EvidenceProf Blog

Texas Two-Step: Will Texas Pass State Counterparts To Federal Rules Of Evidence 413-414?

Federal Rule of Evidence 404(b) provides in relevant part that 

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

Enacted in the 1994 to increase the likelihood of sexual offense convictions, Federal Rules of Evidence 413-414 remove this propensity character evidence proscription for sex offenders and allow bad act evidence to prove, "Once a sex offender, always a sex offender."

Despite the objections of academic commentators, several states--including California-- followed suit. More states are considering similar exceptions; for instance, Alaska and California have also created similar exceptions for cases of domestic violence. Ted Sampsell-Jones, Preventive Detention, Character Evidence, and the New Criminal Law, 2010 Utah L. Rev. 723, 731-32 (2010).

In all, eleven states have enacted state counterparts to Federal Rules of Evidence 413-414 (I'm not sure how many states have enacted counterparts to Federal Rules of Evidence 415, which applies in civil cases) Could Texas make it a dozen?

Apparently, Texas state senator Joan Huffman has introduced Senate Bill 152, which according to Huffman,

has been carefully crafted to both protect the constitutional rights of defendants and to serve the public's interest in prosecuting those accused of committing the most heinous crimes against some of our most vulnerable victims. The proposed legislation is modeled after Federal Rules of Evidence (FRE) 413 and 414. Both were adopted by Congress and signed by President Clinton in the bipartisan Violent Crime Control and Law Enforcement Act of 1994. Eleven other states have enacted similar legislation, including California. Multiple federal appellate courts, including the 5th Circuit Federal Court of Appeals, have specifically and consistently held that FRE 413 and 414 and the state statutes modeled after them are constitutional and do not violate the Due Process Clause or the Equal Protection Clause. Thus, contrary to critics' complaints, the Constitution has not been shredded after all.

So, will the bill be successful? I don't know. Back in November 2008, I posted an entry about the Vermont Senate Judiciary Committee removing an attempt to create state counterparts to Federal Rules of Evidence 413-415 from a sex offender plan. Then, in February 2009, I posted an entry about Montana coming close to enacting counterparts to Federal Rules of Evidence 413-415, but that effort ultimately failed. And, in May 2010, I noted that the Supreme Court of Iowa found that Iowa Code Section 701.11, Iowa's counterpart to Federal Rules of Evidence 413, violated due process. Will Texas buck this trend? Or will Senate Bill 152 fail? If I had to read the tea leaves, I would guess that the bill would  pass, but it really seems like a crap shoot.

-CM

Another Loss To The Evidence Community, Dan Shuman At Southern Methodist

From William Bridge on the Evidence Professor listserv:

Tragically, another long-time Evidence teacher at Southern Methodist died early Tuesday morning, of Multiple System Atrophy, a Parkinson's-like disease.  Dan Shuman joined the SMU faculty in 1977 after stints at Legal Aid and in Bruce Babbitt's AG's Office in Tucson.  He taught, among other things, Civil Procedure, Torts, Evidence, Problems of Proof (our advanced Evidence seminar), an Expert Witness seminar, and extensively in mental health law.  He twice (in 1988, and 2011) won the Manfred Guttmacher Award from the American Psychiatric Association for his work in psychiatry and the law.  Dan had a loving family, and devoted students and colleagues.  Dan also taught this semester, two seminars.  His memorial service was this morning.

Here is the notice on his passing from SMU, and here is his obituary from the Dallas Morning News. Professor Shuman was a prolific author on a variety of topics, with some his best writing coming on the topic of expert testimony from a variety of perspectives.

Recently, I have been researching (1) whether suspects should be able to pre-assert their Miranda right to counsel, and (2) what the language used in the Miranda tells us about the language used during plea colloquies, and I have come across a wealth of information in recent articles that Professor Shuman co-authored:

-Everyone Knows Their Miranda Rights:" Implicit Assumptions and Countervailing Evidence, 16 Psychol. Pub. Pol'y & L. 300 (2010);

-Miranda Rights...and Wrongs, 23-SUM Crim. Just. 4 (2008);

-The Language of Miranda Warnings in American Jurisdictions: A Replication and Vocabulary Analysis, 32 Law & Hum. Behav. 124 (2008); and

-An Analysis of Miranda Warnings and Waivers:Comprehension and Coverage, 31 Law & Hum. Behav. 177 (2007)

-CM

Article Of Interest: Ronald F. Wright's Public Defender Elections and Popular Control Over Criminal Justice

I always found it odd when people criticized a single-payer health care system simply by labeling it "socialized medicine." Couldn't our public education system similarly be attacked as socialized education? Are our public libraries socialized book lending? Is the postal system socialized mail delivery? In other words, there are certainly problems with a single-payer health care system, but simply stigmatizing it as socialized medicine makes no sense. Instead, the important point is why we have made health insurance (primarily) private while other services are (primarily) public.

In his terrific recent article, Public Defender Elections and Popular Control Over Criminal Justice, 75 Mo. L. Rev. 803 (2010), Ronald F. Wright, a professor at the Wake Forest University School of Law, addresses a similar question. As he notes in the opening paragraph of the article:

Voters in the United States select some of the major actors in criminal justice, but not all of them. Among the major figures in the criminal courtroom, voters typically elect two of the three: the prosecutor and the judge, but not the public defender. Prosecutors in almost all states are elected at the local level. Judicial elections offer more of a mixed bag, but a strong majority of jurisdictions elect their judges in some form or other. Unlike prosecutors and most judges, however, the public defender is typically not an elected official, even though the defender is a public employee with important budgetary and policymaking authority over criminal justice. Why the difference? Do we believe that voters would behave markedly differently when electing public defenders? Or do we believe that public defenders themselves would respond to voter input in less desirable ways than other criminal justice officials? As it happens, we have some actual experience to draw upon in answering these questions because a few jurisdictions actually do elect their public defenders. Florida, Tennessee, and a few places in California and Nebraska elect their chief public defenders at the local level, and have done so for decades.

Do Voters Behave Differently?

As Professor Wright note in the introduction, while the vast majority of jurisdictions have decided to select their public defenders through various appointment techniques,

There are four jurisdictions...which provide for local election of at least some public defenders. California provides for a mix of appointments and elections in the state, and the public defender in San Francisco has long been elected to office. In Nebraska, cities with populations of more than 100,000 may establish public defender offices, and the public defender "shall be elected." Lancaster County, which includes the city of Lincoln, has done so. In Tennessee, the Davidson County public defender office, established in 1962, elects its chief public defender. Other offices in the state followed that selection model when the system expanded statewide in 1989.

Florida has elected its chief public defenders since the dawn of the statewide system.

Chief prosecutors are reelected at alarmingly high rates, with many prosecutors running unopposed. In analyzing the data from Florida and Tennessee, Professor Wright finds that chief public defenders are also on the fast track to reelection:

the percentage of unopposed public defender incumbents is virtually identical to that of prosecutor incumbents (83% compared with 84%, respectively). In addition, the proportion of public defender incumbents who seek re-election and the number who ultimately succeed in their campaigns is even higher than among incumbent prosecutors: incumbent public defenders run in 86% of the races (compared to 75% among prosecutors), and they are re-elected in 86% of the opposed races (compared to 69% among prosecutors).

Table 2: Opposition to Incumbents in Public Defender Elections 

	Prosecutors	All Public Defenders	Florida Defenders	Tennessee Defenders
All Races	3291	148	87	61
Incumbent Runs	2465	127	69	58
	(75% of all races)	(86% of all races)	(79% of all races)	(95% of all races)
Incumbent Unopposed	2063	106	51	55
	(84% of incumbent races)	(83% of incumbent races)	(74% of incumbent races)	(95% of incumbent races)
Incumbent Wins	2340	124	66	58
	(95% of incumbent races)	(98% of incumbent races)	(96% of incumbent races)	(100% of incumbent races)
Incumbent Wins when Opposed	276	18	15	3
	(69% of opposed incumbent races)	(86% of opposed incumbent races)	(83% of opposed incumbent races)	(100% of opposed incumbent races)

According to Professor Wright,

These outcomes might come as a surprise. One might imagine that it would be extraordinarily easy to defeat an incumbent public defender simply by pointing out the aggressive defense tactics that defense attorneys used in prominent cases. Challengers also might criticize an incumbent based on the simple observation that attorneys in the office achieved some acquittals, perhaps more than the statewide average. A challenger might appeal to voters by promising less vigorous defense or lower expenditures in the office. In short, incumbent public defenders would appear to be extraordinarily vulnerable. And yet public defenders face opponents in a minority of election cycles, and they defeat challengers at rates even higher than incumbent prosecutors do.

Not Avoiding a Race to the Bottom

This data seems to belie the cynical view of why most jurisdictions don't elect chief public defenders: that elections would create a "race to the bottom," pursuant to which candidates are elected by promising to make public defenders offices less successful. Professor Wright further supports this conclusion by reviewing the campaign rhetoric in public defender elections and finds that

-Some of the campaign rhetoric points to the personal characteristics - even the moral integrity - of the candidates, rather than the policies or operation of the office. 

-The campaign rhetoric does not remain limited to the individual characteristics of the candidates; the candidates also engage in surprisingly substantive discussions about the priorities and policies of the public defender office.

-Candidates sometimes debate the proper eligibility criteria for defenders who can receive services from the office.

-While cost savings and efficient use of tax dollars dominate the campaign rhetoric, the discussion sometimes runs in the opposite direction, calling for a greater range of services.

Conversely, [c]hallengers are surprisingly circumspect about launching direct criticisms of vigorous defenses by incumbents in particular named cases," although such criticisms are not without precedent. Through this analysis, Professor Wright is able t conclude that

The results of the elections in Florida and Tennessee offer some reason to believe that a race to the bottom is not happening. If it were easy for challengers to win office by promising voters to use less money and to hold back on the use of some defense techniques, we would likely see more incumbents losing elections. As Table 2 indicates, incumbents win just as many elections on the public defender side as they do on the prosecution side. The campaign rhetoric shows a reasonably responsible debate about the best uses of tax dollars and the appropriate range of clients and services that the office should try to cover. Although prosecutor elections feature discussions of recent prosecutions in prominent cases, the public defender campaigns hold the focus more consistently on general policies. The exceptions...show the corrosive possibilities, but most voters have not faced such a prospect.

Elect Some and Not Others

So, what is the reason that the vast majority of jurisdictions appoint chief public defenders while most jurisdictions elect judges and nearly all jurisdictions elect chief public prosecutors? According to Professor Wright, "[t]his inconsistent use of elections...reflects a nuanced and appealing view about the role of public preferences in the design of criminal justice policy in a democracy." Why? Well,

One answer is that these publicly paid agents actually answer to different principals. The prosecutor, of course, represents the public in criminal proceedings and in promoting public safety. Judges represent the public in the resolution of criminal charges, but they are expected to promote public interests as perceived over a longer time frame and set at a higher level of principle.

The public defender, on the other hand, does not exactly serve as an agent for the public. While the public pays the public defender to provide the constitutionally required defense that can support a valid conviction, the attorney represents the client. The taxpayer functions much like the insurance company who selects and compensates the defense attorney in a tort suit. As the Model Rules of Professional Conduct make clear, even when a third party pays for representation, the attorney owes duties of competence, loyalty, and confidentiality to the client and not to the person who pays. Moreover, the voter is not likely to understand the priorities of a criminal defendant. Voters tend to be older, richer, and whiter than most criminal defendants, leading to a mismatch between the voters who select the defense attorneys and the clients who control the objectives of the representation.

While the public can judge chief prosecutors on the cases that they do not and do pursue (and the resources that they use to pursue them,

For the public defender...the voters' authority extends only to the general resource levels they will provide (choosing from the range of funding options allowed under the constitution or other sources of law) and the organizational choices of the leadership. They cannot properly punish the public defender for the means employed to defend a client in a particular case. The adversarial system directs all the benefits of the lawyer's zealous representation to the client, not to the people who pay for the lawyer.

Moreover,

Electing public defenders is also inferior because there are excellent alternative methods of constraining their choices ex ante. The external constraints on public defenders are vibrant even without input from voters. The limited availability of effective defenses built into the criminal code combined with overall funding limits both profoundly shape the work of public defenders. Traditional conceptions of the objectives of criminal defense, conveyed through legal education and professional ethics standards, also promote a regular level of quality in representation. With restraints like these on public defenders, input from voters would be gilding the lily.

By contrast, the external constraints on prosecutor choices are anemic. Criminal codes offer broad and deep options, and judges generally do not second-guess the charge selections of the prosecutors. Election campaigns, however flawed they might be as a signal about public priorities, remain one of the more meaningful external influences on prosecutor decisions. Bureaucratic traditions in other countries might deliver the regularity and reasoned decisions that we expect from prosecutors who operate within the rule of law, but elections still hold an important place in the toolbox of democracy in the United States.

Conclusion

Why do we elect some of the major actors in the criminal justice system but not others? And what do those choices tell us about the roles that these actors play in the system? Professor Wright's article goes a long way toward answering those questions, and I strongly recommend it to readers. I asked Professor Wright what led him to write the article, and he responded:

I wrote the article for a few reasons.  For one thing, I just stumbled across the fact that Tennessee Public Defenders are elected, and it struck me as a bizarre and counterintuitive way to organize the delivery of defense services.  I wanted to learn more about why state leaders would choose this method of delivery, and to explore its effects.  In short, simply curiosity about a random discovery first got me involved in the research.

Second, this piece fits into a broader project in my research.  I have done some work lately on prosecutor elections, so the comparison to the election of public defenders would, I thought, be instructive.  My recent work on comparative prosecutorial services highlights how strange the election of criminal prosecutors seems in a world context.  So this larger election project tries to explain the uniquely American answer to the question of how to blend expertise and accountability as we try to deliver criminal justice in a democracy.  

-CM

New Rules: Supreme Court Adopts Restyled Federal Rules Of Evidence & Sends Them To Congress

As I have previously noted on this blog,

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.

Here is a link to the initial report on the project from 2009. Thereafter, the Committee  released its Preliminary Draft of Proposed Style Revision of the Federal Rules of Evidence for public comment. The public comment period for this draft ended on February 16, 2010, with the following comments being submitted. Now, on April 26th, after a few minor changes, the Supreme Court adopted the latest version of the restyled Evidence Rules and sent them to Congress. The new Rules are set to take effect on December 1, 2011, unless Congress acts otherwise. Daniel Capra, the Reed Professor of Law at the Fordham University School of Law and the Reporter for the Judicial Conference Advisory Committee on the Federal Rules of Evidence, sent me a copy of the latest version of the Rules, which you can download here in three parts (Download Restyled Rules 101-415, Download Restyled Rules 501-706, Download Restyled Rules 801-1103)

As you can see, what the Committee has done for each restyled Rule is to have a side-by-side comparison of the old Rule and the new Rule, followed by a Committee note explaining the reason(s) for the restyling. For instance, here is the comparison for Federal Rule of Evidence 606(b):

Rule 606. Competency of Juror as Witness	Rule 606.  Juror’s Competency as a Witness
(a) At the trial.  A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.	(a)       At the Trial.  A juror may not testify as a witness before the other jurors at the trial.  If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
(b) Inquiry into validity of verdict or indictment.  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.	(b)       During an Inquiry into the Validity of a Verdict or Indictment.   (1)       Prohibited Testimony or Other Evidence.  During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.  The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.   (2)       Exceptions.  A juror may testify about whether:   (A)      extraneous prejudicial information was improperly brought to the jury’s attention;   (B)      an outside influence was improperly brought to bear on any juror; or   (C)      a mistake was made in entering the verdict on the verdict form.

 Committee Note

The language of Rule 606 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules.  These changes are intended to be stylistic only.  There is no intent to change any result in any ruling on evidence admissibility.

________________________________________________________________________________________ 

I would like to thank the Committee and all of those involved with restyling the Rules for all of their terrific work on the restyling project. That project has already garnered two awards: (1) the 2011 Burton "Reform in Law" Award, and (2) the 2011 Clearmark Award, given by the Center for Plain Language.

I will be doing some posts in the coming months about the restyled Rules, and, as noted previously, Katharine Traylor Schaffzin will be guest blogging here about the project soon before the restyled Rules are set to take effect.

-CM

With A Gun?: Appeals Court Of Massachusetts Opinion Addresses Second, Sixth Amendment Issues

The Second Amendment provides that

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Meanwhile, the Confrontation Clause of the Sixth Amendment provides that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him....

It is not very often that a defendant claims that a criminal prosecution violated both his Second Amendment and Sixth Amendment rights, but that was exactly the case in Commonwealth v. Patterson, 2011 WL 1520025 (Mass.App.Ct. 2011).

In Patterson,

Responding to an abandoned 911 telephone call, police went to 48 Forest Street in Franklin where, as they approached, they saw a scared and crying five year old girl, who was repeatedly yelling, "no police." Near her was her mother, who appeared shaken and nervous. The police entered the residence and saw an empty gun holster on the kitchen floor. At that point, the defendant entered the kitchen from the living room and the child said, "He pushed Mommy into the wall. He had a gun." The defendant identified himself as a police officer and stated that he was unarmed. One of the responding police officers ushered him outside. Another officer, accompanied by the mother, the girl, and her seven year old brother, then went upstairs. In the hall, the officer observed a foot-wide indentation in the wall about three feet up from the floor. In the pocket of a jacket hanging in an upstairs bedroom closet, the officer located a Smith & Wesson .38 caliber handgun. The unloaded gun did not have a trigger lock and was not secured in a locked container. Also in the same pocket was hollow point .38 caliber ammunition. 

The defendant was thereafter charged with improper storage of a firearm under G.L. c. 140, § 131L(a). After he was convicted, the defendant appealed, first claiming that G.L. c. 140, § 131L(a) was unconstitutional under District of Columbia v. Heller, 554 U.S. 570 (2008), as applied to the states in McDonald v. Chicago, 130 S.Ct. 3020 (2010). The Appeals Court of Massachusetts disagreed, finding that under the D.C. Code provision found violative of the Second Amendment, a person registered to keep a firearm (apart from law enforcement personnel) was prohibited in any circumstance from carrying or keeping a loaded firearm in his or her home. Conversely, as the Supreme Judicial Court of Massachusetts held in Commonwealth v. Runyan, 922 N.E.2d 794 (Mass. 2010), under under G.L. c. 140, § 131L(a),

an individual with a valid firearms identification card...is not obliged to secure or render inoperable a firearm while the individual carries it or while it remains otherwise under the individual's control. A gun owner may therefore carry or keep a loaded firearm under his or her control in his or her home without securing it with a trigger lock or comparable safety device. The gun owner's obligation to secure the firearm in accordance with the statute arises only when the firearm is stored or otherwise outside the owner's immediate control.

Using this same logic, the Appeals Court of Massachusetts held that G.L. c. 140, § 131L(a) does not violate the Second Amendment.

The defendant's second argument on appeal was that the admission of the child's statement, "He pushed Mommy into the wall. He had a gun," violated his right to confrontation under the Sixth Amendment." The court again disagreed, finding that

 

The child's statement here was made spontaneously, without police questioning, as the officers walked into a volatile and unstable scene of domestic disturbance. There is nothing to suggest that the statement was made for any purpose other than to secure aid, let alone that the five year old child had in mind that the statement would or could be used to prove some fact at a future criminal trial. The statement, accordingly, was not testimonial for purposes of the Sixth Amendment. 

And, because the statement was not testimonial, its admission could not violate the Confrontation Clause.

 

-CM

Prior Consent: Court Of Appeals Of Arkansas Precludes Jury Impeachment Based On Juror's Preexisting Knowledge

SImilar to its federal counterpart, Arkansas 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 asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions 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. 

Under Rule 606(b), it is clear that information that a juror discovers outside of the four walls of the courtroom (e.g., through surfing the 'net, visiting the crime scene, or reading the newspaper) after trial commences can constitute extraneous prejudicial information and form a proper predicate for jury impeachment. But what about information that a juror learned prior to trial in the ordinary scope of his life experiences and carries with him into the jury room? As the recent opinion of the Court of Appeals of Arkansas in Milner v. Luttrell, 2011 WL 1491461 (Ark.App. 2011), makes clear, such information is not extraneous prejudicial information and cannot form a proper predicate for jury impeachment.

In Luttrell, Patricia Milner

underwent a gastric-bypass operation in 1977. In the following years, she experienced problems with reflux and consulted Dr. Forest Miller. Dr. Miller referred her to Dr. Luttrell, who determined that Mrs. Milner needed a "revision" of her previous bypass. Surgery was scheduled for May 13, 1999, and Milner signed a pre-operative consent form describing the procedure as a "reversal gastric bypass and incisional hernia repair." According to Milner, she understood the term "reversal" to mean that she would be restored to her natural, pre-bypass condition. When Dr. Luttrell performed the surgery, however, he replaced the existing bypass with another bypass called a Roux-en-Y. Post-operatively, Milner experienced more gastrointestinal problems and had the Roux-en-Y reversed by another doctor.

Milner thereafter sued Dr. Luttrell for negligence in performing the Roux-enY bypass without her consent and in performing it incorrectly. At trial, the jury found Dr. Luttrell not liable. After trial, Milner's attorneys "submitted affidavits to the court stating that they had learned from an unnamed juror that two jurors on the panel worked for a physician and knew the standards for informed consent and making entries in medical records." The trial court found these affidavits inadmissible under Arkansas Rule of Evidence 606(b), and the Court of Appeals of Arkansas later agreed, finding that "[t]he issue of extraneous prejudicial information has arisen most frequently when jurors have visited an accident scene during trial and reported their observations to other jury members." 

But, according to the court, the case before it did

not involve a juror's foray outside the courthouse to gather extrinsic information. Rather, it involve[d] information that the juror learned prior to trial in the ordinary scope of her life experiences and carried with her into the jury room. In that regard, the present case is more akin to Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988). In Watkins, our supreme court held that a juror's remark to the panel about information she supposedly knew about the appellants' attorney did not constitute extraneous prejudicial information as envisioned by Rule 606(b). The court appreciated the appellants' concern about a juror's harboring a hidden bias or prejudice but held that the appellants' proffered evidence "is not included in the exception under Rule 606(b)...."

Moreover, the great weight of authority in other jurisdictions is that a juror's professional or vocational knowledge does not qualify as extraneous prejudicial information when brought into the jury room. 

-CM

 

Article Of Interest: Caleb Mason's The Use of Immigration Status in Cross-Examination of Witnesses: Scope, Limits, Objections

In July 2008, I published a short essay in the Northwestern Law Review Colloquy entitled, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes. The piece was a a quick reaction to a couple of cases I posted about on this blog (here and here) in which courts permitted inquires into the immigration statuses of witnesses. I think that the essay is a nice illustration of the virtues of the various online supplements to law reviews. I identified a hot issue and was able to give a quick take on it in a couple of months rather than the near year or longer that it takes to publish an article in a traditional law review. And that take was that courts should generally not allow such immigration interrogation. Caleb Mason, a professor at the Southwestern Law School, has now followed up on my essay, with his terrific article, The Use of Immigration Status in Cross-Examination of Witnesses: Scope, Limits, Objections, 33 Am. J. Trial Advoc. 549 (2010), and I think it does great job of engaging in a more nuanced analysis, really digging into the issue of when immigration interrogation is improper and when (and how) it might be permissible.

Professor Mason's article reads like a how-to manual for students learning about impeachment or trial attorneys preparing to argue for or against immigration interrogation, and, indeed, as I will note below, this was his intention in writing the piece. He begins by noting that

In what follows, assume that litigant "P" plans to put on witness "W." Opposing litigant "D"has a good-faith belief that W lacks legal permission to remain in the United States. Litigant P moves in limine to preclude "all questions about immigration status" when W takes the stand.

The proper analysis of this motion should proceed as follows. For each proposed line of cross, the court must ascertain whether the requirements of Rule 608 have been met by satisfying the following elements: first, whether D has alleged a specific instance of conduct; second, whether D has a good-faith basis for alleging the conduct; and third, whether the conduct is probative of W's character for untruthfulness. Even if the Rule 608 requirements are not met, D may still be able to show the possibility of bias arising from W's immigration status. In both cases, the court will have to address the balance between probativeness and unfair prejudice under Rule 403. Finally, the court will have to consider whether W would enjoy a Fifth Amendment privilege with respect to his immigration status. Each of these inquiries will require exploration of factual details about W's prior conduct.

Professor Mason then proceeds to discuss all of the nitty gritty of immigration interrogation, starting with discovery, proceeding with the required good faith basis for asking immigration-related questions, and concluding with permissible and impermissible questions and objections. You can (and should) read his article for a full discussion of the issues, (including numerous "P" & "W" hypotheticals that you could use in class) but in this post, I want to focus on three issues that he addresses:

Rule 608(b)

The first paragraph of Federal Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

So, what does this mean for immigration interrogation? As Professor Mason notes, Rule 608(b)'s "threshold requirement should be dispositive in many cases, because it rules out generalized 'immigration status' questions.' Instead, "D needs to find specific-act questions." Professor Mason then lays out the possibilities for such questions:

-Attorneys should be able to ask illegal aliens about whether they willfully failed to file or engaged in identity theft and filed fraudulent returns. Of course, such questions must be preceded by fruitful factual investigations into whether such deceit occurred and cannot rest upon the presumption that all illegal aliens file false returns;

-Attorneys should be able to ask some illegal aliens about the circumstances of their entries:

-hiking or boating into the U.S. in a remote area and/or under cloak of night are acts of stealth rather then deception and likely would not support immigration interrogation;

-filing false documents or making false claims to enter the U.S. are acts of deception and would support immigration interrogation;

-courts should apply the standard agency test of reasonable foreseeability to determine whether hiding in a vehicle driven over the border is an act of deception sufficient to support immigration interrogation (i.e., was it reasonably foreseeable that the driver, the alien's agent, would have to lie to get across the border?)

Bias

Federal Rule of Evidence 608(b) allows for parties to impeach witnesses through interrogation into specific acts of untrustworthiness to prove the witness' propensity to lie and his likely conformity with that propensity on the witness stand. As Professor Mason notes, interrogation into a witness' biases is not used to prove that the witness is generally a liar but is instead used to prove that the witness has a specific reason to lie in the present cases. Thus, there can be cases when parties can impeach witnesses through evidence of bias that falls outside the scope of Rule 608(b): 

-a defendant should be able to impeach an illegal alien testifying for the prosecution pursuant to a S(nitch) Visa, which allows an otherwise inadmissible person to reside in the United States as consideration for cooperation with the government (and might be able to impeach illegal aliens seeking to curry favor with immigration judges);

-parties might be able to impeach illegal aliens who fear retaliation if they testify against a party (e.g., an illegal employee might fear testifying against an employer who could turn around and report his status); and

-a defendant might be able to impeach a witness for the prosecution to prove that the witness was testifying against him because the witness knew his status and wanted to get him deported.

Fifth Amendment Objections

The second paragraph of Federal Rule of Evidence 608(b) provides that 

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

In my essay, I noted that even if proposed immigration interrogation satisfies the threshold requirement Rule 608(b) and satisfies Federal Rules of Evidence 403 and 611(b) (both discussed in more detail in Professor Mason's article), an illegal alien could simply cite to this second paragraph and the Fifth Amendment to curtail such questioning. As Professor Mason notes, however, the issue is not this cut and dry. Certainly, some witnesses could claim that answering immigration interrogation would tend to incriminate them. But other witnesses might not be able to make such a claim, such as:

-certain immigrants who entered the U.S. legally but overstayed their visas;

-witnesses already punished for their illegal entries;

-hearsay declarants being impeached under Federal Rule of Evidence 806; and

-witnesses who waived the protections of the Fifth Amendment.

Conclusion

In other words, most immigration interrogation interrogation is objectionable, but there are certainly some cases where courts should permit it. As noted before, Professor Mason's article should be extremely useful to attorneys dealing with these types of issues, and I think that it is a fantastic vehicle through which Evidence professors can teach impeachment. I asked Professor Mason what led him to write the article, and he responded: 

I think I called you up in the fall of 2009; I was teaching 608 and looking for examples of different impeachment contexts and how they would work, and I saw your blog post, and then your essay.  I called you, I think, because you said in it that illegal entry wasn't a crime. I was using the issue of illegal alien witnesses as a 608 template for class discussion, and as I thought about it, I realized that although we used illegal alien witnesses all the time at my old job, I had never seen (or done) really systematic briefing on exactly how 608 applied. I'd had defense counsel lead off cross with that question, at least once that I can recall, in a matwit depo.  I could not recall, nor find, a well-articulated holding anywhere on exactly when it would be a proper question and when it wouldn't, but it seemed to me, from prosecuting 1324s and 1326s, that method of entry should matter a lot, and from various other reading (like the Eric Schlosser book with its chapter on migrant farmworkers in San Diego County) that some of the standard assumptions about the inevitability of dishonesty might not apply.  So I wrote this up initially as an example for my class of how a properly investigated, properly litigated impeachment inquiry would go, taking them through every step.  Then I shared it with the other evidence teachers here, and my colleague Myrna Raeder told me about the Trial Advocacy journal and suggested it might fit in well there.  I gave it to my class again this year as a comprehensive study guide for 608 impeachment.  I'm pretty satisfied with it, for what it is-- I think it could function quite nicely as a trial prep tool.

-CM

Mourning The Loss Of Craig Callen

Craig Callen, a professor at the Michigan State University College of Law and one of the foremost Evidence scholars in the world, passed away on Saturday. News of his passing was posted on the Evidence Professor listserv last night at 8:43 P.M., and already numerous prominent Evidence professors have chimed in with thoughts about how wonderful he was as a teacher, scholar, and, more importantly, person. Craig was actually the first Evidence professor with whom I interacted after law school. In my third year of law school, I had written a short piece about Brady v. Maryland and the circuit split over whether the failure to turn over inadmissible can form the basis for a Brady violation.

At that time, I didn't know much about writing law review articles or the law review submission process, but I did know that I wanted to be an Evidence professor, and I was aware of the excellent International Commentary on Evidence. Craig was the Editor-in-Chief of ICE, and I submitted my piece to the journal, having no expectation that it would be accepted for publication. To my surprise, I got a personal e-mail from Craig informing me that the Editorial Board really enjoyed the piece. Of course, there were tons of flaws with it, and Craig did a terrific job of working with me on improving it, really teaching me about what constitutes good legal scholarship. Without that advice, I don't know that I would be a law professor today. He will be missed.

-CM 

Moving Violations: Middle District Of Florida Finds No Problem With Lay Witness' Conclusions Under Rule 701

Federal Rule of Evidence 701 provides that 

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

It is well established under this rule that lay witnesses can offer opinion testimony regarding a car's rate of speed. But did the lay witness go too far in a recent case? According to the recent opinion of the United States District Court for the Middle District of Florida in Hardiman v. Stevens, 2011 1480401 (M.D.Fla. 2011), the answer is "no." I disagree.

In Hardiman, 

John Stevens...and Gregory Hardiman...were involved in a motor vehicle accident. Mr. Hardiman, a Pinellas County school bus driver was sitting in stopped traffic on U.S. Highway 19 when a white van driven by Mr. Stevens approached at a high rate of speed....Mr. Hardiman observed that the road was wet because it had been raining throughout the day.... ccording to Mr. Hardiman, Mr. Stevens did not try to stop until he was immediately approaching stopped vehicles on U.S. Highway 19...The van driven by Mr. Stevens struck a curb and then "became airborne."...The airborne van then struck the left side of the school bus "with such impact that the entire suspension (wheels, axles and springs) were entirely disengaged from the bus and the van proceeded to collide with other southbound vehicles."

Mr. Hardiman and his wife thereafter brought an action against (1) Stevens for negligence and loss of consortium; and (2) Liberty Mutual for uninsured motorist benefits. Stevens thereafter brought a motion for partial summary judgment as to the Hardimans' demand for punitive damages. In denying this motion, the Middle District of Florida considered, over Stevens' objection, the following evidence:

At his deposition, Mr. Hardiman estimated Mr. Stevens was driving at a speed of "at least 50, 55" while "coming up on stopped traffic."...Furthermore, Mr. Hardiman testified that it rained intermittently that day approximately "[e]very 20 minutes."...In his affidavit, Mr. Hardiman averred that Mr. Stevens was driving at "such a high rate of speed" that "a traffic accident was absolutely unavoidable."...In addition, "there was absolutely no indication that [Mr. Stevens] made any evasive action," including engaging the brakes, until "he turned the wheels on the van sharply to the left in an obvious effort to avoid colliding with the stopped vehicles immediately in front of the van."

In finding this evidence to be admissible, the Middle District of Florida concluded that

Contrary to Mr. Stevens's arguments, it is appropriate for Mr. Hardiman to opine as to the rate of speed of Mr. Stevens's car and the weather conditions on the date of the accident. Rule 701, Fed.R.Evid., allows opinion testimony by lay witnesses that is “rationally based on the perception of the witness.” See United States v. Carlock, 806 F.2d 535, 552 (5th Cir. 1996) (noting that one of the "common illustrations” of Rule 701 lay opinion testimony is “an expression of opinion by a lay observer of a car's speed.")

My response? I have no problem with Hardiman estimating Stevens' speed at "at least 50, 55...." I also have no problem with Hardiman testifying about the intermittent rain. Indeed, I don't even see this latter testimony as opinion testimony; instead, it is simply factual testimony properly based upon Hardiman's personal knowledge under Federal Rule of Evidence 602. For the same reason, I have no problem with Hardiman's testimony about Stevens seemingly not making any evasive action and then turning the wheels sharply. Again, this was proper factual testimony under Rule 602.

But what about Hardiman's testimony that Mr. Stevens was driving at such a high rate of speed that a traffic accident was absolutely unavoidable? I don't see how such a conclusion is rationally based on the perception of a lay witness or helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Instead, it is exactly the type of baseless legal conclusion that the Rules preclude. 

-CM

Knockin' On Heaven's Door?: Superior Court Of Pennsylvania Questionably Finds Statements Qualify As Dying Declarations

Like its federal counterpart, Pennsylvania Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay for

A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

As the recent opinion of the Superior Court of Pennsylvania in Commonwealth v. Priest, 2011 WL 1499828 (Pa.Super. 2011), makes clear, even statements made six hours (or three days) before the declarant's death can qualify as dying declarations. But did the court correctly conclude that the declarant's statements in Priest qualified as dying declarations? I don't know.

In Priest, Markez Priest was convicted by a jury on the charges of first-degree murder and firearms not to be carried without a license. The victim of that murder was Darius Odom, who was shot in his right arm and the back of his neck. After being shot, "Odom was flown to UPMC Presbyterian....Four employees of UPMC involved with the treatment of Mr. Odom (Jaclyn Kuzminsky, a certified respiratory therapist, Dr. Brian Bane, an anesthesiologist, Nathan Sullivan, a registered nurse, and Dr. Raquel Forsythe, a trauma surgeon) testified that Mr. Odom said "Markez shot me" immediately prior to being intubated. Specifically,

Ms. Kuzminsky testified that, when she was providing Mr. Odom the bagging mask, he said, "Please don't let me die," and "Markez shot me."...Dr. Bane testified that, just prior to sedating Mr. Odom, he kept repeating the name "Markez" and said, "Markez shot me."...Nurse Sullivan testified that, when he called out for the sedation medication, Mr. Odom said, "Don't let me die," and "Markez shot me."...Dr. Forsythe testified that, after she told Mr. Odom she was going to insert a breathing tube, he said, "Save me," and "Markez. He shot me." 

The trial court admitted these statements as dying declarations under Pennsylvania Rule of Evidence 804(b)(2), and, on Priest's ensuing appeal, the Superior Court of Pennsylvania found no error with this decision, noting that the prosecution presented a videotape of Odom's treatment that showed him

on a table surrounded and treated by multiple medical personnel. [Mr.] Odom repeatedly tells medical personnel that he does not want to die, he complains of pressure in his chest and difficulty breathing, and he expresses a desire to see his daughter. Following these statements, and shortly before being intubated, [Mr.] Odom identifies "Markez" as the individual who shot him.

Moreover, the court noted that 

the lapse of six hours between [Mr.] Odom's statements and his actual death is not determinative of the issue as to whether statements were admissible under the dying declarations exception to the hearsay rule. In the case of Commonwealth v. Griffin, [supra], the victim was shot in the arm, which severed a major artery. Police came upon the victim lying on the ground, bleeding heavily, and drifting in and out of consciousness....The victim asked the officers to get him to a hospital, asked the officers to "just let me die," and identified [Appellant], Aaron Griffin, as his assailant....The victim died as a result of his injuries, but not for three days following his identification....The Superior Court held as follows:

[A]ppellant would have us rule that the victim's statement could not serve as a dying declaration because the victim did not actually die until three days after the statement was made. However, Appellant cites us no case with such a holding, and in fact ignores several decisions to the contrary.

Now, I agree with the Superior Court of Pennsylvania that a statement can be made hours or days before the declarant's death and still qualify as a dying declaration as long as the declarant believed his death to be imminent when he made the statement. But, to me, the juxtaposition of Griffin and Priest is striking. In Griffin, the declarant was bleeding heavily, drifting in and out of consciousness, and told the officers to let him die. It seems clear to me that this declarant believed that his death was imminent and that he had no hope of survival.

Conversely, in Priest, Odom apparently said, "Please don't let me die" and "save me." The court's opinion gives no indication that he was bleeding profusely or that he was losing consciousness. Now, it is tough for me to question the court(s) when I can't see the videotape of Odom's treatment, but from the court's opinion, Odom seems like a man who felt that he could be saved, who felt that his death was not imminent. And, if that was the case, his statements should not have qualified as dying declarations. 

-CM

Georgia On My Mind: Georgia Senate Overwhelming Votes To Approve Evidence Code Based On Federal Rules Of Evidence

As of 2010, forty-two states had passed state rules of evidence similar to the Federal Rules of Evidence. On January 1, 2011, that number became 42 as the Illinois Rules of Evidence went into effect. Earlier this week, on the last day of the 2011 legislative session, the Georgia Senate voted 50-3 to pass a Comprehensive Revised Evidence Code patterned on the Federal Rules of Evidence that would make Georgia state #43. Governor Nathan Deal is now expected to sign the bill into law, which would take effect on January 1, 2013. So, what led to the creation of this new Evidence Code, what will it replace, and what are the remaining states?

You can find most of the answers to these first two questions in Evidence, 27 Ga. St. U. L. Rev. 1 (2010), by Daniel Hendrix, Sofia Jeong, and Warren Thomas. As the authors note, 

The last major revision of the Georgia Evidence Code, Title 24, was enacted in 1863. Since that time, judicial systems and processes have evolved faster than the Georgia Rules of Evidence (GRE). Electronic documents, communications, telephone records, and photography have developed since the creation of the GRE, but the rules do not always explicitly accommodate these types of evidence.

(As an example, you can take a look at my recent post about the Supreme Court of Georgia's treatment of a computer printout under the Best Evidence Rule)

The authors then note that "[t]he first concerted effort to move away from the current GRE to the FRE occurred when the Evidence Study Committee was formed in August 1986." But, as so often happens in these types of endeavors, the project moved in fits and starts, dying a thousand deaths in different committees and later facing "strong opposition from solicitors and prosecutors." Then,

During the summer of 2009, Representative {Wendell] Willard continued the push toward adopting the FRE. Acknowledging the concerns that prosecutors raised during the previous legislative session, Willard included Brian Fortner, the head of the Georgia Association of Solicitors-General, on the Study Committee to revise the bill. In an effort to address these concerns related to the bill, the Study Committee discussed at length the differences between the GRE and  the FRE. The Study Committee analyzed the rules section by section, carefully vetting the bill in several stages--at the Bar level, at the legislative study level, and during the sessions--to ensure that the rules were written in a way that would prevent unexpected surprises or "time bombs." The revisions made during these meetings resulted in the version of the bill introduced in the 2010 session.

Soon thereafter, the Georgia House passed the bill by an overwhelming margin, the Senate has now followed suit, and the Governor is set to give the bill his imprimatur.

So, how much of Georgia's new Evidence Code will track the Federal Rules of Evidence, and how much will consist of Georgia deviations? According to the authors of Evidence, "'The vast majority of the bill mirrors the FRE; in fact, the bill has been characterized as '98% the Federal Rules and 2% of some other, whether it is Georgia law or some hybrid of the two.'" It seems that the main differences between Georgia's new Evidence Code and the Federal Rules of Evidence are (1) that there rape shield rules are somewhat different; and (2) that Georgia allows for more extensive cross-examination -- "thorough and sifting cross-examination" -- than Federal Rule of Evidence 611(b).

So, what are the remaining 7 states? (1) California, (2) Connecticut, (3) Kansas, (4) Massachusetts, (5), Missouri, (6) New York, and (7) Virginia. Which is likely the next domino to fall? I don't know? I was contacted by some folks in Missouri based upon my work on the Illinois Rules of Evidence, and they noted that the Missouri Constitution's authorization of the Supreme Court of Missouri to promulgate rules specifically excludes rules of evidence and that a legislative enactment is unlikely. I served as a visiting professor last semester at my alma mater, William and Mary, last fall, and after reading up on all of the state's struggles with trying to enact rules of evidence, I don't see codification coming down the pipe any time soon. From my time working in New York, I saw a similar reluctance to codify.

The Supreme Judicial Court of Massachusetts famously refused to adopt the Proposed Massachusetts Rule of Evidence in 1982 and has shown no signs of wavering in its position. California and Kansas both have codified rules of evidence based upon the Uniform Rules of Evidence, and I don't see them jumping tracks to the Federal Rules of Evidence any time soon. Finally, Connecticut finally codified its rules of evidence in 2000, but it specifically refused to model its Evidence Code after the Federal Rules of Evidence. Therefore, i'm not sure that any of the remaining states is a good candidate to become state #44.

-CM

Article Of Interest: Jan Stiglitz's View From the Trenches: The Struggle to Free William Richards

A popular game among lawyers (and law professors) while watching legal TV shows is "spot the legal error." And as readers of this blog with their law degrees know, such shows are replete with inaccuracies. Some of these errors are innocuous. As an Evidence professor, I often see evidence wrongfully admitted or excluded, but I don't worry that such errors give laypersons a dangerous misimpression of how trials are conducted. Of course, one of the more obvious errors in legal TV shows is the rapidity with which disputes are resolved. In the classic "client of the week" format, we often see a client in complex litigation retain a firm, complete discovery, and achieve a settlement or verdict in a matter of days when in reality the entire process would likely drag on for years.

But I still don't know that this "fast forward justice" misleads the public in a way that is all that troubling. But what about when the lawyer at one of these fictional firms is given the pro bono project of the wrongfully incarcerated inmate? If you've watched one of these episodes, you know the score. The firm gets the case, and it throws its full resources into finding the flaws in the prosecution's case. Often, the inmate is on death row, and the firm has only a few days or hours to stop the execution. The firm gets a lab to expedite testing of forensic evidence. It gets a judge to hear an emergency motion. The inmate's innocence is proven. The episode ends with the prison gates opening and the inmate being reunited with his family. Tears are shed. Justice has been served.

In reality, though, these types of wrongful conviction cases are much more often of the "justice delayed is justice denied" variety than the "fast forward justice" we see on TV. And I think that the real value of the recent article, View From the Trenches: The Struggle to Free William Richards, 73 Albany L. Rev. 1357 (2010), by Jan Stiglitz, a professor and the director of the California Innocence Project at the California Western School of Law, is that it exposes the realities of the situation.

Professor Stiglitz's article deals with the California Innocence Project's ongoing representation of Williams Richards. As Professor Stiglitz notes, our story starts on August 10, 1993, with Pamela Richards being fatally strangled and beaten with a large paving stone and a cinder block. The San Bernardino County Sheriff's Department soon settled upon a suspect, Pamela's husband, William Richards, who claimed that he called 911 after arriving home from work and discovering his wife's dead body. The prosecution twice charged William with murder, and both trials ended with hung juries. The prosecution did have some evidence of William's guilt, such as blue fibers allegedly found under Pamela's fingernail that were consistent with material from the shirt that William had worn. But there were significant problems with the prosecution's case, not the least of which was the fact that "[t]he crime scene indicated a violent bloody struggle had taken place and [William] had almost no blood on his shirt and no blood spatter on his pants."  

At a third trial, the prosecution delivered what turned out to be its smoking gun: testimony from a forensic odontologist regarding a crescent shaped injury which had been found on Pamela's right hand. According to the prosecution's expert, (1) the injury was consistent with a human bite mark; (2) whoever had left that bite mark had an abnormality which would only occur in "one or two or less" out of one hundred people; and (3) William could be one of those people. After three days of deliberation, the jury convicted William. The prosecution finally got its man. But was the smoking gun a misfire?

That was William's claim when he contacted the California Innocence Project in 2001. And, after some research, the Project determined (1) that there was a hair under Pamela's fingernail that was never tested; (2) that the paving stone and cinder block could contain testable genetic material left by the person who wielded them; and (3) that at least two alternate suspects existed, including Pamela's ex-boyfriend, who called Pamela on the night of the murder.

The Project quickly followed these leads. Under newly enacted California Penal Code Section 1405(f), they could get genetic testing of the murder weapons and the hair if the identity of the perpetrator was at issue, the evidence sought to be tested was material to issue of identity, and the test results would have raised a probability of a more favorable result if the testing had been available at the time of trial. The Project contacted the Deputy District Attorney (DDA) to see if the District Attorney's Office could expedite the testing. The response? The DDA knew that William was guilty and would vigorously oppose testing.

It was now December 2002, and the Project filed its motion for testing. In February 2003, the District Attorney's Office filed its opposition. In July 2003, a judge granted the Project's motion. Who should do the testing? The Project's DNA consultant said it should be the California Department of Justice (DOJ) to preclude claims of biased or untrustworthy results. The evidence was sent to the California DOJ in mid-2003, and...it sat there. 2003 turned into 2004. 2004 gave way to 2005. The Project sent letters to the California DOJ. Another year passed. The Project made calls to the California DOJ. Another year behind bars for William Richards. Finally, in February 2007, the Project got its results: DNA recovered from the paving stone was not a match for either WIlliam or Pamela, and mitochondrial DNA testing on the hair revealed that it belonged to neither spouse.

Unlike the evidence sent to the California DOJ, the Project did not remain idle over these four years. Instead, it set about to diffuse the prosecution's smoking gun. The odontologist at the third trial based his testimony on a photograph of Pamela's right hand. It turned out that the camera taking that photo was not on the same plane as her hand, creating an "angular distortion." The photo was corrected through Adobe Photoshop, and one expert was able to exclude Richard's teeth as the source of the injury to Pamela's hand. Another expert opined that the injury might not even be a bite mark. The prosecution's odontologist recanted his testimony.

And what about the blue fibers found under Pamela's fingernails? A student compared autopsy photos with the later photos showing the blue fibers, and the "examination suggested that the fibers were not present in the nail at the time of the autopsy and therefore could not have been there as a result of any struggle between Pamela and her killer." Moreover, the student uncovered the fact that the criminalist finding the fibers "had been accused of providing false and misleading evidence in another high profile murder case in San Bernardino County."

It was now November 2007. The Project filed a petition for writ of habeas corpus. The DA filed a long, rambling response. The Project successfully moved to strike it. Delay. The DA filed a second, equally flawed response. The Project again successfully moved to strike. Delay. It was possible that the prosecution failed to turn over photos and a report. The Deputy District Attorney recused himself. Delay. Finally, William got his day in court, and the Project convinced the judge to grant the petition on August 10, 2009.

But where were the opening prison gates? Where was the crying family? Not yet. The judge stayed the granting of the writ so that the prosecution could appeal. Professor Stiglitz's article closes by noting that "[a]s this is being written, the prosecution has appealed and it looks like another year will pass before we have the possibility of a final resolution of the case."

In fact, more than a year passed. Then, on November 19, 2010, the Court of Appeal, Fourth District, Division 2, Calfornia reversed in In re Richards, 2010 WL 4681260 (Cal.App. 4 Dist. 2010) (Download Richards opinion). According to the court,

While Defendant's petition suggested that certain evidence against him was weak, the fact remains those weaknesses were brought out during the trial. Even with the weaknesses, there was sufficient circumstantial evidence to establish Defendant's guilt. The new evidence offered by Defendant in support of his petition failed to undermine the prosecution's entire case and point unerringly to his innocence.

Was the court right? I don't think so, but I will leave it up to readers to decide. So, where does William stand? I contacted Professor Stiglitz, and he responded that the Supreme Court of California is set to hear William's appeal in late summer or early fall. Will William finally be set free? I don't know, but if he is, it will certainly not be the "fast forward justice" seen on TV. Ten years have passed since William contacted the California Innocence Project. Eight and a half years have passed since the evidence which I think proves his innocence was sent off for testing. Three and a half years have passed since the test results came back. William remains in prison. Things are not always as seen on TV.

-CM 

Be Kind, Rewind: Southern District Of Ohio Uses Best Evidence Rule To Preclude Admission Of Private Eye's Affidavit

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

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

I always tell my Evidence students that the Best Evidence Rule rarely prevents proponents from proving the contents of writings, recordings, and photographs. Instead, the provisions of Article X of the Federal Rules of Evidence merely point to how those contents will be proven. If the proponent has the original, it can introduce the original. If the proponent has a "duplicate," it can introduce the duplicate. And, if the proponent has neither, it can still prove the contents of the writing, recording, or photograph unless it lost or destroyed the original in bad faith or provides no reason for failing to produce it. The recent opinion of the United States District Court for the Southern District of Ohio in Crace v. Efaw, 2011 WL 1459357 (S.D. Ohio 2011), is thus the exception to the general rule.

In Efaw, David Crace, the plaintiff,

called police during a domestic dispute with his wife in their home....Patrolman Wallace Workman and Deputy Wes Collins responded to the call....Patrolman Workman arrested and handcuffed plaintiff, charged him with domestic violence, and drove him to the Lawrence County Jail....

Once at the jail, plaintiff was taken to a bench in the booking area....Defendants Deputy Richard Slack, Deputy Boyd Blake and Deputy Amanda Efaw were working at the jail that evening....While Deputy Efaw entered the booking information, plaintiff was asked about completing fingerprint paperwork....Shortly thereafter, plaintiff was taken to the ground and a physical altercation between plaintiff and Deputy Slack, Deputy Blake, Patrolman Workman and other officers followed....Deputy Efaw observed, but did not participate in, the physical altercation....

Plaintiff was then lifted to a standing position and placed in a restraint chair....After posting bond and leaving the jail, plaintiff sought immediate medical treatment at St. Mary's Hospital....Plaintiff allege[ed] that he suffered injuries to various parts of his body. 

Crace thereafter brought an action under 42 U.S.C. Section 1983 against the defendants in their individual capacities. Apparently, there was a videotape recording of the events during Crace's booking, and Crace hired a private investigator, Stand Molnar, to review the jail's videotape recording of the events during the booking process, including the physical altercation involving Crace. The defendants moved for summary judgment dismissing the complaint, Crace sought to introduce an affidavit by Molnar stating what he saw on the recording, but the Southern District of Ohio found that it was inadmissible under Federal Rule of Evidence 1002 because

Mr. Molnar was not present during these events and his affidavit simply offers his interpretation of the events captured on videotape, i.e ., Mr. Molnar's knowledge is derived exclusively from reviewing the videotape....The Federal Rules of Evidence, however, require that "[t]o prove the content" of a recording, the original recording is required unless an exception applies. Fed.R.Evid. 1002. Plaintiff does not submit the videotape referred to in the Molnar Affidavit, nor does he explain why he could not do so. None of the exceptions to Fed.R.Evid. 1002 appear to apply in this case. See Fed.R.EVid. 1004, 1005, 1006, 1007 (providing exceptions when the originals are lost, destroyed, unobtainable, in the possession of party opponent, relate to collateral matters, of public record, voluminous, or are the admission of a party). Accordingly, the Court will not consider the Molnar Affidavit when determining whether there exists a genuine issue of material fact.

-CM

Article Of Interest: Eyewitness Errors and Wrongful Convictions: Let's Give Science a Chance, By David A. Sonenshein and Robin Nilson

Readers of this blog know of my interest in the inaccuracy of eyewitness identifications (see, e.g., here, here, here, here, and here) and efforts to increase their reliability (see, e.g. here). This interest came from the confluence of two events: First, I read about the results of The Illinois Pilot Program on Sequential Double-Blind Identification Procedures, which seemed to suggest that traditional lineup methods are uncannily accurate and that more modern safeguards actually lead to less reliable identifications. Thereafter, I saw a 60 Minutes piece about Jennifer Thompson's (mis)identification of Ronald Cotton as her rapist and about the problems inherent in traditional lineup methods. This piece changed the way that I thought about eyewitness identifications, and I now play the piece in all of my Evidence and Criminal Procedure classes. The Cotton-Thompson case also provides the launching point for an excellent recent article about eyewitness (mis)identifications, Eyewitness Errors and Wrongful Convictions: Let's Give Science a Chance, 89 Or. L. Rev. 263 (2010), by David A. Sonenshein and Robin Nilson, professors at the Temple University Beasley School of Law.

Supreme Court Case Law

After discussing the Cotton case, in Part I of the article, the authors lay out the Supreme Court's case law on eyewitness identification. Specifically, they note that in its 1967 opinion in

Stovall v. Denno, the Court held that due process requires the suppression at trial of identifications that courts deem necessary but "unduly suggestive" under a "totality of the circumstances" test. An unnecessarily suggestive lineup or showup identification would be per se excluded.

But fast forward five years and substitute the Burger Court for the Warren Court, and you get Neil v. Biggers, in which 

the Burger Court essentially overruled Stovall, holding that once a trial court found a lineup unnecessarily and impermissibly suggestive, due process required that a court apply a "totality of circumstances test" to demonstrate the reliability of the identification before admitting the identification at trial. The Court set out five factors that make up the totality of the circumstances: the witness's opportunity to observe, the degree of attention paid by the witness, the accuracy of the witness's initial description, the certainty of the witness's lineup identification, and the length of time between the crime and the identification confrontation. The Court, however, deleted the term "unnecessarily suggestive" from the due process test, thereby placing its imprimatur on the admission of suggestive identifications even where the government chose, but was not forced by circumstance, to conduct a suggestive identification procedure. 

Moreover, after another five years passed, the Court in Manson v. Brathwaite

reaffirmed that the Biggers five-prong test was required only when authorities had conducted an impermissibly suggestive lineup. The five prongs--henceforth known as the "Brathwaite factors"--are intended to ensure "reliability," which, in the Brathwaite Court's view, "is the linchpin in determining the admissibility of identification testimony." Thus, after Biggers and Brathwaite, the Court would have the lower state and federal courts balance the degree of lineup suggestiveness against the five factors that the Court identified as those which could ensure reliability despite unnecessary and improper police suggestions.

The result: few identifications are deemed unnecessarily or impermissibly suggestive. But do the Brathwaite factors and traditional lineup methods still hold water on crash against the rocks of modern forensic science and psychology? The authors argue the latter.

Blinded Me With Science

In Part II, the authors begin by critiquing traditional lineup methods. These include:

(1) the fact that most jurisdictions use "simultaneous lineups" (where eyewitnesses view all suspects and fillers at once) rather than "sequential lineups" (where eyewitnesses view suspects and fillers seriatim, i.e., one at a time). The problem with the former technique is that it often leads to "relative judgment," i.e., the eyewitness comparing everyone in the lineup and picking the person who most closely resembles the perpetrator, which leads to false positives;

(2) the fact that most jurisdictions use "non-double blind" lineups (where the administrator knows the suspect's identity) rather than "double-blind" lineups (where the administrator does not know the suspect's identity). The problem with the former is that implicit and/or explicit administrator bias can lead to false positive identifications; and 

(3) the fact that most jurisdictions use non-blind administrators often leads to expressions of approval after "positive" identifications. The problem with this is that it leads to "confidence malleability," wherein an eyewitness making an initially tentative identification becomes more confident in that identification after receiving (implicit and/or explicit) positive feedback from the administrator.

The authors then note that modern forensic science dispels four of the five Brathwaite factors:

(1) Opportunity to Observe: The Brathwaite analysis fails to account for (a) "Visual Hindsight Illusion," pursuant to which eyewitnesses think that they recognize features of people that they think they know at distances (e.g., 150 feet) suggesting such recognition is impossible; and (b) the tendency of witnesses to overestimate how long they saw the perpetrator and underestimate the extent to which their view was obstructed;

(2) Attention: "Contrary to the simplistic Brathwaite analysis, modern forensic science has confirmed that the relationship between the degree of attention a witness pays and the reliability of his subsequent identification is subtle and often unpredictable. For instance, a witness who did not pay close attention to a perpetrator's particular facial features, but instead simply looked at the perpetrator's face, is more likely to make an accurate lineup identification. Although a witness who concentrated on the perpetrator's facial features is more likely to provide police with an accurate description of the perpetrator, he is also more likely to make an inaccurate lineup identification;"

(3) Description Accuracy: "There is no significant correlation between the accuracy of a witness's initial description of the perpetrator and the accuracy of the witness's subsequent lineup identification. Scientists believe that the two types of memory involved--recognition and recall recognition--account for this lack of correlation. Recognition relates to the ability of a witness to describe someone whom he has seen before in a rapid and uninvolved process; recall recognition relates only to a witness's ability to identify what he has seen after an intentional retrieval stage requiring some effort;"

(4) Certainty: "Historically, some experts believed that there is a significant (but not overwhelming) correlation between the certainty and accuracy of a witness's identification. Unfortunately, as has been discussed, because the certainty of lineup identifications is so often the result of police encouragement, the validity of that correlation is questionable. In fact, the leading researchers have directly challenged the validity of eyewitness certainty as an indicator of accuracy."

Thus, "[t]he 'delay' factor is the only Brathwaite factor that has earned the approval of the social science community as relevant to reliability." to reliability."

No Country for Old Laws 

In part III of the article, the authors focus upon reform efforts at both the federal and state levels, including changes in New Jersey, Illinois, Wisconsin, Virginia, Maryland, and North Carolina, which "has adopted the most wide-ranging lineup reforms." (which I detailed in this post). The authors then discuss Minnesota's lineup reform pilot program and Illinois' aforementioned counterpart, explaining why the latter was flawed (for more information, check out this link, which is included in the article).

In the Trenches 

In part IV, the authors track the treatment of the the Brathwaite factors in state courts across the country. They initially note that "[i]n applying Brathwaite, the highest courts of some forty states have declined to broaden its protections, their authority to do so under their own interpretations of their own due process clauses notwithstanding." On the other hand, some state supreme courts have found that the Brathwaite factors are inadequate. The Georgia and Connecticut Supreme Courts have decided to give strengthened cautionary instructions to jurors in connections with the introduction of eyewitness identification evidence, but the authors doubt their efficacy based upon a number of cognitive biases, such as reactance theory, belief perseverance, and ironic mental processes (e.g., if I tell you not to think of a white bear, what do you think about?). Moreover, some states have begun to allow defendants to present expert testimony on the inaccuracy of eyewitness identifications (with the Supreme Court of Utah recently reversing course and allowing such as testimony as evidence, as noted on this blog).

Conclusion

In the end, however, the authors recommend the more radical approach adopted by the Supreme Judicial Court of Massachusetts and the New York Court of Appeals. According to the authors,

We recommend that state courts follow the reasoning of the Supreme Judicial Court of Massachusetts and the New York Court of Appeals in returning to the Stovall test, which bars the admission of any identification that is unnecessarily suggestive (e.g., a showup in an emergency situation). In addition, this test allows the admission of other suggestive identifications only if the court is convinced by clear and convincing evidence that they and any resulting in-court identifications are reliable based on the scientific factors that provide real indicia of reliability. Rather than focus exclusively on the inadequate Brathwaite factors, courts should insist (except in extraordinary circumstances) on (1) double-blind lineup or photo array procedures, (2) the use of at least five fillers who resemble the suspect to a reasonable degree (e.g., height, weight, race or skin tone, and hair), (3) sequential lineups or photo arrays, (4) informing the witness that the suspect is not necessarily in any of the lineups, and (5) videotaping the lineup and the witness's statements during the lineup procedure. In addition, state courts can and should require, under their state constitutions, the presence of defense counsel or some other person associated with the suspect at any lineup or photo array, irrespective of whether the identification procedure is conducted before or after the lodging of an indictment or other formal charge. Finally, in order to fully inform jurors of the counterintuitive information surrounding the identification process, and given its general acceptance in the field of psychology, all courts should admit properly qualified expert testimony on the manner in which the mind processes identification information.

From everything I have read about the inaccuracy of eyewitness identification and the high percentage of convictions reversed based upon mistaken identifications, I strongly agree with this approach and hope that more courts adopt this reasoning. Here's hoping that those in power read this excellent article and begin enacting reforms to increase the validity of eyewitness identifications and decrease false positives. I asked the authors what led them to write the article, and Professor Sonenshein responded,

The genesis of the article is my following of the stories of innocent men convicted on wrongful identification, which along with erroneous confessions make up the bulk of wrongful convictions. As an Evidence teacher and scholar, I have been troubled by the resistance of many courts to admit expert testimony on the vagaries of eyewitness identification under either Rule 702 or Frye on the specious theory that jurors do not need assistance in assessing the probative value of eyewitness ids.

-CM

It's So Juvenile: Ohio Child Custody Case Reveals Differences Between Federal And Ohio Rules On Juvenile Adjudication Impeachment

Federal Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

As the recent opinion of the Court of Appeals Of Ohio, Twelfth District, in In re L.E.N., 2011 WL 1346825 (Ohio App. 12 Dist. 2011), makes clear, Ohio Rule of Evidence 609(d) is actually more restrictive than its federal counterpart although this distinction was ultimately irrelevant to the court's opinion.

In re L.E.N. was an appeal by a father from a decision granting legal custody of his daughter, L.E.N., to the child's biological mother. Part of the basis for the father's appeal was that the trial court improperly refused to admit evidence of L.E.N.'s stepfather's juvenile record as impeachment evidence. In finding that the trial court acted properly, the Court of Appeals noted that Ohio Rule of Evidence 609(d) provides that "Evidence of juvenile adjudications is not admissible except as provided by statute enacted by the General Assembly."

In other words, under Ohio Rule of Evidence 609(d), juvenile adjudications are never admissible as impeachment evidence (without statutory authorization) while under Federal Rule of Evidence 609(d), juvenile adjudications are sometime admissible in criminal trials against witnesses other than accuseds. So, why does Federal Rule of Evidence 609(d) sometimes allow for the admission of juvenile adjudications as impeachment evidence? Well, according to the accompanying Advisory Committee's Note,

The prevailing view has been that a juvenile adjudication is not usable for impeachment. Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905 (1941); Cotton v. United States, 355 F.2d 480 (10th Cir. 1966). This conclusion was based upon a variety of circumstances. By virtue of its informality, frequently diminished quantum of required proof, and other departures from accepted standards for criminal trials under the theory of parens patriae, the juvenile adjudication was considered to lack the precision and general probative value of the criminal conviction. While In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), no doubt eliminates these characteristics insofar as objectionable, other obstacles remain. Practical problems of administration are raised by the common provisions in juvenile legislation that records be kept confidential and that they be destroyed after a short time. While Gault was skeptical as to the realities of confidentiality of juvenile records, it also saw no constitutional obstacles to improvement. 387 U.S. at 25, 87 S.Ct. 1428. See also Note, Rights and Rehabilitation in the Juvenile Courts, 67 Colum.L.Rev. 281, 289 (1967). In addition, policy considerations much akin to those which dictate exclusion of adult convictions after rehabilitation has been established strongly suggest a rule of excluding juvenile adjudications. Admittedly, however, the rehabilitative process may in a given case be a demonstrated failure, or the strategic importance of a given witness may be so great as to require the overriding of general policy in the interests of particular justice. See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). Wigmore was outspoken in his condemnation of the disallowance of juvenile adjudications to impeach, especially when the witness is the complainant in a case of molesting a minor. 1 Wigmore § 196; 3 Id. §§ 924a, 980. The rule recognizes discretion in the judge to effect an accommodation among these various factors by departing from the general principle of exclusion. In deference to the general pattern and policy of juvenile statutes, however, no discretion is accorded when the witness is the accused in a criminal case.

-CM

Can I See Some ID?: EDNY Opinion Reveals Differences Between Federal & NY Prior ID Rules

Federal Rule of Evidence 801(d)(1)(C) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person....

As the recent opinion of the United States District Court for the Eastern District of New York in Linton v. Bradt, 2011 WL 1252752 (E.D.N.Y. 2011), reveals, New York also allows for 

In Bradt, WIlliam Bradt was convicted of second-degree murder in New York state court. ABout five minutes after Bradt allegedly shot the victim, a detective interrogated two eyewitnesses, who indicated that Bradt shot the victim. These statements were admitted at Bradt's trial as excited utterances. After Bradt unsuccessfully appealed in the New York state court system, he filed a habeas petition with the United States District Court for the Eastern District of New York.

The court found that there was no error, and certainly no constitutional error, in admitting these statements as excited utterances. Moreover, it noted that these statements also could have been admitted under Federal Rule of Evidence 801(d)(1)(C) as prior statements of identification. The court then noted that while New York courts have apply a more defendant-protective evidentiary rule,

the New York Court of Appeals has held that prior identifications can be introduced, notwithstanding objections based on bolstering or hearsay, when the identification is the key issue in the case and the prior identification is only offered to show "the opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification..." In that situation, a limiting instruction is appropriate.

In other words, under federal law, prior identifications are always admissible and admissible to prove the truth of the matter asserted (because they are non-hearsay), while, under New York law, prior identifications are only sometimes admissible and only for some purposes.

-CM

 

Limited Too: Court Of Appeals Of Indiana Notes That Its Rule 105 Is Different From Every Other Rule 105

Federal Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Meanwhile, Indiana Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly.

So, is there a difference between the word "instruct" in Federal Rule of Evidence 105 and the word "admonish" in Indiana Rule of Evidence 105? According to the recent opinion of the Court of Appeals of Indiana in Webb v. State, 2011 WL 1379830 (Ind.App. 2011), the answer is "yes."

In Webb, Brice Webb was convicted of murder. At trial, the prosecution introduced into evidence a videotaped interrogation of him by police. On appeal, Webb claimed, inter alia,

that the videotaped police interview should not have been admitted because "the statements of officers conducting the interrogation were prejudicial, and that prejudicial impact outweighed the probative value."...He also argue[d] that the statements police attributed to third parties constituted inadmissible hearsay. Finally, he maintain[ed] that "any limiting [i]nstruction is insufficient to overcome the prejudice created by" the hearsay statements. 

In response, the Court of Appeals of Indiana noted that

Webb argue[d] only that statements by police on the videotape, not his own statements, [we]re inadmissible. In essence, then, his argument [wa]s based on evidence that is admissible in one sense and inadmissible in another. Evidence Rule 105, which applies in such instances, provides: "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly."

The court then noted that in Humphrey v. State, 680 N.E.2d 836, 839 n.7 (Ind. 1997), the Supreme Court of Indiana said the following about Indiana Rule of Evidence 105:

The Indiana version of Rule 105 is apparently the only in the nation to use the term "admonish" rather than "instruct."...Judge Miller has opined that the distinction is intended to enable a party to request a limiting admonition at the time the evidence is offered, rather than waiting until the jury instructions....Thus, a limiting admonition under Rule 105 (usually during trial) is to be distinguished from a limiting instruction (usually after evidence has been presented).

The Court of Appeals of Indiana, however, noted that the trial court complied with this Rule because it admonished the jury before the videotape was played that, inter alia,

I need to caution you that during the interview with the defendant, the police officers made various statements and allegations. While those statements and allegations are legitimate and legally permissible during an interview, they are not evidence and are not to be considered by you as evidence.... 

Now, of course, this is not to say that other courts never or even usually wait until the close of the evidence to give limiting instructions, but other versions of Rule 105 state no timing preference, meaning that courts can wait until the close of the evidence to give such instructions. See, e.g., United States v. Bastanipour, 1993 WL 394759 at *2 n.4 (N.D.Ill. 1993).

-CM

The Conspirator: Western District Of Louisiana Notes 4 Requirements To Admit Co-Conspirator Admissions

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

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

And, as the recent opinion of the United States District Court for the Western District of Louisiana in United States v. Jackson, 2011 WL 1376276 (W.D.La. 2011), makes clear, to admit a statement as a co-conspirator admission under Rule 801(d)(2)(E), the prosecution must prove 4 elements by a preponderance of the evidence.

In Jackson, Richard Jackson was convicted of several crimes, including conspiracy to distribute crack cocaine. After he was convicted, Jackson appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial attorney failed to object to the admission of testimony by Kelvin Gay. According to Gay, Eric German told him that "Jackson had taken over Gay's turf while he was in prison."

The court permitted this testimony because it found that German's statements was a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E). Jackson claimed on appeal that his trial attorney should have argued that German's statement did not constitute a co-conspirator admission, but the Western District of Louisiana found that such an argument would have been without merit. According to the court,

Under Rule 801(d)(2)(e), the proponent of admittance must prove by a preponderance of the evidence (1) the existence of the conspiracy, (2) the statement was made by a co-conspirator of the party, (3) the statement was made during the course of the conspiracy, and (4) the statement was made in furtherance of the conspiracy....While Petitioner's counsel did not object to Gay's testimony concerning Jackson, such an objection would have been overruled. Through the testimony of the case agents and the officers, the government had already proven by a preponderance of the evidence the four required elements. Any such objection to the statements made by Kelvin Gay would have been meritless and therefore would have been denied. The attorney cannot be ineffective for failing to raise a meritless claim.

-CM

Article Of Interest: Caren Myers Morrison's Jury 2.0

Readers of this blog know my great interest in stories regarding jury misconduct (see, e.g., here, here, here, here, and here) and whether the very idea of trial by jury can survive the new technological era (see, e.g., here, here, and here). What I haven't addressed nearly as much is what courts can and should do to address the jury impeachment in the internet era (I think that my only posts on the subject are here and here). This latter topic is the subject of Jury 2.0, a thought-provoking article forthcoming in the Hastings Law Journal by Caren Myers Morrison, a professor at the Georgia State University College of Law.

Morrison's basic argument is this: The American jury is like a smart kid. He showed some early promise, but now he's not being challenged. And because he's not being challenged, his mind wanders, and he starts to misbehave. So, we need to challenge him. We need to force him to re-engage with the material. And by doing so, his long latent promise can start to shine through again. 

Jurors (and Jury Consultants) Behaving Badly

In Part I of her article, Professor Morrison begins by setting forth the reason why jurors are only supposed to decide cases based upon evidence admitted in open court:

Only in open court can a defendant’s constitutional rights to confrontation, cross-examination, and counsel be protected; a defendant has no means of defense against influences, insinuations and information that reach the jury behind his back.

She then provides a laundry list of the ways in which jurors have circumvented the system, noting that

a quick survey of recent cases shows instances where jurors have Googled the defendant, the names of co- conspirators, and the defense lawyer. In other cases, jurors discovered that a prosecution witness was in protective custody because of the defendant, looked up the MySpace profile of one of the teenage victims in a felony sexual abuse case, accessed the Facebook page of a defendant accused of aggravated burglary with a weapon, where he showed a picture of himself holding a gun, tried to look up the defendant’s prior criminal record on a police department website, looked up defendants’ ages and dates of birth, looked up the driving record of a truck driver in a negligence action, researched oppositional defiant disorder, researched alternative causes of death in a manslaughter case, researched the effect on blood alcohol of the drug Narcan in a vehicular homicide case, looked up a definition of “lividity” and the role it might have had in fixing the time of a beating victim’s death, researched the injury of retinal detachment in a child murder case, and determined whether a particular type of firearm could have damaged a bullet-proof vest.

Of course, such juror fact-finding is not a new phenomenon (indeed, as Morrison later notes, it used to be part and parcel of jury duty), but, with the internet, both the breadth of such extraneous information and the ease with which it can be accessed have increased exponentially (e.g., a juror trying to decide whether the defendant could have arrived home from a bar in time to commit a murder could previously have driven the route herself; now, the "answer" can be found with some typing and a few clicks of the mouse on Mapquest). Morrison even cites to one English study in which 25% of jurors admitted to seeing information about their cases on the internet during trial. Such information can include the defendant's prior record, which is inadmissible for most purposes at trial and yet easily accessible (and yet of questionable accuracy) on the internet.

Morrison proceeds to note that almost all jurisdictions (1) preclude jurors from deciding the law as opposed to applying it to the facts; and (2) leave sentencing decisions to the judge and warn juries not to concern themselves with the consequences of their verdicts. And yet, jurors nowadays easily acquire (often misleading) legal information on the jury, including definitions of the elements of charges and defenses and sentencing ranges.

Courts also immunize most jury verdicts from post-trial scrutiny pursuant to Federal Rule of Evidence 606(b) and state counterparts, which are based upon, inter alia, a public policy of wanting to insulate jury deliberations from public scrutiny and ensuring the freedom of deliberations. But Morrison wonders how much these considerations still govern in a world where jurors constantly post entries on social networking sites about their jury duty (Indeed, this phenomenon has become so ubiquitous that it formed the basis for a piece of performance art by Steve Martin). She also wonders how we can expect jurors to be internet ostriches when lawyers and jury consultants are increasingly scouring the world-wide-web for information about jurors' high school crushes and favorite movies. 

Current Responses

In Part II, Professor Morrison details certain existing and potential solutions to jurors behaving badly and their drawbacks. First, there is the jury instruction to avoid going online to learn more about a case, which ironic process theory would tell us is about as effective as telling jurors not to think about a white bear (or not to press a button). Then, there is confiscation of electronic devices at the courtroom door, which only delays web-surfing until the jurors arrive home. And then there's jury sequestration, which is costly and increases the likelihood of large chunks of the citizenry refusing to participate.

The Historical Jury

In Part III, Professor Morrison notes that juries used to be "self-informing," with at least some juror investigation into facts beyond what was presented in the courtroom. And while there was always of course the requirement of an impartial jury, the historical conception of impartiality was not coextensive with ignorance of the parties and the matter being disputed. In this sense, it was indeed a trial by jury of one's peers, neighbors knowing the character and circumstances of the parties and the action. Moreover, it was widely accepted that juries would or at least could be the judges of the law as well as the facts. Thus, Morrison claims that

There seems to be solid historical precedent for a better informed, more active jury. Under the common law and colonial jury model, the jury was more on par with the judge and was an active participant in the process. The jury also had flexibility to exercise mercy and determine penalties in a way that could subordinate the law to its members' sense of justice. Arguably, such a jury more accurately reflected the conscience of the community than one which does not have access to all the facts and has no say over the law.

Back to the Future

This discussion then leads Professor Morrison to propose some possible solutions to these issues, i.e., Jury 2.0:

-not only instructing jurors to refrain from researching cases online but also explaining to them why they should only rely upon evidence presented in open court;

-in at least some circumstances, informing jurors about sentencing consequences and allowing them to determine certain issues of law;

-allowing jurors to take notes and ask questions (vetted by judges and lawyers), practices which most jurisdictions currently preclude;

-permitting jurors to discuss cases amongst themselves before they are over, as long as they don't make ultimate determinations;

-providing an anonymous forum in which jurors can express their frustrations; and

-curbing parties' investigations into jurors.

Of course, there are costs associated with each of these proposals, but I agree with Professor Morrison that they have the potential to create a more engaged jury, a far preferable outcome to the status quo, where we treat jurors paternalistically and yet are still flabbergasted when they (increasingly) misbehave. I wholeheartedly endorse the article to readers and hope that courts look to the article as they inevitably begin to look for solutions to a problem that seems to be getting worse every day. I asked Professor Morrison what lead her to write the article, and she responded,

I think I began thinking about the piece when I read an article in the New York Times entitled, "If You Run a Red Light, Will Everyone Know?"  That was back in 2008, when the phrase "Google mistrial" hadn't yet become a staple of newspaper headlines.  I was working on issues relating to criminal records on the Internet, and was particularly interested by a website mentioned in the news article that enabled people to run anyone's criminal history through all states, without even registering or paying a fee.  (I checked myself, but apparently neither I nor any of my aliases have a rap sheet.  At least not one that appears on CriminalSearches.Com).  That made me think of the potential havoc that might happen if criminal defendants with prior records went to trial and jurors began checking up on them. 

Once I started looking into it, I found that there were multiple issues involved in the collision of the Internet and the jury trial, beyond the fact of jurors having unprecedented access to information online.  There was also the facilitation of improper contacts between jurors and third parties, jurors conveying information themselves either through Tweets or blogs or other postings, and even the reverse problem of jurors being investigated online in much more intrusive ways than a court might permit on voir dire.  So "Jury 2.0" was my attempt to engage with these issues beyond the initial "Oh, those naughty jurors!' reaction.  I think there are root causes, particularly a desire to know as much as possible in order to reach the right verdict, that will require more than simply telling jurors to turn off their iPhones.  And I believe that we may eventually have to rethink the jury's role, and maybe even our exclusionary system of evidence rules, as society and technology continue to change.

-CM

New Rules: Court Of Appeals Of Georgia Applies New Framework To Find Statement Nontestimonial, Cites EvidenceProf

As I have previously noted,

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

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

In Michigan v. Bryant, the United States Supreme Court had to decide whether [a crime victim]'s statements were testimonial or nontestimonial under this "primary" purpose test.

After creating a new Confrontation Clause framework, the Court in Bryant found that the victim's statements were nontestimonial. In its recent opinion in Philpot v. State, 2011 WL 982978 (Ga.App. 2011), the Court of Appeals of Georgia became one of the first courts to apply this new framework, and it reached the same conclusion based upon somewhat similar facts. And, it cited to this blog. So I got that goin' for me.

As noted, in Bryant,

police found Anthony Covington in a gas station parking lot, with Covington claiming that he had (1) been shot by Richard Bryant outside Bryant's house, and then (2) driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial.

In the process of finding Covington's statements nontestimonial, the Court made several important conclusions regarding how courts are to determine the primary purpose of a statement:

(1) the test is objective, not subjective;

(2) the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation;

(3) the formality or informality of an encounter between a victim and police is relevant but not dispositive;

(4) the zone of potential victims is relevant; and

(5) the weapon used and the medical state of the victim are relevant.

So, that takes us to Philpot. In Philpot, Joshua E. Philpot was convicted on two counts of burglary, one count of being a "Peeping Tom," one count of entering an automobile, one count of simple assault, and two counts of criminal trespass. The statements at issue actually came from a prior victim of an alleged burglary by Philpot. Specifically,

the officer who investigated the prior burglary testified that on the date in question, he responded within a few minutes to a report that a burglary had occurred only moments ago at the home of the prior victim. Upon the officer's arrival at the prior victim's home, she told him that she heard a noise in her kitchen, and that when she went to investigate it, she saw a young man (later identified as Philpot) climbing into her home through the kitchen window while holding a knife. She further told the officer that once she began screaming, the young man fled. After speaking with the officer for a few more minutes, the prior victim looked out her window and exclaimed that the burglar (Philpot) was standing in the backyard of a home across the street. Consequently, the officer immediately began chasing Philpot and eventually arrested him.

In deciding whether these statements were testimonial, the court noted that

While this case was pending, the Supreme Court of the United States published its decision in Michigan v. Bryant, which-as some scholars have already noted-substantially alters and expands the framework for analyzing whether an out-of-court statement being challenged on Confrontation Clause grounds is testimonial or nontestimonial in nature.

As support for this claim, the court cited to Richard Friedman's excellent Confrontation Blog and this blog. Applying the new Confrontation Clause analysis, the court then concluded that

the prior victim's statements to the officer were primarily offered to enable police assistance to meet an ongoing emergency, and are therefore nontestimonial in nature; as such, the complained-of statements do not implicate the safeguards afforded by the Confrontation Clause. Here, the officer responded to the prior victim's 911 call within just a few minutes and found her to still be "shaken up" from her confrontation with the burglar as he questioned her in the home's kitchen (an informal setting). Accordingly, under our case law, the prior victim's statements to the officer were admissible as part of the res gestae of the crime (which, as noted supra, is a relevant consideration under Bryant ). Additionally, while the (at that time) unidentified burglar had already fled the scene of the prior victim's home by the time the officer arrived, it could have reasonably been presumed by both the prior victim and the officer that the burglar, who had just left the scene of the crime armed with a knife, was still in the immediate vicinity. Thus, while the prior victim was no longer being immediately threatened, similar to the situation in Bryant, the armed perpetrator was still on the loose, and thus continued to pose a serious potential threat to the prior victim and her neighbors. Indeed here, the police officer, unlike the officers in Bryant, had reason to believe that the armed perpetrator was still in the immediate area. In sum, because the circumstances surrounding the interrogation, as well as the statements and actions of the prior victim and responding officer, objectively indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, the prior victim's identification of Philpot as the burglar and her description of his actions were not testimonial in nature and did not violate the Confrontation Clause. 

-CM