence of subsequent crime. So your objection is sustained.
After this exchange, defense counsel did not ask for a limiting instruction informing jurors to ignore any testimony related to other acts of misconduct by Lindsey. Nonetheless, after he was convicted, Lindsey appealed, claiming, inter alia, that the court should have issued such an instruction sua sponte.
The Court of Appeals of Mississippi noted that Lindsey relied upon Smith v. State, 656 So.2d 95 (Miss. 1995), in which the Supreme Court of Mississippi found that a trial court has a sua sponte duty to give a limiting instruction after defense counsel objects to character evidence being admitted. The court pointed out, however, that Smith was overruled by Brown v. State, 890 So.2d 901 (Miss. 2004), in which the Mississippi Supremes "abandon[ed] Smith's requirement that a judge issue a sua sponte limiting instruction and return[ed] to the clear language of Rule 105."
So, why do I think that Rule 105 requires a request by counsel? Well, I think that it is not clear whether limiting instructions are a good thing. If a defendant is on trial for a safecracking, evidence of his prior safecracking[s] could be admissible to prove knowledge or modus operandi but would not be admissible to prove propensity/conformity, i.e., "once a safecracker, always a safecracker." But, assuming that the evidence is admissible, is it better for defense counsel to ask for a limiting instruction informing the jury that it is not to use the evidence as it bears upon the defendant's propensity to crack safes, or does this merely highlight this potential use? That's really a decision for defense counsel (and the defendant) to make, which is why (I think) a request is required.