EvidenceProf Blog

Michigan v. Bryant, Part 3

My prior post on Michigan v. Bryant dealt with two aspects of the Court's opinion.  It noted that under the opinion, the Court (1) adopted an objective test for determining whether statements are "testimonial" for Confrontation Clause purposes; and (2) concluded that this test should focus upon the statements and actions of both the interrogator and the declarant.

This post focuses upon three more important aspects of the Court's opinion and how the Court decided that Covington's statements were non-testimonial.

Formality v. Informality

As noted, the Court in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, found that 

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose  of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 

According to the Court in Michigan v. Bryant, the Supreme Court of Michigan erred in taking this language to mean "that the existence vel non of an ongoing emergency is dispositive of the testimonial inquiry." Instead, the Court found that

Another factor the Michigan Supreme Court did not sufficiently account for is the importance of informality in an encounter between a victim and police. Formality is not the sole touchstone of our primary purpose inquiry because, although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to “establish or prove past events potentially relevant to later criminal prosecution,” id., at 822, informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent....The court below, however, too readily dismissed the informality of the circumstances in this case in a single brief footnote and in fact seems to have suggested that the encounter in this case was formal....As we explain further below, the questioning in this case occurred in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion. All of those facts make this case distinguishable from the formal station-house interrogation in Crawford.

Therefore, courts applying the Confrontation Clause (at least to police interrogations) must now consider the formality or informality in encounters between declarants and officers.

Domestic Violence Cases

Respondents in both Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana,

joined by a number of their amici, contend[ed] that the nature of the offenses charged in th[o]se two cases-domestic violence-require[d] greater flexibility in the use of testimonial evidence. This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial.

The Court refused to allow for greater flexibility in domestic violence cases, and many have lamented that this failure has hindered many domestic violence prosecutions. See, e.g., Tom Lininger, Reconceptualizing Confrontation After Davis, 85 Tex. L. Rev. 271, 281 (2006) ("The Supreme Court's recent interpretations of the Confrontation Clause have hindered many categories of prosecutions, but none more significantly than prosecutions of domestic violence.")

This lament is likely to increase with Michigan v. Bryant. According to the Court,

Davis and Hammon involved domestic violence, a known and identified perpetrator, and, in Hammon, a neutralized threat. Because Davis and Hammon were domestic violence cases, we focused only on the threat to the victims and assessed the ongoing emergency from the perspective of whether there was a continuing threat to them....

Domestic violence cases like Davis and Hammon often have a narrower zone of potential victims than cases involving threats to public safety. An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and public may continue.

It is easy to see several courts citing to this language in domestic violence cases to find that victims' statements were testimonial.

Weapon and the Damage Done

Finally, according to the Court in Michigan v. Bryant,

The Michigan Supreme Court also did not appreciate that the duration and scope of an emergency may depend in part on the type of weapon employed. The court relied on Davis and Hammon, in which the assailants used their fists, as controlling the scope of the emergency here, which involved the use of a gun. The problem with that reasoning is clear when considered in light of the assault on Amy Hammon. Hershel Hammon was armed only with his fists when he attacked his wife, so removing Amy to a separate room was sufficient to end the emergency....If Hershel had been reported to be armed with a gun, however, separation by a single household wall might not have been sufficient to end the emergency....

Taking into account the victim's medical state does not, as the Michigan Supreme Court below thought, “rende[r] non-testimonial” “all statements made while the police are questioning a seriously injured complainant.”...The medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. The victim's medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public.

Therefore, courts applying the Confrontation Clause (at least to victim statements) must now consider the weapon used by the accused and the medical condition of the declarant when making the subject statements.

Court's Conclusion

According to the court, an objective analysis revealed that the officers' interrogation of Covington was nontestimonial. Covington was seriously injured, meaning that his statements were likely either reflexive and without purpose or directed toward resolution of his medical injury. Covington did not give officers a motive for the shooting or indicate that it was merely a private dispute, meaning that the primary purpose of the interrogation was to track down Bryant and prevent him from harming Covington or others. The fact that Bryant had a gun increased the possibility of such harm and lent further support to this purpose. Finally, with regard to the (in)formality of the interrogation, the Court found that

This situation is more similar, though not identical, to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford. As the officers' trial testimony reflects, the situation was fluid and somewhat confused: the officers arrived at different times; apparently each, upon arrival, asked Covington “what happened?”; and, contrary to the dissent's portrayal,...they did not conduct a structured interrogation....The informality suggests that the interrogators' primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements.

My Conclusion: "Testimonial" Under the Confrontation Clause & the Public Safety Exception: The Same Thing?

Michigan v. Bryant really reads to me like the Supreme Court (re)applying the analysis of the Miranda public safety exception to the Confrontation Clause. In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court found that officers do not need to give Miranda warnings when their questions are "necessary to secure their own safety or the safety of the public." According to the Court in Quarles, "We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect." (emphasis added). And, in Davis v. Washington, the Court cited to Quarles, noting that

Just as, for Fifth Amendment purposes, “police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect,” New York v. Quarles, 467 U.S. 649, 658-659, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial.

With Michigan v. Bryant, the Court seems to be saying that "testimonial" means the same in both contexts. In adopting an objective test, the Court found an objective approach "consistent with our rejection of subjective inquiries in other areas of criminal law" and cited to Quarles as one example. Later, in finding the victim's medical condition relevant, the Court basically found that "testimonial" means the same in both contexts, concluding that

Trial courts can determine in the first instance when any transition from nontestimonial to testimonial occurs,^FN10 and exclude “the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.”

FN10. Recognizing the evolutionary potential of a situation in criminal law is not unique to the Confrontation Clause context. We noted in Davis that “[j]ust as, for Fifth Amendment purposes, ‘police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect, ... trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial.” 547 U.S., at 829 (quoting New York v. Quarles, 467 U.S., at 658-659).

Finally, in finding that the Confrontation Clause test should focus upon the statements and actions of both the interrogator and the declarant, the Court concluded in Michigan v. Bryant that

The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession. See New York v. Quarles, 467 U.S. 649, 656, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (“Undoubtedly most police officers [deciding whether to give Miranda warnings in a possible emergency situation] would act out of a host of different, instinctive, and largely unverifiable motives-their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect”)

Moreover, while the Court didn't mention it, obviously by considering the weapon used by the accused and the zone of potential victims in Confrontation Clause cases, courts will be using the analysis from public safety exception cases.

I will probably post about the dissenting opinions, including Justice Scalia's "confrontational" dissent, tomorrow. In the meantime, you can check out Orin Kerr's post about Scalia's dissent over at The Volokh Conspiracy.

-CM

Michigan v. Bryant, Part 2

As noted in my prior post, the Supreme Court decided Michigan v. Bryant today. You can review the full facts of the case in the Court's opinion, but the basics are that police found Anthony Covington in a gas station parking lot, with Covington claiming that he had (1) been shot by Richard Bryant outside Bryant's house, and then (2) driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial. After Bryant was convicted, he appealed, claiming that the introduction of Covington's statements violated the Confrontation Clause, and the Supreme Court of Michigan agreed with him.

As I have previously noted,

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose  of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 

In Michigan v. Bryant, the United States Supreme Court had to decide whether Covington's statements were testimonial or nontestimonial under this "primary" purpose test. Finding that they were nontestimonial, the Court reversed the opinion of the Supreme Court of Michigan and found no Confrontation Clause violation. Why, and what does the Court's opinion tell us about the Confrontation Clause going forward? Below is part one of my analysis. I wil post part two this afternoon after teaching a morning class.

Objective, Not Subjective

Well, first, one question that divided the courts in the wake of Crawford v. Washington was whether courts should apply a subjective or objective test in determining whether statements are testimonial. In other words, should courts consider whether a defendant and/or police officer subjectively believed that their encounter was producing testimonial statements, or should courts merely conduct an objective analysis of the circumstances of an encounter and the statements and actions of the parties to it? The Supreme Court in Michigan v. Bryant adopted the objective approach, finding that

it provides the most accurate assessment of the “primary purpose of the interrogation.” The circumstances in which an encounter occurs— e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.

The Court went on to note that

This approach is consistent with our rejection of subjective inquiries in other areas of criminal law. See, e.g., Whren v. United States,  517 U. S. 806, 813 (1996) (refusing to evaluate Fourth Amendment reasonableness subjectively in light of the officers’ actual motivations); New York v. Quarles,  467 U. S. 649, 655–656, and n. 6 (1984) (holding that an officer’s subjective motivation is irrelevant to determining the applicability of the public safety exception to Miranda v. Arizona, 384 U. S. 436 (1966)); Rhode Island v. Innis, 446 U. S. 291, 301–302 (1980) (holding that a police officer’s subjective intent to obtain incriminatory statements is not relevant to determining whether an interrogation has occurred).

A Focus Upon Both Declarant & Interrogator

Crawford v. Washington also divided courts on the issue of whether the statements and actions of only the interrogator, only the declarant, or both the interrogator and declarant are relevant in determining whether statements are testimonial. The Supreme Court in Michigan v. Bryant adopted the latter approach, finding that "the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation." According to the Court,

In many instances, the primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers. To give an extreme example, if the police say to a victim, “Tell us who did this to you so that we can arrest and prosecute them,” the victim’s response that “Rick did it,” appears purely accusatory because by virtue of the phrasing of the question, the victim necessarily has prosecution in mind when she answers.

The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession....

Victims are also likely to have mixed motives when they make statements to the police. During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant. A victim may want the attacker to be incapacitated temporarily or rehabilitated. Alternatively, a severely injured victim may have no purpose at all in answering questions posed; the answers may be simply reflexive. The victim’s injuries could be so debilitating as to prevent her from thinking sufficiently clearly to understand whether her statements are for the purpose of addressing an ongoing emergency or for the purpose of future prosecution. Taking into account a victim’s injuries does not transform this objective inquiry into a subjective one. The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim—circumstances that prominently include the victim’s physical state.

-CM

Supreme Court Issues Opinion In Michigan v. Bryant

Today, the Supreme Court issued its opinion in Michigan v. Bryant, its latest Confrontation Clause decision in the wake of Crawford v. Washington. Here is the start of the syllabus for the opinion:

Michigan police dispatched to a gas station parking lot found Anthony Covington mortally wounded. Covington told them that he had been shot by respondent Bryant outside Bryant’s house and had then driven himself to the lot. At trial, which occurred before Crawford v. Washington, 541 U. S. 36, and Davis v. Washington, 547 U. S. 813, were decided, the officers testified about what Covington said. Bryant was found guilty of, inter alia, second-degree murder. Ultimately, the Michigan Supreme Court reversed his conviction, holding that the Sixth Amendment’s Confrontation Clause, as explained in Crawford and Davis, rendered Covington’s statements inadmissible testimonial hearsay.

Held: Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because theyhad a “primary purpose . . . to enable police assistance to meet an ongoing emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant's trial did not violate the Confrontation Clause.

I will have more analysis later in the day. Hat tip to my colleague Tim O'Neill for the link

-CM

Conspiracy Theory: Court Of Appeals Of Arizona Finds Statement "After" Burglary Qualified As Co-Conspirator Admission

Like its federal counterpart, Arizona Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

So, let's say that a defendant is charged with burglary, and the prosecution calls one of his co-conspirators as a cooperating witness to testify that after the burglary another co-conspirator "made a comment...that the homeowners were inside the closet praying." Is this a statement made during the course of an in furtherance of the conspiracy to burglarize the house? According to the recent opinion of the Court of Appeals of Arizona, Division One, in State v. Martinez, 2011 WL 662434 (Ariz.App. Div. 1 2011), the answer is "yes."

In Martinez, the facts were as stated above, with Gilbert Martinez, Sr. and others being indicted on twenty-three counts arising from a series of seven burglaries and home invasions between December 2005 and March 2006, including the burglary after/during which the above statement was allegedly made. During that burglary, one of Martinez's co-conspirators allegedly ordered the victims into their closet and told them to remain there for twenty minutes and not call the police or they would be shot.

After he was convicted, Martinez appealed, claiming, inter alia, that the subject statement was inadmissible Arizona Rule of Evidence 801(d)(2)(E) and that its admission violated the Confrontation Clause. The Court of Appeals of Arizona, Division One, disagreed, concluding that

at the time the statement was made, the crimes against this couple had not yet ended. The crimes ended only after the co-conspirators fled the scene of the home invasion and withdrew money using [one of the victim]'s PIN and ATM card. The statement that the homeowners were in the closet praying served to assure the other co-conspirators that the homeowners were not likely to be calling police immediately, and accordingly that the co-conspirators had time to escape and withdraw money from the victims' bank account at the ATM. The court did not err by finding that the statement was made by a co-conspirator in the course of and in furtherance of the conspiracy.

-CM

Silence, Please!: Court Of Appeals Of Wisconsin Finds Court Can Preclude Attorney From Sharing Prior Testimony With Future Witnesses

Wisconsin Stat. Section 905.15(3) provides that

The judge or circuit court commissioner may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended. 

But does this Section give courts the power to prevent an attorney from discussing with a nonparty witness the testimony of other witnesses? According to the recent opinion of the Court of Appeals of Wisconsin in State v. Copeland, 2011 WL 659381 (Wis.App. 2011), the answer is "yes."

In Copeland, Derek Copeland was convicted by a jury of one count of first-degree sexual assault of a child. At trial, Copeland was represented by Peter Thompson, and, after he was convicted, Copeland filed a postconviction motion alleging ineffective representation by Thompson and prosecutorial misconduct in that the State failed to provide exculpatory evidence. The circuit court thereafter held a 

hearing at which time Thompson, along with all other witnesses subpoenaed, was sequestered.

Thompson had yet to testify when the court adjourned the hearing until January 6, 2009. Copeland's postconviction attorney moved to clarify the scope of the sequestration order to specify that the prosecutor was not to discuss with Thompson the testimony given at the hearing that day. The prosecutor opposed the motion, questioning whether a court could prohibit an attorney from talking with a potential witness in preparation for that witness's testimony....

In a written decision, the circuit court denied Copeland's motion to prohibit the prosecutor from discussing hearing testimony with Thompson. The court concluded that it lacked the authority to issue an order limiting communications between a sequestered witness and a prosecutor.

Copeland thereafter appealed, claiming that Wisconsin Stat. Section 905.15(3) gave the court power to issue such an order. The Court of Appeals of Wisconsin agreed, finding that although the language of the Section

does not explicitly reference communications between witnesses and attorneys, the only reasonable reading of the statute is that the court may restrict those communications when necessary to prevent indirect communications, sharing one witness's testimony with another....There is no practical difference between an attorney sharing the testimony of a witness with another witness who has yet to testify and the same two witnesses communicating directly with each other. The result is the same: the second witness receives information about the first witness's testimony. The second witness might then tailor his or her testimony to that of the first witness, potentially frustrating the fact finder's ability to discern the truth. Without the authority to restrict attorney-witness communication in these circumstances, courts would be powerless to stop noncomplying attorneys from circumventing sequestration orders.

-CM

Without Limits: Court Of Appeals Of Indiana Finds No Problem With Limiting Instruction Given Before Introduction Of Evidence

Like its federal counterpart, Indiana Rule of Evidence 105 provides that

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 admonish the jury accordingly.

But can a party only ask for a limiting instruction under Rule 105 only after the opposing party has introduced evidence admissible for one purpose but inadmissible for another, or can it ask for, and receive, such an instruction before such evidence is introduced? According to the recent opinion of the Court of Appeals of Indiana in State v. Velasquez, 2011 WL 601216 (Ind.App. 2011), the answer is that there is no need to wait.

In Velasquez,  Andy J. Velasquez, II was charged with child molesting as a class A felony and child molesting as a class C felony based upon acts allegedly committed against his stepdaughter G.S. Before trial, the State filed notices of intent to introduce evidence pursuant to Indiana Rule of Evidence 404(b) that Velasquez disciplined G.S. by striking her with a stick, made threats to G.S.'s mother, and made threats to G.S. The trial court held a hearing on this notice and deemed this character evidence admissible at trial.

Thereafter, at trial, before the prosecution introduced this character evidence, defense counsel asked for and the following limiting instruction: 

Evidence may be presented to you of incidents unrelated to the offenses charged. These incidents are only to be considered as they describe the relationship between G.[S]., and [Velasquez]. You may not consider it for any other reason. Specifically, you may not consider it as being evidence of [Velasquez]'s character, nor may it be considered as evidence that [Velasquez] acted in conformity with the acts charged.

The State subsequently presented the character evidence, and the jury later found Velasquez not guilty, prompting the State's appeal. And, according to the State, Rule 105 "allows for a limiting instruction or admonishment only at the time the evidence is offered and admitted." 

The Court of Appeals of Indiana disagreed, finding that 

We do not read Evidence Rule 105  as allowing an admonishment or limiting instruction only at the time evidence is offered. Instead, the purpose of the rule is "to enable a party to request a limiting admonishment at the time the evidence is offered, rather than waiting until the jury instructions."...Thus, a party may seek a limiting instruction or admonishment either prior to trial or at the time evidence is admitted....

In this case, Velasquez's counsel sought a limiting instruction prior to the presentation of evidence. While the more common practice may have been to admonish the jury at the time the character evidence was offered, and a limiting instruction is "usually" given after the presentation of evidence...we cannot say that the trial court in this case abused its discretion in giving a preliminary limiting instruction.

According to the court, the issuance of the instruction was not premature because the State had already secured a ruling that the character evidence at issue was admissible. Finally, the court rejected the State's argument the the instruction was confusing; instead, it applied the general presumption that jurors are presumed to follow courts' instructions.

-CM

 

Hitting On The Moonshine: Court of Appeals Of Kentucky Finds Evidence Defendant Drank Moonshine Inadmissible Under Rule 403

Like its federal counterpart, Kentucky Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

So, assume that a plaintiff sues a defendant for assault and seeks to present evidence that the defendant admitted to drinking "moonshine" before the alleged assault. Should the plaintiff be able to present evidence relating to the defendant's ingestion of "moonshine," or should the trial court exclude such evidence under Rule 403? According to the recent opinion of the Court of Appeals of Kentucky in Wilkerson v. Williams, 2011 WL 559218 (Ky.App. 2011), there was no problem with the trial court excluding such evidence. I disagree.

In Williams,

Nathan [Wilkerson] claim[ed] that he was punched in the face by Aaron Z. Williams at a party hosted by Aaron's father, Jeffrey L. Williams. Alcoholic drinks were served at the party. According to the Wilkersons, Aaron, who was thirty-one years of age at the time, was visibly intoxicated at the party and admitted to them that he was consuming moonshine. The Wilkersons filed suit on June 21, 2007, alleging that Aaron had committed assault and negligent assault against Nathan....[Nathan's wife] Keisha asserted a claim for loss of consortium.

At trial, the court granted the Williams's motion in limine to exclude the Wilkersons' testimony that Aaron had admitted to drinking moonshine, finding that the prejudicial effect of the word "moonshine" would outweigh any probative value. The court did, though, allow for the admission of evidence that alcohol was served and consumed at the party. The jury eventually found that Nathan had not been struck by Aaron, and the trial court entered a judgment dismissing the Wilkersons' claims with prejudice.

The Wilkersons thereafter appealed, claiming, inter alia, that the trial court erred by excluding their testimony that Aaron had admitted to drinking moonshine. The Court of Appeals of Kentucky disagreed, finding that

KRE 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury[.]" "It is within the discretion of the trial court to determine whether the probative value of proffered evidence is substantially outweighed by undue prejudice."...The precise type of alcohol Aaron was consuming was not relevant to the jury's task of determining whether he struck Nathan or not. The evidence would have served only to prejudice the jury against...Jeffrey. The trial court's ruling that the moonshine testimony was more prejudicial than probative was fully in accord with KRE 403 and will not be disturbed on appeal.

I wish that the court had provided more analysis of the issue. Presumably, Jeffrey and other individuals who drank moonshine testified at trial. And presumably, they were impeached based upon their consumption of alcohol. And undoubtedly, the amount of alcohol that they drunk was relevant to their credibility. It is easy to see why the jury would discount the testimony of a witness who drank four beers in an hour more than the testimony of a witness who drank two beers in an hour.

But what about the witness who drinks moonshine? Well, I guess that could go either way. I'm guessing that some moonshine contains less alcohol than your average alcoholic beverage, but I'm betting that most moonshine contains more alcohol. Therefore, learning that Jeffery drank moonshine seems very relevant to his credibility.

Conversely, what is the unfair prejudice? Sure, making moonshine is illegal, but Jeffrey wasn't charged with the crime and the action against him didn't deal with the making of the moonshine. I thus struggle to see how the probative value of the proposed evidence was substantially outweighed by the danger of unfair prejudice.

-CM

Take Good Care Of My Baby: Court Of Appeals Of Kentucky Deems Will Related Statements Inadmissible Under Rule 803(3)

Like its federal counterpart, Kentucky Rule of Evidence 803(3) provides an exception to the rule against hearsay for 

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

So, let's say that after executing a will, the testator tells (1) a friend how he had taken care of his wife and how she had always taken care of him; and (2) his reverend that his wife would be taken care of. Are these statements admissible under Rule 803(3)? According to the recent opinion of the Court of Appeals of Kentucky in Kemper v. Kemper, 2011 WL 557708 (Ky.App. 2011), the answer is "no." I disagree.

In Kemper, in 1986, W.S. executed a joint will with his wife, Norma Jean Kemper, who later passed away. Thereafter,

On September 7, 1993, W.S., then seventy-three years of age, married thirty-five-year-old Bonnie Lee Maiden. As a result of the marriage between W.S. and Bonnie, familial relations between W.S., his two sons, and their families became seriously strained to the point of an alleged physical altercation between Bonnie and W.S.'s daughter-in-law. It also was alleged that Bonnie discouraged and restricted Paul and David's access to W.S. Sometime in 2000, Bonnie relocated W.S. from Carroll County to Cumberland County, Kentucky. After the move, W.S. was diagnosed with prostate cancer. In January 2006, W.S. was hospitalized. His cancer had metastasized causing compression of his spinal cord and resulting in paralysis below the waist. On January 21, 2006, while still hospitalized, W.S. executed another will leaving the bulk of his estate to Bonnie; Paul and David were each devised a mere one-sixth interest in a tract of real property. W.S. died on June 27, 2006.

Subsequently,

On December 8, 2006, Paul and David filed a complaint in Cumberland Circuit Court seeking to set aside the January 21, 2006, will due to lack of W.S.'s mental capacity to execute same and due to Bonnie's undue influence over W.S. In August of 2009, the case was tried in the Cumberland Circuit Court. The jury found that W.S. possessed the requisite mental capacity to execute the January 21, 2006, will but that Bonnie exerted undue influence over W.S. in the drafting of the will. By judgment entered August 27, 2009, the circuit court set aside the January 21, 2006, will.

Bonnie thereafter appealed, claiming, inter alia, that the circuit court erred in precluding her from admitting the statements mentioned in the introduction to this post. According to Bonnie, these statements should have been admissible under Kentucky Rule of Evidence 803(3). The Court of Appeals of Kentucky disagreed, concluding that

A statement by W.S. that he had taken care of Bonnie is vague and ambiguous; moreover, such statement does not directly prove the contents of W.S.'s will, his mental condition at the time of executing the will, or his susceptibility to external influences at the time of executing the will. Taken together, we cannot conclude that the trial court abused its discretion by excluding the above testimonies.

I disagree. The language of Rule 803(3) makes clear that it allows for the admission of statements of memory or belief to prove the declarant's state of mind as it related to the execution of his will. And W.S.'s statements clearly were admitted for this purpose, i.e., to prove that his state of mind when he executed his will was that he wanted to take care of Bonnie. Now, the Court of Appeals of Kentucky was certainly correct that these statements did not directly prove the contents of the will or disprove his susceptibility to external influence. But these factors merely should have gone to the weight of the evidence, not the admissibility of the statements.

-CM

The Hole Dang Thing: Supreme Court Of Rhode Island Finds Calling Of Defendant By Nickname Not Hearsay

Like its federal counterpart, Rhode Island Rule of Evidence 801(c) defines hearsay as

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

So, let's say that an eyewitness to a crime testifies that a man with the nickname "Dang" committed a crime. Can the prosecution call a witness to testify that people use that nickname to refer to the defendant charged with the crime. Is the use of that nickname hearsay? According to the recent opinion of the Supreme Court of Rhode Island in State v. Johnson, 2011 WL 576082 (R.I. 2011), the answer is "no."

In Johnson, the facts were as stated above, with Kendall Johnson being charged with (1) assault with a dangerous weapon (namely, a firearm); (2) discharging a firearm while committing a crime of violence, causing injury; (3) assault with intent to rob; and (4) carrying a pistol without a license. Yolanda Reed, an eyewitness to the crime unequivocally identified the perpetrator as "Kendall Johnson" or "Dang," despite the fact that he was wearing a ski mask that covered much of his face. According to Reed, "despite the mask, she recognized Mr. Johnson by his walk, his voice, his eyes, and his clothes."

Thereafter, a police officer testified that he knew Johnson's nickname to be "Dang" in part because Johnson responded when other people called him "Dang." The Supreme Court of Rhode Island disagreed, finding that

a multitude of courts have held that evidence about a person's nickname, in this context, does not constitute hearsay because the use of such a name does not rise to the level of an assertion. See United States v. Allen, 960 F.2d 1055, 1059 (9th Cir. 1992) ("One virtually always learns a name-even one's own-by being told what it is. * * * Nevertheless, evidence as to names is commonly regarded as either not hearsay because it is not introduced to prove the truth of the matter asserted, * * * or so imbued with reliability because of the name's common usage as to make any objection frivolous."); United States v. Weeks, 919 F.2d 248, 251 (5th Cir. 1990) (holding that a prison warden's testimony that guards and inmates used a nickname to refer to the defendant was merely a report of “non-assertive oral conduct and was therefore not hearsay”); Commonwealth v. Gabbidon, 494 N.E.2d 1317, 1320 (Mass. 1986) (determining that witness's testimony about observing others call the defendant several nicknames did not constitute hearsay because it "was not admitted for the truth of any fact asserted outside of court"). We are persuaded by the logic of these holdings and concur with it.

Of course, as the court also noted, Reed also identified Johnson by his actual name and characteristics, meaning that even if the statements about his nickname were hearsay, their admission was harmless error.

-CM

Thanks For The Opportunity: Court Of Appeals Of Ohio Finds Deficient Cross-Examination Doesn't Preclude Application Of Rule 804(b)(1)

Similar to its federal counterpart, Ohio Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for 

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given at a preliminary hearing must satisfy the right to confrontation and exhibit indicia of reliability.

So, let's say that a witness for the prosecution testifies at a preliminary hearing, and the prosecution seeks to present that testimony at trial without having that witness testify again. Will the fact that defense counsel engaged in a deficient cross-examination of that witness present the testimony from being introduced under this "former testimony" exception. According to the recent opinion of the Court of Appeals of Ohio, Tenth District, in State v. Sidibeh, 2011 WL 553140 (Ohio App. 10 Dist. 2011), the answer is "no" because Rule 804(b)(1) only requires the opportunity and similar motive to develop the testimony.

In Sidibeh,  Hassan Sidibeh was convicted of offenses pertaining to an October 12, 2008 home invasion. The invasion happened at a home in which Raheem Carter lived, and, at a 

bindover hearing, Raheem testified that [Sidibeh], [Kacey] Brown, and [Robert] Vann committed the home invasion around 10:45 p.m. He recognized [Sidibeh] when the incident occurred, and, during the bindover hearing, he identified [Sidibeh] as a participant of the home invasion. [Sodobeh]'s defense counsel, who was different from the one at trial, cross-examined Raheem. During cross-examination, Raheem testified that he had seen a photograph of [Sidibeh] on a social networking website before the home invasion. He said that he had not seen [Sidibeh] "in person" before the incident, however.

Later, Raheem was unavailable to testify at trial because he had died in an incident unrelated to the home invasion, so the prosecution introduced his testimony from the bindover hearing pursuant to Ohio Rule of Evidence 804(b)(1).

After he was convicted, Sidibeh appealed, claiming, inter alia, that Raheem's former testimony was inadmissible under Rule 804(b)(1) because his attorney at the bindover hearing was deficient in that he failed to conduct a sufficiently rigorous cross-examination of Raheem. The Court of Appeals of Ohio disagreed, finding that Rule 804(b)(1)

is not concerned with "the actual cross-examination itself."...Instead, the rule requires that a party have an opportunity for cross-examination....Likewise, a defendant's constitutional right to confront witnesses "guarantees only an opportunity for cross-examination."...Appellant was given an opportunity to cross-examine Raheem, and we need not consider appellant's challenges to the adequacy of that cross-examination.

-CM

¿Hablas Español?: Supreme Court Of Indiana Finds No Problem With Admission Of Translation Under Best Evidence Rule

Like its federal counterpart, Indiana Rule of Evidence 1002, its Best Evidence Rule, provides in relevant part that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute. 

So, let's say that a confidential informant surreptitiously records Spanish-language drug deals between the defendant and himself. Can the prosecution admit English language translations of these recordings without introducing the original recordings at trial? According to the recent opinion of the Supreme Court of Indiana in Romo v. State, 2011 WL 446285 (Ind. 2011), the answer is "yes"...sort of.

In Romo, the facts were as stated above. Before trial, the prosecution provided the defendant with the original recordings and the English language translations to the defendant. At trial, however, the prosecution only admitted the English language translations.

After he was convicted, the defendant appealed, claiming, inter alia, that the prosecution was required to introduce the original recordings pursuant to Indiana Rule of Evidence 1002. In addressing this argument, the Supreme Court of Indiana noted that in three prior opinions it had viewed "the function of transcripts of recordings purely as an aid to assist a jury's understanding of the actual recording, and Evidence Rule 1002 requires the original of a recording, if available, to be submitted in evidence as proof of the contents of the recording." That said, the court then noted that in two of these prior opinions left

open the possibility of a more robust role for transcripts where the recording is inaudible or indistinct. For juries without appropriate foreign language comprehension, audio recordings of foreign language speakers may fall into this category and require special consideration.

The Indiana Supremes then pointed out that the Fifth, Seventh, and Eighth Circuit had each reached this conclusion and agreed with them, finding that

Here, under the reasonable assumption that the jury did not comprehend Spanish, the original recording, being solely in Spanish, would not likely convey to the jury the content of the recorded conversations. Applying the rule to limit the evidence of content to the original Spanish recordings would not serve the purpose of the rule because it could not prove any content to the jury. We thus hold that the admission into evidence of foreign language translation transcripts is not governed by Evidence Rule 1002....We hold that English language translation transcripts of statements recorded in a foreign language, if otherwise admissible, may properly be considered as substantive evidence.

That said, the court did

determine that it is generally the better practice to play such foreign language recordings to the jury upon a reasonable request by a party. Expediency undoubtedly results when a jury is spared from listening to foreign-language recordings, and practical usefulness is served by providing them instead with reliable English translations or translation transcripts. But we value even higher the capacity of jurors to apply their sensing and intuition faculties in reaching their determinations.

-CM

Dead Cert: Supreme Court Of Mississippi Finds Death Certificate Listing Time Of Death Admissible Under Rule 803(9)

Like its federal counterpart, Mississippi Rule of Evidence 803(9) provides an exception to the rule against hearsay for

Records or data compilations of vital statistics, in any form, if the report thereof was made to a public officer pursuant to requirements of law.

The recent opinion of the Supreme Court of Mississippi in Birkhead v. State, 2011 WL 539056 (Miss. 2011), gives me my first chance to address either version of Rule 803(9) and how the Rule differs from the common law in at least some states.

In Birkhead, Richard Earl Birkhead was convicted of the capital murder of Walter Lanier while engaged in a robbery. At trial, when the State tried to introduce a certified copy of Lanier's death certificate, defense counsel objected that

On the report they have the hour of injury as being 3:38 a.m. I don't know that they have established that. They have the hour of death as being 3:50 a.m. I don't think they have established that. We will object to it being introduced.

The court overruled this objection, and this ruling later formed one of the grounds for Birkhead's appeal. In addressing this appeal, the Supreme Court of Mississippi first noted that the certified copy of the death certificate was self-authenticating under Mississippi Rule of Evidence 902(4). The court then acknowledged that the death certificate contained hearsay but found that it was admissible under Mississippi Rule of Evidence 803(9).

Birkhead, however, cited the pre-Rules case of Flowers v. State, 243 So.2d 564 (Miss. 1971), for the proposition that "death certificates could be introduced into evidence but used only to show 'the physical cause of death.'" But according to the court, Flowers was irrelevant because "Rule 803(9) includes no Flowers-like qualification."

-CM

Follow The Leader: Ninth Circuit Finds Statements Of Customer Confusion Admissible Under State Of Mind Exception To Rule Against Hearsay

Customers call a company complaining that they were confused because they visited what they thought was the company's website but could not find any information about the company. It turns out that an "Internet entrepreneur" acquired a domain name with the company's name and created a website that consisted only of a few lines of code redirecting visitors to a different website with search result links, including links to the company's competitors. The company sues the individual, claiming that he violated the Lanham Act, the Anticybersquatting Consumer Protection Act, a consumer protection act, and common law. Should the company be able to present evidence about the customer complaints that they received? According to the recent opinion of the Ninth Circuit in Lahoti v. Vericheck, Inc., 2011 WL 540541 (9th Cir. 2011), the answer is "yes."

In Lahoti, the facts were as stated above with Vericheck being the company and David Lahoti being the defendant who registered www.vericheck.com.  At trial, to prove actual confusion,

two witnesses testified on behalf of Vericheck that there ha[d] been significant confusion as a result of the www.vericheck.com website. The evidence show[ed] that Vericheck and its independent sales offices and resellers receive[d] a substantial number of telephone calls from confused customers who could not find information about Vericheck on www.vericheck.com.

After the district court found that Lahotu committed the alleged violations, Lahoti appealed, claiming, inter alia, that this testimony was improperly received. The Ninth Circuit disagreed, finding that while this testimony referenced hearsay statements regarding customer confusion, those statements were admissible under Federal Rule of Evidence 803(3), which provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

As support for this conclusion, the Ninth Circuit cited to Conversive, Inc. v. Conversagent, Inc., 1079, 1091 (C.D. Cal. 2006), for the proposition that the "majority of circuit courts that have considered this issue have...found that such evidence is admissible."

-CM

10 Years Have Got Behind You: Court of Appeals Of North Carolina Finds No Error With Admission Of Conviction Under Rule 609(b)

Like its federal counterpart, North Carolina Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than 10 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.

As Rule 609(b) and the recent opinion of the Court of Appeals of North Carolina in State v. Bortone, 2011 WL 532136 (N.C.App. 2011), make clear this ten-year rule is based upon the date of conviction or the date of release, whichever is the later date.

In Bortone, John Bortone was convicted of two counts of injury to real property. After he was convicted, Bortone appealed, claiming, inter alia, that the trial court erred in permitting the State to impeach him with a conviction that was more than 10 years old in violation of North Carolina Rule of Evidence 609(b). Bortone's trial was held in March 1999, and during cross-examination, the State asked defendant: "Do you recall pleading guilty on April 19th of 1999, to felony forgery of deeds or wills?" Bortone confirmed that he had done so.

It turned out, however, that Bortone was actually convicted on October 19, 1998. He therefore appealed, claiming that the conviction did not satisfy the balancing test set forth in North Carolina Rule of Evidence 609(b). But according to the court, one of the problems for Bortone was that he provided no evidence of when he was released from incarceration, which presumably was the later of the two dates. Therefore, the court did not award Bortone relief.

-CM

(Un)Masked and Anonymous: Supreme Court Of Arizona Finds Anonymous Call Admissible Under Rule 804(b)(3)

Similar to its federal counterpart, Arizona Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

As I have previously noted on this blog, courts typically have found that anonymous statements cannot qualify as statements against interest under Rule 804(b)(3). The recent opinion of the Supreme Court of Arizona is Arizona v. Machado, 2011 WL 519752 (Ariz. 2011), is an exception to this general practice.

In Machado, Louis Machado was convicted of the murder of Rebecca R.  Machado was actually was not first suspect considered by the police; rather,

Almost a month after the shooting, Rebecca's family received a telephone call. The caller did not identify himself, but said he knew the family through Rebecca. He related details of the shooting that were not publicly known and said he had accidentally killed Rebecca because he was mad at her and she would not do what he wanted. The family members who heard the call said that the caller sounded like a "cold, cocky, and well-spoken" young white male. Relying on this call, police obtained a warrant for a sample of [the voice of Jonathan H.].

Jonathan H. was Rebecca's classmate "and the boyfriend of her best friend, Laura. He had threatened to kill Rebecca and Laura two weeks earlier for attempting to resolve a dispute between him and Laura's ex-boyfriend

After Machado was convicted, he appealed, claiming, inter alia, that the trial court erred by precluding him from admitting into evidence the anonymous phone call allegedly made by Jonathan H. His appeal eventually reached the Supreme Court of Arizona, which noted that

An anonymous statement would not typically qualify as a statement against penal interest under Rule 804(b)(3). By concealing his identity, the declarant seeks to protect himself from the consequences of admitting to a crime. Such a statement ordinarily would not tend to expose the declarant to criminal liability, as Rule 804(b)(3) requires.

That said, the Arizona Supremes then pointed out that

both in its supplemental brief and at oral argument, the State conceded that the anonymous telephone call in this case was a statement against penal interest by the declarant. Presumably, the State did so because it obtained a warrant for Jonathan's voice sample on the basis of the call, making it somewhat difficult to argue that the call did not tend to expose the declarant to criminal liability.

The court then indicated that it Jonathan H. was unavailable at Machado's trial, meaning that call was admissible as long as there were "corroborating circumstances clearly indicate the trustworthiness of the statement."  And it found that there were, concluding that

The caller stated that before the shooting, he waited by a white minivan parked near a neighbor's house. At the time of the crime, a white minivan was in fact parked nearby. The caller also stated that he saw Rebecca come home in a white Ford Escort. This detail was also correct, and the Escort had only recently been purchased. Neither of the facts described by the caller had been reported in the media.

-CM

D.C. Cab: DDC Denies Motion For Pretrial Hearing On Admissibility Of Co-Conspirator Admissions In Cab Corruption Case

Federal Rule of Evidence 801(d)(2)(E) provides that 

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

So, let's say that the prosecution wants to admit alleged co-conspirator admissions against a defendant. Should the court allow the prosecution to introduce these alleged admissions only after it establishes that the declarant was a co-conspirator of the defendant and that the statements were made during the course and in furtherance of the conspiracy? Or should the prosecution be able to introduce these alleged admissions contingent upon its subsequent introduction of evidence sufficient to satisfy the Rule's requirements, with the court declaring a mistrial or instructing the jury to disregard the statements if such evidence is not presented? According to the recent opinion of the United States District Court for the District of Columbia in United States v. Loza, 2011 WL 340290 (D.D.C. 2011), the answer is "no." I disagree, at least in cases in which the court only instructs the jury after it determines the the alleged admissions are inadmissible.

In Loza, Ted Loza, a former chief of staff of member of Council of the District of Columbia, was charged in connection with his alleged involvement in a conspiracy whose goals included corruptly obtaining taxicab company licenses and influencing legislation. Loza thereafter moved for a pretrial hearing on the admissibility of alleged co-conspirator admissions, alleging that at least some of the subject statements were not made as part of a conspiracy in which he participated.

The United States District Court for the District of Columbia disagreed. It did acknowledge that "[t]he court of appeals has suggested in the past that it is "the better practice" for the trial court to determine the admissibility of statements offered pursuant to Rule 801(d)(2)(E) before the statements are presented to the jury. That said, the court then went on to note that

Nevertheless, the court of appeals acknowledged in the same opinion that "it is just impractical in many cases for a court to comply strictly with the preferred order of a proof," and as a consequence, "the court is vested with considerable discretion to admit particular items of evidence 'subject to connection.'"...In this district it is common practice for a court to avoid a "disfavored 'mini-trial' of the evidence" by deferring its determination regarding the admissibility of alleged co-conspirator statements until after the close of the government's case. 

And, according to the court, "If, after the close of the government's case, 'or at any other critical point,'the court determines that the government has failed to prove the necessary factual predicate for admissibility, the court may either declare a mistrial or strike and instruct the jury to disregard any inadmissible statements."

The court then decided to follow the "common practice" and denied Loza's motion for a pretrial hearing. And I have no problem with that ruling, assuming that the court was prepared to declare a mistrial in the event that the statements were later determined to be inadmissible. But I disagree with the position that a court cure any problems created by the erroneous admission of co-conspirator admissions, at least in some cases, by instructing the jury to ignore them. 

As the Supreme Court concluded in Bruton v. United States, 391 U.S. 123 (1968), courts generally presume that jurors follow instructions, but that trust can only go so far. Therefore, under the Bruton doctrine, jurors in joint trials are presumed not to have followed an instruction that the confession of a non-testifying co-defendant that implicates other defendants is only evidence of the co-defendant's guilt. I think that the same should apply to co-conspirator admissions that are erroneously admitted. These admissions establish that there was a conspiracy and (often) that the defendant was involved in it. Simply telling jurors after they have heard such powerfully incriminatory evidence that they should ignore what they have heard seems to be a flight of fancy that courts simply cannot take.

-CM

Blue Valentine: Court Of Appeals Of Mississippi Finds Rule 408 Doesn't Cover Divorce Property Settlement Agreement

Similar to its federal counterpart, Mississippi Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

But does Rule 408 preclude the admission of a property settlement agreement in a divorce agreement? According to the recent opinion of the Court of Appeals of Mississippi in Wilson v. Wilson, 2011 WL 386814 (Miss.App. 2011), the answer is "no."

In Wilson, Kelly Wilson

filed a complaint for divorce against Tara [Wilson] on the grounds of habitual cruel and inhuman treatment and uncondoned adultery or, in the alternative, irreconcilable differences....The chancellor granted the divorce on the ground of irreconcilable differences....They let the chancery court decide which party should have custody of their child, decide the division of marital property, determine the disposition of their marital home and who should pay the outstanding debts on the home, and determine who should make the guardian ad litem (GAL) payments.

The chancellor thereafter awarded full custody of the child to Kelly Wilson.

The chancellor did not award Tara any alimony, and she was not required to pay child support. The couple had previously entered into a property-settlement agreement, which was found to be a binding contract between the parties as to the property-division portion.

Tara Wilson thereafter appealed, claiming, inter alia, "that the chancellor erred in admitting the property-settlement agreement into evidence as an exhibit over her objection that it violated Mississippi Rule of Evidence 408." The Court of Appeals of Mississippi disagreed, concluding that because "this property-settlement agreement is a binding contract between the parties concerning an agreed equitable division of their marital property, it is not a settlement or an offer to settle. Thus, Rule 408 is not applicable, and this issue is without merit."

-CM

The Sound Of Silence: Court Of Appeals of Iowa Precludes Jury Impeachment After Jury Finds Guilt Based On Defendant's Choice Not To Testify

Similar to its federal counterpart, Iowa Rule of Evidence 5.606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything 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, let's say that a defendant exercises his Fifth Amendment right not to testify at trial, and jurors improperly use his failure to testify as evidence of his guilt. Can this jury misconduct form the proper predicate for jury impeachment under Rule 5.606(b)? According to the recent opinion of the Court of Appeals of Iowa in State v. Blair, 2011 WL 441968 (Iowa.App. 2011), the answer is "no."

In Blair, Clark Allen Blair was convicted of indecent exposure. Blair thereafter moved for a new trial, submitting a jury affidavit indicating that jurors took his failure to testify as evidence of his guilt. Specifically, the affidavit stated that

the deciding factor among the panel was that Mr. Blair did not testify, thus he must be guilty. If a person didn't commit the crime, they would want to tell their side of the story. Given this is such a moral crime, a person couldn't not get up and say "no, I didn't do this."

The trial court denied Blair's motion, prompting his appeals to the Court of Appeals of Iowa, where he claimed "that the juror affidavit complied with Iowa Rule of [Evidence] 5.606(b)'s requirement that the evidence be extraneous prejudicial information, because it was a consideration of something lacking rather than a consideration of the evidence presented." The court noted that this was an issue of first impression in Iowa but noted that the Eighth Circuit had interpreted Federal Rule of Evidence 606(b) as precluding such testimony:

In United States v. Rodriguez, 116 F.3d 1225, 1226-27 (8th Cir. 1997), the eighth circuit held that jurors were prohibited by rule 606(b)  from testifying that they discussed the defendant's failure to testify as part of their deliberation. The court found that the jury did not learn of the fact that the defendant did not testify from some outside communication, but learned it as part of the trial....While the court acknowledged that the jury should not have discussed the defendant's silence, the information was not extraneous to the trial and thus, the jury members are prohibited from testifying about it....

The Court of Appeals agreed with this reasoning and thus deemed the jury affidavit inadmissible.

-CM

Self Preservation Instinct: Washington Court Finds Luce Doctrine Applies To Rule 404(b) Evidence

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. But what about if the trial court determines that character evidence will be admissible in the event that a defendant testifies at trial and raises a certain defense. Does the defendant need to so testify to preserve that issue for appeal? According to the recent opinion of the Court of Appeals of Washington, Division 2, in State v. Phillips, 2011 WL 396479 (Wash.App. Div.2 2011), the answer is "yes."

In Phillips, Kimberly Phillips was charged with eight counts of first degree theft. Before trial,

the State filed an ER 404(b) motion to admit evidence of Phillips's past forgery and theft crimes against elderly and vulnerable victims in the 1980s. The trial court ruled that although Phillips's past convictions would not be admissible for impeachment, they were admissible to rebut the material assertion that the victims consented to give her the money. The trial court ruled that this evidence was admissible under ER 404(b).

Thereafter, Phillips did not testify at trial and did not raise the defense that the victims consented to give her money, and the State did not introduce evidence of her prior convictions. After she convicted, Phillips appealed, claiming, inter alia, that the trial court erred in deeming her prior convictions admissible in the event that she testified. The Court of Appeals disagreed, finding that

Division I of this court addressed a similar question in State v. Mezquia....There, the trial court ruled that evidence of the defendant's prior acts would be admissible under ER404(b), but only if the defendant raised the issue of identity....The defendant decided not to call the witness who would raise the issue, and the ER 404(b) evidence was never admitted....The Mezquia court held that because the defendant failed to put on the witness and the ER 404(b) evidence was not admitted, the defendant had not preserved the issue for appeal....

The Mezquia court analogized the situation to Luce....In Luce, the Court decided that a defendant must testify to preserve an objection to the admissibility of evidence under FED.R.EVID. 609(a)....The Court held that a defendant's testimony was necessary to create a sufficient record on appeal, reasoning that without the defendant's testimony, a reviewing court cannot say whether the State would have actually offered the offending evidence and cannot decide how prejudicial that evidence would have been....The Court held that this rule would discourage defendants from attempting to "plant" reversible error in the proceedings.... 

The court then found that this reasoning applied to the case before it, concluding that

Here, as in Mezquia, the trial court ruled that ER 404(b) evidence was admissible only if the defendant put on a particular defense....Because Phillips did not testify, we cannot predict exactly what would have been admitted at trial. Additionally, whether the convictions would have been used for an invalid ER 404(b) purpose is speculative. And allowing Phillips to challenge the admissibility of her convictions under ER 404(b)  without testifying would arguably allow her to plant an error in her trial as the Supreme Court warned against in Luce....We adopt Mezquia and hold that because Phillips has not preserved this issue for appeal, we will not consider it.

-CM

Not A Helping Hand: DDC Refuses To Appoint Expert To Help Party Under Rule 706(a)

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.

And, as the recent opinion of the United States District Court for the District of Columbia in Carranza v. Fraas, 2011 WL 380164 (D.D.C. 2011), makes clear, judges uses Rule 706(a) to help themselves gain a better understanding of complex issues at trial, not to assist one of the litigating parties.

In Fraas, 

The plaintiffs [we]re female farmers who hired the defendant, attorney Phillip Fraas, to represent them in a civil rights discrimination claim against the United States Department of Agriculture ("USDA"). After settlement negotiations with the USDA failed, the plaintiffs commenced [an] action against the defendant for legal malpractice and breach of fiduciary duty, claiming that the defendant failed to exercise reasonable skill, care and diligence while representing them in their civil rights claim. The plaintiffs subsequently filed a motion requesting a court-appointed expert witness, which th[e] court denied.

The plaintiffs thereafter moved for reconsideration of that ruling. According to the United States District Court for the District of Columbia, the plaintiffs were, in effect, asking the court to appoint expert so that they could satisfy their burden on proving the standard of care that Fraas owed to them an violated.  And, according to the court, such an argument did not support an expert appointment under Federal Rule of Evidence 706(a) because "[c]ourts do not...appoint expert witnesses for the purpose of assisting a litigating party." Instead, "[t]he decision to appoint an expert witness lies within the discretion of the court and 'is to be informed by such factors as the complexity of the matters to be determined and the fact-finder's need for a neutral, expert view.'" 

-CM