EvidenceProf Blog

Law & Crit, Take 5: Sharon Stone's "Last Dance" & Oregon's Death Penalty Moratorium

In today's post in her ongoing Pop Culture and the Death Penalty project, Alyssa Rosenberg addresses Sharon Stone's "Last Dance." According to Rosenberg,

it’s a pretty terrible movie, chock-full of sassy black death row inmates who call Stone’s sweet former-addict killer "girl" a lot, a weak-sauce and sentimental discussion of racial and economic disparities in the death penalty, and a lot of thick-accented callous Southern stereotypes. But it does a couple of things that I think are interesting, even if I don’t think it does them particularly well.

First is the way it addresses lingering discomfort with executing women. Sam, the head of the appeals office...;

Second, there’s the question of how race and class interact in the death penalty...;

the ridiculousness and cruelty of our last-minute appeals process.

Conversely, one of the things that the movie gets (very) wrong is that its primary focus is not on Stone's character but on the spiritual journey taken by her attorney (who comes off as the idiot younger brother of Frank Galvin from "The Verdict"), a journey that ends with "an Annie Lennox-scored trip to the Taj Mahal in her memory...." As Anthony Paul Farley wrote in Amusing Monsters, 23 Cardozo L. Rev. 1493 (2002),

In Last Dance, the conflict within the heart of the condemned murderer, played by Sharon Stone, has been resolved long before the narrative begins. The observer, a wealthy white man played by Rob Morrow, appears as a suitor in need of a philosopher, and he finds her in Stone. His desperate attempts to save her from the Leviathan's lethal injection, which she is as willing to receive as was Socrates to receive the hemlock prescribed him by his fellow Athenians, fail. In his failure, however, he succeeds in making peace with himself and, as we are led to imagine, his own struggle on behalf of forgiveness and against vengeance. Our own role, Leviathan's role, in producing the conditions that lead to the body of the death that occasioned the making of the film and our own entry into the dark of the cathedral, the theatre, is never seriously addressed.

So, why does this make me think about Governor John Kitzhaber's decision to place a moratorium on the death penalty in Oregon? 

Well, as noted in the New York Times article on the decision,

Oregon, which uses lethal injection, has executed just two people since its voters approved the death penalty in 1984, and both of those inmates waived certain rights to appeal, making them so-called volunteers. The state, which has 37 inmates on death row, last executed someone in 1997. It has been one of at least seven states that allow the death penalty but have not used it in more than a decade, according to the Death Penalty Information Center.

So, here's my question: Even if you're anti-death penalty, are you anti-voluntary death penalty? I am anti-death penalty. I don't see how the State has the power to kill someone who no longer poses a threat to society and can be sentenced to life imprisonment without the possibility of parole. I don't see how we can force prosecutors to argue that a (wo)man no longer deserves to live. I don't see how we can force jurors to decide whether a (wo)man should live or die. I don't see how we can force doctors to inject a lethal cocktail of drugs into the arm of the condemned. (And this doesn't even get into race/class issues as well as the number of wrongful convictions that have been exposed through DNA and other evidence).

But I do believe that that a terminally ill person should be able to end his own life with dignity, and I do believe that a willing doctor should be able to provide assistance to such a terminally ill person. In other words, I support physician-assisted suicide, but I disagree with the death penalty, and I argued as much in my first law review 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 (2002-2003).

I think that the involuntary killing of a person who doesn't want to die fundamentally goes against the fundamental tenents of civilized society and the Hippocractic Oath. On the other hand, I think that the voluntary killing of a terminally ill person who wants to die is consistent with a compassionate society as well as the spirit, if not the letter, of the Hippocractic Oath.

But take the following example. Defendant is charged with murder(s). He confesses to the crime(s) and is convicted of murder(s). In Jurisdiction, the death penalty can only be imposed if a defendant admits his guilt and asks that the death penalty be imposed because he believes that he deserves to die based upon the acts that he committed. In other words, what if we have a true volunteer and not merely a so-called "volunteer." If the jury grants the defendant's wish and sentences him to die, and if the doctor complies with the defendant's wish and injects him with a lethal dose of drugs, would you be satisfied with the outcome even if you are against the death penalty as a general proposition? My honest answer is that I don't know.

-CM

Substance & Style, Take 2: Katharine Traylor Schaffzin On The Restyled Rules Of Evidence

Below is the second in a series of three guest posts by Katharine Traylor Schaffzin on the restyled Federal Rules of Evidence:

Sacred Formatting: Why the Advisory Committee Chose Not to Reformat Rule 803

In restyling the Federal Rules of Evidence, the Advisory Committee on Evidence Rules resolved to amend the rules to make them more easily understandable and to achieve consistency in style and terminology.  The Committee aimed to achieve uniformity in formatting across all the rules of practice and procedure.  To accomplish this, they applied a familiar outlining format including progressively indented subparagraphs, hanging indents, and substituting vertical lists for horizontal lists.  Formatting revisions of this type abound in Rule 801.

Rule 803, however, represents a significant departure from consistency in style.  The first level of subparagraphs is numbered 803(1) through 803(24).  To achieve consistent formatting, however, those subparagraphs should be identified as 803(a) through 803(x).  The alternative resulting in arguably greater consistency would have been to identify the language preceding those subsections (“The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:”) as the first level of subparagraphs in itself (for example, “803(a) The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:”).  This alternative would have maintained the current numbering of exceptions, replacing 803(1) with 803(a)(1), for example. 

The Advisory Committee decided against both alternatives, maintaining something akin to sacred phrases - sacred formatting.  The problem with the latter alternative is stylistic.  If the Committee were to add subparagraph (a), the rules of style would have also required it to add a subparagraph (b).  There was simply no appropriate content for a subparagraph (b) and the Committee wisely decided against adding a subparagraph of meaningless text simply to oblige a stylistic rule.

But the bigger problem identified by the Advisory Committee in renaming the subparagraphs of Rule 803, whether they be renumbered 803(a) through 803(x) or 803(a)(1) through 803(a)(24), is that all historical references to the hearsay exceptions would be lost.  Attorneys and judges would have to relearn all twenty-four exceptions by new names.  Moreover, legal research of an exception would turn up nothing.  For example, were a student to search Rule 803(c) on Lexis, the earliest result he or she would find would be from December 1, 2011; such a search would reveal no history of the exception prior to the restyling.  Rather than wipeout thirty-five years of legal research on one of the most commonly cited rules for the sake of consistency in style, the Advisory Committee wisely chose not to act.

Substance & Style: Katharine Traylor Schaffzin On The Restyled Rules Of Evidence

Back in March, I posted an entry about Katharine Traylor Schaffzin and her terrific article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (2000). Professor Schaffzin's article dealt with the new restyled Federal Rules of Evidence set to take effect on December 1, 2011. At the time, I promised that Professor Schaffzin would have a few guest posts on the new Rules around the time that they took effect. Below is the first of these guest posts:

Restyled FRE: Sacred Phrases Are In Fact Arbitrary

In my article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (Summer 2010), I suggested that the Advisory Committee on Evidence Rules restyle any phrase in need of restyling, regardless of whether the phrase was “sacred.” I posited that the classification of any phrase as sacred, and therefore immune from the restyling effort, was arbitrary.  The Committee defined a sacred phrase as any phrase in the Federal Rules of Evidence that has “become so familiar in practice that to alter [it] would be unduly disruptive.” Nonetheless, the Committee set forth no protocol for determining whether a phrase was familiar in practice or whether it would cause an undue disruption.  Moreover, there is no record of exactly which phrases remain unchanged because the Committee deemed them sacred or for any number of other reasons.  I concluded that there is no reason to maintain inconsistent, ambiguous, redundant, repetitive, or archaic language simply because the Committee arbitrarily determined that such language was too sacred to change it. 

Having recently returned from a symposium on the restyling project hosted by the Advisory Committee in conjunction with its Fall Meeting, I thought I would share the comments of several members of the Advisory Committee involved in the restyling project.  A number of those Advisory Committee members agreed without hesitation that the classification of any phrase as sacred was made arbitrarily.  Those members were unapologetic about their arbitrary decisions for two reasons.  First, it would have been impossible for the Committee to embark on an empirical study to determine which phrases were so familiar in practice that to alter them would create an undue disruption.  Second, those members disagreed with my underlying premise that a wholesale restyling of phrases, sacred or not, would be a good thing. 

I’d agree that an empirical study of sacred phrases would have been inefficient.  However, nothing prevented the Committee from conducting the kind of research that I did in writing my article to determine the significance of a given phrase prior to the introduction of the first draft of the Federal Rules of Evidence in 1969.  After all, hasn’t any phrase that was eventually included in the final rules enacted in 1975 sacred at this point?  So there must have been some significance in the language prior to the Federal Rules for one phrase to stand out above the others.  Had the Committee looked into the significance of language prior to 1969, they would have restyled language that is certainly capable of improvement but which the Committee left unrevised and they would have maintained other language as sacred that they nonetheless did select for revision.

As to the second point, we’ll have to agree to disagree.  The Advisory Committee was apparently not moved by my public comment that sacred phrases containing inconsistent, ambiguous, redundant, repetitive, and archaic language should be restyled because the Committee had already revised similarly situated phrases not arbitrarily deemed sacred.  My point was that, because the Committee had already headed down the road of wholesale restyling, why reserve a few inscrutable phrases simply because we’ve all become so familiar with them?  As long as we are stuck with the “truth of the matter asserted” and “substantially outweighs its prejudicial effect” for another thirty-five years, it looks like there will be a continuing demand for Evidence profs.

Give It A Shot: Northern District Of Texas Finds Printout Of Screen Shot Satisfies Best Evidence Rule

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

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

So, let's say that a litigant takes a screen shot of a web page, prints out the screen shot, and then seeks to introduce the printout into evidence. Does the printout satisfy the Best Evidence Rule? According to the recent opinion of the United States District Court for the Northern District of Texas in Conceal City, L.L.C. v. Looper Law Enforcement, LLC, 2011 WL 5557421 (N.D.Tex. 2011), the answer is "yes."

In Conceal City, 

Conceal City allege[d] that the Looper defendants and the Wiesners [we]re liable on three grounds: patent infringement, in violation of 35 U.S.C. § 271; false marking, in violation of 35 U.S.C. § 292; and unfair competition, under Texas law. The parties' dispute involve[d] a holster covered by U.S. Patent No. 5,570,827...The '827 patent intends to improve upon the inside-the-pants pistol holster. It does so by using stiff leather for the inner and outer layers and extending the layers forwardly and rearwardly to form wings. The wings maximize the flatness of the holster and thereby minimize the bulge of the pistol. The patented holster also permits the user to wear a pager or pager-like device to cover the clip connecting the holster and waistband. From the exterior, only the pager or pager-like device is visible. The intended result of these two improvements is to better conceal the pistol.

Before trial, Conceal City sought

a preliminary injunction enjoining defendants from using the production dies; manufacturing, distributing, or selling an infringing holster; and engaging in misleading advertising, such as marking the Hyde–It Holster as related to the '827 patent and advertising that the Wiesners' company is the home of the "Cell/PDA Pal."

As support for its claim that the Wiesners committed patent infringement,

Conceal City offer[ed] in evidence a screen shot of the Wiesners' website, universalholsters.com, which twice states that the Hyde–It Holster is "patented" and refers to "US Patent # 5570827" at the bottom of the page.

Conceal City objected that the admission of the printout of the screen shot violated the Best Evidence Rule, but the Northern District of Texas disagreed, concluding that the printout was an "original" for Best Evidence purposes under Federal Rule of Evidence 1001(3), which states in relevant part that

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."

-CM

Did You Get My Message: Court Of Appeals Of Ohio Finds No Error W/Admission Of Handwritten Transcripts Of Text Messages Under Rule 803(5)

Like its federal counterpart, Ohio Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

So, let's say that the victim and the defendant send e-mails back and forth on the same night that the defendant allegedly committed a burglary and other crimes. And let's say that, in the wake of the crimes charged, the victim handwrote transcripts of the text messages. At trial, can the victim read the transcripts pursuant to Rule 803(5)? According to the recent opinion of the Court of Appeals of Ohio, Eighth District, in State v. Roseberry, 2011 WL 5588725 (Ohio App. 8 Dist. 2011), the answer is "yes."

In Roseberry, the facts were as stated above, with Wayman Roseberry being charged with one count each of aggravated burglary and kidnapping, each containing firearm and forfeiture specifications; one count of having weapons while under disability, with a forfeiture specification; and one count each of burglary, theft, and receiving stolen property. At trial,

The victim, Danielle Adams..., testified that Roseberry was her ex-boyfriend, and that when they were dating, he stayed at her residence every night, kept personal belongings there, and had a house key. In the spring of 2010, they ended their relationship, but Roseberry still visited Adams at her home even though she had taken her key back from him.

The trial court also allowed Adams to read written transcripts that she created from text messages exchanged between Roseberry on the night that he allegedly committed the crime charged:

“Roseberry: Man u did smething ill brak da window.

* *

“Adams: Wht?

“Roseberry: I dnt wnt to brake nothing to get n and u blocked da door so I cant get n

* *

“Adams: So you got my key huh

* *

“Roseberry: OK can u un block da door I dnt have no where to go

“Adams: Y u say u didn't have the key

“Roseberry: Cuz who wnt ti be left n da streets

“Roseberry: Man pease dnt make me do smething I dnt wnt please open dat door

“Roseberry: Man ima get n

“Adams: I hope u aint breakin no window

“Adams: Im at work go wit your best friend, he always got ur bck remember

“Roseberry: I neva said that im tryna get away I don't wnt to do sht stupid so please let me n

“Adams: I said i'm at work

“Roseberry: Ok how do i get in” 

After he was convicted, Adams appealed, claiming "that the trial court abused its discretion in allowing Adams to read her handwritten transcription of the text messages out loud in open court on direct examination." The Court of Appeals of Ohio, Eighth District, disagreed, concluding that

In this case, Adams testified that when she went to the police station, she took her cell phone and wrote down the text messages exchanged between her and Roseberry the night of July 24 through July 25. On direct examination, Adams stated she could not recall the exact content of the messages she received, but when she wrote down the text messages, her recollection of the content of the text messages was fresh in her mind. When presented with the handwritten list, Adams also positively identified it as her transcribed compilation of the text messages exchanged between her and Roseberry. She testified that she knew the text messages were coming from Roseberry's phone because she knew his cell number at the time, although she admitted she currently could not recall the number. Accordingly, the trial court did not abuse its discretion by allowing Adams to read the series of text messages out loud pursuant to Evid.R. 803(5), and the trial court's exclusion of the handwritten compilation as an exhibit was proper.

(That said, the police took photographs of other text messages and admitted them at trial, and the appellate court deemed the admission of these photographs to be reversible error with regard to the burglary conviction).

-CM

Resident Evil?: Colorado Court of Appeals Finds 1st Year Resident Qualified As "Expert Of Medicine"

Similar to its federal counterpart, Colorado Rule of Evidence 702 provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

So, can a first-year resident be qualified as an "expert of medicine" under Rule 702? According to the recent opinion of the Colorado Court of Appeals, Div. I. in People ex rel. Strodtman, 2011 WL 5084951 (Colo.App. 2001), the answer is "yes."

In Strodtman, Joyce A. Strodtman, appealed a magistrate's order authorizing the Denver Health Medical Center, upon the People's petition, to forcibly administer her antipsychotic medications. The magistrate's order was partially based upon the expert testimony of Dr. O'Flaherty, a first-year resident. In her appeal, Strodtman claimed, inter alia, that the magistrate erred by allowing Dr. O'Flaherty to be qualified as an "expert of medicine." 

According to the Colorado Court of Appeals,Div. I., the People sought to qualify Dr. O'Flaherty as an "expert in medicine" because she had not yet been board certified in psychiatry. Strodtman took issue with this decision, "contend[ing] qualification in the general field of medicine violate[d] CRE 702, and thus her due process rights."

In response, the court found that "[a]s an issue of first impression, we must determine whether CRE 702 permits a physician to testify without a specialty, as 'an expert in medicine.'" The court then found that it does. The court held that

Case law from other jurisdictions indicates the generally prevailing rule is that "otherwise qualified physicians or surgeons are not incompetent to testify as experts merely or necessarily because they are not specialists in the particular branch of their profession involved in the case."...

Supporting the adoption of this rule in Colorado is the broad scope of CRE 702 governing the admissibility of expert testimony. Witnesses may be qualified as experts by virtue of their "knowledge, skill, experience, training, or education."...Under this liberal rule, a court may admit expert testimony if the witness can offer "appreciable" assistance on a subject beyond the understanding of an "untrained layman."...Thus, in a particular case, the certification of a resident physician as a general medical expert may be consistent with this rule.

Additionally, an important safeguard offsets any concerns Strodtman may have regarding this liberal construction of CRE 702. If an expert is qualified, the decision-maker determines the weight and the credibility of his or her testimony.

Thus, the court 

conclude[d] that a physician may be qualified as an "expert in medicine" so long as his or her knowledge, skill, experience, training, or education supports the qualification, and he or she is capable of providing specialized knowledge that will assist the decision-maker in determining the issues.

-CM

The Space Between: Judge Takes Judicial Notice Of Google Maps Distance In Mob & Thanksgiving Related Case

Judicial notice is a doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. Federal Rule of Evidence 201(b) provides that

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

So, let's say that a member of a crime family is charged with several crimes, including conspiring to kill a victim. And let's say that the defendant claims that the prosecution erred by failing to disclose to him police reports that contradict testimony given by a key witness for the prosecution regarding exactly where the the victim was on the day of the murder. Can the court take judicial notice of the distance between 2 locations based upon a search on Google Maps? According to the recent opinion of the United States District Court for the Eastern District of New York in United States v. Sessa, 2011 WL 256330 (E.D.N.Y. 2011), the answer is "yes."

In Sessa, the facts were as stated above, with Michael Sessa of the Colombo organized crime family of La Cosa Nostra being the defendant. One alleged intended victim of the crime family was Billy Cutolo, a captain in the Colombo Family aligned with the Orena Faction. Specifically, Sessa and others

planned to murder Cutolo on Thanksgiving Day....[cooperating witness Joseph] Ambrosino testified that he, [Sessa], and [fellow crewmember Larry] Fiorenza "were going to dress up as Hasidic Jews in costumes and murder [Cutolo] in front of his girlfriend's grandmother's home in Brooklyn, [at] 60th Street and 13th Avenue."....As the "neighborhood that [Cutolo] was going to was an Hasidic neighborhood, [[Sessa], Ambrosino and Fiorenza] figured [they] could blend in with the crowd."...[Sessa] instructed Ambrosino to give six hundred dollars to [crewmember Anthony "the Arab"] Sayegh so that he could purchase costumes from a store in Brooklyn, and the costumes were stored at Fiorenza's girlfriend's home, where she testified to seeing them....However, on Thanksgiving morning, a New York Post article implicated [Gregory] Scarpa [a made man of the Colombo family] as a government informant, and fearing that Scarpa "knew about the plan and if he was cooperating he would tell the law what [they] were going to do," [Sessa] called off the murder.  

Sessa, however, apparently did not call off the murder of crewmember Anthony Coluccio. At trial, Ambrosino testified about Coluccio arriving at 13th Avenue and 69th Street at 3:00 p.m., the day that he was murdered, while another witness told police that Coluccio left a McDonalds restaurant at 4th Avenue and 39th Street at 3:30 p.m. on the day of the murder.

The prosecution, however, did not turn over police reports containing this witness' statement. According to Sessa, these reports were material and the prosecution's faulure to disclose them constituted a Brady violation. The Eastern District of New York disagreed, concluding that "[a]s the locations are merely a few miles apart, the minor inconsistencies in timing are not sufficiently material to raise a reasonable probability of a different result had they been introduced at trial."

As support for this proposition, the court noted that the distance between the two locations

was calculated by reference to Google Maps. See http://maps.google.com/maps [last checked January 23, 2011]. A court may take judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. R. 201(b). "Courts commonly use internet mapping tools to take judicial notice of distance and geography." 

=CM

We The Jury, Take 2: Western District Of Pennsylvania Denies Habeas Corpus In Racist Juror/Death Penalty Case

Three years ago, I posted an entry about the case of Roland Steele. I then used Steele's case as the launching point for my article, Dismissed with Prejudice. Here's what I wrote about Steele's case in my article:

After a jury trial in Pennsylvania in 1986, Roland William Steele, an African-American man, was convicted of three counts of first-degree murder and related charges based upon his alleged killings of three Caucasian women. In 1996, he unsuccessfully filed a Post-Conviction Relief Act (PCRA) petition, in which he claimed, inter alia, “that his due process rights and right to a fair and impartial jury were violated by the racial prejudice of one of the jurors.” The basis for Steele’s petition, which the PCRA court deemed inadmissible, was the declaration of a juror, “who stated that race was an issue from the inception of the trial. The juror stated in his declaration that ‘early in the trial one of the other jurors commented on the race of the defendant.’” According to the declaration, the racist juror “‘also noted the race of three victims and stated that, on that basis alone, the defendant was probably guilty.’” The juror additionally alleged that the racist juror’s “‘comments continued at other breaks and he made very racist remarks. First one juror, then two or three more gradually became drawn to his position as the first week wore on.’” Finally, the declaration asserted that the racist juror said during trial that Steele should “‘fry, get the chair or be hung.’”

Devastatingly, the racist juror’s death wish will likely come true because Steele was given three separate death sentences. In 2008, Steele’s appeal from the PCRA court’s ruling finally reached the Supreme Court of Pennsylvania, which found in Commonwealth v. Steele that it could not consider the juror’s declaration. The court noted that under Pennsylvania Rule of Evidence 606(b):

Upon an inquiry into the validity of a verdict,...a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

According to the Supreme Court of Pennsylvania, this Rule precluded the admission of the juror’s declaration because its exceptions apply only to “outside influences, not statements made by the jurors themselves.”

Recently, Steele filed a petition for writ of habeas corpus with the United States District Court for the Western District of Pennsylvania. So, how did he fare?

Not well. At the evidentiary level, the Western District of Pennsylvania concluded that, pursuant to the rules governing petitions for writs of habeas corpus,

I may not re-examine the Pennsylvania Supreme Court's determination that [the juror]'s testimony was inadmissible to support this claim....For that reason alone, this claim fails.

The court then noted that Steele also claimed that the exclusion of the juror's testimony violated his Sixth Amendment right to an impartial jury:

Steele insists that his Sixth Amendment right to an impartial jury trumps the state court's evidentiary ruling. In support, he relies upon a decision by the U.S. Court of Appeals for the Ninth Circuit, United States v. Henley, 238 F.2d 1111 (9th Cir 2001), and other lower federal court cases which have suggested that the “no impeachment” rule is inapplicable where racial bias is alleged. 

The court, however, quickly dispatched with this argument concluding that

None of the cases cited by Steele represent “clearly established Federal law, as determined by the Supreme Court of the United States[.]”....Moreover, Steele's argument is foreclosed by the Third Circuit Court of Appeals' decision in Williams v. Price, 343 F.3d 223 (3d CIr. 2003). In that case, the court expressly rejected Henley and held that the Pennsylvania Supreme Court did not violate "clearly established Federal law, as determined by the Supreme Court” in refusing to consider a juror's statements under Rule 606(b)'s “no impeachment” rule....Accordingly, there is no merit to this claim and it is denied.

-CM

The Claim: 3rd Circuit Lays Out Principles For Deciding When There's A Claim For Rule 408 Purposes

Federal Rule of Evidence 408 provides that

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

So, Rule 408 precludes the admission of evidence of, inter alia, settlements negotiations connected to "a claim that was disputed as to validity or amount" when offered for certain purposes. But at what point is there a "claim for Rule 408 purposes. If Dan allegedly breached a contract with Paul and Paul brings a lawsuit against Dan, obviously there is a claim. But what if Paul merely threatens to bring a lawsuit? Or what if Paul intimates that he might sue but doesn't actually threaten litigation? What's the standard for determining whether there is a claim? Well, let's take a look at the recent opinion of the Third Circuit in ECEM European Chemical Marketing B.V. v. Purolite Co., 2011 WL 5517319 (3rd Cir. 2011).

Purolite Co. arose "out of a contractual dispute between ECEM European Chemical Marketing, B.V. ("ECEM") and The Purolite Company ("Purolite") for the sale of an organic compound called styrene monomer." After the district court entered judgment in favor of Purolite, ECEM appealed, claiming, inter alia,

that the District Court abused its discretion by excluding statements the parties made during their email communications between January and June 2005. Specifically, ECEM contend[ed] that because there was no "dispute" between ECEM and Purolite as to the validity or amount of payment due under the 2004 Contract, the District Court erred by excluding the parties' emails. Purolite respond[d] that the Court did not abuse its discretion because, during the early 2005 time frame in question, Purolite put ECEM on notice of a potential "compensation claim" based on ECEM's failure to deliver two styrene shipments in November 2004, and because the parties were negotiating to avoid a breakdown in their business relationship.

In addressing this issue, the Third Circuit found that

Rule 408 applies where there is a "dispute" between parties, or "at least an apparent difference of view...concerning the validity or amount of a claim."...A dispute need not "crystallize to the point of threatened litigation"; a mere difference of opinion will suffice to warrant the exclusion....In determining whether a dispute exists, the facts of each case are critical to a district court's exercise of discretion....Ultimately, when in doubt, the district court should err on the side of excluding compromise negotiations. 

Applying these principles, the Third Circuit found that 

The District Court here did not abuse its discretion by excluding statements made by the parties during their compromise negotiations between January and June 2005. The record reveals that the threat of litigation loomed over the parties as early as December 10, 2004. On that date, Purolite put ECEM on notice by email that if Purolite exhausted its supply of styrene as a result of ECEM's untimely shipment, "a considerable compensation claim [would] be lodged with whoever [was] responsible for the delay."...At a minimum, Purolite's email demonstrates that ECEM was aware that Purolite considered filing a lawsuit to recoup losses it sustained as a result of the late shipments, and that Purolite was serious enough to make its intentions known. In addition, ECEM confirmed the existence of a dispute between the parties when it terminated its deliveries to Purolite, thus showing the failure of negotiations.

-CM

Can I Ask You A Question?: Court Of Special Appeals Of Maryland Approves Jury Questions

A defendant is on trial for first-degree murder. During trial, the judge takes questions from the jury and asks them to jurors. Here are two examples:

To an Eyewitness for the Prosecution

First

THE COURT: And sir, what effect, if any, did the fact that he had cornrows in that photographs have on your determination of whether or not to pick out that photograph?

THE WITNESS: Well, I have to say, of course, it was part of the, the whole picture, but the facial expression, the, it looks like the, the overall body size, just the face in general, the complexion, that taken into account as a whole, including the cornrows is what—

THE COURT: Okay. That was a juror's question.

Second

THE COURT: Sir, when you saw, were you able, saw the shooting, were you able to look directly at the shooter's face?

THE WITNESS: Yes. Yes, sir.

THE COURT: Is that as he ran by you?

THE WITNESS: Well, they were, when he started the shooting and then as he ran by, the, as he ran by was, he wasn't looking at the medic unit, but he was, you know, at a slight angle maybe looking down, but I had a good view of his face. The time when I saw his face fully as closely as it would represent the mug shot was when he came from the left side of Mr. Jones and started shooting, and then started running past us.

THE COURT: All right. That was a juror's question.

Was this proper? According to the recent opinion of the Court of Special Appeals of Maryland in Handy v. State, 2011 WL 5084570 (Md.App. 2011), the answer is "yes."

In Handy, the facts were as stated above. After the jury was seated, the judge gave jurors the following plenary instruction:

Now, there's a split of authority on whether or not you are entitled to ask questions. I'm of the opinion that you are. So if you have any question concerning the testimony while that witness is still in this room, pass me up a note. And if the witness is up from the jury stand, I'll stop him or her if you let me know you've got a question. Say Judge, I got a question, or pass it up and I'll see you passing it up and I'll have [the law clerk] get it. Then I'll read it. If I can't ask it, if there's—because a lot of time questions are very interesting, but they have no legal value, no probative value into the issues that you're going to have to decide.

If it has no probative value, I'm not going to ask it, because if they had asked the same question, I would have sustained an objection and when that happens, the witness can't answer the question. I'm the legal umpire during the course of the trial. I call legal balls and strikes. I'm obliged to do two things during the course of the trial, and—I guess it's three really—and make sure that I explain the law to you in language that allows you to do your job.

After the defendant was convicted, he appealed, claiming, inter alia, that the trial judge erred by asking jury questions. In response, the Court of Special Appeals of Maryland noted several things:

•"The majority of federal courts to address the issue have held that whether to permit juror questioning is a matter of trial court discretion;"

•"The majority of state courts that have considered the question have also held that the practice is left to the sound discretion of the trial court;"

•"A number of journals and law reviews are also in support of permitting questioning from jurors;"

•"In contrast, a few courts have held that juror questioning of witnesses amounts to error or an abuse of discretion;" and

•"[O]f the courts that do allow juror questioning of witnesses, many suggest procedures a trial court should use in such circumstances."

The Court of Special Appeals of Maryland ultimately sided with the authorities giving courts discretion to allow jury questions, finding as follows:

In sum, we find no prohibition of a process by which jurors may post questions to witnesses, albeit under carefully developed, explained, and monitored procedures consistent with Md. Rule 4-326. Ultimately, such a process is within the sound discretion of the trial court, a discretion that is to be carefully exercised. It is paramount that jurors not be permitted to be partisans for either party. While we assign the process to the discretion of the trial court, we caution that juror questioning is a procedure that may be best left to the more complex or protracted litigation, as opposed to garden variety, everyday trials. In reaching that conclusion we do not suggest that some trials are less significant than others; indeed, to the parties there is no such event as “a little case in the circuit court.”

In the exercise of sound discretion, trial courts should develop, and explain, a detailed procedure for juror questioning. At minimum, the court's intent to engage the process should be explained to counsel in advance and allow counsels' comments or concerns. The process should be explained to the seated jury with a caution that questions, if submitted, must be offered while the witness remains on the stand. The court should also explain to the jury that not all questions will be asked and, further, that questions are subject to objection by counsel and must seek only evidence admissible under the rules of evidence. Questions must be shared with counsel before being asked, giving counsel the opportunity to pose objections. When a juror's question is asked, counsel must be afforded the opportunity to ask follow-up questions. Finally, in the exercise of discretion, the court may terminate the process should there be any appearance of impropriety or partisanship. 

-CM

A History Of Violence: 4th Circuit Deems Evidence Of Wife's Alleged Habitual Violence Inadmissible Under Rule 406

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 defendant is charged with interstate domestic violence and seeks to present evidence of his wife's habitual violent nature. Would that evidence be admissible under Federal Rule of Evidence 406? According to the recent opinion of the Fourth Circuit in United States v. Hurley, 2011 WL 5588810 (4th Cir. 2011), the answer is "no."

In Hurley, the facts were as stated above with Marvin Hurley being charged with interstate domestic violence, which is a crime if a defendant

cause[d] a spouse, intimate partner, or dating partner to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud, and who, in the course of, as a result of, or to facilitate such conduct or travel, commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner[.] dating partner[.]

After he was convicted, Hurley appealed, claiming, inter alia, "that the district court erred by not allowing him to present evidence of his wife's habitual violent nature." In response, the Fourth Circuit initially acknowledged that "[u]nder Rule 406 of the Federal Rules of Evidence, habit evidence may be admissible to prove that the conduct of a person was in conformity with habit or routine practice." But the court then concluded that the district court did not err because "[h]ere, the proffered instances of prior conduct was simply too few and far between to show that Hurley's wife had a habit of reacting violently to a repeated set of circumstances." 

In other words, propensity character evidence is inadmissible under Federal Rule of Evidence 404 to prove an alleged victim's propensity to engage in acts of violence and her likely conformity with that propensity at the time of the crime charged. But when a defendant can present evidence that the alleged victim's responds to a specific set of stimuli with a violent response with sufficient frequency and regularity, the evidence is admissible habit evidence under Rule 406 (e.g., "I always come home lte on Wednesday nights, and she always attacks me when I come home.").

But what about Federal Rule of Evidence 404(a)(2)? That Rule provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:....

(2) Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor....

So, why couldn't Hurley present evidence about his wife's repeated acts of violence under this mercy rule? Well, the mercy rule in Rule 404(a)(2) is subject to Federal Rule of Evidence 405(a), which provides that

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

But what about that fact that Hurley presumably had knowledge of his wife's past acts of violence and thus ostensibly could have presented them not to prove her violent nature but to prove his reasonable apprehension of her? Apparently, Hurley didn't make this argument.

-CM

Things We Lost In The Fire: NY Opinion Reveals That The State Bars Evidence Of Subsequent Remedial Measures

Federal Rule of Evidence 407 provides that

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

And while New York doesn't have codified rules of evidence, the recent opinion of the Supreme Court of New York, Appellate Division, First Department in Stolowski v. 234 East 178th Street LLC, 2011 WL 5527716 (N.Y.A.D. 1 Dept. 2011), makes clear that the state similarly deems evidence of subsequent remedial measures inadmissible subject to certain exceptions.

The facts in Stolowski aren't entirely clear from the court's opinion, but it appears as if plaintiffs sued the defendant based upon injuries and/or death suffered by their relatives in a fire at a building owned by the defendant. The defendant thereafter filed a motion for a protective order as to post-fire repairs and remedial measures. Apparently, the defendant took remedial measures to correct a defective condition at the site of the fire. 

While the trial court denied the defendant's motion, the Supreme Court of New York, Appellate Division, First Department reversed, concluding that

The records of defendant's post-fire repairs and remedial measures do not fall within any of the recognized exceptions to the general rule that evidence of post-accident repairs is generally inadmissible and may never be admitted to prove an admission of negligence.

The plaintiffs apparently claimed that evidence of the post-fire repairs would be admissible to impeach defendant witness', but the Appellate Division concluded that "[c]ontrary to plaintiffs' contentions, 'general credibility impeachment' is not an exception." The court also found that "[c]ontrol is not at issue here since defendant concedes that it owns the premises." 

-CM

Book 'Em Danno, Take 2: Court Of Appeals Of Colorado Finds Rule 803(8)(B) Doesn't Bar Admission Of Booking Reports

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

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

So, let's say that the prosecution wants to introduce booking reports and a mittimus against a defendant. Are these documents admissible under Colorado Rule of Evidence 803(8)(A) or are they inadmissible under Colorado Rule of Evidence 803(8)(B)? According to the recent opinion of the Colorado Court of Appeals of Colorado, Div. VI in People v. Warrick, 2011 WL 5089464 (Colo.App. 2011), they're admissible.

In Warrick, the facts were as stated above, and the 

Defendant's booking reports list[ed] his basic biographical information, such as his age and date of birth, and his arrest dates. They also contain[ed] his booking photographs. The mittimus also include[d] defendant's date of birth along with information relating to defendant's prior conviction for conspiracy to commit robbery, including the statute under which he was convicted and the level of his offense.

The Colorado Court of Appeals of Colorado, Div. VI deemed these documents admissible under Colorado Rule of Evidence 803(8)(A), concluding

that the booking reports and the mittimus set forth the activities of the Arapahoe County Sheriff's Department and the Arapahoe County District Court, respectively.

But what about the fact that the documents ostensibly set forth "matters observed by police officers and other law enforcement personnel," which would make them inadmissible under Colorado Rule of Evidence 803(8)(B)? The court noted that no Colorado court had addressed this question before in a published opinion and found that it would rely on federal precedent to resolve the issue because of the similarity between Colorado Rule of Evidence 803(8) and its federal counterpart. The court then found that 

federal circuit courts have consistently and uniformly ruled that booking sheets and other similar documents are admissible under Fed.R.Evid. 803(8)(B). For example, in United States v. Dowdell, 595 F.3d 50 (1st Cir. 2010) [which I blogged about here], the court considered whether a police booking sheet was admissible under Fed.R.Evid. 803(8)(B). The court found that it was, concluding that "ministerial, non-adversarial information is admissible under Rule 803(8)(B)."... The court relied on the history of the rule's enactment, which made clear that the purpose of Rule 803(8)(B) was only to bar investigative reports prepared by the police for the prosecution of a specific defendant:

[T]he reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.

-CM

Where There's Smoke: Will Evidence Of Other Acts Of Child Molestation Be Admissible Against Jerry Sandusky?

An e-mail on the Evidence Professor listserv yesterday raised an interesting question: When former Penn State assistant football coach Jerry Sandusky is tried criminally and likely civilly for acts of child molestation, will evidence of uncharged/other acts of child molestation be admissible under the Pennsylvania Rules of Evidence? I think that the answer is likely "yes," but the question of admissibility won't be as easy as it is under the Federal Rules of Evidence and many other state evidentiary codes.

Federal Rule of Evidence 414(a) provides that

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

Meanwhile, Federal Rule of Evidence 415(a)

In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

These Rules, along with Federal Rule of Evidence 413, were

enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994...and became effective in 1995....The drafters' purpose was to supersede Rule 404(b)'s prohibition on evidence of like conduct showing propensity in sexual assault cases.

As is made clear in Jessica D. Kahn, He Said, She Said, She Said: Why Pennsylvania Should Adopt Federal Rules of Evidence 413 and 414, 52 Vill. L. Rev. 641 (2007), however, unlike some other states, Pennsylvania does not have state counterparts to Rules 413-415.

That said, Pennsylvania Rule of Evidence 404(b)(2) provides that

Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof or motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake or accident.

Under this Rule, then, the prosecution/plaintiffs' attorneys can present evidence of other acts of child molestation, not to prove, "Once a child molester, always a child molester," but to prove common plan or scheme/modus operandi. For instance, in Commonwealth v. O'Brien, 836 A.2d 966 (Pa.Super. 2003), the Superior Court of Pennsylvania found no problem with the admission under Rule 404(b)(2) of evidence concerning the defendant's prior sexual assaults against two minor boys in his prosecution for sexually assaulting a third minor boy.

-CM

Law & Crit, Take 4: Patty Jenkins' "Monster" And The "Monster" In All Of Us

I'm working with a couple of high school students on a project related to the insanity defense, and today I gave them Russell D. Covey's terrific new article, Temporary Insanity: The Strange Life and Times of the Perfect Defense to read. The focus of their project is on how mental disorders truly impact people and their judgment and under what circumstances a defendant should be found not guilty by reason of insanity. Based upon Professor Covey's article, we had an interesting discussion about how the legal system should treat those claiming insanity and how it should treat those claiming temporary insanity. 

In a certain sense, it seems easier for judges or jurors to put themselves into the shoes of a person pleading temporary insanity. Sure, the judge/juror might never have been molested as a child, but if one of the children allegedly molested by Jerry Sandusky killed him and claimed temporary insanity, it wouldn't be too difficult for the judge/juror to intuit what was basically going through the defendant's head even if the judge/juror could never truly grasp the depth and the breadth of the psychological damage done (more on this case tomorrow). And a judge/juror may never have fought in a war, but if a recent veteran charged with murder claims temporary insanity/PTSD, that judge/juror probably has a sense that war is hell (on the soldier), even if the magnitude of the soldier's suffering cannot be fully grasped. Conversely, unless a judge/juror has a history of schizophrenia, borderline personality disorder, etc. in his family, he likely has no idea what was going through the head of a defendant claiming a traditional insanity defense based upon one of these conditions.

This, of course, is not a problem unique to the insanity defense. To serve as a juror in a capital case, you must be death-qualified. But being death-qualified doesn't mean that you need any special education, training, or experience to decide between life (in prison) and death; it simply means that you must be willing to impose the death penalty based upon balancing aggravating and mitigating factors. Let's say that you're a capital juror and the defendant/murder was physically abused as a child. Let's say that she was raped. If you haven't suffered from a history or violence, would you have the ability to get inside the head of the defendant, to decide whether her life should be spared? 

This leads me to Alyssa Rosenberg's post today in her Pop Culture and the Death Penalty Project, which deals with Patty Jenkins' "Monster."

"Monster," of course, is the movie about Aileen Wuornos, the abused Florida woman who was dubbed America's first female serial killer. I would dispute the notion of Wuornos being a serial killer, a point poignantly made by Nick Broomfield in his documentary, "Aileen Wuornos: The Selling of a Serial Killer." I highly recommend both that doc and Broomfield's follow-up, "Aileen: Life and Death of a Serial Killer."

But I would also strongly recommend "Monster" because, as Rosenberg notes, it does something that neither doc can: It gets you inside of Wuornos' head. According to Rosenberg,

The site of Aileen tied up, bloody, of her attacker pouring rubbing alcohol into the gash on her head, raping her — it’s absolutely horrific. And after she shoots him to stop the attack, watching her shriek, keen, slam the hood of the car is one of the rawest I’ve ever seen on film, and perhaps the only performances I’ve seen that gave me an actual sense of what it would feel like to kill another person.

This alone proves the powerful intersection between pop culture and the law and underscores the importance of Rosenberg's project. In an earlier post, Rosenberg wrote about "The Green Mile." Well, in Blackmon v. State, 7 So.3d 397 (Ala.Crim.App. 2005), during death-qualification, two juror were struck because they indicated that "The Green Mile" had an impact on how they view the death penalty. Fictional films might distort factual reality. They might distort legal reality. They might simplify complex issues. But they matter. Indeed, Rosenberg's point is echoed by Abbe Smith in The "Monster" in All of Us: When Victims Become Perpetrators, 38 Suffolk U. L. Rev. 367 (2005).

Later, Rosenberg writes

I have no idea how I could bring myself to cause the death of another person, even if that death is sanctioned by the state, without suffering suffering extreme trauma.... 

This is an important point, and one which Werner Herzog, one of my favorite documentary filmmakers apparently explores in his new film, "Into The Abyss" by focusing upon the plight of a former death house captain. I certainly think that the effect of executions on the executioner is a topic that has received insufficient attention, but what about the effect on jurors who sentence defendants to death?

Based upon the work of the Innocence Project, most people know that many convictions are houses of cards built on faulty eyewitness identifications and coerced confessions. And while many might not be aware of the current public defender crisis, surely it has seeped into the public consciousness that impoverished young defendants with neophyte lawyers are receiving something less than the Platonic ideal of representation. A juror is death-qualified when he is willing to impose the death penalty. But is that juror qualified to deal with the consequences of his decision to impose death? What if a witness for the prosecution recants his testimony? What if an alibi witness appears? What if DNA evidence points to another suspect? What if this evidence comes after the execution? Is the juror qualified to deal with his choice to impose death? Is anyone qualified?

-CM

A Picture Is Worth A Thousand Words: Court Of Appeals Of Iowa Fails To Resolve Whether Facebook Photos Trigger Rape Shield Rule Analysis

Similar to its federal counterpart, Iowa Rule of Evidence 5.412a, Iowa's rape shield rule,

Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual abuse is not admissible.

A grandfather is charged with sexual crimes against his granddaughter based upon acts committed starting in 2004 when she was 8 years-old. At trial, the grandfather wants to introduce into evidence three photographs posted to a Facebook page in 2010 depicting: (1) the alleged victim holding several condoms and her mother standing behind her; (2) the alleged victim inflating a condom like a balloon; and (3) the alleged victim's mother making a gesture with her hand/face that could be interpreted as a sexual gesture. Do these photographs depict "sexual behavior," rendering them inadmissible under the rape shield rule? That was a question that the Court of Appeals of Iowa didn't (have to) answer in its recent opinion in State v. Parker, 2011 WL 5387212 (Iowa App. 2011).

In Parker, the facts were as stated above, with the grandfather claiming, inter alia, that the photographs were necessary (1) to show the relationship the alleged victim has with her mother; (2) to impeach the alleged victim's claim she was ashamed to talk with her mother about the abuse; and (3) to demonstrate the open relationship between the alleged victim and and her mother.

The trial court found that these photographs depicted "sexual behavior, rendering them inadmissible under the rape shield rule. Alternatively, the trial court found that the photographs were inadmissible because their probative value was substantially outweighed by the danger of unfair prejudice and other dangers under Iowa Rule of Evidence 5.403.

The Court of Appeals of Iowa affirmed, finding that admission of the photographs would violate Iowa Rule of Evidence 5.403 and not reaching the issue of whether admission of the photographs would also violate the rape shield rule.

That said, it seems clear to me that their admission would have violated the rape shield rule because they depicted "sexual behavior." The Advisory Committee's Note to Federal Rule of Evidence 412 states in relevant part that

Past sexual behavior connotes all activities that involve actual physical conduct, i.e. sexual intercourse and sexual contact, or that imply sexual intercourse or sexual contact. See, e.g. United States v. Galloway, 937 F.2d 542 (10th Cir. 1991), cert. denied, 113 S.Ct. 418 (1992) (use of contraceptives inadmissible since use implies sexual activity); United States v. One Feather, 702 F.2d 736 (8th Cir. 1983) (birth of an illegitimate child inadmissible); State v. Carmichael, 727 P.2d 918, 925 (Kan. 1986) (evidence of venereal disease inadmissible). In addition, the word "behavior" should be construed to include activities of the mind, such as fantasies or dreams.  See 23 C. Wright & K. Graham, Jr., Federal Practice and Procedure, § 5384 at p.  548 (1980) ("While there may be some doubt under statutes that require 'conduct,' it would seem that the language of Rule 412 is broad enough to encompass the behavior of the mind.").

If "sexual behavior" includes activities of the mind, then surely it also includes photographs of a sexual nature posted to a Facebook page. And indeed, other courts have found that sexually suggestive photographs on social networking sites constitute "sexual behavior" for rape shield rule purposes. See, e.g.,  In re K.W., 2008 WL 4201072 (N.C.App. 2008) (finding that sexually suggestive photographs on a MySpace page triggered a rape shield rule analysis).

-CM

 

The Areas of My Expertise: Court Of Appeals Of Texas Finds Rule 702 Objection Didn't Preserve Rule 701 Issue

Texas Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Meanwhile, Texas Rule of Evidence 702 provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Finally, Texas 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

(1) Objection. In 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. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.

So, let's say that a defendant objects that a police officer's opinion testimony is inadmissible because he was not an expert witness under Rule 702. And let's say that the court's response is that the police officer could offer lay opinion testimony under Rule 701. Has the defendant preserved the issue of the admissibility of the officer's testimony under Rule 701? According to the recent opinion of the Court of Appeals of Texas, Waco, in State v. Simmons, 2011 WL 5247891 (Tex.App.-Waco 2011), the answer is "no." I disagree.

In Simmons, 

The evidence showed that Appellant was intoxicated in his pickup truck when it collided with a four-door Kia driven by an off-duty police officer. When Fort Worth Police Officer Corey Swanson arrived on the scene, the Kia was disabled in the roadway, facing westbound. It had sustained damage to its left front corner. Appellant's pickup had been pulled off the roadway. It had front end damage. Appellant told Officer Swanson that his truck was over the double yellow line turning left when the Kia struck him at high speed. Officer Swanson testified that Appellant's story made no sense to him. Citing rule of evidence 701, the trial court overruled Appellant's objection and allowed the officer's testimony.

But while the trial court cited to Rule 701, the appellant did not. Instead, defense counsel claimed that Officer Swanson was not an expert in accident reconstruction under Rule 702 and thus could not offer opinion testimony regarding what happened before and during the accident. According to the Court of Appeals of Texas, Waco, this meant that the appellant had not preserved for appellate review the issue of whether Officer Swanson could offer lay opinion testimony under Rule 701. According to the court, "[t]o the extent that Appellant's point on appeal contests admissibility based on rule 701, because his trial objection was based on rule 702, his complaint is not preserved for our review."

Really? Wasn't it implicit in appellant's objection that Officer Swanson could not offer lay opinion testimony under Rule 701. In other words, the appellant's explicit objection was that Officer Swanson could not offer expert opinion testimony under  Rule 702 because he was not expert in accident reconstruction. Isn't it implicit in this objection that only an expert could render opinion testimony on the topic? In the words of Rule 103(a)(1), wasn't this implicit basis for the objection "apparent from the context," especially given the fact that the trial court cited Rule 701 in response to the appellant's objection?

-CM

 

Come Be My Conspiracy: Does The Co-Conspirator Admission Rule Only Cover The Charged Conspiracy?

Federal Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he 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.

So, under this co-conspirator admission rule, is a co-conspirator's statement only admissible against a defendant if the statement was made during the course and in furtherance of the conspiracy charged in the indictment, or can a co-conspirator admission made during a different conspiracy also be admissible? This was a question that the Fourth Circuit didn't quite have to answer in its recent opinion in United States v. Medford, 2011 WL 5317751 (4th Cir. 2011), but it seems that there is no "same conspiracy" requirement under Rule 801(d)(2)(E).

In Medford, Bobby Lee Medford, a former Sheriff of Buncombe County, North Carolina, was convicted in a jury trial of numerous conspiracy and other charges relating to his receipt of bribes in connection with the unlawful operation of video poker machines in Buncombe and other North Carolina counties. After he was convicted, Medford appealed, claiming, inter alia,

that the district court erred in admitting into evidence a recording of a December 19, 2006 meeting...attended by Jamie Henderson, a co-owner of Henderson Amusement, JeffChilders, an employee of Henderson Amusement, John Parker, a former deputy sheriff in neighboring Rutherford County, and Jack Conner, the newly-elected Sheriff of Rutherford County. According to Medford, this recording should not have been admitted into evidence because the recording related to a separate conspiracy in Rutherford County to whichMedford was not a party, and occurred after Medford already had left office following his loss in the 2006 election. Thus, Medford asserts that the recording did not qualify for admission under the hearsay exclusion provided by Rule 801 for statements made by co-conspirators during the course and in furtherance of a conspiracy.

The district court had found that Medford was involved in this separate conspiracy, and the Fourth Circuit did not address the validity of this finding. Instead, the Fourth Circuit found that even assuming the invalidity of this finding, the erroneous admission of the recording was harmless error giving the overwhelming other evidence of Medford's guilt.

But what if (1) there weren't overwhelming other evidence of Medford's guilt; and (2) Medford was involved in this other conspiracy, but it was not the same conspiracy charged in the indictment. Under these circumstances, should the Fourth Circuit have found that the recording was improperly admitted, necessitating a new trial? It seems clear that the answer is "no."

Instead, courts consistently have concluded that "[t]he conspiracy that forms the basis for admitting the coconspirators' statements need not be the same conspiracy for which the defendant is indicted."United States v. Senegal, 371 Fed.Appx. 494, 502 (5th Cir. 2010). Indeed, as I have noted previously on this blog, the prosecution doesn't even need to charge a defendant with conspiracy to admit statements under Federal Rule of Evidence 801(d)(2)(E).

If we think about the rationale behind Federal Rule of Evidence 801(d)(2)(E), it makes sense why there is no "same conspiracy" requirement. The theory behind Rule 801(d)(2)(E) is that a co-conspirator is the agent of other conspirators. Thus, when a co-conspirator makes statements during the course and in furtherance of the conspiracy, those statements are attributable to other conspirators just as statements by an employee are attributable to an employer. This being the case, it is irrelevant that a defendant is not charged with (or in connection with) the conspiracy during which the co-conspirator made his statement(s).

-CM

 

Best Of Everything: Bankruptcy Court Finds Best Evidence Rule Doesn't Apply In Bankruptcy Case

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

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

So, let's say that a debtor in a bankruptcy action testifies that she never made a contribution to an IRA and produces account statements for that IRA that cover a certain stretch of time but does not produce statements that cover another stretch of time. Does the testimony violate the Best Evidence Rule? According to the recent opinion of the United States Bankruptcy Court for the District of Massachusetts in In re LeClair, 2011 WL 5282605 (Bkrtcy.D.Mass. 2011), the answer is "no."

In LeClair, David M. Nickless, Chapter 7 trustee, objected to debtor Betty LeClair's claimed exemption in an annuity held for her benefit by the John Hancock Life Insurance Company.

The trustee d[id] not dispute that the funds used to purchase Ms. LeClair's annuity came directly to John Hancock from her IRA at Citi Smith Barney. Rather, he allege[d] that the funds used to purchase the annuity were deposited into the IRA within five years of the debtor's bankruptcy filing and thus, according to the limitations set forth in the statute, Ms. LeClair's exemption [wa]s limited to $1913.66 which is 7% of her earned income for that period.

That five year period ran from from June 25, 2005 through June 24, 2010. LeClair testified that she never made a contribution to the IRA at any time, prompting Nickless' objection that this testimony violated Federal Rule of Evidence 1002. Nickless pointed out that while "LeClair was able to produce account statements showing no contributions to the IRA between November 30, 2005 and July 15, 2008 when the annuity was purchased, she could produce no records for the period from June 25, 2005 through November 29, 2005." Nickless claimed that these statements were the "best evidence" of whether LeClair contributed to the IRA and LeClair's testimony thus violated the Best Evidence Rule.

The United States Bankruptcy Court for the District of Massachusetts correctly disagreed, concluding that

The trustee misperceives the rule. Ms. LeClair's testimony was not elicited to prove the contents of a writing; she was testifying to a particular fact known to her, namely the history of the IRA she inherited from her first husband. "[A]s the advisory committee note makes clear, Rule 1002 applies not when a piece of evidence sought to be introduced has been somewhere recorded in writing but when it is that written record itself that the party seeks to prove."..."No evidentiary rule...prohibits a witness from testifying to a fact simply because the fact can be supported by written documentation."...Despite its nickname, the rule does not require that a writing be deemed better evidence than oral testimony or that when written evidence exists, it must be presented instead of oral testimony....The absence of a paper trail to establish that no contributions to the IRA occurred between June and November 2005 does not render Ms. LeClair's own testimony on this point inadmissible.

-CM

The Prisoner: United States District Court for the District Of Idaho Refuses To Appoint Expert In Prisoner Case

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

The word "may" is the key word in this Rule as courts are under no obligation to appoint experts except in some cases involving scientific evidence or complex issues. So, if a prisoner sues a correctional facility, claiming that its officials were deliberately indifferent to his serious medical needs, does the court need to appoint an expert under Rule 706(a)? According to the recent opinion of the United States District Court for the District of Idaho in Orr v. Valdez, 2011 WL 4239223 (D.Idaho 2011), the answer is "no."

In Valdez, the facts were as stated above, with Dennis A. Orr bringing an action against doctors and others at the Idaho Correctional Center, claiming that members of the prison medical staff were deliberately indifferent to his back, leg, and knee pain and other medical problems. After bringing the action, Orr requested that the court appoint an expert to assist him in presenting his claims. 

In response, the court initially noted that "[t]he in forma pauperis statute, 28 U.S.C. § 1915, does not authorize federal courts to appoint or authorize payment for expert witnesses for prisoners or other indigent litigants." The court then noted that

A federal court may appoint an expert witness under Federal Rule of Evidence 706(a), with the expert's fees to be allocated among the parties "in such proportion and at such time as the court directs." Fed.R.Evid. 706(b). Under this rule, experts are properly appointed where complex scientific issues are involved, such as determining what the concentration levels of environmental tobacco smoke (ETS) are in a prison and determining the health effects of ETS on nonsmoking prisoners....However, courts have recognized that "[r]easonably construed, Rule 706 does not contemplate the appointment of, and compensation for, an expert to aid one of the parties."

Applying this logic, the court concluded that

At issue in this matter is whether prison medical staff were deliberately indifferent to Plaintiff's back, leg, and knee pain and other medical problems. The issue of deliberate indifference regarding these medical issues is not so complicated and difficult that an expert is required to present or prove the case. Moreover, the facts at issue in this matter are not scientifically complex....The Court will not appoint a Rule 706 expert witness.

-CM