EvidenceProf Blog

EvidenceProf Blog's 5th Annual Halloween Movie Pick: Takashi Shimizu's "The Grudge"

It's Halloween again, which means that it's time for EvidenceProf's Blog's fifth annual Halloween movie pick (after "The Gift," "Homecoming," "Henry: Portrait of a Serial Killer," and "The Spiral Staircase."). For this year's pick, I'm once again digging into the archives from my days reviewing DVDs and pulling out a review. Ths year's pick is the director cut of "The Grudge," Takashi Shimizu's English-language remake of "Ju-On." 

The Grudge: Unrared Extended Director's Cut

In recent years, studios have frequently released raunchier, unrated versions of PG-13 comedies on DVD, but The Grudge: Unrated Extended Director's Cut uses the technique to its best effect, releasing an emasculated horror movie from the MPAA's shackles. Takashi Shimuzu's The Grudge could just as easily be titled Ghost House, name of the production company Sam Raimi and producer pal Robert Tapert christened for this film and, in the future, to provide a forum for other young horror directors like the 32 year-old Shimuzu.

But those expecting Raimi's brand of Three Stooges horror will be disappointed. From the shocking opening sequence, this film swan dives into a persistently dour tone (although, like Raimi's Evil Dead 2, this is essentially a remake of Shimuzu's original: Ju-On). What they will find, though, is an atmospheric haunted house yarn about a curse interweaving the lives of (mostly) American expats that's better than its rote script (think The Amityville Horror with a touch of Lost in Translation).

The director's cut isn't an earthshattering re-imagining of the film but it does allow Shimuzu to punctuate several scenes with extended gore -- especially the final act's reveals -- and accentuate two areas he monitored closely. First, in this cut, frequent Miguel Artera editor Jeff Betancourt's ability to wring creepy tension seems even more transferable from indie flicks like Chuck & Buck to the horror genre. Second, the tone established by cinematographer Hideo Yamamoto's lensing of twilight reflections and shadowy staircases recalls his work in the disturbing Audition, still the best Japanese horror film I've seen.

The 1:85 anamorphic widescreen transfer looks decent considering the film's sub-$10 million budget and Dolby Digital 5.1 emboldens horror soundtrack maestro Christopher Young's (Hellraiser) stringy crescendoes. The subtitled Japanese language commentary by Shimuzu, producer Taka Ichise, and actress Takako Fuji is essential for fans of Japanese horror. They combine detailed production, filmmaking, and East vs. West notes with enjoyable self-deprecation in the John Carpenter vein. It's even better than the track with Raimi and friends on the theatrical cut's DVD.

Most of the 15 deleted scenes, according to Shimuzu himself in optional commentary, consist of needless exposition and character (under)development added by novice American screenwriter Stephen Susco. But a few tingling scares are included. The free-form short films 4444444444 and In a Corner display Shimuzu sharply cutting his horror teeth and, along with "Sights and Sounds: The Storyboard Art of Takashi Shimuzu," serve as templates for the movie. A brief featurette on Iwao Saito's (Ringu) production design showcases set development, unlike the worthless "The Grudge House: An Insider's Tour."

Sarah Michelle Gellar and KaDee Strickland contribute video diaries but only the latter, a breezy Tokyo tour, merits a spin. The same might be said of this Director's Cut, a significant improvement over the theatrical cut.

-CM 

Forward Bias: Middle District Of Alabama Applies Rule 613(b) To Extrinsic Evidence Of Bias

Federal Rule of Evidence 613 provides that

(a) Examining witness concerning prior statement.

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

So, under Rule 613(b), extrinsic evidence of a witness' prior inconsistent statement is only admissible if "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." So, does the same hold with regard to extrinsic evidence of a witness' bias? According to the recent opinion of the United States District Court for the Middle District of Alabama in Johnson v. Alabama Community College System, 2011 WL 5078776 (M.D.Ala. 2011), the answer is "yes."

In Johnson, several plaintiffs brought a class action against the Alabama Community College System and related entities, alleging that they were discriminated against through the use of the C-3 salary schedule or the defendants' manipulation thereof.

Before trial, the defendants filed objections to certain exhibits, including a letter which allegedly would have shown that a defense witness was biased against one of the plaintiffs. The Middle District of Alabama deferred its ruling on the admissiblity of this letter initially noting that if the letter did show that a defense witness was biased, it would have been admissible without regard to Federal Rule of Evidence 608(b). The court then noted that

There is a split of authority as to whether a foundation must be laid, and a witness given a chance to comment on the potential bias-proving evidence, before extrinsic evidence of bias is introduced. 27 Charles Allen Wright & Victor James Gold, Federal Practice and Procedure § 6095 (1990). Because confusion of the issues potentially may substantially outweigh the probative value of this evidence, should [plaintiff] Ward seek to use Exhibit 199 to establish bias of a testifying witness, she must first inquire about the fact of [the letter writer]'s complaint, as provided in Rule 613. 

Here's the relevant portion of Wright & Gold cited by the court:

Authorities are split as to whether an impeaching party must give a witness a chance to explain or deny other facts indicating bias, such as the witness' conduct, as a condition to the admissibility of extrinsic evidence of those facts. Some commentators suggest no foundation is required because Rule 613 applies only to statements, not conduct. But the flaw in this argument is that Rule 613 has no direct connection to bias impeachment. As noted above, Rule 613 is persuasive in this context, but only as a guide to how discretion under Rules 403 and 611 should be exercised. The goals of those rules suggest that courts sometimes should require an impeaching party give the witness an opportunity to explain conduct indicating bias before extrinsic evidence is admitted. If mere words can be ambiguous indicators of bias, conduct can present even greater problems of interpretation. Thus, the witness' explanation of her conduct may be essential to drawing the proper inferences about bias. Further, time may be saved by giving the witness a chance first to admit to the conduct in question if, in so doing, extrinsic evidence on the subject becomes unnecessary.

Based on the discretionary nature of the powers created by Rules 403 and 611, it seems appropriate to treat this issue, like the others just discussed, with flexibility. In fact, given the broad discretionary powers granted by Rules 403 and 611, trial courts should have the flexibility to dispense with any foundation for extrinsic evidence whenever the interests of promoting the truth and saving time so require.

-CM

Be An Original: 5th Circuit Finds Computer Printout Of Insurance Policy Was An "Original" Under Rule 1001(3)

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.

That said, Federal Rule of Evidence 1001(3) provides that

An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

It was this last sentence of Rule 1001(3) that proved fatal to the defendants' Best Evidence Rule appeal in Time Ins. Co. v. Estate of White, 2011 WL 5105790 (5th Cir. 2011).

In Estate of White,

Defendants–Appellants, Patsy White and the estate of her deceased husband, Larrye J. White, appealed] the district court's grant of summary judgment and entry of declaratory judgment in favor of Plaintiff–Appellee, Time Insurance Co...., with respect to its obligations under a health insurance policy. 

In reaching its conclusion, the district court relied upon evidence produced by Time Insurance Company. Specifically, Time Insurance Company produced a computer printout of a policy numbered 0058461251, which was the insurance policy allegedly issued to Larrye J. White. 

After the entry of declaratory judgment against them, the defendants appealed, claiming that the computer printout violated the Best Evidence Rule. The Fifth Circuit disagreed, concluding that

"To prove the content of a writing,...the original writing...is required...." Fed.R.Evid. 1002. "If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original.'" Fed.R.Evid. 1001(3). Time provided ample evidence that its copy of the insurance policy, and the faxed application, riders, and acceptance of offer form, all signed by the Whites, were maintained by its computers in the regular course of business and are inalterable. Accordingly, the documents produced by Time are originals, and are admissible to prove their contents.

-CM

One Mississippi: Court Of Appeals Of Mississippi Applies Ridiculous Exception To Rule 404(b) In Child Molestation Case

Like its federal counterpart, Mississippi 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 that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In other words, under Rule 404(b), evidence of past rapes by a defendant charged with rape would be inadmissible to prove, "Once a rapist, always a rapist." And evidence of past acts of child molestation would be inadmissible tor prove, "Once a child molester." That said, Federal Rule of Evidence 413 and Federal Rule of Evidence 414, passed as part of the Violent Crime Control and Law Enforcement Act of 1994, do allow for the admission of evidence of past rapes and acts of child molestation to prove propensity and conformity. Mississippi does not, however, have counterparts to Rules 413 and 414? So why do Mississippi courts routinely allow for the admission of evidence of past rapes and acts of child molestation by defendants? Let's check out the recent opinion of the Court of Appeals of Mississippi inYoung v. State, 2011 WL 5027251 (Miss.App. 2011).

In Young, Johnny R. Young Jr. was convicted of three counts of sexual battery of a minor based upon acts that he allegedly committed against his eight-year-old daughter, "Cindy." At trial,

Anna Smith, Young's half-sister, presented testimony that twenty years ago, when Young was fifteen years old and Anna was five years old, Young had Anna take off her pants, removed his pants, and bounced her on his leg, rubbing his penis against her. Anna's mother, who was also Young's step-mother, walked in and witnessed this event. Young was sent to Meridian, Mississippi, for several months to receive mental-health treatment. 

After he was convicted, Young appealed, claiming, inter alia,

that the admission of this evidence was error, especially as it "was too remote in time and different from the events alleged by [Cindy]," and that the State "failed to establish the alternate basis for the admissibility of the evidence."

The Court of Appeals of Mississippi, however, noted that while such evidence would ordinarily be inadmissible under Mississippi Rule of Evidence 404(b), the Supreme Court of Mississippi carved out an exception to this Rule in Derouen v. State, 994 So.2d 748 (Miss. 2008), in cases that involve the sexual assault of a minor, stating:

Sex crimes against children are furtive, secret events usually lacking evidence other than the conflicting testimony of the defendant and the victim. The only viable proof of motive, intent, plan, knowledge, identity or absence of mistake or accident may be the pattern of abuse suffered by others at the hands of the defendant.

In an accompanying footnote, the Court of Appeals noted that

The Derouen court also stated that it was "time for this Court to consider amending the Mississippi Rules of Evidence by way of the adoption of rules modeled after Federal Rule of Evidence 413 and 414" and referred the issue to the Rules Committee "for study and recommendation to the en banc court." 

My conclusion: Maybe it's time that Mississippi actually adopts counterparts to these Rules rather than operating under the ridiculous pretense that evidence of prior rapes/child molestation is actually admissible for a permissible purpose under Rule 404(b). According to the Court of Appeals, the admission of Anna Smith's testimony was permissible because the trial court gave the jury the following instruction:

The testimony of the [S]tate's witness, [Anna Smith], which is not part of charged conduct in this case, is to be used for the purpose of establishing motive, intent, plan, knowledge, identify, or absence of mistake or accident on the part of the defendant JOHNNIE R. YOUNG and should not be considered as proof of the defendant's character or to show that he acted in conformity therewith.

This instruction is laughable because obviously Smith's testimony was admitted to prove, "Once a child molester." I certainly wasn't admissible to prove that Young had knowledge, i.e., knew how to commit child molestation. It wasn't admissible to prove common plan or scheme because a 20 year-old act of sexual abuse against a younger sister and a recent act of child molestation against a daughter are not at all similar. You can tick off each of the listed purposes in Rule 404(b) and realize that none of them make sense in the context of Young's case. The way I see it, Derouen is similarly nonsensical and should be overruled by the Supreme Court of Mississippi.

-CM

You Complete Me: Court Of Appeals Of Hawai'i Finds No Confrontation Clause Problem With Rule Of Completeness

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In other words, the Confrontation Clause is violated when testimony or testimonial hearsay is admitted against a defendant and he is not given the chance to cross-examine the declarant.

Meanwhile, like its federal counterpart, Hawai'i 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 party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

So, let's say that a criminal defendant admits part of a testimonial statement by a nontestifying declarant under an exception to the rule against hearsay and the prosecution then seeks to other parts of that testimonial statement under the rule of completeness. Can the prosecution do so consistent with the Confrontation Clause? According to the recent opinion of the Court of Appeals of Hawai'i in State v. Brooks, 2011 WL 5029439 (Hawai'i App. 2011), the answer is "yes."

In Brooks, Ray Brooks and Sistine Rangamar were charged with the murder, kidnapping, and robbery of Ted Arifuku. Shortly before his arrest, Rangamar gave a statement to the police in which he admitted that he had assaulted, restrained, and robbed Arifuku but also asserted that his actions had been pursuant to a plan devised by Brooks and implicated Brooks in Arikufu's murderr. Rangamar thereafter committed suicide before trial.

Brooks then

filed a pre-trial motion in limine, seeking authorization to introduce at trial selected portions of Rangamar's statement that incriminated Rangamar. Brooks sought to introduce these self-incriminating portions of Rangamar's statement to bolster his claim that Rangamar was solely responsible for the offenses committed against Aikufu against Arifuku.

The State countered

that if Brooks was allowed to introduce the self-incriminating portions of Rangamar's statement, then the State should be allowed to introduce other portions of the statement that incriminated Brooks, pursuant to the "rule of completeness"....Brooks countered that the self-incriminating portions of Rangamar's statement were admissible as statements against penal interest...but that the admission of the portions of Rangamar's statement that incriminated Brooks would violate Brooks's constitutional right of confrontation under Crawford v. Washington.

The Circuit Court ultimately concluded

that the self-incriminating portions of Rangamar's statement that Brooks sought to introduce, when taken in isolation, were "likely to mislead the jury and to distort the content and context of Rangamar's entire statement." The Circuit Court also concluded that "Crawford does not bar the introduction of evidence required under HRE Rule 106."

At trial, Brooks introduced parts of Rangmar's statement, and the prosecution admitted the other parts of Rangmar's statement, with Brooks eventually being convicted of manslaughter, kidnapping, and robbery. After he was convicted, Brooks appealed, claiming that the CIrcuit Court's evidentiary ruling was erroneous.

The Court of Appeals of Hawai'i found no error, concluding that

Crawford did not address the rule-of-completeness situation presented by this case. In Crawford, it was the prosecution that, in the first instance, introduced the testimonial hearsay statement....Here, it is Brooks that introduced selected portions of Rangamar's testimonial hearsay statement and then invoked Crawford in an attempt to prevent the State from placing Rangamar's statement in context and presenting an accurate picture of Rangamar's statement to avoid misleading the jury.

The right of confrontation is not absolute, and we conclude that it cannot be used to distort and subvert the truth-seeking function of the criminal trial process by authorizing the admission of evidence in a manner that would mislead the jury....Brooks sought to introduce selected portions of Rangamar's statement to support his claim that Rangamar acted alone and was solely responsible for the crimes committed against Arifuku. However, permitting Brooks to use Rangamar's statement in this fashion would have misled the jury since Rangamar's statement also asserted that Rangamar acted pursuant to a plan devised by Brooks and implicated Brooks in Arifuku's murder. The Circuit Court properly ruled that if Brooks decided to introduce selected portions of Rangamar's statement, the State would be entitled to introduce other portions of the statement necessary to prevent the jury from being misled.

The court then found support for its conclusion, noting that

It appears that the overwhelming majority of jurisdictions that have addressed the issue presented in this appeal have held that Crawford does not preclude the application of the rule of completeness when a defendant selectively introduces portions of a testimonial hearsay statement.

-CM

Law & Crit, Take 2: "The Green Mile" & The Death Penalty

I can vividly remember the announcement of Stephen King trying his hand at the serialized novel with "The Green Mile" back in 1996. Two things especially excited me about the announcement. Back in grade school, I had done a report about the invention of the cliffhanger. In those pre-internet days, I remember the joy I experienced upon uncovering the needle in the Dewey Decimal system when I learned that the original cliffhanger was an actual cliffhanger: Thomas Hardy published "A Pair of Blue Eyes" in serialized fashion in Tinsley's Magazine from 1872-1873, and, at the end of one serial, Hardy chose to leave one of the main protagonists, Henry Knight, literally hanging off a cliff staring into the stony eyes of a trilobite. I wanted to see the master of horror tackle the format.

Second, my favorite Stephen King book was "Different Seasons." "Different Seasons" was actually a collection of four Stephen King novellas, and part of the reason that I think I liked it the most was that it was the most cinematic of King's works. Indeed, three of the novellas were eventually turned into pretty good movies: "The Body" became the Rob Reiner classic, "Stand by Me," "Apt Pupil" became Bryan Singer's creepy movie of the same name, and "Rita Hayworth and Shawshank Redemption" became Frank Dararabont's Oscar-nominated and slightly less awkwardly-titled "The Shawshank Redemption." The last of these was my favorites, and "The Green Mile" promised to return me to King doing a period prison drama, which whetted my appetite. Every month from March to August in 1996, I would go to the local Waldenbooks and pick up the latest entry in the series, hanging on each new cliff that King threw at me.

That said, when it was later announced that Dararabont would be adapting "The Green Mile" as a feature length film, I was perplexed. Not because I disliked "The Shawshank Redemption." I loved it and like many others caught it several times during its constant loop on TNT. But I was confused because more than any other King work (except maybe "The Dark Tower"), it seemed to scream out for the miniseries treatment a la "It" or "The Stand" given its serialized nature. In the end, though, I don't know if it was the format that dulled the movie version of "The Green Mile" for me as much as the fact that it was too on the nose. "The Shawshank Redemption" was a bit on the nose as well, but that doesn't matter when you have Morgan Freeman giving the best voiceover narration in the history of cinema.

Dararabont later turned his adaptation of King's "The Mist" into a post-9/11 allegory (much like Ronald D. Moore's "Battlestar Galactica"), which elevated my appreciation of the movie (and freaked me out). But his adaptation of the "The Green Mile" didn't really dig beneath the surface of King's book. It's a movie about the death penalty, but it's not much more than a story about the execution of a wrongfully convicted man with magical powers. Like Dararabont's "The Walking Dead," it's a fun enough ride but lacking in (figurative) bite.

Today, in the second of her posts in "The Pop Culture and Death Penalty Project," Alyssa Rosenberg writes about the movie version of "The Green Mile," and, as in her first post (which I discussed here) I  think that she raises some good points. Specifically, she argues that the movie is

not particularly useful as a basis for a real-world conversation about the death penalty. People who perform executions may have the experience of helping to kill innocent people — we know some of them certainly have. But they’re deeply unlikely to execute people who are not only innocent but honest-to-god saintly miracle workers who absolve them on the way to the electric chair, telling them, as John tells Paul, "You tell God the father it was a kindness you done."

Rosenberg does point out, though, that "the movie is an intermittently powerful allegory about responsibility, and the way we distance ourselves from culpability and full understanding of what we're doing." I think that this is a fair point, with the key word being "intermittently." But what the movie is clearly not is a meditation on the death penalty. Indeed, some have claimed that "The Green Mile," is politically conservative because it does "not challenge 'the basic categories through which we judge murderers and assess penalties.'" Paul Schiff Berman, When the State Kills:  Capital Punishment and the American Condition. By Austin Sarat. Princeton: Princeton University Press, 2001. PP. 324., 102 Colum. L. Rev. 1129, 1166 (2002).

I'm not sure that I would paint "The Green Mile" with such a broad brush, but I see the point. When you have a death penalty movie which asks us to question the death penalty as applied to an innocent (and magical) man, the underlying assumption is that the death penalty is defensible as applied to the guilty. In her post, Rosenberg explains her position

that it makes more sense to set the standard for conversation about the death penalty that it should be abolished in all circumstances, even in the astonishingly unlikely chance that we achieve a perfectly just criminal justice system that has no clear disparate impact on people of any rage, gender, class, or creed.

"The Green Mile," as a movie about the wrongfully convicted, doesn't deal in this reality. Indeed, as a movie about the indisputably wrongfully convicted, it doesn't trade in anything close to reality. According to Gregg Mayer in The Poet and Death: Literary Reflections on Capital Punishment Through the Sonnets of William Wordsworth, 21 St. John's J. Legal Comment. 727 (2007),

As discussed by Professor David Dow:

God will want to know how (Edgecomb) could have killed one of His miracles, and what will (Edgecomb) say? That he was just doing his job? And yet, though he must be prodded by his assistant to give the order to carry out the execution, in the end (Edgecomb) does so. He shuffles over to Coffey and clandestinely shakes his hand. Then he gives the order, and Coffey is electrocuted. 

Mayer then concludes that "Edgecomb chooses societal order over justice, and risks his own spiritual self for the sake of the state." But this is not the Solomonic choice that most involved in the criminal justice system must make. Prosecutors often prosecute death penalty cases when they know that defendants might be innocent. If they know that the defendant is not guilty, they won't (or at least shouldn't) prosecute the defendant. Jurors often sentence defendants to die even in cases based solely on circumstantial evidence. But they don't convict or sentence defendants they know to be innocent. If the Supreme Court thinks that a defendant might be innocent, it might still refuse to give him relief, as with the recent case of Troy Davis that led to Rosenberg's project. But if the Supreme Court knows that a defendant is innocent, it will grant him relief, as in Chambers v. Mississippi.   

A meditation on the death penalty would deal with doubt. Doubt about whether the death penalty can ever be justified. Doubt about whether the defendant was really guilty. I want to see these movies. I want to see a juror, a judge, a prosecutor, an executioner questioning whether he did the right thing, like Meryl Streep in "Doubt." "The Green Mile" is not that movie. 

-CM

Undiagnosed: Court Of Appeals Of Iowa Finds Granddaughters' Statements Inadmissible Under Rule 5.803(4)

Like its federal counterpart, Iowa Rule of Evidence 5.803(4) provides an exception to the rule against hearsay for 

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

So, let's say that four granddaughters tell a forensic interviewer and a child protective worker that their grandfather physically and sexually abused them. Would these statements qualify as statements for purposes of medical diagnosis or treatment? According to the recent opinion of the Court of Appeals of Iowa in State v. Moore, 2011 WL 4950180 (Iowa App. 2011), the answer is "no," at least based upon the facts before it.

In Moore, the facts were as stated above, with Jerry Moore being convicted of two counts of second-degree sexual abuse, one count of indecent contact with a child, and four counts of child endangerment. Before Jerry Moore was charged, David Moore, Jerry's grandson, and his wife Kandice,

invited [Jerry]'s granddaughters to their house the following week. The girls spent the night and told David and Kandice they were being sexually and physically abused by their grandfather. Kandice called the Iowa Department of Human Services (Department) the next morning, on February 14, and reported the abuse. A child protective worker with the Department and a police officer arrived at David and Kandice's house later that afternoon. All of the children, except A.M., reported that Moore had touched them inappropriately and hit them. They also said Moore showed them pictures of naked women and people having sex on the computer and in magazines.

Later,

Each of the girls was interviewed by a forensic interviewer at a child advocacy center. [At trial,] [o]ver defense counsel's hearsay objections, the interviewer was allowed to testify about statements the children made to her during the interviews, as were the child protective worker and police officer that interviewed the children at the beginning of the case. 

The district court allowed for the admission of the granddaughters statements to the child protective worker, the forensic interviewer, and others as prior consistent statements under Iowa Rule of Evidence 5.801(d)(1)(B). In response to Jerry Moore's appeal after he was convicted, however, the State acknowledged that these statements were improperly admitted under this Rule.

The State claimed, however, that these statements alternately could have been admitted as statements made for purposes of medical treatment or diagnosis under Iowa Rule of Evidence 5.803(4). The Court of Appeals of Iowa quickly disagreed, curtly concluding, "We question this premise, especially with respect to the forensic interviewer and the child protective worker, as there was minimal evidence showing the children's statements to these witnesses satisfied the two-part test for admissibility detailed in State v. Tracy, 482 N.W.d 675, 681 (Iowa 1992).

In Tracy, the Supreme Court of Iowa had held that statements are only admissible under Iowa Rule of Evidence 5.803(4) if two conditions are satisfied:

"first the declarant's motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis."

-CM

The Privilege Was Mine: Eastern District Of Virginia Finds Rule 612 Refreshment Didn't Vitiate Privilege

Federal Rule of Evidence 612 states that

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

(1) while testifying, or

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

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

So, let's say that a party uses privileged documents to refresh the recollection of a witness prior to a deposition. Does the party now need to produce those documents to the adverse party? If you want to know the answer, the recent opinion of the United States District Court for the Eastern District of Virginia in Brown v. Tethys Bioscience, Inc., 2011 WL 4829340 (E.D.Va. 2011), is probably your best bet.

The facts in Brown were as stated above, with the plaintiffs served a subpoena duces tecum issued by this Court on a former executive for the defendant, ordering him to produce "any and all documents [he] brought to [his] deposition taken in this case on March 24, 2011, in Richmond, Virginia." In response, the defendant moved to quash the subpoena pursuant to Federal Rule of Civil Procedure 45, claiming that two documents that the former executive brought to his deposition — the "October 11, 2010 E–Mail" and the "October 12, 2010 Document" — wre protected by the attorney-client privilege and/or the work product doctrine. 

In addressing this issue, the Eastern District of Virginia initially noted that

Courts have developed the following three-part test to determine whether otherwise privileged documents should be produced under Rule 612 based on their use by a deponent to refresh his or her recollection prior to the deposition: "(1) a witness must use a writing to refresh his or her memory; (2) for the purpose of testifying; and (3) the court must determine that, in the interest of justice, the adverse party is entitled to see the writing."

The court then noted that

Factors to consider when making this determination include the following: (1) the witness's status; (2) the importance of the witness's testimony to the case; (3) when the events took place; (4) when the documents were reviewed; (5) the number of documents reviewed; (6) whether the witness prepared the documents reviewed; (6) what type of privilege applies to the documents; (7) whether the documents were previously disclosed; and, (8) the existence of credible concerns regarding manipulation, concealment, or destruction of evidence.

And, according to the court, there was a an insurmountable problem for the plaintiffs: They merely claimed that the former executive "brought several documents in a folder to the deposition," that he "reviewed the documents in preparation for the deposition," and that he referred to and reviewed the documents "while formulating a response to questions." According to the court: 

Because they fail to specify any conduct regarding the two documents subject to challenge here, these conclusory allegations insufficiently meet the burden under Rule 612. Rule 612 provides access "'only to those writings which may fairly be said in part to have an impact upon the testimony of the witness.'"...Plaintiffs have failed to sufficiently demonstrate that Funk reviewed the October 11, 2010 E–Mail and the October 12, 2010 Document while testifying or in preparation for testifying. This failure renders Rule 612 inapplicable.

Moreover, the Eastern District of Virginia found that

Even if the Court were to assume that Funk reviewed the October 11, 2010 E–Mail and the October 12, 2010 Document in preparation for testifying, the Court, in its discretion, would not require the production of the two documents. Considering the information contained in these two documents, the need to fully examine Funk's testimony, the policies underlying the privileges at issue, and the other factors listed above, the Court concludes that the balance weighs against requiring the production of these two documents.

-CM

How To Be Elusive: Colorado Court Of Appeals Finds Trial Court Erred In Granting New Trial Based On Jury Misconduct

Similar to its federal counterpart, Colorado 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

So, let's say that a defendant is convicted of vehicular eluding. And let's say that several jurors had looked at or heard a dictionary definition of "elude" during deliberations. Can the defendant present juror affidavits concerning what happened, and will those affidavits be sufficient to award the defendant a new trial? Those were the questions addressed by the Colorado Court of Appeals, Division II, in its recent opinion in People v. Holt, 2011 WL 4837640 (Colo.App. 2011).

In Holt, the facts were as stated above, with the vehicular eluding statute in Colorado stating that

Any operator of a motor vehicle who the officer has reasonable grounds to believe has violated a state law or municipal ordinance, who has received a visual or audible signal such as a red light or a siren from a police officer driving a marked vehicle showing the same to be an official police, sheriff, or Colorado state patrol car directing the operator to bring the operator's vehicle to a stop, and who willfully increases his or her speed or extinguishes his or her lights in an attempt to elude such police officer, or willfully attempts in any other manner to elude the police officer, or does elude such police officer commits a class 2 misdemeanor traffic offense.

The trial court granted the defendant's motion for a new trial, but the Court of Appeals of Colorado later reversed. The Colorado Court of Appeals noted that "the trial court found that a member of the jury brought a dictionary definition of 'elud'” or 'eluding' into the jury room and shared it with several jurors." And, according to the court, "[a] juror's looking up of a dictionary definition of a crime of which the defendant has been charged is improper and affidavits concerning that fact are admissible under CRE 606(b)." 

But according to the court, the problem for the defendant was that

The affidavits d[id] not...disclose what definition the jurors considered, or whether the definition was inconsistent with the language of the vehicular eluding statute. Defendant bears the burden of proving that the extraneous information posed a reasonable possibility of prejudice to him...By failing to provide the content of the definition, defendant failed to meet his burden of proving prejudice. The trial court, therefore, erred by concluding that the definition presented to the jury was prejudicial and ordering a new trial based on that conclusion.

Indeed, the court noted that

At the hearing on the motion for a new trial, the prosecution presented two dictionary definitions of "elude" to the trial court, which indicate that eluding involves "skill" or "trickery." If the jury had viewed those definitions, it may have added those concepts as additional elements to be proven, increasing the prosecution's burden. See Wiser, 732 P.2d at 1143 (holding that the defendant was not prejudiced by the jury's exposure to the dictionary definition of "burglary" because the definition referenced theft, which was not an element the prosecution was required to prove).

-CM

Can I Get A Summary?: 1st Circuit Finds No Obligation To Produce Summaries Before Trial Under Rule 1006

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.

So, the proponent of a summary under Rule 1006 must make the originals or duplicates that are summarized available for examination and/or copying by other parties at a reasonable place and time. But what about the summary itself? Mist that also be made available? According to the recent opinion of the First Circuit in Colon-Fontanez v. Municipality of San Juan, 2011 WL 4823189 (1st Cir. 2011), the answer is "no." I disagree.

In Colon-Fontanez, Nitza I. Colón–Fontánez appealed a district court's award of summary judgment to ger employer, the Municipality of San Juan, on her claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act and retaliation in violation of Title VII of the Civil Rights Act. One of the grounds for Colón–Fontánez's appeal was that the district court erred in allowing the Municipality to admit summary charts and graphs that consisted of a condensed presentation of her extensive record of work attendance over her near two-decade period of employment.

According to the First Circuit,

the charts served as an appropriate presentation of "voluminous writings" that "cannot conveniently be examined in court," as required by Rule 1006. Further, the underlying materials on which the summary evidence was based were admissible in evidence pursuant to Fed.R.Evid. 803(6), as they consisted of attendance records kept in the course of the Municipality's regularly conducted business, according to a regular procedure, and for a routine business purpose.

Colón–Fontánez, however, claimed that the district court erred in admitting the summary charts and graphs because, inter alia, they were never produced to Colón during the discovery process. The First CIrcuit disagreed, concluding that

Rule 1006 provides that only the underlying documents, not the summaries themselves, must be produced to the opposing party. See Fed.R.Evid. 1006 ("The originals [of the contents of the writings], or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place."). The circuits recognize this well-settled principle. Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d 1, 7 & n.14 (1st Cir. 1996); see also United States v. Bakker, 925 F.2d 728, 736 (4th Cir. 1991) ("The language of [Rule 1006]...simply requires that the [original voluminous] material be made available to the other party."); Coates v. Johnson & Johnson, 756 F.2d 524, 550 (7th Cir. 1985) (Rule 1006 requires that"“only the underlying documents, and not the summaries, must be made available to the opposing party"). Thus, Colón's first argument as to the summary charts is incorrect: the Municipality had no obligation to provide the charts to Colón.

Now, technically I agree with these courts that there is nothing explicitly in the language of Rule 1006 that forces the proponent of a summary to make the summary available for examination and/or copying before trial. But shouldn't such an obligation be inferred from the purpose of the Rule? The purpose of Rule 1006 is to allow the proponent to be able to present a concise summary of voluminous writings, recordings, or photographs at trial where it wouldn't be practicable to lug in and use all of those originals at trial. 

But if we don't force a proponent to make such a summary available to the opposing party before trial, then aren't we shifting that burden to the opposing party? If the opposing party is claiming that the summary is inaccurate/unrepresentative, wouldn't that opposing party now need to lug all the originals into court and sift through them at trial so that it can support its argument? Why shouldn't courts instead force proponents to produce summaries to opposing parties before trial so that this comparison can be made before trial?

-CM

The Hound Baskerville: 3rd Circuit Finds District Court Didn't Err In Failing To Hold Forfeiture By Wrongdoing Hearing

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

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

So, let's say that the prosecution files a motion in limine seeking to introduce statements under this forfeiture by wrongdoing exception. Does the trial court need to hold a pretrial evidentiary hearing before it deems the statements admissible? According to the recent opinion of the Third Circuit in United States v. Baskerville, 2011 WL 4850257 (3rd Cir. 2011), the answer is "no."

In Baskerville, 

Federal law enforcement officials enlisted the help of Kemo McCray...in their investigation of a New Jersey drug ring that included [William] Baskerville. McCray worked as a paid informant, making numerous controlled purchases of drugs from Baskerville between February and November of 2003. Based upon reports and recordings of his interactions with McCray, Baskerville was eventually arrested and charged with participating in a drug distribution conspiracy. Prior to Baskerville's trial on the drug conspiracy charges at which he was to testify, McCray was shot and killed. The Government then also charged Baskerville with ordering McCray's murder, alleging that through his attorney, Paul Bergrin..., Baskerville directed associates of his to kill McCray. 

After Baskerville was convicted, he appealed, claiming, inter alia, that the district court erred in not holding a pretrial evidentiary hearing in response to the prosecution's motion in limine seeking to introduce McCray's hearsay statements under Federal Rule of Evidence 804(b)(6). The Third CIrcuit disagreed, concluding that

The District Court did not abuse its discretion by failing to hold a full pretrial hearing because the process it followed adequately protected against improper admission of McCray's statements. The District Court requested a proffer to demonstrate that McCray's statements should be admitted subject to the necessary connection being made at trial. In response, the Government named several witnesses who would offer evidence that Baskerville sought McCray's murder to beat drug charges. Defense counsel only challenged their credibility, not the sufficiency of the showing the prosecution anticipated making at trial. Perhaps if the Government's proffer had given the District Court reason to doubt its ability to actually deliver this proof at trial, an evidentiary hearing may have been in order. However, under these particular circumstances, we cannot say that the District Court abused its discretion by proceeding without one.

The court also noted, "We have upheld this procedure with respect to the admission of co-conspirator statements under FRE 801(d)(2)(E) and find no convincing reason to treat statements like McCray's differently." 

(The court also pointed out that "[a]s the District Court noted, this Court has yet to decide the appropriate evidentiary standard for admitting statements pursuant to FRE 804(b)(6). We decline to decide that issue here. Under either a clear and convincing evidence standard or a preponderance of the evidence standard, the Government's showing sufficed.").

-CM

Law & Crit: Alyssa Rosenberg's Pop Culture and the Death Penalty Project

Alyssa Rosenberg is one of my favorite writers on the internet because she writes about two of my passions -- politics and pop culture -- in an idiosyncratic but accessible way. You can find some of her pieces in The Atlantic, but in the post I want to focus upon her work at ThinkProgress, and specifically her new Pop Culture and the Death Penalty Project. Basically, in the shadow of the Troy Davis execution, Rosenberg decided to "to pay some serious attention to the death penalty in popular culture." And her attention will consist of weekly blog posts on a series of books, movies, and TV shows that could provide serious fodder for a "Law & Film" or "Law & Literature" seminar.

Her first post was yesterday, and it concerns Richard Wright's incendiary novel, "Native Son," which I rank as one of the greatest legal novels of all time, in large part because of its authenticity, which is unsurprising given that Wright was inspired in writing the novel by a triptych of real world trials involving Robert Nixon, the Scottsboro Boys, and Leopold & Loeb. In her post, Rosenberg notes that the prosecutor in "Native Son" makes a deterrence-based argument in favor of the death penalty while Mr. Max at least in part makes a teleological argument against it:

The surest way to make certain that there will be more such murders is to kill this boy. In your rage and guilt, make thousands of other black men and women feel that the barriers are tighter and higher! Kill him and swell the tide of pent-up lava that will some day break loose, not in a single, blundering, accidental, individual crime, but in a wild cataract of emotion that will brook no control.

Rosenberg then concludes that "I think there’s some danger in making this utilitarian argument, because it leaves open the possibility that if we were to achieve racial equality and harmony, if our justice system worked perfectly, the death penalty might, perhaps, in the sweet by and by be permissible, a canker in the rose." I agree, and I think that the Supreme Court missed its chance to drive a stake through the heart of the death penalty in 1972 in Furman v. Georgia, 408 U.S. 238 (1972), by merely concluding that the death penalty as it was currently applied was arbitrary and capricious based upon factors such as race and class disparities.

Furman in effect placed a temporary moratorium on capital punishment, but, in movie terms, the Court left the death penalty open for sequels and its eventual resurrection 4 years later in Gregg v. Georgia, 428 U.S. 153 (1976), when the Court felt that the penalty's ills had been cured after some Frankensteinian tinkering. You can check out Rosenberg's post for all of her thoughts, and for further reading, I would recommend I. Bennett Capers, The Trial of Bigger Thomas: Race, Gender, and Trespass, 31 N.Y.U. Rev. L. & Soc. Change 1 (2006).

You can check out the schedule of Rosenberg's upcoming posts here. I'm especially excited about her future post on Stanley Kubrick's chilling "Paths of Glory." I still get shaken when thinking about the final scene as Kirk Douglas walks toward the camera as "The Faithful Hussar" plays in the background.

So, what film, TV show, book, and song on the death penalty would I recommend?

Movie: Errol Morris' "Mr. Death: The Rise and Fall of Fred A. Leuchter, Jr." I saw this doc on a twin bill with "American Movie" at the Music Box Theatre back in 1999, right before I went to law school. Leuchter was the the original creator of most execution equipment in this country and later co-opted by Holocaust deniers to "prove" that there were no gas chambers. Morris' doc was one of the main inspirations for me to decide writing about the law, and indeed, it led to my first legal article, A Death By Any Other Name: The Federal Government's Inconsistent Treatment of Drugs Used in Lethal Injections and Physician-Assisted Suicide, 17 J.L. & HEALTH 217 (2002-03).

TV Show: "The Good Wife" is about as good as it gets in terms of legal TV shows, and, especially given that it takes place in Chicago, I often find myself showing clips of it to my classes and even commenting about it on this blog (see, e.g., here and here). That said, I don't think that Alicia Florrick and company have handled (m)any death penalty cases. Before making "The Good Wife," however, co-creators Michelle King and Robert King made the one season wonder "In Justice," in which Kyle McLaughlin led a motley crew at an Innocence Project-type organization as they tried to free prisoners from death row. Especially good on the show was Jason O'Mara in the Kalinda Sharma investigator role (sometimes I get the feeling that the Kings are more interested in the investigators than the lawyers, which isn't necessarily a bad thing).

Book: I never could get into Scott Turow's legal fiction, but I enjoyed him as a talking head in ESPN's recent "Catching Hell." Maybe, then, Turow just works better for me in the nonfiction context because I dug the hell out of his "Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty," which concern his time on Illinois's Commission on Capital Punishment, which led to a temporary moratorium on the death penalty in Illinois (which, unlike the Supreme Court, Illinois made permanent earlier this year). 

Song: Elvis Costello has been one of my favorites since I saw footage of him biting the corporate hand that fed him in 1977 on "Saturday Night Live" and aborting a performance of "Less Than Zero" to instead perform "Radio Radio." I don't know whether it was true, but the rumor was that Costello was banned from SNL for 12 years, making it a big event in 1989, when a 13 year-old version of myself saw him return and perform "Let Him Dangle." The song, inspired by the Derek Bentley case, contains lyrics such as these:

Well it's hard to imagine it's the times that
have changed
When there's a murder in the kitchen that is
brutal and strange
If killing anybody is a terrible crime
Why does this bloodthirsty chorus come round
from time to time
Let him dangle

-CM

Gross Out, Take 2: Texas Also Allows Experts To Testify About Defendant Doctors' Gross Negligence

In a post a couple of days ago, I noted that expert testimony that Dr. Conrad Murray acted with "gross negligence" was likely proper under California law even though it would be improper under the law of many (most?) other jurisdictions. After some further, research, I uncovered a Supreme Court of Texas opinion revealing that the such testimony would also be admissible under Texas law.

In Hall v. Birchfield, 718 S.W.2d 313 (Tex.App.-Texarkana 1986),

Kellie Birchfield was born on August 14, 1974, at Wadley Hospital in Texarkana to parents, Phillip J. Birchfield and Mary Jo Birchfield. The infant was two to three months premature and weighed two pounds, seven ounces. She was born with a congenitally small and functionless right eye. She was treated in the hospital nursery from the date of her birth until her discharge on November 14, 1974. Shortly afterwards, she was seen by an ophthalmologist, who diagnosed a RLF [retrolental fibroplasia] condition in her left eye. The condition...caused total loss of sight in her left eye. Scientific studies dating from the 1940's and 1950's suggest[ed] that a causal relationship exists between the administration of high levels of oxygen to premature infants and the occurrence of RLF.

In the Birchfields' action for medical malpractice against the treating physicians and the hospital, they presented expert testimony that the physicians acted with gross negligence, and the jury ultimately found for the plaintiffs. The Court of Appeals of Texas, Texarkana, later found on appeal that this testimony was properly admitted, concluding that

Tex.R.Evid, 704 permits testimony in the form of an opinion or inference otherwise admissible even though it embraces an ultimate issue to be decided by the trier of fact. This rule did not change the existing state of evidence law in Texas. Prior to codification of the Texas Rules of Evidence, Texas did not exclude opinions on the basis that they embraced an ultimate issue or invaded the province of the jury....However, the new rule did not open the door to matters which contain opinions as to points of law or questions of mixed fact and law. What constitutes negligence or malpractice on the part of a physician is a mixed question of law and fact that can only be determined by the trier of fact on basis of evidence admitted and instructions given by the court. A medical expert is not competent to express an opinion on what constitutes negligence or malpractice on the part of a physician....An expert witness can give information about standards of medical practice but should not express an opinion as to the conduct that might be expected of a hypothetical doctor similarly situated.

On appeal, however, the Supreme Court of Texas disagreed in Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361 (Tex. 1987), concluding that

The Birchfields' expert witness testified on direct examination that Wadley's conduct constituted “negligence,” “gross negligence,” and “heedless and reckless conduct,” and that certain acts were “proximate causes” of Kellie's blindness. Contrary to the holding of the court of appeals, such testimony is admissible. TEX.R.EVID. 704. Fairness and efficiency dictate that an expert may state an opinion on a mixed question of law and fact as long as the opinion is confined to the relevant issues and is based on proper legal concepts.

In Smogor v. Enke, 874 F.2d 295 (5th Cir. 1989), however, the Fifth Circuit found that a district court did not abuse its discretion in applying Federal Rule of Evidence 704 to exclude expert testimony that a doctor acted with "gross negligence" despite the plaintiffs' citation to Birchfield.  

-CM

Wild West Virginia: SD WVa Deems Child Molestation Conviction Inadmissible Under Rule 609(a)(1)

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....

So, let's say that a plaintiff brings tort and constitutional claims against defendants. And let's say that the plaintiff has a prior child molestation conviction. Should the defendants be able to use evidence of that conviction to impeach the plaintiff? According to the recent opinion of the United States District Court for the Southern District of West Virginia in Merritt v. Matheny, 2011 WL 4833043 (S.D.W.Va. 2011), the answer is "no."

Unfortunately, the court's opinion in Merritt is not chock full of details, but it appears that William Merritt brought battery and § 1983 violations claims against officials at Mount Olive Correctional Center based upon abuse that he suffered while incarcerated. 

Before trial, Meritt filed a motion in limine to preclude the defendants from impeaching him through his prior conviction for child molestation. In response, the defendants cited to Myers v. Hyatt, 1991 U.S.App. LEXIS 16517 (4th Cir.1991), in which the Fourth Circuit

summarily rejected the Plaintiff–Prisoner's argument that his trial counsel was ineffective and that evidence of Myers' prior child molestation conviction was so inflammatory that it unduly prejudiced the jury and rendered the verdict unreliable.

The United States District Court for the Southern District of West Virginia, however, noted that this opinion was unpublished and that "no reasoning exist[ed] for the [Fourth Circuit]'s summary rejection of the appellant's assertions in Myers," and it did "not find it to be persuasive to the inquiry at hand." Instead, the court concluded 

that under Rules 401 and 403, as well as under 609(a), the Plaintiff's convictions [we]re not relevant to his...tort and constitutional claims, and thus should be excluded. The convictions themselves [we]re not relevant to the Plaintiff's emotional damages. The convictions [we]re not crimes involving the Plaintiff's dishonesty or false swearing, and ha[d] low probative value under Rule 609 for impeachment purposes. Even if relevant in some way, under Rule 403, such evidence's prejudicial effect substantially outweigh[ed] any relevance of the conviction evidence.

The court thus granted Merritt's motion in limine.

-CM

Gross Out?: Was Expert Testimony That Conrad Murray Acted With "Gross Negligence" Objectionable?

Professor David H. Kaye at Penn State has posted Some clips from the Conrad Murray trial and asked whether testimony by experts that Dr. Murray's acts/omissions constituted "gross negligence" would have been ruled inadmissible if defense counsel objected to it. My conclusion: While the answer would be "yes" in many (most?) jurisdictions, the answer is "no" in California.

Federal Rule of Evidence 704 states that

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

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Most states (43 after Georgia's new Comprehensive Revised Evidence Code takes effect) have state rules of evidence modeled after the Federal Rules of Evidence (although not all of these states have counterparts to Rule 704(b), and under Rule 704, it seems clear that expert testimony that Dr. Murray acted (or failed to act) with "gross negligence is inadmissible. Why?

Rule 704 does allow testimony on ultimate issues to be decided by the trier of fact, but it does not allow testimony that amounts to a legal conclusion. For instance, check out this language from Shahald v. City of Detroit, 889 F.2d 1543, 1547-48 (6th Cir. 1989):

An additional reason for our view on this issue is the fact that the expert's opinion as to the ultimate issue here amounts to a "legal conclusion." In the testimony excluded by the trial court, the expert would state to the jury that certain behavior by defendant officers amounts tonegligence under the law. This court has said:

Federal Rule of Evidence 704 permits a witness to testify in the form of an opinion or inference to an "ultimate issue to be decided by the trier of fact." However, "[i]t is not for the witness to instruct the jury as to applicable principles of law, but for the judge." 

Thus, under if Dr. Murray were being tried in most states, under Federal Rule of Evidence 704 or a state counterpart, an expert likely could not opine that Dr. Murray acted with "gross negligence."

California, however, is one of the few states that does not have an Evidence code modeled after the Federal Rules of Evidence. True, California does have California Evidence Code Section 805, which provides that

Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to decided by the trier of fact.

That said, look at the way that the Court of Appeal, Fourth District, Division 2, California, interpreted this language in Downer v. Bramet, 199 Cal.Rptr. 830 (Cal.App. 4 Dist. 1984):

While in many cases expert opinions that are genuinely needed may happen to embrace the ultimate issue of fact (e.g., a medical opinion whether a physician's actions constitute professional negligence), the calling of lawyers as “expert witnesses” to give opinions as to the application of the law to particular facts usurps the duty of the trial court to instruct the jury on the law as applicable to the facts, and results in no more than a modern day “trial by oath” in which the side producing the greater number of lawyers able to opine in their favor wins." (emphasis added).

Moreover, the 2nd District Court of Appeal (Los Angeles) has cited to the language a few times, most recently in Mora v. Big Lots Stores, Inc., 124 Cal.Rptr3d 535 (Cal.App. 2 Dist. 2011). Therefore, it seems like the testimony in the Murray trial was admissible (although I acknowledge that I haven't come across an opinion applying this reasoning in a criminal case).

-CM

Don't Be Tardy: Western District Of Michigan Finds State Court Properly Deemed Witness For Prosecution "Unavailable"

Federal Rule of Evidence 804(a)(5) provides that a declarant is "unavailable" if he

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

Meanwhile, Michigan Rule of Evidence 804(a) provides that a declarant is "unavailable" if he

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means, and in a criminal case, due diligence is shown. (emphasis added)

So, when are attempts to procure a declarant's attendance reasonable but not an exercise in due dilligence? That question was not answered by the United States District Court for the Western District of Michigan in its recent opinion in Smith v. McQuiggin, 2011 WL 4824492 (W.D.Mich. 2011), but it does point us toward a partial answer.

In McQuiggin, Keith Elroy Smith, a Michigan state prisoner in the custody of the Michigan Department of Corrections, filed a petition for writ of habeas corpus under  28 U.S.C. § 2254. A magistrate judge recommended that the habeas petition be denied and dismissed with prejudice, and that a certificate of appealablity be denied. The Western District of Michigan thereafter agreed.

One of the grounds upon which Smith habeas relief was the introduction of the former testimony of Richard Gentry, an eyewitness, at Smith's trial for first-degree premeditated murder and related crimes. Gentry did not testify at trial, but the trial court deemed him unavailable and allowed for the admission of Gentry's testimony during a preliminary examination pursuant to Michigan Rule of Evidence 804(b)(1).

In his appeal in the Michigan state court system, Smith claimed that the prosecutor failed to meet its due diligence obligation because its attempts to locate Gentry were "tardy and incomplete." In support of his argument, Smith cited to, inter alia, People v. James, 481 N.W.2d 715 (Mich.App. 1992), in which the Court of Appeals of Michigan found that the prosecutor's efforts were tardy because it had no contacts with the witness over three and one-half years between the time of the preliminary examination and the time of trial. The court, however, found this citation inapposite, noting that there was only a three month gap between Gentry's preliminary examination and Smith's trial and that the evidence indicated that Gentry planned to testify at Smith's trial until the day of trial.

In later ruling against Smith, the Western District of Michigan simply held that "[i[t is unnecessary to reiterate here the well-reasoned opinion of the Michigan Court of Appeals."

-CM

The Number 23: Eastern District Of Virginia Finds 23 Year-Old Conviction Admissible To Impeach Plaintiff

Federal Rule of Evidence 609(b) provides that

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

Furthermore, the Advisory Committee's Note to Rule 609(b) provides that

Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.

In its recent opinion in Salmons, Inc. v. First Citizens Bank & Trust Co., 2011 WL 4828838 (E.D.Va. 2011), the United States District Court for the Eastern District of Virginia found that the defendant could use the plaintiff's 23 year-old criminal fraud conviction to impeach him. So, what were the exceptional circumstances?

In Salmons, Salmons, Inc., a grain dealer, brought claims

against First Citizens Bank & Trust, Co., for violations of North Carolina's Unfair and Deceptive Trade Practices Act ("UDTPA") arising out of a loan that Defendant made to Plaintiff in January 2008. Between 2004–2008, Defendant extended more than $3 million in loans to Plaintiff through a series of seventeen separate transactions. Plaintiff claim[ed] that it was damaged by Defendant's taking of a "blanket lien" on its equipment, which prevented Plaintiff from obtaining funding from alternative lenders in order to satisfy its margin calls in February and March 2008.

Previously, in 1988, Jim Salmons (the Salmons in Salmons, Inc.), "was convicted of bank fraud stemming from his submission of false inventory reports to one of his lenders. Related to his conviction, Salmons filed for bankruptcy in 1987." The defendant sought to impeach Salmons through evidence of this conviction at trial, and Salmons filed a motion in limine to exclude this evidence.

The Eastern District of Virginia noted that if Salmons' conviction were not more than 10 years old, it would have been automatically admissible under Federal Rule of Evidence 609(a)(2), which provides that

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

(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.

But because Salmons' conviction was 23 years old, it was only admissible if, inter alia, its probative value substantially outweighed its prejudicial effect. According to the defendant, this balancing test was satisfied because

Plaintiff's claim depends on its ability to prove that Salmons had oral conversations with Defendant that contradicted the express language of the Loan Commitment, and thus...Salmons' credibility or lack thereof is a critical issue in this case. Specifically, Defendant claims that because Plaintiff has alleged that Defendant engaged in intentional deception, Plaintiff's claim "hinges on whether the jury believes Jim Salmons' testimony as to his dealings with the lender or the testimony of First Citizens' witnesses."

The Eastern District of Virginia agreed, concluding that

Where a witness' credibility is "highly relevant" to disputed issues in the case, courts have been more willing to admit stale convictions....Moreover, some courts have determined that the risk of unfair prejudice is lower in a civil case than in a criminal case.

Although Salmons' conviction is twenty-three years old, and although there is always a risk of prejudice involved with admitting a prior conviction, we find that Salmons' testimony and credibility are essential to Plaintiff's ability to prove its case. This case presents a rare circumstance in which the probative value of admitting a stale conviction substantially outweighs the potential for unfair prejudice. We thus hold that evidence of Salmons' prior conviction and bankruptcy is admissible for the purposes of impeachment.

-CM

In Context: 5th Circuit Finds Specific Ground For Rule 404(b) Objection Was Apparent From The Context

Federal Rule of Evidence 103(a)(1) 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...[i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....

You don't find many cases in which an appellate court finds that the specific ground of an objection is "apparent from the context...." The recent opinion of the Fifth Circuit in United States v. Mireles, 2011 WL 4584763 (5th Cir. 2011), is an exception.

In Mireles, Merlin Mireles was convicted of transporting illegal aliens and harboring illegal aliens. At trial, defense counsel objected to the prosecution's attempt to introduce the testimony of several of Mireles' coworkers, and the prosecution countered that the testimony was relevant

because [Mireles's Attorney had] argued to the jury in his opening statement that it didn't make sense, and that's a quote, for him to have harbored an illegal, but when you look at his work record, he violated on repeated occasions, like, the code of conduct. There was an instance where he actually solicited, asked for a date of a woman coming across the border.

Now, I think he opened the door to that by suggesting that this guy, that he had no reason, but he continually, he was continually late. He was caught sleeping. This guy just simply, he didn't care about his job, so it made perfect, it made perfect sense for him to do this because there are instances where he didn't, he didn't honor his code. He didn't honor the regulations.

The district court then asked the prosecution if this evidence was "Rule 404(b)" evidence, which the prosecution denied. Defense counsel then reiterated his objection, stating that the proffered evidence was "character assassination. That's all it is. It's just character evidence." The district court, however, overruled this objection as to the majority of the prosecution's proffered evidence.

After Mireles was convicted, he appealed, claiming, inter alia, that the coworkers' testimony was inadmissible character evidence under Federal Rule of Evidence 404(b). The government countered that Mireles did not preserve this issue for appellate review because "Mireles only objected to 'character evidence' under Rule 404(a)."

It therefore argues that this court should review for plain error. See Williams, 620 F.2d at 488–89. We disagree. The Fifth Circuit disagreed, concluding that

To preserve an evidentiary error for review, the movant must make "a timely objection or motion to strike ... stating the specific ground of objection, if the specific ground was not apparent from the context." FED.R.EVID. 103(a)(1). For two reasons, it was apparent from the context that Mireles's attorney was making a Rule 404(b) objection. First, the district court had specifically asked the Government if it was attempting to introduce Rule 404(b) evidence. Second, Mireles's attorney began the colloquy with his concern about "incidents that occurred at work, not crimes that he's ever been convicted of." These statements clearly show that Mireles's attorney was objecting to "other acts"character evidence under Rule 404(b). Mireles properly preserved his objection, and we review the district court's admission of the alleged 404(b) evidence for abuse of discretion.

-CM

Georgia On My Mind: Supreme Court Of Georgia Looks To New Georgia Rules Of Evidence For Prior Consistent Statement Ruling

As I have previously noted, Georgia recently passed a Comprehensive Revised Evidence Code patterned on the Federal Rules of Evidence. This new Code will not take effect until 2013, but, as the recent opinion of the Supreme Court of Georgia in Stephens v. State, 2011 WL 4532671 (Ga. 2011), makes clear, this new Code is already having an effect on how Georgia courts interpret the existing Georgia Rules of Evidence.

In Stephens, Bradley Stephens was convicted of incest against his stepdaughter, following sexual abuse that began when the victim was five years old and continued until she was 16, when he impregnated her and took her to get an abortion. At trial, a witness for the prosecution testified, and, after defense counsel claimed that the witness' testimony was a recent fabrication, the trial court allowed the prosecution to admit the witness' prior consistent statement(s). Thereafter, over defense counsel's objection, the trial court gave the following pattern jury instruction on prior consistent statements:

Should you find that any witness has made a statement prior to trial of this case that is consistent with that witness's testimony from the witness stand and such prior consistent statement is material to the case and the witness's testimony, then you are authorized to consider the other statement as substantive evidence.

After he was convicted, Stephens appealed, claiming, inter alia, that the trial court erred in giving this instruction, and the Supreme Court of Georgia agreed (but found harmless error), concluding that

In recent years, the Court of Appeals has repeatedly said that the "better practice" is not to give an instruction on prior consistent statements....We now hold that an instruction on prior consistent statements should no longer be given except where the circumstances of an unusual case suggest that the jury may have the mistaken impression that it cannot consider a prior consistent statement as substantive evidence. For example, the jury might send a note during deliberations asking whether it can consider a prior consistent statement as regular evidence, or an attorney might make an improper statement in closing argument suggesting to the jury that a prior consistent statement is not a valid type of evidence. When a charge on prior consistent statements is needed because of such circumstances, the charge should be adjusted to address the issue that requires it. No such circumstances were present in this case, and so the Court of Appeals correctly determined that the pattern instruction should not have been given.

Importantly, the Georgia Supremes then pointed out that

It is also worth noting that a routine instruction on prior consistent statements is discouraged in federal practice,...and Georgia courts will soon be operating under a prior consistent statements rule that parallels Federal Rule of Evidence 801(d)(1)...

This analysis reveals two important things: (1) Georgia courts apparently will look to the Comprehensive Revised Evidence Code in reaching evidentiary conclusions even before that new Code takes effect; and (2) Georgia courts apparently will look to federal law in determining how to apply the Comprehensive Revised Evidence Code based upon its similarity to the Federal Rules of Evidence.

-CM

Anything Resembling Furtherance?: Court Of Appeals Of Iowa Finds Trial Court Erred In Admitting Co-Conspirator Admissions

Like its federal counterpart, Iowa Rule of Evidence 5.801(d)(2)(E) provides that a statement is not hearsay if

The statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

As the language of the Rule makes clear, it is not enough for a statement to be made during the course of a conspiracy. Instead, for a statement to qualify as a co-conspirator admission, the statement must have been made during the course of and in furtherance of the conspiracy. And this latter fact was something that the prosecution did not sufficiently in State v. Dayton, 2011 WL 4578505 (Iowa App. 2011), according to the recent opinion of the Court of Appeals of Iowa.

In Dayton, Jessica Dayton was convicted of first-degree murder. According to the prosecution, Dayton conspired with Denise “Dee” Frei and Frei's son, Jacob Hilgendorf, to kill Curtis Bailey. At trial, the prosecution allowed for the admission of statements by Frei to Elisha Runyan, who was not part of the conspiracy, before the murder was committed. Specifically, Frei told Runyan that

(1) "her and Jess [Dayton] were going to try again on Saturday," (2) Frei "was going to start drinking so then she had a reliable reason for Jess to drive her home," (3) they were "going to overdose Curt," and (4) "Jacob [Hilgendorf] and Jess were going to get $5000 apiece if they helped...[k]ill Curt."

The trial court also allowed Runyan to testify that (1) Frei asked her to come to a café "because she wanted to tell me what they all had planned and that...everything was going to go well," and that Frei told her that "they were going to try to overdose" Bailey.

After she was convicted, Dayton appealed, claiming, inter alia, that the trial court improperly allowed for the admission of these statements as co-conspirator admissions under Iowa Rule of Evidence 5.801(d)(2)(E). The Court of Appeals of Iowa agreed, initially noting that some examples of statements made in furtherance of a conspiracy 

include comments designed to assist in recruiting potential members, to inform other members about the progress of the conspiracy, to control damage to or detection of the conspiracy, to hide the criminal objectives of the conspiracy, or to instill confidence and prevent the desertion of other members.

The court then pointed out that

"'The statement need not have been made exclusively, or even primarily, to further the conspiracy.'"...Instead, the "record need only contain some reasonable basis for concluding that the statement in question furthered the conspiracy in some respect."

That said, the court could not find even such a reasonable basis, concluding that

There is not much, if any evidence, to support this assertion. While it is true Frei told Runyan that "everything was going to go well" and that she was going to pay Dayton and Hilgendorf $5000 each for their assistance, there is no indication she made these statements in an attempt to elicit Runyan's cooperation or assistance....Rather, she simply seemed to be relating the plan to a trusted friend, who played no role in the murder....Thus, the statements do not appear to have been made in furtherance of the conspiracy.

Thus, the Court of Appeals of Iowa found that the trial court erred in admitting these statement but deemed the error harmless and thus affirmed Dayton's conviction.

-CM