EvidenceProf Blog

Going Unnoticed: Court Of Appeals Of Texas Finds Lack Of Notice of Character Evidence Doesn't Support Reversal

Texas Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction. (emphasis added)

Meanwhile, Article 37.07, section 3(a) of the Texas Code of Criminal Procedure provides in relevant part that

[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including...evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Finally, Article 37.07, section 3(g) of the Texas Code of Criminal Procedure provides that

On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act.

But what happens if the State violates Article 37.07, but the trial court still allows it to admit character evidence against the defendant at sentencing? That was the question addressed by the recent opinion of the Court of Appeals of Texas, Waco, in its recent opinion in Wham v. State, 2011 WL 4413745 (Tex.App.-Waco 2011).

In Wham, Aaron Clark Wham appealed his 365–day jail sentence assessed by the trial court after a jury convicted him of committing assault-family violence. Before trial, Wham had filed a pretrial request for notice of the State's intent to introduce against him "evidence of an extraneous crime or bad act at the punishment phase of trial." Thereafter, at sentencing, the State asked the complainant about an alleged (unrelated) assault that Wham committed against her in August 2009. Over Wham's objection that the State had not provided pre-trial notice of this evidence, the trial court permitted the complainant to offer a detailed answer to this question.

In addressing Wham's appeal, the Court of Appeals of Texas, Waco found that there was improper notice and that the trial court clearly erred because while "Article 37.07, section 3(g) does not discuss the consequences of the State's failure to provide the required notice,...'[t]he logical and proper consequence of violations of section 3(g) is that the evidence is inadmissible.'" So, where did that leave Wham?

According to Wham, there needed to be a new sentencing hearing because

the trial court's punishment decision was "substantially swayed" by the "erroneous admission into evidence, and subsequent consideration of, the testimony elicited by the State concerning Defendant's alleged commission of extraneous acts of violence against [the complainant]."

The Court of Appeals noted, however, that 

"focusing on the degree of prejudice created by the erroneous admission of the evidence is a different harm analysis employed for violations of the rules of evidence concerning relevancy, and is not appropriate here where our inquiry is limited to the harm caused by the State's inadequate notice.

Instead, the court focused upon "how the notice deficiency affected the appellant's ability to prepare for the evidence." And, in that regard, the court found that the answer was "not very much." Why? Separate charges were brought against Wham based upon the August assault, and defense counsel himself acknowledged "to the trial court that he was 'well aware of the charges' but that he was 'not aware of the State's intent to use that in Punishment.'" 

Thus, the appellate court found that the trial court's error was harmless and affirmed Wham's sentence.

-CM

Unimpeachable: 7th Circuit Finds Evidence That Sauna Was Used As Place Of Prostitution Inadmissible Under Rape Shield Rule

Like all states, Wisconsin has a rape shield rule. Under Wisconsin's rule, WIS. STAT. Section 972.11(2)(b), in civil and criminal cases involving alleged sex crimes,

any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury....

The general purpose of rape shield rules is two-fold: (1) preventing a defendant from presenting evidence of an alleged victim's sexual behavior/predisposition to prove her propensity to consent to sexual acts and her likely conformity with that propensity, and thus consent, at the time of the crime charge; and (2) preventing a defendant from using such evidence to prove that the alleged victim is a liar.

Rape shield rules, of course, are subject to exceptions, including an exception for when the exclusion of evidence would violate the Constitutional rights of the accused. As noted, a main purpose of rape shield rules is to prevent impeachment of alleged victims of sexual crimes. But what if the defendant wants to impeach a witness other than the alleged victim through evidence of the alleged victim's sexual behavior? That was the unique question recently addressed by the Seventh Circuit in its recent opinion in Jardine v. Dittman, 2011 WL 4056677 (7th Cir. 2011).

In Dittman,  a Wisconsin jury convicted Jardine of sexually assaulting and attempting to kill Laurie Grandhagen, a masseuse at Kady's Sauna. After he was convicted, Jardine combined his direct appeal with an unsuccessful motion for a new trial. After losing on appeal, Jardine petitioned the Supreme Court of Wisconsin for review. While this petition was pending, the trial court received a letter from a police detective who admitted doctoring the crime scene in some manner to hide evidence of prostitution at Kady's. Jardine then filed another new-trial motion, but the trial court denied the motion, and the Supreme Court of Wisconsin ultimately denied review.

Jardine thereafter filed a petition in federal district court under 28 U.S.C. § 2254, claiming, inter alia, that evidence that Kady's Sauna was used as a house of prostitution was material exculpatory information that was unconstitutionally suppressed pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The district court summarily dismissed the petition, leading to Jardine's appeal to the Seventh Circuit.

According to the Seventh Circuit, one central problem with Jardine's petition was that the suppressed evidence would have been inadmissible under Wisconsin's rape shield rule if offered against Grandhagen. Moreover, the court found that the exclusion of such evidence would not have violated the Constitution because "evidence that a sexual-assault complainant often consented to sex with other men is archetypally prejudicial and not highly probative of consent in a particular case; precisely that concern underlies rape-shield statutes."

That said, Jardine argued that the evidence alternatively could have been offered to impeach another witness for the prosecution. Denise McKay, another masseuse at Kady's Sauna testified at trial and denied "generally that prostitution took place at the parlor and specifically that Jardine had once purchased her sexual services."

The Seventh Circuit disagreed, finding that even if this evidence was not excluded under the rape shield rule, it was properly excluded because it would have run "afoul of the state's rule against impeachment through extrinsic evidence of collateral acts." Moreover, the court found that it was "hard to see how the Wisconsin courts would be unreasonable in concluding that Jardine had no constitutional right to impeach McKay rather than Grandhagen with evidence of prostitution—unless the Wisconsin courts were gravely mistaken in twice characterizing McKay's role in the trial as inconsequential."

-CM

A Family Matter: Supreme Court Of Vermont Finds Inadmissible Hearsay Improperly Admitted Under Rule 703

Like its federal counterpart, Vermont Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. (emphasis added)

As the last sentence of Rule 703 makes clear, while inadmissible evidence can sometimes form the basis for an expert witness' conclusion, that inadmissible evidence itself almost always remains inadmissible. This was a distinction recently missed by a Vermont family court as is made clear by the recent opinion of the Supreme Court of Vermont in Chickanosky v. Chicakanosky, 2011 WL 4389396 (Vt. 2011).

In Chickanosky, Margaret Chickanosky appealed from a family court order granting her ex-husband, Michael Chickanosky, sole physical and legal rights and responsibilities of their child. What precipitated this order was her ex-husband's petition to

the family court for primary physical responsibility of daughter because of a planned relocation to Missouri. He asserted that the relocation was a real, substantial, and material change in circumstances warranting a change in the award of physical rights and responsibilities. Father further asserted that it would be in daughter's best interest that he be awarded primary physical responsibility so that she could move with him and his wife to Missouri and that mother be awarded reasonable parent-child contact. Mother contended that it would be in daughter's best interest to remain with her in Vermont.

Thereafter,

Following a four-day hearing, the court issued a written decision in July 2010. The court made extensive findings, relying on a court-ordered forensic evaluation by Dr. Joseph Hasazi, its January 2009 order and related findings and conclusions of law, and the testimony of multiple witnesses. The court found that father's primary motivation for moving to Missouri was to be closer to his wife's family. Other factors influencing father's decision to move included Missouri's lower cost of living, the tense situation with mother and its impact on daughter, and the cost of the ongoing litigation regarding their daughter.

In awarding sole physical and legal rights and responsibilities of their child to Michael Chickanosky, the family court relied not only on Dr. Hasazi's conclusions in his evaluation but also inadmissible hearsay statements which Dr. Hasazi relied upon in reaching those conclusions.

In appealing the family court's order, Margaret Chickanosky claimed that the court improperly relied upon this underlying inadmissible hearsay in reaching its determination. The Supreme Court of Vermont agreed, finding that

Contrary to the family court's analysis, the admission of Dr. Hasazi's report does not render substantively admissible the facts forming the basis of his opinions that are not otherwise admissible or admitted into evidence. It is true that in writing his report, Dr. Hasazi could rely on facts not admissible or admitted as evidence as long as the facts are of a type reasonably relied on by experts in the field....

Dr. Hasazi's use of inadmissible hearsay evidence as a basis for his expert opinion as expressed in his report does not make that hearsay suddenly admissible for its substance. Id.Rather, as we clarified in Recor:

[u]nder Rule 703, if an expert relies on the out-of-court statements of another in forming his or her opinion and if such statements are of a type reasonably relied on by experts in the particular field, then the statements—even if not independently admissible for their substance—will be admissible for the limited purpose of demonstrating the basis for the expert's opinion....

We emphasized there that Vermont Rule of Evidence 70 "is not to be treated as either an auxiliary hearsay exception, or as a backdoor to an expansive reading of existing hearsay exceptions."...In the case at hand, the family court's justification for using otherwise inadmissible statements contained within the report was based on the fact that Dr. Hasazi's report was entered into evidence by stipulation and, according to the court, "without any restrictions." This does not overcome the limits of the rule and statute governing the report's admission.

That said, the Supreme Court of Vermont still affirmed the family court's order because "independent evidence in the record support[ed] the court's finding that mother d[id] not foster independence in daughter."

-CM 

A Civil Action: 7th Circuit Finds Ohler Preservation Rule Applies In Civil As Well As Criminal Cases

When a court authorizes the impeachment of a criminal defendant, the prosecution thereafter usually cross-examines the defendant about his conviction, thereby discrediting his direct testimony. In order to reduce the sting of such cross-examinations, defense attorneys began to elicit such convictions from criminal defendants during direct examinations. This practice greatly diminished, however, in the wake of the opinion in Ohler v. United States, 529 U.S. 753 (2000), in which the Supreme Curt found that a defendant waives his objection to a court's impeachment ruling by using such a technique.  So, does the same hold with prior convictions of a plaintiff in a civil trial? According to the recent opinion of the Seventh Circuit in Clarett v. Roberts, 2011 WL 4424790 (7th Cir. 2011), the answer is "yes."

In Roberts,

Police officers went to Patricia Clarett's home in Lansing, Illinois, early one morning to question her sons about a burglary that had occurred overnight in nearby Lynwood, Illinois. A confrontation ensued and escalated quickly. One of the officers Tasered Clarett three times, and the officers arrested her for obstruction and resisting arrest. Those charges were subsequently dropped, and Clarett sued the officers under 42 U.S.C. § 1983 alleging use of excessive force and false arrest in violation of the Fourth Amendment, and various state-law claims.

Before trial, the district court entered a ruling in limine that two of Clarett's criminal convictions—for misdemeanor retail theft and obstructing a police officer—could be admitted at trial in the event that she testified. Thereafter, Clarett's attorney questioned Clarett about her convictions on direct examination.

After the jury returned a verdict for the officers, Clarett appealed, claiming, inter alia, that the district court erred in deeming the convictions admissible to impeach her. In response, the Seventh Circuit initially noted that "[w]e have never addressed whether the Ohler principle applies in civil cases." It then acknowledged Clarett's argument "against applying Ohler in the civil context, noting that criminal defendants have the right not to testify in their defense, while civil plaintiffs generally must do so in order to prove their claim."

That said, the court rejected the argument, concluding that

This distinction is immaterial in light of Ohler's reasoning. The Court noted that even after a criminal defendant chooses to take the stand, she "has a further choice to make.... The defendant must choose whether to introduce the conviction on direct examination and remove the sting or to take her chances with the prosecutor's possible elicitation of the conviction on cross-examination."...The same choice is present in civil cases....

The logic of Ohler applies with equal force in both criminal and civil cases. The tactical nature of each party's decisions is the same; indeed, the stakes are higher in a criminal case, and still the Supreme Court found waiver. We note that every circuit [the 3rd, 6th, 8th, and 9th] to have addressed the question has applied Ohler in civil cases.

-CM

Resource Of Interest: Law 101: A Legal Guide for the Forensic Expert By NCSTL

I've written before (see here and here) about the terrific work being done by the National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law. I now write to inform you that

Law 101:  A Legal Guide for the Forensic Expert, produced by the National Clearinghouse for Science, Technology, and the Law (NCSTL) at http://www.ncstl.org, went live in August.  It is free and it is located at:  https://law101.dna.gov.   Anyone serving as an expert witness will benefit from learning the legal procedures, expectations, and principles presented in this course. There is also a text version of the Legal Guide, which is located at: https://law101.dna.gov/rawmedia_repository/9af62ee8_fd43_4041_b977_1982154535cf?document.pdf.

I had a chance to peruse the Guide this weekend, and I can say that it is a terrific resource for not only expert witnesses and attorneys working with expert witnesses but also for professors teaching a class in Evidence.

The Guide is broken down into 13 modules:

1. Sources of Scientific Evidence

2. Report Writing and Supporting Documentation

3. Importance of Case Preparation

4. Subpoenas vs. Promises to Appear

5. Affidavits

6. Being a Court-Appointed Expert

7. Discovery

8. General Testifying Tips

9. Depositions

10. Pretrial

11. Trial

12. Post-Trial, Pre-Sentencing

13. Ethics for Experts

Each of these modules is chock-full of useful information for expert witnesses, attorneys, and professors/students. For instance, in "Sources of Scientific Evidence, there is the following chain of custody checklist:

1. The field location of the item. The geographical location where the item was found or observed, including a careful log entry and, if necessary, a photograph of the location.

2. How the item was preserved. Evidence items must be bagged, packaged or otherwise handled in such a fashion that the evidentiary value is not destroyed. Appropriate containers should bear complete ID tags and labels.

3. Who was part of the chain of physical custody. Each person who handles the item should make a log entry and receipt of the fact that they handled the evidence. As the item passes from person to person, ultimately to a laboratory or storage area, a chain of receipts should be created. No question should ever exist at trial or a hearing that concerns missing items, mishandling or contamination of items, mislabeling of items, destruction of items (other than in special circumstances where destructive tests are required), or breaks in the chain of custody that might jeopardize evidence admissibility.

Meanwhile, in "Affidavits," there is a list of five circumstances in which affidavits may be used instead of a witness's in-court testimony:

1. To support an arrest warrant.

2. To present evidence to a grand jury.

3. In preliminary hearings or probable cause hearings.

4. By agreement or stipulation of the parties in a trial.

5. To provide impeachment material of the affiant, who later testifies in person.

So, if you want to build a better expert witness, attorney, or law student, by all means check out the excellent Law 101: A Legal Guide for the Forensic Expert.

-CM

Call Me: 10th Circuit Finds Officer Properly Authenticated Defendant's Voice On Recorded Conversations

Federal Rule of Evidence 901(b)(5) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:....

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

So, how well must a witness know a voice before he can authenticate it consistent with Rule 901(b)(5)? According to the recent opinion of the Tenth Circuit in United States v. McDaniel, 2011 WL 4396976 (10th Cir. 2011), the answer is "not very."

In McDaniel, 

Keith McDaniel was charged, along with twenty-three other individuals, with one count of conspiracy to manufacture, possess with intent to distribute, and to distribute fifty grams or more of cocaine base and to possess with intent to distribute and to distribute five kilograms or more of cocaine....At trial, the district court admitted into evidence multiple recorded telephone conversations between the conspirators which investigating officers had intercepted through wiretaps. Seven of these conversations involved Mr. McDaniel.

After he was convicted, McDaniel appealed, claiming that the prosecution failed to properly authenticate his voice on the telephone conversations. The prosecution authenticated McDaniel's voice through the testimony of Officer Eric Jones:

[OFFICER JONES]: I have spoken with Mr. McDaniel, as well as Mr. McDaniel, for instance, is one that we didn't positively identify until almost the end of our intercepts, and towards the end of the investigation we had an idea that it was him. We just didn't—we couldn't positively say initially that it was him until other aspects kind of came into play through surveillance and some other incidences later.

[PROSECUTOR]: As a result of talking to him and conducting surveillance, you're able to identify phone calls associated or between [codefendant] Monterial Wesley and Mr. McDaniel?

[OFFICER JONES]: Yes.

On appeal, McDaniel claimed that

Officer Jones's testimony was not specific enough to establish minimal familiarity because it is unclear when Officer Jones and Mr. McDaniel spoke, for how long they spoke, where they spoke, or how much Mr. McDaniel said during their conversation. Indeed, Mr. McDaniel asserts that "[f]or all that can be gleaned from Officer Jones's testimony, it may have been an entirely one-sided conversation, with Mr. McDaniel saying virtually nothing."

The Tenth Circuit disagreed, concluding that

Rule 901 only requires that the witness have heard the voice "at any time under circumstances connecting it with the alleged speaker." Here, Officer Jones testified that he had "spoken with Mr. McDaniel," and through "surveillance and some other incidences later," he was able to identify Mr. McDaniel's voice on the recordings....

We are satisfied that the district court did not abuse its discretion in ruling that the admission of the intercepted calls was supported by sufficient evidence to satisfy Rule 901.

-CM

What The Hell Is A Stipulation?: 9th Circuit Affirms Seemingly Questionable Impeachment Instruction

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

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

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

The (only) purpose of impeachment under Rule 609(a)(1) is to show the jury that, based upon the witness' prior conviction(s), he might not be a trustworthy witness. Thus, if a criminal defendant chooses not to testify at trial, his prior conviction(s) cannot be admitted under Rule 609(a)(1) because he would not be a witness, meaning that he could not be impeached. That being the case, I am confused by what (I think) went on in United States v. Williams, 2011 WL 4342648 (9th Cir. 2011). 

In Williams, Johnny M. Williams was convicted of being a felon in possession of a firearm. He later appealed, claiming, inter alia, that the district court erred in instructing the jury that he was impeachable with a prior felony conviction. According to Williams, here is what happened at trial: 

First,

The parties stipulated in the government's case in chief:

MR. BARRY: One of the elements of the offense with which the defendant is charged,...being a felon in possession of a firearm, is that at the time the defendant possessed the firearm, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The United States and the defendant, Johnny Williams, hereby stipulate that on May 30th, 2007, the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year.

Later,

[T]he district court determined that the government would not be permitted to cross examine or impeach Williams with a 2007 domestic violence conviction, but would be permitted to do so with a separate 2000 prior narcotics conviction which was not the subject of the stipulation....However, after further objection, the district court determined that although he would permit the government to argue that Williams had two prior felony convictions in argument, he would not permit him to be confronted with the second conviction on the stand....

On cross-examination, the following exchange took place:

Q. Well, you specifically would be because you'd been convicted of a prior felony; isn't that right?

A. Yes, I have.

Q. And as an ex-felon, you can't even touch a firearm; isn't that right?

A. That's correct.

Q. And you knew that?

A. Correct.

Finally,

At the jury instruction conference, defense counsel objected to the inclusion of the "Impeachment, Prior Conviction of Defendant" jury instruction because the only evidence the jury had before it as to Williams' prior conviction was the stipulation of the 2007 conviction, sans any detail or explanation as to the nature of the conviction, and Williams was not impeached with it....

The district court disagreed and provided the following instruction:

IMPEACHMENT, PRIOR CONVICTION OF DEFENDANT You have heard evidence that defendant has previously been convicted of a crime. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial, except to the extent that a prior conviction is an element of the offense. You may also consider the defendant's prior conviction as it may affect the defendant's believability as a witness.

If this indeed what happened, I agree with Williams. Before Williams testified, the district court determined that he could not be impeached through his 2007 domestic violence conviction. Acting in reliance of that decision, he testified. It was then not until the jury instruction conference when the district court reversed itself and concluded that the jury could use the conviction for impeachment purposes. This was simply improper unless Williams did something to cause the court to reverse itself.

Now, I acknowledge that the facts might not have been as Williams claimed them to be. The Ninth Circuit's discussion of the issue was terse, with the court quickly concluding that the district court correctly concluded that the conviction was more probative than prejudicial and then finding that "it [wa]s irrelevant that the conviction came in pursuant to the parties' stipulation rather than through cross-examination." But it was relevant if the district court found that Williams could not be cross-examined/impeached before he testified. And if that's what indeed happened, I don't see how the district court acted properly.

-CM

The Usefulness of . . . Evidence

Since this is EvidenceProf Blog, it seems appropriate to mention celebrate this post by Orin Kerr over at the Volokh Conspiracy.  The post describes the results of a survey of George Washington Law School alumni who were asked to identify the "most useful" elective they had taken in law school.  The survey results received surprisingly widespread coverage given that the results seem intuitive (at least to me).  Here is coverage on the Wall Street Journal Law Blog; here on the ABA Journal; here on Prof. Bainbridge (celebrating the third place finish of Corporations).

Whatever the survey's weaknesses (and why admit that there are any?), the results are good for Evidence professors.  Evidence was the winner, hands down.  Administrative Law came in second – although one suspects that Administrative Law would not have done nearly as well in a survey of alumni of any school not located in Washington, D.C., but I will let someone on CorporationsProf Blog take up that fight . . .

- Jeff Bellin

Court Of Appeals Of Maryland Affirms Trial Court's Judicial Notice Of Fact That Proceedings Before Judge X Are "Absolutely Unconstitutional"

I'm going to put on record exactly why I ruled the way I did in the State's motion in limine. I just want to make sure it's clear for the appellate record.

I find and I'll take judicial notice that the proceedings that take place in front of [the judge who accepted Ms. Williams's guilty plea] are absolutely unconstitutional. He does such things as ask people certain things, tell them to nod their head, and then he just takes pleas and just does it. There is no state's attorney present. There is no defense attorney present. There is no semblance of any type of due process or any rights given to the defendants. It is so widespread that even the federal judges in Greenbelt won't recognize that as convictions.

Now, I understand [Petitioner's] argument, and I am not taking anything away from it. I just wanted to make sure that the record indicated why I was ruling, not that I was saying that [Petitioner] couldn't use a conviction against the witness. It's this conviction. It's unique only to what happened in that courtroom. I have long lamented what happens there. I just wanted that on the record. Thomas v. State, 2011 WL 4389167 (Md. 2011) (emphasis added)

This language originally came from a Maryland trial court, and the Court of Appeals of Maryland (Maryland's highest court) cited it yesterday in deeming the conviction of a witness for the prosecution unconstitutional and thus inadmissible. The Court of Appeals of Maryland had to agree with the trial court's decision to take judicial notice because the trial court had no evidence that the witness' conviction was unconstitutional, just the prosecutor's bare allegation of unconstitutionally. In other words, the Court of Appeals of Maryland must have agreed with the trial court that this "fact" was "not subject to reasonable dispute...." Maryland Rule of Evidence 5-201(b).

The rest of the post will lay out some more of the details of Thomas, but here's my question: Who is Judge X, and what can be done to remove him from power immediately (if he's still in power)? What happens to the (possibly thousands) of individuals who have been convicted after guilty pleas before this judge? What is the obligation of the Maryland judges and prosecutors who recognize the unconstitutionality of proceedings before this judge? What is our obligation? 

In Thomas, Robert Lee Thomas, was convicted of carrying a handgun. After he was convicted, Thomas appealed, claiming that the trial court erred by precluding him from impeaching a witness for the prosecution, Timika Williams, with evidence of her prior conviction for theft of a motor vehicle. 

According to the State, Ms. Williams's guilty plea was unconstitutional, because she was not represented by counsel when she entered her plea and had not waived her Sixth Amendment right to counsel. Counsel for Petitioner objected to the State's motion but did not challenge the State's characterization of Ms. Williams's plea as being unconstitutional.

According to the Court of Appeals of Maryland,

Our caselaw, derived from Supreme Court precedent, makes clear that such convictions cannot be used for impeachment purposes. In von Lusch v. State,...we cited Loper v. Beto, 405 U.S. 473, 483 (1972) as "directly govern[ing]" the issue. In Loper, the Supreme Court explained that the "rule against use of uncounseled convictions 'to prove guilt' was intended to prohibit their use 'to impeach credibility',"because "[t]he absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt."... That reasoning applies equally whether the prior conviction is that of the defendant or of a third-party witness.

In this case, it is undisputed that Ms. Williams's prior conviction was achieved without counsel or a waiver of counsel and is therefore unreliable, under Loper, for purposes of attacking Ms. Williams's credibility. We hold that the trial court neither erred nor abused its discretion in refusing to allow Petitioner to impeach Ms. Williams with evidence of that conviction.

In Loper, however, Loper did more than just allege that his prior convictions were unconstitutional because he was denied the right to counsel. Instead,

His sworn testimony at the habeas corpus hearing confirmed these allegations. In addition, he produced court records to corroborate this testimony.

On the other hand, in Thomas, the trial court really did just have the prosecutor's allegation that Ms. Williams' prior conviction was unconstitutional. But, as noted, it got around this problem by taking judicial notice "that the proceedings that take place in front of [the judge who accepted Ms. Williams's guilty plea] are absolutely unconstitutional." I don't see any reasonable way that the court could have taken judicial notice of this "fact," but you can see the court's point and why the Court of Appeals of Maryland later agreed with it. If federal judges won't recognize convictions from this judge as real convictions, there's a real problem (Moreover, the Court of Appeals of Maryland in Thomas ultimately found that Thomas should have been able to interrogate Ms. Williams' about the conduct leading to her conviction under Maryland Rule of Evidence 5-608(b)).

Given the fact that there's this huge problem, what's the solution? I didn't redact the name of the judge to "[the judge who accepted Ms. Williams's guilty plea]" in the opening block quote. That was the decision of the Court of Appeals of Maryland. And while federal judges, prosecutors, at least one trial judge, and now the Court of Appeals of Maryland have all found that proceedings before this judge are "absolutely unconstitutional," as far as I can tell, they've done nothing to have him removed from power. Indeed, we don't even know his name. Today, he will likely take several more guilty pleas from defendants not represented by counsel. Next week, he will take several more. I plan to do my best to find out who he is and how to get him removed from power. Any help would be appreciated.

-CM

Putting It All In Context: Supreme Judicial Court Of Massachusetts Finds No Problem With Prior ID

Massachusetts does no have codified rules of evidence, it does have the Massachusetts Guide to Evidence. And, as I have noted before, "[a]lthough the Guide is only guidance and not rules, it was 'approved for use' by [the] Supreme Judicial Court [of Massachusetts] in 2008." Pursuant to "Rule 801(d)(1)(C)" of the Guide, a statement is not hearsay if it is "[a] statement of identification made after perceiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement." But what about statements surrounding the statement of identification? Are they admissible as well or are they inadmissible hearsay? That was the question addressed by the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Walker, 2011 WL 4357665 (Mass. 2011).

In Walker, Andre Walker was convicted of (1) murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty for the shooting death of Francis Stephens; (2) the armed assault with intent to murder of Jose Astacio, who was shot but not killed; and (3) and possession of an unlicensed firearm.

After he was convicted and unsuccessfully filed a motion for a new trial on the ground of ineffective assistance of counsel, Walker appealed. One of the grounds for his appeal was that his trial counsel erred by failing to object to the introduction of alleged hearsay statements made by (eye)witness for the prosecution Sylvester Harrison. Specifically, a detective testified

that Harrison said he saw the person depicted in photograph number two (the defendant) operate a black Toyota and "[h]e observed [this person] as being the shooter coming out of the vehicle and shooting at two individuals that were on the sidewalk."

According to Walker portions of this statement were inadmissible hearsay that went beyond the permissible scope of an identification under "Rule 801(d)(1)(C)." The Supreme Judicial Court of Massachusetts (mostly) disagreed, initially noting that

"[a]bsent context, an act or statement of identification is meaningless....[I]dentification evidence must be accompanied either by some form of accusation relevant to the issue before the court, or some form of exclusionary statement, in order to be relevant to the case."...We have concluded that an eyewitness's out-of-court statement identifying a defendant as the person shooting at the eyewitness's friend is part of the context of the identification,...but a statement regarding the number of shots fired, the color of the firearm, and the defendant's behavior after the shooting goes beyond the context of the identification of the shooter.

The court then found the statement(s) in the case before it more like the former type of statement, finding that

The judge, in denying the defendant's motion for a new trial, concluded that Harrison's statement that the person in photograph number two looked like the person who operated the car and then fired shots at two individuals on the sidewalk was "limited context integral to the identification," and therefore properly admitted. The judge also concluded that Harrison's description of the car as a "black Toyota" was "extraneous to the identification," and was inadmissible hearsay, but was harmless in the circumstances in view of abundant other evidence that the car involved in the shooting was a black Toyota. We agree.

-CM

The Trade-Off Is...: Court Of Appeals Of Texas Finds Jurors Can't Testify About Trading-Off Of Answers

Similar to its federal counterpart, Texas 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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

So, let's say that jurors "trade-off answers," i.e., they reach a compromise verdict. Can jurors impeach their verdict through testimony concerning their trading-off of answers? Unsurprisingly, according to the recent opinion of the Court of Appeals of Texas, Fort Worth, in Damian v. Bell Helicopter Textron, Inc., 2011 WL 3836464 (Tex.App.-Fort Worth 2011), the answer is "no." What is surprising to me is that this wasn't always the case in Texas.

In Damian, 

Appellants filed [a] lawsuit against Appellee Bell Helicopter Textron, Inc. on January 25, 2002, alleging, among other things, strict products liability and negligence, relating to the crash of a Bell 407 helicopter. The case proceeded to a jury trial in August 2007, and the jury returned its verdict on September 17, 2007. The jury found that there was a design defect in the helicopter; that the negligence of Bell and one of the helicopter pilots, Captain Damian, caused Appellants' injuries; that Bell and Captain Damian were each fifty-percent responsible for causing the accident and resulting injuries; and that Appellants' damages totaled $294,300. The jury also found that Bell did not act with malice. The trial court signed the final judgment on February 28, 2008.

All parties appealed from this verdict, with the appellants claiming, inter alia, the the trial court erred in (1) failing to accept juror affidavits; (2) failing to to conduct an open hearing concerning allegations that the jury traded-off answers on the jury charge, and (3) failing to grant a new trial due to alleged jury misconduct. The court's opinion does not explain exactly how jurors traded-off answers, but Golden Eagle Archery, 24 S.W.3d 362 (Tex. 2000), explains the process:

Frederick, Cline, and Lynch all recalled that the jury bartered on the amounts to award for disfigurement and loss of vision, although their accounts contradict each other in the specifics. Frederick said that initially ten jurors had agreed to award $2,500 for disfigurement and nine had agreed to award $2,500 for loss of vision, but traded votes to award $1,500 for disfigurement and $2,500 for loss of vision. Lynch, however, claimed that initially ten jurors had agreed on $1,500 for loss of vision, and eight agreed on $2,500 for disfigurement, but ultimately decided to switch these amounts. Cline merely remembered that the jurors "traded off" on these answers.

In other words, jurors "trade-off answers" when the cannot reach a unanimous result and thus compromise. Legally, this is not the correct way for jurors to reach a verdict, and, according to the court in Damian, jurors used to be able to testify concerning such trading off. According to the court, the "[a]ppellants cite[d] several cases for the proposition that "the trading of answers and the cluster answering are of such severity and obvious harm that a new trial must be granted.'" According to the court, though, these decisions were rendered before the passage of Texas Rule of Evidence 606(b). And, according to the court, while such testimony might have been allowed before Rule 606(b), it is now clearly inadmissible under the Rule, meaning that the appellants were not entitled to relief.

-CM

To Summarize: 10th Circuit Notes That Rule 1006 Doesn't Provide An Exception To Rule Against Hearsay

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

As the recent opinion of the Tenth Circuit in United States v. Irvin, 2011 WL 3833812 (10th Cir 2011), makes clear, however, Rule 1006 only provides parties with a (sort of) way around the Best Evidence Rule; it provides no exception to the rule against hearsay.

In Irvin,

Jeffrey Miller and Hallie Irvin were charged in an eleven-count indictment with a variety of crimes stemming from an alleged conspiracy to defraud mortgage lenders in connection with the subprime housing market. After a month-long jury trial, Miller and Irvin were each convicted on several of the charges and sentenced. 

Miller and Irvin thereafter appealed, claiming, inter alia, that the district court improperly allowed the prosecution to admit Exhibits 1-2, which were initially offered by the government unde rFed.R.Evid. 1006 as a summary of several boxes of 'loan files' pertaining to the allegedly fraudulent home sales." Specifically, Miller and Irvin claimed that "the loan files purportedly summarized in Exhibit 1–2 constituted hearsay that was not shown to qualify for any exception to the prohibition on hearsay evidence." In addressing this argument, the Tenth Circuit noted that

When this same challenge was raised before the district court, the government attempted to show the loan files were admissible under the business records exception [to the rule against hearsay] established by Fed.R.Evid. 803(6). Pursuant to Rule 803(6), business records are admissible despite their hearsay nature if the records' custodian, or another qualified witness, testifies the records (1) were prepared in the normal course of business; (2) were made at or near the time of the events recorded; (3) were based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) are not otherwise untrustworthy....The government offered [James] Sparks as the witness qualified to make these foundational showings. Sparks, however, testified the loan files were largely maintained by various title companies for whom he had not worked and under circumstances of which he had no personal knowledge. Furthermore, Sparks could not state whether the loan files were made or kept by the title companies in the regular course of their businesses. He also indicated that various documents within the loan files had been removed, destroyed, or otherwise modified. His testimony, therefore, was insufficient to establish the admissibility of the loan files as business records.

According to the Tenth Circuit, this meant that the exhibits were imporperly admitted because

The materials summarized by Rule 1006 evidence must themselves be admissible because a contrary rule "would inappropriately provide litigants with a means of avoiding rules governing the admission of evidence such as hearsay."

-CM

Character Of The Matter: Supreme Court Of Iowa Finds Trial Court Erred In Admitting Defendant's Harassment Conviction

Similar to Federal Rule of Evidence 609(a)(1), Iowa Rule of Evidence 5.609(a)(1) provides that

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

A prior conviction is probative to the extent that jurors use it as evidence that the defendant might not be a trustworthy witness at trial. A prior conviction is prejudicial to the extent that jurors (mis)use it as propensity character evidence, i.e., to conclude, "Once a criminal, always a criminal." In State v. Redmond, 2011 WL 3962864 (Iowa 2011), the prosecution had argued that a defendant's prior conviction was admissible under Rule 5.609(a)(1) to prove, in effect, "Once a criminal, always a criminal." And because the trial court bought this reasoning, the Supreme Court of Iowa had to reverse.

In Redmond, Raymond Redmond was charged with indecent exposure. After Redmond testified, the prosecution sought to impeach him through his 2009 conviction for harassment. In claiming that evidence of the conviction was admissible under Rule 5.609(a)(1), the prosecutor argued,

I think the fact that the defendant has just recently been convicted of Harassment in the First Degree, I believe while intoxicated as well, goes to establish that this type of behavior—that the defendant's impeachment on this offense is proper....

I think it's clear that the defendant acts in an aggressive and sometimes obviously violent or threatening manner when intoxicated given that previous conviction....I was just going to raise it for the purpose of letting the jury know or making the jury aware that it exists.

Defense counsel objected that admission of the conviction would cause Redmond "extreme prejudice," but the trial judge overruled the objection. After Redmond was convicted, claiming that the trial court erred in allowing for the admission of his prior harassment conviction. 

The Supreme Court of Iowa agreed, first finding that the harassment conviction was lacking in probative value:

The conviction's probative value is limited to showing Redmond has intended to disturb or upset others. This showing may allow the jury to infer Redmond might disregard his duty to testify truthfully based upon his previous disregard of social communicative norms for self-gratification. But "crimes based on conduct that is either violent or disorderly are ordinarily not" as probative toward testimonial credibility.

The court then found that the danger that the jury would (mis)use the conviction as propensity character evidence was "obvious, so obvious it was the reason the State argued the harassment conviction should be admitted." Accordingly, the Supreme Court of Iowa found that the probative value of the conviction did not outweigh its prejudicial effect, meaning that evidence of the harassment conviction was improperly admitted and a reversal was required.

-CM

Memory Loss: Supreme Court Of Mississippi Finds Confrontation Clause Violated By Admission Of Statement From Witness w/Memory Loss

In United States v. Owens, 448 U.S. 554 (1988),

the Supreme Court addressed whether a Confrontation Clause violation can be based upon a witness's loss of memory....In that case, a prison correction counselor had sustained severe memory impairment after being beaten with a metal pipe....When the counselor first spoke with the FBI, he was unable to remember his attacker's name....Weeks later, in a second interview with an FBI agent, he was able to describe the attack, name his attacker, and identify his attacker from a photo line-up....At trial, the counselor recounted what he had been doing just prior to the attack, described feeling blows to his head, and recalled seeing blood on the floor....He also vividly remembered identifying the defendant as his assailant during the second interview....On cross-examination, however, he acknowledged that he could not remember seeing his assailant at the time of the assault....And, even though he had received numerous visitors during his hospital stay, the counselor could not remember any of them except one, nor could he recall if any of those visitors had suggested that the defendant was his attacker....Defense counsel unsuccessfully sought to refresh the counselor's recollection with hospital records, which showed that he had, at one point, attributed the assault to someone other than the defendant....The Supreme Court held that no Confrontation Clause violation had occurred.....The Court explained that the opportunity for cross-examination "is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief."

So, did Owens stand for the proposition that a live body on the witness stand is all that is required to satisfy Confrontation Clause concerns? And did the Supreme Court's landmark opinion in Crawford v. Washington, 541 U.S. 36 (2004), change anything? These were the questions addressed by the recent opinion of the Supreme Court of Mississippi in its recent opinion in Goforth v. State, 2011 WL 4089967 (Miss. 2011).

In Goforth, Amanda Goforth, a former high-school teacher, was indicted on five counts of sexual battery involving one of her former students, John Doe, and was ultimately convicted on two counts and acquitted on the remaining three. Before trial, Doe's friend, Chase Rigdon, gave a written statement to police that corroborated Doe's allegations against Goforth. At trial, the prosecution called Rigdon.

A January 2010 automobile accident had substantially impaired his physical and mental conditions. He was confined to a wheelchair, and he testified that he could not remember anything that had occurred two years prior to the wreck. "I can't remember probably half my life." Rigdon said. He did not recall having known Doe or Goforth prior to the wreck. He could not remember going to Goforth's house, speaking to any officers about the alleged incident, or writing out a statement. He recognized his signature at the bottom of the statement, but he could only "guess" that the statement itself had been written by him.

Over Goforth's objection, the trial court then allowed the prosecution to admit Rigdon's written statement as a recorded recollection pursuant to Mississippi Rule of Evidence 803(5).

After she was convicted, Goforth appealed, claiming that the admission of Rigdon's written statement violated the Confrontation Clause. Her appeal eventually reached the Supreme Court of Mississippi, which began by citing to United States v. Owens. The court then indicated that in Crawford v. Washington, the United States Supreme Court noted in a footnote that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." The Mississippi Supremes then pointed out that "[i]n the wake of Owens and Crawford, many courts have found that a declarant's appearance and subjection to cross-examination at trial are all that is necessary to satisfy the Confrontation Clause, even if his or her memory is faulty." Indeed, the Supreme Court of Mississippi observed that it could be counted among their ranks based upon its opinion in Smith v. State, 25 So.3d 264 (Miss. 2009).

And indeed, the court then mused that "[i]f the Confrontation Clause requires solely that the declarant be physically present and subject to cross-examination, its demands were satisfied in this case." But the court then cited to the Seventh Circuit's opinion in Cookson v. Schwartz, 556 F.3d 647 (7th Cir. 2009). In Schwartz, an alleged victim testified that she remembered being sexually assaulted by her father but did not recall making a statement to a detective and child services investigator that was ulimately admitted at trial. In finding that the admission of this statement did not violate the Confrontation Clause, the Seventh Circuit cited to the aforementioned language from Crawford but noted that the Supreme Court elaborated on that statement just two sentences later by stating that "[T]he Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it."

So, can there be cases where there is a live body on the witness stand but the Confrontation Clause is not satisfied because the witness lacks the memory/mental capacity to defend or explain her prior statement? The Seventh Circuit did not have to answer this question, finding that the alleged victim's ability to recall the alleged abuse meant that she was sufficiently able to defendant or explain her prior statement.

This was not the case in Goforth. According to the Supreme Court of Mississippi,

We find that Rigdon, though physically present at trial, did not have the requisite, minimal ability or capacity to act. Significantly, no one here disputes that Rigdon's total loss of memory was genuine. The trial judge, in fact, stated that "[i]t is obvious to the Court that [Ridgon] suffers physical disabilities, and also a mental impairment in that he does not have recollection of matters that has [sic] occurred within his lifetime." Nothing in the record indicates that Rigdon's memory loss was feigned. He had no recollection of the underlying events surrounding his statement, and he could not even remember having known Goforth or Doe. It was, in his mind, as if the alleged events had never occurred. Additionally, he could not recall ever having spoken to police. The most he could do was verify his signature and "guess" that he had provided the written statement above it. This total lack of memory deprived Goforth any opportunity to inquire about potential bias or the circumstances surrounding Rigdon's statement. In sum, Goforth simply had no opportunity to cross-examine Ridgon about his statement.

The court thus found that the admission of Rigdon's prior statement violated the Confrontation Clause and reversed Goforth's conviction.

-CM

Wait For The DVD: Court Of Appeals Of Arkansas Finds Drug Sale DVDs Properly Authenticated

Like its federal counterpart, Arkansas Rule of Evidence 901(b)(1) provides that a party can authenticate evidence through the "[t]estimony of a witness with knowledge that a matter is what it is claimed to be." And, like its federal counterpart, Arkansas Rule of Evidence 901(b)(9) provides that a party can authenticate evidence through "[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result." And, as the recent opinion of the Court of Appeals of Arkansas in Williams v. State, 2011 WL 4067412 (Ark.App. 2011), makes clear, if the prosecution seeks to introduce DVDs containing video recordings of a defendant selling drugs to a confidential informant, it can authenticate the DVDs by satisfying both rules.

In Williams, Jimmy Lee Williams was charged with two counts of delivery of a controlled substance (marijuana), two counts of delivery of a controlled substance (cocaine), possession of drug paraphernalia, and possession of marijuana. At trial, the prosecution tried to introduce DVDs containing hidden-camera video recordings of Williams selling drugs to a confidential informant on four occasions. The trial court initially deemed these DVDs inadmissible because the prosecution failed to lay a proper foundation.

The prosecution then recalled Cameron Owens, the officer who made the DVDs from the hidden-camera recordings and who testified in part as follows:

WITNESS: Yesterday we talked about my video recordings on the undercover recorder. There was a video made on the undercover recorder. After I stop the recorder, and I've—It's a little digital recorder, a computer generated video file, there's a, it's on a card inside that recorder. I take it to the computer and by a USB cable I download that file onto the hard drive of the computer which makes an exact copy of that file. And then at that time I make another digital, exact digital copy and I put it on the disk. Those are the disks that I have in front of me. The disk from January 5 is the disk that I reviewed with the informant.

Thereafter, "both Officer Owens and the confidential informant testified that the recordings on the DVDs were true and accurate depictions of what transpired during the drug transactions with appellant." Ultimately, the trial court allowed the prosecution to admit the DVDs, and WIlliams was convicted.

Williams thereafter appealed, claiming that the prosecution failed to properly authenticate the DVDs. The Court of Appeals of Arkansas disagreed, concluding that the

Appellant's argument is without merit because the State offered testimony from two witnesses with knowledge of the DVDs and transactions, as well as testimony describing the process used to create the DVDs. Officer Owens and the informant testified that they did not tamper with the camera or recordings, that they reviewed each DVD, and that the DVDs were fair and accurate depictions of what transpired during the drug buys. See Ark. R. Evid. 901(b)(1). Moreover, Officer Owens identified the DVDs in court as the ones that he had specifically made from the recordings. He testified about the process of placing the recordings on the DVDs. His testimony was sufficient to authenticate the DVDs and establish that they were accurate copies of the recordings of appellant's drug transactions. See Ark. R. Evid. 901(b)(9). Further, Officer Owens testified that he reviewed the videos with the informant, and the informant testified that he reviewed the DVDs that were before the court. Because Rule 901(b)(1) and (9) were satisfied, the trial court did not abuse its discretion in admitting the evidence.

-CM

Source Code: 1st Circuit Finds Plaintiff Couldn't Satisfy Best Evidence Rule In Aircraft Tracking Software Appeal

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.

Federal Rule of Evidence 1004, however, provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if [one of four situations apply]....

If however, a party seeks to prove the content of a writing and cannot satisfy one of the Rule 1004 factors (or produce a duplicate), it will be unsuccessful as was the case in the recent opinion of the First Circuit in Airframe Systems, Inc. v. L-3 Communications Corp., 2011 WL 4058676 (1st Cir. 2011).

In Airframe Systems,

In 1979, Airframe began developing proprietary aircraft maintenance tracking software known as the Airline Resource Management System ("ARMS"). Since that time, Airframe has continually modified and expanded the source code of its ARMS software to create updated versions of the program. "Source code" is the original version of a computer program that is written in human-readable words and symbols. Source code must be compiled into machine-readable "object code" before a computer can read and execute the software. A program in source code format can be modified by a computer programmer, whereas a program in object code format cannot be easily modified.

In July 2003, Airframe registered and deposited with the United States Copyright Office copies of four versions of its ARMS source code....

Airframe later brought a copyright infringement action against L-3, alleging that L-3 copied the ARMS source code to create a replacement aircraft maintenance program titled "M3." In support of its action, Airframe submitted the declaration of its President, Gordon S. Rosen, who compared the ARMS source code with M3. L-3 thereafter moved for summary judgment claiming that the declaration

was insufficient because the ARMS source code version which Rosen compared to the M3 program—and which was the only version that Airframe produced during discovery—was an updated version of the ARMS program created in 2009. L–3 contended that the updated 2009 version of the ARMS source code was not registered and was insufficient to establish the content of the prior source code versions covered by Airframe's copyright registrations (including the 1981 IBM version, the 1984 PC version, the 1988 UNIX version, and the 2003 version). As such, L–3 argued, Airframe could not prove there was "substantial similarity" between the M3 source code and the registered source code that was allegedly infringed.

The district court agreed and granted L-3's motion for summary judgment. The First Circuit later agreed, finding that the case before it was similar to Bridgmon v. Array Sys. Corp., 325 F.3d 572 (5th Cir. 2003), in which the Fifth Circuit found that the plaintiff could not present a reconstruction of its source code consistent with the Best Evidence Rule. The First Circuit found that the same reasoning applied in Airframe Systems because Airframe did not satisfy Federal Rule of Evidence 1004; instead, "Airframe....made no effort to satisfy the requirements of the Best Evidence Rule here."

-CM

Judicial Notice: 5th Circuit Finds Failure To Disclose FBI Interview Not A Brady Violation In Judicial Sexual Favor Appeal

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. That said, the Fifth Circuit has determined that evidence turned over to the defense during trial has not been "suppressed" within the meaning of Brady so long as "the evidence is received in time for its effective use at trial." And that was a problem for the defendant in United States v. Barraza, 2011 WL 3925675 (5th Cir. 2011).

In Barraza, 

Manuel Barraza was a state court judge and former criminal defense attorney in El Paso, Texas. A jury found Barraza guilty of two counts of wire fraud and one count of making false statements, stemming from Barraza's use of his position as a state judge to obtain money and sexual favors in exchange for assisting a criminal defendant.

The case against Barazza centered

on promises Barraza made to a former client, Diana Rivas Valencia, who was facing drug charges in El Paso. Rivas was arrested in September 2008, and in December, Rivas conveyed to a friend that she was unhappy with her current attorney and wished to speak with Barraza. Later that day, Barraza went to the jail to visit Rivas. At the time, Barraza had won election to the state bench but had not yet been sworn in. Rivas testified that Barraza promised to help her "get rid of the charges" once he assumed office as a state judge. In exchange, Barraza indicated he wanted money and a "buffet" of women.

Thereafter,

By mid-January 2009, the FBI had recruited Rivas's sister, Sarait, and a friend to assist with their investigation. Sarait and an undercover FBI agent, posing as a woman who would provide sexual favors, met with Barraza on January 21. There, Barraza stated that he would try to move Rivas's case to his court and that he wished to replace Rivas's court-appointed attorney with someone he trusted. On January 23, Sarait met Barraza at the courthouse and paid him $1,300. The same day, a transfer order appeared, trying to transfer Rivas's case to Barraza's courtroom, but the court coordinator stopped the transfer after discovering that Barraza had previously represented Rivas.

After the transfer failed,

Barraza continued seeking money and sex from Rivas's family and friends in exchange for his assistance. In February 2009, Barraza asked Sarait for the FBI undercover agent's email address and began soliciting her. On February 24, Sarait and the undercover agent met with Barraza, who detailed the failed transfer order. Barraza stated that he was trying to find other ways to remove the current judge in Rivas's case, but he would need more money. Three days later, Sarait met Barraza at the courthouse and paid him an additional $3,800.

After he was convicted, Barraza appealed, claiming, inter alia, that there was a Brady violation because

During her original FBI interview, Sarait did not say that Barraza had agreed to help Rivas in his capacity as a judge. Rather, Sarait simply said he had agreed to help Rivas, conceivably as her former attorney. 

At trial, however, "Sarait asserted that Barraza had promised to help Rivas using his position as a judge." After Sarait testified, the prosecution disclosed the original FBI interview to defense counsel. On Barraza's appeal, the State claimed that its failure to disclose the FBI interview was not a  Brady violation because it was merely supplementary and not contradictory, meaning that it was not impeachment evidence.

The Fifth Circuit, however, found that it did not need to resolve this issue because

even if Sarait's testimony is considered impeachment evidence, it did not prejudice Barraza. We have previously held that evidence turned over to the defense during trial has not been "suppressed" within the meaning of Brady, so long as "the evidence is received in time for its effective use at trial." Barraza cross-examined both Sarait and the FBI agent who interviewed her regarding this alleged change in testimony, and counsel was able to adequately impeach Sarait using the FBI's witness report. Prior knowledge of the perceived inconsistency would not have affected Barraza's trial strategy; thus, he was not prejudiced by any withholding of information.

-CM

That's A (W)rap: Florida Court Reverses Conviction Based Upon Impeachment Through Rap Sheet

Florida Rule of Evidence 90.610(1) provides that

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....

But what proof of the witness' prior convictions must the party possess for impeachment to be permissible? That was the question addressed by the recent opinion of the District Court of Appeal of Florida, Fourth District, in Barcomb v. State, 2011 WL 3903118 (Fla.App. 4 Dist. 2011).

In Barcomb, Kevin Barcomb was convicted of felony driving while license revoked. At trial,

On cross-examination the prosecutor asked Barcomb if he had ever been convicted of a felony. He responded that he was unsure whether he had ever been convicted of a felony. The prosecutor asked no other questions regarding a prior felony.

Barcomb's prior felony conviction was for DUI, and the prosecutor merely obtained a NCIC, or rap sheet, which listed the conviction and did not notify defense counsel of his intent to use it for impeachment purposes until after trial had started. After Barcomb was convicted, he appealed, claiming that the prosecution failed to present sufficient evidence of his prior conviction to allow for impeachment.

The District Court of Appeal of Florida, Fourth District, agreed, finding that ordinarily a party must present a certified copy of the judgment of conviction to permit impeachment. Only if a party engages in a "good faith," but unsuccessful, attempt to procure a certified copy can impeachment be accomplished through a rap sheet. The problem for the prosecution in Barcomb was that it made no such good faith effort:

[T]he prosecutor in this case obtained on the eve of trial only an NCIC sheet indicating a prior DUI conviction in New York. She did not notify defense counsel of her intent to use it until after the trial had started, and she did not have certified copies of the conviction or, as in Peterson, an affidavit from New York attesting to the accuracy of the report. Nor had the prosecutor attempted to secure a certified copy of the conviction, as in Miller. We agree with Peoples that we should not stray so far from the Cummings rationale so as to approve the questioning of the witness without more than an NCIC rap sheet to wave in front of a jury.

The court thus reversed Barcomb's conviction.

-CM

In The Habit?: Central District Of Illinois Deems Safety Rating Evidence Admissible As Habit Evidence

Federal Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

So, let's say that a car driver sues a truck driver and his employer for negligence after a car accident and seeks to present into evidence the employer's safety ratings? Should the court allow for the admission of the evidence pursuant to Federal Rule of Evidence 406? According to the recent opinion of the United States District Court for the Central District of Illinois in Campbell v. RAP Trucking Inc., 2011 WL 3924177 (C.D.Ill. 2011), the answer is "yes." I agree that the evidence was admissible but don't agree that it was admissible under Rule 406.

I already discussed the facts of Campbell in my prior post, which dealt with the admissibility of evidence of log books under the Best Evidence Rule. In Campbell, the defendants tried to preclude the plaintiffs from presenting evidence of RAP Trucking's (presumably bad) safety ratings. In response, the plaintiff claimed "that evidence of RAP Trucking's safety ratings is admissible pursuant to Federal Rule[] of Evidence 406, as evidence of the habit and routine practice of RAP Trucking." Specifically, the plaintiff asserted "that the relevance of such evidence is that a poor rating of driver fatigue is relevant to the training and supervision by RAP Trucking over its drivers, including Defendant Gross."

The Central District of Illinois agreed with the plaintiff, concluding

that the safety ratings are permissible habit evidence of RAP Trucking under Rule 406 to prove that RAP Trucking might be lacking in its supervision and training of employees....Under Illinois common law, an employer may be liable for injuries resulting to third persons for negligent training or supervision of an employee if the plaintiff can establish "that the employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, having this knowledge, failed to supervise the employee adequately, or take other action to prevent the harm." Doe v. Brouillette, 906 N.E.2d 105, 115-16 (Ill.Appp.Ct. 2009) (internal quotations omitted). Although the Defendant is correct that poor safety ratings do not establish that Defendant Gross himself behaved in a dangerous manner, the poor safety ratings are potentially probative to the issue of whether RAP Trucking supervised their employees adequately or took other action to prevent the harm suffered by the Plaintiff. Nevertheless, unless the Plaintiff can actually present any evidence that RAP Trucking "knew or should have known" that Defendant Gross himself was behaving in a dangerous or incompetent manner, the probative value of the safety ratings have the potential to be substantially outweighed by the danger of misleading the jury.

As I said in the introduction, I think that the Central District of Illinois correctly concluded that this evidence was (potentially) admissible, but I don't think that it was admissible under Rule 406. Indeed, the court iteself noted that this evidence was only admissible if RAP Trucking "knew or should have known" that Defendant Gross himself was behaving in a dangerous or incompetent manner. That's because the evidence was admissible if at all to prove knowledge under Federal Rule of Evidence 404(b). Evidence that a defendant is "unsafe" us either inadmissible propensity character evidence or admissible under Rule 404(b). I don't see how evidence of safety ratings could be specific enough to qualify as habit evidence under Rule 406.

-CM

The Evidentiary Significance of “Tweets,” Texts and Status Updates (starring Justin Bieber)

Internet blogs recently lit up with reports of a minor traffic collision involving a Honda Civic and a Ferrari driven by pop sensation Justin Bieber (see, e.g., here).  The next day, bloggers reported an interesting development (see, e.g., here):  according to these blogs, another celebrity – “Everlast” – sent out the following electronic message (i.e., “tweet”) on Twitter “moments before the crash”:

OGEverlast  I just raced @justinbieber down Ventura in his Ferrari I won but a fedex truck got in his way . . . .                                                                                          30 Aug

What is particularly interesting about this sequence of events from an evidentiary perspective is the potential admissibility of Everlast’s “tweet” in any subsequent litigation.

Of course the tweet, if offered for its truth, is hearsay.  At the same time, as with many tweets (which are intended to communicate “what’s happening” at any given moment, see twitter.com), Everlast’s tweet may fall within the hearsay exception for present sense impressions.

 Under Federal Rule of Evidence 803:

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:  (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”

Everlast’s tweet describes an event Everlast perceived (according to Everlast) and was uttered, it appears, “just” after he perceived it.  Interestingly, California is one of the few jurisdictions that does not recognize a present sense impression exception along the lines of Rule 803(1) and so Bieber will escape the evidentiary force of the tweet so long as any litigation takes place in state, not federal court.

Even if Bieber is out of the woods, the evidentiary implications of electronic present sense impressions (e-PSIs as I call them) are potentially ground shaking.  Tweets, electronic text messages, Facebook status updates and the like are increasingly becoming a dominant form of communication – particularly among the younger generation.  Twitter claims that 200 million tweets are sent out every day.  Facebook has 750 million users.  Text messaging is ubiquitous (ykwim, LOL!).  If even a small portion of these communications are admissible as present sense impressions, their impact on the judicial system will be significant.

A more serious case that demonstrates how litigants can use the present sense impression exception to admit e-PSIs is State v. Damper, 225 P.3d 1148 (Ariz.App. 2010), where a victim used her cellphone to text a friend just prior to her murder:  “Can you come over? Me and Marcus are fighting and I have no gas.”  An Arizona appeals court upheld the admission of the text, which suggested a motive for the killing (by Marcus), as a present sense impression.  Id. at 1150, 1153.  The court also ruled that the text message was “nontestimonial” and thus not barred by the Confrontation Clause.  Id. at 1151.

One might interject that these tweets and texts are not particularly reliable (see, for example, damnyouautocorrect.com) and thus not the kind of evidence that should be admitted without the declarant’s testimony (or even any showing of the declarant’s unavailability).  In fact, initial reports of the Bieber collision do not seem to fit with any suggestion that it resulted from street racing (see here).   Further, the Evidence scholars who originally advocated for the adoption of the present sense impression hearsay exception almost certainly never intended for it to apply to statements like the ones described above.  But new technologies and social mores have rendered the assumptions of these scholars obsolete, and the modern present sense impression exception seems tailor-made for the admission of e-PSIs like those described above, with potentially disastrous results. 

The disconnect between the historical rationale for the present sense impression exception and the modern admission of e-PSIs may be the most fascinating piece of this analysis, but that story is long, complex, and does not involve Justin Bieber, Everlast or, for that matter, anyone flashier than Edmund Morgan.  So I will stop here for today so as not to lose my Bieber-related readership.  But for those interested, this topic – which I believe will become an increasingly important one – is covered in detail in a forthcoming article, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions (starring Justin Bieber)*

* actually that last bit is not part of the title . . .

Jeff Bellin