EvidenceProf Blog

Jurors Behaving Badly: Supreme Court Of Louisiana Addresses Odd Claim Of Jury Misconduct

Similar to its federal counterpart, Louisiana Rule of Evidence 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury's attention.  Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

Usually, a non-juror is the source of extraneous prejudicial information. As the recent opinion of the Supreme Court of Louisiana in State v. Ingram, 2011 WL 10885566 (La. 2011), makes clear, however, in exceptional circumstances, jurors themselves may be the source of extraneous prejudicial outside information.

In Ingram,

The state charged defendant by grand jury indictment with second degree murder...after he shot his ex-wife, Kimberly Ingram, in his home on October 18, 2006. Defendant had three children with Kimberly, and they had been married for 14 years before the marriage dissolved and they divorced. At the time of the shooting, defendant was married to Nancy Ingram, who was in the home at the time of the fatal confrontation between defendant and his ex-wife. After trial by jury, defendant was convicted of manslaughter.

After the verdict was entered, the jury foreman submitted an affidavit, which

stated that during recesses as the trial proceeded, Juror No. 8 had informed other jurors on the panel that she suspected her boyfriend was having an affair and was taking advantage of her service on the jury to visit his paramour. Acting on her suspicions, Juror No. 8 had armed herself with a baseball bat over a noon lunch recess during the evidentiary portions of the trial and “made an unauthorized entry into the house of the alleged paramour.” She found her boyfriend in bed with the woman. Juror No. 8 told the woman to remain still and listen to her. She also informed her boyfriend that she would deal with him later. The confrontation apparently ended at that point. The jury foreman further explained in his affidavit that Juror No. 8 "acknowledged to him and others that she had placed herself in the same position as Kimberly Ingram, as both had entered homes without authority." Finally, the foreman alleged that the incident allowed the other jurors to have "the benefit of a 'recreation' of the crime, and more importantly, allowed them to use this evidence in its deliberation to compare the juror's position at the house she entered to that of Kim Ingram; i .e., the juror lived; Ms. Ingram did not."

The defendant used this affidavit to move for an evidentiary hearing in jury misconduct, and the trial court denied the motion, but the court of appeals reversed, concluding that the

case offered 'a strikingly atypical' example of juror misconduct because 'a juror allegedly committed a crime during the course of the trial, which crime was reminiscent of the facts of the case being tried,' and then related the incident to the rest of the jurors, thereby calling the jury's fact-finding process into serious question....The panel therefore concluded that it was worth breaching the jury shield rule of La.C.E. art 606(B) to establish the full facts of the incident and the extent to which it became the focus of attention during deliberations, although ultimately defendant might not be entitled to any relief, because the costs of conducting such a hearing appeared far less than the costs to public confidence in the criminal justice system if the hearing were not conducted.

The Supreme Court of Louisiana, however, disagreed, finding, inter alia, that

the trial court correctly ruled that even as alleged, the conduct of Juror No. 8 did not give rise to a reasonable possibility that the information she conveyed contributed significantly to the jury's verdict. Reasonable jurors would not have understood Juror No . 8's conduct as an attempt to recreate the crime charged against defendant, as she had clearly acted on her own impulses in her own private life. Thus..., the juror's conduct did not represent an experiment in an attempt to test evidentiary propositions put at issue during the trial and did not implicate defendant's Sixth Amendment right of confrontation and cross-examination, or invite the other jurors to look beyond the evidence presented at trial for evidence on which to base their verdict. Nor did her information convey extra-record facts about defendant which might have prejudiced him, or touch upon esoteric matters beyond the ken of the other jurors' common understanding and experience.

-CM

High-Tech View, Take 2: Some Footage Of VR Simulation Evidence In Action

On Tuesday, I posted an entry about the interesting new article, High-Tech View: The Use of Immersive Virtual Environments in Jury Trials, 93 Marq. L. Rev. 1073 (2010), by Carrie Leonetti, an Assistant Professor at the University of Oregon School of Law, and Jeremy Bailenson, an Associate Professor of Communication at Stanford University. Professor Bailenson has now sent me this useful link to a news story showing some footage from the use of VR simulation evidence at the annual "tech trial" put on by Professor Fred Lederer at the William and Mary Law School. If memory serves me, this was from the 2002 tech trial put on by Courtroom 21, and I drafted the motion in limine regarding the admissibility of the VR evidence as I was then a student of Professor Lederer in his Legal Technology class. You can access the footage by clicking on this link.

-CM

18 And Life: 9th Circuit Finds No Problem In Precluding Impeachment Via 18 Year-Old False Statement Conviction

Federal Rule of Evidence 609(b) provides that

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

From my research in the area, it seems that courts tend to admit convictions under Rule 609(b) only if (1) they are for crimes of dishonesty or false statement, and (2) they occurred not that much more than ten years before the present trial. In United States v. Swift, 2011 WL 1097756 (9th Cir. 2011), the appellant satisfied the first of these requirements, but not the second.

In Swift, Stephen Swift appealed from his convictions for (2) the unlawful transport of hazardous waste without a manifest, and (2) the unlawful storage of hazardous waste without a permit. One of the grounds for Swift's appeal was that the district court precluded him from impeaching a witness for the prosecution with his prior conviction for making a false statement. The Ninth Circuit easily turned this argument aside, concluding that  "[a]lthough the witness' conviction was for making a false statement, it occurred eighteen years before the time of trial. Its probative value does not substantially outweigh its prejudicial effect. See Fed.R.Evid. 609(b)."

Although it would have been nice if the court engaged in a more extensive analysis, its conclusion is consistent with the Advisory Committee's Note to Federal Rule of Evidence 609, which provides that "It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances."

-CM

Article Of Interest: Carrie Leonetti & Jeremy Bailenson's High-Tech View: The Use of Immersive Virtual Environments in Jury Trials

Last year, I posted an entry about Andrew M. Perlman's The Legal Ethics of Metadata Mining, in which Professor Perlman concluded that "[t]he best approach to metadata mining is to analogize it to the review of inadvertently disclosed documents more generally [because] [t]he two issues are conceptually indistinguishable." I agreed with Professor Perlman's analysis of the issue and found that courts should should similarly analogize compelled forensic imaging to the compelled disclosure of documents covered by attorney-client privilege when the adverse party claims that they are subject to the crime-fraud exception.

In their recent article, High-Tech View: The Use of Immersive Virtual Environments in Jury Trials, 93 Marq. L. Rev. 1073 (2010), Carrie Leonetti, an Assistant Professor at the University of Oregon School of Law, and Jeremy Bailenson, an Associate Professor of Communication at Stanford University, make a similar argument with regard to immersive-virtual environment (IVE) evidence. Specifically, they claim that IVE evidence is analogous to other representative media and should be treated the same as its predecessors. As the authors note: 

The portrayal of scene evidence has followed a somewhat linear progression: live viewing, drawings, black-and-white photographs, color photographs, video recording, and, now, VR simulation. There is no reason why IVE technology should be subjected to any different or more strenuous threshold for admissibility than any other representational medium representational medium.

Here's how they get there:

First of all, what exactly is IVE? As the authors note,

An IVE is an artificial, interactive, computer-created scene or “world” within which a user can immerse herself. IVEs combine high-resolution, stereoscopic projection and three-dimensional computer graphics to create a complete sense of presence in a virtual environment. IVEs consist of immersion in an artificial environment in which the users feel just as  perceptually surrounded as they do in "reality." IVEs produce a simulated yet interactive reality in real time, which can support spatialized sound and virtual touch. In an IVE, a participant's awareness of physical self is diminished or lost by being surrounded in the engrossing total artificial environment. Common examples of IVEs are certain computer games, training programs such as flight and driving simulators, and immersive and interactive art installations.

The authors later note that "there has simply never been anything like [IVE evidence] done in a jury trial before," but they then point out that "permitting trial jurors to enter an IVE is not without precedent." Instead,

Juries are often permitted to visit the scenes of crimes and accidents in the middle of trial, subject to the discretion of the trial judge, even when the scenes that the juries view are no longer in the same state that they were in at the time of the events in question. Generally, the scene has been altered through the process of crime scene investigation and preservation, accident reconstruction, or merely the passage of time. It has been cleaned up, and crucial evidence has been removed for laboratory analysis....Nonetheless, despite these distortions, the common law recognizes that the probative value of an on-site view of the scene outweighs the potential unfair prejudice or jury confusion that may result from an imperfect facsimile of the scene and leaves to argument by the parties the weight that the jury should place on the imperfections. Juries have been permitted to view a scene by going to the scene of the crime or accident and investigating it themselves, if doing so would aid them in reaching a correct result, as long as the scene remains in a substantially similar condition as it was in at the time of the alleged crime or accident.

Indeed, "[a] few courts have permitted jury views that were 'interactive' in nature, such as a California court allowing jurors to observe a demonstration of the functioning of a streetcar's door and a court in West Virginia allowing jurors to view a power saw in operation. The authors then go on to argue that

If anything, an IVE created to simulate the scene of a crime or accident so that the jury can virtually view it would be a more accurate way to reconstruct the scene as it was at the time of the events in question, since the IVE could simulate the time of day, presence of the physical evidence, and so on, in a way that the actual scene, stripped of much of its material evidence prior to jury viewing, could not. Perhaps the greatest danger presented by a live view of a crime or accident scene is the risk that extraneous, irrelevant, or unfairly prejudicial information would reach the jury, either in the form of communication or comments by one of those present at the scene, or inappropriate sights seen by jurors. Because IVEs can be designed with "gaze-directed" steering techniques and "locked" fields of view, which prevent lateral head movements, they can restrict jurors to a literal "three-dimensional tour" of the scene, ensuring that each juror gets the exact same optic flow as any other, as opposed to a live scene view, where each juror can look anywhere that she wants in the scene, and not all jurors leave having viewed the same scene.

I think that this is a great point, and it speaks directly to my post yesterday about a juror's unauthorized visit to a crime scene and the defendant's claim that the lighting conditions might have been different at the time of the visit than at the time of the crime. With IVE evidence, litigants reduce the possibility that jurors make judgments based upon viewing an altered crime scene, a growing concern in the era of the Google mistrial. It is easy to imagine that jurors increasingly are using Google Street View to view crime scenes to disastrous results, and IVE evidence can correct these misimpressions.

The authors also place VRE at the (current) end of a linear progression, leading to the block quote in the introduction to this post. According to the authors,

One of the original rationales for the admissibility of crime scene photographs into evidence was that they were an improved but functional equivalent of a crime scene viewing by the jury.  The case of Mardoff v.  State  is an example. Mardoff was convicted of the murder of his wife by stabbing her twenty times in bed.  On appeal, Mardoff challenged the introduction into evidence of gruesome photographs of his dead wife, with the weapon still embedded in her body.  In the photographs she appeared as she did when she was discovered by the police when they entered the crime scene on the night of the murder: propped up against the wall between the foot of the bed and a bookcase standing nearby.  Four of the photographs were taken of the room in which the murder was committed and the body found before the body was moved, and the fifth was taken without any rearrangement of any of the objects in the room except that the body had been lifted from the wall, exposing the hilt of a Chinese dagger protruding from the victim's back, to show how the weapon that caused the death had been plunged into the victim's back and left there. Rejecting Mardoff's challenge, the Florida Supreme Court explained:

The value of a pictorial representation of the scene of a crime is obvious. From the very nature of the crime of homicide it is not possible for the trial jury to view the premises before physical appearance of the scene is changed by removal of the victim's body. It is common knowledge that the descriptions given by witnesses, however conscientious, who have observed the body of a murdered person and the surroundings will vary often to a surprising degree. No better way has so far been devised to show the scene of a homicide than a photograph taken before the body of the deceased and the objects near or around it have been disturbed.

The admissibility of such evidence must be determined by the trial judge after an inquiry as to whether the objects appearing in the picture are in the same position as when the crime was discovered to preclude fabrication of testimony, for a picture of the reconstruction of the crime would be harmful in the same degree that the true representation would be helpful to the jury in comprehending the real conditions of the place where the crime was committed.

This rationale seems equally, if not more, applicable to the use of VR technology to simulate immersive scenes for juries.

I agree with the authors and strongly recommend the article to readers. I asked Professor Leonetti what led her to write the article, and she responded:

On my end, I originally wanted to take on the project as a law-reform project, to answer the question of what changes would have to be made in the rules of evidence to permit a jury to enter an IVE.  As I started to ponder that question, I realized that no changes would be necessary, which I thought was a publication-worthy insight in itself.  As I started to research the history of the rules about authenticity, etc., I was stricken by IVE's place on the historical continuum -- from sketches to black/white photos to color photos to digital photos/video to computer animations/simulations -- and realized that my instinctive resistance to the admissibility of IVE evidence came from the same place from which the opponents (who now look pretty out of touch in retrospect, I think) of the use of those then-new technologies in court drew theirs.  So, in addition to being interested in the technical aspects of how a party (or a court or an expert) could use an IVE with a jury, I became interested in the larger epistemological issues about what the rules of evidence are supposed to do and how they fit with new technologies.

(Professor Bailenson has now sent me this useful link to a news story showing some footage from the use of VR simulation evidence at the annual "tech trial" put on by Professor Fred Lederer at the William and Mary Law School)

-CM

Crime Scene Investigation: PA Court Affirms Robbery Convictions Despite Unauthorized Juror Crime Scene Visit

Similar to its federal counterpart, Pennsylvania Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict, including a sentencing verdict pursuant to 42 Pa.C.S.A. §  9711 (relating to capital sentencing proceedings), 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 in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

Under Rule 606(b), it is clear that a juror's unauthorized visit to the crime scene uncovers prejudicial facts not of the record (or extraneous prejudicial information. But should such a visit lead to a new trial? According to the recent opinion of the Superior Court of Pennsylvania in Commonwealth v. Pope, 2011 WL 480533 (Pa.Super. 2011), the answer is "no," at least if the layout of the crime scene was not a central issue at trial.

In Pope, Henry Pope was convicted of three counts of attempted theft, three counts of robbery causing serious bodily injury, and three counts of robbery causing bodily injury. Pope thereafter filed a motion for a new trial based upon defense counsel's post-verdict conversation with a juror, wherein the juror indicated that she went to the scene of the crime at the end of the first day of deliberations. Specifically, Pope claimed that the layout of the scene was significant in his case because of the possibility of misidentification, and he hypothesized that the juror was going to the scene to clarify questions she had regarding the victims' ability to identify the perpetrator.

The court disagreed, finding that

the record reflects that the layout of the scene was not a central issue. As indicated by the trial court, testimony presented at trial indicates that the scene of the crime was nothing more than a typical Philadelphia street....Although Pope cross-examined the witnesses and presented argument in his closing about the possibility of misidentification, it was unrelated to the physical aspects of the scene of the crime.... Rather, his closing argument on the misidentification defense centered almost exclusively on police officers' failure to follow proper procedure and how dark it was at that time of the robbery....At the subsequent argument on his motion for a new trial, Pope presented no facts or evidence before the trial court that the unauthorized visit to the scene of the crime provided the juror with information she did not have before her at trial or that the visit was emotional or inflammatory.

Pope also claimed that the trial court erred by failing to call the juror to testify regarding her visit to the scene of the crime. The court again disagreed, finding that

the law is clear that a juror cannot testify regarding what transpired during deliberations or regarding his or her own subjective reasoning process....This is commonly known as the "no impeachment rule."...An exception to the "no impeachment rule" exists, allowing a juror to testify "only as to the existence of the outside influence, but not as to the effect this outside influence may have had on deliberations."...This exception provides no relief for Pope, since the outside influence at issue (i.e., one or more jurors visited the scene of the crime) is not in question.

But here's my question: What was the purpose of the visit? Even if I disagree with their logic, I can understand why courts would not want jurors to be able to testify that they were leaning toward a "not guilty" verdict before visiting the crime scene but then changed their minds after visiting the crime scene. But I don't see anything in Rule 606(b) that prevents jurors from testifying about their reason for visiting the crime scene. Did the juror just want to see the layout of the crime scene? If so, I don't see why Pope would be entitled to reversal.

But let's say that the juror would have testified that (s)he visited the crime scene to see how dark it was at the time of the crime. Obviously, it gets darker earlier at certain times of the year than at other times of the year. So, let's say that the crime took place during a time of year when it gets darker earlier in the day than the time of year when the juror visited the crime scene. Even without the juror testifying about the effect that the visit had on the verdict, I think that the court could conclude that Pope was entitled to a new trial because part of his defense was that misidentification was possible based upon the darkness of the crime scene.

-CM 

Sign Here: 5th Circuit Finds District Court Improperly Excluded Signed Prior Inconsistent Statements

Federal Rule of Evidence 613 provides that witnesses can be impeached through prior inconsistent statements. Meanwhile, Federal Rule of Evidence 901(a) provides that 

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, let's say that a party wants to impeach a witness through an alleged prior inconsistent which was signed by the witness but which the witness claims is inaccurate. Has the prior statement been properly authenticated? According to the recent opinion of the Fifth Circuit in United States v. Isiwele, 2011 WL 768883 (5th Cir. 2011), the answer is "yes."

In Isiwele, Enitan Isiwele was convicted on multiple counts of health care fraud and conspiracy to pay kickbacks in connection with a scheme to fraudulently bill Medicare/Medicaid for power wheelchairs. After three witnesses for the prosecution testified that, despite Isiwele's claims, they did not lose their powerchairs during Hurricane Rita, Isiwele sought to impeach them through signed statements which stated:

I, [name of beneficiary/witness], hereby request the services of Galaxy Medical Supply, LLC to assist me in obtaining a replacement for my equipment, a(an) POWERCHAIR, which was lost in [H]urricane RITA.

By signing the attached Release of Information and Authorization for Payment of Benefits Form, I hereby declare that the said equipment was lost as a direct result of the hurricane and authorize us [sic] to take necessary action to assist me in securing the replacement equipment.

Outside the presence of the jury, each of these witnesses identified his or her signature on one of these statements but claimed they had not previously owned power wheelchairs that were lost in Hurricane Rita. Thereafter, "[t]he district court refused to admit these documents into evidence on the ground that they had not been properly authenticated because the witnesses did not absolutely adopt the substance of the documents." 

After he was convicted, Isiwele appealed, claiming, inter alia, that this decision was erroneous. The Fifth Circuit agreed, finding that

"[W]e do not require conclusive proof of authenticity before allowing the admission of disputed evidence."...Rule 901(a) "merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be."..."Once the proponent has made the requisite showing, the trial court should admit the exhibit...in spite of any issues the opponent has raised about flaws in the authentication. Such flaws go to the weight of the evidence instead of its admissibility."

That said, the Fifth Circuit found that the error in excluding these statements was harmless and affirmed Isiwele's conviction.

-CM

Upon Request: D.C. Court Of Appeals Notes Request Required For Rule 615 Sequestration

Federal Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

D.C. does not have codified rules of evidence, but it has adopted Rule 615 in its case law. And, as the language of Rule 615 and the recent opinion of the D.C. Court of Appeals in Marshall v. United States, 2011 WL 1044594 (D.C. 2011) (Download Marshall), make clear Rule 615 is not self-executing but instead requires the request of a party.

In Marshall, Bruce E. Marshall was convicted of aggravated assault while armed, mayhem while armed, and related offenses. After he was convicted, Marshall appealed, claiming, inter alia, that two witnesses for the prosecution were present in the courtroom during a pretrial hearing at which a detective testified about the case; he argued that the prosecutor representing the government at the pretrial hearing should have recognized the two men as government witnesses and taken steps to keep them out of the courtroom.

The D.C. Court of Appeals found that Marshall's argument was governed by Federal Rule of Evidence 615. And, according to the court, "[t]he rule on witnesses...is not self-executing. The federal courts have consistently interpreted Rule 615 of the Federal Rules of Evidence to require a party to request the sequestration of witnesses 'in order to claim any protection' from the rule." The court thereafter explained the rationale for this requirement, noting that

Particularly in a busy urban court system like ours, in which trial courtrooms are often filled with people unfamiliar to the presiding judge, the parties are in a far superior position to know whether anyone present in the courtroom is a potential witness in the case and to bring the issue to the judge's attention. Indeed, only through the entry of an order invoking the rule on witnesses can a trial judge exercise his or her discretion to set the specific contours of the rule as necessary to effectuate its purpose in light of the circumstances presented in a particular case. The rule on witnesses thus is in effect only if the trial court, acting on its own or at the request of a party, has affirmatively invoked the rule.

Therefore, because Marshall did not request sequestration, his appeal was without merit.

-CM

 

The Truth Of The Matter: Court Of Appeals Of Ohio Precludes Declarant Impeachment Under Rule 806

Like its federal counterpart, Ohio Rule of Evidence 806(A) provides that

When a hearsay statement, or a statement defined in Evid.R. 801(D)(2), (c), (d), or (e), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence that would be admissible for those purposes if declarant had testified as a witness.

As Rule 806 and the recent opinion of the Court of Appeals of Ohio, Tenth District, in Columbus v. Montgomery, 2011 WL 983080 (Ohio App. 10 Dist. 2011), make clear, however, it only allows for the impeachment of a hearsay declarant, meaning that a party cannot impeach the credibility of a declarant whose statement is not being offered at trial to prove the truth of the matter asserted.

In Montgomery, Cloris Montgomery was convicted of obstructing official business. The business that Montgomery allegedly obstructed was the police department's investigation into alleged acts of child abuse. The police department began investigating those acts based upon statements made by Cradecia Williams, who did not testify at Montgomery's trial. A police officer did, however, testify to Williams' statements.

After she was convicted, Montgomery appealed, claiming, inter alia, that the trial court erred by precluding her from impeaching Williams pursuant to Ohio Rule of Evidence 806(A) through her prior conviction for forgery. The Court of Appeals of Ohio, Tenth District, disagreed, concluding that Williams' statements were not introduced to prove the truth of the matter asserted but instead to explain an officer's conduct while investigating a crime. Therefore, WIlliams was not a hearsay declarant and could not have been impeached under Ohio Rule of Evidence 806(A).

-CM

Article Of Interest: Marc McAllister's The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence

A defendant is on trial. A prospective eyewitness does not want to testify against the defendant for fear of reprisal. But the witness might be willing to testify under one condition: He be allowed to testify while wearing a disguise. Should this witness be able to wear sunglasses, a hat, a wig, and/or some other disguise while on the witness stand, or would such a disguise violate the defendant's rights under the Confrontation Clause? Until 2004, this question was answered pursuant to the Supreme Court's opinion in Maryland v. Craig, 497 U.S. 836 (1990), which set forth a two-part test to govern potential exceptions to the Clause's face-to-face requirement. According to Craig, "a physical, face-to-face confrontation [may be dispensed with] at trial [1] only where denial of such confrontation is necessary to further an important public policy and [2] only where the reliability of the testimony is otherwise assured."

In Crawford v. Washington, 541 U.S. 36 (2004), however, the Supreme Court condemned judicial reliability assessments, concluding that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." So, did Crawford kill Craig? And, if it did, does that mean that courts can no longer allow witnesses to testify in disguise based upon judicial reliability assessments?

According to the recent article, The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence, 58 Drake L. Rev. 481 (2010), by Marc C. McAllister, an Assistant Professor at the Florida Coastal School of Law, the answer is "not necessarily." You see, in Crawford, the court overruled the "adequate indicia of reliability" test from Ohio v. Roberts, 448 U.S. 56 (1980), noting in the process that

The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.

Professor McAllister's proposal is that the prosecution should be able to present the testimony of disguised witnesses if the defendant caused the prospective witness' fear of testifying without one. According to Professor McAllister,

Consistent with recent Confrontation Clause jurisprudence, the defendant should forfeit his confrontation right in...cases...in which the prosecution presents sufficient evidence to establish a legitimate fear of the defendant. Under this proposal, the defendant's right would be forfeited not because of some asserted governmental necessity, but rather because the defendant's intentional misconduct created the claimed fear. This proposal would not require a Craig-based judicial exception, but would instead be premised upon the common law forfeiture-by-wrongdoing doctrine. By abandoning Craig and operating entirely within the Crawford framework, this proposal would be fully consistent with Crawford and its progeny.

And, according to Professor McAllister,

In many cases, my proposal would be advantageous to both prosecution and defense. From the prosecution's view, permitting the witness to testify in disguise is a better alternative than losing the evidence entirely. From the defense perspective, permitting the witness to testify in minimal disguise is a better alternative than a complete forfeiture of the confrontation right via admission of the witness's out-of-court testimonial statements in the absence of any confrontation, as authorized by Giles. Under this proposal, rather than the defendant completely forfeiting his confrontation right, the witness would remain subject to contemporaneous cross-examination, albeit in partial disguise.

I think that Professor McAllister's proposal makes a great deal of sense and highly recommend the article to readers (I also think that the proposal supports the argument in my recent article, Avoiding a Confrontation?, that the Bruton doctrine was not restricted by Crawford because Bruton is not based upon a judicial reliability assessment). I asked Professor McAllister what led him to write the article, and he responded:

I began researching this particular issue back in 2006, and the culmination of that research was an initial article dealing with the use of two-way videoconference testimony in criminal trials.  As I began thinking and writing about that particular issue, I realized that the right of confrontation, as reflected in the Sixth Amendment's Confrontation Clause, is actually a multi-layered and complex issue that requires more careful analysis of each particular, underlying layer of analysis.  When I returned to this issue in 2009, my goal was to write an article that began with a particular legal issue as the springboard to a discussion of the confrontation right's deeper layers, and to show how that particular issue is necessarily impacted by the multiple layers of analysis.  I chose the disguised witness issue as my springboard to these deeper layers.  In my view, we cannot fully understand the confrontation implications of a particular form of testimony until we first settle upon the true meaning of "confrontation" itself.  Thus, my goal in writing the disguised witness article was to uncover each layer of confrontation analysis, then show how the analysis at each layer impacts the layers above.  In the case of the disguised witness, there is the initial layer of whether wearing a disguise in court sacrifices the underlying confrontation values of testimony under oath, observation of demeanor, cross-examination, and physical face-to-face confrontation between the accuser and the accused (i.e., the essence of the Craig test).  However, at a deeper layer, there is the notion of whether the confrontation right is only concerned with ensuring cross-examination, or whether it necessarily requires a literal "face-to-face" meeting between accuser and accused.  Further, if the confrontation right is only concerned with ensuring cross-examination, does that requirement embody the idea of "effective" cross-examination?  If so,  what exactly makes cross-examination "effective?"  In my article, I argued that cross-examination alone is not enough, and that some critical aspect of confrontation is lost when we remove the element of a literal "face-to-face" meeting between accuser and accused.  In this portion of the article, I sought to demonstrate that the Framers' understanding of confrontation was more complex than the understanding of confrontation espoused by such influential writers as Wigmore.  At another level, there is the idea, expressed in Crawford, that confrontation is a procedural rather than a substantive right -- i.e., that the right is more about ensuring the procedure of confrontation, rather than ensuring the reliability of the resulting evidence.  Even if we assume the procedural view is correct, we still must determine the essence of the confrontation right (i.e., what exactly makes the procedure of confrontation "effective"), which I believe requires both an opportunity for cross-examination and a physical, "face-to-face" meeting.  Once these principles of confrontation are established, we can then return to the initial question of whether a witness who testifies in disguise runs afoul of a defendant's right to confront that witness.  Again, I believe the matter is far more complex than it first appears.  Moreover, much like the ongoing debate in Fourth Amendment analysis between the "reasonableness" view and the "warrant requirement" view, I believe we cannot arrive at the "correct" answer to any confrontation issue until we first resolve the very essence of "confrontation" itself.  I believe I was able to capture these principles in my disguised witness article.

He also provided me with the following abstract of the article:

In 2004, the United States Supreme Court established a new Confrontation Clause jurisprudence in Crawford v. Washington, a ruling which foreclosed the use of much previously admissible out-of-court statements and which generated a vast response from courts and commentators.  While much has been written regarding Crawford's effect upon out-of-court testimonial statements, few commentators have addressed Crawford's impact upon in-court testimony.  This article is among the first to address this issue.

This article considers Crawford's impact upon Maryland v. Craig, the case which generally governs in-court testimony confrontation challenges, by specifically examining the constitutionality of testifying in disguise.  Surprisingly, this issue has never been addressed by the Supreme Court.  The few lower court opinions considering this issue have routinely applied the Craig test; that test, however, employs a reliability-based framework reminiscent of the test overruled by Crawford, and this article contends that the Craig test would similarly offend the current Court. 

With Craig's constitutionality in doubt, this article considers what test might replace Craig.  The ultimate resolution of this issue would depend upon the importance a court attaches to the two guarantees underlying the confrontation right: the right to confront adverse witnesses face-to-face, and the right to cross-examine such witnesses.  Over time, judges and historians have equated the right of "confrontation" with the literal right to meet one's accusers "face-to-face," while others have deemed the right synonymous with the opportunity for cross-examination.  In 1988, for example, the Supreme Court described "the irreducible literal meaning of the Clause" as "[the] right to meet [trial witnesses] face to face."  Just two years later, however, the Court retreated from this view and declared that "face-to-face confrontation . . . is not the sine qua non of the confrontation right."  More recently, the Crawford ruling appeared to solidify cross-examination as the Clause's primary guarantee. 

After examining the Confrontation Clause's text, the right's common law roots and underlying purposes, and the Supreme Court's many pronouncements on this issue, this article concludes that the Clause's face-to-face requirement is an indispensable aspect of confrontation.  Following the principles of Crawford, today's Court would thus replace Craig's reliability-based analysis with a more literal confrontation right: one that ensures both cross-examination and face-to-face confrontation. 

With these principles in mind, this article revisits the disguised witness issue.  While I argue that Crawford's interpretative principles would prohibit the wearing of nearly any disguise, I conclude by advocating an exception to this general rule.  Under my proposed exception, the common law's forfeiture-by-wrongdoing doctrine, which the Court recently applied to out-of-court statements, should be extended to courtroom manner-of-testimony issues as well, and should authorize the wearing of limited disguises where the witness' genuine safety concerns arise from the defendant's deliberate acts of intimidation.

-CM

 

What's The Definition Of Prejudice?: Supreme Court Of Mississippi Upholds Verdict Despite Jurors Consulting Dictionary

A defendant is charged with felony child abuse under Mississippi Code Section 97-5-39(2)(a), which states:

Any person who shall intentionally (I) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm shall be guilty of felony child abuse of a child and, upon conviction, shall be sentenced to imprisonment in the custody of the Department of Corrections for life or such lesser term of imprisonment as the court may determine, but not less than ten (10) years....

The defendant is not charged with child neglect, and the jury does not receive any instructions on child neglect. During deliberations, the jury sends a note to the trial judge with the following question: "Is negligence the same thing as abuse?" The trial court responds by sending a handwritten note to the jury that it "must rely on the Court's instructions on the law already given to you. Please continue your deliberations." After receiving the trial court's response, the jury continues deliberating for approximately half an hour and then returns a guilty verdict. After the verdict, a juror allegedly approaches the defendant's boyfriend and tells him that he and another juror had been confused about the definition of "neglect," so they had looked up the definition and had determined that "abuse" and "neglect" meant the same thing.  Based upon this determination, they allegedly determined that the defendant was guilty of child abuse. Is the defendant entitled to a new trial? According to the recent opinion of the Supreme Court of Mississippi in Rutland v. State, 2011 WL 907116 (Miss. 2011), the answer is "no." I disagree.

In Rutland, the facts were as stated above. The Supreme Court of Mississippi noted that the issue was governed by Mississippi Rule of Evidence 606(b), which 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 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.

Because the dictionary constituted extraneous prejudicial information, the court concluded that there could be jury impeachment, but only on the issue of whether the jurors consulted the dictionary and not on the issue of what effect that consultation had on their deliberations. Instead, the court held that

When the trial court is presented with an allegation of juror misconduct, the court must determine what communication was made and what it contained....Once this determination is made, the trial court must decide whether it is reasonably possible that the improper communication altered the jury's verdict.

Applying this analysis, the Supreme Court of Mississippi agreed with the trial court

that standard dictionary definitions for the words “neglect” and “abuse” are not the type of improper extraneous information that have been found to invalidate jury verdicts in our case law. There is nothing inherently prejudicial in the definitions or as applied to this case. The dictionary definition of the two words is clearly something within the collective intelligence and common knowledge of any jury.

Really? There was nothing prejudicial in the definitions as applied in Rutland's case? Rutland was charged with an intentional child abuse and not child neglect. We know that the jury thought that abuse could mean the same thing as negligence. Assuming that the jury consulted the dictionary for definitions of abuse and neglect, it seems clear to me that it was reasonably possible that this consultation could have altered the jury's verdict, with the jury possibly finding Rutland guilty based upon behavior that it perceived as negligent rather than intentional.

-CM

Avoiding A Confrontation, Take 4: EDVA Opinion Makes Clear That Redacted Co-Participant Confessions Are Inadmissible At Solo Trials

Last week, I posted my new article, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine. The article argues that courts have erred in finding that nontestimonial hearsay is beyond the scope of the Bruton doctrine in the wake of Crawford v. Washington, 541 U.S. 36 (2004), because Crawford is a test of Constitutional reliability while the Bruton doctrine is a test of Constitutional harmfulness. The converse of this is that even testimonial hearsay is admissible under the Bruton doctrine as long as it is not sufficiently harmful. Crawford held that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Meanwhile, under the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a nontestifying co-defendant's confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence.

Pursuant to Richardson v. Marsh, 481 U.S. 200 (1987), however, co-defendant confessions that are redacted to remove any reference to other defendants are admissible despite the Bruton doctrine because they are not sufficiently harmful. And, as I note in my article, the Richardson rule applies even to testimonial co-defendant confessions. So, if Co-Defendant confesses to Police Officer, "Defendant and I robbed the bank," and Co-Defendant does not testify at his joint jury trial with Defendant, Police Officer could testify that Co-Defendant confessed, "I robbed the bank." Obviously, Co-Defendant's confession is testimonial, and ordinarily we would require confrontation as "the only indicium of reliability sufficient to satisfy constitutional demands...." The Bruton doctrine, however, does not care about reliability, which is why Co-Defendant's redacted confession would be admissible. 

But what if Co-Defendant and Defendant are tried separately? Or what if Co-Defendant dies before the joint trial, meaning that Defendant is tried by himself? Would the admission of Co-Defendant's redacted confession violate Crawford and the Confrontation Clause?  I didn't address such a case in my article, but as the opinion of the United States District Court for the Eastern District of Virginia in United States v. Jordan, 357 F.Supp.2d 889 (E.D.Va. 2005), makes clear, the answer is "yes." Why? Crawford is a test of Constitutional reliability, not a test of Constitutional harmfulness.

In Jordan, the facts were as stated above, with Peter Jordan being charged with murder at a solo trial, and the prosecution trying to admit a redacted statement made by an alleged co-participant, Octavia Brown. According to the prosecution, a confession redacted to comply with Richardson should be admissible to the same extent at a solo trial as it is at a joint trial.  The Eastern District of Virginia disagreed, finding that

In this case, Brown's statement is one that the Confrontation Clause plainly meant to exclude. "The Bruton line of cases deals with situations in which the confession of one defendant is offered at a joint trial where the statement is redacted to omit any explicit reference to the co-defendant and the jury is instructed to consider the statement only against the declarant."...The judicial remedy of redaction was fashioned to fulfill a specific purpose, namely to balance a defendant's Confrontation Clause rights with the judicial interest in trying co-defendants jointly. The Sixth Amendment poses no barrier to the admissibility of a confession against the defendant who made the incriminating statement, when redaction, coupled with a limiting instruction from the court, protects the Confrontation Clause rights of a co-defendant at a joint trial. That is not the case here.

Conversely, the court held that

The Supreme Court has repeatedly stated that statements of non-testifying accomplices, like Brown's, that implicate defendants are presumptively unreliable and their admission violates the Confrontation Clause....In Crawford, the Supreme Court made clear that the only way to assure reliability of such statements is through the crucible of cross-examination...Thus, the redaction remedy adopted in Richardson is inapplicable to Brown's statement, and its admissibility must be analyzed utilizing the Crawford standard that replaced the rule articulated in Ohio v. Roberts....In this Court's view, Brown's statement was testimonial and is inadmissible during the guilt phase of trial.

In other words, Crawford and Bruton address 2 entirely different questions. Crawford addresses the question of whether testimonial hearsay by a nontestifying declarant can be admitted against a defendant, and its answer is that the only way to ensure the reliability of such hearsay is through the crucible of cross-examination.  Meanwhile, the Bruton doctrine addresses the entirely different question of whether a limiting instruction cures the harm/prejudice caused to other defendants by admitting the facially incriminatory confession of a co-defendant at a joint jury trial, and its answer is that the only way to cure the harm/prejudice is to redact the confession to remove references to the other defendants.

And how do we know that Crawford and Bruton address 2 entirely different questions? We know because the Crawford Court told us. After finding that all of its prior Confrontation Clause cases (of a certain variety) were consistent with the test of Constitutional reliability that it was (re)creating, the Crawford Court noted that "Our only precedent on interlocking confessions had addressed the entirely different question whether a limiting instruction cured prejudice to codefendants from admitting a defendant's own confession against him in a joint trial" and cited two Bruton doctrine cases. 

-CM

Not My Recollection: Court Of Appeals Of Ohio Finds Writing Cannot Be Read Out Loud Under Rule 612

Like its federal counterpart, Ohio Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

And, like its federal counterpart, Ohio Rule of Evidence 612 allows an attorney to refresh the recollection of a forgetful witness with a writing. So, let's say that a witness made a statement to the police but then refuses to attest to its accuracy while testifying at trial. Can the prosecution read portions of the statement out loud and ask the witness whether she made the statements recorded in the statement consistent with either Rule 612 or Rule 803(5)? According to the recent opinion of the Court of Appeals of Ohio, Ninth District, in State v. Martin, 2011 WL 899553 (Ohio App. 9 Dist. 2011), such a procedure is improper under Rule 612 and possibly improper (and I would argue definitely improper) under Rule 803(5).

In Martin, the facts were as stated above, with Thomas Martin, Jr. being the defendant charged with domestic violence and Heather Teeter being the alleged victim who refused to vouch for the accuracy of her statement. Instead, Teeter responded to each "question" by the prosecution with an answer similar to "[t]hat's what the statement says." The trial court allowed the prosecution to use the procedure layed out in the introduction, and this action formed the partial basis for Martin's appeal.

The Court of Appeals of Ohio found that this procedure clearly did not constitute proper refreshing of recollection under Ohio Rule of Evidence 612 because "While '[a] party may refresh the recollection of a witness under Evid.R. 612 by showing him or her a prior statement[, ] * * * a party may not read the statement aloud, have the witness read it aloud, or otherwise place it before the jury.'" 

The court then found that even if the reading of the statement was improper under Ohio Rule of Evidence 803(5), any error in doing so was harmless. But the way I see it, reading the statement was clearly improper under Rule 803(5). Rule 803(5) requires that the proponent prove that the recorded recollection reflected the declarant's knowledge accurately. Here, Teeter clearly refused to claim that her recorded statement to police was accurate, meaning that it should have been inadmissible under Rule 803(5).

-CM

Talk About The Life In Massachusetts: Court Precludes Jury Impeachment On Jury Violence, Failure To Report Deadlock

On June 9, 2005, six days after the verdict, a juror sent a letter to the judge suggesting that she and possibly two other jurors had been pressured into convicting the defendant despite having a reasonable doubt concerning the defendant's guilt. According to the juror, other jurors “lean[ed] across the table into our faces and insist[ed] on yelling at us, screaming, swearing, and throwing books and pens just because we [saw] some things differently.” After the other two holdouts changed their minds, the juror claimed that she was subjected to “8 hours of constant interrogation,” with jurors “constantly yelling at me and swearing and pointing finger[s] in my face across the table and telling me that I am crazy.” The letter further alleged that some jurors had made up their minds “from day 1 without listening to anything that was presented,” that some jurors convinced or intimidated others to change their votes outside the jury room, and that the foreperson at one point refused to send the judge a note saying that the jury were deadlocked and instead insisted that they continue deliberating.

Is this grounds for jury impeachment? According to the recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Pytou Heang, 2011 WL 489926 (Mass. 2011), the answer is "no." Instead, "'[t]ension between jurors favoring guilt and those favoring acquittal is part and parcel of the internal decision-making process of jury deliberations." I disagree.

In Pytou Heang, the defendant was convicted of murder in the first degree on theories of deliberate premeditation and felony-murder, armed home invasion, and unlawfully carrying a firearm. After receiving the letter mentioned in the introduction to this post, 

The judge sent a copy of the letter to counsel...along with his own letter declaring that he did not believe any action should be taken because the juror's complaints in the letter did not allege an extraneous influence on the jury, did not "rise to the level of juror misconduct," and related to the jury's "internal decision making process." The defendant filed a motion to reconsider..., which was denied. The defendant subsequently filed a notice of appeal, preserving the issue for appeal. 

In addressing that appeal, the Supreme Judicial Court relied upon Massachusetts common law, which is similar to Federal Rule of Evidence 606(b), which 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. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Applying this law, the court concluded that

None of the allegations in the letter constituted an extraneous influence on the jury or a claim of racial or ethnic bias. Instead, the letter detailed stresses that sometimes surface in the deliberative process required to get twelve individuals with differing views of the evidence to reach a unanimous verdict. "Tension between jurors favoring guilt and those favoring acquittal is part and parcel of the internal decision-making process of jury deliberations."... That these stresses and tensions may be keenly felt by some jurors does not automatically call into question a verdict....Likewise, the juror's claim that two of the other holdout jurors were "intimidat[ed]" into changing their votes outside the jury room by other jurors is not an extraneous influence.... The judge did not abuse his discretion in failing to make a postverdict inquiry of the juror.

I disagree. A certain amount of tension and verbal sparring is certainly part and parcel of jury deliberations. Throwing pens and books at dissenting jurors is not. And neither is refusing to send the judge a note saying that the jury were deadlocked and instead insisting that the jury continue deliberating. Now, I'm not saying that either of these latter two actions should automatically allow for jury impeachment and a new trial. Indeed, the court's opinion seems to indicate that the jury did eventually report to the judge that they were deadlocked, with the judge telling them to continue with deliberations, which resulted in the final verdict. But it seems to me that this is something that should have bee explored in a postverdicyt inquiry rather than merely dismissed out of hand.

Did the dissenting jurors eventually join the majority solely because they felt that the violence against them would escalate if they did not. Was the jury deadlock reported only after the dissenting jurors softened their position, allowing the judge to tell the jury to keep deliberating. The defendant in Pytou Heang was sentenced to two consecutive life sentences on his two murder convictions, and obviously there were serious problems with the jury deliberations. Maybe those problems did not necessitate a new trial, but I think that they deserved at least a little investigation.

-CM

What's That Mean? 11th Circuit Finds Evidence Offered To Prove Meaning Of Settlement Agreement's Terms Admissible Despite Rule 408

Federal Rule of Evidence 408 provides that

(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.

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.

And, as the recent opinion of the Eleventh Circuit in Fisk Elec. Co. v. Solo Const. Corp., 2011 WL 891797 (11th Cir. 2011), makes clear, settlement agreements and related communications also may be admitted for the purpose of resolving a factual dispute about the meaning of the settlement agreements' terms.

In Solo Const. Corp., 

Solo entered into a contract with the Miami-Dade Aviation Department ("Department") to supply labor and services for an expansion project at Miami Dade International Airport. Solo served as the general contractor and hired Plaintiff as a subcontractor. The contract between Plaintiff and Solo included a pay-when-paid provision that stated Solo would pay Plaintiff when the Department paid Solo. Liberty Mutual provided Solo with a surety bond for the project.

Plaintiff initiated this suit to recover unpaid contract balances and additional expenses incurred due to construction delays. Plaintiff alleged that Solo breached their contract and that both Solo and Liberty Mutual breached the terms of the surety bond.

While this suit was pending, Plaintiff participated in mediation with Solo and the Department to resolve outstanding contract claims among Plaintiff, Solo, and the Department. As a result of the mediation, the Department negotiated a settlement and paid Solo. Plaintiff understood that Solo would pay Plaintiff after receiving the payment from the Department, but Plaintiff did not get paid.

In response to plaintiff's action for breach of contract,

Defendants later filed answers raising as an affirmative defense the pay when-paid clause. Before trial, Solo moved to exclude all evidence about the mediation between the parties. The district court denied the motion. The district court stated that Solo-by raising the pay-when-paid clause as an affirmative defense and arguing that Solo was never paid by the Department on Plaintiff's claims-had opened the door to admission of evidence that the mediation resulted in the Department's paying Solo.

After the jury found for the plaintiff, the defendants appealed, claiming, inter alia, that evidence on the parties' mediation proceedings should have been deemed inadmissible under Federal Rule of Evidence 408. The Eleventh Circuit disagreed, 

In the present case, Plaintiff introduced testimony establishing that mediation took place and resulted in a payment to Solo. This evidence was presented for the purpose of establishing that the pay-when-paid provision in Plaintiff's own contract with Solo had been satisfied. This testimony falls within the permissible "other purposes” for which evidence properly may be offered under Rule 408 . Defendants' raising of the pay-when-paid clause as an affirmative defense invited evidence rebutting that defense.[FN6]

FN6. Settlement agreements and related communications also may be admitted for the "purpose of resolving a factual dispute about the meaning of the settlement agreements' terms."...To the extent Plaintiff sought to present evidence to establish the intent behind the settlement agreement, Rule 408  does not bar its admission.

-CM

No One But The Bailiff: Supreme Court Of Nevada Finds Bailiff's Improper Behavior Insufficient To Award New Trial

Similar to Federal Rule of Evidence 606(b), N.R.S. 50.065(2) provides that

Upon an inquiry into the validity of a verdict or indictment:

(a) A juror shall not testify concerning the effect of anything upon the juror’s 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.(b) The affidavit or evidence of any statement by a juror indicating an effect of this kind is inadmissible for any purpose. 

While both of these rules preclude certain types of jury impeachment, neither rule would preclude a bailiff from testifying that he engaged in misconduct that might have prejudiced the jury. But whether that misconduct necessitates a new trial is a separate issue and one with which the Supreme Court of Nevada grappled in its recent opinion in Lamb v. State, 2011 WL 743193 (Nev. 2011).

In Lamb, Robert Lamb was convicted of the first degree murder of his sister. After he was convicted, he brought a motion for a new trial based upon, inter alia, the following facts:

With notice to and no objection from the parties, the trial judge, who had a scheduling conflict, left the jury in another judge's charge on its second day of deliberations. Thereafter, the foreman told the bailiff he had a note for the judge. The bailiff saw the note, which asked about the difference between first- and second-degree murder, but he neither took possession of it nor alerted the parties or either judge. Instead, taking matters into his own hands, the bailiff told the jury the judge was out of the jurisdiction and to read the jury instructions. After this exchange came to light at the penalty hearing, Lamb moved for a new trial. Following an evidentiary hearing, at which the bailiff testified to these facts (no juror affidavits or other testimony was offered), the district court denied the motion for new trial, from which Lamb appeal[ed].

In considering Lamb's appeal, the Supreme Court of Nevada initially noted that there was no problem with the bailiff's testimony under N.R.S. 50.065(2), which merely precluded jurors from testifying (And the same would hold under Federal Rule of Evidence 606(b). Moreover, under either rule, it seems as if a juror could have testified about the bailiff's behavior as opposed to the jury's confusion).

This left the question of whether Lamb was entitled to a new trial. Lamb claimed that "prejudice is presumed once the bailiff's improper contact is shown." The Supreme Court of Nevada disagreed, finding "that only the 'most egregious cases of extraneous influence on a juror, such as jury tampering,' would warrant a conclusive presumption of prejudice." The court thus had to decide whether the trial court correctly concluded that the exchange between the jury and the bailiff "was not such as to have had a reasonable probability or likelihood of affecting the jury's deliberations."

And it found that this was the correct conclusion because

The jury instructions on first- and second-degree murder were a verbatim reprise of those we approved in Byford...and were correct-indeed, Lamb accepted them without objection or proffered additions. The bailiff's statement that the judge was not available and the jury should read the instructions thus did not introduce incorrect law into the proceedings...or cost Lamb the ability to cure an identifiable error in the instructions. There was no real contest at trial as to first- or second-degree murder; the issue was identity, not premeditation. On this record, therefore, we uphold the district court's determination that the communication was innocuous and conclude that there was no demonstrated likelihood or probability that the improper ex parte communication between the bailiff and the jury impacted the jury's deliberations.

-CM

Article Of Interest: Katharine Traylor Schaffzin's Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence

In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court decided not to overrule Miranda v. Arizona, 384 U.S. 436 (1966), concluding that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." After the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Courts "restyled" the Federal Rules of Appellate Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Civil Procedure, it tackled its latest project:  the Federal Rules of Evidence. The goal in all of these projects has been to makes the Rules more user friendly rather than to enact substantive changes.  But have certain phrases in the Federal Rules of Evidence become part of our courtroom culture such that they are off limits? According to the Advisory Committee on the Rules of Evidence, the answer is "yes." According to the recent article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (2000), by Katharine Traylor Schaffzin of the University of Memphis Cecil C. Humphreys School of Law, the answer is also "yes," but to a lesser extent than posited by the Advisory Committee.

In its proposed Restyled Rules, the Advisory Committee made clear that it intended no substantive change to the existing Rules, issuing the following four-part disclaimer:

The Committee made special efforts to reject any purported style improvement that might result in a substantive change in the application of a rule. The Committee considered a change to be "substantive" if any ofthe following conditions were met:

a. Under the existing practice in any circuit, the change could lead to a different result on a question of admissibility (e.g., a change that requires a court to provide either a less or more stringent standard in evaluating the admissibility of particular evidence);

b. Under the existing practice in any circuit, it could lead to a change in the procedure by which an admissibility decision is made (e.g., a change in the time in which an objection must be made, or a change in whether a court must hold a hearing on an admissibility question);

c. It alters the structure of a rule in a way that may alter the approach that courts and litigants have used to think about, and argue about, questions of admissibility (e.g., merging Rules 104(a) and 104(b) into a single subdivision); or

d. It changes a "sacred phrase" - phrases that have become so familiar in practice that to alter them would be unduly disruptive. Examples in the Evidence Rules include "unfair prejudice" and "truth of the matter asserted." 

Professor Schaffzin's article focuses on the last part of this disclaimer. She begins by laying out four representative proposed phrase changes to existing Rules.  As she notes, to propose these changes, the "the Committee must have determined, first, that the language was not 'familiar in practice,' second, that such amendments would not be 'disruptive,' and, third, that any disruption would not be 'undue.'" I imagine that the phrase change that will be most popular among Evidence professors is the one to Federal Rule of Evidence 801(d)(2), which currently deems an "Admission by party-opponent" as "not hearsay."  Under the restyled Rule, an "Opposing party's statement" would now be deemed "not hearsay."

So, why would this change be a windfall to Evidence professors? Well, let's say that Dan is charged with murdering Vince outside a downtown restaurant, with the murder allegedly taking place on March 16, 2011 at 6:00 P.M. If Dan confesses to a police officer, "I killed Vince," it is clear that this is currently an "Admission" under Federal Rule of Evidence 801(d)(2), and students grasp this concept fairly quickly.  But let's say that Dan tells his friend on March 17th that he was visiting a friend downtown last night. Or let's say that Dan tells his friend on March 15th that Vince owes him some money.  Or let's say that Dan tells his wife on March 16th at 8:00 P.M. that he has some residue on his hands, and soap just isn't doing the trick. None of these latter three statements look like classic "admissions," but they are for purposes of Federal Rule of Evidence 801(d)(2), which merely requires that: (1) a party made a statement; (2) the other party is offering it against him; and (3) the statement is in some way relevant to trial. Students eventually get this concept, but it usually takes a while because they get tripped up by the word "admission." Under the restyled rule, which covers an "Opposing party's statement," I think that teaching this subject will now be considerably easier.

The same can't, however, be said about other Rules, which the Committee determined contained "sacred phrases." Professor Schaffzin lays out four examples:

(1) The phrase "unfair prejudice" in Federal Rule of Evidence 403;

(2) The phrase "to prove the truth of the matter asserted in Federal Rule of Evidence 801(c);

(3) The phrase "substantially outweighs it prejudicial effect" in Federal Rule of Evidence 609(b); and

(4) The phrase "whether any outside influence was improperly brought to bear upon any juror" in Federal Rule of Evidence 606(b). 

So what distinguishes the sacred phrases from the cursed phrases, soon to be excommunicated from the Rules? Well, according to Professor Schaffzin,

The Advisory Committee defined a "sacred phrase" as any phrase that has "become so familiar in practice that to alter [it] would be unduly disruptive." Unfortunately, the Advisory Committee provided no specific protocol for determining when a phrase is "familiar in practice," when a change to a phrase would be "disruptive," or when such a disruption would be "undue." The categorization of any phrase as “sacred,” thus requires the Committee to make three arbitrary determinations.

First, the Advisory Committee must have determined that a phrase was "familiar in practice." The Advisory Committee, however, provided no working definition of this concept. It cited no empirical studies of the bench or bar regarding either group's past or present familiarity with any given phrase....

The next inquiry the Advisory Committee must have conducted, at least implicitly, is whether a change to the language of the Rules would be "disruptive." In answering this question, the best the Committee could hope to do was to predict the answer; again, there were no empirical studies conducted of the bench or bar. Unfortunately, this query is not helpful in narrowing the list of sacred phrases in the Federal Rules of Evidence, because a change to any phrase in the Rules will necessarily cause a disruption among those applying them on a regular basis. Moreover, any change to the Rules will present an inconsistency, at least for a time, between the state and federal rules. Such inconsistency will undoubtedly create some level of disruption.

Finally, the Advisory Committee must have determined whether the alteration of any phrase would cause a disruption that is "undue." Again, the Advisory Committee presented no standard by which it would judge the level of any anticipated disruption. To make such a determination, the Advisory Committee would have to predict that changes to one phrase would disrupt practice more or less than changes to another. Therefore, any such determination would be arbitrary.

Professor Schaffzin then asserts that while some phrases in the existing Rules indeed cannot be amended (e.g., "undue prejudice" in Rule 403), others can and should be restyled. She gives three examples:

-In Federal Rule of Evidence 801(c), "to prove the truth of the matter asserted" could be amended to read "to prove the truth of the statement made by the declarant" or "to prove the truth of the declarant's statement." (My note: This is another one that often trips up Evidence students, and I think that the suggested change makes the concept of hearsay much easier for students to understand);

-In Federal Rule of Evidence 609(b), "substantially outweighs it prejudicial effect" could be amended to read "substantially outweighs its unfair prejudice (My note: This corrects the inconsistency between Rule 403 and Rule 609 that often trips up students, lawyers, and judges.  It seems clear that all convictions admitted under Rule 609 are prejudicial, but it is only the unfair prejudice created by these convictions that is concerning);

-In Federal Rule of Evidence 606(b), "whether any outside influence was improperly brought to bear upon any juror" could be amended to read "whether any outside influence was improperly imposed upon any juror (My note: I agree with this as well. What does "brought to bear" mean? Apparently, it means "to bring into operation or effect." Let's assume that a bailiff makes an improper comment to the jury (see my post tomorrow). Clearly, the bailiff improperly imposed an influence on the jury. But was this influence "brought to bear" on the jury? I guess so, but obviously the analysis is more confusing).

I think that Professor Schaffzin strikes the right tone in her article, praising the Committee for some obvious improvements to the Federal Rules of Evidence while at the same time asking if we might even be able to push a bit farther. I asked Professor Schaffzin about what led her to write the article, and she responded:

I decided to write the piece to expand on a comment I submitted to the Advisory Committee on Evidence Rules when the restyled rules were released for public comment.  Needless to say, the Committee did not further amend its draft based on my comments, but it has invited me to address it as a panelist at its Symposium on the restyled rules next fall at its Annual Meeting.  I'm currently working on an empirical study of how the restyled rules will be received and applied.

Obviously, the article is a must read for anyone teaching Evidence or anyone who will be practicing under the new Rules starting (presumably) at the end of the year. Also, Professor Schaffzin will be guest blogging here as the restyled Rules come closer to fruition and I'm sure will have many interesting insights into what effects the restyling might have.

-CM 

The Mystery Of The Quotient: Court Of Appeals Of Tennessee Reverses Jury's Quotient Verdict

Federal Rule of Evidence 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. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Moreover, the Advisory Committee's Note to Rule 606(b) indicates that it is derived from federal opinions in which "testimony or affidavits of jurors ha[d] been held incompetent to show a compromise verdict [or] a quotient verdict." Meanwhile, Tennessee Rule of Evidence 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 any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; 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. (emphasis added)

So, what is a quotient or gambling verdict? Well, let's take a look at the recent opinion of the Court of Appeals of Tennessee in Cullum v. Baptist Hospital Systems, Inc., 2011 WL 553768 (Tenn.Ct.App. 2011).

In Cullum,

Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician's employer, and related hospitals. The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants.

After a first trial, the jury found for the defendants, but the judge granted the plaintiffs a new trial pursuant to Tennessee's thirteenth juror rule (under which the judge independently weighs the evidence as a "thirteenth juror" and grants a new trial if he funds that the evidence preponderated in favor of the losing party and against the verdict of the jury). Thereafter, a "second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the nonparty physician."

Thereafter, the plaintiffs filed a Motion for a New Trial and appealed to the Court of Appeals of Tennessee after the trial court overruled it. This Motion was accompanied by several juror affidavits, including this one by Juror Driscoll:

In an effort to avoid a hung jury we all agreed to individually assign a percentage of fault to each defendant. Each individual percentage was tallied and then divided by the number twelve (12)....It was my understanding that we were bound by this number and that we would move on to the next phase....It is my opinion that if we had not compromised as described above, we would have had a hung jury.

According to the court, "[w]hen a jury agrees in advance to be bound by a verdict reached through an averaging process, the resulting verdict is a 'quotient' or 'gambling' verdict." Importantly, the court then noted that not all quotient verdict are illegal; instead, "[i]t is only when there is an antecedent agreement, express or implied, to abide by the results that a quotient verdict will be vitiated."

Applying these principles, the court found that

The affidavits show that the members of the jury, in the course of contentious deliberations and in order to avoid a hung jury, agreed to use a mathematical computation to apportion liability among the tortfeasors and that they would return the result as their verdict. Defendants offered no evidence to the contrary. The process employed by the jury resulted in a quotient verdict. While the trial court denied a new trial upon its determination that "it is not possible to average the numbers as alleged by Plaintiffs and come up with a 3.75% verdict," it is the jury's antecedent agreement to abide by the results of the averaging process rather than the results of the process that vitiates the verdict.

The court thus reversed the jury's verdict and remanded for a new trial.

-CM

My New Article: Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine

My new article addresses an issue I first raised on this blog last October: Is "nontestimonial" hearsay beyond the scope of the  Bruton doctrine in the wake of the Supreme Court's opinion in Crawford v. Washington? Here is the abstract of the article, which you can download from SSRN (Download Article):

The Bruton doctrine holds that the Confrontation Clause is violated by the admission at a joint jury trial of a nontestifying co-defendant’s confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence. Under this doctrine, Co-Defendant’s confession to Police Officer that “Defendant and I killed Victim” could not be admitted unless Co-Defendant testified at trial. But what if Co-Defendant made his confession to his mother, his brother, his lover, or his friend? While the vast majority of courts before 2004 would have held that such “noncustodial” confessions violated the Bruton doctrine, the tables have turned in the wake of Crawford v. Washington, with most courts finding such “nontestimonial” confessions beyond the scope of the Bruton doctrine.

This article argues that courts have erred in reaching this conclusion because the Bruton doctrine is a test of Constitutional harmfulness while Crawford, like its predecessor, Ohio v. Roberts, is a test of Constitutional (un)reliability. Moreover, even if Crawford deconstitutionalized the Bruton doctrine with regard to nontestimonial hearsay, courts should still find that the admission of nontestimonial co-defendant confessions violates the rules of evidence.

-CM

Avoiding a Confrontation Take 3: Central District Of California Finds Nontestimonial Hearsay Beyond Scope of Bruton

A defendant and his brother are charged with first degree murder and jointly tried before a jury. The same day as the murder, the defendant and his brother both allegedly made statements to a friend at a baby shower implicating themselves in the murder, and the brother's statement identified the defendant as the shooter. At their joint trial, the brother does not testify. Is the brother's statement admissible at trial? That was the question addressed by the United States District Court for the Central District of California in its recent opinion in De Niz v. Clark, 2011 WL 836448 (C.D. Cal. 2011), and it is also the question addressed in an article I should have completed tomorrow.

The question comes down to the effect of Crawford v. Washington, 541 U.S. 36 (2004), and its progeny on the Bruton doctrine, which holds that the Confrontation Clause is violated by the admission of the statement of a nontestifying co-defendant that facially incriminates other defendants but is inadmissible against them under the rules of evidence. In Crawford and its progeny, the Supreme Court declared that, with limited exceptions, the Confrontation Clause is only concerned with testimonial hearsay. And while a co-defendant's formal confession to a police officer would be considered "testimonial," a co-defendant's informal but incriminatory statement to his mother, brother, or lover (or his statement to a friend at a baby shower) would be considered "nontestimonial."

Therefore, many courts such as the United States District Court for the Central District of California in Clark have concluded that the Bruton doctrine does not apply to nontestimonial hearsay. As the court noted in Clark,

Petitioner's claim likewise fails to the extent it is intended to be separately predicated upon Bruton v. United States, 391 U.S. 123, 135-36 (1968), which held that “a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.” Richardson v. Marsh, 481 U.S. 200, 207 (1987). “Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial statements [,]” such as those at issue here.United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009), cert. denied, 130 S.Ct. 3409 (2010);see United States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir.2010) (same); United States v. Avila Vargas, 570 F.3d 1004, 1009 (8th Cir.2009) (same); United States v. Pike, 292 Fed. Appx. 108, 112 (2d Cir.2008) (same), cert. denied, 129 S.Ct. 957, 959 (2009); see also United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir.2010) (“It is ... necessary to view Bruton through the lens of Crawford and Davis. The threshold question in every case is whether the challenged statement is testimonial. If it is not, the Confrontation Clause “has no application.”) (citations omitted). 

So, why do I think that the vast majority of courts have got it wrong? Crawford, like its predecessor Ohio v. Roberts, 448 U.S. 56 (1980), is a test of Constitutional reliability. Conversely, the the Bruton doctrine is a test of Constitutional harmfulness. Indeed in its opinion in Cruz v. New York, 481 U.S. 186 (1987), in which it found that inadmissible hearsay which had "adequate indicia or reliability" under Roberts still violated the Bruton doctrine, the Court noted that, quite logically, hearsay becomes more harmful as it becomes more reliable. I'll have more on this when I post the draft of my article tomorrow.

-CM  

Adoption Agency: Supreme Court Of Texas FInds Appraisal Constitutes Adoptive Admission

Texas Rule of Evidence 801(e)(2)(B) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth;

So, let's say that a district seeks to acquire a waterline easement across land owned by a company and initiates condemnation proceedings against the company when negotiations fail. And let's say that at a hearing, the district presents an appraisal by a state certified appraiser of the damages that the company would suffer from the easement. Finally, let's say that the company later brings a civil action against the district. Will the district be able to claim that the appraisal is inadmissible hearsay because the appraiser was not its agent? According to the recent opinion of the Supreme Court of Texas in Reid Road Mun. Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 2011 WL 836869 (Tex. 2011), the answer is "no" because the appraisal constitutes an "adoptive admission" under Texas Rule of Evidence 801(e)(2)(B).

The facts in Speedy Stop were as stated above, and the Supreme Court of Texas found that "even assuming there was no evidence of an agency relationship...Rule 801(e)(2)(B) allows for admissions by a party-opponent when the party-opponent has manifested an adoption or belief in the statement's truth." And the court found that the district had manifested such a belief because "[i]t has long been the rule that '[w]here a party has used a document made by a third party in such way as amounts to an approval of its contents, such statement may be received against him as an admission by adoption.'"

Moreover, the court found that

the appraisal is admissible against the District as an admission by adoption. See TEX.R. EVID. 801(e)(2)(B); see also Stadler, 166 S.W.2d at 125. Our conclusion is also supported by other cases in a variety of different contexts. See Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1355 (5th Cir.1983) (holding that because the plaintiff's expert witness based his opinions regarding lost wages upon the assumption that the plaintiff was not a “Jones Act seaman,” the plaintiff was precluded from presenting a theory of recovery resting on the Jones Act); Buckley v. Airshield Corp., 116 F.Supp.2d 658, 664 (D.Md.2000) (holding that party adopted documents as true by submitting them as exhibits in a separate case); Harris v. United States, 834 A.2d 106, 117 (D.C.2003) (“Submission of documents to a court also suggests adoption of the documents.”); see also KENNETH S. BROWN ET AL ., MCCORMICK ON EVIDENCE § 261, at 211 (6th ed. 2006) (“When a party offers in evidence a deposition or an affidavit to prove the matters stated therein, the party knows or should know the contents of the writing so offered....Accordingly, it is reasonable to conclude that the writing so introduced may be used against the party as an adoptive admission in another suit.”).

-CM