EvidenceProf Blog

Gettin' (Un)Lucky In Kentucky: Court Of Appeals Of Kentucky Finds Trial Court Erred In Excluding Evidence That Alleged Victim Was A "Crack Whore"

Assume that a defendant is on trial for sexually assaulting a victim. And, assume that the defendant's defense is, essentially, that the alleged victim is a "crack whore." Should the defendant be able to present evidence of the alleged victim's prior drug (ab)use, without any accompanying evidence that she traded sex for drugs (or money to get drugs) to support the inference that she consented to the subject sexual act in exchange for drugs (or drug money)? According to trial courts in Kentucky in Vermont, the answer is "no." According to the Supreme Court of Vermont and the Court of Appeals of Kentucky in its recent opinion in Bell v. Commonwealth, 2011 WL 2078563 (Ky.App. 2011), the answer is "yes." In this post, I will explain why I think that these opinions were horribly misguided.

In Bell, Eric Bell was convicted of convicted on charges of first-degree sodomy, fourth-degree assault, and tampering with physical evidence. After he was convicted, Bell appealed, claiming, inter alia,

that the circuit court erred in excluding statements the complainant made to medical personnel concerning her history of drug use and addiction. He contends that if he had been permitted to introduce evidence of the complainant's drug use history, the jury would have been more likely to believe his version of the events in question, i.e., that due to the complainant's twenty-year drug addiction, she consensually traded sex in exchange for receiving crack cocaine from Bell. He alleges that if he had been allowed to present evidence to the jury that complainant “was a chronic crack cocaine addict and had no money,” the jury may have inferred she would have traded sex for crack cocaine.

In addressing Bell's appeal, the Court of Appeals of Kentucky found that none of the cases cited by Bell were persuasive. The court, however, noted that it conducted its own research and uncovered State v. Memoli, 18 A.3d 567 (Vt. 2011). As the Court of Appeals of Kentucky noted,

In Memoli, there was evidence in the record that the complainant had smoked marijuana on the evening in question....The complainant testified that the defendant's companion blew crack cocaine smoke into her mouth....Memoli and his companion testified that the complainant smoked the crack cocaine herself....Additionally, Memoli and his companion testified that the complainant traded sex for drugs, but the complainant alleged that she was raped. Memoli's defense counsel sought to introduce evidence of the complainant's use of drugs both before and after the date of the offense as her motive for engaging in sexual acts. Defense counsel argued that without the introduction of such evidence, Memoli did not have a defense because his defense was: (1) that the complainant traded sex for drugs; (2) that she therefore consented to the sexual relations; and (3) that the reason she did so was because she "was a crack addict."...However, the trial court did not permit Memoli to introduce evidence of the complainant's prior and subsequent drug use. The court only permitted Memoli to introduce evidence of the complainant's drug use on the night of the incident. The court held that any other evidence of the complainant's drug use was irrelevant to the issue of consent.

The Supreme Court of Vermont disagreed and reversed, finding that the evidence was admissible under Vermont Rule of Evidence 404(b), which provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

According to the Vermont Supremes, this evidence was admissible because

Defendant did not seek to introduce complainant's drug use to prove that she had a specific character trait of being an addict or a reputation as a drug user to undercut her credibility.... Defendant's proffer was narrower: that evidence of complainant's drug use was relevant to demonstrate that she had motive to consent to sexual acts with defendant. This purpose is consistent with the rule.

The Supreme Court of Kentucky agreed with this reasoning in Bell, concluding that

We find the Vermont Supreme Court's analysis in Memolipersuasive and hold that the reasoning applies to this case. As in Memoli, in Bell's case, there was evidence that the complainant had drugs in her system the evening in question; the defendant testified that he and the complainant had exchanged sex for drugs; the complainant testified that she was raped; the defendant wanted to introduce evidence of the complainant's history of drug use because his defense was that due to complainant's drug addiction, she was willing to trade sex for drugs; and the court did not admit evidence of the complainant's history of drug use.

The Kentucky Rules of Evidence at issue in this case and the Vermont Rules of Evidence at issue in Memoli are quite similar....[T]he evidence of prior drug use was relevant for the purpose of determining whether the complainant consented to the sexual relations with Bell in exchange for drugs.

So, why do I think that these opinions are horribly misguided? Here's how Rule 404(b) should work. Dana starts a fight with Veronica. Two months later Dana allegedly assaults Victoria. Dana is now on trial for assaulting Victoria. The prosecution wants to present evidence of Dana's prior fight with Veronica. The prosecution will be unsuccessful. Why? Rule 404(b) prevents the introduction of propensity character evidence, i.e., evidence that a person has a propensity to act in a certain way and thus likely acted in conformity with that propensity at the time in question. Put more simply, the prosecution can't present evidence of Dana's fight with Veronica to prove, "Once a thug, always a thug." The theory is that we want people to be convicted based upon evidence that they committed the crime charged, not based upon evidence of past crimes and inferences therefrom.

Conversely, let's say that the fight two months before the alleged assault was between Dana and Victoria, and Dana ended up with a black eye and a split lip. The prosecution wants to present evidence of Dana's prior fight with Victoria. The prosecution will likely be successful. Why? The prosecution is not labeling Dana as a perpetual thug. Instead, they are presenting evidence that establishes that there is a specific reason to believe that Dana would attack Victoria based upon their prior fight. In other words, this is proper evidence of motive under Rule 404(b).

Now, let's go back to Bell. What was Bell's purpose in trying to introduce evidence of the alleged victim's prior drug use and addiction? It was to prove that she was a "crack whore." It was not evidence that the victim had a specific reason, or motive, to consent to sex with Bell in exchange for drugs or drug money. It was evidence that, based upon her history of drug (ab)use, she was likely to consent to sexual acts with anyone at anytime in exchange for drugs or drug money. In other words, this "Once a crack whore, always a crack whore" evidence was classic propensity character evidence that should have been excluded under Rule 404(b).

For comparison's sake, let's look at the opinion of the Superior Court of New Jersey, Appellate Division, in State v. Mazowski, 766 A.2d 1176 (N.J.Super.A.D. 2001), in which the court reversed a defendant's burglary and theft convictions based upon the prosecution's presentation of evidence of his drug addiction to prove that he had a motive to commit the crimes charged. According to the appellate court, the drug addiction evidence did

not relate to the particular crime with which defendant is charged, or to any other particular crime. Rather, it is submitted as a reason why defendant commits crime in general. It is an undifferentiated "motive" to steal. As such, except for its label, it is indistinguishable from a claim that defendant has a “disposition,” or general propensity to commit crimes, which is precisely what N.J.R.E. 404(b) prohibits.

-CM

Independence Day, Take 3: Why I Think That The Supreme Court Will Find No Confrontation Clause Violation In Williams v. Illinois

Yesterday, I noted that the Supreme Court granted cert in Williams v. Illinois (10-8505) to address a question left unanswered by Bullcoming v. New Mexico: Is the Confrontation Clause violated when an expert witness for the prosecution relies upon a testimonial report prepared by an analyst who does not testify at trial, but the report itself is not admitted into evidence to prove the truth of the matter asserted? This was different from the question resolved by Bullcoming, in which the Court held that the Confrontation Clause is violated when such a testimonial report is actually admitted into evidence. Indeed, Justice Sotomayor made this distinction clear in her concurring opinion in Bullcoming, which I wrote about yesterday. In that post about Sotomayor's concurring opinion, I mused about whether the Bullcoming dissent would be able to create a 5-4 majority finding no Confrontation Clause violation in a case where a testimonial report is relied upon but not actually admitted into evidence to prove the truth of the matter asserted. And, based upon the facts of Williams v. Illinois, 939 N.E.2d 268 (Ill. 2010), I think the dissent will achieve this result.

Williams v. Illinois

In Williams, L.J. was allegedly sexually assaulted, kidnapped, and robbed by the defendant Sandy Williams on February 10, 2000. Thereafter,

Dr. Nancy Schubert conducted a vaginal exam of L.J. and took vaginal swabs, which were then sealed and placed into a criminal sexual assault evidence collection kit along with L.J.'s blood sample. The kit was sent to the Illinois State Police (ISP) Crime Lab for testing and analysis.

On February 15, 2000, forensic biologist Brian Hapack with the ISP Crime Lab received L.J.'s sexual assault evidence collection kit and performed tests that confirmed the presence of semen. Hapack placed the swabs in a coin envelope, sealed the envelope, and placed the evidence in a secure freezer....

On August 3, 2000, police arrested the defendant for an unrelated offense and, pursuant to a court order, drew a blood sample from the defendant. On August 24, 2000, forensic scientist Karen Kooi performed an analysis on the sample that consisted of four quarter-sized bloodstains on a filter card. Kooi extracted a deoxyribonucleic acid (DNA) profile and entered it into the database at the ISP Crime Lab. Meanwhile, the samples from L.J.'s sexual assault kit were sent to Cellmark Diagnostic Laboratory in Germantown, Maryland, for DNA analysis on November 29, 2000. Cellmark returned L.J.'s vaginal swabs and blood standard to the ISP Crime Lab on April 3, 2001. Cellmark derived a DNA profile for the person whose semen was recovered from L.J. According to ISP forensic biologist Sandra Lambatos,...the DNA profile received from Cellmark matched the defendant's DNA profile from the blood sample in the ISP database. 

At trial,

Lambatos began her testimony with a brief explanation of polymerase chain reaction (PCR) testing. PCR testing, according to Lambatos, is one of the most modern types of DNA analysis available and is generally accepted in the scientific community. Lambatos explained how PCR analysis can be used to identify a male profile from a semen sample. First, an analyst conducts a procedure that isolates and extracts DNA from a sample that may include a mixture from a particular defendant and the victim. The DNA is not large enough to test at this point, and requires amplification to form a more workable sample. After amplification, an analyst can measure the length of an individual specific strand through a process called electrophoresis. A computer translates this measurement onto a graph called an electropherogram. The electropherogram is a representation of the individual's specified DNA data into a line with peaks representing the lengths of the DNA strands of the 13 STR regions. Reports generally also provide a "table of alleles" showing the DNA profile of each sample. She also stated that the statistical probability of a match can also be determined by entering the alleles into a frequency database to learn how common they are in the general population.

Lambatos further testified that it is a commonly accepted practice in the scientific community for one DNA expert to rely on the records of another DNA analyst to complete her work. As mentioned, she used the DNA profile from Cellmark to match the DNA profile from the defendant's blood sample, which was contained in the ISP database....Cellmark's testing and analysis methods were generally accepted in the scientific community according to Lambatos. 

When the prosecutor then asked Lambatos for her expert opinion regarding the DNA match, "[d]efense counsel objected and asserted that Lambatos could not rely upon the testing performed by another lab." The trial judge deferred his ruling on the issue, and 

Lambatos then testified that a match was generated of the male DNA profile found in the semen from L.J.'s vaginal swabs to the defendant's male DNA profile from the defendant's blood standard. In response to defense questioning, Lambatos restated her interpretation of the alleles at each of the 13 locations. She testified about several locations where she visually filtered out spurious alleles and “background noise” and distinguished the defendant's profile. Lambatos concluded that in her expert opinion, the semen from L.J.'s vaginal swab was a match to the defendant. Lambatos testified that the probability of this profile occurring in the general population was one in 8.7 quadrillion black, one in 390 quadrillion white, and one in 109 quadrillion Hispanic unrelated individuals. She did not observe any degradation or irregularities in the sample from L.J.'s vaginal swab.

She stated that, in general, if "there was a question of a match, then we would investigate that further by looking at the electropherograms from all the cases involved and do some more comparisons on that." She explained that in looking at Cellmark's report, she interpreted it and "I did review their data, and I did make my own interpretations so I looked at what * * * they sent to me and did make my own determination, my own opinion." While Lambatos testified to her conclusion informed by Cellmark's report, Cellmark's report itself was not introduced into evidence. Also, while Lambatos referenced documents she reviewed in forming her own opinion, she did not read the contents of the Cellmark report into evidence. 

Defense counsel then repeated his objection, claiming, inter alia, that Lambatos' use of Cellmark's report violated the Confrontation Clause. The trial court disagreed, stating,

"I don't think this is a Crawford scenario, and I agree with the State that the evidence is—the issue is, you know, what weight do you give the test, not do you exclude it and accordingly your motion to exclude or strike the testimony of the last witness or opinions based on her own independent testing of the data received from Cellmark will be denied."

After he was convicted, Williams appealed, claiming, inter alia, "that his sixth amendment right was violated by Lambatos' testimony concerning Cellmark's report," and his appeal eventually reached the Supreme Court of Illinois. The Illinois Supremes initially noted that it "has long held that prohibitions against the admission of hearsay do not apply when an expert testifies to underlying facts and data, not admitted into evidence, for the purpose of explaining the basis of his opinion." The court then rejected Williams' "suggestion that Lambatos was merely a 'conduit' for Cellmark's report and that the report was entirely dispositive of Lambatos' opinion," instead finding that

Her testimony consisted of her expert comparison of the DNA profile in the ISP database with the DNA profile from the kit prepared by Cellmark. She used her own expertise to compare the two profiles before her: the blood sample prepared by Kooi and the semen sample prepared by Cellmark. She also did not observe any problems in the chain of custody or any signs of contamination or degradation of the evidence. Lambatos ultimately agreed with Cellmark's results regarding the male DNA profile. But Lambatos additionally made her own visual and interpretive comparisons of the peaks on the electropherogram and the table of alleles to make a conclusion on the critical issue: that there was a match to the defendant's genetic profile. Accordingly, Cellmark's report was not used for the truth of the matter asserted and was not hearsay (emphasis added).

The court also rejected Williams' contention that his case was "'directly analogous' to the United States Supreme Court's recent holding of Melendez-Diaz v. Massachusetts," concluding that

Lambatos testified about her own expertise, judgment, and skill at interpretation of the specific alleles at the 13 loci, and confirmed her general knowledge of the protocols and procedures of Cellmark. Lambatos also conducted her own statistical analysis of the DNA match. She did not simply read to the judge, sitting as a fact finder, from Cellmark's report. This is in contrast to Cellmark's report, which did not include any comparative analysis of the electropherograms or DNA profiles and was not introduced into evidence. Cellmark's electropherogram, rather, was part of the process used by Lambatos in rendering her opinion concluding that the profiles matched. Thus, Lambatos' opinion is categorically different from the certificate in Melendez-Diaz (emphasis added).

Justice Sotomayor

As I noted in my post yesterday, Justice Sotomayor held in her Bullcoming concurrence that the Court was not presented with four factual circumstances in Bullcoming, including the circumstance "in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." I then concluded that based upon the language used by Justice Sotomator, it was likely that she would find no Confrontation Clause problem with an expert witness offering opinion testimony pursuant to Rule 703 based upon a testimonial report prepared by an analyst who does not testify at trial.

My main question involved the issue of the circumstances under which Justice Sotomayor would find that a testifying expert's opinion was truly an "independent opinion" rather than an opinion dependent upon a testimonial report. For instance, I cited to the opinion of the Court of Appeals of North Carolina in State v. Hough, 2010 WL 702458 (N.C.App. 2010), in which a chemist weighed drugs and prepared a report but did not testify, and a second chemist used the report as the basis for expert testimony on the weight of the drugs without herself testing the drugs. I argued that under this circumstance, Justice Sotomayor should (but might not) find that the testifying chemist's opinion was not truly independent, meaning that there was a Confrontation Clause violation.

In Williams, however, Lambatos' opinion seemingly was truly "independent." Indeed, the trial court noted that Lambatos conducted "independent testing." Moreover, as the Supreme Court of Illinois noted, Lambatos "made her own visual and interpretive comparisons" and "conducted her own statistical analysis of the DNA match." Given these findings, I think it is clear that Justice Sotomayor will find that Lambatos' opinion was truly "independent" and will thus join the four Bullcoming dissenters to form a five Justice majority concluding that there was no Confrontation Clause violation in Williams. 

Now, will this be the correct ruling, and what will it tell us about cases like Hough in which there is not independent testing by the testifying expert? I'm not sure yet, but I will have more thoughts over the course of the summer.

-CM

Independence Day, Take 2: Supreme Court Grants Cert in Williams v. Illinois

Well, it now looks like the Supreme Court will soon answer the question I raised in my earlier post today. According to SCOTUSblog:

The Supreme Court, in its final orders on Tuesday, showed its continued interest in the Sixth Amendment’s Confrontation Clause, taking on a new case on whether an expert witness can be called as a stand-in for a lab analyst who actually did a test on criminal evidence, but did not appear at the trial.  That question was close to one that had been raised last week by Justice Sonia Sotomayor as the Court ruled in the case of Bullcoming v. New Mexico (09-10876)....

The new Confrontation Clause case is Williams v. Illinois (10-8505).  In that case, the Illinois Supreme Court ruled that prosecutors could introduce a forensic analyst’s report on a DNA test of evidence by offering it through the on-stand testimony of an expert witness, when the lab analyst was not available to testify.  The expert witness had had no part in making the analysis, and no personal knowledge of how the test was done.  The state Supreme Court nevertheless concluded that there was no violation of the suspect’s confrontation right, because the lab report was being admitted not for its truth, but only to explain the expert’s opinion about the results.

That was quite similar to a scenario mentioned by Justice Sotomayor on June 23, in her concurrence in the Bullcoming case.  In that case, the Court had ruled that a lab supervisor could not be a surrogate witness in place of a lab technician who prepared a report but did not appear, so the lab test was not admissible.  Sotomayor sought to show that the decision was a narrow one, and listed several factual scenarios that she said were not covered.  One of them was a situation in which “an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.”   The Court apparently granted the Williams case on Tuesday to judge that very situation. 

 I will have more on Williams tomorrow.

-CM

Independence Day?: What Does Justice Sotomayor's Bullcoming Concurrence Tell Us About Expert Opinions Based Upon Non-Admitted Testimonial Reports?

While I was away, guest blogger Ann Murphy wrote an excellent post about the Supreme Court's recent opinion in Bullcoming v. New Mexico. As she noted, in Bullcoming, the Court, in a 5-4 opinion, held that the Confrontation Clause was violated through the admission of a report concerning Bullcoming's blood alcohol content with the accompanying testimony of an analyst but without the accompanying testimony of the analyst who prepared the report. This was the result I previously predicted because Bullcoming was the easy case. As I noted in a previous post about Bullcoming:

I think that Bullcoming is an easy case given that the prosecution clearly introduced the absent analyst's report to prove the truth of the matter asserted in it. Given this, the case is just like Melendez-Diaz, and the Court should reach the same conclusion. And I feel safe in my belief because Confrontation Clause expert Richard Friedman has argued the same on The Confrontation Blog. As he notes, the tougher case is when an expert witness relies upon an absent analyst's report as the basis for opinion testimony but the report is not admitted into evidence. But, as he also notes, "that case is not the one before the Court [in Bullcoming], in which the prosecution clearly introduced a full report by the absent analyst. So, will the Court "simply resolve the case before it," or will it reach broader conclusions....? On that question, we will just have to wait and see.

Well, it turns out that the Court simply resolved the case before it, but Justice Sotomayor's concurring opinion in Bullcoming provides a strong indication that she would allow the expert witness testimony in the tougher case identified by Professor Friedman.

The Tougher Case

I have written a couple of posts about the tougher case flagged by Professor Friedman. One of those posts was about the opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010). As I noted in that post,

In Winston, Robert Earl Winston was convicted of aiding and abetting another who murdered Haines City Police Officer Christopher Todd Horner with the intent to prevent Officer Horner from communicating to law enforcement or a judge information related to the commission of a federal offense, and aiding and abetting another who knowingly used and carried a firearm during and in relation to a crime of violence, and, in the course thereof, murdered Officer Horner.

The opinion in Winston doesn't give us many details, but it does tell us that a medical examiner prepared a forensic report and did not testify at Winston's trial. Another medical examiner, however, reviewed the report and offered his "own" conclusions based upon this report, with the report not being admitted into evidence.

After he was convicted, Winston appealed, claiming that the admission of the medical examiner's testimony violated his rights under the Confrontation Clause based upon the Supreme Court's opinion in Melendez-Diaz v. Massachusetts. The Eleventh Circuit disagreed, finding that the testimony was admissible under Federal Rule of Evidence 703, which provides in relevant part that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

In another entry, I noted that the Court of Appeals of North Carolina reached the same conclusion in State v. Hough, 2010 WL 702458 (N.C.App. 2010), pointing out in the process that "[o]ther federal courts have reached this same conclusion under similar facts." 

Sotomayor's Concurrence

As noted, Bullcoming was a 5-4 opinion. 4 Justices found that the admission of the report did not violate the Confrontation Clause. 5 Justices found that it did. But what if the report were not technically admitted, with the prosecution claiming that the testifying analyst merely used the report as the basis for opinion testimony under Federal Rule of Evidence 703? Would the Eleventh Circuit, the Court of Appeals of North Carolina, and the other courts referenced in Hough be correct? Would this tougher case swing at least one of the Justices from the Bullcoming majority?

I'm not sure, but if I am reading Justice Sotomayor's concurrence correctly, I think that the answer is "yes." In Bullcoming, Justice Sotomayor concurred in part, with one of her stated goals being "to emphasize the limited reach of the Court's opinion." She then stated four factual circumstances that were not present in Bullcoming.

One of these was that 

this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining that facts or data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible in order for the expert's opinion based on the facts and data to be admitted). As the Court notes,...the State does not assert that Razatos offered an independent, expert opinion about Bullcoming's blood alcohol concentration. Rather, the State explains, "[a]side from reading a report that was introduced as an exhibit, Mr. Razatos offered no opinion about Petitioner's blood alcohol content...."...Here the State offered the BAC report, including Caylor's testimonial statements, into evidence. We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence.

Based upon this statement, it seems pretty clear to me that Justice Sotomayor would have agreed with the opinions in Winston and Hough. Sure, she doesn't come out and say that she would have allowed opinion testimony about a testimonial report that was not itself admitted, but her acknowledgment that those facts would have presented a "different question" seems to imply such a result. Or does it?

Upon a second reading, I noticed that Justice Sotomayor said that Bullcoming was "not a case in which an expert witness was asked for his independent opinion...."   (emphasis added). This led me to wonder what she meant by the word "independent." In the previously mentioned Hough case, Aldridge was the analyst who prepared a forensic report but did not testify, and Alloway was the testifying analyst. In Hough,

[a]t trial, Kamika Daniels Alloway..., a forensic chemist with the Charlotte-Mecklenburg Police Department crime laboratory, testified that she reviewed the lab reports of...Aldridge...and believed his analysis to be accurate. Alloway testified that the substance found [a] the trash can that [Hough] was rolling constituted 17.05 pounds of marijuana. The three bags recovered from [Hough's] garage contained cocaine and weighed 7.93 grams, 7.72 grams, and 7.87 grams respectively. The weight of the cocaine and the marijuana varied from the weights recorded at the scene by [a detective]; however, Alloway testified that the weights in the lab report did not include the packaging. Alloway admitted on cross examination that she did not test any of the substances herself and was not present when Aldridge conducted the tests.

Looking at these facts, was there anything independent about Alloway's opinion? I would argue that the answer is "no." How could there be? Alloway had no personal knowledge of the substances. His testimony was entirely dependent on Aldridge's report. Is this what was meant by Justice Sotyomayor?

Independence Day

If it is what was meant by Justice Sotomayor, then she is in good company. In my preview of Bullcoming, I cited to Julie Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 Geo. L.J. 827 (2008). In the article, Professor Seaman noted that

The most common basis for court holdings rejecting a Confrontation Clause challenge to the introduction of expert opinion is that the statements relied on by the experts in forming their opinions were not offered for their truth, but only as a basis for the expert's opinion. Because the Supreme Court in Crawford clearly stated that the decision applied only to testimonial statements offered for their truth, a finding of a non-hearsay purpose allows these courts to hold that their admission does not amount to a constitutional violation.

A representative example of such non-hearsay reasoning is this statement from a case involving a California gang prosecution:

Crawford limits the introduction of hearsay directly against a defendant but does not affect the type of evidence relied upon by an expert in forming his opinion. In our case, the prosecution did not offer the contents of the police reports as hearsay evidence of the truth of the matters asserted in the reports. The reports were mentioned only as a basis for [the expert's] opinion that [the defendant] was a Sureno gang member. [The defendant] had the opportunity to challenge the testimony by demonstrating the underlying information was incorrect or unreliable. He did not. There was no denial of his confrontation rights.

If, as the court says, the appropriate manner for the defendant to challenge the expert's opinion would be to demonstrate that the underlying information is "incorrect or unreliable," then it is plain that it is in fact being offered for its truth. If it were not offered for its truth, its reliability would be irrelevant. The court's own description of the jury instruction given in the case supports the conclusion that the testimonial statements were indeed offered for their truth. The jury in Valerio “was advised that the expert's opinion was only as good as the facts and reasons on which it was based, and that the jury should consider the proof of such facts in determining the value of the expert's opinion.”

Furthermore, if the opinion is only as good as the facts on which it is based, and if those facts consist of testimonial hearsay statements that were not subject to cross-examination, then it is difficult to imagine how the defendant is expected to "demonstrate the underlying information was incorrect or unreliable." According to Crawford, the only constitutionally sanctioned manner in which the reliability of testimonial hearsay may be tested is by cross-examination.

I wholeheartedly agree with Professor Seaman's analysis and hope that Justice Sotomayor's use of the phrase "independent opinion" means that she would not permit the type of testimony admitted in Hough.

So, if this reading is correct, when would an analyst besides the one who prepared the report be able to rely upon the report while still delivering an independent opinion? Well, assume that in Hough, Alloway did himself test the drugs and merely used Aldridge's report to corroborate his conclusions. In this case, Alloway seemingly would be allowed to rely upon the testimonial report while still delivering an independent opinion.

Or, look at one of the other factual circumstances Justice Sotomayor stated was not present in Bullcoming:

Second, this is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue. Razatos conceded on cross-examination that he played no role in producing the BAC report and did not observe any portion of Curtis Caylor's conduct of the testing....The court below also recognized Razatos' total lack of connection to the test at issue....It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results. We need not address what degree of involvement is sufficient because here Razatos had no involvement whatsoever in the relevant test and report.

In this case, it would be at least arguable that the testifying analyst could rely upon the report while still offering an independent opinion based upon his personal knowledge.

Conclusion

So, will lower courts take Justice Sotomayor's concurrence as evidence that cases like Winston and Hough were correctly decided? Or will they use the "independent opinion" language to find that the tougher cases violate the Confrontation Clause? And what will the Supreme Court ultimately decide if it grants cert in such a case? I would like to think that courts will follow the logic of Professor Seaman, but I think that they will conclude that "Melendez-Diaz did not do away with Federal Rule of Evidence 703."

-CM

Deepwater Horizon Order - Marital Privilege when using a Company Computer

An interesting recent discovery dispute Order reflects the fascinating balance between the spousal privilege and one’s expectation of privacy in the use of his or her computer email at work. A Magistrate Judge in In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, On April 20, 2010 [United States District Court for the Eastern District of Louisiana, (MDL No. 2179 – Section J), available at: http://www.theemployerhandbook.com/oil.pdf]determined that a husband had no reasonable expectation of privacy in emails sent to his wife from his work computer. The husband’s assertion of the marital privilege was denied, and he was unsuccessful in his efforts to block the release of those emails.

As we all know, the Deepwater Horizon oil drilling rig suffered an explosion on April 20, 2010. As a result, 11 workers died and the world saw the largest accidental oil spill in history. Many parties instituted litigation against the manufacturer of the rig, the owners of the rig, and numerous other parties. This Order concerning the marital privilege is one of many issued thus far in the case. 

Brian Morel was a drilling engineer employed by BP (British Petroleum) on the Macondo Well – the site of the drilling on the date of the explosion. He married a BP production engineer in 2008. His wife did not have any professional responsibilities on the Macondo Well. He sent her many email messages through their BP work accounts. The Plaintiff Steering Committee (PSC), the United States, the States of Louisiana and Alabama, Halliburton, and other litigants scheduled a deposition of Mr. Morel. His counsel informed the parties that he would invoke his Fifth Amendment privilege in response to any questions they might ask. BP had already turned over email sent by Mr. Morel. He objected to the release of 93 of these emails based upon an asserted marital privilege. In this Order, Magistrate Judge Shushan determined that Mr. Morel had no expectation of privacy in the emails sent to his wife through their BP account and the marital privilege did not apply. This is instructive as presumably we would have the same result if a party wishes to use that privilege at trial and there is an evidentiary objection. 

The emails were sent from Mr. Morel’s email account with BP to his wife’s email account with BP. His attorney argued that there was indeed an expectation of privacy in the emails because there was no evidence that BP monitored its employees’ emails and the parties seeking the emails had not met their burden to overcome the presumption of privilege. 

BP had a “pop-up screen” that appeared when their employees used their work computers and it stated the following: “within the bounds of law, electronic transmissions through internal and external networks may be monitored to ensure compliance with internal policies and legitimate business purposes.” BP also informed employees that personal data and communications were not private and that email was “subject to potential compulsory disclosure by subpoena.”  Despite these warnings, Mr. Morel’s counsel argued that BP had no prohibition against employees using the email network for personal use, and no policy of actual monitoring had ever been shown.  “Mr. Morel urges that the determination is not made on the basis of the written BP policies but on how those policies were implemented.”

Judge Shushan analyzed a 5^th Circuit case, U.S. v. Slanina, 283 F. 3d 670 (5^th Cir. 2002) in which the Court found an expectation of privacy despite an employee’s use of his work computer. In her Order, Judge Shushan distinguished Slanina because in that case, there was also no evidence that there was any sort of computer policy in place and there was no evidence that employees were informed of a dissemination policy or monitoring. She also considered a case cited by Mr. Morel, In re: Asia Global Crossing, Ltd., a bankruptcy case from New York (322 BR 247 (Bankr. S.D.N.Y. 2005)) that set forth the following four factors for determining an employee’s expectation of privacy:

1. Does the corporation maintain a policy banning personal or other objectionable use;
2. Does the company monitor the use of the employee’s computer or email;
3. Do third parties have a right of access to the computer or emails; and
4. Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies. 

Judge Shushan decided that other cases did not require a finding that a company banned personal use of computers and email and that there was no specific evidence in this case that monitoring did not occur within BP. She decided to follow the reasoning of these other cases and specifically found the following:

It is not objectively reasonable for an employee to have an expectation of privacy where the employers’ policies clearly demonstrate that: 1) the employee’s electronic communications are not private; 2) they may be monitored and accessed by the employer; and 3) they are subject to production by a subpoena.

It is an interesting Order and brings to mind some of the similar cases of employee use of computers to contact and communicate with their attorneys. For an interesting recent case on that front, see Holmes v. Petrovich Development Co., LLC, a California Appellate case, available at: http://scholar.google.com/scholar_case?case=9181011446702902609&hl=en&as_sdt=2&as_vis=1&oi=scholarr. 

 

Bullcoming Decided - No Surrogate Allowed

Wouldn’t you know it – a day after I post “an interesting Confrontation Clause case” decided by the Ninth Circuit (Ocampo), a highly anticipated United States Supreme Court opinion on the Confrontation Clause is issued – Bullcoming v. New Mexico, No. 09-10876 (June 23, 2011), available at: http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf

An earlier U.S. Supreme Court case Melendez-Diaz v. Massachusetts, 557 U.S. ____ (2009) formed the backdrop for this most recent case, Bullcoming. In Melendez-Diaz, the Supreme Court held that a forensic laboratory report was “testimonial” under the Sixth Amendment’s Confrontation Clause. As such, under the reasoning established by Crawford v. Washington, 541. U.S. 36 (2004), the prosecution must introduce a live witness competent to testify about the report, unless there was a prior opportunity for cross-examination by the defendant. 

In Bullcoming, the issue was whether the Confrontation Clause required the prosecution to produce the actual author of the report. The majority (by a 5-4 vote) decided that the original author was required and a “surrogate” witness did not meet the constitutional requirements of the Confrontation Clause.

Donald Bullcoming hit the back of another driver’s truck with his car in August 2005. When the owner of the truck spoke with Bullcoming, he noticed that Bullcoming’s eyes were bloodshot and he smelled of alcohol. The driver of the truck had his spouse call the police. Bullcoming left the scene, but was apprehended a short time later. The arresting officer performed a “field sobriety test” on Bullcoming and he failed. He was arrested for DWI. Bullcoming refused a breath test, and the police obtained a warrant for a blood-alcohol test. His blood was drawn at the hospital and it sent a sample to the New Mexico Department of Health, Scientific Laboratory Division (SLD). The SLD issued its standard form entitled “Report of Blood Alcohol Analysis” and it was completed and signed by Curtis Caylor, a SLD analyst.

Caylor used a “gas chromatography” machine (a widely used scientific method of quantitatively analyzing the constituents of a mixture”) to measure Bullcoming’s blood-alcohol level and the report indicated that his alcohol level was 0.21. Bullcoming was charged with aggravated DWI.

During Bullcoming’s trial, to the surprise of defense counsel, the prosecution announced that Caylor would not be testifying and instead Gerasimos Razatos, another SLD analyst would testify about the report. The prosecutor stated that Caylor had “very recently been put on unpaid leave.” Defense counsel objected on Confrontation Clause grounds, but the trial court overruled the objection. [Interestingly, the trial judge “noted that, when he started out in law practice, “there were no breath tests or blood tests. They just brought in the cop, and the cop said “Yeah, he was drunk’””]. Bullcoming was found guilty of aggravated DWI by the jury. 

The New Mexico Court of Appeals affirmed his conviction and concluded that that report was not testimonial and was routine “with guarantees of trustworthiness.” The Supreme Court decided Melendez-Diaz while Bullcoming’s appeal was pending before the New Mexico Supreme Court. After Melendez-Diaz was decided, the New Mexico Supreme Court accordingly determined the lab report was indeed testimonial, but it affirmed Bullcoming’s conviction because it determined that 1) Caylor was a “mere scrivener” who only transcribed the results of a machine test; and 2) Razatos provided live in-court testimony and was a qualified surrogate for Caylor.

Justice Ginsburg delivered the opinion of the Supreme Court, joined by Justices Scalia, Sotomayor, Kagan, and Thomas. Justices Sotomayor, Kagan and Thomas did not join Part IV of Justice Ginsburg’s opinion, and Justice Thomas also did not join in footnote 6. Justice Ginsburg stated the following in her majority opinion, “As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” The case was reversed and remanded, although the Court expressed no view on whether the error was harmless. 

The majority compared the New Mexico Supreme Court’s “mere scrivener” finding to that of a witness testifying that a light was green. Witnesses many times record what they observed. This does not mean the statements are beyond the reach of the Confrontation Clause. The report was more than a mere reading of a machine – the Court found that there was opportunity for human error – in fact, in a footnote it noted that in Colorado a single laboratory “produced at least 206 flawed blood-alcohol readings over a three-year span.” The Court stated that “when the State elected to introduce Caylor’s certification, Caylor became a witness Bullcoming had the right to confront.” The right to confront Razatos, a surrogate, was not enough.

Part IV of the opinion is interesting. This is the part of the opinion that Justices Sotomayor, Kagan, and Thomas did not join. Justice Ginsburg relates that New Mexico and its amici pointed out the “undue burden on the prosecution” in these cases (a point accepted by the dissenting justices in this case). In New Mexico, the State offered defendants free retesting of samples. Justice Ginsburg wrote that this is the burden of the State, and not of the defendant.

Her comments bring to mind the Briscoe v. Virginia case, in which the Supreme Court granted certiorari, received full briefing and heard oral arguments but then filed a GVR (grant, vacate, and remand).

Justice Sotomayor wrote a concurring opinion and indicated several situations the Court did not have before it – she indicated that the reasoning of the Court may differ under those circumstances, such as a situation where a supervisor was the surrogate witness. In Bullcoming, Razatos was not in any way associated with the Caylor report – he had not supervised the report, and he was not present when the report was written.

The same four justices who dissented in Melendez-Diaz dissented again in Bullcoming – Justices Kennedy, Roberts, Breyer, and Alito.  Justice Kennedy, who wrote the dissenting opinion, stated that “the Court today takes the new and serious misstep of extending [Melendez-Diaz]…Here a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court finds a confrontation violation.”

States that had hopes that the Supreme Court might back off of its Melendez-Diaz opinion must be disappointed. Clearly Justices Sotomayor and Kagen have followed in the footsteps of those they succeeded – Justices Stevens and Souter. The finding that lab reports are testimonial and require live testimony is on solid ground and now the prosecutors must present the testimony of the authors of the reports and not surrogates. There is a little room for doubt when the surrogate is a supervisor, reviewer or someone with a connection with the test – that may be a different situation, at least for Justice Sotomayor. 

Ann Murphy

 

No End-Run Allowed under the Confrontation Clause (9th Circuit)

An interesting Confrontation Clause case was decided by the Ninth Circuit on June 9, 2011, Ocampo v. Vail, 2011 WL 2275798 (9^th Cir – WA).  The case was an appeal of the denial of a  petition for a federal writ of habeas corpus by the U.S. District Court for the Western District of Washington. The key issue in the case was whether two police officers’ statements generally “outlining” what was said by an alleged witness to a shooting violated Ocampo’s constitutional right to confront his accuser. 

Julio Morales-Castro was fatally shot in the head on the evening of August 9, 2003 outside of a pool hall in Tacoma, Washington. Santana Ocampo was charged with first-degree murder and was found guilty by a jury. He appealed (on the confrontation issue as well as other issues) and the Washington State Court of Appeals affirmed his conviction. The Washington Supreme Court denied review, and Ocampo then sought habeas corpus relief at the federal level.  

His petition for a writ was filed after the U.S. Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA)) and accordingly Ocampo was required to show either an “unreasonable determination” (if the last reasoned state decision was based on an unreasonable determination of the facts in light of the evidence presented); or an “unreasonable application” (a legal determination that was contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States).

The Ninth Circuit determined that Ocampo met his burden and it specifically found that the Washington State Court of Appeals unreasonably applied “clearly established Supreme Court Confrontation Clause jurisprudence.” The Court remanded the case with instructions for the District Court to grant the writ unless the State of Washington elects to retry him within a reasonable amount of time.

The confrontation clause was triggered by the absence of an alleged witness Mesial Vasquez, who had reportedly moved to Mexico.

After the shooting, the police showed witnesses at the scene a number of pictures of members of the Hispanic gang Surreno 13, who frequently “hung out” in the area. The witnesses identified Jose Hernandez from the photos. When located by the police, he implicated Ocampo, Vasquez, and another man, Baldemar Vela. According to Hernandez, all four men (Hernandez, Ocampo, Vasquez, and Vela) were in a van the evening of the shooting and stopped to purchase beer. Hernandez told police (and later testified at Ocampo’s trial) that he and Ocampo attempted to steal Morales-Castro’s car and when Morales-Castro came out of the pool hall, Ocampo shot him.

Hernandez was not a particularly good witness at trial. He was an admitted accomplice to the shooting, he reached a plea agreement with the government to testify against Ocampo, his testimony was “inconsistent in several respects with his pre-trial version of events,” his testimony of the facts was inconsistent with other witnesses’ testimony, and most striking, he told two juvenile detention officers as well as his ex-girlfriend that he (and not Ocampo) was the shooter. 

Vela was not a very effective witness either. He was the only other witness who claimed to have seen Ocampo at the scene of the crime. He did so only after being shown a single color Polaroid picture of Ocampo and after having been told that Ocampo had already confessed (which had in fact not happened). At trial, Vela testified that he did not know who the other passengers in the van had been.

The prosecutor called two police officers to testify about the absent Vasquez – only one of whom had ever actually talked to him. Officer Ringer testified that Vasquez corroborated that Ocampo was in the van that evening – despite the fact that Officer Ringer never spoke with Vasquez. Immediately after Officer Ringer’s testimony, Hernandez named Ocampo as the shooter. The other police officer, Detective Webb had spoken with Vasquez. He testified that Vasquez identified Ocampo as being present at the shooting. Defense counsel objected to the testimony of both officers as violative of Ocampo’s right to confrontation.

The prosecution referred to the two officers’ testimony in its closing argument. And the Ninth Circuit found that the prosecution “emphasized Vasquez’s statements.”

The State’s primary argument before the Ninth Circuit was that the confrontation clause was not implicated, because Officer Ringer only “implied the outlines” of Vasquez’s statements, and Detective Webb “did not testify to the substance of any statements Vasquez made.” In other words, the State argued that there was no testimony offered against Ocampo – no statements made by Vasquez had been admitted at trial. 

The Ninth Circuit disagreed and determined that although the State characterized the testimony as an “outline” and not “substance,” the State had indeed introduced statements of Vasquez against Ocampo. A very nice review of Crawford v. Washington, 541 U.S. 36 (2004) as well as several Circuit Court opinions are contained in the opinion. The Court said that descriptions of out of court statements are statements, according to the Supreme Court – the statements need not be verbatim. 

The Circuit Court stated the following, “it would be an unreasonable application of the core Confrontation Clause principle underlying Crawford to allow police officers to testify to the substance of an unavailable witness’s testimonial statements as long as they do so descriptively rather than verbatim or in detail.” The Court also cites to a recent First Circuit case, U.S. v. Meises, 2011 WL 1817855 (1^st Cir., May 13, 2011) for a similar proposition. It also stated that if there had been any doubt of what was being offered through Officer Ringer and Detective Webb, the prosecution’s closing argument dispelled any doubt – they were offering statements of Vasquez in his absence and without any prior opportunity for Ocampo to cross-examine him. These statements “had a substantial and injurious effect or influence in determining the jury’s verdict.”

The prosecution’s case had “considerable weaknesses” without Vasquez’s testimonial statements. The Court dismissed the State’s argument that because Ocampo had the opportunity to cross-examine the police officers, he effectively had the opportunity to cross-examine Vasquez. The Court even referred back to Sir Walter Raleigh, and cited Davis v. Washington, 547 U.S. 813 (2006) for the proposition that “having a police officer stand in for an absent witness is not “conceivable”” for confrontation purposes.

It is a well written opinion and should put to rest any government attempt to enter testimonial statements of witnesses through police officers, even if those statements are summarized or in “outline” form. The error below was prejudicial and the case was reversed and remanded.

Ann Murphy

The Future is Now for FRE 502

I happened to notice a couple of interesting recent articles in the New York Law Journal. The first is entitled Broad Federal Court Powers Under Evidence Rule 502(d) (H. Christopher Boehning and Daniel J. Toal, New York Law Journal, April 8, 2011) available at: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202489354099; and the other is entitled Can Technology ‘De-Commoditize’ Document Review? (Robert W. Trenchard and Steven Berrent, New York Law Journal, April 28, 2011) available at: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202491954188&slreturn=1&hbxlogin=1.  Both articles address the changing legal market and litigation strategies due to technological advances and the vast proliferation of computer data.

The e-discovery amendments to the Federal Rules of Civil Procedure were passed in 2006 and were followed by Federal Rule of Evidence 502 “Attorney-Client Privilege and Work Product; Limitations on Waiver.”  Rule 502 is available at: http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Evidence.pdf. The purposes behind the passage of Rule 502 were two-fold. First, it was meant to resolve disputes about the effect of inadvertent disclosure of privileged or protected information, and second, it was meant to “respond to widespread complaints about litigation costs.”

In the “Broad Federal Court Powers” article referenced above, the authors discuss two cases, Rajala v. McGuire Woods, 2010 WL 2949582 (D. Kan. July 22, 2010); and Radian Asset Assurance Inc. v. College of the Christian Brothers of New Mexico, 2010 WL 4928866 (D. N.M. Oct. 22, 2010). In both cases, the Courts imposed nonwaiver agreements despite the lack of party agreements. In other words, the Courts determined they were authorized to issue nonwaiver orders despite the objection by one of the parties to the litigation. 

In a recent law journal article, Magistrate Judge Paul Grimm (a leader in the field of electronically stored information (ESI)), along with two of his law clerks, Lisa Yurwit Bergstrom and Matthew P. Kraeuter, indicated that a court may issue a nonwaiver order sua sponte - in the absence of a motion by one of the parties. See Federal Rule of Evidence 502: Has it Lived Up to its Potential?, Richmond Journal of Law and Technology, Vol. XVII, Issue 3, Spring 2011. available at http://jolt.richmond.edu/v17i3/article8.pdf, at p. 59.  The entire Journal issue is devoted to ESI and is an excellent source of information in this area.

Boehning and Toal warn counsel that if they are unable to agree to claw back or quick peek agreements, the courts may well do it for them. 

The second article, “Can Technology ‘De-Commoditize’” appears to have its genesis in a New York Times article entitled Armies of Expensive Lawyers, Replaced by Cheaper Software, John Markoff, March 4, 2011, available at:

http://www.nytimes.com/2011/03/05/science/05legal.html. Markoff highlights the problem that formed one of the bases for Rule 502 – the expense of e-discovery. According to authors Trenchard and Berrent, e-discovery costs “can make up to 50 to 90 percent of a case’s budget, and document review is often the lion’s share of that amount.” According to the New York Times article, “e-discovery software can analyze documents in a fraction of the time for a fraction of the cost.” The “exclusive province of human decision makers” and the cost of paying those decision makers will soon become a thing of the past, according to these articles. This will affect lawyers, clients and the legal system in general. The authors believe there will be a resultant need for change in discovery and evidentiary rules. 

In the area of e-discovery and Rule 502, change is happening at a rapid fire pace. Lawyers, law firms, judges, and of course law professors will need to keep up with these changes. One area of change may well be a “manpower reduction” for lawyers. The future of e-discovery should be fascinating and no one can afford to be left behind. 

Ann Murphy

 

Frye in the Trunk of a Car (Anthony case)

Many thanks to Professor Colin Miller for inviting me to guest blog on this site for a couple of weeks.

Much attention has been paid to the Casey Anthony case – State of Florida v. Casey Marie Anthony, Case No. 48-2008-CF-15606-O (In the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida) before the Honorable Belvin Perry, Jr., Circuit Judge. A couple of Judge Perry’s Frye Orders are interesting. As most Americans know, Casey Anthony has been charged with first degree murder of her daughter Caylee. The indictment is available at: http://i2.cdn.turner.com/cnn/2008/images/10/15/caylee.indictment.pdf.

The trial began in Florida on May 24, 2011. Judge Perry ruled on two interesting Defense motions to exclude “unreliable evidence” under the standard followed in Florida, Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). The first Order was issued on April 27, 2011 and is available at: http://www.baynews9.com/static/articles/images/documents/casey-anthony-chloroform-motion-denied-0427.pdf (the “Chloroform Order”). The other is Judge Perry’s May 7, 2011 Order, available at: http://www.cfnews13.com/static/articles/images/documents/casey-anthony-order-denying-motion-to-exclude-unreliable-evidence.pdf (the “Decomposition Odor Analysis” Order).

In his Chloroform Order, Judge Perry denied Defendant’s motion to exclude any mention of chloroform at the Anthony trial. Defendant Anthony first moved to exclude the evidence based upon pure relevance grounds. The judge gave the relevancy objection short shrift. He found that there was circumstantial evidence that Casey Anthony had access to the computer that contained computer searches for the term “chloroform” prior to the death of her child.

On the Frye part of the motion, he determined that the method used for analysis of the carpet samples from the trunk of Defendant’s car (the GC/MS – gas chromatograph/mass spectrometer method) had been in use for 40 years and was generally accepted in the scientific community. He denied Defendant’s motion.

In his Decomposition Odor Analysis (DOA) Order, Judge Perry ruled on the Defendant’s Motion to Exclude “any testimony or evidence concerning any alleged identification of the chemical composition of human decomposition odor…or reference to an alleged “decompositional” odor analysis database.” At the Frye hearing, Dr. Arpad Vass, a senior research scientist with the University of Tennessee Oak Ridge National Laboratory testified that his colleague Dr. Marcus Wise “removed air with a syringe from the headspace of a metal evidence can containing the carpet sample taken from the vehicle allegedly driven by the Defendant.” His “Final Forensic Report” stated the following:

While not conclusive, these data indicate that:

(1)   Nearly all the compounds present in early human decomposition were detected in the trunk samples…”; and

(2)   Compounds that have been detected in these select animal remains and not in humans were not detected in the Florida trunk carpet sample…

The Defense called two scientists to refute that Dr. Vass’s scientific principles were generally accepted by members of his scientific field.

First, Judge Perry determined that expert testimony on “basic odor identification” would be allowed and he denied the Defendant’s motion on that particular evidence. He would permit testimony that when Dr. Vass opened the sealed container that contained the carpet sample, he smelled a “strong odor of human decomposition.” Second, he allowed in (under Frye) evidence that “the odor signature identified in the trunk of the vehicle alleged to have been used by the Defendant [was] consistent with an early decompositional event of human origin but that the results do not rule out the remote possibility an unusual variety of products or materials may have had some contribution to the overall chemical signature.”

My take on it: The Defense really did not have a Frye-type objection to the chloroform evidence. It is clear the method was well established in the field. The Defense really had an issue not with the method itself, but rather with how the samples were collected and analyzed. It really was not a Frye issue at all.

The Decomposition Odor Analysis (DOA) Order. Judge Perry really dodged the issue of whether Dr. Vass’s analysis passed muster under Frye – he seemed to indicate that because Dr. Vass found that the “odor signature” could not be found to be solely that of a decomposing human body, the Frye test was met. I disagree. That ruling has to do with the strength of the method, not whether the method has been generally accepted in the field. Only Dr. Vass and a Greek scientist, Dr. Statheropoulos have performed this type of “signature decomposition” analysis. Neither, it appears, had ever tested this method on carpet samples.

That being said, the possibility of Judge Perry’s ruling on the decomposition odor analysis being reversed on appeal (if indeed an appeal is taken if Casey Anthony is convicted) is slim. Judges have broad discretion in this area. 

 

Please Welcome Guest Blogger Ann Murphy

From today until June 27th, I will be traveling. While I'm gone, Ann Murphy will be guest blogging here. Professor Murphy is an Associate Professor of Law at the Gonzaga University School of Law, where she teaches Evidence, Individual Federal Income Tax, Taxation of Exempt Organizations, Wills and Trusts, and Litigation Skills and Professionalism. In 2007, she won the Orland Professor of the Year at Gonzaga, and later that year she served as a Fulbright Lecturer in Beijing.

Professor Murphy has published several books, with her most recent being People of the State of California v. Phillip Spector Case File. She has also published numerous articles, including:

•Federal Rule of Evidence 502 – Inadvertent Disclosure - The “Get-Out-Of-Jail-Free Provision” - Or Is It? - 41 New Mexico Law Review __ (2011);

•The Attorney-Client Privilege and Inadvertent Disclosure, Washington State Bar Association, Litigation News, Special Edition: Evidence, spring 2010;

•FRE 502: The Lawyer-Saving Provision for Inadvertent Waivers of Privileges, LexisNexis Emerging Issues Analysis, June 7, 2010; and

•Spin Control and the High-Profile Client - Should the Attorney-Client Privilege Extend to Communications with Public Relations Consultants?, 55 Syracuse Law Review 545 (2005).

So, please join me in giving a warm welcome to her.

-CM

Quantum Of Stealth: Supreme Court Of Iowa Finds Theft & Burglary W/Intent To Commit Theft Fall Under Rule 5.609(a)(2)

Like its federal counterpart, Iowa Rule of Evidence 5.609(a)(2) provides that

Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

So, assume that a defendant has prior convictions for theft and burglary with intent to commit theft crimes of dishonesty or false statement, meaning that they are per se admissible under Rule 5.609(a)(2)? According to the recent opinion of the Supreme Court of Iowa in State v. Harrington, 2011 WL 2162817 (Iowa 2011), the answer is "yes." I disagree.

In Harrington, Wendell Harrington was convicted of ongoing criminal conduct, first-degree theft, second-degree theft, and three counts of second-degree burglary, all enhanced as a habitual offender. After Harrington testified at trial, the trial court permitted the prosecution to impeach him through evidence of his prior convictions for theft and burglary with intent to commit theft. 

After he was convicted, Harrington appealed, claiming, inter alia, that the trial court erred in admitting these convictions without balancing their probative value against their prejudicial effect under Iowa Rule of Evidence 5.609(a)(1), which states that

Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

It was undisputed that the trial court did not conduct this balancing, meaning that its impeachment decision was erroneous unless Harrington's prior crimes were crimes involving dishonesty or false statement under Iowa Rule of Evidence 5.609(a)(2), making them per se admissible. And, according to the Supreme Court of Iowa, they were as it concluded that

Our common law cases have repeatedly held theft and burglary with the intent to commit theft are crimes of dishonesty....We originally reasoned that theft falls within the plain meaning of the term dishonesty, and we quoted former Chief Justice Burger, then on the United States Court of Appeals for the District of Columbia, in observing "'[i]n common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity.'"...It has been settled law in this state that convictions for theft and burglary with intent to commit theft are crimes of dishonesty. Harrington makes no contention his prior theft and burglary convictions are not crimes of dishonesty or false statement under rule 5.609(a)(2). Thus, we find Harrington's prior convictions fall within the scope of rule 5.609(a)(2).

The way I see it, there is a serious flaw with the Supreme Court of Iowa's original reason. According to Burger, stealing is universally regarded as reflecting adversely on a man's honesty and integrity. Fine. I'm sure that we would all agree on this fact. But saying that stealing reflects adversely on a man's honesty and integrity is different from saying that stealing involves dishonesty or false statement. Or at least that it always involves dishonesty or false statement. A defendant sees a woman leave a purse on a table as she goes to the bathroom and he snatches it. I don't think that this crime of theft involves dishonesty or false statement. A defendant falsely tells a woman that she left her car lights on so that she goes to check her car while he snatches her purse. This crime clearly involves hearsay/false statement.

This was the point implicitly made by the Advisory Committee in connection with the enactment of Federal Rule of Evidence 609(a)(2). According to the Advisory Committee's Note, the Committee meant for the Rule to cover

crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

These are crimes which by their nature require an act of dishonesty or false statement; they are crimes in the nature of crimen falsi. This distinguishes them from crimes of stealth. As the Second Circuit noted in United States v. Estrada, 430 F.3d 606, 614 (2nd Cir. 2005), "[w]hile much successful crime involves some quantum of stealth, all such conduct does not, as a result, constitute crime of dishonesty or false statement for purposes of Rule 609(a)(2)."

-CM

Resource Of Interest: Evidence: Skills, Strategies, and Assignments for Pretrial and Trial & The Freck Point Trial DVD

An old Chinese proverb says, "Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." This proverb sums up the approach taken by Marilyn J. Berger, John Mitchell, and Ronald Clark with their new book Evidence: Skills, Strategies, and Assignments for Pretrial and Trial, which is accompanied by a DVD with an excellent simulated trial -- the Freck Point Trial -- and related materials. So, what makes the book such a good tool for use in an Evidence or Trial Advocacy class?

Well, let's start with the goal of the book. According to the authors,

The goal of this book and the Freck Point Trial movie is to fill the need that law students and lawyers have for practical skills instruction on how to apply evidence in professional settings: in motion practice (motions in limine); during depositions; in alternative dispute resolution and in trial. Generally, traditional law school evidence courses teach legal doctrine, but not how evidence law works in real world practice. As a consequence of the lack of skills training on evidence, new lawyers are ill equipped for pretrial litigation and in trial settings....

Evidence Skills, Strategies & Assignments provides practical pretrial and trial advocacy experiences which teach evidence skills. By including a movie that shows the skills of experienced trial lawyers working with evidentiary issues, the book is a ground-breaking way of providing a model of performance skills.  

Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is broken down into 6 chapters: (1) Chapter 1. Introduction; (2) Chapter 2. Objections:  Skills and Strategies; (3) Chapter 3. Motions:  Skills and Strategies; (4) Chapter 4. Exhibits:  Skills and Strategies; (5) Chapter 5. Assignments; and (6) Chapter 6. Morgan’s Evidence Handbook

The book is accompanied by a a DVD with the 135 minute Freck Point Trial, a simulated trial that Professor Clark describes on the Pretrial, Trial, Appellate & Evidence Blog as follows:

The Freck Point Trial movie was inspired by several real cases, one of which is the Randy Roth case, which was the subject of renowned true crime writer Ann Rule's book A Rose for Her Grave. Ann Rule kindly joined in the project of producing this movie and provided her observations about the importance of watching skilled trial attorneys in trial as a means of learning how to be effective in trial.

I've had a chance to watch the entire DVD, and it really provides an excellent tool for students to learn how to conduct a trial from start to finish.  The trial is a civil wrongful death case in which the plaintiff claims that the defendant-husband murdered his wife and the defendant claims that his wife was killed by an intruder. The simulated trial is broken down into 6 chapters: (1) Jury Selection; (2) Opening Statement; (3) Direct & Cross of Plaintiff's Witness; (4) Direct & Cross of Expert Witness; (5) Direct & Cross of Defense Witness; and (6) Closing Argument. Most chapters have one of the attorneys (actual veteran trial lawyers) in the case initially describing the importance of each stage of the trial and the strategy that they use. We then see each attorney putting this strategy into practice as they strike jurors, make objections, and use visual demonstrations to drive home their points.

You can see a preview of the simulated trial by clicking here. The trial is accompanied by a CD which contains a case file with exhibits, witness statements, legal documents and other things pertinent to the case. The simulated trial and this case file are then integrated into the book through readings and assignments. For instance, in Chapter 4, students are given a sample stipulation that might have been used in the Freck Point Trial. And, in Chapter 5, students are asked to file motions as if they were one of the attorneys in the trial Here is one example:

As your instructor directs, defense counsel will either make a motion in limine or object to Montgomery’s following testimony and prosecutor/plaintiff’s counsel responds to the defense motion or objection:

1.   Testimony that Homicide Unit’s Sergeant Kameron called him at home and told him that patrol officers had just arrived at a house in the Freck Point neighborhood in response to a 911 call placed by the home owner Sam Griffith. Kameron said that a patrol officer found Sam Griffith’s wife stabbed to death in the bedroom of the house. According to Montgomery’s testimony, Kameron told him to go to the Griffiths’ house.

Director Richard Linklater, who taught himself how to make movies, once directed the movie, It's Impossible to Learn to Plow by Reading Books. The point of Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is that it is impossible to learn how to conduct a trial by (just) reading books. Instead, it let's students see a simulated trial that is, in a sense, even better than the real thing. And then it asks them to role play, to step into the shoes of the lawyers in the Freck Point Trial, to make motions, to question witnesses, to make opening and closing statements. It is highly recommended.

-CM 

Demystifying The Myth Of Fingerprints: The NCSTL's Introductory Video And The San Diego Courthouse Bomber Case

The use of fingerprint evidence is always an interesting issue in Evidence and Expert Evidence classes. So, what is the history of fingerprinting? How about SWGFAST? ACE-V? A friction ridge? A few weeks ago, I posted an entry about the fine folks at the National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law and the terrific content that they are producing. Well, they have just put out a terrific two-and-a-half minute video that delves into these and other issues and would serve as a nice introduction to the material in an evidence-related class:

Meanwhile, if you are looking for a solid case that delves into many of these topics, you could do a lot worse than the recent opinion of the United States District Court for the Southern District of California in United States v. Love, 2011 WL 2173644 (S.D. Cal. 2011).

Donny Love, Sr. was convicted of the use of a weapon of mass destruction and other charges arising from the bombing of the Edward J. Schwartz Federal Courthouse in San Diego on May 4, 2008. Prior to his trial, Love moved to exclude the testimony of Robin Ruth, the standards and practices program manager of Federal Bureau of Investigation's latent fingerprint unit, who analyzed fifteen latent prints that connected Love to the crime. In addressing this motion, the United States District Court for the Southern District of California began by noting that

There are, broadly speaking, two kinds of fingerprints. "Rolled," "full," or "known" prints are taken under controlled circumstances, often for official use. "Latent" prints, by contrast, are left—often unintentionally—on the surfaces of objects touched by a person. Latent fingerprint examiners compare unidentified latent prints to known prints as a means of identifying the person who left the latent print.

The court then cited to the Third Circuit's opinion in United States v. Mitchell, 365 F.3d 215 (3rd Cir. 2004), which provides a nice introduction to latent fingerprint terminology and methodology: 

[f]ingerprints are left by the depositing of oil upon contact between a surface and the friction ridges of fingers. The field uses the broader term "friction ridge" to designate skin surfaces with ridges evolutionarily adapted to produce increased friction (as compared to smooth skin) for gripping. Thus toeprint or handprint analysis is much the same as fingerprint analysis. The structure of friction ridges is described in the record before us at three levels of increasing detail, designated as Level 1, Level 2 and Level 3. Level 1 detail is visible with the naked eye; it is the familiar pattern of loops, arches, and whorls. Level 2 detail involves "ridge characteristics"-the patterns of islands, dots, and forks formed by the ridges as they begin and end and join and divide. The points where ridges terminate or bifurcate are often referred to as "Galton points," whose eponym, Sir Francis Galton, first developed a taxonomy for these points. The typical human fingerprint has somewhere between 75 and 175 such ridge characteristics. Level 3 detail focuses on microscopic variations in the ridges themselves, such as the slight meanders of the ridges (the "ridge path") and the locations of sweat pores. This is the level of detail most likely to be obscured by distortions.

The FBI...uses an identification method known as ACE–V, an acronym for "analysis, comparison, evaluation, and verification." The basic steps taken by an examiner under this protocol are first to winnow the field of candidate matching prints by using Level 1 detail to classify the latent print. Next, the examiner will analyze the latent print to identify Level 2 detail (i.e., Galton points and their spatial relationship to one another), along with any Level 3 detail that can be gleaned from the print. The examiner then compares this to the Level 2 and Level 3 detail of a candidate full-rolled print (sometimes taken from a database of fingerprints, sometimes taken from a suspect in custody), and evaluates whether there is sufficient similarity to declare a match....

At the evaluation step, the examiner may reach three conclusions—that the prints are a match ("identification"), that the prints are not a match (“exclusion”), or that more information is needed ("inconclusive")...."In the final step, the match is independently verified by another examiner."

The Southern District of California then went on to note, "that since Mitchell was decided in 2004, there have been important refinements and developments with respect to latent print identification...."

This introduction led the court into the law, specifically Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which held that in determining whether expert testimony is based upon reliable principles and methods under Federal Rule of Evidence 702, courts can consider factors such as

whether the "technique can be (and has been) tested," "[w]hether it has been subjected to peer review and publication," the "known or potential rate of error," "whether there are standards controlling the technique's operation," and "whether the...technique enjoys general acceptance within a relevant scientific community."

In addition, the court decided to consider two other factors: (1) whether latent fingerprint analysis has a "relationship to...established modes of scientific analysis," and (2) whether it has "non-judicial uses." Briefly, here is what the court held in connection with each factor:

•Testing: "The parties do not dispute that the reliability of latent fingerprint analysis can be tested, and the record reveals three categories of potential tests....The fact that latent fingerprint analysis can be tested for reliability, without more, allows the first Daubert 'factor to weigh in support of admissibility.'...Ruth also testified, however, that at least some actual testing and research has been performed....Finally, several studies of the performance of fingerprint examiners have been performed. The most recent such study was published in May 2011....The court recognizes that the NAS Report called for additional testing to determine the reliability of latent fingerprint analysis generally and of the ACE–V methodology in particular....The Report also questions the validity of the ACE–V method....However, Daubert, Kumho, and Rule 702 do not require "absolute certainty"...; instead, they ask whether a methodology is testable and has been tested. On this record, the court finds that latent fingerprint analysis can be tested and has been subject to at least a modest amount of testing—some of which, like the study published in May 2011, was apparently undertaken in direct response to the NAS's concerns. The court therefore concludes that this factor weighs in favor of admitting latent fingerprint evidence." 

•Peer Review and Publication: "Publications regarding latent fingerprint analysis are relatively few in number. The government introduced into evidence a list of roughly thirty publications touching on various aspects of the field....Love's moving papers also contain citations to a handful of other relevant publications....Although limited in quantity, many of these publications appear to "address... theoretical/foundational questions" in latent fingerprint analysis....The articles are therefore relevant to the reliability inquiry.

Ruth stated that at least one of these articles was published in a peer-reviewed journal, and the government's brief cites three other examples of peer-reviewed work....Even assuming that all of the articles cited by Ruth and the parties are peer-reviewed, latent fingerprint analysis would have only a small fraction of the number of peer reviewed publications found in established sciences. Nonetheless, because there are a handful of publications that concern the reliability of latent fingerprint analysis, at least a few of which are peer-reviewed, this factor is either neutral or weighs slightly in favor of admissibility."

•Error Rates: "Latent fingerprint examiners have sometimes stated that their analyses have a zero error rate....Ruth did not so testify. Rather, she stated that the ACE–V methodology is unbiased and that the methodology itself introduces no random error. Errors occur, but those errors are human errors resulting from human implementation of the ACE–V process....Because human errors are nonsystematic, Ruth believes that there is no overall predictive error rate in latent fingerprint analysis.

Ruth's testimony does not mean that the ACE–V process is perfect, or even that it is necessarily the best possible process for identifying latent prints....Nevertheless, all of the relevant evidence in the record before the court suggests that the ACE–V methodology results in very few false positives—which is to say, very few cases in which an examiner identifies a latent print as matching a known print even though the two prints were actually made by different individuals. Most significantly, the May 2011 study of the performance of 169 fingerprint examiners revealed a total of six false positives among 4,083 comparisons of non-matching fingerprints for "an overall false positive rate of 0.1%."

The court therefore concludes that the error rate favors admission of latent fingerprint evidence."

•Standards: Here, the court noted that "[i]t is not disputed that the ACE–V methodology leaves much room for subjective judgment" and that "[t]here is not a single national standard" to guide an examiner's judgment. The court, however, focused upon standards imposed by the FBI's latent fingerprints unit to find that this factor favored admission:

"The FBI uses three different types of standards in an effort to reach reliable conclusions through the ACE–V process. At the laboratory level, the FBI adheres to the standards for calibration laboratories provided by the International Organization for Standardization and the standards for forensic laboratories promulgated by the American Society of Crime Laboratory Directors Laboratory Accreditation Board ("ASCLD/LAB")....The FBI also follows the consensus-based guidelines for laboratories engaged in friction ridge analysis issued by the Scientific Working Group on Friction Ridge Analysis Study and Technology.

At the level of individual examiners, the FBI applies relatively stringent standards for qualification. In addition to a college degree, examiners must have a significant amount of training in the physical sciences. They are then given eighteen months of FBI training and a four-day proficiency examination. After passing that test, an examiner has a six-month probationary period in which every aspect of her work is fully reviewed. Even thereafter, examiners undergo annual audits, proficiency tests, and continuing education.

Finally, at the level of individual comparisons and evaluations, the ACE–V methodology provides procedural standards that must be followed, such as the requirement that examiners assess each ridge and ridge feature in the prints under comparison....The FBI has also recently incorporated documentation requirements that record the process used to detect latent prints as well as the examiner's comparison of the latent print to a known print. These documentation requirements and other procedures are enforced through the technical and administrative review of examiners' work. And the verification process serves as an error-reducing backstop."

•General Acceptance: "The NAS report does demonstrate some hesitancy in accepting latent fingerprint analysis on the part of the broader scientific community. Love's claim is subject to two significant qualifications. First, the NAS report itself states that "friction ridge analysis has served as a valuable tool, both to identify the guilty and to exclude the innocent."...Instead of a full-fledged attack on friction ridge analysis, the report is essentially a call for better documentation, more standards, and more research.

Second, Love does not dispute that the forensic science and law enforcement communities strongly support the use of friction ridge analysis. Acceptance in that narrower community is also relevant to the Daubert inquiry....For both of these reasons, the court concludes that the general acceptance factor at least weakly supports the admission of latent fingerprint evidence."

•Relationship to Established Techniques: "The Third Circuit held in Mitchell, and Ruth testified, that friction ridge analysis is related to the undisputeclly scientific "fields of developmental embryology and anatomy,” which explain “the uniqueness and permanence of areas of friction ridge skin."...Love argues that this strong tie to the biological sciences is irrelevant, because "'uniqueness and persistence are necessary'" but not sufficient conditions for friction ridge analysis to be reliable....Even if uniqueness and persistence alone cannot validate latent fingerprint analysis, however, it remains true that "[i]ndependent work in [developmental embryology and anatomy] bolsters" two critical "underlying premises of fingerprint identification."...This factor weighs in favor of admission."

•Non-Judicial Applications: "Ruth testified that friction ridge analysis is used for various other purposes, including to identify disaster victims, to identify newborns at hospitals, for biometric devices, for some passports and visas, and for certain jobs....Love stresses that these non-judicial applications generally use rolled and not latent prints. Ruth testified, however, that latent prints are used to identify disaster victims when rolled prints are unavailable....On the basis of the widespread use of fingerprints, and occasional use of latent prints, for non-judicial identification purposes, the court concludes that this factor modestly supports the admission of latent fingerprint evidence."

Based upon all of these factors, the court easily concluded that the latent fingerprint testimony was admissible.

-CM

Call The Doctor: NY Court Addresses Questions About Compensation For Physicians Called As Fact Witnesses

A party can only pay fact witnesses attendance fees, travel expenses, and compensation for their loss of time spent testifying. This is because fact witnesses have a public duty to testify. Conversely, expert witnesses are under no obligation to testify and can be pad commensurate with their special knowledge and skill. But let's say that a party wants to call a physician who is usually called as a expert witness, but the party only wants to call him as a fact witness. Can the party pay the expert an amount commensurate with the amount that he ordinarily receives when he testifies as an expert? According to the recent opinion of the New York Supreme Court, Appellate Division, Second Department in Caldwell v. Cablevision Systems Corp., 2011 WL 2164004 (N.Y.A.D. 2 Dept. 2011), the answer is "no." So, why did the court affirm a verdict against a plaintiff despite a defendant overpaying a physician/fact witness?

In Caldwell, 

The defendant [Communications Specialists, Inc.] was contracted by Cablevision Systems Corporation  to install a high-speed fiber-optic cable underneath Benefield Boulevard in Peekskill. To install the cable, the defendant cut a trench, two feet deep and four to five inches wide, which extended more than 3,000 feet along Benefield Boulevard. Additionally, the defendant dug, along the trench, a series of "test pits," approximately one-foot wide, to determine the location of existing underground utility lines. The plaintiffs' home is located on Benefield Boulevard. On October 11, 2006, at approximately 10:00 P.M., the plaintiff Bessie Caldwell (hereinafter the injured plaintiff) took her 100–pound dog for a walk during a heavy rainstorm. As was her daily custom, the injured plaintiff crossed Benefield Boulevard from her driveway and walked with the dog on the sidewalk for a short distance. As she was walking back across Benefield Boulevard toward her driveway, the injured plaintiff tripped and fell in the road, allegedly sustaining injuries. At the time of the injured plaintiff's accident, the defendant had previously dug and backfilled the trench and test pits on Benefield Boulevard, but the road had not yet been permanently repaved.

The injured plaintiff and her husband, suing derivatively, subsequently commenced [an] action alleging, inter alia, that the defendant failed to properly backfill the trench and test pits, and had failed to adequately cover the trench and test pits with a temporary resurfacing material. According to the plaintiffs, the defendant had thereby created a dangerous condition on Benefield Boulevard which was the cause of the accident.

At trial, "the injured plaintiff testified that she fell when she tripped on a 'dip' in one of the test pits along the trench." Thereafter,

To rebut this testimony, the defendant called as a witness Dr. Barry Krosser, an orthopedic surgeon who had examined the injured plaintiff in an emergency room after the accident. Dr. Krosser was called during the liability phase of the trial solely to testify as to the description of the accident given to him by the injured plaintiff and recorded in his consultation note. Dr. Krosser's consultation note was admitted into evidence as a business record. Based upon the note, as opposed to his independent recollection, Dr. Krosser testified that when he evaluated the plaintiff, she indicated to him that she "tripped over a dog while walking ... in the rain." Dr. Krosser further testified that he was appearing by virtue of a subpoena served upon him by defense counsel, and that the defendant was compensating him for his lost time in the sum of $10,000. The plaintiffs' counsel cross-examined Dr. Krosser regarding this payment, without limitation. Dr. Krosser indicated that, in cases in which he had previously testified as an expert, he had charged a fee, since he would otherwise have been seeing patients or performing surgery.

Based upon thus payment, the plaintiffs' counsel moved (1) to strike Dr. Krosser's testimony on the ground that it was improper for the defendant to have paid $10,000 to a fact witness; or, in the alternative, (2) for a jury instruction pertaining specifically to the payment. The trial court ruled that both counsel could address Dr. Krosser's compensation in their summations, but it otherwise denied the plaintiffs' motion. After the jury entered a verdict finding that the defendant was negligent but that this negligence was not a substantial factor in bringing about the injured plaintiff's accident, the plaintiffs appealed, claiming "that Dr. Krosser's testimony should have been stricken or, alternatively, that the jury should have been specifically instructed as to the potential bias created by the $10,000 payment made to the witness."

In addressing this argument, the Supreme Court of New York, Appellate Division, Second Department, began by noting that parties may only pay fact witnesses "attendance fees" in the amount of $15 for each day of attendance at trial, and travel expenses in the amount of 23 cents per mile pursuant to CPLR 8001(a) as well as compensation for the loss of their time spent testifying. The court then rejected the defendant's suggestion that its $10,000 payment was proper because it "was commensurate with the amount Dr. Krosser ordinarily charges to testify as an expert." According to the court,

There are...important differences between expert witnesses and fact witnesses. Experts are under no public duty, nor can they be compelled, to testify....Their opinion testimony involves "special knowledge and skill...and often requires examination and study upon a particular branch of science.. about which they are to testify"....Moreover, the testimony of a particular expert is not ordinarily necessary to the resolution of a case in the same manner as is the testimony of a fact witness who has personal knowledge peculiar to the case at hand. Thus, while fact witnesses have a public duty to testify and are limited to receipt of statutory fees and compensation for lost time, expert witnesses are justified in receiving compensation for their efforts....Here, Dr. Krosser was not called to provide any medical evidence. Therefore, because no special knowledge or examination and study was required for the testimony given by Dr. Krosser, the defendant's suggestion that the payment to Dr. Krosser was commensurate with his normal expert fees detracts from its assertion that the payment was merely reasonable compensation for time lost testifying.

That said, the court then noted that its role in the appeal before it was not to determine whether the payment to Dr. Krosser was reasonable; instead, it had to decide whether Dr. Krosser's testimony should have been excluded or accompanied by a specific instruction regarding potential bias. The court quickly rejected the exclusion argument, finding that "[o]ur legal system generally 'leave[s] the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.'"

The court, however, agreed with the argument that a specific instruction on bias should have been given. It concluded that

While the Supreme Court instructed the jury that it should consider bias or prejudice in determining the weight to be given to any particular witness's testimony, this general charge was insufficient under the circumstances. Just as a jury that hears testimony in a criminal trial from a witness who is testifying in exchange for a promise of leniency is given a specific instruction regarding the possibility of bias..., we conclude that, in light of the important public policy considerations concerning fees paid to fact witnesses, more than the general credibility charge is also warranted where, as here, a reasonable inference can be drawn that a fact witness has been paid an amount disproportionate to the reasonable value of his or her lost time. In crafting an appropriate instruction, trial courts should bear in mind the general principles regarding fact-witness testimony heretofore discussed, including a fact witness's public duty to testify for the statutory fee of $15; the permissibility of voluntary compensation for the reasonable value of time spent in testifying; the goal of drawing the line between compensation that merely eases the burden of testifying and that which tends to unintentionally influence testimony; the inference, which may be drawn from the disproportionality of the payment to the reasonable value of lost time, that a fee for testimony has been paid; and the potential for unconscious bias that such a fee may create. 

That said, the court ultimately concluded that

Although the trial court here failed to give a specific instruction regarding fact-witness compensation to the jury, under the particular circumstances of this case, the charge error does not require reversal. Dr. Krosser was called as a witness by the defendant for the sole purpose of testifying as to a single fact recorded in his medical notes. Dr. Krosser admitted that he had no personal recollection of speaking with the plaintiff and that his testimony was based only on what was written in his note. The jury's evaluation of this testimony was, therefore, only minimally dependent upon an assessment of Dr. Krosser's credibility. In other words, the plaintiffs do not challenge the believability of Dr. Krosser's testimony that he made a particular notation in the injured plaintiff's medical chart. Rather, they dispute the accuracy of the note itself. Because the payment of fees to a fact witness goes merely to the credibility of the witness, in view of the nature of Dr. Krosser's testimony, the charge error here was not so prejudicial as to warrant reversal and a new trial.

I'm not sure that I agree. Now, I don't have access to the full factual record of the Caldwell case, but a few things are clear. First, the jury found that the defendant was negligent. My assumption from this finding is that the jury found the defendant negligent in failing to act properly after digging the trench and test pits. Second, the jury found that the plaintiff was injured. Third, the jury found that the defendant's negligence was not a substantial factor in causing the plaintiff's injury. My assumption is that the jury credited Dr. Krosser's notation that the plaintiff tripped over a dog and thus discredited the plaintiff's testimony that she tripped on a dip in a test pit. That leaves one question: Besides Dr. Krosser's notation, what other evidence was there to discredit the plaintiff's testimony?

If there was plenty of other evidence that the plaintiff did not trip on a dip, I would agree with the court that a new trial was not warranted. But if Dr. Krosser's notation was the only or the primary evidence discrediting her testimony, his credibility was central to the case, and I think that a new trial was warranted.

(Hat tip to Michael J. Hutter for the link)

-CM

The Power Of The Claw: What Are Clawback Agreements And How Popular Are They?

Enacted in 2008, Federal Rule of Evidence 502(b) provides that

When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

Meanwhile, Federal Rule of Evidence 502(d) indicates that

A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other Federal or State proceeding.

Moreover, the Advisory Committee's Note to Rule 502(d) states that

Confidentiality orders are becoming increasingly important in limiting the costs of privilege review and retention, especially in cases involving electronic discovery. But the utility of a confidentiality order in reducing discovery costs is substantially diminished if it provides no protection outside the particular litigation in which the order is entered. Parties are unlikely to be able to reduce the costs of pre-production review for privilege and work product if the consequence of disclosure is that the communications or information could be used by non-parties to the litigation.

There is some dispute on whether a confidentiality order entered in one case is enforceable in other proceedings. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D. Md. 2005), for a discussion of this case law. The rule provides that when a confidentiality order governing the consequences of disclosure in that case is entered in a federal proceeding, its terms are enforceable against non-parties in any federal or state proceeding. For example, the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party; the rule contemplates enforcement of “claw-back” and “quick peek” arrangements as a way to avoid the excessive costs of pre-production review for privilege and work product. See Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (noting that parties may enter into "so-called 'claw-back' agreements that allow the parties to forego privilege review altogether in favor of an agreement to return inadvertently produced privilege documents"). The rule provides a party with a predictable protection from a court order--predictability that is needed to allow the party to plan in advance to limit the prohibitive costs of privilege and work product review and retention.

Under the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court's order. (emphasis added).

I have two goals in this post: (1) to discuss the effect of clawback requests and clawback agreements; and (2) to call attention to a blog post with some anecdotal evidence concerning the (in)frequency of clawbacks.

So, let's start by defining the relevant terms. The Advisory Committee's Note to Federal Rule of Civil Procedure 26(f) notes that parties in discovery

may agree that the responding party will provide certain requested materials for initial examination without waiving any privilege or protection -- sometimes known as a "quick peek." The requesting party then designates the documents it wishes to have actually produced. This designation is the Rule 34 request. The responding party then responds in the usual course, screening only those documents actually requested for formal production and asserting privilege claims as provided in Rule 26(b)(5)(A).

Meanwhile,

On other occasions, parties enter agreements -- sometimes called "clawback agreements" -- that production without intent to waive privilege or protection should not be a waiver so long as the responding party identifies the documents mistakenly produced, and that the documents should be returned under those circumstances. Other voluntary arrangements may be appropriate depending on the circumstances of each litigation. In most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waived a claim of privilege or of protection as trial-preparation material.

So, what is the interplay between a clawback request or agreement and Federal Rule of Evidence 502? Well, first, let's say that the parties don't reach a clawback agreement before disclosing documents during discovery. And then, let's say that soon after a party discloses documents, it requests a clawback of an inadvertently disclosed document. The court will use this prompt request for a clawback as evidence that the disclosing party "promptly took reasonable steps to rectify the error" under Federal Rule of Evidence 502(b)(3). See, e.g., Martin v. State Farm Auto Ins. Co., 2011 WL 1297819 (S.D.W.Va. 2011). The court then must decide whether this step, among other things, was sufficient to prevent privilege from being vitiated.

Now, let's say that the parties reach a clawback agreement before disclosing documents. If they reach such an agreement, the court will issue a court-ordered clawback agreement under Federal Rule of Evidence 502(d), ensuring that inadvertently disclosed documents will not be admissible in the subject case or later cases. See, e.g., Capitol Records, Inc. v. MP3tunes, LLC, 261 F.R.D. 44 (S.D.N.Y. 2009). Indeed, a court can issue a court-ordered clawback agreement even if one party requests such an agreement and the other party opposes it. See, e.g., Rajala v. McGuire Woods, LLP, 2010 WL 2949582 (D. Kan. 2010). Finally, some courts have even encouraged parties to enter into clawback agreements without a motion by either party. See, e.g., Doe v. Nebraska, 2011 WL 1480483 (D. Neb. 2011).

Given this, you might think that clawback agreements are pretty popular. Not so according to Mark Herrmann, the Vice President and Chief Counsel - Litigation at Aon Corp. insurance brokerage. He sent me a link to this blog post of his, in which he notes that

I recently heard a panel of judges speak about e-discovery issues. Their opinions on several subjects varied, but on one subject they agreed unanimously: Clawback provisions under Federal Rule of Evidence 502 are valuable tools in most significant litigation, but they remain rarely used.

This piqued my interest, so I asked several in-house litigators (not necessarily at the place where I work) whether they routinely seek FRE 502 clawback provisions in their cases. The in-house lawyers do not. And I asked whether outside counsel routinely recommend seeking those provisions. Not surprisingly (because the in-house folks aren’t using them), outside counsel do not.

He then gives several reasons why clawback agreements might not be very popular, and I direct readers to check out his post for his full analysis. Undoubtedly, there are a variety of reasons why attorneys don't enter into clawback agreements, and I'm certainly no expert about all of these motivations. If I had to guess, though, I might agree with one of the commenters on Herrmann's post, who contended that every attorney thinks that he won't make a disclosure mistake and that the other attorney might.

-CM

Dog Day Afternoon: Casey Anthony Trial Raises Questions About Cadaver Dogs

With the Casey Anthony trial, most of America is becoming acquainted for the first time with the "cadaver dog." Here is an excerpt from a CNN article about the cadaver dog's role in the investigation of the death of Caylee Anthony:

A dog trained to locate human remains alerted his handler to them in two locations: the trunk of Casey Anthony's car and a corner of her parents' back yard, the handler testified in Anthony's capital murder trial Tuesday.

On first pass by the dog, Gerus, around Anthony's white Pontiac Sunfire on July 17, 2008, "he started indicating in the rear of the vehicle," said Orange County, Florida, sheriff's Deputy Jason Forgery, a K-9 handler. "I could tell he was working something."

As the dog came around the front of the car, Forgery said he asked that the trunk be opened. When Gerus came around to the trunk, he put his front paws inside, then lay down -- a signal to Forgery that he had detected the scent of remains.

He said Gerus also alerted in the southeast corner of the Anthony back yard. However, during a cross-examination that grew testy at times, Forgery told defense attorney Jose Baez that after technicians had examined the area and scraped the surface of the land, he returned the following day and the dog did not alert in the back yard.

And here is a video clip of some of Forgery's testimony, including an interesting cross-examination by defense counsel regarding the (in)accuracy of cadaver dogs:

I think that most people have more familiarity with drug-sniffing dogs, dogs who track a suspect from a crime scene, and scent-lineup dogs, which are

exposed to the scent from items found at crime scene, and are then walked by a series of containers with samples swabbed from a suspect and from others not involved in the crime. If the dog finds a can with a matching scent, it signals — stiffening, barking or giving some other alert its handler recognizes.

In this post, I have two goals: (1) comparing the qualification of these latter two types of dogs and cadaver dogs for expert testimony purposes; and (2) considering whether dog "searches" should be allowed without warrants under the Fourth Amendment given yesterday's post.

Go to the Dogs

In addressing this first question, let's consider the opinion of the Court of Appeals of Texas, Houston, in Trejos v. State, 243 S.W.3d 30 (Tex.App.-Houston [1 Dist.] 2007). Trejos is at least somewhat similar to the Casey Anthony case. Frank Trejos and his wife lived with Maria Barrientos, his mother-in-law. Four days after Maria was last seen, Trejos reported to the police that she was missing, but neither he nor his wife helped Maria's friends post missing persons fliers, nor did they make any other attempts to find her.

Later,

the Houston Police Department Crime Laboratory processed Maria's house. Testing revealed a "presumptive test for blood" on adult footprints in the kitchen and the hallway and on a towel in the bathroom. The towel was sent to the Department of Public Safety ("DPS") for follow-up testing, but the test showed that there was no "apparent blood." The following day, Maria's car, with the keys still in the ignition, was found abandoned less than two miles from her ex-husband's house. Maria's purse was in the car. A presumptive test showed the presence of possible blood on the floormats in the back floorboard of the car. 

Trejos, however, denied any involvement is Maria's disappearance, and the case went dormant for seven years. After seven years, Trejos was interrogated again, and he made a "confession." Specifically, he

said that he was angry with Maria for nagging him. When she "came up in [his] face" he struck her with his fist. She fell to the kitchen floor. Maria was bleeding and "freaking out," so [Trejos] choked her. After Maria was dead, [Trejos] and his wife took her to the bathroom and placed her in the tub. [Trejos]'s wife cut Maria's wrists to try to make it look like she committed suicide, but the wounds did not bleed. [Trejos] and his wife put Maria's body in the trunk of their car and dumped her body in a ditch.

Police officers then

took two dogs trained to detect the scent of cadavers to the location where [Trejos] said that he and his wife had dumped Maria's body. The two cadaver dogs and their handlers worked the area independently of one another so that they would not influence each other. Both dogs alerted within five or six feet of one another, at the spot that [Trejos] had indicated he had placed the body. Although an excavation was performed, no remains were found.

At his murder trial, Trejos moved to suppress his confession and preclude admission of evidence relating to the cadaver dogs, but he was unsuccessful on both points and in his defense overall. He thereafter appealed, claiming, inter alia, that the cadaver dogs were not sufficiently qualified to allow for expert testimony regarding their alerts. In response, the Court of Appeals of Texas noted that

In determining whether a dog used in a scent lineup was qualified, we have applied five factors....In Risher, we held that a scent-lineup dog is qualified if "it (1) is of a breed characterized by acuteness of scent and power of discrimination, (2) has been trained to discriminate between human beings by their scent, (3) has been found by experience to be reliable, (4) was given a scent known to be that of the alleged participant of the crime, and (5) was given the scent within the period of its efficiency."... The Fourteenth Court of Appeals applied these same five factors in Winston to determine the reliability of a dog that tracked a burglary suspect based on human scent left at the crime scene.

The court then, however, concluded that

Searches by cadaver dogs are different from searches by dogs for scents left by live humans. Deputy Pikett testified that cadaver searching is a less rigorous skill because it only requires the dog to be able to distinguish between human scents and animal scents, and the dog need not further distinguish between individual humans. As we explain below, because the skills necessary for a cadaver dog differs from the skills necessary for scent lineups or the tracking of suspects, we conclude that only some of the five factors in Risher apply to searches by cadaver dogs.

Obviously, the fourth factor is irrelevant because a cadaver dog does not search for the scent of any specific person, and the court also found that the fifth factor is irrelevant "because the immediacy of the search is not indicative of the efficiency of the scent." So, how about the first three factors? With regard to the first factor, the court held that

Deputy Pikett testified that all dogs have a more acute sense of smell than humans and that bloodhounds have an olfactory sense that is 26 times that of a human. Deputy Pikett explained that because a cadaver dog need not distinguish between the scents of different individuals and need only distinguish between the scent of human and animal remains, a breed such as a bloodhound that is traditionally known for its acuteness of scent is not necessary to use as a cadaver dog. Deputy Pikett further explained that a bloodhound is typically not a good cadaver search dog because bloodhounds are “not great obedience dogs” and typically must be worked on a lead, or leash. Deputy Pikett testified that in a large area search, a dog that can work off-lead is more credible because it is free to make an independent find, without the possibility that its handler will lead it to a particular area. Deputy Pikett said that other breeds, "such as Rottweilers mixed-breeds, Lab[radors] and so forth" can perform as cadaver dogs. We conclude that the breed of dog characterized by acuteness of scent is not determinative of a cadaver dog's qualification. However, we slightly modify this factor to examine whether the dog type or breed typically works well off-lead.

For the second factor, the court concluded that

Cadaver dogs are not trained to discriminate between human beings based on scent because the identity of the body being searched for is generally not in dispute. Deputy Pikett explained that the important distinction for a cadaver dog to master is between human remains and animal remains. The training begins with fairly fresh cadaver scent in a relatively easy location. The dogs progress to older body scents and then to the introduction of foreign scent distractions such as deer, horse, or cow bones. We conclude that this requirement must be adapted slightly for determination of the reliability of cadaver dogs by examining whether the dog has been trained to discriminate between human cadaver scents and animal scents.

And, in connection with the third factor, the court determined that

Proven reliability must be a qualifying characteristic of a cadaver dog, just like the need for proven reliability of dogs used in scent-lineups and the tracking of suspects. Deputy Pikett testified that a dog that cannot pass the training tests—for example, by failing to distinguish human and animal remains—will be retired from cadaver search work. To ensure that the dog can distinguish human and animal scents, Deputy Pikett explained that a dog in training must first prove that it can actually find a human scent, and then the training progresses to older scents, followed by the introduction of foreign scents. We therefore conclude that this factor is applicable to the qualifications and reliability of a cadaver dog.

In reviewing (relatively scarce) precedent from across the country, it seems like the Trejos opinion is not an anomaly; instead, courts use pretty lax standards in determining whether cadaver dogs are qualified.

Search Me

In light of yesterday's post, I want to address a second aspect of cadaver dogs, drug-sniffing dogs, etc. In opinions such United States v. Place, 462 U.S. 696 (1983), and Illinois v. Caballes, 543 U.S. 405, 409 (2009), courts have found that canine sniffs of luggage and vehicles (and sometimes homes) are not searches and thus do not trigger Fourth Amendment scrutiny. And the basis for these rulings is that these sniffs do constitute a significant enough infringement on any reasonable expectation of privacy.

So, let's return to yesterday's post for a second. That post discussed an article and a concurring opinion arguing against the Fourth Amendment's singular focus on privacy and arguing for the recognition that the Amendment also protects other values such as security, dignity, and liberty. As noted, the concurring opinion in yesterday's post noted how this shift in focus might change the outcome in warrantless GPS attachment cases.

Well, how might this shift alter the analysis of whether search warrants/probable cause/reasonable suspicion are needed before the police call for the drug-sniffing dog, the canine dog, etc.? Well, part of the answer might be found in Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829 (2009), by Leslie A. Shoebotham, a professor at the Loyola University New Orleans School of Law.

Part of Professor's analysis focuses upon the intrusiveness of police dog behavior. First, there is intimidation:

Although we might prefer to visualize a drug-detection dog as being a member of the U.S. Agricultural Department's "Beagle Brigade" or a Labrador retriever, like most explosives-detection dogs, such is not the case. Drug-detection dogs are often selected for the intimidation factor that they produce. The intimidation is, therefore, intentional. When asked, and sometimes when not asked, these dogs can be dangerous. Unlike an ordinary weapon, which obviously lacks a mind of its own, the potential exists for a dog, even a well-trained dog, to be disobedient. Courts that refuse to apply Kyllo in the home-sniff context on the basis that dogs are not technological devices cannot also avoid consideration of the intrusiveness that arises because dogs are not mechanical devices. Simply stated, drug-detection dogs produce fear, intentionally so, in the ordinary person. There is a societal cost associated with introducing intimidating dogs into the curtilage of a private home, and the Court has instructed that societal "understandings" are an appropriate consideration in determining reasonableness under the Fourth Amendment.

Second, there is historical oppression:

While the courts that refuse to apply Kyllo emphasize our societal recognition that dogs are familiar and have been used by law enforcement for tracking purposes for centuries, these courts ignore the fact that dogs have also been used as tools of institutional oppression for perhaps even longer. Although dogs have long been used by military forces, as early as 2500 BC, Egyptians used dogs on civilians for purposes of crowd control to protect the pyramids. The Spanish conquistadors used dogs to kill and subdue the native populations upon their arrival in America. Dogs were used to attack Native Americans and to chase down runaway slaves. During the Civil War, dogs were used to intimidate and injure African-American soldiers fighting for the North. Following Pearl Harbor, dogs were used to intimidate Japanese Americans residing in Hawaii.

In more modern times, police dogs have been used for crowd control, even on nonviolent civil rights demonstrators. The passage of time may not have healed these wounds. Recent events have again brought intimidating dogs to the forefront of our national consciousness. While the German shepherds used at Abu Ghraib prison were military trained, the fact remains that our country has an unfortunate history of using dogs to target people of color for oppression by both military forces and civilian police agencies. This sad legacy cannot be ignored in assessing the intrusiveness of introducing a police dog into the curtilage of a private home or using a dog for suspicionless screening of multidwelling residential complexes.

Third, there are potential religious objections:

Americans love dogs. It may therefore be hard for the ordinary American to fathom that many Muslims view dogs as unclean and that contact with dogs, especially canine saliva, is so offensive that it necessitates a purification ritual. Our increasingly multicultural society requires societal recognition that contact with dogs is offensive to many Muslims, however, and perhaps to followers of other religions as well. In other parts of the world, these objections are taken seriously. In the United Kingdom, for example, guidelines are being considered that would require detection dogs to wear rubber-soled "bootee" when searching a Muslim's home or a mosque. The point of this discussion is not to suggest that special rules should apply to any particular group, but rather to illustrate that contact with dogs, or contamination from dogs, is highly objectionable to some. Therefore, suspicionless entry of dogs into the curtilage of a home, or dragnet use of detection canines, must be carefully reconsidered.

Now, under the Supreme Court's current privacy-focused conception of the Fourth Amendment, courts have not found these three types of intimidation to be sufficient to render much police dog behavior "searches" that require Constitutional. But what if courts apply Justice Ginsburg's "more majestic conception" of the Fourth Amendment and recognize that it also protects other values such as security, dignity, and liberty? Do "the people' have security when they can be exposed to dog sniffs without any articulable suspicion? Is their dignity preserved with such unwarranted behavior? I think that the answer is likely "no" in many cases.

-CM

Article Of Interest: Thomas Crocker's The Political Fourth Amendment

I have written five previous posts (here, here, here, here, and here) about court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle. Invariably, federal courts find that there is no warrant requirement under the Fourth Amendment pursuant to United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), because a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. See, e.g., United States v. Cuevas-Perez, 2011 WL 1585072 (7th Cir. 2011). State courts are divided on the issue, but not based upon differing interpretations of the Fourth Amendment. Instead, while some courts adhere to federal precedent, other courts find that attaching a GPS device to a suspect's vehicle without a warrant violates state constitutional law provisions (for instance, Massachusetts found such an attachment to be a seizure under its state constitution).

Neither the majority nor the concurring opinion in Foltz v. Commonwealth, 706 S.E.2d 914 (Va.App. 2011), deviated from standard operating procedure, but the concurring opinion suggested a fundamental recalibration of how we think of the Fourth Amendment. The same goes for a terrific recent article, The Political Fourth Amendment, 88 Wash. U. L. Rev. 303 (2010), by Thomas Crocker, a professor at the University of South Carolina School of Law. This post will consider the trenchant arguments made by both the opinion and the article.

At first glance, Foltz looks like a run of the mill modern GPS tracking case. Police suspected that David Foltz was committing sexual assaults, they affixed a GPS device to his work van (without a warrant), they tracked his van, and they caught him in the act. The trial court denied Foltz's motion to suppress, he was convicted of abduction with intent to defile, he appealed, and a panel on the Court of Appeals of Virginia affirmed. Foltz then asked for and received en banc review on the issue of whether the warrantless attachment of the GPS device violated the Fourth Amendment, which provides that 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Ultimately, the court quickly affirmed, concluding that the Fourth Amendment only applies when an individual has a reasonable expectation of privacy and that Foltz lacked such expectation by driving his van on public thoroughfares. 

It was not until Judge Humphreys' concurring opinion that things got interesting. Really interesting. Judge Humphreys of course acknowledged the existing "reasonable expectation of privacy" framework that the Supreme Court has developed, which is why he merely concurred (rather than dissented), but then he started to dismantle it. He began by noting that

although "privacy" is the centerpiece of current Fourth Amendment jurisprudence, the word "privacy" does not actually appear in the text of the Fourth Amendment. The constitutional protection actually promised is "security," and the time may be ripe for the courts to reconsider that term as it was used and understood by the framers of the amendment in the context of our current "Information Age" where privacy is becoming an increasingly scarce commodity. While "privacy" and "security" are overlapping concepts, they are not congruent. Granting that we as a people feel freer and more secure when our government and its agents respect our privacy, the limits of government intrusion that reasonable citizens find unacceptable are not necessarily circumscribed only by what they choose to keep private.

What this meant for Judge Humphreys was that

Perhaps the time has come that courts recognize that by its own terms, the Fourth Amendment actually stipulates that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV (emphasis added). Courts tend to abridge this phrase essentially to "the right against unreasonable searches and seizures shall not be violated." Thus, the words "people" and "secure" get lost in the editing. Nevertheless, the framers presumably chose those words with some care and deliberation. With regard to their use of the word "people," they were certainly capable of speaking in the singular. For example, in the Fifth Amendment they provide, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,...nor shall any person be subject for the same offense to be twice put in jeopardy...." U.S. Const. amend. V (emphasis added). This indicates to me that their choice of the plural in the Fourth Amendment was deliberate. In other words, the protection afforded by the Fourth Amendment is not just concerned with how government searches and seizures affect the interests of particular individuals, but it is also concerned with those that affect the public generally. Moreover, the overall purpose of the Bill of Rights was to restrain the arbitrary and capricious use of government power. Thus, given the Fourth Amendment's ratification in the aftermath of a revolution largely precipitated by such abuse of governmental power, it seems obvious to me that "security" was actually a significant legal concept in the minds of the framers—something free people enjoyed in contrast to the insecurity generated by the arbitrary exercise of government authority as experienced by the framers and their fellow colonists prior to our independence as a nation.

If we consider the increasingly ubiquitous presence of public video surveillance camera networks, the use of electronic scanners that perform a virtual "strip search" of those who make use of some forms of public transportation along with the increasing use of GPS tracking devices, whatever intuitive unease we feel about the methods employed by agents of the government has less to do with a sense that the individual "right to privacy" of any particular person has been violated than with concerns about our sense of security from governmental monitoring of the citizenry as a whole.

That said, Judge Humphreys wasn't quite willing to flip the switch from concurring to dissenting opinion, but he did issue a missive that read like an amicus brief to the Supreme Court should it take a GPS tracking case:

Although the Supreme Court of the United States will ultimately have the last word, "the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish."...Therefore, as the courts consider how to construe the confluence of revolutionary advances in technology with the fundamental principles embodied in the Fourth Amendment, it may be time, in cases where these issues may be more appropriately addressed than this one, for the courts to do so with the express language and the original purpose of the Fourth Amendment in mind. Perhaps in addition to determining whether an individual's reasonable expectation of privacy has been violated, we might also consider whether reasonable people would remain secure in their liberties if a particular investigative or surveillance method were pervasive. If they would not, the courts should determine what restrictions—such as requiring reasonable articulable suspicion of criminal activity or a judicially authorized warrant based upon probable cause—would sufficiently narrow the method's application in a way that leaves all reasonable citizens with a realistic sense of security from arbitrary and invasive governmental monitoring of their daily activities.

Judge Humphreys' discussion dovetails nicely with Professor Crocker's aforementioned article, The Political Fourth Amendment.

Twin Falls: The Fourth Amendment, Protecting Privacy, and Regulating Police

When I was a junior tennis player, my only training consisted of daily matches against the garage door followed by matches against other neophytes. I adopted a two-handed backhand that was roughly taken from how I held a baseball bat. After several years of playing, I finally went to a tennis camp, where the coach diagnosed my backhand as a case of "fighting hands." My left hand was pulling the racquet up and my right hand was pulling the racquet down. Sometimes, my hands worked in harmony, and I would hit a great shot. Other times, I would hit the ball into the bottom of the net or over the fence. According to Professor Crocker, the Supreme Court's current Fourth Amendment jurisprudence is kind of a case of fighting hands.

He notes that the Court has interpreted the Amendment as serving two masters: protecting privacy and regulating the police. And, according to Professor Crocker, "[t]he twin goals of protecting privacy and regulating police sometimes complement each other, but at other times operate in significant tension." Indeed, this tension often exists within a single case.

As Professor Crocker notes, in Belton v. New York, 453 U.S. 454 (1981), the majority focused almost exclusively on providing a bright line rule to law enforcement in finding that police can automatically search the passenger compartment of a vehicle after arresting its recent occupant. In his dissent, Justice Brennan mocked the majority's devotion to creating a bright line rule, concluding that it would justify the search of passenger compartments even if suspects were handcuffed and placed in the back seats of police cruisers. And indeed, Justice Brennan's forecasting proved prescient as this "Belton fiction" persisted for decades before the Court recently decided that the scales had been tipped too far against privacy in Arizona v. Gant, 129 S.Ct. 1710 (2009).

In Gant, the tables were turned, with the majority dismantling the Belton fiction and holding that an automobile search incident to a lawful automobile arrest is only justified when the arrestee in unsecured and within reaching distance of the passenger compartment at the time of the search. Meanwhile, Justice Alito's dissenting opinion, unlike the majority opinion, ignored privacy concerns and focused singularly on regulating and protecting the police.

Professor Crocker then points out that in certain cases, such as Wyoming v. Houghton, 526 U.S. 295 (1999), "[t]hese twin purposes are sometimes mediated by the textually determined standard of reasonableness, adding further occasions to consider regulatory interests." But as he notes

Under such a balancing approach, what is reasonable will depend, however, on how a court characterizes the interaction between the citizen and police. “Reasonableness” is not an independent inquiry. To conclude that a search is “reasonable,” courts must make prior judgments about the importance of a particular police practice or a particular privacy interest. When conducting a balancing inquiry, if the citizen is construed to have a diminished expectation of privacy, then the needs of effective law enforcement will almost always predominate.

So, is there a way to read the Fourth Amendment so that litigants, citizens, and law enforcement officals do not need to depend on whether the Court decides to prioritize privacy or police on a given day? Professor Crocker contends that the answer can be found in Justice Ginsburg's dissenting opinion in Herring v. United States, 555 U.S. 135 (2009). In Herring, the majority created the good faith exception to the exclusionary rule, finding that because "[t]he exclusionary rule was crafted to curb police" misconduct, only "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligen[ce]," will justify its application. Under this exception, courts are to determine, on a case-by-case-basis, whether applying the exclusionary rule based upon this officer's (misconduct) in this case would deter future misconduct; "the Court does not consider the social cost of losing trust in government, the social cost to innocent victims, or the social cost of having the judicial system confer its imprimatur on lawless conduct by police." Therefore, the warrantless search conducted in Herring, based upon a compute data base error, did not justify exclusion.

Conversely in her dissent, Justice Ginsburg focused "on future constitutional violations that innocent persons will suffer." She noted that "'[t]he offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer data base' is evocative of the use of general warrants that so outraged the authors of our Bill of Rights." She also recognized that given how much information is increasingly accessible about individuals through national and local databases, the risk of harm from the majority's good faith exception is not insignificant and "raise[s] grave concerns for individual liberty."

Professor Crocker thus points out that

the dissent's conception of the Fourth Amendment is focused on protecting individual liberty and citizen dignity. Dignitary harms result from unjustified physical contact by state agents. They are experienced by particular persons and shape how persons view their own security and how they fulfill their promise of liberty. Extending beyond individual acts of particular police officers, Fourth Amendment violations shape how individual persons experience their everyday relations to the institutions of government. Because individuals may rarely have direct interactions with state officials, they may suffer additional harms when subjected to an illegal search. These interactions can influence how particular individuals view the trustworthiness of state officials and can shape their overall view of governing institutions and authority. Unremedied Fourth Amendment violations can also impact an individual's sense of political belonging within a community. If constitutional protections fail to apply to them, then persons may legitimately question their standing within the political community. The limitation on searches and seizures, as a "right of the people," does more than regulate the conduct of particular officers. It establishes a political relation between "the People" and the institutions that exercise sovereign power in their name. 

In other words, the Herring majority read the Fourth Amendment alongside the criminal procedure provisions of the Fifth and Sixth Amendments as a provision having merely a regulatory purpose. It is this same reading which for decades has supported the "third-party" doctrine, under which a person loses Fourth Amendment protections over anything she knowingly exposes to another person.

Conversely, by using a wider frame, "Justice Ginsburg recognize[d] the liberty and dignity interests of persons made vulnerable when barriers are removed from government use of illegally obtained evidence." And this "wider frame allows us to see the connections between First and Fourth Amendment protections, and thus to see more than a contrast between protecting privacy and regulating police.

According to Professor Crocker, the Herring majority was like a horse with blinders, missing the Constitutional forest for the trees. He compares its conception of the Fourth Amendment to Josef K. in Franz Kafka's The Trial, focusing upon a single guard in a painting, not realizing that the painting is of Christ's entombment. He just as easily could have compared it to Cameron staring at "A Sunday Afternoon on the Island of La Grande Jatte" in Ferris Bueller's Day Off, seeing all the points and thus missing the point of how they fit into the larger mosaic.

Professor Crocker views the Herring majority as making the same mistake and gives three reasons for a judicial vision of the Fourth Amendment focused on liberty and dignity, placing it alongside provisions like the First Amendment that secure "the People's" rights to political liberty:

•First, government officials have at their fingertips ever more powerful sources of information that can be used to intrude into our lives. The anonymity of the public speaker may increasingly be a creature of the past, as recognition and tracking technologies make it easier for government officials to monitor our public movements and activities;

•Second, searches and seizures directly impact personal participation in community and political life. When a person's race, religion, or political preferences contribute to whether she is subject to search, more than her privacy or equal status is implicated. Her full political participation in the polity is at stake; and

•Finally, flourishing political life requires the freedom to think, listen, and speak with others openly in public space, without the fear of repercussions, whether in the form of sanctions or in the form of unwanted government surveillance. Uninhibited and robust political life therefore requires the protections afforded by both the First and Fourth Amendments. If the First Amendment protects no more than the ability to speak in private, then it would protect little that is of political value.

A People's History of the United States

But it is not just these reasons that support Professor Crocker's claim. Instead, he gives both textual and historical arguments. As noted, the concurrence in Foltz assumed that the Fourth Amendment must have been a response to the abuse of governmental power that the framers had just revolted against. Professor Crocker corroborates this claim, pointing out that "[t]he Fourth Amendment is rooted in cases that have as much to do with political speech as they do with searches and seizures." These cases

focused on limiting the political power of government officials to investigate and prosecute political crimes. In relation to seditious libel or the arbitrary power of customs officials, liberty was the central value. 

Indeed, 

a value in protecting only what is publicly undisclosed does not fit well with an eighteenth-century conception of ordinary life. Communities and homes were not constructed or occupied in ways that led to expectations of privacy as undisclosed to others. Community life was life lived in public, not private. There was no fully modern equivalent of "private life" lived apart from the community. Modern privacy is a social construct, conceptually cultivated and practically produced in forms of everyday life. 

Therefore, while privacy his become the linchpin of Fourth Amendment jurisprudence, liberty and security can and should remain equally important, "even if they are often latent Fourth Amendment values."

Why? Well, again, recall that the Foltz concurrence assumed that there was something behind the framers casting the Fourth Amendment as "[t]he right of the people...." Professor Crocker engages in a similar analysis. As noted above, the question is whether the Fourth Amendment is merely a criminal procedure provision or something broader.

In addition to the Fourth Amendment's protection of the "right of the people," the First Amendment protects "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," while the Second Amendment refers to a "right of the people to keep and bear Arms." Indeed, the Ninth Amendment assures against denial or disparagement rights "retained by the people," and the Tenth Amendment confirms powers "reserved...to the people."

Given this fact, it makes sense to see the Fourth Amendment as the Constitutional sibling of these collective rights rather than the atomistic criminal procedure right envisaged by the Court. Indeed, this point is driven home by the fact that

The Fifth Amendment protects persons under due process and other provisions, while the Sixth Amendment guarantees rights to the accused in criminal prosecutions. Both the Sixth and Seventh Amendments protect the role of juries, a political body closely associated with "the People" themselves. "We the People," however, are not synonymous with the individual persons who comprise the sovereign body. 

Thus, the criminal procedure provisions of the Amendments to which the Fourth Amendment have been compared merely protect the rights of "persons" while the Fourth Amendment protects the collective right of "the people." In essence, then, the narrower lens used by the Herring majority is like the pan and scan version of a movie that distorts the original and chops off its sides while the wider lens used the Herring dissent allows us to see the whole as it was originally intended.

The problem with the Herring majority and those who have viewed the Fourth Amendment as focused on individual persons is that

Narrowly focusing on a personal right to privacy ignores the "numeric problem" of "the right of the people," who appear in different guises as individual persons and as a collective people. Persons can be viewed as individual persons who enjoy the particular "Blessings of Liberty" in their private lives and homes, and simultaneously they can be viewed as part of a collective political body that has a popular sovereign right to the "Blessings of Liberty" in their public and political lives. To appreciate this dual aspect, we must recognize that, at times, something more than an individual right is at stake. For example, a First Amendment "right of the people to peaceably assemble" is one that can be invoked by individual persons while simultaneously protecting collective interests. Privacy protections are only particular manifestations of political liberties. More than self-expression, the First Amendment protects a value that is collective and public. "At the heart of our jurisprudence lies the principle that in a free nation citizens must have the right to gather and speak with other persons in public places." They do so in order to make possible the political realization of popular sovereignty, the very people the Fourth Amendment seeks to protect. More than personal privacy, the Fourth Amendment protects a value of noninterference in our everyday lives that makes possible the political appearance of popular sovereignty, "the [very] People" on whom the First Amendment depends. Recognizing the textual significance of protecting a "right of the people" allows the Court to see the individual case as part of a collective interest.

Thus,

In order to see the Fourth Amendment's broader role within the Constitution that does more than regulate police practice, we must take seriously the fact that the Fourth Amendment's textual purpose is to secure a "right of the people," which places it textually alongside the First, Second, and Ninth Amendments that similarly seek to protect "rights of the people." "[T]he People" who assemble in the First Amendment and "the People" who have a right "to keep and bear arms" in the Second are "the [same] People" who have a right "to be secure in their persons, houses, papers, and effects." This same political body created a new polity out of a commitment to words ordained in the voice of “We the People." To ignore the political importance of the Fourth Amendment's protections, and to remain anachronistically focused on the practices of an institution whose existence was not yet imagined, is to miss entirely an available guiding feature of constitutional text and design. It also misses important conceptual connections among the various constitutional values that form the system of liberties whose blessings the Constitution seeks to secure.

Chasing Liberty

So, if the Fourth Amendment does not encompass merely an individual right to privacy but also a collective, political right to liberty and security, how might that right look? According to Professor Crocker, Lawrence v. Texas, 539 U.S. 558 (2003), in which the Supreme Court struck down a ban on sodomy, provides a partial blueprint, "a basis for reading the Fourth Amendment as part of a Constitution focused on protecting liberty and not only on privacy." According to Professor Crocker,

Beginning like a Fourth Amendment case, the opinion quickly moves through substantive due process concerns over "spheres of our lives" to First Amendment values of "freedom of thought, belief, and expression," suggesting that the Constitution protects liberty through an interrelated web of textual connections. Without citations, we are invited to read the Constitution's protection for liberty holistically as purposing to "secure the Blessings of Liberty" in all their manifestations. Moreover, Justice Kennedy acknowledges that liberty is realized in multiple ways, unlike the Court's increasingly narrow understanding of privacy as secret.

Professor Crocker acknowledges that "Lawrence is no doubt a due process case, striking down a criminal statute that denigrated the lives and dignity of homosexual persons." But he goes on to note that

Lawrence also makes salient the Constitution's protections for liberty across a number of doctrinal frameworks, purposefully glossing over the specific decision rules designed to implement constitutional principles. As a model of constitutional interpretation, it suggests that specific substantive issues can be addressed by examining larger constitutional contexts. The Lawrence Court did not first decide a tier of scrutiny and then balance the state's interests and chosen means against the nature of the right affected. Lawrence began where the Constitution itself begins, with the "Blessings of Liberty" that "We the People"sought to secure.

Using Lawrence as a model for examining Fourth Amendment issues requires courts to look at the broader implications of everyday social practice when making particular decisions. Moreover, it requires rethinking the "third-party" doctrine. Having a certain amount of security in the ability to interact with other persons free from the fear that they are effective agents of the state is analogous to speaking without fear of seditious libel. Security in everyday commerce with others is part of the essence of political liberty. Although the "third-party" doctrine provides scant privacy protection against pervasive government surveillance through data mining and other activities, a Fourth Amendment attuned to the liberty interests of persons would provide more robust grounds for regulation. Just as First Amendment activities may be chilled by overly broad regulations of speech, "the People's" political life lived in the company of others, both in and out of doors, can be chilled. And just as the First Amendment is doctrinally attuned to this prospect, a reoriented Fourth Amendment should be as well.

Conclusion

As Professor Crocker notes, in the classic Fourth Amendment case, Boyd v. United States, 116 U.S. 616 (1886), the Supreme Court held that

It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but  it is the invasion of his indefeasible right of personal security, personal liberty and private property...

In a world where we have gone from a cop on a stakeout to the possibility of 24/7 monitoring, in a world where most information about most people is only a few clicks of the mouse away, has the Court torn the heart out of the Fourth Amendment by finding that it only applies when an individual has the reasonable expectation of privacy? Has the Court deracinated the Amendment not only from its political roots but also from its place in the Constitutional mosaic? That's the implication of the concurring opinion in Foltz, and it is certainly the contention of Professor Crocker. I asked Professor Crocker what led him to write his article, and he responded:

I was led to write the article based on the following two observations: Because so much about our lives gets shared with others (friends or businesses), but the Supreme Court's third party doctrine says that what is shared is no longer private, the scope of Fourth Amendment protections can be rather narrow.  Even when information or spaces are private, the Supreme Court often focuses on the needs of law enforcement in a way that fails to balance appropriately the privacy interests at stake.  So, if privacy is increasingly inapplicable, or not even discussed in light of law enforcement needs, perhaps it is time to concentrate on other constitutional values, such as liberty, that might have greater purchase in these situations.

-CM

Higher Learning: EDVA Finds Documents Submitted Without Expert Testimony Not Admissible As Learned Treatises

Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for learned treatises. Specifically, it provides an exception

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Thus, learned treatises can be admitted but only in conjunction with expert testimony, which created a problem for the plaintiff in Hogge v. Stephens, 2011 WL 2161100 (E.D.Va. 2011).

In Stephens, Thomas Hogge, a Virginia inmate proceeding pro se and in forma pauperis, filed a civil action under 42 U.S.C. § 1983. His complaint arose out of allegations that the defendants, including Dr. Alvin Harris, improperly diagnosed and treated him for hepatitis C while he was incarcerated at the Deerfield Correctional Center. Specifically, the plaintiff alleged

that Harris should have requested "some type of imaging study of [P]laintiff's liver," and should have requested that complete blood work be done....Plaintiff also requested hepatitis A and hepatitis B vaccinations from Dr. Harris....Dr. Harris denied the requests....Plaintiff contend[ed] that the denial of this request violate[d] the Eighth Amendment....

Plaintiff admit[ted] that Dr. Harris submitted a request that a liver biopsy be performed..., Harris put Plaintiff on a daily multivitamin..., Harris requested that Plaintiff see a G.I. specialist..., and Harris required routine blood work every six months....Dr. Harris told Plaintiff that Dr. Harris would not submit a request for treatment because the request would be denied due to Plaintiff's low platelet count....Plaintiff underst[ood] that the biopsy and G.I. specialist requests were denied due to Plaintiff's low platelet count....Nevertheless, Plaintiff state[d] that Harris "refused to do anything at all concerning care and treatment."

The defendants eventually moved for summary judgment. In response, Hogge submitted several documents which allegedly supported his claim that Dr. Harris acted improperly. In finding that this evidence was inadmissible, the United States District Court for the Eastern District of Virginia held

that many of the documents Plaintiff submitted in support of his allegations against Dr. Harris, including the medical articles, constitute[d] hearsay. See Cornelius v. Wilkinson,No. 1:05–cv–00545, 2006 WL 2404136, at *5 (N.D.Ohio Aug. 18, 2006) ("Plaintiff submits several medical articles.... However these documents are not authenticated and constitute hearsay."). The Federal Rules of Evidence do provide a hearsay exception for learned treatises. Fed.R.Evid. 803(18). Such documents are only admissible, however, if they are "'called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination.'" Cornelius, 2006 WL 2404136, at *5 (quoting Fed.R.Evid. 803(18)); see Wik v. Shelton, No. CV 07–1726–HA, 2009 WL 2163529, at * 1 (D.Or. July 17, 2009) (disregarding the submission of a medical publication meant to establish a medical standard of care because the document was not relied on by an expert witness). Because "Plaintiff fail[ed] to present these medical articles in conjunction with expert testimony," they "are inadmissible and may not support Plaintiff's allegations." Cornelius, 2006 WL 2404136, at *5; (see Resp. Mot. Summ. J. (Docket No. 63) 7 (calling the documents "valid and legitimate medical research").)

-CM

Judge Advocate?: Court Of Appeals Of Indiana Refuses To Become An Advocate For Defendant In Connection With Waived Rule 609(b) Argument

Indiana Rule of Evidence 609(b) provides that

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

So, let's say that a defendant is convicted of unlawful possession of a firearm by a serious violent felon in August 2010 without prior notice by the prosecution. And let's say that at trial, the prosecution impeached the defendant with evidence of his 1970 conviction for burglary. Finally, let's say that the defendant later appeals, claiming, inter alia, claiming that the introduction of evidence of his prior conviction deprived him of the presumption of innocence, but, as at trial, he makes no reference to the prosecution's lack of notice. What should the appellate court do? According to the recent opinion of the Court of Appeals of Indiana in Teague v. State, 2011 WL 2138887 (Ind.App. 2011), the answer is "absolutely nothing."

The facts in Teague were as stated above, with James Teague being convicted of unlawful possession of a firearm by a serious violent felon. And here is the totality of the Court of Appeals of Indiana's discussion of the notice issue:

We hasten to note...that Teague was convicted of burglary in 1970. Indiana Rule of Evidence 609 states that convictions more than ten years old from the day of sentence or the day of release from confinement are not admissible for purposes of attacking the credibility of witnesses unless the court determines in the interests of justice that the probative value substantially outweighs the prejudicial effect. Moreover, if a party intends to use such evidence, it must provide the adverse party with sufficient advance written notice. Ind. R. Evid. 609. We have no indication that such notice was provided, but Teague did not object to its introduction at trial and does not challenge its admission on appeal as a violation of Rule 609. We may not become an advocate for Teague, and conclude any argument he has on this basis to be waived.

So, are there grounds to criticize the Court of Appeals of Indiana? Well, I'll start by pointing out that the court did not conclude that no notice was provided; instead, it merely pointed out that there was no indication that notice was provided. So, it is tough to criticize the court for not acting if it was unclear whether there was notice.

But let's assume that it was clear that there was notice. Was the court correct that if it raised the issue sua sponte it would have become an advocate for Teague? I don't see it. Instead, the court merely would have been an advocate for the rules of evidence. Indiana Rule of Evidence 609(b) flatly says that evidence of convictions that are more than ten years old are inadmissible unless there is advance notice. And the reason that advance notice is required is so that the adverse party can develop arguments for why the evidence is inadmissible so that, in turn, the judge can decide whether the evidence satisfies Rule 609(b)'s difficult balancing test. And frankly, it is tough to see a conviction from 1970, and especially one that is not for a crime of dishonesty or false statement, would pass the Rule 609(b) balancing test at a trial held in 2010.

-CM

When Innocence Is Pink: Why There Is A Gender Gap In Exonerations Of The Wrongfully Convicted And Efforts That Might Shrink It

There are over 60 innocence projects nationwide, and they do tremendous work. According to the Cardozo Innocence Project website, "There have been 271 post-conviction DNA exonerations in United States history." The Innocence Project has profiles of each of the exonerees and their cases on its website, and these profiles provide both a compelling read and a powerful indictment of the criminal justice system in this country.

Until I read Sandra Svoboda's article, When innocence is pink, however, I hadn't noticed something very important about these exonerees: Only 4 of them are women. When you think about this for a second, it make sense. In her article, Svoboda begins by telling the tale of Julie Rae Harper's wrongful conviction for murder and her ultimate exoneration and then notes that

While much attention has been given to the hundreds of men who have been exonerated of rapes and murders by DNA evidence during the last decade, Harper is among the handful of wrongly convicted women who have had their cases re-examined and their guilty verdicts changed without the relative luxury of such science and forensic proof.

The goal of this post is two-fold: First, I want to highlight some of the most interesting parts of Svoboda's article. Second, I want to discuss two efforts that could lead to a shrinking of the exoneration gap.

Initially, I certainly recommend that all readers check out Svoboda's article, which is a terrific read. That said, here are a few key portions that I want to highlight:

•"'The main difference with women from men in wrongful conviction cases is women are generally accused of harming someone they're close to,' says Laura Caldwell, an attorney and director of the Life After Innocence Project at Loyola University's School of Law in Chicago. 'There's a double-whammy.'"

•"[E]ven for recent decades, there's no tallying or cataloging of cases where women have been wrongfully convicted and exonerated....Some researchers, though, have analyzed the known cases of women's exonerations, which are not many but continue to increase. Just 25 women were among roughly 700 cases of known wrongful convictions in 2005 as cataloged by Northwestern University's Center for Wrongful Convictions, according to published research."

•"Wisconsin researchers Mitch Ruesink and Marvin Free examined dozens of cases of wrongly convicted women in the United States and reached several conclusions. First, the women were most often convicted for murder or child abuse. Second, while the most common reason for men's wrongful convictions was eyewitness error, the most prevalent problem for women was unethical police and prosecutors. An added cause of women's wrongful convictions was erroneous testimony from alleged child victims, a tough piece of the case for juries to overlook and acquit."

•"'If you look at the causes of wrongful conviction, they apply equally to women as they do to men. It's just, unfortunately, given the nature of DNA exonerations, women are not going to be able to be benefited by it as much,' says Peter Neufeld, co-director of the Innocence Project at Cardozo School of Law at Yeshiva University in New York. 'It's just more difficult to exonerate because we don't have DNA evidence to test.'"

So, what is being done?

Women and Innocence

As Svoboda's article notes, one effort is the new group, Women and Innocence. According to the group's website:

We began by listening to the voices raised from within the innocence movement.  There were murmurings, inquiries and calls for assistance.  There were questions asking the obvious, such as, "Why aren’t we doing this…?", "Hasn’t anyone noticed that…?", "We should have an….".  Women and Innocence began as a response to these questions.  We are representing a voice that has long existed and needed to be heard.

Our mission is to create a voice for women within the innocence movement.  We have created a forum where ideas, discussions, stories and the important truths they hold, may be shared.  Through research and promoting an ongoing dialogue we hope to bring about increased awareness of the role of women who have been wrongly convicted.

We hope to create a shift in thinking so that the valuable differences between each woman’s story may be appreciated.  For within every variance lay beauty and value and a perspective that can only be seen once its vantage point has been taken.

The group held the first Women and Innocence Conference last year (see here and here), is seeking nonprofit status, and is developing grant applications for funding. If you want more information about the group and/or want to become involved, click here.

Michigan Innocence Clinic

According to its website, the Michigan Innocence Clinic is unique among innocence clinics.

Unlike many other innocence clinics, which specialize in DNA exonerations, the Michigan Innocence Clinic focuses on innocence cases where there is no biological evidence to be tested. Under the supervision of its founders, Professors Bridget McCormack and David Moran, Innocence Clinic students work on all aspects of the cases, including investigating new evidence, preparing state post-conviction motions, conducting hearings and arguing motions in conjunction with these motions, and filing appeals to the state and federal courts. The Michigan Innocence Clinic has already exonerated several of its clients since its inception in 2009.

As noted in this excerpt, one founders of the Michigan Innocence Clinic is Bridget McCormack, who  "also serves as associate dean for clinical affairs and is a clinical professor of law. She has taught in the Michigan Clinical Law Program, focusing on criminal defense cases, criminal law, a domestic violence clinic, and a pediatric advocacy clinic." Recently, she (along with Robert Kuehn) posted Lessons from Forty Years of Interference in Law School Clinics on SSRN. The other founder is David Moran, who also "teaches courses in Criminal Law and Criminal Procedure. Professor Moran has argued five times before the United States Supreme Court. Among his most notable cases are Halbert v. Michigan, in which the Supreme Court struck down a Michigan law that denied appellate counsel to assist indigent criminal defendants who wished to challenge their sentences after pleading guilty."

Here's a pretty compelling video piece on the Clinic's representation of Dwayne Provience, which does a nice job of explaining the Clinic's goals. As Svoboda's article explains, the Clinic was able to secure a "not guilty" verdict in the case of Julie Baumer, who had severed 4 years of a sentence on a felony child abuse conviction before being given a new trial. The Baumer case was not completely anomalous in terms of the gender of the exoneree. As Svoboda notes:

With the Innocence Project and its dozens of national affiliates working on DNA cases, the University of Michigan's new Innocence Clinic is handling only non-DNA cases, and three of the first 13 clients have been women.

"We haven't made a lot of progress in translating that into cases where there is no DNA evidence and, unfortunately for women, there often isn't any," says Bridget McCormack, co-director of the University of Michigan clinic.

Still, the clinic's three cases with female clients are progressing with some successes. The Michigan Supreme Court has agreed to hear one of the women's cases — a dispute over when courts can order indigent defendants to pay child support.

In a second case, Lorinda Swain, has been granted a new trial by a Calhoun County judge, but that was overturned by the Michigan Court of Appeals and upheld by the Supreme Court. The clinic has filed a motion for reconsideration of that decision.

That Michigan Court of Appeals opinion was People v. Swain, 794 N.W.2d 92 (Mich. App. 2010), and it illustrates the difficulty with trying to exonerate women who were allegedly wrongfully convicted: They often must prove actual innocence. In the absence of DNA evidence, that's a tough hurdle to leap. That said, it is not impossible. A judge recently agreed to hear more evidence in the Swain case as the Michigan Innocence Clinic tries to get her a new trial. And while the hearing on that evidence has been delayed, there is always hope.

-CM