EvidenceProf Blog

Not Warranted?: 8th Circuit Finds No Problem With Admission Of Arrest Warrant In Civil Action

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

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

So, under Rule 803(8)B), an arrest warrant could be excluded if offered in a criminal case but not if offered in a civil case, as was the case in Moore v. City of Desloge, Mo., 2011 WL 3189357 (8th Cir. 2011).

In Moore, Jason Moore was arrested by Officer Aaron Malady, who had an arrest warrant for Moore. Moore claimed that he was wrongfully arrested and brought an action against Malady and various other defendants under 42 U.S.C. § 1983 and § 1985, alleging violations of various rights arising under the Fourth, Fifth, and Fourteenth Amendments and state civil conspiracy law. At trial,

Over Moore's objection, the district court received a document purporting to be a warrant for Moore's arrest....Moore made the following objections to the warrant's admissibility, (1) the warrant was not authenticated, (2) there was no foundation for a finding the warrant was issued upon probable cause, (3) there was no foundation the warrant was issued and outstanding on October 4, 2004, (4) the warrant was hearsay, and (5) the warrant was irrelevant because Officer Malady "never had, saw or knew the terms of the alleged arrest warrant prior to the October 9, 2004 seizure of Moore and the...police dispatcher did not offer any evidence of 'probable cause' in this proceeding."

After the court found for the defendants, Moore appealed, renewing his claim that the warrant was improperly admitted. The Eighth Circuit disagreed, concluding that

The district court did not err in admitting the warrant. The warrant is self-authenticating..., both as a public document under seal and as a public document signed by an official (judge, clerk, and sheriff). The warrant states the issuing court found probable cause for arrest and is signed by a judge. As a public record, the warrant is clearly excepted from the hearsay rule. See Fed.R.Evid. 803(8). The warrant is relevant to show the police reasonably believed there was a warrant for Moore's arrest.

My thoughts? First, the Eighth Circuit was correct to conclude that the warrant was admissible under Federal Rule of Evidence 803(8). If Moore were a criminal case, the warrant should have been excluded under Federal Rule of Evidence 803(8)(b), but Moore was a criminal case. Second, however, even if Moore were a criminal case, the warrant could have been admitted. Why? It wasn't being offered to prove the truth of the matter asserted. As the EIghth Circuit noted, "[t]he warrant [wa]s relevant to show the police reasonably believed there was a warrant for Moore's arrest." It was not being admitted to prove the truth of the statements contained in the warrant. Therefore, it was not even hearsay and did not need to meet an exception to the rule against hearsay to be admitted.

-CM

Highway Robbery?: ND Ill Makes 2 Seeming Errors In Deeming Armed Robbery Conviction Inadmissible

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under 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....

In its recent opinion in Blackwell v. Kalinowski, 2011 WL 3046320 (N.D. Ill. 2011), the the United States District Court for the Northern District of Illinois made two seeming errors in applying this Rule to a plaintiff's felony armed robbery conviction.

In Kalinowski, (1) Vincent Blackwell brought an action against Andrew Kalinowski, Pawel Ryszka, and the City of Chicago, alleging that Officers Kalinowski and Ryszka falsely arrested him and that the City of Chicago maliciously prosecuted him; and (2) Angela Ford brought a claim against the same defendants, claiming that Officers Kalinowski and Pawel Ryszka unlawfully searched her vehicle. 

After the jury found in favor of Blackwell (but against Ford), the defendants brought a motion for a new trial under Federal Rule of Civil Procedure 50. According to the defendants, the court erred by precluding them from impeaching Blackwell through evidence of his conviction for felony armed robbery in 1998. According to the United States District Court for the Northern District of Illinois,

Blackwell was convicted of felony armed robbery in 1998 and sentenced to ten years in prison. He was released on September 17, 2007, exactly one month before his arrest in this case. Defendants argue that Blackwell's 1998 robbery conviction should have been admitted under Federal Rule of Evidence 609(a)(1), which provides that a prior conviction may be used to attack the credibility of a witness if the conviction is less than ten years old and the crime was punishable by death or more than one year in prison....Under Rule 609(b), evidence of a conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction....Because Blackwell was released in September 2007, his 1998 robbery conviction meets the requirements of Rule 609. However, admission under Rule 609 is subject to Rule 403, which excludes evidence when its potential for unfair prejudice substantially outweighs its probative value....Therefore, we must balance the potential for unfair prejudice against the probative value of the evidence.

Defendants concede that Rule 609 only covers admission of the 1998 robbery conviction for purposes of attacking Blackwell's character for truthfulness. They argue that the probative value of the conviction outweighs the prejudicial effect to Blackwell because Blackwell testified extensively about his church-going habits and diligent care for his sick brother. On its own, we find that the 1998 robbery conviction is simply not probative of the truthfulness of the witness.

The first error made by the court was in holding that "Under Rule 609(b), evidence of a conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction." Not true. Federal Rule of Evidence 609(b) provides that

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

So, evidence of these older convictions is rarely admissible, but it can sometimes be admitted. The second seeming error made by the court was its curt conclusion that the robbery conviction was "simply not probative of the truthfulness of the witness." Not at all? Why? On past occasions, the Northern District of Illinois has found armed robbery convictions to be at least somewhat probative of the credibility of witnesses, see, e.g., Coles v. City of Chicago, 2005 WL 1785326 (N.D. Ill. 2005), and that is the conclusion I have seen by every other court to address the issue.

Now, that's not to say that the court's ultimate conclusion to deem the conviction inadmissible was wrong. In fact, I think that the court's ultimate conclusion was correct. I just don't get some of its reasoning.

-CM 

Say Cheese: Tenth Circuit Finds Subsequent Remedial Measure Evidence Properly Excluded For Irrelevance

Federal Rule of Evidence 407 provides that

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

But while a party can use evidence of subsequent remedial measures to impeach witnesses, it can only do so if such evidence is relevant, which was a problem for the defendant in Leprino Foods Co. v. Factory Mut. Ins. Co., 2011 WL 3134625 (10th Cir. 2011).

In Leprino, Leprino Foods Company, a Denver-based mozzarella manufacturer, customarily stored its products in third-party warehouses.

In one of these warehouses, flavoring compounds derived from nearby-stored fruit products contaminated a large quantity of cheese. Leprino's "all-risk" insurance policy with Factory Mutual Insurance Company excluded contamination unless it was caused by "other physical damage." When Factory Mutual refused coverage on the basis of the contamination exclusion, Leprino brought suit. A jury determined the contamination was caused by other physical damage and therefore covered by the insurance policy.

Factory Mutual thereafter appealed, claiming, inter alia, that the district court erred by precluding it from impeaching witnesses for Leprino through evidence of a subsequent remedial measure. According to Factory Mutual, these witnesses "claimed that the storage of cheese with high-aroma items like fruit products was 'no problem.'" Thereafter, Factory Mutual sought to impeach these witnesses through evidence that, after the contamination in 2001, Leprino revised its cold-storage guidelines. These 

guidelines show Leprino's cold-storage guidelines originally did not mention odors. A 2001 revision added a requirement that Leprino's products be stored "in an environment free of odors."...A second revision in June 2002 rephrased this requirement to "a rodent free, odor free, warehouse, way [sic] from glass products or other chemicals, materials, or agents that could taint the products." the products."

In addressing this argument, the Tenth Circuit acknowledged that evidence of subsequent remedial measures can be used to impeach witnesses, but it found that the subject evidence was irrelevant. Why? According to the court,

Leprino's witnesses did not characterize undamaged fruit products as "high-aroma" items that would be prohibited by the new guidelines. Rather, they testified the only problem with storing mozzarella near fruit products is a greater risk in the instance of "a major spill or something like that where the material was out of the packaging," but "with proper maintenance and proper guidelines, there's not a problem."...During a major spill or any other situation in which proper maintenance was not followed, the revised guidelines would reduce the risk of damage to Leprino's products. Tellingly, the revised guidelines, if implemented, would have reduced Leprino's loss in the Gress warehouse if the damaged goods were the sole source of the contamination, as Leprino claims. As a result, the new guidelines are not inconsistent with the testimony presented.

-CM

The Bullet & The Damage Done: Court Of Appeals Of Mississippi Finds No Error In Admission Of Dying Declaration Based On Nature Of Wound

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

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.

But let's say that a declarant makes a statement relatively soon before dying without being told that his death is imminent or any overt indication that he believes his death to be imminent. Can the court infer such a belief based solely on the nature of the declarant's injuries? According to the recent opinion of the Court of Appeals of Mississippi in Moore v. State, 2011 WL 3066211 (Miss.App. 2011), the answer is "yes."

In Moore, Joshua Moore was convicted of conspiracy to commit armed robbery, six counts of armed robbery, and manslaughter. The evidence adduced at trial indicated that

On the evening of March 18, 2007, Leon Andrews had approximately twelve individuals at his home to shoot dice in Columbia, Mississippi. The gamblers were in the game room, which was a separate building from Andrews's house. At approximately 10:15 p.m., two men with dark stockings over their heads burst into the game room. One of the men said "stop playing," raised a gun, and fired it. Everyone was ordered to get on the floor. The two men demanded everyone's money or they would kill someone. The gamblers put their money on or near a pool table in the room. At least two other shots were fired during the robbery. Before leaving, the two robbers forced the gamblers to remove their clothes. Once the robbers left, most of the gamblers quickly exited the game room, leaving through the window or door. At some point during the robbery, Flowers was shot; later he was pronounced dead at the hospital. Several individuals at the dice game identified the two robbers as Moore and Carlos Varnado.

Moreover, at trial, a witness testified 

that during the incident, but after several shots had been fired and everybody had gotten down on the floor, Flowers told him: "One of those boys just shot me." Defense counsel promptly moved for a mistrial because the deceased Flowers could not be cross-examined. The trial judge denied the motion.

After he was convicted, Moore appealed, claiming that Flowers' statement was improperly admitted. The Court of Appeals of Mississippi disagreed, finding that the statement qualified as a dying declaration under Mississippi Rule of Evidence 804(b)(2). According to the court, while there was no explicit evidence indicating that Moore believed his death to be imminent at the time that he made the statement,

it can be inferred from the situation that at the time Flowers made the statement to Holmes, Flowers knew of his impending death and had no hope of recovery even if he did not specifically declare it. As Dr. Hayne testified, Flowers had been shot through the heart, and the bullet was lodged in his lung cavity. He was profusely bleeding internally, and while he might not have passed away immediately after being shot, he did shortly thereafter. One of the officers that first responded to the dispatch call stated Flowers was lying on his back on the floor in the game room, and he did not appear conscious. Another officer testified that Flowers was pronounced dead upon his arrival at the hospital. We find because of the circumstances surrounding Flowers's shooting, the trial court did not err in admitting Holmes's testimony about Flowers's dying declaration.

-CM

Not Surprising: Court Of Appeals Of Ohio Reverses Conviction Based On Prosecution's Improper Impeachment Of Own Witness

Ohio Rule of Evidence 607(A) provides in relevant part that

The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.

And because the prosecution impeached its own witness through a prior inconsistent without a showing of surprise and affirmative damage in State v. Holloway, 2011 WL 2899596 (Ohio App. 8 Dist. 2011), the Court of Appeals of Ohio, Eighth District, had to reverse the defendant's conviction.

In Holloway, Reginald Holloway and Stephanie Webb were involved in multiple domestic disputes. 

The following day,...Webb went to Holloway's home and when she walked in the door, he grabbed her. Webb testified that Holloway was mad at her because he had a black eye and the detective was there the day before. After asking her why she called the police, he ordered her to look at him, and then he slapped her in the face. He then tripped her and she fell to the ground, where he continued to slap her and scratch her face. After five to fifteen minutes, she got up without any restraint, and left his house. According to Webb, she was able to leave freely and at no time did Holloway prevent her from leaving. After leaving Holloway's home, she called the police.

After Webb testified at Holloway's trial for kidnapping, intimidation, and domestic violence,

The trial court, over objection, allowed Webb to read her written statement in open court as part of her direct testimony. Her statement provided that Holloway slapped, punched, and dragged her across the room, where he then sat on her, continued to slap her, and refused to let her up. According to her statement, had Holloway's cousin not intervened, she would not have been able to leave. Further, when she was able to leave, Holloway chased her and tried to drag her down the street.

After Holloway was convicted, he appealed, claiming, inter alia, that the trial court improperly allowed for the admission of Webb's prior written statement. The State countered that it properly impeached Webb with the statement, a prior inconsistent statement, under Ohio Rule of Evidence 607(A). The Court of Appeals of Ohio, Eighth District, disagreed, concluding that 

The statement was not admissible pursuant to Evid.R. 607, because there was no showing of surprise and affirmative damage that Webb's testimony was inconsistent with her written statement. Moreover, even if Webb's testimony were considered inconsistent, the proper foundation was not made prior to her reading her statement.

-CM

D.C. Follies: D.C. Court Errs In Analysis Of (In)Admissibility Of Plaintiff's Conviction For Distributing A Controlled Substance

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under 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....

Sometimes, courts apply Rule 609(a)(1) correctly. Other times, they badly botch the analysis as was the case with the United States District Court for the District of Columbia in its recent opinion in Jennings v. Thompson, 2011 WL 2976936 (D.D.C. 2011).

In Thompson, Lolita Bobbitt

was the tenant at the premises and the plaintiff was her guest for a Labor Day cookout....On the afternoon of Monday, September 1, 2008, while at the premises, the plaintiff lowered a trash bag to the backyard below the second floor rear balcony....As he did so, the balcony's metal railing broke free and plaintiff fell to the ground approximately ten feet below....The plaintiff suffered multiple fractures to his left wrist that required surgery, and he claim[ed] to be left with a permanent and painful injury that requires additional surgery.

Approximately one month before the incident, on August 5, 2008, a D.C. Building Inspector had inspected the premises and found, inter alia, that the handrail for the balcony at the rear of the premises was not secure....The defendant claim[ed] that she hired a contractor to repair the balcony handrail prior to plaintiff's fall and expected the repair work to be completed by September 3, 2008.

After the fall, the plaintiff brought an action against the defendant, claiming that she "was negligent in allowing a dangerous condition to exist for an unreasonable period of time, without providing a warning of the danger, and that this negligence was the proximate cause of his fall." 

Before trial, the defendant brought a motion in limine "to allow the introduction of evidence of an arrest and criminal conviction of the plaintiff for distributing a controlled substance." The United States District Court for the District of Columbia, however, denied the motion, finding

that evidence of the plaintiff's August 2009 arrest and January 2011 conviction is not directly relevant to or probative of any claims at issue and that associating the plaintiff with serious drug trafficking activity would be highly prejudicial. This civil lawsuit involves a tort claim related to the plaintiff's fall from an allegedly defective balcony railing in September 2008. Since this alleged tort occurred almost a full year prior to the plaintiff's narcotics arrest and over two years prior to his conviction, the arrest and conviction are not directly probative of any issues relating to liability for the tort, especially since the defendant has made no allegation that the plaintiff was under the influence of any drugs or alcohol at the time of the fall from the balcony.

Moreover, the court rejected the defendant's citation to United States v. Ortiz, in which the Second Circuit found that the district court did not err in allowing the prosecution to impeach a defendant charged with selling cocaine through evidence of his prior conviction for selling heroin. According to the United States District Court for the District of Columbia, Ortiz was not analogous because

Ortiz involved a criminal prosecution for "distributing cocaine, possessing cocaine with intent to distribute it, and conspiring to distribute."...In that context, evidence of a prior conviction for selling heroin would plainly be more relevant than in this civil negligence action involving a fall from a balcony railing.

Simply put, the analysis of the United States District Court for the District of Columbia in Thompson is dead wrong. Jurors are supposed to use impeachment evidence as evidence that a witness is untrustworthy on the witness stand. They are not supposed to impeachment evidence as propensity character evidence, i.e., to prove, "Once a drug dealer, always a drug dealer." Thus, the similarity of the the prior conviction in Ortiz and the charges against Ortiz did not increase the probative value of the prior conviction; instead, the similarity merely made the prior conviction more prejudicial. And the dissimilarity of the plaintiff's conviction in Thompson and the nature of his lawsuit did not decrease the probative value of the conviction; instead, the dissimilarity made the conviction less prejudicial.

-CM 

Call The Police: Eastern District Of Pennsylvania Finds Testimony From Police Expert Inadmissible Under Rule 704(a)

Federal Rule of Evidence 704(a) states that

Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

But while witnesses can embrace ultimate issues in their testimony, they cannot feed ultimate legal conclusions to jurors. And this limitation was a problem for the plaintiff in the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Quagliarello v. Dewees, 2011 WL 2937396 (E.D.Pa. 2011) 

Dewees, arose 

out of an incident that occurred on the morning of January 29, 2009, when Plaintiff Julia Quagliarello ("Plaintiff"), then an 18–year–old student, was driving to Widener University...The Complaint allege[d] that Plaintiff made a left-hand turn from East 22nd Street onto Melrose Avenue and drove approximately four to six blocks when she saw a police vehicle with flashing lights behind her....Plaintiff pulled over her vehicle at the intersection of East 14th Street and Melrose Avenues....Chester Police Officer Joshua Dewees ("Officer Dewees") exited the police vehicle with gun drawn, ordered Plaintiff to get out of the car, and Plaintiff complied. Compl....Officer Dewees forcibly handcuffed Plaintiff and took her to the Chester Police Department, where she was charged with fleeing or attempting to elude a police officer and disorderly conduct, and held for three hours....Following a hearing on July 8, 2009 in the Court of Common Pleas, Delaware County, all charges against Plaintiff were withdrawn.

Quagliarello thereafter brought an action against Officer Dewees and the City of Chester, alleging violation of her Fourth Amendment right to be secure in one's person; false arrest and false imprisonment; deprivation of Fourth and Fourteenth Amendment Rights; negligent failure to train and supervise; assault and battery; malicious prosecution; and intentional infliction of emotional distress.

Before trial, the defendants brought a motion in limine, seeking to preclude Quagliarello from presenting certain opinion testimony by a police expert:

These opinions include[d] whether the police had probable cause to stop and arrest Plaintiff, whether the police used unreasonable and unnecessary force, whether Officer Dewees acted in a reasonable or necessary manner, whether the City of Chester was indifferent to Plaintiff, and whether Plaintiff's actions were a "public annoyance." 

In granting the motion, the Eastern District of Pennsylvania concluded that

Federal Rule of Evidence 704(a) provides that, in general, "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." "Rule 704 of the Federal Rules of Evidence 'provides that opinion testimony is not objectionable because it embraces an ultimate issue to be decided.'"...However, such testimony can be excluded if it is not "otherwise admissible."...As the Rules Advisory Committee explained, "[t]he abolition of the ultimate issue rule does not lower the bars so as to admit all opinions," because the expert testimony must be helpful to the trier of fact and not waste time pursuant to Rules 701, 702, and 403....Collectively these rules of evidence "afford ample assurances against the admission of opinions which would merely tell the jury what result to reach," and require the court to "exclude opinions phrased in terms of inadequately explored legal criteria."...An expert's "opinion on a question of law" is not admissible.

-CM

In Plain Sight? Colorado Court Fins Probation Records Qualify For Admission Under Public Records Exception To Hearsay Rule

Like its federal counterpart, Colorado Rule of Evidence 803(8)(B) provides an exception to the rule against hearsay

Unless the sources of information or other circumstances indicate lack of trustworthiness, [for] records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel....

So, are probation records admissible under Rule 803(8)(B) or inadmissible under its criminal case restriction? According to the recent opinion of the Colorado Court of Appeals in People v. Gregg, 2011 WL 2899622 (Colo.App. 2011), they are admissible. But was the court correct that the plain language of the Rule compels this conclusion?

In Gregg, William Allen Gregg was convicted of three counts of aggravated robbery and adjudicated as a habitual criminal. At trial to establish that Gregg was a habitual offender,

the prosecution presented the testimony of defendant's former probation officer and the documents she had received from California regarding defendant's conviction there....

The probation officer...testified that when she receives a request through the interstate compact, it includes a set of documents, which usually includes a request for supervision, a request for residence check, sentencing information from the state, presentence reports, complaints, and the court order requiring probation.

The probation officer identified the documents that she had received through the interstate compact regarding defendant's California conviction, and she testified that the probation department keeps them in the normal course of business and used them to supervise defendant's probation.

The documents included an "Order Granting Probation" from the Superior Court of California, County of Lake, filed on May 2, 2000, suspending defendant's sentence for "felony-burglary second degree" pending his completion of three years probation. The order states that the felony conviction resulted from defendant's guilty plea. The documents also included a California probation officer's report and recommendation, which identified defendant by his full name, date of birth, and Social Security number.

After he was convicted, Gregg, inter alia, appealed his adjudication as a habitual offender, claiming that the California documents were inadmissible hearsay. The Colorado Court of Appeals disagreed, first noting that "[a]s a general rule, the proponent of admitting a public record into evidence as an exception to the hearsay rule is not required to provide foundation testimony about the way in which the public record was generated or maintained" and that Gregg did "not allege that the authenticated probation order [wa]s factually inaccurate, and [that] there [wa]s no reason to believe that the source of the information, the Superior Court of Lake County, California, lacked trustworthiness or had any motive to falsify the order." Therefore, the court concluded that

the authenticated probation order is admissible under the CRE 803(8)(B) public records exception to the hearsay rule if the order sets forth matters the court observed "pursuant to duty imposed by law as to which matters there was a duty to report." "It is undisputed that sentencing a defendant is a duty imposed on the courts by law."...Under the plain language of the public records exception, the order is admissible. (emphasis added).

I have emphasized the last sentence in the court's opinion because I don't think it is correct. As noted, Colorado Rule of Evidence 803(8)(B) provides an exception to the rule against hearsay for public records

setting forth matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel....

Well, don't probation orders set forth matters observed by law enforcement personnel? Now, many courts have found that public records setting forth "routine and unambiguous matters" do not fall under the exception to Rule 803(8)(B), see, e.g., United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005), and this is seemingly what the Court of Appeals of Colorado did. But to say that the plain language of Rule 803(8)(B) allows for the admission of such records seems to me to be a misstatement of the law.

-CM

Triple Play: D.C. Court Of Appeals Reverses Murder Conviction Based Upon 3 Serious Error By Trial Court

Federal Rule of Evidence 806 provides that

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

The District of Columbia does not have codified rules of evidence, but as the recent opinion of the District of Columbia Court of Appeals in Smith v. United States, 2011 2899126 (D.C. 2011) (Download Smith v. United States), makes clear, it has adopted the Rule in case law, and the trial court's failure to adhere to the Rule led to a reversal of the defendant's conviction.

In Smith, Damon Smith was found guilty of second-degree murder while armed, possession of a firearm during a crime of violence, carrying a pistol without a license, unlawful possession of ammunition, and possession of an unregistered firearm, in connection with the March 2004 shooting death of Bradley Gant. At trial, Laura Brown, who had known both Smith and Gant since elementary school, testified, inter alia, that she

saw that Smith and Gant were "hav[ing] some words" and punching each other. Smith eventually ran away, at which point Brown noticed that Gant's shirt was wet with blood from a wound on his left hip. Brown told the jury that she went into the house to call an ambulance, and when she came back outside a few minutes later, Gant said: "[H]e cut me," meaning Smith. Smith's counsel objected on hearsay grounds to Gant's statement, but the trial court admitted it as an excited utterance. Brown also testified that she lied when she spoke to the emergency dispatchers. She told them that she "w[as] just walking past [Gant] ... [and saw] him sitting on the steps." Brown also provided an incorrect address for the location of the fight, claimed not to know what had happened to Gant, did not mention Smith, and tried to minimize her role because she did not want "to be involved in anything."

During his case, 

Smith tried to call MPD Detective McCloud, who responded to Brown's 911 call after the stabbing and questioned Gant before Gant was taken away in an ambulance. According to Smith's counsel's proffer, Gant told Detective McCloud "that he was approached by six or seven black men" and that he "ha[d] no idea who stabbed him." In response to the prosecution's hearsay objection, Smith's counsel argued that she was offering Detective McCloud's testimony to impeach Brown. The trial court held that Smith could not "use what Bradley Gant told [Detective McCloud] to impeach [Brown] because it's not [Brown's] statement you are impeaching....What impeaches [Brown] is if she says two different things or if Bradley Gant says two different things. You can't use two different people saying two different things to impeach one another." Smith's counsel later faxed to the trial court additional arguments for why Gant's statement to Detective McCloud was admissible, including that it was an exception to the hearsay rule as an excited utterance and a present sense impression. The trial court dispensed quickly with the excited utterance argument: "I don't think it's excited utterance. To me it's testimonial, you are telling the police who stabbed you. You're certainly not telling them so they won't get them. That's exactly why you are telling them, so they can be prosecuted." The trial court also rejected Smith's argument that the statement was a present sense impression: "I don't think you are offering this as [a] present sense impression. You are offering this that your man didn't do it. It was six or seven other black men that did it....[You] are trying to get it in for the truth of the matter asserted therein." Because the trial court refused to let Smith ask Detective McCloud about Gant's statement to her, the jury never heard that Gant said he "ha[d] no idea who stabbed him."

After he was convicted, Smith appealed, and the District of Columbia Court of Appeals found that the trial court committed three fundamental errors which, in addition to other errors, required reversal.

First, the trial court deemed McCloud's prospective testimony about Gant's statement inadmissible because it was "testimonial," i.e., because it violated the Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington. But as the District of Columbia Court of Appeals correctly noted, the Confrontation Clause only applies to statements introduced against an accused, not statements introduced by an accused, meaning that the trial court erred.

Second, the trial court found that McCloud's prospective testimony about Gant's statement was inadmissible because Smith was offering it to prove the truth of the matter asserted. Again, the District of Columbia Court of Appeals correctly concluded that this merely meant that Gant's statement was hearsay, not that it failed the test to qualify as a present sense impression, and exception to the rule against hearsay.

Third, the trial court found that McCloud's prospective testimony about Gant's statement was inadmissible to "impeach" Gant. The District of Columbia Court of Appeals correctly held that

If Gant had been alive to testify at trial that Smith stabbed him, Detective McCloud's testimony certainly would have been admissible to impeach him....Gant did not testify, of course, but once the trial court admitted his earlier statement to Brown, Gant became "in essence, [a] witness[ ], and should [have] be[en] treated as such for credibility purposes."....According to Federal Rule of Evidence 806, an out-of-court declarant's "'credibility should in fairness be subject to impeachment and support as though he had in fact testified.'"..."While this jurisdiction has not adopted the Federal Rules of Evidence, this court will look to those rules for guidance,"...and we hold that the trial court erred by refusing to permit Smith to use Detective McCloud's testimony to impeach Gant.

-CM 

Total Recall: 7th Circuit Finds No Problem With Introducing Prior ID After Declarant Testifies

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

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

But does the statement of identification have to be introduced contemporaneous with the declarant's testimony, or can it be introduced later as long as the opposing party is allowed to recall the declarant as a witness? According to the recent opinion of the Seventh Circuit in United States v. Foster, 2011 WL 2909455 (7th Cir. 2011), contemporaneity is not required.

In Foster, Napoleon Foster was found guilty of orchestrating an armed robbery of a Acme Continental Credit Union and related firearms charges. At trial, the prosecution introduced

a photographic array admitted as proof that Foster owned the black Cadillac used in the Acme robbery and that Foster was with [an accomplice] on the day of the robbery. At trial, Daniel Kotlajich testified that he had sold a black Cadillac to Foster in October 2005. He identified the bill of sale and vehicle title that Foster had signed in that sale. Kotlajich also testified that Foster had accompanied [the accomplice] when she purchased a black Olds-mobile from Kotlajich on the day of the Acme robbery.

That said,

Kotlajich could not identify Foster at trial. Kotlajich did say, however, that when previously shown a photographic array, he was able to identify the man who had purchased the black Cadillac and who had accompanied [the accomplice] when she purchased the black Oldsmobile. He testified that he had initialed the photo of the man he identified in that array.

After, calling Kotlajich,

The government later called FBI Special Agent Lori Warren, who testified that she had spoken to Kotlajich and shown him a photo array that included a photo of Foster. According to Agent Warren, Kotlajich had identified and initialed Foster's photo in that array. The government then offered the photo array into evidence. Foster objected on the ground that he had not been able to cross-examine Kotlajich regarding that array. The district court agreed that Foster had not been given sufficient opportunity to cross-examine Kotlajich about the photo array, but overruled that objection after granting Foster the opportunity to recall and cross-examine Kotlajich during his case-in-chief. Foster never took advantage of that opportunity to recall Kotlajich, however, and rested his case without calling any witnesses in his defense.

After he was convicted, Foster appealed, claiming, inter alia, that "he was denied an opportunity to cross-examine a witness who identified him in a photographic array." The Seventh Circuit disagreed, holding that

The better course, obviously, is to provide the photo array or other evidence of the prior identification immediately, while the declarant is still on the witness stand. But events at trial sometimes make the better course impractical. In such circumstances, a meaningful opportunity to cross-examine a declarant regarding his prior identification is enough to satisfy the requirements of Rule 801, even if the defendant chooses not to use the opportunity....The district court provided Foster such a meaningful opportunity to cross-examine Kotlajich when it granted Foster permission to recall Kotlajich as a witness to pursue this matter further.

-CM

A Shock To The System: TN Court Finds No Problem With Admission Of Excited Utterance Following Subsequent Startling Event

Like its federal counterpart, Tennessee Rule of Evidence 803(2) provides an exception to the rule against hearsay for 

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

So, let's say that a child is allegedly sexually abused, and the next day her mother tells her to urinate before taking a bath. Instead of complying, the child cries and screams out that she was sexually abused by her uncle. Does this qualify as an excited utterance under Rule 803(2)? According to the Court of Criminal Appeals of Tennessee in its recent opinion in State v. Taylor, 2011 WL 2767032 (Tenn.Crim.App. 2011), the answer is "yes."

In Taylor, the facts were at stated above.  The mother testified that after she told her child to urinate before taking a bath,

She started screaming. I mean, she was crying. Tears were just rolling down her face crying, no Nana, no. Don't wash my goose. Don't touch my goose, Nana. She said, ow. She said he lost his ring in it and he put a hole in my goose. And I went, what? She said, he couldn't find his ring, Nana, so he stuck his finger up my butt. I said, what do you mean? She said, Uncle Al. She said, he put his ring up in my goose and then he put his finger in and couldn't find it so then he put his finger up my butt.

After he was convicted, the uncle appealed, claiming that the child's statement was inadmissible hearsay and did not qualify as an excited utterance. The Court of Criminal Appeals of Tennessee disagreed, concluding that

In this case, the trial court concluded that the victim's statement to Ms. Tate implicating the defendant met the requirements for admission because the victim made it while still experiencing physical pain caused by the defendant's digitally penetrating her.

The record supports the ruling of the trial court. The victim's statement to her grandmother came about as a spontaneous reaction to her physical pain and the fear of the pain she might experience in the bath. The statement clearly relates to a startling event, the defendant's placing his finger in the victim's vagina, because it explains the genesis of the pain in her genital area. Despite the temporal distance between the event and the statement, the continued pain caused by the offense clearly placed the victim under stress at the time she made her revelation. Moreover, the victim's age militates against any finding of fabrication and supports a finding of spontaneity. Accordingly, based upon a de novo application of the law to the factual findings of the trial court, we conclude that the trial court did not err by admitting the victim's hearsay statement.

I agree, but not just based upon the age of the child and her continuing pain. A parent could attack a child, and the child could still feel the pain of her bruises a week later, but I don't think that anyone would say that a statement made at that point could qualify as an excited utterance. I'm not even sure that a statement the day after a sexual assault could qualify as an excited utterance, unless there were a subsequent startling occurrence. But there was such an occurrence as the child in Taylor was told to urinate and made her statement while facing the prospect of new pain. And, as I noted in my article, A Shock to the System:  Analyzing the Conflict Among Courts Over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 WM. & MARY J. WOMEN & L. 49 (2005), such statements should qualify as excited utterances.

-CM

Polly Wants A New Trial: DDC Seemingly Errs Badly In Finding Harmless Error In Connection With Rule 703 Ruling

Federal Rule of Evidence 703 provides 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. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

So, let's assume that the plaintiff's expert relies upon an inadmissible report to offer opinion testimony at trial. And, assume that the court improperly allows the plaintiff to "parrot" the report's conclusions to the jury. Also, assume that the report is really good. So good, in fact, that the defendant's expert endorses the report. That has to be reversible error, right? Not according to the recent opinion of the United States District Court for the District of Columbia in Huthnance v. District of Columbia, 2011 WL 2836363 (D.D.C. 2011).

In Huthnance, 

Officers Acebal and Antonio arrested [Lindsay] Huthnance on November 16, 2005 for disorderly conduct, loud and boisterous. Huthnance claims that she was a victim of "contempt of cop," meaning the officers didn't have probable cause to believe she had committed any crime and instead arrested her merely because she had criticized the police. After her arrest, officers transported her to the station and locked her in a cell while her arrest was processed. She resolved her arrest through the District's "post and forfeiture" procedure, meaning she posted $25 collateral and was released from custody several hours later. After posting and forfeiting, no criminal charges were ever brought against Huthnance, so no one ever reviewed her arrest. As a result of her arrest, Huthnance spent several hours in jail, paid $25 to secure her release, claims she experienced mental anguish, fear, and humiliation, and was saddled with a permanent arrest record she claims she didn't deserve.

Huthnance filed suit against Officers Acebal and Antonio and the district of Columbia asserting claims of false imprisonment, intentional infliction of emotional distress, assault and battery, violations of her constitutional First, Fourth, Fifth, and Eighth Amendment rights, and violations of the Code of the District of Columbia, arising from her arrest and detention on November 15th and 16th, 2005. 

At trial, the plaintiff's expert witness offered opinion testimony that the District was on constructive notice of problems with arrests in part based upon an inadmissible "study performed by Dr. James Ginger that found over 34% of disorderly conduct arrest reports from the first six months of 2005 failed to state probable cause for arrest." Thereafter, the defendant's expert endorsed Dr. Ginger's report.

After the jury found for Huthance, defense counsel then timely renewed a prior Rule 50 motion and moved in the alternative for a new trial and remittitur. According to defense counsel, the district court improperly allowed the plaintiff's expert to "parrot" Dr. Ginger's conclusions such that it was as if the plaintiff were admitting the report into evidence under Federal Rule of Evidence 703. But according to the United States District Court for the District of Columbia,

it is abundantly clear that—in this case—even if allowing reliance on Ginger's report was error, it was harmless. Federal Rule of Evidence 703 permits a testifying expert to rely on reports prepared by others for the specific purpose of providing a basis for the testifying expert's opinions as long as they are "of a type reasonably relied upon by experts in the particular field." Both experts testified that Ginger's report is of a type reasonably relied upon by experts in the field....Moreover, to the extent that the testifying experts "parroted" Ginger's conclusions, nothing prevented counsel from challenging those conclusions by cross-examining the parroting expert witness. True, that would have been difficult for defendants in light of the fact that their own expert endorsed Dr. Ginger's report, but that only shows that the defendants weren't at all prejudiced by the inclusion of this testimony. In short, the parties' reliance on the Ginger report simply doesn't require a new trial.

What!? Assume that a defendant is charged with murder, and the prosecution has a DNA report or fingerprint report prepared by a non-testifying expert, making the report inadmissible. And assume that a prosecution expert offers opinion testimony that the defendant killed the victim and improperly "parrots" the conclusions of the analyst who prepared the report to the jury. Finally, assume that there's nothing facially wrong with the report. Everything about it looks kosher. So, the defense expert adopts the report. What else can he do? Defense counsel has not been able to cross-examine the analyst who prepared the report regarding his credentials or how the report was created.

According to the United States District Court for the District of Columbia in both this hypothetical case and Huthnance, the "parroting" of such a report does not prejudice the defendant at all because the defense expert adopts the report. But doesn't it prove the exact opposite? Doesn't it prove that the report was (extremely) prejudicial because, without the analyst to cross-examine, defense counsel could not attack the reliability/validity of the report? I'm baffled by the court's conclusion.

-CM

Character Of The Matter: 8th Circuit Case Reveals Rule 405(a) Limitation On Rule 404(a)(2) Evidence

Back on Sunday, I posted an entry about how defendants seeking to present good character evidence about themselves under the "mercy rule" of Federal Rule of Evidence 404(a)(1) can only present reputation and/or opinion testimony under Federal Rule of Evidence 405(a) unless character is an essential element of his defense. As the recent opinion of the Eighth Circuit in United States v. Drapeau, 2011 WL 2652317 (8th Cir. 2011), makes clear, the same principle applies when defendant seek to present bad character evidence about victims under the "mercy rule" of Federal Rule of Evidence 404(a)(2).

In Drapeau, Harold Drapeau, Jr., was convicted of assaulting, resisting, or impeding a federal officer resulting in bodily injury based upon an attack against Bureau of Indian Affairs Officer Marlin Robert Mousseau, Jr. At trial, Drapeau sought to present into evidence

seven tribal resolutions and an unsigned memo to United States Senator John Thune. The first resolution was written by the Nebraska Winnebago Tribe in 2005, describing Mousseau's misconduct and requesting his permanent removal as a police officer from the Winnebago Law Enforcement Services Department. Thereafter, Mousseau transferred to the Crow Creek BIA duty station, whereupon the Crow Creek Sioux Tribal Council adopted the other six resolutions and memo in response to numerous complaints against Mousseau and requested his removal from the Crow Creek Sioux Indian Reservation. In the memo to Senator Thune, a Crow Creek Sioux Tribe civil rights group requested an internal investigation of Mousseau and the police department. During the pretrial conference, the district court preliminarily denied the 2005 Winnebago resolution based on relevancy and hearsay and the last two Crow Creek resolutions because they postdated the incident, and stated that the remaining four resolutions might become admissible if Drapeau testified that he was aware of them.

The district court deemed this evidence inadmissible, and the Eight Circuit agreed with this decision on appeal. The Eighth Circuit acknowledged that Drapeau could present bad character evidence about Mousseau pursuant to Federal Rule of Evidence 404(a)(2), which provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except...[i]n a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor....

But the problem for Deapeau was that Federal Rule of Evidence 405(a) only allows for the admission of reputation and/or opinion testimony, and "the tribal resolutions and memo were not in the form of witness testimony...." Moreover, Mousseau's character was not an essential element of Drapeau's defense, meaning that the evidence was not admissible under Federal Rule of Evidence 405(b), and the evidence established that Drapeau had no prior knowledge of the acts references in the resolution and memo before the subject assault.

-CM

Attention, Wal-Mart Shoppers: Court Of Appeals Of Texas Seemingly Botches Best Evidence Analysis

Like its federal counterpart, Texas Rule 1002, Texas' Best Evidence Rule, provides tha

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

But, like its federal counterpart, Texas Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

In its recent opinion in Massey v. State, 2011 WL 2698608 (Tex.App.-Dallas 2011), the Court of Appeals of Texas, found that a videotape cobbled together from numerous surveillance cameras at Wal–Mart was properly admitted under Rule 1003, but was this the correct decision?

In Massey, the evidence presented at trial revealed that Randall Massey

went to a Wal–Mart store in Murphy, Texas and filled his shopping cart with items valued at $186.90. [Massey] attracted the attention of the store's loss prevention officer, Wayman Gilley, because he was stacking items in his cart in a "fort style," by placing large bulk around the edges of the cart and placing smaller items in the center. Gilley watched Massey in the produce area at the front of the store. Two store employees were nearby. When the employees left the area, Massey pushed his basket out the door passed [sic] the last point of sale. Gilley then stopped Massey, who explained that a store associate told him that drink vending machines were located outside and he had gone out the doors with his cart to buy a drink. Gilley, however, testified several drink machines were located inside the store, specifically around the cashiers' lanes at the front of the store. Gilley also said shoppers regularly drank beverages they picked up inside the store and then paid for at checkout.

Gilley called the police and told Massey that if he paid for the items in the cart, Wal–Mart would only press charges against him for criminal trespass, not theft. Massey attempted to pay for the items with a corporate credit card, but the card was rejected at the register. Wal–Mart refused to accept a check linked to the same account as the corporate card. Massey told the police he did not have any money. When they arrested him for theft, they found $11 in cash and at least seven credit cards in his wallet. After hearing all the evidence, the jury convicted [Massey] of theft.

At trial, the prosecution also introduced

a videotape put together by Gilley from Wal–Mart's numerous surveillance cameras. Gilley testified Wal–Mart used a "multiplexer" surveillance system, which recorded video from cameras throughout the store. Gilley said the store had four videocassette recorders; on each VCR was a "multiplex," and each multiplex had sixteen camera angles. To get a useable tape, Gilley explained he had to "dub" from the multiplexer system to a regular videotape by selecting the particular cameras and times to be dubbed....

The seven-minute tape dubbed by Gilley depicted [Massey] in the produce area before walking out the doors with a cart of groceries and coming back into the store with Gilley. Gilley said the tape is "boiled down" to angles relevant to the case. 

After he was convicted, Massey appealed, claiming, inter alia, that

the trial court abused its discretion in admitting the video, over objection, because it was "an incomplete video of the time he was in the store." He assert[ed] the video does not portray his "contact or possible conversation" with a Wal–Mart employee in the produce section shortly before he left the store. He contends this "absence of critical evidence" raises a question about the authenticity of the video. As support for his argument, he relie[d] solely upon Texas Rule of Evidence 1003.

The Court of Appeals of Texas disagreed, concluding that

Rule 1003 authorizes the use of copies to the same extent as an original unless one questions the authenticity of the original or demonstrates it would be unfair to admit the duplicate....Here, [Massey] is not complaining about the authenticity of the original recording; he is complaining that the videotape admitted has been "edited" from its original content. Thus, rule 1003 does not apply. The evidence at trial showed that the only videotape in the State's possession was the one shown at trial; the original recording was in Wal–Mart's possession. The record does not show appellant made any effort to obtain the original recording from Wal–Mart. Under these circumstances, we cannot say [Massey] has shown any error in the admission of the videotape. See TEX.R.EVID. 106 (providing that where only a portion of a recording is admitted, the other party may introduce "any other part...which ought in fairness to be considered contemporaneously with it").

Now, the Court of Appeals of Texas was certainly correct that Texas Rule of Evidence 1003(1) did not apply. But what about Texas Rule of Evidence 1003(2)? As noted in Colin Miller, Even Better than the Real Thing: How Courts Have Been Anything But Liberal in Finding Genuine Questions Raised as to the Authenticity of Originals Under Rule 1003, 68 Md. L. Rev. 160, 172 (2008),

The exception contained in subsection (2) of Rule 1003 applies where only part of an original document or recording is reproduced in a duplicate, and the remainder is needed for some purpose, such as cross-examination. Courts have consistently found that the exception contained in Rule 1003(2) applies when duplicates fail to fully reproduce important or critical parts of an original document or recording.  

Isn't this exactly what Massey was claiming? His argument was that he went outside because a store associate told him that the drink vending machines were located outside and that the original surveillance videos would have shown this interaction. Now, I admit that (the Court of Appeals' characterization of) Massey's argument under Texas Rule of Evidence 1003 was unclear, but it seems clear to me that Massey raised a viable claim that the court unfairly turned aside.

-CM

Not Too Helpful: Fourth Circuit Finds Character Evidence Regarding Helpfulness Was Properly Excluded

Federal Rule of Evidence 404(a)(1) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except...[i]n a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution....

Meanwhile, Federal Rule of Evidence 405 provides that

(a) Reputation or opinion.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

What this means is that while a criminal defendant can use Rule 404(a)(1)'s "mercy rule" to present evidence of a pertinent character trait, he can only prove that trait through opinion and/or reputation testimony unless that trait is an essential element of the charge against him or his defense. And this limitation was a problem for the defendant in United States v. Lecco, 2011 WL 2708416 (4th Cir. 2011).

In Lecco, George Lecco was convicted of one count of conspiracy to distribute cocaine; one count of use of a firearm in furtherance of drug trafficking; two counts of possessing a firearm as a convicted felon; four counts of distribution of cocaine; one count of murder with a firearm during a cocaine conspiracy; one count of witness tampering by killing; one count of witness retaliation by killing; and one count of conspiracy to destroy and conceal evidence. These convictions arose from Lecco's alleged "cocaine distribution and hiring of Patricia Burton and Valeri Friend to murder Carla Collins in retaliation for her telling police that Lecco continued to deal cocaine and carry firearms after agreeing to assist police in their drug investigation."

After he was convicted, Lecco appealed, claiming, inter alia, "that the district court abused its discretion when it excluded evidence of his helpfulness." Specifically, Lecco sought to introduce evidence that he had helped people in his community on several occasions in an attempt to show that he only helped his friends bury Collins after the murder." 

The Fourth Circuit did not even need to address the seeming irrelevance of this evidence because Lecco's character for helpfulness was not an essential element of his defense, i.e., the jury still could have accepted his defense without the evidence. An example of such a case would be a case in which a defendant-blogger called the plaintiff an adulterer and the plaintiff sued the defendant for a defamation. In such a case, the plaintiff's (character for) adultery would be an essential element of the defendant's truth defense because he could not prove the defense without proving that the plaintiff was an adulterer. Conversely, Lecco's character for helpfulness was not an essential element of his defense, which meant that he could only present reputation and/or opinion testimony and not specific act evidence.

-CM

No Shit!: Court Of Appeals Of Iowa Implies Statement, "I Got You WIth Shit" Was Not An Admission Of Feces Throwing

During a road trip this week, my wife and I got into a discussion of why the word "shit" is a curse word (I don't remember what prompted the discussion). Why is "shit" a curse word, "crap" a quasi-curse word, and "poo" not a curse word? And why do we use certain animal feces in expressions? Why is something that is nonsense "bullshit" or "horseshit" and not "catshit?" I guess that calling someone "batshit crazy" makes sense because batshit -- guano -- really can make someone crazy. And calling a wimpy person "chickenshit" also makes sense because we also call wimpy people "chicken."

One consequence of using the word "shit" as a profanity is that we don't always know whether a person using the term is cursing or actually referring to feces. Or, at least that was the belief of the Court of Appeals of Iowa in its recent opinion in State v. Landis, 2011 WL 2694717 (Iowa.App. 2011). 

In Landis,

Steven Landis was an inmate....As correctional officer Raleigh Helmick reached down to retrieve a breakfast tray from the food portal of Landis's solitary confinement cell, Landis reached out his hand and squirted Helmick with a stream of brown liquid that smelled like human feces....Helmick immediately dropped the food tray and Landis dropped a toothpaste tube containing a brown substance. Landis started yelling, "I got you with shit." The brown substance soaked through Helmick's uniform shirt onto his t-shirt. He went downstairs to the kitchen area to clean up, and his soiled clothing was given to a supervisor. Throughout the rest of the day Landis told Helmick several times that it was "shit" in the toothpaste tube.

Landis was subsequently charged with assaulting Helmick with feces in violation of Iowa Code section 708.3B  (inmate assault—bodily fluids or secretions). At trial,

Helmick testified the substance Landis sprayed him with "had a terrible odor, smelled like feces, was liquid and brown." Asked how he knew the substance was feces, Landis testified over objection that "[t]he odor, the texture, the color all led me to believe the fact that it was feces, the fact that in the past I have been around other staff who have been hit." He further testified the substance "was mostly liquid, but there were solid pieces in it."...Correctional Officer Kevin Koechle witnessed the assault by Landis. He testified: "Officer Helmick opened the flap, the food flap, the tray came flying out, and right after that Officer Helmick was covered in feces." Asked how he knew it was feces, Koechle responded: "It was a brown substance with a very strong smell of feces." He further testified he heard Landis say "I got you, Helmick. I threw shit on you." Randy VanWye, an investigator at the penitentiary, went to the scene of the assault and took possession of the toothpaste tube. There was still some liquid, semi-solid substance in it. He placed the tube in a paper bag. The tube drained itself into the bag in the evidence locker. VanWye said the contents of the tube had a "very, very disagreeable, very foul odor that was very noticeable of feces."VanWye observed that Helmick's soiled clothing had a "very, very disagreeable odor of feces." Photographs of the toothpaste tube, which is made of clear plastic, depict the tube containing a brown substance. The photograph of Helmick's white tshirt shows it covered in a brown substance.

Landis later moved for a judgment of acquittal, arguing "that with no testing and no expert testimony to establish the brown substance was feces, the jury would be left to speculation and conjecture with regard to an element of the crime, that is, whether the substance was in fact feces." The trial court denied the motion, Landis was convicted, and the Court of Appeals of Iowa affirmed, finding that

The jurors certainly were capable of comprehending the primary facts and of drawing correct conclusions from them. Indeed, it would be a rare person who had no personal experience with feces. We do not believe the identification of feces falls solely within the domain of expert testimony. Upon submission of the evidence, the jury was to decide whether the State had proved the elements of the crime charged and could use their common sense and daily experiences in determining whether the brown substance was feces....Paraphrase of an old adage seems apropos under the circumstances: If it looks like feces, if it smells like feces, if it has the color and texture of feces, then it must be feces. No witness with a degree in scatology was required, nor was scientific testing required to establish the fact the substance was feces. 

I think that it is clear that this was the correct conclusion, but I find the court's later treatment of another claim by Landis to be odd. After reaching this conclusion, the court acknowledged Landis' claim that "his use of the word 'shit' in reference to the streamer that hit Helmick was not an admission the brown substance was in fact feces and could not therefore support his conviction." The court actually agreed with this argument, holding that

Although a reasonable juror could infer Landis's use of the word referred to feces, we agree Landis's statements, standing alone, would not constitute an admission sufficient to support his conviction.[FN1]

[FN1] “Shit” is defined as excrement. Webster's Third New Int'l Dictionary 2098 (1993). But, the word has also been defined as nonsense, foolishness, something of little value, trivial and usually boastful or inaccurate talk, and a contemptible person. Id. This now ubiquitous word has acquired numerous popular usages apart from its literal meaning. It has been used to describe people, places, and things and to express a wide variety of emotions such as disappointment, disgust, despair, resignation, amazement, awe, shock, anger, and surprise.

The court then gave a laundry list of examples, which you can find in the court's opinion. That said, the court still upheld the conviction, concluding that

While Landis's use of the word "shit" is certainly not dispositive of the issue of the composition of the brown substance he squirted on Helmick, the officers' description of the brown substance, along with their lay opinions the substance was feces, supplied substantial evidence to support Landis's conviction.

Again, I agree with the court's ultimate conclusion, but I am troubled by the court's seeming suggestion that it would of reversed had the officers not described the substance and/or offered opinion testimony that the substance was feces. Landis yelled, "I got you with shit" and later said several times that it was "shit" in the toothpaste. Sure, Landis could have been using the word "shit" in the non-literal sense to refer to something other than feces, but I think that his use of the word was certainly sufficient for a reasonable jury to find that he assaulted Helmick with bodily fluids or secretions.

(Hat tip to Dan Blinka for the link)

-CM

Express Yourself: Massachusetts Appeals Court Finds Bruton Doctrine Inapplicable To Witness Intimidation

Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. Thus, if Carl and Dan are charged with bank robbery and jointly tried before a jury, the prosecution could not introduce Carl's statement that "Dan and I robbed the bank" unless Carl testifies at trial. Conversely, if Carl's confession was that "someone and I robbed the bank," the prosecution could introduce it because it would not have facially incriminated Dan. But what if Carl's statement were a threat to a prospective witness against Carl and Dan that testimony would leave her vulnerable to 'deal with Dan's cousins and that she could end up dead? According to the recent opinion of the Massachusetts Appeals Court in Commonwealth v. Teixeira, 2011 WL 2610557 (Mass.App. 2011), such a statement is not facially incriminatory. I disagree.

In Teixera, the facts were as stated above, with Franco Dossantos and Antonio Teixera being jointly tried before a jury on charges of armed robbery, assault and battery by means of a dangerous weapon, and unlawful possession of a firearm. Dossantos did not testify at trial, and the prosecution had a witness for the prosecution testify "that Dossantos threatened her that testifying would leave her vulnerable to 'deal with [the defendant's] cousins and that [she] could end up dead.'"

After he was convicted, Teixera appealed, claiming, inter alia, that "he was denied effective assistance of counsel because his attorney never sought to sever his case from that of Dossantos following" this testimony. But, according to the Massachusetts Appeals Court, 

"When a codefendant's statement does not expressly implicate the defendant but becomes inculpatory 'when linked with other evidence adduced at trial, generally a limiting instruction is sufficient to cure a violation of the defendant's confrontation rights.'"

And, according to the court,

We do not agree that Dossantos's extrajudicial statement "expressly implicated" the defendant. The statement referred not to the criminal activity for which the defendant and Dossantos were being tried, but to a potential witness's involvement in the trial. The defendant was not present when Dossantos made the statement, and it concerns not what the defendant did or might do, only potential future action by members of his extended family. Even acknowledging that the defendant was present, though silent, at the subsequent encounter [the witness] described, the statement is only inculpatory through "a series of inferences, none of which 'a jury ordinarily could make immediately, even were the [statement] the very first item introduced at trial.'"

I disagree. First, I think that it is completely irrelevant that Dossantos' statement did not refer to the crimes charged. There is no question that if Dossantos told the prospective witness that testifying would leave her vulnerable to deal with the defendant/Teixera, the statement would have expressly implicated Teixera and violated the Bruton doctrine.

Second, I don't think that the analysis changed because Dossantos' said that the prospective witness would have to deal with Teixera's cousin rather than Teixera himself. As is clear from the above block quote, the Bruton doctrine doesn't apply when the co-defendant's statement by itself leaves the jury with too much work to do. In the example from the introduction, when Carl says, "Someone and I robbed the bank," jurors would need to make a series of inferences to link the "Someone" to Dan. Maybe another witness testifies that he saw Carl and Dan walking to the bank. Maybe there's a surveillance video, and one of the robbers in the video fits the characteristics of Dan. But Carl' statement alone wouldn't automatically lead jurors to the conclusion that Dan was the other bank robber despite the fact that Dan is the other defendant (or so the theory goes).

But what are jurors supposed to think when Dossantos and Teixera are tried together and a prospective witness testifies that Dossantos told her she would have to deal with Teixera's cousins if she testified? Of course jurors would immediately make the necessary inference(s) to conclude that Teixera was involved in the crimes charged. I guess the court might technically be correct that the statement did not literally facially incriminate Teixera, but such a conclusion seems like empty formalism to me.

-CM 

Maintaining Consistency: Court Of Appeals Of Minnesota Finds "Reasonably Consistent" Prior Statement Qualifies As Prior Consistent Statement

Minnesota Rule of Evidence 801(d)(1)(B) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness....

But does a prior statement have to be essentially the same as the declarant's testimony to qualify as a prior consistent statement, or can there be (minor) discrepancies? According to the recent opinion of the Court of Appeals of Minnesota in State v. Standifer, 2011 WL 2672025 (Minn.App. 2011), the statements can differ as long as they are "reasonably consistent."

In Standifer, Pen Dwaine Standifer was charged with three counts of criminal sexual conduct in February 2009 based on allegations that he sexually abused his foster child, A.R.F. At trial, A.R.F. testified concerning this sexual abuse, and Susan Carstens, a juvenile specialist from the Crystal Police Department, later testified about her interview with A.R.F. after the assault.

After he was convicted, Standifer appealed, claiming, inter alia, that the trial court erred in admitting Carstens' testimony under Rule 801(d)(1)(B) because A.R.F.'s statements to her were inconsistent with A.R.F.'s testimony at trial. Specifically, he claimed that

A.R.F.'s prior statements included some additional facts about what occurred before the abuse that made A.R.F. uncomfortable. For example, Carstens testified that A.R.F. told her that appellant had guns all over the house; but at trial, A.R.F. testified only that he was afraid that appellant had a gun in his hand during the abuse.

But according to the Court of Appeals of Minnesota, a prior statement is "consistent" with trial testimony for Rule 801(d)(1)(B) purposes as long as it is "reasonably consistent" with the witness' trial testimony. Conversely, a prior statement is not "consistent for Rule 801(d)(1)(B) purposes when additional or different facts in the prior statement affect the elements of the offense or add inflammatory information. Concluding that the additional/different facts in A.R.F.'s statement to Carstens did neither of these things, the Court of Appeals of Minnesota affirmed.

(It is also interesting to note that Minnesota allows for the admission of prior consistent statements as long as they are helpful to the trier of fact while Federal Rule of Evidence 801(d)(1)(B) only allows for their admission when "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....")

-CM

Passive Aggressive?: Court Of Appeals Of Utah Finds Invited Errors Doctrine Precludes Rule 609(d) Appeal

Like its federal counterpart, Utah Rule of Evidence 609(d) provides that

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

As the recent opinion of the Court of Appeals of Utah in State, ex rel. P.N., 2011 WL 2670451 (Utah.App. 2011), makes clear, however, the proscriptive language of Rule 609(d) does not matter if the invited error doctrine applies.

In P.N., P.N. appealed from his adjudication of two counts of aggravated robbery and two counts of aggravated assault with a weapon or force. At trial,

During cross-examination of P.N., the prosecutor inquired about P.N.'s criminal history, and P.N. admitted to having "a history," whereafter defense counsel objected to the admittance of evidence pertaining to P.N.'s previous felony. In this case, the juvenile court judge was also the judge in the prior adjudication. The court informed defense counsel of this. Defense counsel, upon learning of the situation, did not request a recusal under section 63(b) of the Utah Rules of Civil Procedure. Instead, counsel affirmatively waived his objections to the admission of the prior adjudication evidence when he stated he would "[l]et that go because I think Your Honor has a memory and can't expunge that."

After his adjudication, P.N. appealed, claiming that the trial judge erred under Utah Rule of Evidence 609(d) by allowing for the admission of evidence of his previous felony. The Court of Appeals of Utah disagreed, finding that

When defense counsel's actions amount to an active, as opposed to a passive waiver of an objection, we may decline to consider the claimed error even if the error equates to plain error....A court may infer from the record whether defense counsel affirmatively waived the objection....Defense counsel's statement, in the case at hand, clearly demonstrates a decision to relinquish the objection to the prior adjudication evidence. As such, we do not consider this issue.

I kind of see the point of the Court of Appeals of Utah, but I kind of don't. The invited error doctrine makes sense because a party cannot create an evidentiary error and then complain about that error on appeal. But here, defense counsel initially objected to the admission of evidence of P.N.'s prior felony. It was then only after the trial judge informed defense counsel of his history with P.N. that defense counsel withdrew the objection. 

Thus, defense counsel did not really invite the error. He did not introduce the evidence himself, and he initially objected to the admission of the evidence. I would regard defense counsel's behavior as more passive than active.

-CM

Tried And Prejudice: Supreme Court Of Connecticut Finds Presumed Prejudice When Prosector Invades A-C Privilege

A prosecutor invades a defendant's attorney-client privilege by reading privileged materials containing trial strategy. Even assuming that the invasion was not intentional, should the court presume prejudice? And assuming that the court does presume prejudice, should there be a presumption in favor of dismissal? According to the recent opinion of the Supreme Court of Connecticut in State v. Lenarz, 2011 WL 2638158 (Conn. 2011), the answer to both questions is "yes."

In Lenarz, Patrick Lenarz

was charged in two informations, each alleging two counts of risk of injury to a child and one count of sexual assault in the fourth degree, in connection with the defendant's alleged conduct toward two children at a karate school in the town of Granby, where the defendant was an instructor....

Police later conducted a search of Lenarz's residence pursuant to a search warrant, and 

The next day, at the defendant's arraignment, defense counsel advised the trial court...that certain materials in the computer were subject to the attorney-client privilege and asked the court to fashion orders to protect the defendant's rights. The court ordered that "any communications from [defense counsel] to [the defendant] or from [the defendant] to [defense counsel] remain unpublished [and] unread." 

Thereafter,

During its examination of the defendant's computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant's trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received from the Simsbury police department.

Defense counsel then moved to dismiss the information, but the trial court ultimately denied the motions, and Lenarz convicted of risk of injury to a child. Lenarz's appeal eventually reached the Supreme Court of Connecticut, which held three things. According to the court,

we conclude generally that prejudice may be presumed when the prosecutor has invaded the attorney-client privilege by reading privileged materials containing trial strategy, regardless of whether the invasion of the attorney-client privilege was intentional. We further conclude that the state may rebut that presumption by clear and convincing evidence. Finally, we conclude that, when a prosecutor has intruded into privileged communications containing a defendant's trial strategy and the state has failed to rebut the presumption of prejudice, the court, sua sponte, must immediately provide appropriate relief to prevent prejudice to the defendant.

In reaching this conclusion, the court agreed with "[a] number of courts have held that, when the privileged communication contains details of the defendant's trial strategy, the defendant is not required to prove he was prejudiced by the governmental intrusion, but prejudice may be presumed." The court specifically held that

because the disclosure of such information is inherently prejudicial, prejudice should be presumed, regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on that question. 

And while the court acknowledged that the State could rebut this presumption, it concluded that

In the present case, even a cursory review of the materials reveals that the defendant was presumptively prejudiced by the prosecutor's intrusion into the privileged communications taken from the defendant's computer because the privileged materials contained a highly specific and detailed trial strategy. Moreover, because the state's case in Docket No. H12MCR–03–128673 was based entirely on the complainant's account of the defendant's conduct, and because the privileged communications contained highly specific facts relating to the credibility of the complainant and the adequacy of the police investigation in that case, the communications went to the heart of the defense. Finally, the communications contained statements by the defendant of how best to defend the case, as opposed to general trial strategy being conveyed by an attorney to the client. 

Finally, while the court also acknowledged that the State could rebut the presumption that the action against Lenarz had to be dismissed, it determined, inter alia,

that a remand is not appropriate. Even if we were to assume that the state could have proved before trial that a less drastic remedy than dismissal would have been an adequate remedy, now that the case has been tried by the prosecutor who read the privileged communications, it clearly would be impossible to eliminate the potential for prejudice to the defendant with any other sanction. The prosecutor had had knowledge of the defendant's trial strategy during the one and one-half years preceding trial and, therefore, could use the information in preparing for trial. Indeed, the record strongly suggests that the prosecutor may have revealed the defendant's trial strategy to witnesses and investigators. In addition, consciously or unconsciously, the prosecutor's knowledge of the defendant's trial strategy may have affected his selection and examination of witnesses during trial, which is now a matter of public record. 

(Hat tip to Ann Murphy for the link)

-CM