EvidenceProf Blog

Please Welcome Guest Blogger Jeffrey Bellin

Please welcome Jeffrey Bellin as a guest blogger for the months of September and October. Professor Bellin is an Assistant Professor at the SMU Dedman School of Law, where he teaches Evidence, Criminal Law, and Criminal Procedure. Before joining SMU, Professor Bellin was a prosecutor with the United States Attorney’s Office in Washington, D.C, an associate at the San Diego office of Latham & Watkins, and a Senior Attorney for the California Courts of Appeal. His articles include:

•Facebook, Twitter, and the Uncertain Future of Present Sense Impressions, 160 UNIVERSITY OF PENNSYLVANIA LAW REVIEW (forthcoming 2011-2012);

•Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 CORNELL LAW REVIEW 1075 (2011) (with Junichi P. Semitsu);

•Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence, 71 OHIO STATE LAW JOURNAL 229 (2010) (reviewed here); and

•Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. DAVIS LAW REVIEW 289 (2008).

-CM

Please Welcome Guest Blogger Marc C. McAllister

Please welcome Marc C. McAllister as a guest blogger for the month of September. Professor McAllister is a Professor at the Florida Coastal School of Law, where his teaching and scholary interests are in the fields of Criminal Law, Criminal Procedure, Evidence, Constitutional Law, Administrative Law, and Comparative Law. His specific areas of expertise are in Confrontation Clause jurisprudence and the use of emerging technologies in criminal investigation, enforcement, and adjudication. Before coming to Florida Coastal, he was a judicial clerk for Judge Charles R. Wilson, Eleventh Circuit Court of Appeals and the Director of Legal Research and Writing at the Western State University College of Law. His articles include:

•Evading Controntation: From One Amorphous Standard to Another (anticipated publication spring 2012);

•The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence, 58 Drake L. Rev. 481 (2010) (reviewed here);

•Down But Not Out: Why Giles Leaves Forfeiture by Wrongdoing Still Standing, 59 Case W. Res. L. Rev. 393 (2009); and

•Two-Way Video Trial Testimony and the Confrontation Clause: Fashioning a Better Craig Test in Light of Crawford, 34 Florida State University Law Review 835 (2007).

-CM

Unspecified Error, Tale 2: Supreme Court Of Minnesota Reverses Prior Precedent, Allows For Impeachment Through Unspecified Prior Convictions

About two years ago, I posted an entry about the opinion of the Court of Appeals of Minnesota in State v. Utter, 2009 WL 2926510 (Minn.App. 2009). In Utter, the defendant was on trial for violating a harassment restraining order, and the prosecution sought to impeach him through his prior conviction for violating an order of protection. The trial court ruled that the prosecution could impeach Utter by asking him whether he had a prior conviction but could not ask him any questions concerning the crime leading to that conviction or the circumstances surrounding that conviction. This is what is known as impeachment through an unspecified prior conviction.

After he was convicted, Utter appealed, claiming that impeachment through unspecified convictions is improper, and the Court of Appeals of Minnesota agreed, concluding that

The court's solution substantially reduced the risk of admitting a prior conviction to impeach that is identical or similar to the current conviction, namely that the jury may conclude that because the defendant “did it before, he most likely has done it again.” But the court's solution also discarded the measure by which the jury could assess the impeachment value of the prior conviction. The impeachment value of the prior crime varies with the nature of the offense....By shielding the jury from the nature of appellant's prior conviction, the district court allowed the jury to speculate that the prior crime had much greater impeachment value than it may actually have had.

In its recent opinion in State v. Hill, 2011 WL 3687535 (Minn. 2011), however, the Supreme Court of Minnesota overruled Utter and endorsed the idea of impeachment through unspecified prior convictions.

In Hill, Ronald Hill was charged with first-degree premeditated murder.  Previously, Hill was convicted of felony robbery in Illinois in 2008, and the trial

court weighed the probative impeachment value against the potential prejudicial effect in admitting the 2008 Illinois robbery conviction. The court concluded that, because of the similarity between the 2008 conviction and the aggravated robbery count in this case, the State could only present evidence that Hill was convicted of an unspecified felony in September 2008. The court prohibited the State from "referenc[ing] what the conviction was for" because of the potential prejudicial effect of the evidence.

After he was convicted, Hill appealed, claiming that the trial court erred by permitting the prosecution to impeach him through evidence that he had an unspecified prior conviction. His appeal eventually reached the Supreme Court of Minnesota, which held that the issue was governed by Minnesota Rule of Evidence 609(a), which provides that

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

And, according to the Minnesota Supremes, once the requirements of Rule 609(a) have

been satisfied, the rule does not further require the impeaching party to offer evidence about the details or nature of the conviction at the time of impeachment at trial. In other words, the nature of the prior conviction—whether it is a felony or crime of dishonesty—is relevant only to a court's preliminary determination of admissibility. The rule, therefore, does not prohibit impeachment through an unspecified felony conviction so long as the impeaching party can make a threshold showing that the underlying conviction falls into one of the two categories of admissible convictions under Rule 609(a).

The court then noted there used to be the common law doctrine of disqualification by infamy, under which convicted felons could not even testify and held that

Under both our approach to Rule 609(a) and the common law tradition, it is the general lack of respect for the law, rather than the specific nature of the conviction, that informs the fact-finder about a witness's credibility, at least with respect to convictions other than those involving dishonesty or false statements. In other words, any felony conviction is probative of a witness's credibility, and the mere fact that a witness is a convicted felon holds impeachment value.

The Supreme Court of Minnesota thus overruled Utter and concluded that its new approach was consisent with the approach in many jurisdictions:

Our research reveals that a number of other jurisdictions have addressed the admissibility of unspecified felony convictions for impeachment purposes. Fifteen jurisdictions grant trial courts discretion about whether to admit unspecified felony convictions as impeachment evidence: the First Circuit (United States v. Powell, 50 F.3d 94, 102 (1st Cir.1995)); the Tenth Circuit (United States v. Howell, 285 F.3d 1263, 1268–69 (10th Cir.2002)); Alaska (City of Fairbanks v. Johnson,723 P.2d 79, 84 (Alaska 1986)); Connecticut (State v. Geyer, 194 Conn.1, 480 A.2d 489, 498 (Conn.1984)); the District of Columbia (Goodwine v. United States, 990 A.2d 965, 968 (D.C.2010)); Florida (Fulton v. State, 335 So.2d 280, 284 (Fla.1976)); Idaho (State v. Shepherd, 94 Idaho 227, 486 P.2d 82, 84–85 (Idaho 1971)); Massachusetts (Commonwealth v. Ioannides, 41 Mass.App.Ct.904, 668 N.E.2d 845, 846 (Mass.App.Ct.1996)); Nevada (Plunkett v. State, 84 Nev.145, 437 P.2d 92, 93–94 (Nev.1968)); New Jersey (State v. Brunson, 132 N.J.377, 625 A.2d 1085, 1092–93 (N.J.1993)); New Mexico (State v. Williams, 76 N.M.578, 417 P.2d 62, 65 (N.M.1966)); New York (People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963, 966 (N.Y.2002)); Oregon (State v. Sims, 298 Or.360, 692 P.2d 575, 577 (Or.1984)); South Dakota ( State v. Means, 363 N.W.2d 565, 569 (S.D.1985)); and Washington (State v. Gomez,75 Wash.App. 648, 880 P.2d 65, 69–70 (Wash.Ct.App.1994)).

Four jurisdictions have gone as far as creating a per se rule confining impeachment to the mere fact of conviction and prohibiting the admissibility of any details about a prior conviction: Kentucky (Sebastian v. Commonwealth, 436 S.W.2d 66, 69 (Ky.1968)); Nebraska (State v. Olsan, 231 Neb.214, 436 N.W.2d 128, 136 (Neb.1989)); Wisconsin (Voith v. Buser, 83 Wis.2d 540, 266 N.W.2d 304, 306–07 (Wis.1978)); and Virginia (Harmon v. Commonwealth, 212 Va.442, 185 S.E.2d 48, 51 (Va.1971)).

Conversely, only

six jurisdictions prohibit impeachment by unspecified felony convictions: the Second Circuit (United States v. Estrada, 430 F.3d 606, 614–16 (2d Cir.2005); Illinois (People v. Cox, 195 Ill.2d 378, 254 Ill.Dec.720, 748 N.E.2d 166, 171 (Ill.2001)); Tennessee (State v. Galmore, 994 S.W.2d 120, 122 (Tenn.1999)); Maryland (Bells v. State, 134 Md.App. 299, 759 A.2d 1149, 1155 (Md.Ct.Spec.App.2000)); Michigan (People v. Van Dorsten, 409 Mich.942, 298 N.W.2d 421, 421 (Mich.1980)); and Utah (State v. Crawford, 60 Utah 6, 206 P. 717, 719 (Utah 1922)).

-CM

Emergency Urgent: District Of Oregon Seemingly Errs In Deeming Testimony Concerning E-Mails Beyond Scope of Best Evidence Rule

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

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

So, let's say that a party wants to introduce testimony concerning e-mails but does not produce those e-mails. Can the party get around the Best Evidence Rule by claiming that it is not proving the contents of those e-mails and is instead merely proving the witness' opinions/impressions of the content of the e-mails? According to the recent opinion of the United States District Court for the District of Oregon in HTI Holdings, Inc. v. Hartford Cas. Ins. Co., 2011 WL 3704821 (D.Or. 2011), the answer is "yes." I disagree.

In HTI Holdings, 

Defendant Hartford Insurance Company insured plaintiff HTI Holdings, Inc. During the coverage period, HTI suffered a loss and made a claim. After disagreement about the manner in which the claim was handled, HTI filed this action alleging breach of contract, negligence, breach of the implied covenant of good faith and fair dealing and tortious interference with prospective economic advantage claims. Hartford brought counterclaims for declaratory judgment and breach of contract.

Specifically, HTI manufactures water purification products which utilize a patented “forward osmosis” system, and

In early 2007, HTI sent a letter to its shareholders reporting a net loss for 2006 and that short term borrowing exceeded cash and receivables. The letter reported that the company was in trouble due to the National Guard's decision not to order its products, but the company expected to generate between five and seven million dollars in revenue in 2007 due to pushes into the military, disaster relief, and retail markets. About a month later, on March 17, 2007, a fire at HTI's manufacturing plant completely destroyed its production equipment. HTI made a claim for the loss.

While Hartford paid HTI $621,000 for personal business property losses and $150,000 in business interruption proceeds, HTI claimed that the payment for business interruption proceeds was too low while Hartford countered that HTI was in worse financial shape than it claimed.

This led to the aforementioned deposition testimony concerning e-mails. Here is what Robert Salter, the former Chairman and Chief Executive Officer of HTI, said about e-mails in his declaration:

Similarly, Hartford also misrepresented facts that it had discovered during its "investigation" of our business interruption claim. For example, I was one of several participants in a conference call in which Hartford's accountants interviewed the General Manager of one of our primary customers. The General Manager unequivocally stated that she anticipated that her company would have purchased 98,000 water filtration devices from us during the first year of our contract if the fire had not destroyed our plant. Despite contemporaneous emails confirming her anticipated purchase of 98,000 units, Hartford's accountants denied that the General Manager ever made any such statement. Hartford's refusal to acknowledge this projected purchase resulted in a reduction of more than $1 million in business interruption proceeds owed to HTI.

Now, I don't have the deposition testimony from Salter or Linda Lemer, who worked for HTI's vendor, but here is what the District of Oregon had to say about their testimony in response to HTI's Best Evidence objection:

HTI seeks to strike exhibit K (Lemer's deposition) and pages 162–168 of exhibit P (Robert Salter's deposition) on the grounds that the cited testimony in each violates FRE 1002, the "best evidence" rule. A review of the exhibits reveals that although both deponents are generally testifying about emails, they are not attempting to recount the content of the documents in their testimony. Instead, each discusses their opinions/impressions of the content of the emails. For example, Salter states that he does not recall other discussions, aside from those in an email, with public adjusters and whether there is a sense of urgency communicated in various emails. The best evidence rule does not preclude these exhibits.

Now, it is difficult to tell from the court's opinion the exact nature of the deposition testimony by Salter and Lemer concerning the e-mails. Presumably, though, this testimony dealt with the proposed purchase and the interactions between Salter/HTI and public adjusters. And Salter apparently testified concerning the content of those e-mails, the fact that those e-mails were the only communications with public adjusters, and his opinion on whether those e-mails conveyed a sense of urgency. In other words, Salter (and presumably Lemer) were trying to convey not only what the e-mails said, but what they interpreted as the tone of those e-mails.

The way I see it, such testimony violated the Best Evidence Rule even more than classic testimony about the content of a document such as an e-mail. The whole point of the Best Evidence Rule is that a witness might be lying and/or mistaken about the content of a writing, which is why a party trying to prove the content of that writing must produce the original writing or account for its nonproduction. When a witness, however, goes beyond the content of a writing and tries to convey the tone of that writing (whether the e-mail conveyed a sense of urgency), the possibility of a mistake greatly increases. Thus, I can't agree with the District of Oregon that there was no Best Evidence Rule violation.

-CM

Can You Hear Me?: Court Of Appeals Of Texas Finds Failure To Hold In Camera Rape Shield Hearing Isn't Reversible Error

Similar to its federal counterpart, Texas Rule of Evidence 412(c) provides that if a criminal defendant is trying to present evidence under an exception to the rape shield rule,

the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible....The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.

So, let's say that the defendant informs the court of his intention to present evidence under an exception to the rape shield rule. And let's say that the court hears arguments from both sides before deeming the evidence inadmissible but does not hold an in camera hearing. Is this evidentiary error that could form the basis for a new trial? Or is the requirement of an in camera hearing a requirement put in place to protect the alleged victim, meaning that the failure to hold one should not lead to reversal? For the answer, let's look at the recent opinion of the Court of Appeals of Texas, Houston, in Nevelow v. State, 2011 WL 2899377 (Tex.App.-Houston [14 Dist. 2011]).

In Nevelow, Phillip Andrew Nevelow was charged with sexual assault of a child. Before trial, Nevelow notified the court of his intention to introduce evidence of the alleged victim's other sexual behavior, and the court subsequently granted the State's oral motion in limine, which sought to exclude evidence of  "any prior sexual history of the victim." At trial, before the alleged victim testified, the court re-visited the issue and, after hearing arguments from both sides, upheld its prior ruling. Defense counsel argued that evidence of the alleged victim's other sexual behavior was admissible based upon the belief that she was using the allegations against Nevelow "to hide who it is that she is actually having sexual relationships with," but the court found that the evidence was lacking in relevance/probative value.

After he was convicted, Nevelow appealed, claiming, inter alia, that the trial court committed reversible error by failing to hold an in camera hearing to determine the admissibility of evidence of the alleged victim's other sexual behavior. In addressing this issue, the Court of Appeals of Texas, Houston, held that

The Court of Criminal Appeals has held that abatement is the proper remedy when a trial court's failure to conduct an in camera hearing prevents the proper presentation of a rule 412 issue to the appellate court. See LaPointe v. State, 255 S.W.3d 513, 520-21 (Tex.Crim.App. 2007)....However, in another case, the court held that a trial court's failure to conduct a hearing was not material because the record was sufficient to support appellate review of the rule 412 issue. See Young v. State, 547 S.W.2d 23, 25 (Tex.Crim.App. 1977).

Although we conclude the trial court erred by failing to conduct an in camera hearing, we determine the record is sufficient for resolution appellant's rule 412 issue. Specifically, appellant explained to the trial court several times why the excluded evidence was necessary, made an offer of proof, and attached an affidavit to his motion for new trial in which he averred that the complainant had told him she was sexually active with other individuals. Because we firmly understand the basis for appellant's presentation of the excluded evidence, we dispose of his rule 412 complaint without a record of an in camera hearing.

I agree with the court's conclusion, but I'm kind of disturbed by its (lack of) reasoning. The court listed two cases which ostensibly were on point and reached opposite conclusions and then reached a conclusion without addressing the (de)merits of each case. By looking at these 2 cases, though, we can see that there wasn't actually a conflict.

Despite what the court said, the problem in LaPointe was not that the trial court failed to hold an in camera hearing; instead, the problem was that the court did hold an in camerahearing but excluded the defendant and his attorney from that hearing. The court thus abated the defendant's appeal and remanded so that an adversarial proceeding could be held based upon its conclusion "that the in camera proceeding contemplated by Rule 412 is an adversarial hearing at which the parties are present and the attorneys are permitted to question witnesses." On the other hand, Young was what the court said it was: The court didn't hold an adversarial hearing, but it did hear arguments from the defendant and allowed him, "through a bill of exception, to preserve error on" the admissibility of evidence of other sexual behavior of the victim.

Therefore, there was no conflict between LaPointe and Young, and the court did not need to explain why it was choosing one opinion over the other in reaching its conclusion. And, as I noted above, I think that the court's conclusion was correct.

Although the court could have been clearer, I think implicit in its analysis is the following dichotomy. Rule 412(c) is partially intended to protect the alleged victim. The requirement of an in camera hearing is designed to protect the alleged victim from harassment and an invasion of privacy. On the other hand, Rule 412(c) is partially designed to protect the defendant. The requirement that the hearing be recorded by the court reporter is designed to ensure that the record is sufficient for appellate review of the rape shield ruling. Thus, when an in camera hearing is not held, but the defendant is allowed to make arguments regarding admissibility and the record is sufficient for appellate review, as in Nevelow, there are not grounds for abatement/reversal.

-CM

 

Tattoo You: Court Of Appeals Of Texas, Dallas, Finds Evidence Of Defendant's "187" Tattoo Admissible

Like its federal counterpart, Texas Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

So, let's say that a defendant is charged with murder and claims that he acted in self-defense. And let's say that after the killing the defendant gets "187" tattooed on his hand. Should the prosecution be able to present evidence of this tattoo at trial? According to the recent opinion of the Court of Appeals of Texas, Dallas, in Salazar v. State, 2011 WL 3770297 (Tex.App.-Dallas 2011), the answer is "yes."

In Salazar, the facts were as stated above, with the prosecution presenting evidence that the defendant had "187" tattooed on his right hand. Moreover, at trial,

Dallas police officer Germaine Walls testified he saw appellant at the police station on the night of the shooting, and appellant did not have "187" tattooed on his hand at that time. Walls testified that, based on his training and experience, "187" represents the California penal code section for murder, and a person puts such a tattoo on his body to proclaim that he has committed murder. Additionally, Walls testified "it's been used in quite a few rap songs to advertise the fact that they have committed murder." At trial, appellant objected to this testimony and argued there was no dispute appellant killed someone and that the tattoo was more prejudicial than probative. The prosecutor argued the "187" tattoo, clearly visible on appellant's hand, was admissible as an admission by a party opponent. Further, the prosecutor argued the tattoo showed appellant's state of mind and disproved his theory of self-defense because he was proud of the murder. The trial court overruled appellant's objection.

After he was convicted, the defendant appealed, claiming, inter alia, that evidence of his tattoo was inadmissible hearsay and should have been excluded under Texas Rule of Evidence 403. The Court of Appeals of Texas, Dallas, disagreed, concluding that

The record shows appellant did not have a "187" tattoo on the night of the shooting, and the tattoo was placed on him after he was in jail in connection with the underlying murder charge. The fact that appellant got a tattoo marking him as a murderer goes to show his state of mind at the time of the shooting and clarifies the circumstances surrounding the shooting. It is also clear from the placement of this tattoo on his hand that it was an open and obvious statement that he wanted everyone to see. This evidence directly contradicts appellant's defensive theory that he acted in self defense and was not likely to impress the jury in some irrational but nevertheless indelible way....We conclude the trial court did not abuse its discretion in admitting evidence of the "187" tattoo as a statement that appellant committed murder. See TEX.R.EVID. 801(e)(2)(A).

I agree that there was no abuse of discretion, but I disagree with the court's hearsay analysis. Texas Rule of Evidence 801(e)(2)(A) provides that "[a] statement is not hearsay if...[t]he statement is offered against a party and is...the party's own statement in either an individual or representative capacity...." So, if the defendant tattooed himself, the tattoo could have qualified as a party-admission under Rule 801(e)(2)(A), but I'm guessing that someone else tattooed him. And, if that was the case, if the tattoo were an admission, it could not have been a party-admission under Rule 801(e)(2)(A) and could only have been an adoptive admission under Texas Rule of Evidence 801(e)(2)(B) (Of course, it also could have been admitted under Texas Rule of Evidence 803(3), the state of mind exception to the rule against hearsay).

-CM

Under One Condition: Eastern District Of Pennsylvania Finds Evidence Of Doctor's Alcoholism Conditionally Relevant

Back in January, Joseph J. Kubacki, the former chair of the Temple University School of Medicine Ophthalmology Department, was charged with fraud and making false statements in health-care matters in a 144-count indictment from the United States Department of Justice.

Kubacki, a pediatric eye specialist, is accused of falsely claiming between 2002 and 2007 to have provided more than $1.5 million in services to patients at a clinic run by the ophthalmology department. The indictment says Kubacki, who had an office at Temple University Hospital, made notations in the charts of patients, seen by other doctors, indicating that he also had seen and evaluated those patients – when he hadn’t. In some cases, he wasn’t even in town when the patients were seen.

Recently, the government sought to introduce evidence relating to Dr. Kubacki's alcohol abuse when at the Ophthalmology Department. And as the United States District Court for the Eastern District of Pennsylvania noted in its recent opinion in United States v. Kubacki, 2011 WL 3627317 (E.D. Pa. 2011), the admissibility of this evidence required a finding of conditional relevance.

In Kubacki, the government claimed that Dr. Kubacki's alcohol abuse made it more probable that Defendant committed health care fraud. As the Eastern District of Pennsylvania correctly noted, however, Dr. Kubacki's "alcohol abuse [wa]s only relevant to [his] commission of the crimes in question if the Government can establish that this alcohol abuse caused [him] to see a lower volume of patients. In other words, the alcohol evidence was only admissible if the government sufficiently satisfied Federal Rule of Evidence 104(b), which provides that

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

In other words, here is a diagram of the relevancy of the alcohol evidence in Kubacki:

-evidence of Dr. Kubacki's alcohol abuse (fact)

-seeing a lower volume of patients (conditional fact)

-motive to commit health care fraud (relevance)

Thus, the evidence of Dr. Kubacki's alcohol abuse was only relevant to prove his motive to commit health care fraud if a reasonable juror could find the conditional fact -- seeing a lower volume of patients -- by a preponderance of the evidence.

And, according to the court,

The Government intends to prove the impact of Defendant's alcohol use via residents and other physicians who worked with Defendant. These witnesses will testify to the fact that Defendant drank frequently while at TUH and, when he drank, he did not attend to patients because he was in the conference room or his office. Also, the resident physicians will testify that, at times, when they saw Defendant at TUH they perceived him as being impaired and because of this did not seek out his assistance with patients. Rather, these resident physicians turned to other physicians for help thus increasing the volume of patients other physicians saw. Based upon this testimony, the jury could reasonably find that Defendant was seeing a low volume of patients due to his alcohol use. Because the Government has proffered evidence that, if accepted by the jury, would establish that Defendant's alcohol abuse caused a decline in the amount of patients he saw, this evidence will be deemed relevant.

-CM

3 For 1: Supreme Court Of South Carolina Opinion Addresses 3 Important Evidentiary Issues, Including 2 Errors

South Carolina Rule of Evidence 106, the "rule of completeness," provides that

When a writing, or recorded statement, or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Meanwhile, South Carolina Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Finally, South Carolina Code section 16–3–659.1(1), South Carolina's rape shield rule, provides that

Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct is not admissible in prosecutions under Sections 16-3-615 and 16-3-652 to 16-3-656; however, evidence of the victim's sexual conduct with the defendant or evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease about which evidence has been introduced previously at trial is admissible if the judge finds that such evidence is relevant to a material fact and issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. Evidence of specific instances of sexual activity which would constitute adultery and would be admissible under rules of evidence to impeach the credibility of the witness may not be excluded.

If you want a pretty discussion of some of the relevant features of each of these rules, you need look no further than the recent opinion of the Supreme Court of South Carolina in State v. Tennant, 2011 WL 3568527 (S.C. 2011).

In Tennant, Roy Tennant was convicted of criminal sexual conduct in the first degree, kidnapping, and assault and battery of a high and aggravated nature based upon acts allegedly committed against his ex-wife. At trial, the victim testified that she received three letters from Tennant after he sexually assaulted her: (1) the first letter discussed Tennant's belief in God and his desire to be the victim's friend; (2) the second letter was a response to the victim's letter expressing incredulity that he mentioned God after what he had done; and (3) the third letter was an alleged suicide note (which obviously didn't lead to an actual suicide). At trial, the prosecution introduced the second letter, which stated in relevant part

Hey you just can't imagine how happy I was to get your letter. I understand exactly what you [meant] and in response to your letter, I want you to know that I am very deeply sorry for everything that happened back in November and I pray desperately each night that the Lord will help you forgive me and put this behind us an[d] ease your pain. All I can do right now is pray. And its [sic] very important to me that you accept my apology.... [Y]ou will find that the spirit of the Lord will convict you to forgive me for what happened. There are a lot of things that I want to openly express my fe[e]lings about you and the heart of all of this confu[sion]. But to write you a letter explaining fe [e]lings and emotions would may well do more harm than good. Thats [sic] why I haven't done it [al]ready.... [Victim] I need you to forgive me for more than one reason but two. One is because I am real[l]y and tru[ly] sorry for what happened and unless I fe[e]l that you have forgiven me it will be hard for me to be at peace with myself. And the second reason is because I want to do what God expects me to do.... 

The trial court, however, precluded Tennant from introducing his alleged suicide note into evidence, and the Court of Appeals of South Carolina later affirmed, finding that it was inadmissible under the rule of completeness because it was not written contemporaneously with, or in response to, the first letter. The trial court also precluded Tennant from presenting evidence of prior consensual sexual acts between the victim and him, and the Court of Appeals of South Carolina later affirmed this ruling.

Tennant's appeal of his convictions eventually reached the Supreme Court of South Carolina, which affirmed despite two errors made by the Court of Appeals. First, with regard to the letter, the court noted that

Rule 106 does not require that the writings at issue be written contemporaneously. Rather, the temporal element of Rule 106 concerns the order of proof.... Moreover, Rule 106 does not require that the writings at issue be "responsive to one another." The plain language of the rule permits introduction of "any other part or any other writing...which ought in fairness to be considered contemporaneously." (Emphasis added). The standard here is "fairness," not responsiveness....In sum, the court of appeals erred to the extent it upheld the trial court's exclusion of the purported suicide note on the ground that the note was not written contemporaneously with, or in response to, the apologetic letter introduced by the State.

That said, the South Carolina Supremes found that the suicide letter was properly precluded because "Tennant's note disclaiming responsibility for the alleged crime, while relevant, was not so inextricably connected to the letter introduced by the State that its omission was patently unfair."

The court also found that the letter did not qualify for admission under South Carolina Rule of Evidence 803(3), the state of mind exception to the rule against hearsay. This was because 

In the purported suicide note, Tennant recounted that the victim consented to their sexual encounter.... The note was [thus] properly excluded according to the plain language of Rule 803(3) because it was "a statement of memory or belief [offered] to prove the fact remembered or believed."

Finally, with regard to the evidence excluded under the rape shield rule, the Supreme Court of South Carolina concluded that the Court of Appeales misinterpreted the exception(s) to that rule. As noted, under South Carolina Code section 16–3–659.1(1), there is an exception to the rape shield rule for

evidence of the victim's sexual conduct with the defendant or evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease....

Somehow, the Court of Appeals interpreted this exception to mean that evidence of prior sexual acts between the alleged victim and the defendant are only admissible to "show source or origin of semen, pregnancy, or disease." Of course, this makes no sense. The whole point of the "semen, pregnancy, or disease" exception to the rape shield rule is to allow the defendant to prove that the semen found on the victim, the victim's pregnancy, and/or the disease contracted by the victim came from another sexual partner and not the defendant. And, as the South Carolina Supremes correctly noted, this exception is a separate exception from the "sexual conduct with the defendant" exception, which is used to prove that the sexual act between the victim and the defendant was consensual. In other words, the exception(s) in South Carolina Code section 16–3–659.1(1) cover(s):

-evidence of the victim's sexual conduct with the defendant; or

-evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease....

That said, the court found that the evidence that Tennant sought to admit with inadmissible under either of these exceptions and thus affirmed his convictions.

-CM

It's Too Late: Court Of Appeals Of Ohio Finds No Error In Exclusion Of Alleged Prior Consistent Statement

Like its federal counterpart, Ohio Rule of Evidence 801(d)(1)(b) provides that

A statement is not hearsay if...[t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive....

As the recent opinion of the Court of Appeals of Ohio, First District, in State v. Strutz, 2011 WL 3111983 (Ohio App. 1 Dist. 2011), (sort of) makes clear, however, a statement can only qualify as a prior consistent statement under this rule if it was made before any motive to lie arose.

In Strutz, John Strutz was convicted of two counts of tampering with evidence, murder, and abuse of a corpse after he allegedly killed and dismembered his wife. After Strutz's wife "disappeared," Strutz was interrogated by Detective Macaluso, and this interrogation was recorded and transcribed.  At trial,

Strutz testified in his own defense. During his direct examination, Strutz admitted that he had reviewed the transcripts of his recorded conversations with Detective Macaluso and that the transcripts were "pretty accurate." He then moved to admit the recordings of those conversations into evidence to rebut testimony from police officers that Strutz had acted disinterested in the fact that his wife was missing. Strutz argued that his prior statements were not hearsay because they were not being offered to prove the truth of the matter asserted but to show his state of mind: that he was concerned about his missing wife. The state argued that Strutz's statements were hearsay and that he was only trying to admit them as a way to bolster his trial testimony.

After he was convicted, Strutz appealed, claiming, inter alia, the the trial court should have admitted the recordings as prior consistent statements under Ohio Rule of Evidence 801(d)(1)(b) or to prove his state of mind. In response, the Court of Appeals of Ohio, First District, preliminarily noted that Ohio courts have interpreted Rule 801(d)(1)(b)

to apply only to those prior consistent statements that have preceded prior inconsistent statements or that have been made before any motive to falsify testimony has arisen. Normally, Evid.R. 801(D)(1)(b) is used by the state to rebut the charge of "recent fabrication" raised by defense counsel during the cross-examination of a state's witness. If there has been sufficient impeachment of a witness to amount to a charge of recent fabrication at trial, then the state may be allowed to, introduce prior out-of-court consistent statements that would otherwise be considered hearsay. In determining whether to admit a prior consistent statement, a trial court should take a "generous view" of the "the entire trial setting to determine if there was sufficient impeachment to amount to a charge of fabrication or improper influence or motivation." 

Applying these standards to the case before it, the court concluded

that the trial court properly held that the recorded conversations between Strutz and Detective Macaluso were inadmissible under Evid.R. 801(D)(1)(b). First, Strutz had not yet been cross-examined regarding his statement to Detective Macaluso or the other officers. At that point, offering the recorded conversations into evidence could only be construed as an attempt to bolster Strutz's credibility, which made the recorded conversations hearsay because they were being offered for the truth of the matter asserted. Second, if Strutz wanted to offer these recordings to show his state of mind—that he had been concerned about the disappearance of his wife—he could have simply testified to that fact. Finally, we are not convinced that the other officers' testimony that Strutz seemed disinterested in the disappearance of his wife amounted to a charge of recent fabrication. Strutz had not changed his story from the time his wife had disappeared to the end of his trial.

All of these points are fine, but I feel like the Court of Appeals of Ohio missed the big picture. The key point is that Strutz was interrogated by Detective Macaluso after his wife disappeared and presumably after he killed his wife. Therefore, his statements during that interrogation were not made before any motive to lie arose. Therefore, regardless of what happened at trial, the recorded interrogation could not have been admissible as a prior consistent statement.

-CM

A Private Matter?: Military Court Opinion Reveals Problem With Military Rape Shield Rule

Federal Rule of Evidence 412(a), the federal Rape Shield Rule, provides that evidence of an alleged victim's sexual predisposition or other sexual behavior is inadmissible to establish her propensity to consent to sexual acts and her conformity with that propensity, and thus consent, at the time of the alleged rape or sexual assault. In turn,Federal Rule of Evidence 412(b)(1)(A)-(C) set forth exceptions to the Rape Shield Rule when such evidence is offered for other purposes at criminal trials, as long as the evidence is "otherwise admissible" pursuant to Federal Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Meanwhile, Federal Rule of Evidence 412(b)(2) sets forth a general exception to the Rape Shield Rule when such evidence is offered for other purposes at civil trials, but only "if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party." A comparison between the language in Federal Rule of Evidence 403 and Federal Rule of Evidence 412(b)(2) reveals at least a few key differences. Under Rule 403, evidence will be admissible unless its probative value is substantially outweighed by one of several dangers. Conversely, Rule 412(b)(2) flips that balancing test, with evidence only being admissible if its probative value substantially outweighs two dangers. Second, Rule 403 asks judges to consider the danger of unfair prejudice (and several other dangers never really raised in Rape Shield cases) while Rule 412(b)(2) asks judges to consider the danger of unfair prejudice "to any party" and "the danger of harm to any victim," the latter not being a danger listed in Rule 403. As the recent opinion of the United States Court of Appeals for the Armed Forces in United States v. Gaddis, 70 M.J. 248 (U.S. Armed Forces 2011), makes clear, the military rape shield partially incorrectly conflates these two tests. But are these tests as different as the court asserts, and does that difference have a Constitutional component?

In Gaddis, "[a] panel of officer and enlisted members sitting as a general court-martial convicted [Troy Gaddis], contrary to his pleas, of one specification of sodomy with a child under the age of twelve and four specifications of indecent acts with a child." On Gaddis' appeal, the United States Army Court of Criminal Appeals dismissed one specification of indecent acts with a child but otherwise affirmed.

Gaddis then appealed to the United States Court of Appeals for the Armed Forces, with the gravamen of his appeal being that the military judge at his court-martial violated his right to present a defense by deeming certain evidence inadmissible under Military Rule of Evidence 412(a), the military rape shield rule. According to the alleged victim, she told her mother that she was raped by Gaddis after learning that a physical examination was required for her to try out for the cheerleading team at her new school; "she did not want the examination because it would show that she had been raped by" Gaddis.

Gaddis in turn had wanted to present evidence that the alleged victim told her mother that she was raped by Gaddis after her mother discovered e-mails implying that she was otherwise sexually active, leading her to believe that her mother would force her to undergo a physical examination. The military judge did not categorically exclude such evidence, but, based upon the rape shield rule, he held that

You will not refer, Defense Counsel, to the prior sexual activity of the victim or the fact that the e-mails contained rumors of prior sexual activity. That would also confuse the panel. You may, however, refer to the mother's discovery of e-mails generically, and based upon those e-mails, the victim's mother wanted to take the victim to a gynecologist and that the alleged victim then made the allegations against the accused shortly thereafter. But you may not refer to the contents of the e-mails substantively or describe them as e-mails relating to sexual activity. Of course, both parties may argue permissible inferences from this evidence.

In his appeal to the United States Court of Appeals for the Armed Forces, Gaddis claimed that the balancing test prescribed by Military Rule of Evidence 412(c)(3) facially violated his right to present a defense. As is the case under the federal Rape Shield Rule, the military rape shield rule allows for a defendant to present evidence of an alleged victim's other sexual behavior for certain purposes subject to a balancing test. And, under the balancing test of Military Rule of Evidence 412(c)(3), such evidence is admissible if "the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy...."

The court did not agree that Military Rule of Evidence 412(c)(3)'s balancing test facially violates the Constitution but noted that there are some issues with it, holding that:

The M.R.E. 412(c)(3) "balancing test"...is anything but simple to understand or apply, but it is not facially unconstitutional. There is no question that even considering the privacy interest of the victim will yield a constitutionally valid result (1) when applied to evidence that is both constitutionally required and whose probative value outweighs the danger of unfair prejudice, as well as (2) when applied to evidence that is not constitutionally required and whose probative value does not outweigh the danger of unfair prejudice. The test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim's privacy. In those circumstances, the test would be unconstitutional as applied. 

So, what does the court mean? Well, as the court noted in Gaddis,

the term “unfair prejudice” in the context of M.R.E. 403 "speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged."....M.R.E. 403 addresses prejudice to the integrity of the trial process, not prejudice to a particular party or witness.

Basically, then, the balancing test in Military Rule of Evidence 412(c)(3) is incorrectly worded. The military rape shield is supposed to be analogous to its federal counterpart, but its federal counterpart contains exceptions in criminal cases as long as the evidence satisfies the traditional Rule 403 balancing test in that it is not unduly prejudicial to the trial process. As the court in Gaddis noted, though, in its prior opinion in United States v. Banker, 60 M.J. 216 (2004), it incorrectly assumed that "unfair prejudice" in the context of former Military Rule of Evidence 412(c)(3) meant something different than "unfair prejudice" as the term is used in Rule 403. This is what led to the present version of Military Rule of Evidence 412(c)(3), which incorrectly conflates the civil and criminal exceptions to the Rape Shield Rule by focusing upon "unfair prejudice to the alleged victim's privacy...."

So what are the takeaways from Gaddis? Well, the first takeaway is that Military Rule of Evidence 412(c)(3) should be amended so that it is consistent with its federal counterpart and only references "unfair prejudice" and not "unfair prejudice to the alleged victim’s privacy...." But if it is not amended, is it such a big deal? I don't think so. In my mind, the biggest difference between the civil and criminal exceptions to the federal Rape Shield Rule is the inverted balancing test, not the nature of the "unfair prejudice" balanced. Why?

Well, it is not as if judges are precluded from protecting witnesses from attacks on their privacy and other harmful interrogation techniques. To wit, Federal Rule of Evidence 611(a) provides that

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Thus, regardless of whether the balancing test for the rape shield rule mentions witness harassment or privacy, judges can still consider such dangers as part of the admissibility calculus. I thus think that the wording of this portion of Military Rule of Evidence 412(c)(3) is less harmful then the Gaddis court intimated.

But wait a minute. If the court is correct that Military Rule of Evidence 412(c)(3) is meant to be modeled after its federal counterpart, isn't there a bigger problem with the rule? Under Federal Rule of Evidence 412(b)(1)(A)-(C), evidence of an alleged victim's sexual history offered for a permissible purpose in a criminal case is admissible as long as its probative value is not substantially outweighed by the danger of unfair prejudice (and other dangers) under Federal Rule of Evidence 403. Under Military Rule of Evidence 412(c)(3), evidence of an alleged victim's sexual history offered for a permissible purpose is admissible only if "the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy...." These balancing tests are clearly different, meaning that if the military rule is to be amended, this portion definitely needs to be amended.

The second takeaway is that I think the court got the Constitutional analysis wrong. Again, according to the court,

The test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim's privacy. In those circumstances, the test would be unconstitutional as applied.

Why? The court is right that Military Rule of Evidence 412(c)(3) should not mention the alleged victim's privacy if it is supposed to be the equivalent of its federal counterpart. But this is an evidentiary issue, not a Constitutional issue. Similarly, the fact that Rule 611(a) does allow judges to protect witnesses from harassment or undue embarrassment is also an evidentiary issue, not a Constitutional issue.

So, let's look back at Gaddis' Constitutional argument. Gaddis argued that application of the military rape shield rule violated his right to present a defense. As the court responded, "rape-shield statutes like M.R.E. 412 do not violate an accused's right to present a defense unless they are 'arbitrary' or 'disproportionate to the purposes they are designed to serve.'" Is it arbitrary to limit evidence of a young girl's sexual history to protect her privacy and avoid embarrassment? Is it disproportionate to do so based upon the history of rape shield rules and what historically went on in rape and sexual assault cases? I would say that the answer to both questions is "no," but the United States Court of Appeals for the Armed Forces implies that the answer to both questions is a clear "yes."

-CM

The University of Wisconsin Law School Invites Applications For Tenure-Track Faculty Positions

From an e-mail I just received:

THE UNIVERSITY OF WISCONSIN LAW SCHOOL invites applications for one or more tenure-track faculty positions to begin Fall 2012 (negotiable). Applications are welcome across legal fields and at the intersection of law and other academic disciplines. The University of Wisconsin Law School has a strong institutional commitment to diversity of all types, and we encourage applications from those whose backgrounds can further contribute to the diversity of the faculty. Applicants should submit a letter of interest, current résumé (including a list of teaching interests), a research agenda, and references to:

Professor Anuj C. Desai, Chair, Faculty Appointments Committee, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706-1399 (or via e-mail to <acdesai@wis.edu>). The University of Wisconsin-Madison is an affirmative action/equal employment opportunity employer.

Hairy Situation: D.C. Judge Precludes Investigator From Testifying About Defendant's Inability To Grow A Beard

The Felony Calendars is blogging about the murder trial of Gary Dickens and Antwarn Fenner. Here is the blog's inroductory description of the case:

On August 8, 2008, in the late evening hours, Stanley Daniels was shot to death in the 3500 block of Georgia Avenue, Northwest, in Washington, D.C.  Daniels was 48 years old at the time.

Two men are charged with premeditated murder for Daniels' death:  Gary Dickens, now 41; and Antwarn Fenner, now 37. 

The government's theory is that Daniels' killing was a revenge killing.  On July 8, 2008 -- one month to the day before Daniels was killed -- Gary Dickens' estranged wife was stabbed to death.  In the days leading up to the shooting, Dickens and Antwarn Fenner -- Dickens' cousin -- understood that Stanley Daniels was the one who killed the wife.  

And so, the government will say, Dickens and Fenner conspired to kill Daniels.  Documents filed with the court suggest prosecutors will try to prove that both men planned the murder, and then Fenner pulled the trigger.

Fenner and Dickens were both indicted on first-degree murder and conspiracy charges.  Fenner alone faces weapons possession charges.

You can check out The Felony Calendars for detailed descriptions of the daily goings-on in the case, but in this post I wanted to focus on an interesting evidentiary ruling in the case dealing with the (in)admissibility of evidence about Fenner's alleged inability to grow a beard.

When asked about the shooting, an eyewitness held his hands out to either side of his face, apparently indicating a beard, and said the shooter's facial hair was "full." At trial, defense counsel, Michael Satin,

sought permission to introduce evidence that Fenner is physically incapable of growing a full beard.  His plan had two components:  first, Satin's investigator would testify that he's inspected the sides of Fenner's face, and has seen nothing (like stubble) to indicate Fenner can grow hair there.  And second, Fenner would give jurors a close-up of the sides of his face, so they could confirm the investigator's testimony.

The judge, however, reserved ruling on the second issue and precluded the investor from testifying, concluding that the private investigator was not qualified to give an opinion about whether the sides of Fenner's face are able to grow hair but leaving open the possibility for testimony from someone better-qualified. 

The next week, the judge did permit testimony by Fenner's ex-wife, who testified that when they were married, Fenner's 

facial hair was much as it was now:  a mustache and hair on his chin.  The mustache might have been thicker or thinner sometimes, but she has never seen him with hair on his cheeks -- even when he's gone for a few days without shaving.

Thereafter, the prosecutor presented partially contradictory evidence such as Fenner's booking photo, in which "Fenner had a full mustache and patchy tufts of hair along his jawline."

So, was the judge correct to exclude the investigator's testimony about Fenner's alleged inability to grow a beard? I found two cases partially on point.

In the first, People v. Alleyne, 99 Cal.Rptr.2d 737 (Cal.App. 4 Dist. 2000), the Court of Appeal, Fourth District, Division 3, California, affirmed a defendant's conviction for conspiracy to commit murder. In affirming, however, the court noted that

Alleyne's defense at trial focused primarily on Wengert's identification of him as the shooter. Several of his friends testified he did not have a beard, an earring, or sweat suit, all of which Wengert had attributed to the shooter. A dermatologist and a defense investigator provided corroboration Alleyne could not grow a beard.

Interesting. I don't know whether the prosecution objected to this testimony, but the dermatologist presumably provided expert testimony while the investigator presumably provided lay testimony.

Meanwhile, in State v. Jefferson, 516 P.2d 578 (Ariz. 1973), the Supreme Court of Arizona affirmed a defendant's conviction for robbery. At trial, eyewitnesses had testified that the robber had a beard, and the court then allowed an officer to offer his opinion that, at the time of arrest, the defendant had a "[b]eard on the side of the cheeks or jawbone [that] seemed to be about two to four days old."

In affirming, the Supreme Court of Arizona noted that while lay opinion might ordinarily not be allowed on this type of issue, there is an exception to the general rule pursuant to which

A witness may state his impression or inference with respect to the appearance of a person, animal, object, or place, if he has had adequate opportunity for observation, the details of such appearance cannot be reproduced before the jury to enable them to draw a correct inference, and he states as much as possible of the constituent facts.

The court then found that

The testimony to which objection was made could be considered as falling under the exception to the opinion rule, and the most rational means of describing the length of the beard was in terms of days' growth. Obviously the officer's estimate of a two- to four-day growth was not to be considered an exact statement; it was an estimate. The trial judge's ruling permitting the testimony to be admitted was not an abuse of his discretion; hence not error.

Both of these cases would seem to point to the conclusion that the judge in the trial of Dickens and Fenner should have allowed the investigator to testify. That said, D.C. courts apply a weird test for when lay opinion testimony can be admitted and when expert testimony is required. Very weird. In fact, I would say that the test sticks out like a sore thumb compared to the tests applied by all other jurisdictions. In fact, I recently completed an essay on the topic that I will soon be posting here and on SSRN. And, under the test, I can see why the judge excluded the testimony. More details to come.

-CM

No (P)reservations: 7th Circuit Finds Plaintiff Failed To Preserve Impeachment Issue In Section 1983 Appeal

Federal Rule of Evidence 103(a)(2) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...

(2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

When, at trial, the court prevents the admission of evidence and there was no prior definitive ruling, the adverse party must make an offer of proof in compliance with Rule 103(a)(2). And that was a problem for the plaintiffs in Duran v. Town of Cicero, 2011 WL 3444353 (7th Cir. 2011).

In Duran, 

scores of individual plaintiffs against 17 police officers and the Town of Cicero, Illinois, alleging federal civil-rights violations and various state-law torts. The claims arose out of an ugly confrontation between officers of the Cicero police force and nearly 100 partygoers—most of Mexican descent—who were celebrating a baptism at a Town of Cicero home. Responding to neighborhood complaints about the party, officers arrived on the scene and first attempted to quiet and later to disperse the crowd. Some of the revelers objected to these efforts, and after a period of escalating tension between police and the party guests, a full-blown melee ensued. By night's end many people—officers and civilians alike—were injured, and seven people were placed under arrest.

Thereafter,

78 of the partygoers filed suit against 17 officers and the Town alleging a raft of federal and state causes of action, including claims under 42 U.S.C. § 1983 for use of excessive force, false arrest, and deprivation of equal protection, and state-law tort claims for battery, malicious prosecution, hate crimes, and evidence spoliation.

After the jury returned a verdict in favor of 23 of the plaintiffs against 6 of the officer and the town, both sides cross-appealed. Part of the basis for the plaintiffs' cross-appeal was that the district court erred by precluding them from impeaching one of the officers, William Peslak, through his conviction for an unrelated civil-rights conviction under 18 U.S.C. § 242.

Before trial, Peslak moved in limine to exclude evidence of this conviction at trial, and the plaintiffs countered that it was admissible under Federal Rule of Evidence 609(a), which 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; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

Ultimately,

 

The district court granted Peslak's motion to exclude his civil-rights conviction in an omnibus order that covered many other evidentiary issues. The judge made it clear, however, that this ruling was tentative. The order specifically explained that "[d]uring the course of the trial, the parties may move to reconsider any of these rulings if they believe the evidence warrants reconsideration."

 

And, indeed, the plaintiffs did move for reconsideration at trial, but they only claimed that the conviction was admissible under Federal Rule of Evidence 609(a)(2), not under Federal Rule of Evidence 609(a)(1). According to the Seventh Circuit, this meant that the plaintiffs failed to preserve the issue of whether the conviction was admissible under Federal Rule of Evidence 609(a)(1). According to the court,

We have held that where the district court makes a tentative or conditional evidentiary ruling before trial, the adversely affected party must renew its objection at trial in order to preserve the issue for appeal....The plaintiffs did raise the issue of Peslak's conviction at trial, but only argued that it was admissible as a crime of dishonesty. Any argument that Peslak's conviction was admissible under Rule 609(a)(1) is therefore forfeited. The district court properly excluded evidence of Peslak's conviction under Rule 609(a)(2) because the elements of his crime did not include acts of dishonesty or false statements. 

This meant that the Seventh Circuit could only reverse for plain error, and it refused to do so because "[t]he plaintiffs d[id] not advance a plain-error argument on this point."

-CM

Some Call It Subterfuge: Court Of Appeals Of North Carolina Finds Impeachment Of Reluctant Witness Fine Under Rule 607

North Carolina Rule of Evidence 607 provides that "The credibility of a witness may be attacked by any party, including the party calling him." That said,  courts have consistently ruled that such impeachment is impermissible where it is used as a mere subterfuge to present evidence to the jury that is otherwise inadmissible. So, let's say that the prosecution knows that it has a reluctant witness who is only testifying because he was subpoenaed and advised that he would be arrested if he failed to appear at trial. Can the prosecution call this witness and then impeach him with statements that incriminate the defendant? According to the recent opinion of the Court of Appeals of North Carolina in State v. Austin, 2011 WL 3570111 (N.C.App. 2011), the answer is "yes," at least based upon the facts before it.

In Austin, James Austin was convicted of first degree murder and attempted armed robbery based upon a shooting outside of a Busy Mini Mart on December 6, 2006. At trial,

The State called defendant's friend, Rodney Morrison, who stated that he had seen defendant at the Busy Mini Mart on 6 December 2006. Morrison was asked whether defendant had a gun that evening, if defendant discussed robbing anyone, and whether he found a shell casing at the Busy Mini Mart after the shooting. Morrison generally said he did not remember or did not recall the answers to any of these questions. The trial court then conducted a voir dire of Morrison. Morrison testified that he did not remember talking to police on 13 December 2006, and he refused to say whether the voice played on a recording from that meeting was his. Morrison further testified during the voir dire that he did not remember being in the prosecutor's office and pointing out the spot on a map where he found a shell casing. He also testified that he did not remember receiving threats from individuals who did not want him to testify against defendant. 

The State then presented voir dire testimony from Detective C.M. Hopkins, who interviewed Morrison on December 13, 2006.

Detective Hopkins testified that Morrison told her that he saw defendant at the Busy Mini Mart on the day of the shooting, that defendant showed him a handgun, and that defendant told him that he was going to rob someone. She also testified that Morrison gave her a shell casing that he found behind the Busy Mini Mart.

Based upon the testimony by Hopkins and another witness, the trial court determined that Austin could be-recalled and impeached through prior inconsistent statements that he made during the prior interview. Thus, the State impeached Morrison with his prior statement when he

was again questioned in front of the jury following the voir dire proceedings. He testified that he, defendant, and Dwayne Stowe were all at the Busy Mini Mart on the day of the shooting, but he could not remember whether defendant had a gun or mentioned a plan to rob anyone. He also testified that he could not remember finding the shell casing, nor could he remember if defendant was wearing a camouflage jacket. Morrison claimed that he did not remember meeting or giving a statement to Detective Hopkins prior to the trial. Throughout his testimony, Morrison said that he was not necessarily denying that he made those statements to police, just that he did not remember making them. Specifically, Morrison stated: "I'm not saying I didn't say it. I don't remember saying it."

After he was convicted, Austin appealed, claiming that the impeachment of Morrison was mere subterfuge to get his prior inconsistent statements before the jurors in the hope that they would use them as substantive evidence of Austin's guilt rather than merely as impeachment evidence. The Court of Appeals of North Carolina disagreed, finding that

the State subpoenaed Morrison to appear in court and knew that he was reluctant to testify, but, as the State argues, there is no evidence suggesting that he would suddenly claim to have no knowledge concerning the events of 6 December 2006. In fact, when Morrison met with Detective Vinson in March 2010, just a month before trial, he gave no indication that he had trouble remembering what happened on 6 December 2006. During the interview, Morrison remembered where he found the shell casing and that he told defendant not to rob anyone.

Based on these facts, we hold that the trial court did not abuse its discretion when it ruled that "based on the voir dire,...Mr. Morrison's testimony is obviously other than what the State had a reason to expect ... and that the State has a right to impeach him." 

-CM

Unadulterated?: Court Of Appeals Of Mississippi Case Touches On The Crime Of Adultery & Spousal Privilege

Mississippi Annotated Code Section 97-29-1 (still) provides that

If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.

In other words, adultery is still apparently a crime in Mississippi. So, how did Section 97-29-1 and Mississippi Rule of Evidence 504, Mississippi's husband-wife privilege (kind of) come into play in the recent opinion of the Court of Appeals of Mississippi in McDonald v. McDonald, 2011 WL 3570011 (Miss.App. 2011)?

In McDonald, 

Edgar L. McDonald Jr. (Ed) unsuccessfully attempted to divorce his wife, Cynthia Jean Guess McDonald (Cindy). Instead, the Clay County Chancery Court granted Cindy's request for separate maintenance. Less than two weeks later, Ed attempted to terminate his separate-maintenance obligation, but the chancery court denied Ed's motion. Ed then attempted to terminate his separate-maintenance obligation again—this time via his motion to alter or amend the order denying his motion to terminate separate maintenance. Cindy responded by requesting that Ed be held in contempt for failing to pay her separate maintenance. The chancellor denied Ed's motion to alter or amend his previous order and granted Cindy's request that Ed be held in contempt. Accordingly, the chancellor awarded Cindy a judgment of $6,000. The chancellor also awarded Cindy $1,000 in attorney's fees.

According to Ed, he sought to terminate his separate-maintenance obligation because he wanted to return to the marital home with the "primary purpose...[of] cohabit[ing] with Cindy as required by law." In denying Ed's motion to terminate his separate-maintenance obligation, the chancellor found that

The question of whether ... Ed's effort was one of good faith and honest is of a factual nature and must be decided by this Court on the basis of the facts as developed in the courtroom. At no time has there been any testimony that in any way could be construed that Cindy would not welcome Ed back or resume the marital relationship and bed. Her only request in the testimony is that Ed make a clean breast of his past relationships, if any. Ed has never denied any relationship under oath, but [he] has asserted his Fifth Amendment right against self-incrimination. Ed did testify that he wanted to move on and did not want to discuss the past. The Court can certainly understand Ed's desire not to address the past for obvious reasons. However, to resume a relationship after thirty (30) plus years of marriage, as this one is, there has to be a foundation of complete trust. A marriage which has never lost the trust factor may be strong because there has never been any reason to doubt. A marriage which has lost the trust factor must be repaired and shored up with an extraordinary amount of reassurance, openness, and certainly frankness.

Ed's reluctance to engage in such discussions cast doubt in the Court's mind as to whether he will ever make the effort necessary to resume a proper marital relationship. As in Day, ... Ed never once expressed regret or repentance, nor were there promises made to be a proper husband if allowed to return. This combined with Ed's reluctance to do what it took to satisfy Cindy leads the Court to the only conclusion possible; that is, Ed's motivation is solely to avoid making the [c]ourt[-]ordered payments and not to truly resume a normal and healthy marital relationship. The Court also would state that the filing of the motion so soon after the entrance of the order of separate maintenance ... and his return to the marital home on the eve of the hearing may have been premature. A few days is hardly enough time to restore a thirty (30) year marriage. The Court only had evidence that Ed dropped off his bags and that was basically it. Without more, the Court cannot grant the motion by law.

Ed appealed this denial to the Court of Appeals of Mississippi, which noted that

According to Ed, he refused to tell Cindy the names of any women with whom he had had affairs because "[t]here is...no requirement that either party waive his or her Fifth Amendment rights in order to restart the relationship." Ed based his refusal to disclose the names of his "alleged paramours" on the concept that "adultery is still a punishable crime in Mississippi." 

The Court of Appeals found that it did not need to resolve these issues to uphold the chancellor's ruling, instead relegating its analysis to the following footnote:

[FN2] We decline to address the question of whether Ed could have successfully been prosecuted for adultery pursuant to Mississippi Annotated Code Section 97-29-1....

Furthermore, we decline to address the question of whether Ed could have privately disclosed any extra-marital affairs to Cindy under the protection of the "Husband–Wife Privilege" set forth in Mississippi Rule of Evidence 504.

Interesting. I wonder how long it has been since Mississippi last prosecuted a person for adultery?Presumably, that would help us to answer the question of whether there was a real and substantial danger that Ed could be prosecuted for adultery, triggering the Fifth Amendment's protections if the court forced him to come clean to his wife. 

And what about Mississippi Rule of Evidence 504? If Ed came clean to his wife and was then charged with adultery, could he prevent his wife from testifying pursuant to the husband-wife privilege? Mississippi Rule of Evidence 504(b) does provide that "[i]n any proceeding, civil or criminal, a person has a privilege to prevent that person's spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse."

That said, Mississippi Rule of Evidence 504(d) provides that

There is no privilege under this rule in civil actions between the spouses or in a proceeding in which one spouse is charged with a crime against (1) the person of any minor child or (2) the person or property of (i) the other spouse, (ii) a person residing in the household of either spouse, or (iii) a third person committed in the course of committing a crime against any of the persons described in (d)(1), or (2) of this rule.

Now, usually, the exception contained in Rule 504(d) applies in cases of spousal or child abuse. But would adultery be considered a crime against the person of the other spouse? Or is it a crime against the state or the institution of marriage? I would guess the former, which would mean that if Ed reasonably feared being prosecuted for adultery, the court could not compel him to disclose his affairs to his wife because the husband-wife privilege would not protect him. Of course, as the Court of Appeals likely correctly held, none of these issues really needed to be resolved to find that the chancellor did not abuse his discretion.

-CM

Free Your Mind: 9th Circuit Finds Harmless Error In Connection With Expert Hypos In Aryan Brotherhood Appeal

It is well established that experts may be asked hypothetical questions on cross-examination, but such questions "must not require the expert to assume facts that are not in evidence." United States v. Stinson, 2011 WL 3374231 (9th Cir. 2011), provides a nice illustration of a prosecutor engaging in misconduct by asking an expert to assume facts not in evidence. It also illustrates the laissez faire approach that the Ninth Circuit has taken with regard to such misconduct on appeal.

In Stinson, John Stinson and Robert Griffin appealed their convictions for RICO conspiracy for operating the Aryan Brotherhood (AB) prison gang, and Stinson appealed his conviction for violent crime in aid of racketeering (VICAR). As noted by the Ninth Circuit,

The AB started in 1964 as a group of white prison inmates who asserted the need to protect themselves and later evolved into an organization designed to traffic narcotics across numerous California and federal prisons. In the early 1980s, the California AB was reorganized such that it was governed by a three-member commission. The commission had final say on AB orders to kill, orders to enforce AB rules, and the AB's business efforts. Griffin was an original member of the commission. By 1990, Stinson had joined Griffin on the commission.

With regard to the charges against Stinson and Griffin,

The RICO count set forth numerous overt acts in furtherance of the conspiracy, including operating the California Commission and 11 murders, attempted murders, or conspiracies to murder. The VICAR counts alleged the murders of Arthur Ruffo and Aaron Marsh for the purpose of maintaining or increasing Griffin and Stinson's positions in the AB.

A key question at trial was whether Griffin had withdrawn from the conspiracy prior to the running of the statute of limitations on August 28, 1997, and, at trial,

Griffin called as an expert witness Robert Ayers, a warden at the Pelican Bay state prison while Griffin was housed there. He testified that, in 1997 or 1998, he read Griffin's confidential file and had an investigation conducted into whether Griffin was still active in the AB. Ayers testified that his opinion from that investigation was that Griffin was no longer active in the AB.

Thereafter,

On cross-examination, the government posed a series of hypotheticals about whether Ayers's opinion would be different if there were more recent evidence in Griffin's confidential file showing AB activity. Some of these hypotheticals concerned matters for which evidence was introduced at trial. Others concerned redacted inmate debriefings not in evidence, though the government later unsuccessfully attempted to introduce them. Others concerned matters that were never introduced in evidence nor even disclosed to Griffin and Stinson.

Subsequently,

The district court told the jury that "if the underlying facts of a hypothetical question are not proved in court then the opinion has no meaning...you are not to assume any of this happened unless it's proved later." In addition to this admonition to the jury during cross-examination, the district court at the close of evidence instructed the jury: "Questions were asked of the witness Robert Ayers on cross-examination about documents he had not seen. In light of the fact that the questions are not evidence, you are to disregard such questions and answers given concerning any documents obviously that he had not read or seen." The court also more generally instructed that "[q]uestions and objections of the lawyers are not evidence."

As noted, Stinson and Griffin were convicted, with the jury returning a special verdict finding that Griffin had not withdrawn from the conspiracy prior to the running of the statute of limitations on August 28, 1997. In addressing their appeal, the Ninth Circuit found that the prosecution engaged in misconduct by posing some of the above hypotheticals, concluding that

All the hypotheticals based on debriefs not admitted in evidence told the jury the substance of inadmissible hearsay. The debriefs were out of court statements offered for their truth—that Griffin had, for example, recently ordered a hit on the so-called Black Dragon Rapist, and therefore had not withdrawn from the AB. The debriefs were not suggested merely to show that documents existed that Ayers had not seen, because the government had already established that Ayers had not seen documents added to Griffin's confidential file after 1998. Nor could the debriefs be disclosed under Fed.R.Evid. 703 or 705, as they were explicitly not the basis of Ayers's opinion. We therefore conclude that it was prosecutorial misconduct to pose questions or hypotheticals to Ayers concerning debriefs that were not admitted in evidence.

That said, the Ninth Circuit found that this error/misconduct was harmless for two reasons: First, the other evidence against the defendants, and specifically Griffin, was strong. I have no problem with this conclusion. Second, 

the district court offered a curative instruction that "you are to disregard such questions and answers given concerning any documents obviously that [Ayers] had not read or seen." The court also instructed that "[q]uestions and objections of the lawyers are not evidence." It further warned the jury during the cross-examination that "you are not to assume any of this happened unless it's proved later." As we have observed, "juries are assumed to follow the court's instructions."

I'm sorry, but I'm not buying this conclusion. The jury had to decide whether Griffin had withdrawn from the AB by August 28, 1997. To defeat this argument, the prosecution engaged in misconduct by telling the jury the substance of inadmissible hearsay, namely that Griffin had, inter alia, ordered a hit on an individual after this date. I know that the presumption is that juries are assumed to follow the court's instructions, but it seems to me that there is no way that a reasonable juror could erase this information from his head. If the Ninth Circuit simply held that there was enough other evidence to convict Griffin, that would have been fine. But I don't see how it could presume that the jurors wiped their minds of such damning evidence.

-CM

Same Sex: 8th Circuit Uses Same Logic To Uphold Rule 414 As It Used To Uphold Rule 413 Against Constitutional Attack

Federal Rule of Evidence 414(a), enacted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994, provides in relevant part that

In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

In its opinion in United States v. Mound, 149 F.3d 799 (8th Cir. 1998), the Eight Circuit found that Federal Rule of Evidence 413(a), which allows for the admission of evidence of prior sexual assaults by defendants charged with sexual assault, to be constitutional. And, in its recent opinion in United States v. Coutentos, 2011 WL 3477190 (8th Cir. 2011), the Eighth Circuit reached the same conclusion with regard to Rule 414(a).

In Coutentos, a jury found Jimmie Coutentos guilty of one count of sexual exploitation or attempted sexual exploitation of a minor to produce child pornography and one count of possession or attempted possession of child pornography. After he was convicted, Coutentos appealed, claiming, inter alia, that the district court erred by allowing the alleged victim's older sister to testify regarding acts of child molestation that Coutentos, her grandfather, allegedly committed agains her. According to Coutentos, Federal Rule of Evidence 414(a) "is unconstitutional because it violates Fifth Amendment due process rights."

According to the Eight Circuit, "[t]o determine whether [Rule 414] fails 'the due process test of fundamental fairness,' we consider whether 'the introduction of this type of evidence is so extremely unfair that its admission violates fundamental conceptions of justice.'" The Eighth Circuit then noted that while it had not previously resolved this issue, (1) "Other circuits have rejected similar facial attacks on the constitutionality of Rule 414 in light of the fact that Rule 414 is subject to the constraints of Rule 403;" and (2) "In Mound, we upheld the constitutionality of Rule 413, stating that we believed 'that it was within Congress's power to create exceptions to the longstanding practice of excluding prior-bad-acts evidence.'" Accordingly, the court used the same reasoning that it used in Mound to "conclude that Rule 414 does not violate the Due Process Clause."

-CM 

In The Public Eye: Court Of Appeals Of Texas Finds Public Records Weren't Self-Authenticating In Negligence Appeal

Texas Rules of Evidence 902(4) & (10) provide that

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

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

(10) Business Records Accompanied by Affidavit.

(a) Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause.

(b) Form of affidavit. A form for the affidavit of such person as shall make such affidavit as is permitted in paragraph (a) above shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice....

In its recent opinion in Husain v. Petrucciani,  2011 WL 3449497 (Tex.App.-Houston [14 Dist.],2011), the Court of Appeals of Texas, Houston correctly concluded that non-certified copies of public records no accompanied by an affidavit were not self-authenticating under these rules. But couldn't they still have been authenticated under Texas Rule of Evidence 901(b)(7)?

In Petrucciani, 

Russell A. Petrucciani used his 2008 Ford F–150 pick-up truck as a company vehicle for Spectrum [Construction Services, Inc]. On the morning of February 17, 2009, while on his way to work, Petrucciani stopped at a dry cleaning establishment located on FM 1960 in the Spring, Texas area. He parked directly in front of the business, left the keys in the ignition and the vehicle running, and went inside the dry cleaners. While inside waiting for service, Petrucciani looked out the front window and saw a thief sitting in the driver's seat of his pick-up truck. Petrucciani immediately returned to his truck, opened the door, and tried to remove the thief. After a struggle, the thief shifted the truck into reverse and accelerated through the parking lot. Petrucciani hung onto the truck between the open driver's side door and the frame of truck.

The thief then struck a parked car in the parking lot. Petrucciani fell to the ground, severely injured. The thief sped from the parking lot in Petrucciani's truck onto FM 1960. Less than a minute later, the thief struck the Husains' vehicle with Petrucciani's truck.

The Husains thereafter brought an action against Petrucciani and Spectrum, alleging "that Petrucciani was negligent both by leaving his vehicle in a manner in which it could be entered and operated by another person and by engaging in a physical altercation with the thief." Petrucciani and Spectrum responded with a motion for summary judgment dismissing the complaint. In turn, the Husains responded with, inter alia,

voluminous paperwork obtained by the Husains from the Harris County Sheriff's Office produced pursuant to a public information request for the following: [C]opies of selected crime statistics 2008, 2009 for that area generally defined by Tomball Parkway/Hwy 290 to the west, FM 2920 to the north, Kuykendahl Road to the east, and Sam Houston Tollway (Beltway 8) to the south, including any patrol beat or patrol district contained within or partially within such area: 1) All calls for service, or records of any activity by any member of your department, or response or appearance of any member of your department for any complaint relating to or of auto theft, attempted auto theft, unauthorized use of motor vehicle, burglary of motor vehicle, vandalism of a motor vehicle, and/or criminal mischief relating to a motor vehicle w/in any patrol district, patrol beat contained wholly or partially w/in [the area as defined above]; 2) All 911 records, dispatch slip(s), dispatch log reports, and/or any publicly releasable section or portions of any case reports files, calls for service or reports or documents of any sort wherein RUSSELL A. PETRUCCIANI...is identified as either complainant, witness, or suspect, or in any other capacity at any time w/in the 10 years prior to the date of this request, at any location w/in your jurisdiction[.] 

The trial court deemed this paperwork inadmissible and granted the defendants' motion for summary judgment. The Husains then appealed, claiming, inter alia, that the trial court erred in deeming this evidence inadmissible. The Court of Appeals of Texas, Houston, disagreed, concluding that

The Husains acknowledge that the public information request information does not contain certified copies of this information. Under the Texas Rules of Evidence, "public records" may be self-authenticating, if presented in the form of a certified copy or if accompanied by an affidavit made by a custodian of the records. Tex.R. Evid. 902(4), (10). But these documents were not properly authenticated under this rule because the documents are neither certified copies nor were they accompanied by an affidavit made by the custodian of the records. As such, the trial court did not abuse its discretion in excluding the public information request documents from the summary-judgment record.

I agree with this conclusion, but this merely means that the paperwork was not self-authenticating under Texas Rule of Evidence 902. The Husains, however, still could have properly authenticated the paperwork under Texas Rule of Evidence 901 generally and Texas Rule of Evidence 901(b)(7) specifically. Texas Rule of Evidence 901(b)(7) provides that public records or reports can be authenticated through

Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

So, what happened? Did the Husains not argue that the paperwork was admissible under Texas Rule of Evidence 901(b)(7)? Did they fail to present the extrinsic evidence required to authenticate non-self-authenticating writings? The opinion of the Court of Appeals of Texas doesn't answer these questions.

-CM

Is There A Doctor In Your Past?: Supreme Court Of Mississippi Permits Jury Impeachment Regarding Lies During Voir Dire

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

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

But while jurors may not testify as part of an inquiry into the validity of a verdict, almost all courts have found that jurors can testify to prove that a juror lied during voir dire, with the result being that a verdict is overturned. Most courts find that such testimony simply falls outside the scope of Rule 606(b). But in its recent opinion Merchant v. Forest Family Practice Cliic, P.A., 2011 WL 3505309 (Miss. 2011), the Supreme Court of Mississippi found that when a juror conceals information during voir dire, such information constitutes an improper outside influence, permitting juror testimony under the Rule.

In Merchant,

[Charles] Harris was treated for gout of the left foot by Dr. [John] Lee at the [Forest Family Practice] Clinic on multiple occasions between June 13, 2006, and June 30, 2006. On July 2, 2006, Harris was taken to the emergency room of Mississippi Baptist Medical Center and was diagnosed as septic. As a result of the sepsis, Harris's left leg was amputated. On August 13, 2006, Harris died. On August 6, 2008, the Estate [of Charles Harris] filed a complaint against the Clinic, Dr. Lee, and John Does 1–10, alleging, inter alia, medical negligence, vicarious liability, and wrongful death.

The Estate of Charles Harris also brought a similar lawsuit against another doctor, Dr. Howard Clark, who treated Harris at another clinic.  Before trial in the action against Dr. Lee,

During voir dire, the circuit judge asked the venire, "[w]ith that type of case, a case where a doctor has been sued for malpractice, will that affect your judgment in this case?" The first inquiry posed by counsel for the Estate during voir dire was "[w]ould you raise your hand if any of you have had an occasion to be treated at the [Clinic] by Dr. Lee or any other doctors [?]" Counsel for the Estate later asked the venire, "would you raise your hand if you feel like...you should not sit on this jury because of the knowledge of... Dr. Lee or his [C]linic..., that you feel like you shouldn't sit on this jury because you can't put aside that bias[?]" Finally, counsel for Dr. Lee asked the venire, "you will make your decision based on the actual evidence and the [j]udge's instruction. Are you all aware of that?" During voir dire, the venire members (including [Clyde] Lowden) also responded affirmatively that they "still have an open mind and can receive the evidence and the law of this case and make a fair decision[,]" and that they will "listen to the evidence, listen to the [c]ourt, and...follow the [c]ourt's instructions, even if for some reason you disagree...." 

At the end of trial, the jury returned a verdict in favor of Dr. Lee and the Clinic. Thereafter, the Estate filed a "Motion to Investigate Juror Misconduct, to Set Aside or Void Jury Verdict, to Void or Set Aside Final Judgment, for New Trial, and to Change Venue." In support of the juror misconduct portion of the motion, the Estate attached the affidavit of Juror Maria Lopez, which stated that juror Clyde Lowden told other jurors

[t]hat he had been a patient of both Dr. Lee and Dr. Clark. That both were good doctors and that we the [j]ury could not "let those attorneys keep taking money from our doctors." [Another juror] and I reminded [Lowden] that the [c]ourt had instructed us to disregard the comment about a lawsuit against Dr. Clark. [Lowden] nonetheless continued to refer to that lawsuit in an attempt to persuade his fellow jurors to vote in favor of Dr. Lee.

The court denied the motion, and the Estate's appeal eventually reached the Supreme Court of Mississippi. The court concluded that

Lopez's affidavit and subsequent testimony offered unrebutted evidence that Lowden "failed to truthfully answer questions during voir dire[,]" which implicated an "'outside influence' contemplated by Rule 606(b)."  

The court then found that this improper outside influence was sufficient to require a new trial because "Lowden's failure to respond to the aforementioned questions amounted to withholding 'substantial information' which 'would have provided a valid basis for challenge for cause....'"

-CM

Mommie Dearest: 10th Circuit Finds District Court Erred In Excluding Testimony Of Mother Who Ignored Sequestration Order

Federal Rule of Evidence 615 provides that

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

So, let's say that a trial court enters an order of sequestration pursuant to Rule 615, but a witness remains in the courtroom during other testimony. But let's say that the witness does this without the knowledge of the party calling her. Should the court allow the witness testify? According to the recent opinion of the Tenth Circuit in United States v. Washington, 2011 WL 3455826 (10th Cir. 2011), the answer is "yes."

In Washington, Deandre Laron Washington was convicted of one count of witness tampering. That "conviction stemmed from Mr. Washington's alleged part in a murder-for-hire scheme wherein he was hired by Ronald Irving to kill a local law enforcement officer prior to that officer testifying in a drug case against Mr. Irving."

At the outset of the trial, the district court invoked the Rule of Sequestration, ordering that "anyone who is in the courtroom, except the parties, who [is] going to be a witness in the case or potentially be a witness must excuse themselves now." themselves now."

Thereafter, Sean Warrior testified as a defense witness. Subsequently,

On cross-examination, the government tried to discredit Sean Warrior's testimony by suggesting that it may have been the product of witness intimidation. In particular, the government asked whether his mother, Ms. Warrior, had been threatened at gunpoint during a home invasion roughly a month prior to trial, implying that he may have been coerced into testifying favorably for the defense.

Terry Warrior, Sean's mother, was in the courtroom for this testimony. Defense counsel was apparently unaware that Terry Warrior was in the courtroom during her son's testimony, and he later tried to call her to "testify to the fact that no threat was made during the robbery, which would serve to undermine the government's suggestion that Sean Warrior's testimony was coerced." The district court, however, precluded her from testifying because she violated the order of sequestration entered pursuant to Federal Rule of Evidence 615.

After he was convicted, Washington appealed, claiming, inter alia, that this ruling was erroneous. In addressing this issue, the Tenth Circuit initially noted that

When a violation of the Rule of Sequestration occurs,..."this alone does not render the witness' [s] testimony inadmissible."....Rather, when a sequestration order is disregarded, "it is within the district court's discretion to admit or exclude the witness's testimony."...However, "[e]xclusion of a witness'[s] testimony is 'an extreme remedy' that 'impinges upon the right to present a defense,' and thus should be employed sparingly."

Some of our sister circuits have indicated that exclusion is appropriate primarily where the witness has remained in court with the "consent, connivance, procurement or knowledge" of the party seeking his testimony,...i.e., where such a party has knowingly or intentionally effectuated a violation of the order.

The Tenth Circuit then noted that "[a]lthough we may not have formally adopted this rule, our precedent indicates that a party's culpability in the violation of a sequestration order is a significant factor in determining whether admission or exclusion of the witness is the proper remedy for the violation." Moreover, it noted that "our circuit has made clear that '[p]robable prejudice should be shown for such exclusion to occur."

Applying these standards to the case before it, the Tenth Circuit thus found that the district court erred in precluding Terry Warrior from testifying because

Although Ms. Warrior was unquestionably present for the testimony of her son, and, as the district court noted, this was the only testimony that would have had any relevance to her own statements, this does not in-and-of-itself warrant exclusion....In this case, the record is devoid of any of the factors noted above that justify exclusion of a witness. There are no indicia of "consent, connivance, procurement or knowledge" of Ms. Warrior's violation by defense counsel,...and the district court never paused to conduct even a semblance of a "probable prejudice" inquiry....Consequently, we agree with Mr. Washington that the district court abused its discretion by "mechanistically exclud[ing] the testimony upon finding a violation of the Rule." 

That said, the court found that this error was harmless and thus affirmed Washington's conviction.

-CM