EvidenceProf Blog

Article Of Interest: Sam Stonefield's Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment

If you have ever taught or taken an Evidence class, you likely know about the following oddity in the Federal Rules of Evidence. Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," and Federal Rule of Evidence 802 provides that "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Meanwhile, Federal Rule of Evidence 803 and Federal Rule of Evidence 804 provide exceptions to the rule against hearsay for statements that are offered in evidence to prove the truth of the matter asserted but which are thought to be sufficiently reliable/trustworthy.

And then, there is Federal Rule of Evidence 801(d), which indicates in relevant part that

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

In a sense, then, Rule 801(d) is oxymoronic. Rules 803 and 804 make sense. They take statements that are defined as hearsay under Rule 801(c) and say, "Well, wait a minute. These are exceptions to that rule." But Rule 801(d) is internally inconsistent with Rule 801(c). Rule 801(c) provides the definition of hearsay, but then Rule 801(d) basically says, "Well, no. That's not really the definition because here are 8 statements that should be deemed hearsay under Rule 801(c) but which we are going to classify as 'not hearsay.'"

As Sam Stonefield, a professor at the Western New England College of Law, notes in his new article, Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment, 2011 Fed. Cts. L. Rev. 5 (May 2011), while this oddity ha not caused significant problems for lawyers and judges, Rule 801(d) is poorly written and is in need of a good rewrite.

So, how did we get here? In Parts II and III of his article, Stonefield traces the origin of the "not hearsay" statements covered by Rule 801(d) to John Henry Wigmore's editing of the sixteenth edition of Greenleaf on Evidence. Prior to the sixteenth edition, courts and scholars had identified a dichotomy under the rule against hearsay: If a statement were offered to prove the truth of the asserted, it was either inadmissible hearsay or an exception to the rule against hearsay. Wigmore, however, created a trichotomy, concluding that 

[T]hree distinct groups of questions present themselves in connection with the Hearsay rule, viz.: A. Is the Hearsay rule applicable to the case at hand, i.e. is the evidence offered as a testimonial assertion? B. Is there any exception to the Hearsay rule to be made for the evidence offered? C. If the Hearsay rule is applicable, and if no recognized exception covers the case in hand, is the Hearsay rule satisfied, i.e. has there been, in fact, an oath and cross-examination?

As Professor Stonefield notes, this third category was the progenitor of Rule 801(d), and it was not without controversy. For instance, Edmund M. Morgan "

attacked Wigmore’s view that admissions were not hearsay. Morgan reviewed the history of admissions and demonstrated that Wigmore’s position was unsound in theory and unsupported by case law. Summarizing his argument, he wrote:

Certain it is that extra-judicial admissions are received in evidence. Equally certain is it that they are received for proving the truth of the matter admitted. It is likewise certain that they do not fall within that exception to the rule against hearsay [sic] which admits declarations against interest. These are the facts, and from them the conclusion is inevitable that they are received as an exception to the rule against hearsay, and not that they are received on any theory that they are not hearsay.

Professor Stonefield then takes us through the long, strange trip leading up to the adoption of Federal Rule of Evidence 801(d). While the Model Code of Evidence, the Uniform Rules of Evidence, and the California Code of Evidence (as well as Evidence luminary Charles McCormick in a model statute) all treated admissions as hearsay with a separate exception, the drafter, seemingly almost by accident, classified the statements in Rule 801(d) as "not hearsay." 

Thereafter, in Part IV and V, Professor Stonefield notes that despite the awkward wording of Rule 801(d), it has not seemed to cause courts any problems although this is not to say that application of the Rule is without confusion. For instance, he points out that

The Supreme Court has decided four cases involving Rule 801(d). In those cases, the Court has used the terms "exemption," "exception," and "exclusion" more frequently than "not hearsay." The proposed Advisory Committee Note for the stylistic revisions to the current Federal Rules refers to the "hearsay exclusion" in Rule 801(d). Lower court cases regularly used similar terminology.

Finally, in Part VI, Professor Stonefield 

evaluates six different approaches to classifying admissions and prior statements:

1) The Federal Rule approach, with Rule 801(d) and the “not hearsay” terminology;

2) The First and Second Draft approach, excluding admissions and prior statements from the definition of hearsay, Rule 801(c);

3) The predecessor code approach, treating admissions and prior statements as one of a list of hearsay exceptions;

4) The "three categories" approach adopted by Connecticut and Pennsylvania;

5) The "four categories" approach that I recommend; and

6) A "four categories" approach where the categories for admissions and prior statements are labeled "exemptions" or "exclusions" rather than "exceptions."

I will leave it to readers to check out Professor Stonefield's full article for his complete analysis, but the long and short of Professor Stonefield's suggested approach is that it creates four categories of hearsay exceptions, each based on the status of the hearsay declarant. There would be a category for:

(1) the declarant as a party—for admissions;

(2) the declarant as a witness—for prior statements;

(3) when the availability of the declarant is immaterial; and

(4) when the declarant must be unavailable.

As readers of this blog know, the Federal Rules of Evidence are currently being restyled, so what does this mean with regard to Professor Stonefield's proposal. He told me that his

The article was presented to and discussed by the Advisory Committee on Evidence Rules at their October, 2010 meeting.  The Committee subsequently wrote that, while “agree[ing] in principle with [my] proposal” that Rule 801(d) should be amended and admissions and prior statements treated as separate hearsay exceptions, the members felt that the rule “was not a source of ambiguity or confusion and was being applied properly in the courts. Moreover, the members felt that the time and expense of making and incorporating a rule amendment outweighed the need for changing the rule at this time.” 

So, while Professor Stonefield's proposal didn't take the day, it is certainly interesting food for thought and a great tool for teaching Rule 801(d) as well as possible future reform.

-CM

A Matter Of Character?: Alaska Case Reveals State's Domestic Violence Character Evidence Exception

Similar to Federal Rule of Evidence 404(b), Alaska Rule of Evidence 404(b)(1) provides that

Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Alaska, however, also has Alaska Rule of Evidence 404(b)(4), which provides that

In a prosecution for a crime involving domestic violence or of interfering with a report of a crime involving domestic violence, evidence of other crimes involving domestic violence by the defendant against the same or another person or of interfering with a report of a crime involving domestic violence is admissible. In this paragraph, "domestic violence" and "crime involving domestic violence" have the meanings given in AS 18.66.990.

So, how do Alaska courts apply Alaska Rule of Evidence 404(b)(4), and how many states have so-called domestic violence exceptions to the propensity character evidence proscription? These are the topics that I will address in this post.

To answer the first question, let's look at the recent opinion of the Court of Appeals of Alaska in Jackson v. State, 2011 WL 2084075 (Alaska App. 2011). In Jackson, Albert Eric Jackson was convicted of second-degree assault for causing serious physical injury to his former girlfriend, Sheena Cundiff. After he was convicted, Jackson appealed, claiming that the trial court erred in allowing the State to introduce evidence pursuant to Alaska Rule of Evidence 404(b)(4), including testimony from Jackson's former girlfriend, Deshia Whisamore, about Jackson's prior acts of domestic violence.

In addressing this argument, the court noted that in Bingaman v. State, 76 P.3d 398 (Alaska App. 2003), it outlined several factors to guide trial courts in applying these rules ofevidence in cases in which the government seeks to admit evidence of a defendant's other crimes or bad acts:

(1) the strength of the government's evidence that the defendant actually committed the other acts; (2) the character trait the other acts tend to prove; (3) whether this character trait is relevant to any material issue in the case; (4) how seriously this issue is disputed; (5) whether litigation of the defendant's other acts will require an inordinate amount of time; and (6) whether the evidence of the defendant's other acts will lead the jury to decide the case on improper grounds.

Moreover, "[t]he trial judge must conduct this balancing test and must explain its decision on the record. But trial judges are not required explain their analysis of each Bingaman factor in every case." And, the Court of Appeals found that the trial court complied with this procedure because

the trial judge expressly stated his conclusions on several of these factors. The judge concluded the State's evidence of the prior incident was strong, the incident was similar to the charged offense, the incident was relevant to the issue of identity, the testimony would not be lengthy, and there was "little likelihood that a jury would consider the case on improper grounds. The judge's findings on these factors are supported by the record....Given this record, it was reasonable for the judge to conclude that there was sufficient evidence that the prior act occurred.

So, how prevalent are these domestic violence exceptions? The most recent cataloging of such exceptions that I could find was in Tom Lininger's fantastic article, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind. L. Rev. 687, 701 n.44 (2003),in which he notes that

Several states have created what is in effect a domestic violence exception to the ban on propensity evidence. See ALASKA R. EVID. 404(b)(4) (admitting evidence of prior domestic violence against same victim, or evidence of prior interference with a report of a crime involving domestic violence);CAL. EVID. CODE § 1109 (admitting evidence of prior domestic violence to show propensity); 725 ILL. COMP. STAT. 5/115-20 (admitting evidence of prior domestic violence against same victim); LA. R. EVID.404(b)(2) (allowing evidence of prior domestic violence to show violent propensity of abuser where victim is prosecuted for attacking abuser, and victim raises claim of self-defense); see also ARIZ. R. EVID. 404(c) (admitting evidence of prior sexual assault to show propensity, where defendant is now charged with sexual assault); FLA. R. EVID. 404(2)(b) (admitting evidence of prior child molestation to show propensity, where defendant is now charged with child molestation). 

That said, he also notes that 

At least three states have considered and rejected such proposals.

In 2002, the Michigan Legislature considered, but did not ultimately adopt, a bill that would have admitted evidence of prior domestic violence to prove propensity in a prosecution of domestic violence. S.B. 733, 2002 Leg. (Mich. 2002), available at http://www.bar.org/legislative.positions.htm (the Michigan State Bar opposed this proposal). In 2001, the Oregon Legislature refused to adopt a bill that would have emulated CAL. EVID. CODE § 1109. See supra note 29 and accompanying text. In 1999, the New York Legislature refused to adopt a provision of Governor Pataki's proposed Sexual Assault Reform Act that would have freely admitted propensity evidence in sexual assault cases.

So, that was the lay of the land as of 2003. Are any readers aware of any developments regarding domestic violence exceptions in the last several years?

-CM

Conspiracy Theory: Should Courts Find Co-Conspirator Admissions To Confidential Informants Per Se Nontestimonial?

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. 

Meanwhile, 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.

The conventional wisdom among courts in the wake of Crawford is that co-conspirator admissions made to confidential informants/undercover agents are "nontestimonial" and thus present no problems under the Confrontation Clause. But does such a categorical conclusion make sense? Let's take a look at the recent opinion of the United States District Court for the Central District of California in Le v. Dexter, 2011 WL 1842887 (C.D. Cal. 2011), to see.

In Dexter, Johnson Le was convicted of second degree murder, with the jury finding true the allegation that the offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang. After he was convicted and unsuccessfully appealed in the California state court system, Le filed a petition for a writ of habeas corpus with the United States District Court for the Central District of California, claiming, inter alia, that the trial court improperly allowed for the admission of co-conspirator admissions against him in contravention of the Confrontation Clause.

These admissions were introduced through the testimony of two informants:

•Sam Yu testified that he was a member of the same gang as Le and Le's co-defendants before becoming an FBI informant. While working as an informant, he tape recorded conversations withe each of the three defendants. These conversations addressed not only planned future crimes by the gang but also the past murder which led to Le's conviction. Specifically, Yu got one of Le's co-defendants to describe in great detail how the three defendants killed the victim.

•Andy Tran also testified that he was a gang member/FBI informant. He did not tape record conversations with the three defendants, but he relayed the details of various conversations with Le's two co-defendants. Specifically, he repeated statements made by Le's two co-defendants regarding his exact role in the subject murder.

In addressing Le's argument, the Central District of California found that the co-defendants' statements constituted co-conspirator admissions and concluded that there was no Confrontation Clause despite the fact that these co-defendants did not testify. Why? The answer can be found in Bourjaily v. United States, 483 U.S. 171 (1987). In Bourjaily, an FBI informant arranged to sell cocaine to Angelo Lonardo, who agreed to find someone to distribute the drug. The person whom Lonardo found was Bourjaily, and Lonardo's conversations with the informant were later admitted over Bourjaily's Confrontation Clause objection. In Crawford, the Court cited Bourjaily as one of its cases consistent with the principle that nontestimonial statements present no Confrontation Clause problems, and courts, including the Central District of California in Dexter, have used this language to conclude that co-conspirator admissions to confidential informants/undercover agents are "nontestimonial."

But are they correct? According to Michael L. Seigel & Daniel Weisman, The Admissibility of Co-Conspirator Statements in a Post-Crawford World, 34 Fla. St. U. L. Rev. 877 (2007), the answer is "not always." Seigel and Weisman engage in a close reading of Crawford and Davis, which leads them

to advocate a nuanced rule for the admission of co-conspirator statements under the Confrontation Clause. First, all operational statements, and those aimed at future events, should be admissible-they are akin to requests for emergency assistance. Second, casual remarks by conspirators should also be admissible, due to Crawford's specific exclusion of "casual remark[s] to an acquaintance" from the reach of the Confrontation Clause. Even isolated answers to occasional questions asked by an undercover agent or witness about the identity of conspirators or past events should not be excluded. But when sustained questioning of one or more co-conspirators amounts to an interrogation objectively designed to gather evidence about past events, any statements given in response should be classified as testimonial, and thus their admission should be barred by the Confrontation Clause. This test is not perfectly neat and clean, but it is faithful to the Supreme Court's recent jurisprudence and to the Confrontation Clause itself.

Readers should check out the full article for the authors' complete analysis, but their basic point is that the co-conspirator's ignorance of the informant's status is not dispositive under the Confrontation Clause. Instead, (1) Davis made clear that the Confrontation Clause test is objective and "that the subjective intention of neither the interrogator nor the declarant controls whether the resulting statement is testimonial;" and (2) while solemnity is an important factor in determining whether a statements is testimonial, "when one conspirator briefs another about facts pertinent to the success of the conspiracy, it is a solemn event because the consequences of lying are likely to be quite dramatic-perhaps even death, if the conspiracy enforces internal norms in a violent manner."

Thus, in Bourjaily, Lonardo's statements were not testimonial because (1) his statements were clearly operative, all relating to a future transaction and not past criminal conduct, and (2) his statements were not the result of sustained questioning by the informant. Conversely, in Dexter, the co-defendant's statements related in part to past criminal conduct, and their statements seemed to be the result of sustained questioning although we probably need more facts. Thus, they were at least arguably testimonial. And, according to the authors, the reason why we should care is that "determining that co-conspirator statements made to undercover agents can be testimonial avoids giving law enforcement the perverse motive to obtain as much information as possible through undercover means to avoid the constraints of the Sixth Amendment."

I think that this analysis is pretty fascinating, and, if anything, it has only been bolstered by the Supreme Court's recent opinion in Michigan v. Bryant. As I have noted, in Bryant, the Supreme Court reaffirmed that the Confrontation is objective and focuses upon " "the statements and actions of both the declarant and interrogators...."

-CM

Adoption Agent: 2nd Circuit Finds Notes From Agent's Interrogation Of Suspect Admissible As Adoptive Admission

Assume that a suspect in a crime is interviewed by an investigative agent and makes certain incriminatory statements. And, assume that, during the interview, the agent takes notes during the interview that are not a perfect transcription of exactly what the suspect. But, assume that the agent shows the notes to the suspect at the end of the interview and has the suspect review and sign the notes. Should the notes be admissible against the suspect at trial? According to the recent opinion of the Second Circuit in United States v. Stafford, 2011 WL 1938662 (2nd Cir. 2011), the answer is "yes."

In Stafford, Brian Stafford was convicted of one count of conspiracy to import cocaine and one count of conspiracy to distribute and possess with intent to distribute cocaine. He thereafter appealed, claiming, inter alia, "that the District Court erred in permitting the government to introduce as evidence the notes that an investigative agent took during an interview with Stafford." According to the Second Circuit,

It is undisputed that Stafford participated in a voluntary interview in which he was told that he was free to leave at any time. In the course of that interview, Stafford made various admissions regarding his involvement in the charged conspiracies. At the end, the investigative agent, who had been writing notes during the conversation, reviewed each line of his notes with defendant to ensure that they accurately reflected the contents of the interview. Stafford made minor corrections to the notes, agreed that the information therein (after the appropriate corrections were made) was accurate, and signed his name on the last page. 

The Second Circuit then found that the district court properly admitted these notes under Federal Rule of Evidence 801(d)(2)(B), which provides that 

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

According to the court,

Stafford's thorough review of the agent's notes and acknowledgment of their accuracy adequately demonstrated his adoption of their contents. They were therefore admissible as non-hearsay. See Fed.R.Evid. 801(d)(2)(B) advisory committee's note ("Adoption or acquiescence may be manifested in any appropriate manner.").

-CM

Refreshment. SImply Delivered: Plaintiff's Attorney Properly Uses Rule 612 In DIscrimination Suit Against DHL

Federal Rule of Evidence 612 indicates that

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

(1) while testifying, or

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

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

And, if you want a textbook example of a party properly utilizing Rule 612, you need look no further than the recent opinion of the First Circuit in Aponte-Rivera v. DHL Solutions (USA), Inc., 2011 WL 2027977 (1st Cir. 2011).

In Aponte-Rivera, Julissa Aponte–Rivera sued her former employer, DHL Solutions, Inc., claiming gender-based discrimination and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and Puerto Rico law. Specifically, Aponte-Rivera changed that the atmosphere at DHL changed in 2004, after Enrique Frias was named regional manager and became Aponte's supervisor.

While Aponte-Rivera testified at trial, her lawyer sought to establish that she received commendations at work prior to Frias's supervision beginning in 2004. To refresh her recollection of the commendations, her lawyer showed her documents dating from 2001 to 2004.

After the jury returned a verdict in favor of Aponte-Rivera and awarded her emotional distress damages, DHL appealed, claiming, inter alia, that the district court abused its discretion in allowing the Aponte-Rivera's attorney to use the documents to refresh her recollections. The First Circuit disagreed, finding that

Consistent with the requirements of Fed R. Evid. 612, the court ensured that DHL had copies of the documents, assured the documents were relevant to the case, allowed DHL to cross-examine Aponte regarding the recollections recorded, and instructed Aponte to testify to her own recollections and not hearsay. Aponte's counsel instructed her, "Don't read the documents. Just read the documents for yourself, and if that refreshes your recollection, tell the jury what....did you do to receive the commendations?" Aponte then described what she did to receive a commendation in each instance.

-CM 

Article of Interest: Recognizing Constitutional Rights at Sentencing, by Carissa Hessick and Andy Hessick

In Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), the Supreme Court famously found that "[i]t can hardly be argued that either students or teachers shed their constitutional rights...at the schoolhouse gate." In their terrific new article, Recognizing Constitutional Rights at Sentencing, 99 Cal. L. Rev. 47 (2011), Carissa Hessick and Andy Hessick, professors at the Arizona State University College of Law, argue that the same applies to criminal defendants who have been convicted and then go through the courthouse doors to the sentencing hearing. The purpose of this post is two-fold: (1) to lay out the reasoning of their article; and (2) to apply the reasoning to victim impact statements. 

Might Mean Rights

In Part I of the article, the authors begin by tracing the history of sentencing in this country and then note that "[t]hough most modern sentencing schemes afford judges discretion in imposing sentences, in recent times courts have nonetheless begun to recognize some constitutional limitations to that discretion."

As they note, "[m]ost of the constitutional rights recognized at sentencing have been procedural," including:

•the right to effective representation by counsel;

•(a limited version of) the privilege against self-incrimination;

•the due process right to advance notice of facts that a court relies on to impose a higher sentence; and

•the rights recognized in the Apprendi-Blakely line of cases.

The authors go on to point out, though, that "[c]ourts have also placed some substantive limitations on what courts may consider in imposing sentence," such as precluding courts from:

•basing a sentence on "materially untrue" assumptions about the defendant’s criminal record;

•considering a successful appeal of a conviction at resetencing;

•imposing a higher sentence to punish the defendant for successfully appealing her original conviction;

•considering race, national origin, or gender at sentencing;

•giving harsher sentences to nonresident defendants; and

•(according to some courts) allowing information about a defendant's religion (or lack thereof) at sentencing.

Few and Far Between

In Part II of the article, the authors begin by cautioning that while

the preceding Part might convey the impression that courts enforce the Constitution as rigorously at sentencing as in criminal trials, that is not accurate. Constitutional limitations on sentencing factors are the exception rather than the rule. For the most part, courts have not recognized constitutional limitations on what information may be considered at sentencing....The consequence is that courts have systematically failed to recognize a number of constitutional rights at sentencing that are otherwise recognized during trial....Instead of engaging in ordinary constitutional analysis when defendants challenge these factors, courts have swept constitutional concerns under the proverbial rug based on the ungrounded conclusion that the sentencing process is somehow unique and thus shielded from constitutional review.

The authors then highlight five sentencing factors, with the purpose of revealing "that there is at least a colorable constitutional objection to a number of traditional sentencing factors, and that courts have failed to grapple with these objections."

•Double Jeopardy: A number of jurisdictions permit the consideration at sentencing of criminal conduct for which the jury entered an acquittal. These courts conclude that such consideration does not violate the Double Jeopardy Clause by reasoning, inter alia, that such a sentencing enhancement does not constitute "punishment" for the acquitted conduct. For the authors, this explanation is unsatisfactory because when a sentence is enhanced based on acquitted conduct, the same conduct is the basis for both (1) the government’s first, unsuccessful effort to punish the defendant; and (2) the sentence enhancement applied after the government's second, successful attempt to punish the defendant for a different crime (for more on this issue, check out their article, Double Jeopardy as a Limit on Punishment (forthcoming Cornell Law Review));

•Guarantee of a Fair Trial: While the Sixth Amendment guarantees defendants the right to a fair trial, courts consistently allow sentencing enhancements for the aforementioned acquitted conduct as well as uncharged conduct. Such enhancements are troubling under the bedrock principle of the Sixth Amendment: that punishment for criminal conduct be based only on conviction by a jury. The same goes for courts, including the Supreme Court, upholding the imposition of longer sentences on those who refuse to plead guilty and have the temerity to go to trial, i.e., the "trial penalty." Courts defend these sentences by conceptualizing these longer sentences not as additional punishment, but instead as the absence of leniency afforded to those who plead guilty. But, according to the authors, the refusal to grant a defendant leniency that is given to others because the defendant performed some act—exercising his right to a jury—seems analytically indistinct from increasing that defendant’s punishment because he performed that same act;

•Self-Incrimination: In Mitchell v. United States, 526 U.S. 314, 328 (1999), the Supreme Court did find that under the Fifth Amendment a judge could not draw an adverse inference about the amount of drugs the defendant was involved in selling based on her silence. The Court, however, limited its holding "to factual determinations respecting the circumstances and details of the crime." Based on the Court's limited guidance, many courts have since concluded that judges can impose longer sentences when defendants fail to express remorse for their crimes. But for a defendant to express remorse for committing a crime, she must admit to having committed that crime, creating a possible Fifth Amendment violation;

•Free Speech: These remorse rulings as well as sentencing enhancements for defendants who affirmatively testify to a lack of remorse also raise First Amendment free speech issues. Courts have navigated around the First Amendment by not conceptualizing lack of remorse as a free speech issue, but the authors contend that a regulation of speech designed to reduce secondary effects -- such as recidvism -- is still a regulation of speech;

•Due Process: Courts frequently enhance sentences based upon predictions of future dangerousness, which the authors claim violates the Due Process requirements (1) that individuals only be punished based upon past acts; and (2) that individuals be given notice such that they can conform their behavior and avoid increased punishment.

Breaking Down the Defense(s)

In Part III, the authors challenge the three commonly cited justifications "for why constitutional rights ought not be recognized at sentencing."

•Historical Practice: As the authors note, courts first defend these sentencing practices by claiming that courts have historically used them. But, as they also note, this is not an originalism argument because courts at the founding engaged in determinate sentencing. The authors acknowledge that the Supreme Court has held that a "universal and long-established tradition" of allowing certain conduct may be reason to presume that the conduct is constitutional, but they find no such entrenched tradition with regard to the aforementioned sentencing enhancements. Indeed, they note that the recent shift from courts viewing sentencing as a wholly informal proceeding to courts increasingly recognizing procedural rights at sentencing suggests a growing commitment to protecting rights at sentencing rather than to disregarding them;

•Forfeiture: Courts used to find that defendants, by being convicted, forfeited their constitutional rights at sentencing, but the authors are hardly surprised  that modern courts have not relied on the forfeiture theory in rejecting constitutional challenges to sentencing factors. They point to a variety of reasons for this reluctance, such as the fact that the Eighth Amendment prohibition on cruel and unusual punishments can only apply after a defendant has been convicted. The main thrust of their argument is that "[a]t its core, the theory of forfeiture rests on the assumption that the Constitution’s protections against the government apply only at criminal trial and not at sentencing after the defendant is found guilty of a crime. This assumption may have made sense when sentences were determined largely by the crime of conviction, but it is no longer sound now that sentences depend on factors other than the fact of conviction;"

•Incompatible With the Goals of Sentencing: (1) Information Maximization: Relying on Williams v. New York, 337 U.S. 241 (1949), courts have upheld reliance on questionable sentencing factors by arguing that more information is better and that a judge's sentencing ability would be hampered if the information stream were cut off. In addition to pointing out that Williams has been overruled, the authors level three criticisms against this information maximization defense: (a) it turns constitutional law on its head by sacrificing individual rights for governmental goals; (b) it ignores the due process limitation on unbridled judicial discretion; and (c) it falsely assumes that there is a single correct sentence for each defendant

(2) The Theories of Punishment: One final defense of constitutionally questionable sentencing factors is that consideration of those factors is necessary to impose sentences that appropriately punish defendants under the various theories of punishment. (a) One main theory of punishment is retributivism, but the authors contend, inter alia, that future dangerousness is inconsistent with this theory of punishment, and they allege more generally that retributivism does not comfortably allow for punishment based on constitutionally protected conduct. (b) The other main theory is utilitarianism, and the authors contend that courts have not articulated any clear theory as to why questionable evidence should be more readily admissible at the sentencing stage of trial than the guilt stage of trial under this theory. 

Conclusion

Based upon this analysis, the authors propose two possible solutions: (1) simply to exclude consideration of constitutionally doubtful sentencing factors; and (2) for judges to undertake a close analysis of the constitutionality of the sentencing factors that they identified. The authors advocate for this second solution, which I think makes a great deal of sense. As they note,

a judicial finding that a particular sentencing factor impinges on a defendant’s constitutional rights need not automatically result in the exclusion of that sentencing factor. Constitutional rights are not absolute. Courts could subject constitutionally doubtful sentencing factors to the same scrutiny that would apply in other contexts. For example, in determining whether to enhance a sentence for lack of remorse, courts would apply heightened scrutiny, the standard usually applied in assessing the constitutionality of evaluating laws coercing speech.

As they go on to note, there are costs to society if courts cannot consider sentencing factors because it would mean a shift back to more determinate sentencing, with some defendants being punished too leniently and others being punished too harshly. But exposing sentencing factors to heightened scrutiny,

may actually reduce these costs to society. To return to the previous example involving lack of remorse, if courts concluded that enhancements for lack of remorse infringe the First Amendment, courts could still impose the enhancement if the government demonstrated a sufficiently high correlation between a defendant’s refusal to express remorse and a propensity to commit future crime. Making this showing would require studies on whether lack of remorse is, in fact, an accurate predictor of recidivism. Such studies may reduce social costs if they reveal that some traditional sentencing factors that have not been subjected to empirical study are not accurate predictors of recidivism. This effort would lead the government to identify those factors that are reliable predictors of recidivism instead of relying on intuition.

I think that, as with many of the authors' previous articles (see, e.g., here, here, and here), this piece makes a significant contribution to the tumultuous state of the law surrounding sentencing, and I strongly recommend that readers check out the full article for the authors' complete analysis.

Victim Impact Evidence

The authors consciously chose to steer clear of procedural, issues, so I thought that I would spend the second part of this post preliminarily applying  their analysis to victim impact evidence.

In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court held that the Eighth Amendment per se prohibits a capital sentencing jury from considering victim impact evidence. Four years later, in Payne v. Tennessee, 501 U.S. 808 (1991), a defendant was convicted of murdering a 3 year-old boy's baby sister and mother. At the capital sentencing hearing, the boy's grandmother testified that the boy missed his baby sister and mother, and "the prosecutor commented on the continuing effects on [the boy] of his experience and on the effects of the crimes upon the victims' family." In affirming the defendant's death sentence, the Payne Court overruled Booth, found that the Eighth Amendment did not per se prohibit the consideration of victim impact evidence, and held that "[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief."

I see victim impact evidence as similar to future dangerousness evidence. As the authors noted in their article, a few defendants have challenged judicial findings of future dangerousness on due process grounds, but they'e run into a wall: Jurek v. Texas, 428 U.S. 262 (1976), in which the Supreme Court held that "prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system."

The score's somewhat the same with defendant's challenging victim impact evidence. While the Payne Court did declare that victim evidence can violate the Due Process Clause, it also held that "[i]n the majority of cases,...victim impact evidence serves entirely legitimate purposes." Inevitably, then, when defendants claim that victim impact evidence violates the Due Process Clause, courts cite to Payne, not to hold that the evidence violated the Due Process Clause, but to find that the evidence was presumptively admissible.

Indeed, the Payne Court's due process language has lay fallow for the last two decades, with courts viewing the Clause as a speed bump that victim impact evidence almost always clears rather than a hurdle that must be carefully crossed. And this might be okay if victim impact evidence in most cases today bore any resemblance to the grandmother's words in Payne. But it doen't. For example, take a look at the 20+ minute professionally produced victim impact statement video from Kelly v. California, a case in which the Supreme Court did not grant cert.

I've written about Kelly on a few occasions (see here here, and here). It presents a nice microcosm of the problems that have arisen as courts try to apply the Payne due process analysis in the absence of any real guidance. In Kelly, the prosecution's victim impact evidence was accompanied by music from Enya. The defendant cited to United States v. Sampson, 335 F.Supp.2d 166, 191 (D. Mass. 2004), one of the rare cases in which a court has found that victim impact evidence violated the Due Process Clause. In Sampson, the videotaped victim impact statement had music from the Beatles and James Taylor, and this "evocative contemporary music" rendered the sentencing hearing fundamentally unfair according to the court. The court in Kelly, however, found that the Enya music in the video before it was "generally soft, not stirring," with most of the words unrecognizable, meaning that it didn't render the sentencing hearing fundamentally unfair.

While, as noted, the Supreme Court denied cert in Kelly, Justice Stevens dissented, arguing, inter alia, that

even under the rule announced in Payne, the prosecution's ability to admit such powerful and prejudicial evidence is not boundless.  These videos are a far cry from the written victim impact evidence at issue in Booth and the brief oral testimony condoned in Payne.  In their form, length, and scope, they vastly exceed the 'quick glimpse' the Court's majority contemplated when it overruled Booth in 1991.  At the very least, the petitions now before us invite the Court to apply the standard announced in Payne, and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence.  Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor's side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use.

So, why do I agree with Justice Stevens' based upon the above article? Well, let's start with the issue of why victim impact evidence might violate the Due Process Clause, a question that courts have not clearly answered. 

Obviously, the use of manipulative music and images can render a sentencing hearing fundamentally unfair, which seemed to the focus of the Payne Court. But what about the issue of notice? The authors claimed that future dangerousness evidence might violate the due process requirement that individuals be given notice such that they can conform their behavior and avoid increased punishment. Are defendants given such notice of victim impact evidence?

I think that the answer is a clear "no." Victim impact evidence is a non-statutory aggravating factor, which means that many defendants might not know that their punishments can be increased based upon the impact that their killings have on the victims' families. Moreover, "[t]he courts of appeals have split on the need for advance notice of an upward departure based onvictim impact statements." Paul G. Cassell, Treating Crime Victims Fairly: Integrating Victims Into the Federal Rules of Criminal Procedure, 2007 Utah. L. Rev. 861, 937 (2007). Finally, even if we think that most people are now aware, and thus have notice, that victim impact evidence is admissible,

notice that a sentence may rest on pernicious factors does not cure the factors' perniciousness. It would not, for example, cure an equal protection problem to give defendants notice that they are more likely to receive death sentences if they or their victims are black, rather than white. Moreover, in the capital sentencing context, even aggravating factors that are permissible must be specified in advance, by the legislature. Susan Bandes, Reply to Paul Cassell, What We Know About Victim Impact Statements, 1999 Utah L. Rev. 545, 546 n.8 (1999).

Let's look next at the historical practice defense. As the authors noted, some courts defend the continued use of certain sentencing factors such as future dangerousness because they have historically considered such factors. But, as noted, victim impact evidence is not nearly so firmly rooted. It wasn't until 1979, that the first court allowed information regarding the impact of a crime, and the Supreme Court did not approve of victim impact evidence until Payne in 1991. See Michael A. Johnson, Note, The Application of Victim Impact Statements in Capital Cases in the Aftermath of Booth v. Maryland: An Impact No More, 13 T. Marshall L. Rev. 109, 111 (1987-1988).

In terms of forfeiture, victim impact evidence is only potentially admissible at sentencing, so, applying the authors' analysis, it makes no sense to say that the defendant forfeits his Eighth Amendment and due process objections to such evidence by being convicted.

So, what about theories of punishment? A frequent defense of victim impact evidence is that it is necessary to punish individuals pursuant to the retributionist theory of punishment; indeed, some have claimed that "he only justification to which victim impact evidence directly relates is retribution." Catherine Bendor, Defendants' Wrongs and Victims' Rights: Payne v. Tennessee, 11 S.Ct. 2597, 27 Harv. C.R.-C.L. Rev. 219, 234 (1992). But other disagree. For instance, in State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty, 40 Harv. C.R.-C.L. 407, 455 (2007), Dan Markel argues that

most retributivists would demur at lending victims a direct role in sentencing, say, by permitting a victim impact statement to be read prior to sentencing. The concern is that the judge or jury would be swayed to harshness or leniency as a result, and the problem with that, from a retributive perspective, is the disruption of the equality norm. Specifically, if victims or their survivors have a role that directly influences sentences, then the sentence that an offender receives may hinge on whether the jury finds the victim or his allies persuasive or sympathetic. Just as one victim's family may urge especial harshness against an offender, another victim may be surpassingly compassionate, in which case the offender may receive an unwarranted request for no punishment or unusually lenient punishment. This advantages him as compared to similarly situated offenders who committed the same offense.

And what about the utilitarian theory of punishment? Well, if we believe the Bender quote from above, victim impact evidence doesn't directly relate to utilitarianism. Indeed, in The Impact of Information Overload on the Capital Jury's Ability to Assess Aggravating and Mitigating Factors, 17 Wm. & Mary Bill Rts. J. 1089, 1125-26 (2009), Katie Morgan and Michael J. Zydney Mannheimer argue that capital "jurors are often asked to weigh incommensurables: the utilitarian-based idea that very dangerous offenders must be permanently incapacitated by death, added to the harm-based retributivist values reflected by victim impact evidence, balanced against the intent-based retributivist notion of diminished culpability often underlying the mitigating evidence." 

It thus seems like there is a solid argument that victim impact evidence cannot be defended on either retributionist or utilitarian grounds. It therefore seems to be on somewhat equal footing with future dangerousness evidence. So, what's the solution?

Well, as the authors note, there are two possible solutions. The first is to ban victim impact evidence altogether (see, e.g., here). The other, probably preferable, solution is to subject such evidence "to the same scrutiny that would apply in other contexts." In other words, the solution is to finally flesh out the test first laid out by the Court in Payne. Let's return to the Markel article from above. He notes that:

Undoubtedly, it is better that victims or survivors not be re-traumatized and that they find the psychological healing they need. A good state and the rich panoply of societal institutions within it should make this therapy available to the extent possible. But it is purely speculative—if not illusory—to assert that the death or cruel punishment of the offender will necessarily achieve that healing, or that other means will not provide the closure victims seek. Indeed, there "is no evidence that families of murder victims in non-death states such as Michigan or Wisconsin endure more lasting pain than families of murder victims in death states such as Texas or Ohio." In other words, the death penalty is not a means narrowly tailored to satisfy the state's legitimate end of healing the wounds of crime victims. Moreover, to the extent that victims participate in the decision to impose the death penalty, and to the extent the death penalty is imposed because of the positive personal characteristics of the victim or the economic and social dislocations caused by a particular victim's death, then the imposition of death will be distributed on the basis of morally immaterial features of the victim or her family. Thus, the use ofvictim impact evidence undercuts the retributivist commitment to the fair and equal application of criminal sanctions. (emphasis added).

Now, a court may agree or disagree with Markel about whether victim impact evidence is narrowly tailored to satisfy legitimate state interests, but the point is that they should apply a similar type of scrutiny to victim impact evidence rather than just glibly citing to Payne and engaging in matador style judging. And again, that's exactly the point of the authors' article. I asked the authors what led them to write the article, and Carissa Hessick responded that

Andy and I have collaborated on a few different articles --- being married to another law professor means that we spend *a lot* of time talking about law with one another.  A few times, when talking through a problem with our research or a case one of us read, we've hit upon a topic on which we've both been able to contribute.  This article, for example, arose out of a problem that I confronted writing another paper.  Andy and I were having dinner, I was complaining about a series of cases that I'd been reading that day, and he observed that the issue bothering me was the fact that government actors were permitted to use facts and factors to adjust the amount of punishment a person receives, even when that fact or factor, standing alone, would have been an unconstitutional ground for punishment.

I'm very interested to see your post on due process and victim impact statements.  Our article you read specifically skirted procedural issues, but I'm working on a new paper about sentencing inputs and procedures so I'm quite interested in seeing what you have to say.

-CM

So Turn And Forfeit: Does A Wrongdoing Party Forfeit The Right To Impeach?

I was recently posed an interesting question. Federal Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

Meanwhile, Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

So, assume that a court finds that a defendant engaged in forfeiture by wrongdoing and allows the prosecution to admit the unavailable declarant's hearsay statement(s) against the defendant. Then, assume that the defendant wants to impeach the declarant pursuant to Federal Rule of Evidence 806 or a state counterpart. Has the defendant also forfeited his right to impeach the declarant like he forfeited his hearsay and Confrontation Clause objections? 

My initial inclination was to say "no," and, in support, I found Sohail v. State, 264 S.W.3d 251 (Tex.App.-Houston [1 Dist.] 2008), in which a Texas trial court permitted the prosecution to admit statements made by the complainant to police and her parents under the doctrine of forfeiture by wrongdoing and precluded the defendant from impeaching the complainant/declarant. In finding that the trial court committed error, the Court of Appeals of Texas concluded that

In the present case, complainant did not testify at the guilt-innocence stage of the trial, but her statements to police and to her parents were admissible out-of-court statements. Appellant is correct that he had a right to impeach complainant's credibility through other evidence, including hearsay. See TEX.R.EVID. 806....The trial court excluded testimony by appellant's sister, to whom complainant said that the assault was an accident. This inconsistent statement by complainant reflects on complainant's credibility and would have been admissible had complainant testified as a witness....Thus it was error for the trial court to exclude appellant's impeachment evidence. 

On the other hand, you have the opinion of the Court of Appeals of New York in People v. Bosier, 847 N.E.2d 1158 (N.Y. 2006). In Bosier, a prospective witness against a defendant testified at a first grand jury proceeding and a second grand jury proceeding. At trial, the court applied the doctrine of forfeiture by wrongdoing (forfeiture by misconduct in New York) and allowed the prosecution to introduce the (now unavailable) witness' testimony from the second grand jury proceeding against the defendant. The defendant then sought to impeach the declarant through his testimony at the first grand jury proceeding, which contradicted some of his testimony from the second proceeding, but the trial court precluded such impeachment. The Court of Appeals of New York ultimately affirmed, concluding that

The trial judge has discretion to permit such impeachment where there is a possibility that, if it is not allowed, the jury will be misled into giving too much weight to the statement offered by the prosecution. But such impeachment need not always be allowed. Where impeachment is permitted, the defendant, in direct contravention of the most basic legal principles and the policy objectives of Geraci, may benefit from his or her own wrongful conduct because the prosecution will have no opportunity to rehabilitate the witness by clarifying any unclear or inconsistent testimony proffered by the defendant. Here, where the inconsistency defendant relied on did not go to the heart of the prosecution's case and might well have been credibly explained if the witness had been present, it was not an abuse of discretion to exclude the impeaching evidence.

So, what does readers think? When a defendant forfeits his right to confront a hearsay declarant, does he also forfeit his right to impeach him? As I said, my first inclination was to say "no," but I sort of see the logic of the Court of Appeals of New York. In cases of prior inconsistent statements, it is because of the defendant's wrongdoing that the prosecution can't rehabilitate the declarant by having him explain the differences between the two statements. In cases of prior conviction impeachment, it is because of the defendant's wrongdoing that the prosecution can't rehabilitate the declarant by having him testify that he's a changed man. Etc., etc. Is that enough to preclude (at least in some cases) impeachment by the wrongdoing defendant?

-CM

Whole Grain: ND OH Opinion Reveals Rule 407 Doesn't Cover Plaintiff Subsequent Remedial Measures, But Rule 403 Does

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

So, if a plaintiff claims that a defendant's instrumentality was defective and that this defect caused the plaintiff to suffer damages, the plaintiff cannot present evidence of improvements by the defendant (subsequent remedial measures) to prove that the instrumentality was previously defective. But what if a defendant wants to present evidence of a subsequent remedial measure by a plainti? As the recent opinion of the United States District Court for the Northern District of Ohio in Younglove Const. v. PSD Development, 2011 WL 1933755 (N.D.Ohio 2011), makes clear, Rule 407 does not deem such evidence inadmissible, but courts often exclude it under Federal Rule of Evidence 403.

In PSD,

Younglove Construction, LLC...entered into a written contract with PSD Development, LLC...for the construction of a Feed Manufacturing Plant to be located at 7148 State Highway 199, Upper Sandusky, Ohio, (the "Project")....As a part of the Project, Younglove was to build a grain bin and foundation and provide related parts and accessories at the PSD facility (the "Bin")....Younglove entered into a subcontract agreement with CAS, whereby CAS was to build the Bin, provide Bin parts and accessories and build and design the Bin foundation for the Project.

Younglove thereafter brought an action sounding in, inter alia, breach of contract against PSD, and PSD brought a third-party complaint against CAS. After Younglove brought its action, it "made a number of modifications to the grain bin and tunnel, including: adding warning signs next to exterior outlets in the bin tunnel, placing chains and locks on exterior outlet gates, enlarging the center outlet channel and adding one exterior outlet." CAS anticipated that PSD would try to "use evidence of these subsequent remedial measures to attempt to prove that the bin was defective as-built and to show breach of the signage and training provisions of the prime contract." Therefore, CAS brought a motion in limine to exclude this evidence.

In addressing this motion, the Northern District of Ohio noted that

The Sixth Circuit has not decided whether Rule 407 applies to evidence of subsequent remedial measures by a non-defendant, but as PSD points out, "every other Court of Appeals that has considered the issue has held that Rule 407 does not require the exclusion of subsequent remedial measures taken by a non-defendant." Bowling v. Scott Co., 2006 WL 2336333, *5 (E.D.Tenn.) (collecting cases). 

Although the court agreed with these courts, it noted that it could still exclude subsequent remedial measure evidence if it was lacking in relevance or if, under Federal Rule of Evidence 403, its probative value was substantially outweighed by the danger of unfair prejudice. And it did just that, finding that

PSD must prove that it did not receive that for which it contracted. The recommendations of CAS and Brock are relevant to that end. Evidence about the alleged inadequacies of the as-built grain bin are obviously relevant. The necessity of repair is relevant. But the relevance of the modifications themselves is marginal at best to the issue of whether there was a breach. Any marginal relevance that this evidence might have is substantially outweighed by the danger of unfair prejudice.

-CM

How Long Must I Dream?: District Of Colorado Finds Sleeping Juror Can Lead To 6th Amendment Claim, Despite Tanner

In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court held that post-trial juror testimony that, during trial, jurors were falling asleep, drinking alcohol, and using and selling drugs was inadmissible under Federal Rule of Evidence 606(b), which provides in relevant part that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

Moreover, the Court found that the trial court did not violate the district court did not violate the petitioners' Sixth Amendment right to a competent jury by applying Rule 606(b) to preclude jury impeachment on these topics. As the United States District Court for the District of Colorado noted in its recent opinion in Fletcher v. Hartley, 2011 WL 1843316 (D. Colo. 2011), however, the Court did in Tanner didn't answer a related question: If a court allows jury impeachment regarding jurors sleeping during trial, should that court find that a sleeping jurors violates the Sixth Amendment right to a competent jury?

In Hartley, Charles Fletcher was convicted of attempted second degree murder, first degree assault, second degree kidnapping, two counts of aggravated robbery, two counts of second degree assault, conspiracy to commit aggravated robbery, and accessory to aggravated robbery. Fletcher thereafter moved for a new trial, claiming, inter alia, jury misconduct. In support of this motion, Fletcher submitted the affidavit of Iris Bell, who allegedly talked with a juror who sat in Fletcher's case and

"said he 'nodded off' during the jury trial. [He] said he felt it was 'okay to nod off, because he saw the judge sleeping and thought if the judge was sleeping, the evidence being presented must not haven been that important to listen to.'" The affidavit goes on to state that the juror "doesn't know at which stage of the trial he 'nodded off', but he said he nodded off a few times. He noted that he believed he saw the judge sleeping more than once." 

The court refused to give Fletcher a new trial, and, after he unsuccessfully appealed in the Colorado state court system, Fletcher filed a an application for a writ of habeas corpus with the United States District Court for the District of Colorado. The government responded by relying "on Tanner for the proposition that 'a juror who falls asleep during testimony is not per se incompetent." The court, however, "declin[d]e to adopt such a broad reading of that case." According to the court, "the Tanner Court did not hold that jurors' sleeping during trial is, or is not, per se incompetent under the Sixth Amendment, but, rather, that a court's refusal to allow juror testimony concerning such behavior does not violate the Sixth Amendment."

That said, the court concluded that Fletcher was only entitled to habeas relief if it could be established that the alleged misconduct "had substantial and injurious effect or influence in determining the jury's verdict." And, he court was unable to find such substantial and injurious effect or influence based upon the lack of specificity regarding when and for how long the juror slept during the trial (the court didn't mention the allegation that the judge himself slept during trial).

-CM

Make Me Whole, Take 7: Court Of Appeals Of Minnesota Finds No Problem With Impeachment Via Terroristic Threats Conviction

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

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

In other words, if a witness has a conviction for as crime involving dishonesty or false statement (e.g., perjury, larceny by trick), the conviction is automatically admissible to impeach the witness, i.e., to show that his testimony is not trustworthy. If a witness has a conviction for a crime not involving dishonesty or false statement, the conviction will only be admissible if its probative value for showing that the witness' testimony is not trustworthy outweighs the prejudicial effect of the conviction. Most courts hold that a prior conviction can only be admissible under Rule 609(a) if it is for a crime that has some bearing on witness honesty. As I have noted in several posts (here, here, here, here, here, and here), Minnesota courts are not among these courts. The latest example can be found in the recent opinion of the Court of Appeals of Minnesota in State v. Odeneal, 2011 WL 1833018 (Minn.App. 2011).

In Odeneal, Gregory Odeneal was convicted of third-degree criminal sexual conduct. After Odeneal testified at trial, the prosecution impeached him through evidence of his 2005 felony conviction for making terroristic threats. Although Odeneal did not object to the admission of this conviction at trial, it formed the partial basis for his appeal.

In addressing that appeal, the Court of Appeals of Minnesota noted that the district court should have applied five factors derived from State v. Jones, 271 N.W.2d 534 (Minn. 1978), in determining whether the probative value of the prior conviction outweighed its prejudicial effect:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.

The Court of Appeals then noted that the district court did not address these Jones factors, which was erroneous, but it found that "the error is harmless if the conviction could have been admitted after a proper application of the Jones-factor analysis." According to the court, under this first factor

Appellant argue[d] that his 2005 felony conviction of terroristic threats should have been excluded because it [wa]s not probative of his credibility. But the supreme court has concluded that Minn. R. Evid. 609 "clearly sanctions the use of felonies...not directly related to truth or falsity for purposes of impeachment, and thus necessarily recognizes that a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility."..."[I]mpeachment by prior crime aids the jury by allowing it 'to see "the whole person" and thus to judge better the truth of his testimony.'"...

Appellant argue[d] that commentators and courts in other jurisdictions have criticized the whole-person rationale and have also recognized that jurors tend to misuse prior convictions as propensity evidence, but we do not have the liberty to disregard established Minnesota law on the subject....Moreover, appellant did not challenge the whole-person rationale before the district court, which permits the conclusion that the argument is waived. 

So, there you have it, once again. You can check out the court's opinion for the court's discussion of the other four factors, but, as the above analysis makes clear, Minnesota courts always find that the first factor favors admission. I don't see how the making of a terroristic threat in any way supports the inference that a witness is untrustworthy; indeed, a main reason why such a person is punished is the fear that he will follow through on his threat. And yet, Minnesota courts continue to find that any and every conviction has enough impeachment value to satisfy the first factor because it allows the jury to see the witness' whole person.

But, if that's the case, why does Minnesota continue to exclude propensity character evidence? I guess that's a question for another day.

-CM

Nothing's Shocking: Court Of Appeals Of Minnesota Finds Expected But Emotional Event Not Startling For Excited Utterance Purposes

I remember serving as an extern at the Supreme Court of Virginia back in 2002. One of the justice's clerks told me that the justices were deciding whether to hear an appeal in Esser v. Commonwealth, 566 S.E.2d 876 (Va.App. 2002), and asked me to write a memo on the case. The clerk knew that I was interested in evidentiary issues, and Esser presented a juicy one: Can an excited utterance follow a subsequent startling event or condition? Specifically, in Esser, a mother was about to leave her daughter at home with the mother's live-in boyfriend when the daughter emotionally told her mother than the boyfriend had raped her a few days ago. The Court of Appeals of Virginia found that this statement was an excited utterance, concluding that the startling event was not the rape but the daughter being told that she would be left home alone with the boyfriend. In my memo, I noted that courts, and especially Texas courts, were split on the issue, but that I thought that the Court of Appeals' analysis was correct. The Supreme Court of Virginia denied the appeal.

Later, I used the memo to write, A Shock to the System: Analyzing the Conflict Among Courts over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 Wm. & Mary J. Women & L. 49 (2005). Thereafter, I was happy to report that the Court of Criminal Appeals of Texas eventually agreed with my analysis and found that excited utterances can follow subsequent events and conditions in McCarty v. State, 2008 WL 2512818 (Tex.Crim.App. 2008). In its recent opinion in State v. Goodwin, 2011 WL 1833012 (Minn.App. 2011), the Court of Appeals of Minnesota also agreed with me in theory although it seemingly placed on odd limitation on it as well as the excited utterance exception in general.

In Goodwin, Collin Goodwin was convicted of second-degree assault after allegedly shooting C.G. outside of a bar in MInneapolis, Minnesota. 

C.G. testified that after the shooting, he was taken to the hospital where he underwent surgery for the gunshot wound. Testimony revealed that the bullet fractured C.G.'s left hip bone and that C.G. had two or three small holes in his small intestine and a larger hole in his large intestine. After the surgery, Ralph visited C.G. at the hospital. According to C.G., Ralph was upset and crying and claimed that he and [Goodwin] had been arguing over a girl and that C.G. had taken a bullet meant for Ralph. [Goodwin] objected to this testimony, but the district court admitted Ralph's statement to C.G. as an excited utterance.

After he was convicted, Goodwin appealed, claiming, inter alia, that Ralph's statement was improperly admitted as an excited utterance. The Court of Appeals of Minnesota noted that the issue was governed by Minnesota Rule of Evidence 803(2), which provides an exception to the rule against hearsay for 

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Now, it was beyond dispute that Ralph was not still under the stress of excitement of the shooting when he made his statement to C.G., but "in admitting Ralph's statements as an excited utterance, the district court clarified that the startling event was not the shooting, but rather seeing the victim 'in the condition that the person was in[:] bedridden having recently come out of surgery." Goodwin countered "that such an event does not qualify as a startling event because it was not a situation where Ralph 'unexpectedly ran into [C.G.] at the hospital and learned about [C.G.'s] condition.'" And, in response, the State cited Esser for the proposition "that the district court properly characterized the event as an excited utterance because cases from other jurisdictions have recognized that a startling event need not be the crime itself." 

According to the Court of Appeals, however, Goodwin did

not challenge the theory on which the court made its conclusion; rather [Goodwin] argue[d] that this particular instance cannot be a startling event. We agree. The record indicates that Ralph consciously chose to visit C.G. in the hospital and that Ralph knew C.G. had been shot. Based on his knowledge of the events, seeing C.G. in a hospital bed following a surgery is not a startling event that would prompt a statement made under the stress of the event. Although Ralph may have been emotional when he saw the victim, an emotional statement is not in and of itself an excited utterance. Therefore, we conclude that the district court abused its discretion in admitting the statement as an excited utterance.

(Ultimately, however, the court found that the admission of Ralph's statement was harmless error)

Okay, so the court held that excited utterances can follow subsequent startling events and conditions other than the crime itself, but it also found...what? That an expected event or condition cannot be startling? That a conscious choice to perceive an event or condition means that the event or condition cannot be startling? With William present, Dan says to Vince on Monday, "If you don't have my money by Friday, I'm coming back to your house and shooting you." If William goes to Vince's house on Friday, sees Dan shoot Vince, and says, "Oh my god! Dan just shot Vince," is that not a startling event because it was expected and/or William consciously chose to perceive it?

-CM

Article of Interest: “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation, by Jane Campbell Moriarty & Marisa Main

Similar to most state counterparts, Federal Rule of Evidence 410(4) states that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:...

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

So, when a defendant enters into plea discussions, any incriminatory statements that he makes during the plea bargaining process will be inadmissible against him at trial should a plea agreement not be reached, right? Wrong. Since the Supreme Court's 1995 opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), courts consistently have held that prosecutors can force defendants to waive the protections of Rule 410 (as well as other evidentiary and constitutional protections) to get to the plea bargaining table. Moreover, as noted in the excellent forthcoming article, “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation, "the law of waiver has expanded exponentially in the last few decades, necessitating a change in the current" ABA Standards for Prosecution and Defense Function. The article was co-authored by Jane Campbell Moriarty, a professor at The University of Akron School of Law (and soon to be the Carol Los Mansmann Chair at the Duquesne University School of Law), and Marisa Main, a Professor Moriarty's RA, who will soon by a federal judicial clerk.

Queen for (Just) a Day

In part one of their article, the authors start by noting the holding of Mezzanatto. In Mezzanatto, the prosecution forced the defendant to waive the protections of Rule 410 to the extent that if a plea bargain were not reached and the defendant testified at trial, the prosecution could impeach him with any inconsistent statements that the defendant made during plea negotiations. The Court deemed this waiver valid, finding that Rule 410 "expressly contemplate[s] a degree of party control that is consonant with the presumption of waivability." 

That said, Justices Stevens and Souter dissented, cautioning "that the inevitable result of the reasoning used by the majority would, in time, come to function as a waiver of trial itself." The authors note that this fear has largely come to fruition as they include an appendix revealing the rapid rise in the percentage of criminal cases resolved by guilty pleas ("In 2007, 2008, and 2009, the percentage of defendants pleading guilty was 95.8%, 96.3%, and 96.3%, respectively.") 

Combine this trend with the rise in the use of the "queen for a day" agreement approved in Mezzanatto, and you start to see a picture of defendants being railroaded into guilty pleas. The authors note that in the wake of Mezzanatto prosecutors have come to insist on these waiver before beginning the plea bargaining process, but it is not just the quantity of these waivers that have expanded. The Court in Mezzanatto merely approved of an "impeachment waiver." As noted, the waiver in Mezzanatto only allowed the prosecution to impeach the defendant with his statements during plea negotiations if he testified inconsistently at trial. If the defendant did not testify or testified consistently with his plea bargaining statements, those prior statements would remain inadmissible.

As the authors note, however, courts consistently have approved of "rebuttal waivers" in the wake of Mezzanatto, which allow a prosecutor to present a defendant's plea bargaining statements as long as the defendant presents any evidence, arguments, or testimony (by any witness) that contradicts those statements. Moreover, courts have begun to approve of case-in-chief waivers, under which the prosecution can introduce a defendant's plea bargaining statements at trial as part of its case-in-chief, even if the defendant plans to present no evidence or witnesses of his own.

Given the general recognition that defendants fare better during plea bargaining than at trial (the so-called trial penalty), it is easy to see why defendant continue to sign these waivers, and it is equally easy to see why defendants continue to accept plea bargains, given that the concessions that they made during plea bargaining can be aired out in open court should they proceed to trial (and given that they can't present evidence that they rejected a plea bargain as evidence of their consciousness of guilt). And while the prosecution can use a defendant's plea bargaining statements at trial pursuant to such waivers, as the authors note, pursuant to United States v. Ruiz, 536 U.S. 622 (2002), the prosecution is under no obligation to disclose to the defendant material impeachment evidence before reaching a plea agreement. Moreover, many courts have held that the prosecution does not even need to disclose to the defendant material substantive evidence before reaching such a bargain.

Between a Rock and a Hard Place

In Part II, the authors focus upon the dilemma faced by defense counsel (often a public defender) in representing the defendant during the plea bargaining process. As the authors note,

The defense dilemma is thus: The attorney has little time or ability to investigate or discover what evidence the prosecution has against his client, is entitled to little discovery, knows the client risks decades of prison time if she loses at trial (which, statistically, is overwhelmingly likely to happen), and yet must advise the client on the best strategy, often without a sound, fact-based foundation. The dilemma posed has both constitutional and ethical implications related to competence...

Without solid knowledge of the case the government has against the defendant, the defense attorney cannot know whether a plea offer would really benefit the defendant, whether she has grounds to bargain for a better plea offer, or whether she should simply go to trial. Moreover, requiring defendants to waive virtually all rights before even discussing a plea needs to be reconsidered. The current climate of plea bargaining is at odds with those ethical and constitutional requirements, adversely affecting the lives of defendants and the workings of the justice system as a whole.

New and Improved

Finally, in Part III, the authors focus upon the Proposed Changes to the ABA Standards for Prosecution and Defense Function and how several of them have the capacity to fundamentally change the plea bargaining process for the better. Here they are the proposed changes in  bullet-pointed form:

Prosecution Function

The Proposed Changes to the Prosecution Function:

•require specific proof of knowledge of guilt before accepting pleas;

•require full disclosure of exculpatory information before entering plea discussions;

•require admonitions against routine waivers of rights and the use of coercive tactics (such as unreasonably short deadlines).

•counsel against making false representations

•urge prosecutors to remember the importance of actual innocence in their handling of cases;

•command prosecutors not to engage in discussions with defendants without either counsel present or counsel’s approval to proceed; and

•indicate that prosecutors should not condition acceptance of pleas on waiver of all rights, particularly those that would cause a manifest injustice.

Defense Function

The Proposed Changes to the Defense Function:

•defense counsel is obligated:

•to obtain evidentiary discovery material;

•to create an investigative and defense strategy;

•and to take steps to protect the client’s interest, include preservation of evidence, seeking pretrial release, hiring investigators and experts, and so forth;

•in conducting plea bargaining, the Standards ask the defense attorney not to accept plea deals that contain waivers of constitutional rights (such as the right to appeal) and to challenge the inclusion of such a waiver even where the client is agreeable to the plea offer.

Conclusion

As the authors note, the real value of these Proposed Changes is that they "[t]hey provide a 'collective' view of appropriate behavior that should become the prevailing norm and provide individual attorneys with support for refusing to waive clients’ rights and enter plea agreements without a sufficient foundational knowledge to provide competent advice." I think that this is fundamentally right. The current plea bargaining model is like a business contract between parties with unequal bargaining power. And when the plea bargaining process is more about driving a hard bargain than the defendant actually acknowledging what he did wrong and the damage he caused, is it any surprise that we have high recidivism rates and low satisfaction with the criminal justice system? The Proposed Changes ask prosecutors to treat defendants with dignity, to focus on the possibility of defendants' actual innocence, and to make disclosures to defendants when they have evidence of their guilt. They ask for defense counsel to try to make cases for their clients rather than merely trying to determine what counteroffer to the prosecution's plea offer will lead to the best result. I asked Professor Moriarty what led her to write the article, and she responded:

Bruce Green at Fordham invited me to work on a roundtable presentation for the ABA prosecutorial and defense function standards (which are being revised) & to write an article for a symposium on the subject of waiver of rights related to the Proposed Standards.

I am distressed at how easy it is to waive virtually all rights and how low the standards are for knowing waiver; how willing courts are to permit case-in-chief waivers for the mere privilege of  discussing a plea (pre-conditional plea waivers);  how much the balance of power in criminal matters had shifted over the past 15 years away from the judiciary and toward federal prosecutors;  how the administration of criminal cases has become nearly trial-less; and how little evidence (both inculpatory & exculpatory) many prosecutors disclose.  Pleas are really just capitulating to the government's best offer.

In addition to the fundamentally unfair situation this places defendants in, it also puts  defense counsel in the unenviable position of giving advice often without sufficient knowledge or a guaranteed plea agreement.  To reject the prosecution's plea means possible decades of prison that could have been avoided.  No matter what, the defendant loses the benefit of truly competent representation.

I think the proposed standards are a helpful start in correcting some of the unfairness and imbalances that have developed.

-CM

Resource of Interest: The National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law

Today, I wanted to shine a light on a truly terrific resource that I use in preparing for classes, researching and writing scholarship, and updating this blog: The National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law. The vision statement of the Clearinghouse is "[t]o foster communication between the scientific, technological and legal communities, resulting in awareness and understanding of the policies, interests and concerns affecting those communities." Meanwhile, its mission statement is "[t]o provide comprehensive scientific, technological and legal information, which will promote justice based on sound science and technology."

So, how does it accomplish these goals? Well, it

assembles the available scientific, technological, and relevant legal resources into a comprehensive "one-stop" searchable database with equal access for all. There are no subscription fees which makes the NCSTL database the only free compilation of forensic resources in the world.    

NCSTL seeks to promote justice by developing resources for the legal and scientific communities to provide timely, accurate and useful information. Current projects include distance education programs and training modules and primers with an emphasis on distance delivery, in-person trainings, and extended partnerships with law schools, professional agencies, and federal and state agencies.

NCSTL provides a searchable database of legal, forensic, and technology resources; a reference collection of law, science, and technology material; content-specific bibliographies; national conferences on science, technology, and the law; community acceptance panels; and training for defense counsel who are handling cases involving biological evidence on the applications and limitations of DNA evidence as stated in the President’s DNA Initiative.

In the rest of this post, I will highlight the NCSTL resources that I regularly use and some of the fine folks responsible for the NCSTL's accomplishments.

Resources:

Here are some of the NCSTL resources I regularly rely upon:

•The forensic research database: Let's say that I want a case involving fingerprints to use in my Evidence class. Or, what if I want to do a blog post about recent legislation regarding fingerprint evidence? How about some articles on fingerprint evidence to use in upcoming scholarship? The forensic research database is the best resource out there. Forget Westlaw or Lexis. With the database, there are three steps to searches: (1) Choose the topic(s) you want to search (e.g., Digital Evidence, Fingerprints, Voice Analysis); (2) Choose the resource(s) you want to search (e.g., Cases, Dissertations, Radio/TV shows); and (3) Enter keywords. You can also save your searches for later reference. This blog wouldn't be what it is without this database;

•NCSTL's Quarterly e-Newsletter: What's new and now in expert evidence? You can easily find out with NCSTL's Quarterly e-Newsletter. For instance, in this month's newsletter, NCSTL has (1) Skinner v. Switzer: The Peculiar Problem of Post-Conviction Access to DNA Evidence; (2) California's Crime Lab Problems; (3) NCSTL Hosts DNA for Defense Seminar; and (4) Crime Laboratories Nationwide Feel the Pinch;

•NCSTL's Forensic Conference & Seminar Calendar: Want to know when and where there are upcoming conferences and seminars on forensic science? You need look no further;

•NCSTL's Resource Pages: Here are just a few of the many examples of the excellent resources you can access on NCSTL's Resource Pages: (1) hyperlinks to forensic science journals; (2) a hyperlinked list of innocence projects by state; and (3) a hyperlinked list of resources for expert witnesses; and

•NCSTL's Education & Training Page: On this page, you can, inter alia, (1) spice up one of your classes with a lecture by an expert; (2) access a variety of teaching resources; and (3) find a variety of media links.

And that's just the tip of the iceberg. There's a seemingly bottomless repository of resources on the NCSTL site, and I seem to find something new each time that I visit.

The NCSTL Team:

NCSTL has a distinguished Advisory Council and a crack team of researchers. The Clearinghouse is helmed by Director Carol Henderson, a professor at the Stetson University College of Law. 

Professor Carol Henderson is a recognized authority in scientific evidence, law and ethics. She has presented more than 250 lectures and workshops to thousands of forensic scientists, attorneys, judges and law enforcement personnel worldwide on the topics of scientific evidence, courtroom testimony, and professional responsibility. She has lectured in Argentina, Australia, Canada, Finland, Germany, Hong Kong, Italy, Japan, Scotland, Spain and Taiwan. Professor Henderson has written four books and more than 45 articles and book chapters on scientific evidence, law and ethics. 

NCSTL's Director of Research is Diana Botluck.

A legal information professional for over 20 years, Ms. Botluk is also the author of The Legal List: Research on the Internet, a book published annually by West Group. Named one of the top eight online legal researchers in T.R. Halvorson’s book, Law of the Super Searchers: The Online Secrets of Top Legal Researchers, she is an innovative information professional with a focus on online, legal, and forensic resources.

NCSTL's Director of Outreach is Anjali Swienton.

Ms. Swienton received her M.F.S. from the George Washington University in 1992 and her J.D. (Cum Laude) from The American University, Washington College of Law in 2002. She is President and CEO of SciLawForensics, Ltd. which provides litigation support and facilitation for the development of specialized training and education tools and publications to the criminal justice and law enforcement communities. 

Finally, NCSTL's Director of Technology & Distance Education is Susan Zucker.

Dr. Susan Zucker has twelve years’ experience directing educational programs. Her areas of expertise include instructional technology integration, web course development and online applications, curriculum design and delivery, and faculty and staff development. She teaches web-based distance delivery graduate courses for the University of South Florida’s (USF) College of Education where she holds a courtesy faculty appointment.

With these great minds (as well as others) helming NCSTL, it is easy to see why the Clearinghouse is such a great success.

-CM

Article of Interest: E. Lea Johnston's Representational Competence: Defining the Limits of the Right to Self-Representation at Trial

When should a defendant be allowed to represent himself at trial? This is a pretty fundamental criminal justice question because the denial of the right of self-representation is a structural error necessitating a new trial without a showing of actual prejudice. As the Supreme Court noted in McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984), "The right is either respected or denied; its deprivation cannot be harmless."

And yet, how are trial courts to decide whether a defendant is sufficiently competent to represent himself at trial? In Dusky v. United States, 362 U.S. 402 (1960), the Supreme Court held that the Constitution does not permit the trial of a person who lacks mental comepetence and then defined the competency standard as including both (1) "whether" the defendant has "a rational as well as factual understanding of the proceedings against him;" and (2) whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding."  28 years later, in Indiana v. Edwards, 554 U.S. 164, 177 (2008), the Court held that  "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."

But under what circumstances should a court find that a defendant is competent to stand trial but not competent to represent himself? The Court in Edwards did not do much to answer this fundamental question, merely finding that the defendant's condition in the case before it fell "in a gray area between Dusky's minimal constitutional requirement that measures a defendant's ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose." But don't take my word for it. Instead, consider the recent opinion in United States v. Saba, 2011 WL 202086 (W.D.Mich. 2011), in which the United States District Court for the Western District of Michigan concluded that "[t]he skeletal guidance of Edwards suggests that a case-by-case analysis is to be employed requiring, a review of the specifics of this case." This language suggests that the gray area between competence to stand trial and competence to self-represent is actually gray matter and that courts must probe the brain of each individual defendant to ascertain whether he can take the lead role in his trial instead of playing the understudy.

In her excellent forthcoming article, Representational Competence: Defining the Limits of the Right to Self-Representation at Trial (forthcoming, Notre Dame Law Review), E. Lea Johnston, a professor at the University of Florida Levin College of Law, argues that Edwards' skeletal frame is insufficient to support the enormity and complexity of the self-representation question. Instead, she argues that courts need to flesh out a test of representational competence, and she puts forward a test based upon social problem-solving theory.

I, I Want You Autonomy

After a vigorous discussion of Indiana v. Edwards in Part I of her article, Professor Johnston notes that in Faretta v. California, 422 U.S. 806, 834 (1975), the Supreme Court pinpointed autonomy as the fundamental principle served by self-representation. Professor Johnston then posits that "[r]eccognizing a criminal defendant's autonomy is justified on both deontological and utilitarian grounds." Why? Well, here are a few of the examples given by Professor Johnston:

•A court-appointed attorney may well have different goals, values, and priorities than the defendant, especially given their likely very different social, economic, and perhaps cultural or racial backgrounds;

•By foisting a lawyer on an unwilling defendant, we not only force a defendant to put on his case through counsel, but we also eliminate his ability to make strategic and tactical decisions concerning his defense;

•Deciding how to respond to the State’s charge—with the public watching—may be of profound personal value to the defendant;

•Allowing criminal defendants to exercise self-determination may enhance an individual’s happiness and maximize societal utility in several ways; for instance,

•Cognitive and social psychological theory suggests that self-determination also amplifies an individual’s ability to recognize and achieve his goals by increasing his motivation and effort; and

•Allowing a defendant to govern his defense may also reduce feelings of alienation from the legal process and result ultimately in individuals gaining greater respect for the rule of law.

At the same time, Professor Johnston acknowledges that 

While the interest of autonomy is paramount to self-representation, the U.S. Supreme Court in Edwards recognized that competing values may warrant overriding a defendant’s decision to proceed without counsel. In particular, the Court suggested that a trial court could deny a motion for self-representation when "a defendant’s lack of capacity threatens an improper conviction or sentence" or the provision of a fair trial. The Court also noted that "proceedings must not only be fair, they must 'appear fair to all who observe them.'"

So, how should we balance those competing values? According to Professor Johnston, we should do so by applying a two criteria test for representational competence:

First, representational competence should require those functional abilities necessarily present for the exercise of meaningful autonomy. Second, a representational competence standard should include a particular functional ability if its absence poses a grave threat to the reliability or the actual or apparent fairness of the adjudication. 

Bet You Thought You'd Solved All Your Problems

Now, how do we go about fleshing out this two criteria test for representational competence? Professor Johnston argues that we need to look at social problem-solving theory, which I think makes a great deal of sense. Again, we're trying to fill in the gray area between competence to stand trial and competence to self-represent. The logical starting point, then, is to consider the nature of these two competencies. Let's first look at the competency required to stand trial:

A represented defendant is authorized to make only a few decisions within the context of a criminal adjudication: whether to plead guilty, waive the right to a jury trial, waive the right to counsel, testify and be present at trial. As a matter of basic ethics, for each of these decisions counsel will identify for his client the decision point, clarify the issue, distill the possible options, gather relevant information, perform key analysis, and present his recommendation. The task left to the defendant is to select among the options outlined by counsel.

Conversely,

A pro se defendant...faces a markedly different and more challenging decisional context than his represented counterpart. To defend himself from prosecution, a pro se defendant will be called upon to make a multitude of decisions in short succession: which defense, if any, to exert and how to establish it, which witnesses to call and what to ask them, whether to testify and what to say, what evidence to introduce and how to introduce it, whether and how to cross-examine unfavorable witnesses, whether and how to object to incompetent evidence, what information to include in opening and closing statements, and which jurors to strike and on what basis. The list goes on and on. For each of these decisions, a pro se defendant must—often unassisted—identify the relevant decision point, gather information to understand the situation, brainstorm alternative responses, evaluate these alternatives, and select an alternative. He will need to make decisions extemporaneously, during the course of trial, often while an impatient decision maker (the judge or jury) is waiting. Finally, a pro se defendant must, unless assisted by standby counsel, translate his decisions into courtroom-appropriate action.

In other words, a represented defendant is like a patron at a restaurant with a menu. Sure, this patron must make several decisions: What item(s) to select, whether to order an appetizer and/or dessert, how his meat should be cooked, etc. On the other hand, a pro se defendant is like a Top Chef contestant given a series of challenges without immediately apparent responses (e.g., whip up a dish made entirely out of items from the vending machine down the hall) and forced to come up with on the spot solutions. According to Professor Johnston,

Self-representation, at its core, is an exercise in problem solving, where the "problem" is the prosecution of one or more criminal charges and the "solution" is the selection and implementation of an effective defense. To identify the range of decisional abilities potentially necessary for self-representation, our initial inquiry should focus on disaggregating the problem-solving process. This disaggregation will illuminate abilities necessary for making decisions worthy of deference at a criminal trial, without the assistance of counsel.

This begs the question of which problem-solving theory is most suitable to the self-representation analysis, and Professor Johnston finds the best match to be social-problem solving theory, with social problem-solving

defined as the self-directed cognitive, behavioral, and affective process by which an individual attempts to identify effective solutions for specific problems encountered in the natural environment. [The theory] define[s] a problem as "any life situation or task (present or anticipated) that demands a response for adaptive functioning but no effective response is immediately apparent or available to the person or people confronted with the situation because of the presence of one or more obstacles." Obstacles may include novelty, ambiguity, deficiency of performance skills, or lack of resources. A problem is thus a particular person-environment relationship marked by a perceived imbalance between demands and adaptive response availability.

By definition, social problem-solving theory applies to problems in everyday life. Social problem solving is intended to encompass impersonal problems such as insufficient finances, personal or intrapersonal problems such as cognitive or health problems, interpersonal problems such as marital conflicts, and broader community and social problems such as crime and racial discrimination. Thus, social problem-solving theory should be relevant in analyzing the decisionmaking process of a pro se defendant in a criminal trial.

Professor Johnston then breaks down which problem solving domains and associated abilities should (and should not) be included in the representational competence standard. Here is brief sketch of some of the arguments, and I would recommend that readers check out her article for her full analysis:

Problem Orientation

•Problem orientation...is a motivational process that involves the general cognitive, behavioral, and affective response of an individual when confronted with a specific problem....From a normative standpoint, three aspects of problem orientation are appropriate and important to include in a representational competence standard. 

•Capacity to Perceive Problematic Situations: First, a defendant should possess some degree of problem perception, or the ability to recognize the presence of a problem or decision point. If a defendant is unable to recognize a decision point, then his reaction at that moment cannot stand for a deliberate exercise of autonomous decisionmaking. In the context of self-representation, a defendant should be capable, to the extent he possesses necessary procedural and evidentiary knowledge (an important caveat), of recognizing points at trial at which he could advance his defense.

•Ability to Identify Plausible Source for the Prosecution: Second, a defendant should be capable of ascribing a problem to a rational, non-delusional source. If a defendant is unable to engage in a reality- based search for the cause of a stressful situation, then he will be incapable of accurately appraising the problem and setting realistic goals for remedying the situation. A court should hold a defendant incompetent to represent himself if he attributes the underlying offense or the origin of the prosecution to a source that is impossible, either absolutely or as to the individual.

•Willingness to Attend the Prosecution: Third, the defendant’s approach/avoidance style should be one in which he possesses a willingness to tackle problems. This element implicates the defendant’s personal control beliefs, or beliefs about his ability to address problems adequately. If a defendant believes himself incapable of solving problems and thus persistently avoids and evades decision points, then he will be incapable of making the host of decisions (often in quick succession) that trial demands. For the defendant who opts to go to trial, an unwillingness to challenge the prosecution’s case because of mental illness or disability may signal an inadequate approach/avoidance style.

Problem Definition and Formulation

•Ability to Gather Information to Evaluate the Prosecution's Case: Of primary importance at the problem formulation stage, according to social problem-solving theory, is to gather relevant information about how and why a situation is troubling or why action is necessary....To satisfy minimal standards of reliability, a defendant should be capable of selecting and building his defense in response to the government’s case. Assessing the "problem" of the prosecution prior to trial involves gathering information on the government’s likely prosecution theory and assessing the likely evidence to be introduced against the defendant. To this end, a criminal defendant should be capable of understanding the elements of the charged offense, identifying facts (including physical evidence and likely witness testimony) helpful to the State, and roughly evaluating the significance of that evidence for the government’s case. As the trial unfolds, the defendant should be able to comprehend the course of the proceedings and the substantial effect of the government’s evidence. He should be able to examine the government’s case and discern potential deficiencies in the evidence. Finally, he should be capable of identifying favorable evidence and understanding its legal relevance.

Generation of Alternative Solutions: 

•Ability to Generate Alternative Courses of Action: A representational competence standard should not require a criminal defendant to exercise optimal strategies for generating alternative solutions, but it probably should encompass the basic ability to generate more than one option in response to a given problem. By definition, one cannot solve a problem without generating at least one possible solution. It is also likely true that one’s ability to generate an adequate response depends on the capacity to brainstorm multiple options. In the context of a criminal trial, generating alternative approaches at a given decision point—whether what defense to exert, how to build that defense, or how to respond to a witness called by the State—is a function normally served by counsel. Given the centrality of this process to problem solving in general and criminal litigation in particular, it seems reasonable to require a defendant seeking to represent himself at trial to possess the ability to generate alternative strategies for solving a problem at a given decision point. 

Decisionmaking

•Ability to Justify Key Decisions With a Plausible Reason: To honor the preference for autonomy, I suggest that a defendant possesses adequate reasoning ability if he is capable of justifying his selection of a defense with a single reason that has a plausible grounding in reality. Justifications with a plausible grounding in reality would include reasons enjoying a modicum of evidentiary support and those capable of evidentiary support in the world as we understand it. In contrast to the requirement that a defendant demonstrate the capacity to engage in a logical, probability-laden decisionmaking process, this standard would accommodate individuals' differing decisionmaking styles. The standard would also respect variation in defendants’ beliefs, values, and preferences. It has the added benefit of providing a fairly objective measure of plausibility, which would serve to constrain a court’s ability to find "incompetent" those decisions that a court believes to be unwise.

Solution Implementation

•The final stage of problem solving involves solution implementation, or carrying out the chosen solution....While representational competence should not include a robust communication or performance element, several elements of solution implementation may be appropriate for inclusion in a representational competence standard.

•Ability to Maintain Mental Organization and Ability to Withstand the Stress of Trial: In particular, a defendant should be able to make decisions within the context of trial. This requires the ability to sustain mental organization, maintain concentration or attention, make decisions within a short timeframe, and withstand the stress likely to accompany trial participation. Trial is stressful and necessitates the ability to make decisions within a short period of time before an impatient, potentially hostile audience. Often within the span of a few minutes, a defendant will need to decide, for instance, whether to object to arguably prejudicial or irrelevant questions in the direct examination of a witness, whether to cross-examine the witness, and what lines of inquiry to pursue. A representational competence standard should not require the ability to make numerous decisions under stress consistently....But a defendant arguably should have the capacity to make a decision without protracted delay, remember that decision, and act in general accordance with that decision as the trial proceeds.

•Ability to Communicate Decisions to a Functionary of the Court: In addition, a defendant should be able to communicate his decisions to a functionary of the court. To satisfy the Dusky standard to stand trial, a defendant must be able to communicate pertinent information to counsel and express a preference as to fundamental decisions within his decisional domain. Self-representation may, depending on the support provided to the defendant, require communicative abilities of a different degree. 

Effect and Cause

In the final part of her article, Professor Johnston addresses an ambiguity created by the Court in Edwards. As noted, in Edwards, the Court held that "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Based upon this language, it appears that a court cannot deem a defendant competent to stand trial incompetent to represent himself unless this incompetence is caused by mental illness (or mental disability). Professor Johnston, however, notes that other language is less clear and leaves open the door for courts possibly deeming defendants incompetent to represent themselves based, inter alia, upon temporary functional disabilities and functional disabilities due solely to physical limitations...."

Professor Johnston closes this door, noting that "[c]ausation is one of the defining hallmarks of legal competency standards in civil and criminal contexts" and that "[m]ost competency standards require that legally recognized deficiencies originate from mental illness or mental disability." She then concludes that

Limiting the legal recognition of a functional disability to those disabilities caused by mental illness or disability would help ensure that courts do not deprive individuals of their constitutional right to represent themselves merely because their choices are odd or different. A fundamental tenet of mental health law is that "the legally relevant behavior of mentally disordered persons is a product of their mental disorder and not of their free choice." A state’s power to deprive an incompetent defendant of his Sixth Amendment right to self-representation—and to impose a substitute decision maker on the defendant—extends from its parens patriae authority. Therefore, the justification for a state’s intervention should be to protect the defendant from decisions that stem from illness or disability rather than from those that are the product of the individual’s free will. Put simply, individuals capable of rational, autonomous decisionmaking should not have to suffer the state’s "protection" or the abdication of their ability to make choices. 

Conclusion

As I said at the start, the question of whether a defendant should be able to represent himself at trial is fundamental to the criminal justice system, and yet, the Supreme Court has not equipped lower courts with the tools to be able to answer that question. All the Court has provided is a skeletal framework, leaving lower courts to perform something akin to the game Operation, hoping that they don't set off the buzzer in the form of a constitutional violation. I think that the great value of Professor Johnston's proposal is that it sets forth a logical approach to the question that judges could smoothly incorporate into the existing case law. I asked Professor Johnston what led her to write the article, and she responded:

I wrote the piece in response to what I perceived as a large gap in the law -- the Supreme Court approved a higher standard of competence to represent oneself than to stand trial without delineating the essential features of that standard.  I worried, in particular, about how this standard could be applied to individuals with serious mental illnesses.  I therefore tried to identify a framework for identifying capabilities that every person should possess before she is permitted to represent herself.  For that, as you know, I drew on social problem-solving theory, after developing a normative framework to assess each capability suggested by that theory.  I received a call from a federal judge interested in implementing my proposed standard several months ago -- I hope it will ultimately have broad appeal.   

Representational Competence builds upon an earlier article, titled Setting the Standard: A Critique of Bonnie's Competency Standard and the Potential of Problem-Solving Theory for Self-Representation at Trial (43 U.C. DAVIS L. REV. 1605 (2010)).   

-CM 

Eyewitness Account: Court Of Appeals Of Washington Practically Begs Supreme Court Of Washington To Approve Jury Instruction On Cross-Racial Identifications

Should defendants be able to present expert testimony and/or jury instructions about the inaccuracy of cross-racial identifications? I find this to be a fascinating question (see my posts here, here, here, here, here, and here), and it is one that has divided the courts. As the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Allen, 2011 WL 1745014 (Wash.App. Div. 1 2011), makes clear, Washington courts do not allow instructions about the inaccuracy of cross-racial identification but they can in their discretion allow expert testimony on the subject if certain factors are present. But here's the interesting thing about the court's opinion in Allen: The Court of Appeals seemed to say that such instructions should be given, and it seemingly laid out a strong case for the giving of such instructions. And, in effect, the Court of Appeals seemed to be begging the Supreme Court of Washington to agree with it.

In Allen, Bryan Allen was convicted of felony harassment after a trial in which a witness for the prosecution made a cross-racial identification. Allen thereafter appealed, claiming, inter alia, that the trial court erred by not giving the jury one of two proposed alternative jury instructions regarding the inaccuracy of cross-racial identifications. The first proposed instruction stated:

"In this case, the identifying witness is of a different race than the defendant. In the experience of many, it is more difficult to identify members of a different race than member's [sic] of one's own [race]. Psychological studies support this impression. In addition, laboratory studies reveal that even people with no prejudice against other races and substantial contact with persons of other races still experience difficulty in accurately identifying members of a different race. Quite often people do not recognize this difficulty in themselves. You should consider these facts in evaluating the witness's testimony, but you must also consider whether there are other factors present in this case."

And, the second proposed instruction stated:

“In this case, the defendant, Bryan [Allen], is of a different race than Gerald Kovacs, the witness who has identified him. You may consider, if you think it is appropriate to do so, whether the fact that the defendant is of a different race than the witness has affected the accuracy of the witness'[s] original perception or the accuracy of a later identification. You should consider that in ordinary human experience, some people may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. You may also consider whether there are other factors present in this case which overcome any such difficulty of identification." of identification.”

According to the court, the trial court's refusal to give either instruction denied him his due process right to a fair trial and his right to present a defense. After doing a nice job of laying out the different approaches taken on the issue by various jurisdictions, the Court of Appeals of Washington noted that

(1) the Supreme Court of Washington previously found that a trial court did not err in refusing to give a jury instruction on the inaccuracy of cross-racial identifications in State v. Laureano, 682 P.2d 889 (Wash. 1984); and

(2) the Supreme Court of Washington previously found in State v. Watkins, 766 P.2d 484 (Wash. 1989), that Washington courts cannot give general jury instructions on the inaccuracy of eyewitness identifications.

So, what was the basis for the court's conclusion in Watkins? It was Article IV, Section 16 of the Washington Constitution, which provides that "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." The problem, then, with jury instructions is that witness credibility is a factual question, meaning that such instructions constitute improper judicial comment on an issue that jurors should decide for themselves based upon direct testimony and cross-examination. 

The court in Allen then noted, though, that

Allen argues this rationale has been challenged by subsequent research. Traditional trial protections of suppression hearings, voir dire, cross-examination of witnesses, closing arguments, and general jury instructions on the credibility of witnesses do not adequately address the special recognition impairments present in cross-racial eyewitness identification. Criminal Justice Section Report at 7. "Although cross-examination is a powerful tool for exposing lies, it is not particularly effective when used against eyewitnesses who believe they are telling the truth." Jacqueline McMurtrie, The Role of the Social Sciences in Preventing Wrongful Convictions, 42 AM.CRIM. L. REV. 1271, 1277 (2005)...The additional protection of a cross-racial jury instruction is needed, "because the own-race effect strongly influences the accuracy of identification, because that influence is not understood by the average juror, because cross-examination cannot reveal its effects, and because jurors are unlikely to discuss racial factors freely without some authorization to do so." Sheri Lynn Johnson, Cross–Racial Identification Errors in Criminal Cases, 69 CORNELL L. REV. 934, 982 (1984).

At present, the existing alternative to permitting a jury instruction is to allow expert testimony on the issue. Under Washington law, expert testimony may be admitted, at the discretion of the trial court, to discuss the reliability of eyewitness testimony, but only if certain factors are present. Cheatam, 150 Wash.2d at 649, 81 P.3d 830. But, even if admitted by the trial court, expert testimony is not always available, as it is expensive and there are a limited number of experts available. Criminal Justice Section Report, at 3. And, expert testimony may not explicitly permit juries to raise race-related issues in the jury room to the extent necessary to combat the undue reliance on eyewitness testimony.

The import of this language is clear: The Court of Appeals wanted to find that the trial judge should have given one of Allen's proposed jury instruction, but it felt constrained by the Washington Constitution and prior precedent by the Supreme Court of Washington. Indeed, the Court of Appeals then proceeded to set forth a laundry list of instructions that Washington courts have found permissible. Specifically, the court cited to the Supreme Court of Washington's opinion in State v. Carothers, 525 P.2d 731 (Wash. 1974), in which it found no problem with an accomplice liability instruction, concluding that

An instruction to view the testimony of an accomplice with caution is an indication not of the judge's attitude toward the testimony of a particular witness, but of the attitude of the courts generally toward the testimony of witnesses of this type. It is an attitude which has been garnered from many years of observation of the prosecutorial process. The courts have an expertise upon this subject which the ordinary citizen cannot be expected to have. They have observed that innocent persons may be sent to prison or to death upon the testimony of an accomplice. At the same time such testimony is not invariably false and it may be the only proof available.

According to the Court of Appeals,

The rationale applied in Carothers could apply in equal force to a cross-racial eyewitness identification instruction, which is not invariably false and at times is the only proof available to the State but has resulted in the convictions of innocent people. However, it is for the Supreme Court to consider whether there truly has been a showing that the cross-racial identification instruction "impedes the administration of justice."...At present, it has not provided approval of any pattern jury instruction on the subject.

Therefore, we follow the Supreme Court's lead in Loreano. We also follow our prior cases holding that an instruction about the reliability of eyewitness evidence risks violating the constitutional prohibition against comments on the evidence....We conclude that Allen's due process rights were not violated. We hold that the trial court did not err by refusing to instruct the jury on cross-racial eyewitness identification.

In other words, the Court of Appeals clearly wanted to find that the trial court could have, and should have, given a jury instruction, and it practically served up the rationale for allowing such an instruction on a silver platter to the Supreme Court of Washington. Will the Washington Supremes take the bait? I guess that we will have to see.

-CM

One Track Bind: Brady, Melendez-Diaz, and Remedial Rationing

Last week, I posted an entry about Cynthia Jones' A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010). Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. But what's the sanction for a Brady violation? Well, typically, it is merely the prosecution disclosing the exculpatory evidence. And, as Professor Jones noted, "Simply ordering the prosecutor to disclose the Brady evidence is, of course, more of a directive than a sanction, because the prosecutor is not required to do anything above and beyond that which was already constitutionally mandated."

This is why I thought that Professor Jones' proposal for additional sanctions for Brady violations (giving a Brady instruction similar to the adverse inference instruction and/or instructing jurors that that a Brady violation supports the inference of consciousness of a weak case) could cause a sea change in Brady because it would deter prosecutors from failing to disclose material exculpatory evidence. And the reason that such sanctions would be so important is that it is virtually impossible for defendants to turn around and bring successful civil actions based upon Brady violations, especially given the Supreme Court's recent opinions in Van de Kamp v. Goldstein, 555 U.S. 335 (2009) and Connick v. Thompson, 131 S.Ct. 1350 (2011).

In this regard, the right created by Brady is similar to many criminal procedure rights in that it is  subject to what Jennifer E. Laurin, a professor at The University of Texas School of Law refers to as "remedial rationing" in her essay Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing, 109 Colum. L. Rev. Sidebar 82 (2009). According to Professor Laurin, remedial rationing is the process by "which enforcement of a given criminal procedure right is committed either to the criminal or the civil realm." And, the argument in her article is "that remedial rationing is misguided both in underestimating the structural limitations of criminal and civil litigation to achieve regulatory goals, and in disregarding potential synergies that may be generated by recursive criminal procedure remedies." So, let's see how this plays out with the example of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

To understand Melendez-Diaz, we need to understand Crawford v. Washington, 541 U.S. 36 (2004), in which the Supreme Court held that the Confrontation Clause 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.

Thereafter, in Melendez-Diaz,

Police arrested Luis Melendez-Diaz, took what was apparently cocaine from him, and charged him with distributing cocaine and trafficking in cocaine in an amount between 14 and 28 grams. At trial, the police introduced into evidence three "certificates of analysis" showing the results of the forensic analysis performed on the seized substances.  The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine."...The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Health.

Melendez-Diaz argued that these certificates/affidavits were "testimonial" and that their admission thus violated the Confrontation Clause because the analysts did not testify at trial, and the Court agreed, concluding that

not only were the affidavits "'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,'"...but under Massachusetts law the sole purpose of the affidavits was to provide "prima facie evidence of the composition, quality, and the net weight" of the analyzed substance....We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits.

So, why was the Court's ruling so important? Well, take a look at the report, Strengthening Forensic Science in the United States: A Path Forward, to see what's really going on in crime labs across the country and why it is so important for defendants to be able to cross-examine analysts about how they reached their results. But let's contextualize Melendez-Diaz in the larger criminal justice picture. Melendez-Diaz was denied his Confrontation right, so his conviction was reversed. Prosecutors in the future will undoubtedly be deterred from introducing similar evidence without the accompanying testimony of the person producing that evidence (especially if the Court rules the way that I think it will in Bullcoming v. New Mexico). But will Melendez-Diaz actually deter bad practices in forensic medicine?

Professor Laurin notes that there are two types of deterrence that precedent can effectuate:

Specific deterrence operates at the level of individual prosecutions: The right of confrontation might deter prosecutors from introducing weak or faulty evidence at any given trial; threat of cross-examination may deter a given analyst's impetus to falsity or even negligence. General deterrence concerns the impact of the confrontation right beyond a specific criminal case: Prosecutors anticipating cross-examination might increase their vetting of forensic science evidence and witnesses; discredited forensic methodologies vulnerable to cross-examination (for example, bullet-lead analysis) might fall into disuse.

She then points out, though, that

deterrence of any sort depends upon enforcement's adequacy and effectiveness. The right of confrontation must be invoked frequently enough to affect incentives, and the enforcement mechanism--cross-examination, or loss of a prosecution--must effectively expose poor science or spur better forensic science practices. The ability of criminal adjudication to deter bad forensic science practice is hampered on both scores.

So, let's look first at adequacy. According to Professor Laurin,

As for adequacy, confrontation can only occur at trial--an increasingly rare occurrence. In addition, the right will not always be invoked--either for tactical considerations by the defense or as a symptom of poor or underfunded defense advocacy. Some deterrent effects might nevertheless be generated. Prosecutors want to win those cases that are tried, and the lack of ability to predict ex ante when confrontation rights will be invoked might prompt wholesale efforts to improve analytical and testimonial practices. Or the defense bar, armed with the confrontation right, might devote more attention to training or information sharing on cross-examination of forensic scientists. Perhaps. But perhaps more likely is that, instead of investing time and political capital in greater oversight of crime laboratory practices and testimony, police and prosecutors will simply reduce reliance on scientific evidence altogether. In a universe of more crime than there is time to investigate and prosecute, law enforcement might swap low-science (think property crimes) for high-science (think DUI) cases. Prosecutors might also sweeten plea deals in drug cases to avoid trials. Whether such responses would be "good" or "bad" is debatable. But certainly, they thwart Melendez-Diaz's potential to generate systemic incentives for improved forensic science.

(Indeed, a similar argument could be made in the Brady context because the vast majority of cases are resolved by plea bargain, and courts have not done a good job at all of explaining if and to what extent the Brady doctrine applies to plea bargaining. See, e.g., John Douglass, Fatal Attraction? The Uneasy Courtship of Brady and Plea Bargaining, 50 Emory L. J. 437 (2001)).

Professor Laurin then notes that

These substitution effects also, of course, hamper "effectiveness" to the extent that the right of cross-examination triggers work-arounds rather than changes in forensic science practice. Additionally, where cross-examination does occur, its actual utility as a mechanism for exposing flaws in forensic science is suspect. Consider the anecdotal data. The Melendez-Diaz dissent pointed to six jurisdictions that already required "confrontation of the results of routine scientific tests or observations." Two, Texas and Mississippi, have seen some of the most serious instances of forensic science fraud. In Texas, Houston's police crime lab suffered decades-long deficiencies which were finally uncovered in an independent investigation commissioned by the city in 2005, long after the Texas Court of Criminal Appeals mandated confrontation. And in Mississippi the controversial "bite mark"opinions of the forensic dentist Michael West were given subject to the scrutiny of cross-examination.

So, the Confrontation right, like many criminal procedure rights, is subject to remedial rationing in that enforcement of the right is committed to the criminal realm. And based upon the way that defendants enforce the Confrontation right, Professor Laurin is able to preliminarily extrapolate

that criminal litigation, while perhaps unlikely to generate predictable general deterrence, possesses comparative advantages over civil litigation in the realm of specific deterrence: Constitutional violations are remedied relatively contemporaneously, and the consequences of the remedy are fairly likely to fall directly on the actors most immediately involved in the deprivation. Additionally, in the aggregate, criminal adjudication of criminal procedure guarantees is a relatively cheap mechanism for generating data about law enforcement conduct in a given jurisdiction.

Conversely,

we might plausibly suppose that civil litigation provides a superior mechanism for general deterrence. Even setting aside questions about the economic incentives actually created by civil damages, civil rights suits have the capacity to generate political incentives for prospective reform. Significant verdicts or settlements have the potential to generate media and public interest; the fact that the litigant is a civil plaintiff with a plausible claim to victimization rather than a criminal defendant obtaining relief on a "technicality" only enhances the comparative advantage of civil rights litigation in resonating with popular sentiment. The process of litigation often generates public data, sheds public light on government practices, or...generates a roadmap for reform. Indeed, even the threat of litigation may be seen as a political pressure point: Municipalities subject to suit might proactively address questionable practices in the aftermath of alleged misconduct in order to recapture a moral high ground or prevent current policymakers from exacerbating liability through ongoing "deliberate indifference" to constitutional violations.

Professor Laurin thus concludes that "criminal and civil remedies potentially generate coordinate advantages. But they are also interdependent in critical respects that are defeated by remedial rationing." Thus, "rationing overlooks the structural limitations of each remedy for generating systemic incentives in isolation, and that it diminishes the potential for positive synergistic effects between the criminal and civil remedial realms."

So, what's the solution? Well, Professor Laurin acknowledges at the end of her essay that her essay "has not touched on institutional and constitutional issues raised by the Court's cabining of congressionally created civil rights remedies, nor has it considered what principles, if any, should guide a court in limiting adjudication to one or another remedial regime." But, it seems to me to be a very important first step in addressing an issue that lies at the heart of our criminal justice system. Remedies define rights. So, how we define remedies is essential to how we define rights, and I look forward to seeing where Professor Laurin next takes her analysis. For interested readers, the next place to look is her recently published essay, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670 (2011).

-CM

Dead Again: Supreme Court Of Wisconsin Opinion Prompts Questions About Nature Of Dying Declaration Exception Under Common Law

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. As I have noted previously on this blog, however (see, e.g., here), the Court strongly implied that even testimonial dying declarations can be admitted without the defendant being previously able to cross-examine the declarant. At footnote 6 of its opinion in Crawford, the Court noted that 

Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are....We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.

Later, in its opinion in Giles v. California, 554 U.S. 353 (2008), the Supreme Court noted that

We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted....The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying.

Since Crawford, no state court has found that the admission of a testimonial dying declaration violated the Confrontation Clause, and the Supreme Court of Wisconsin recently joined these ranks with its opinion in State v. Beauchamp, 2011 WL 1681413 (Wis. 2011), holding:

We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. As the State notes, no published decision of any state court in the country has eliminated the dying declaration hearsay exception based on the reading of selected language of Crawford. We concur with the courts that have addressed this question after Crawford: a hearsay exception as long-standing, well-established and still necessary as this one, as indeed this case illustrates, cannot be lightly dismissed. Regardless of the religious justifications that have been articulated for dying declarations over the centuries, this hearsay exception is a crucial one, and it retains its vitality. We disagree with Beauchamp that scientific advances have changed criminal law such that there is always sufficient evidence without admitting the inculpatory words of a dying victim to fairly try a defendant accused of murder.

So, testimonial dying declarations can be admitted consistent with the Confrontation Clause because they were admitted under the common law. But what types of dying declarations were admitted under the common law? And which common law are we talking about? Moreover, what is the origin story of the dying declaration?

These are some of the questions addressed by University of Washington School of Law Professor Peter Nicolas in his terrific recent article, 'I’m Dying to Tell You What Happened': The Admissibility of Testimonial Dying Declarations Post-Crawford, 37 Hastings Const. L.Q. 487 (2010). But let's start with Beauchamp. In Beauchamp, the defendant claimed that the original justification for admitting dying declarations was religious: a declarant would not want to die with a lie on his lips and face eternal damnation. According to the defendant, this way of thinking was outmoded, meaning that dying declarations should be excluded because we live in "a society more secular than the one in which the exception originated."

So, is the dying declaration exception grounded in religion? The Supreme Court of Wisconsin wasn't sure. According to the court,

The hearsay exception has sometimes been justified on the grounds that a dying person was presumed under the common law to have, due to commonly held religious beliefs concerning the afterlife, such a fear of dying without the opportunity to expiate a lie that the reliability of any statement made in those circumstances was deemed equivalent to that of sworn testimony. As one commentator noted, "The original premise of this assumption was that the fear of divine judgment for lying provided religious assurance that the dying person would speak the truth." As early as 1860, however, a treatise writer disputed the notion that the doctrine's underpinnings were religious: 

[A dying declaration] is not received upon any other ground than that of necessity, in order to prevent murder going unpunished. What is said in the books about the situation of the declarant, he is being virtually under the most solemn sanction to speak the truth, is far from presenting the true ground of the admission....[T]he rule is no doubt based upon the presumption that in the majority of cases there will be no other equally satisfactory proof of the same facts. This presumption and the consequent probability of the crime going unpunished is unquestionably the chief ground of this exception in the law of Evidence.

Now, you may be asking yourself why the origin story of the dying declaration is important. Well, let's backtrack to Giles. As noted, in Giles, the Court held that there were two types of testimonial hearsay that were admitted at common law even though they were unconfronted. The first was the dying declaration. The second was the statement by a potential witness who was unavailable at trial due to the wrongdoing of a party (forfeiture by wrongdoing). And what the Court in Giles did was to explain the nature of this second exception under the common law. Specifically, the Court held that, under the common law, it was not enough that the party's wrongdoing caused the unavailability of the prospective witness at trial; instead, the party must have intended for his behavior to cause the unavailability for the prospective witness' statement to be admissible for him. Thus, states such as California and Wisconsin which applied the doctrine of forfeiture by wrongdoing without a finding of intent by a party had to limit the application of the doctrine.

This takes us back to Beauchamp. If the dying declaration exception is of religious origin, and courts under the common law only admitted dying declarations by religious declarants, then this would mean that testimonial dying declarations by atheists could not survive Confrontation Clause scrutiny after Crawford.  

But Professor Nicolas doesn't see it that way. Instead, he notes that

At common law in both the United States and England and well into the twentieth century in the United States, a person who did not believe in a Supreme Being was deemed incompetent to testify as a witness based on the theory that without such a belief, the oath was meaningless (and, by extension, so was any testimony that the witness might give). Under this theory, if the deceased would have been "incompetent" to testify had he survived (due to, inter alia, the absence of religious belief), it followed that the declarant's dying declarations likewise should not be received into evidence and was thus inadmissible.

Yet rather than being an element of the dying declaration exception itself, this is best viewed as falling within a broader rule that dying declarations (and hearsay generally) are inadmissible under any circumstances in which the declarant himself would have been incompetent to testify had he appeared and testified as an ordinary witness. So construed, the Confrontation Clause should not be construed to require that the declarant satisfy the specific witness competency rules extant at common law. Rather, the declarant's dying declaration should be admissible so long as he would be competent to testify as an ordinary witness under the then-existing competency rules.

Interestingly enough, Professor Nicolas cites the aforementioned excerpt from the 1860 treatise for another purpose. That 1860 treatise was written by Judge Isaac F. Redfield, who took over for Simon Greenleaf, the previous author of the treatise. Professor Nicolas notes that

According to nearly all respected modern evidence treatises and numerous twentieth century judicial opinions and other reputable sources, early common law decisions (those through around 1800) did not, in fact, limit the admissibility of dying declarations to homicide cases in which the death of the declarant was the subject of the charge. Rather, so long as the declarant was dead and believed his death to be imminent when he made the statement, the statement could be admitted in any case, civil or criminal. Rather, it was only in the early 1800s that common law decisions in both the United States and England narrowed the exception's applicability to homicide cases in which the death of the declarant was the subject of the charge.

For instance, Federal Rule of Evidence 804(b)(2), the modern dying declaration exception, provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [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.

So, what led to the change? Well, as Professor Nicolas notes, John Henry Wigmore lays the blame at the feet of Judge Redfield, claiming that he created this homicide limitation out of cloth when he updated Greenleaf's treatise. Now, Professor Nicolas questions this conclusion, but whether WIgmore is right or wrong is not really the point.

According to Professor Nicolas, the point is that there is currently a lack of clarity of the exact nature of the dying declaration exception under the common law and that courts need to sort out its exact nature, just as the Court did with the doctrine of forfeiture by wrongdoing in Giles.

Interested readers can check out Professor Nicolas's article for his full analysis, and here I will simply post the first two paragraphs of his conclusion, which nicely lay out the issues that courts must address in this regard:

Assuming that the Supreme Court confirms that there exists a dying declaration exception to the Confrontation Clause, there are at least three additional constitutional questions for the Court to resolve. First, whether the exception can be invoked only in homicide cases (and, more narrowly, those in which the death of the declarant is the subject of the charge), or whether it can be invoked in other types of criminal cases as well. Second, whether it only encompasses statements concerning the cause or circumstances of the declarant's impending death (or what he believed to be his impending death), or whether it can be invoked to admit unrelated statements. Third, whether the declarant must die, or whether it suffices that he is merely unavailable.  

The answers to each of these constitutional questions hinges upon how the Supreme Court resolves three additional issues: choosing among competing versions of history; choosing among competing points in history that matter (1791 versus 1868); and deciding whether to characterize the historical elements of the dying declaration exception in narrow or broad terms for Confrontation Clause purposes.

-CM

Gun It: Ninth Circuit Finds Firearm Registration Report Admissible Under Rules 803(8), 902(4)

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

As the recent opinion of the Ninth Circuit in United States v. Buttner, 2011 WL 1790090 (9th Cir. 2011), makes clear, a firearm registration report generated by the Automated Firearms System (AFS) database is admissible hearsay under Rule 803(8) and is also self-authenticating.

In Buttner, Jerry Buttner appealed a judgment following a jury verdict convicting him of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Buttner thereafter appealed, claiming, inter alia, that "the district court erroneously admitted into evidence a firearm registration report generated by the Automated Firearms System (AFS) database maintained by the California Department of Justice."

The Ninth Circuit disagreed, concluding that

The AFS report falls under the public records exception to hearsay. See  Fed.R.Evid. 803(8). That exception allows for the admission of "the sundry sorts of public documents for which no serious controversy ordinarily arises about their truth, and it would be a great waste of time to have the person who created them come to court and testify, such as birth certificates, death certificates, judgments, licenses, and the like."...The firearms report was generated from data that the California Department of Justice keeps “pursuant to duty imposed by [the California Penal Code]."...This "ministerial, objective, and nonevaluative" record-keeping raises no hearsay concerns. 

Moreover, the court found that the report was self-authenticating under Federal Rule of Evidence 902(4), which provides that

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:....

(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.

-CM

Article of Interest: Heather Baxter's Gideon’s Ghost: Providing the Sixth Amendment Right to Counsel in Times of Budgetary Crisis

Recently, I have been working on article that addresses the issue of whether the standard plea colloquy -- in which the judge asks the plea bargaining defendant whether his plea is "knowing, voluntary, and intelligent" -- is sufficient given the current public defender and economic crises. My argument is that it is not and that courts need to reconsider the language used in plea colloquies by referencing the Supreme Court's classic opinions in Gideon v. Wainwright and Miranda v. Arizona. Here is the opening paragraph to the abstract for the article:

In its landmark opinion in Miranda v. Arizona, the Supreme Court held that before a police officer can subject a suspect to custodial interrogation, he has to inform him not only that he has the right to attorney but also "that if he cannot afford an attorney one will be appointed for him…." 384 U.S. 436, 474 (1966). According to the Court, this latter admonition was necessary because the "[d]enial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford" could be supported by neither logic nor reason. Id. at 472-73. Indeed, "we should hardly be surprised to see the Court in Miranda take steps to protect indigent suspects subject to custodial interrogation; those steps mirrored perfectly the economic egalitarianism of the mid-1960s that marked the national mood." Corinna Barrett Lain, Countermajoritiarian Hero or Zero? Rethinking the Warren Court’s Role in the Criminal Procedure Revolution, 152 U. PA. L. REV. 1361, 1413 (2004). In including this latter admonition, the Court recognized that "[i]t was the poor who needed Miranda, just as they had needed Gideon three years before." Id.

So, what's the present problem with plea bargaining? Well, indigent defendants and public defenders are bringing lawsuits across the country, claiming that defendants are accepting plea bargains because, for all intents and purposes, they have no other choice. Their public defenders simply lack the time and resources to mount a vigorous defense at trial. And, what's the solution? The proposal in my article, which I have tentatively titled "If Your Attorney Cannot Afford You," is that courts need to add some variation of the following question to the plea colloquy: "Are you pleading guilty because you feel that your counsel is ineffective based upon lack of time and/or resources and would not be able to mount an adequate defense at trial?"  

Of course, this is a stop-gap measure. If a defendant answers this question in the affirmative, it means that the plea deal is rejected, and the defendant is returned to the same cash- and time-strapped public defender or other court-appointed counsel with (likely) similar issues. And that's part of my point. Maybe if judges, legislatures, and/or prosecutors see enough defendants making this claim in court, they will start to think about enacting some more permanent changes. And what might those changes be? That's the topic of a really interesting article that I came across in my research: Gideon’s Ghost: Providing the Sixth Amendment Right to Counsel in Times of Budgetary Crisis, 2010 Mich. St. L. Rev. 341 (2010), by Heather Baxter, a professor at the Nova Southeastern Law Center.

Muffling Gideon's Trumpet

In Gideon v. Wainwright, the Supreme Court recognized the "Sixth Amendment's guarantee of counsel" as "'fundamental and essential to a fair trial'" because "'[e]ven the intelligent and educated layman...requires the guiding hand of counsel at every step in the proceedings against him....'" So why, in the abstract to her article, does Professor Baxter assert that "Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country?" As she later notes in her article, there are a variety of reasons:

•Funding Has Gone the Wrong Way: For example, (1) In 2009, Georgia's Northern Judicial Circuit, the conflict counsel's budget was reduced from $129,166.00 to a mere $37,152.00, a more than 70% decrease in funding; and (2) in 2008, in Florida's Ninth Judicial Circuit, the criminal justice system experienced budget reductions of $3 million;

•Overwhelming Number of Cases: Professor Baxter cites a lot of disturbing statistics here, but I think that two examples drive the point home: (1) "[I}n Florida, one assistant public defender (APD) was assigned a total of 778 cases for the fiscal year of 2008-09. According to his calculations, this allowed him a mere three hours a year to spend on each case;" and (2) In Detroit, a study revealed that attorneys from the Misdemeanor Defender Professional Corporation representing indigent defendants likely "spend only thirty-two minutes per case;" 

•Ethical Implications: Professor Baxter notes that time and funding restrictions make it virtually impossible for public defenders and contract attorneys to comply with the ethical requirements of the Model Rules of Professional Conduct;

•Disproportionate Funding: The gap in staffing and funding between prosector and public defender offices is substantial and widening. For instance, a study in Tennessee of these respective offices revealed "a disparity of over $73 million between the offices for fiscal year 2005;" and

•Politics as Usual: "Even though most research points to the fact that a public defender's office is the most cost effective way to provide for indigent defense, the defense bar is not always willing or able to expedite the process of developing such a system."

Professor Baxter then sheds light on lawsuits in Florida, Kentucky, Michigan, Florida, and New York, in which defendants and public defenders have claimed that the current state of indigent defense violates defendants' constitutional rights. In summing up this litigation, she concludes that

When comparing these lawsuits, the most notable difference between the successful lawsuits and the unsuccessful lawsuits lies in who the plaintiffs are. Public defenders bringing suit, while perhaps garnering some sympathy from the courts, have not actually prevailed. On the other hand, when the plaintiffs are the indigent defendants themselves, and, therefore, are those who have presumably suffered the constitutional violation, the courts seem much more likely to at least let the lawsuit survive. The downside to such suits, however, is the lack of general effect they may have on the criminal justice system. Although they may generate relief for some individual defendants, it is unlikely that they can affect the kind of change necessary to make a difference in the indigent defense system as a whole.

Sounding the Trumpet Again

So, how can we breathe life back into Gideon's ghost? Professor Baxter proposes three practical solutions:

•Abandon the Tough-on-Crime Mentality: According to Professor Baxter, "[i]n 1970, one in every 400 Americans was incarcerated. Today, that number has quadrupled, with nearly one in every 100 adults being incarcerated, more than in any other affluent country. America has five times more people incarcerated than in Britain, nine times more than Germany, and twelve times more than Japan." So, how did we get here? Well, a large part of the equation is the war on drugs, with the number of people in prison for drug crimes increasing from 40,000 in 1980, to 500,000 today. This increase can be attributed both to the increasingly harsher penalties for drug offenses and the "inevitable recidivism of incarcerated prisoners." Professor Baxter acknowledges that harsher penalties might deter crime but cites statistics indicating that this deterrence is of the "pound of prevention for an ounce of cure" variety. This is not to say that the war on drugs should be abandoned, just that it should be recalibrated. As Professor Baxter notes,

in one state, it was found that 60% of parole violations were a result of the parolee using alcohol or drugs, or merely failing to report to their parole officer. Many of those then rearrested are subject to even harsher sentences based on laws designed to deter repeat offenses. These victimless crimes are creating a vicious circle of incarceration that overburdens and drains the resources of the states. At an average annual cost of $25,000 per prisoner, the incarceration of these drug offenders is costing the states $12.5 billion dollars a year. If this money were to be divided amongst the fifty states, each state would see a windfall of $230 million per year. This money could then be used to combat violent crime and create more diversion programs that would actually help stop the cycle of incarceration that has become so prevalent. Of course, this money could also be used to help fund a failing indigent defense system.

•Misdemeanor Reform: She next notes that "[a]nother way to find more money for state budgets—and free up public defenders—is to reform the misdemeanor system as it currently exists in this country. Right now, the misdemeanor system is a 'black hole for justice and resources.' Misdemeanor prosecutions have more than doubled in the last thirty years, going from five million in 1972 to 10.5 million in 2006." Why? Over-criminaliation. And, what's the solution? In Hawai'i, "the State legislature passed an act that required a non-partisan research group 'to identify minor criminal offenses for which typically only a fine is imposed and which may be decriminalized without undermining the ability of government to enforce laws within its jurisdiction.'" The result? "Following the recommendation of the group, the Hawaii legislature decriminalized a host of agricultural, conservation-related, transportation, and boating offenses." Moreover, other jurisdictions, such as King County, Washington, have expanded diversion programs.

•Prosecutorial Discretion: In the absence of such legislative action, Professor Baxter argues that prosecutors can exercise their discretion. She points out that

One Philadelphia prosecutor has embraced this idea. R. Seth Williams took over the job as the new district attorney in crime-ridden Philadelphia in January 2010. One of the first things on his agenda was to get "smart on crime," instead of tough on crime. In following his word, Mr. Williams downgraded penalties for possessing small amounts of marijuana from jail time to community service and fines. Even more important are the changes Mr. Williams is making in the unit that decides what charges to file. That unit previously consisted of five lawyers, mostly new prosecutors, who were told to file "the widest and harshest charges they could."  This idea of "throwing everything at the wall and seeing what sticks" is prevalent amongst many prosecuting offices. Under Mr. Williams' administration, however, the unit has been increased to eighteen lawyers who are told to spend time considering what charges will be likely to succeed. They have also been authorized to offer more plea bargains earlier in the process.

Conclusion

As noted, the Warren Court recognized that "[i]t was the poor who needed Miranda, just as they had needed Gideon three years before." Based upon the above, it is easy to see why Professor Baxter perceives Gideon as a ghost, the distant echo of a promise made to the poor decades ago. I think that Professor Baxter does a very nice job in her article of shedding light on Gideon's "ghostly shadow" and advances some practical proposals that could go a long way to reviving the right to counsel in this country. I asked Professor Baxter what led her to write the article, and she responded, 

I would say it was a combination of my background and my love for NPR that led me to write this piece. I worked for many years as a judicial staff attorney for the criminal trial court judges here in Fort Lauderdale.  Part of my duties included reviewing post-conviction motions regarding ineffective assistance of counsel, so I was very familiar with this particular niche of the right to counsel.  As a former state employee, I was also very familiar with the effect budget cuts were having on many state agencies.  Then, driving home from school one day, I heard a story on NPR (so many of my conversations start that way!)  about a new study conducted by the Constitution Project called, "Justice Denied."  I came home, looked up the study, and was flabbergasted at the budget cuts affecting public defenders across the country.  I had lunch with a colleague the next day, and the study became a topic of our conversation.   She saw how passionate I was about this travesty and suggested I write an article about it.  Just like that, Gideon's Ghost was born!

-CM

Settlement Discovery: EDNY Finds Rule 408 Doesn't Preclude Discovery Of Settlement Agreement

Federal Rule of Evidence 408 states:

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

In other words, Rule 408 deems evidence of settlement agreements inadmissible for certain purposes at trial? But does that mean that such settlement agreements are immune from discovery? According to the recent opinion of the United States District Court for the Eastern District of New York in Levick v. Maimonides Medical Center, 2011 WL 1673782 (E.D.N.Y. 2011), makes clear, the answer is "no."

In Levick, 

Nadine Levick commenced [an] action against the defendant, Maimonides Medical Center..., seeking damages under Title VII of the Civil Rights Act of 1964,...the Administrative Code of the City of New York ..., and 42 U.S.C. § 1983, stemming from alleged discriminatory treatment during her employment at Maimonides. In her Complaint, plaintiff claim[ed] that she was subjected to religious and sexual discrimination while employed by the defendant and was then terminated, without cause, when she complained about her treatment to supervisors....Plaintiff further allege[d] that the defendant has since interfered with her attempts to obtain new employment.

In response, Maimonides filed a motion to compel discovery of a settlement agreement from Levick's prior lawsuit against Harlem Hospital/Columbia University, in which she alleged claims similar to those asserted against Maimonides. In response, Levick argued that settlement agreements are often inadmissible under Federal Rule of Evidence 408 and that even when they are offered for a permissible purpose they are often excluded under Federal Rule of Evidence 403.

The Eastern District of New York found that these conclusions were correct but that these Rules only cover the issue of whether evidence is admissible at trial and not the issue of whether it is discoverable. According to the court,

The Federal Rules of Civil Procedure grant parties in lawsuits broad rights to discovery. Fed.R.Civ.P. 26(b). Parties are entitled to discovery for any "nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). Discoverable materials "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. Materials that are inadmissible under the Federal Rules of Evidence may be discoverable if a "minimal showing of relevance" is made.

The court then found that this "minimal showing of relevance" was made because Maimonides

contend[ed] that discovery of the settlement agreement with Harlem Hospital will lead to the discovery of admissible evidence relating to the issue of damages. More specifically, [Maimonides] argue[d] that the terms of the agreement may be used to prove that certain damages the plaintiff asserts against the defendant can be attributed to plaintiff's earlier case.

-CM