EvidenceProf Blog

The Big C: Supreme Court Of Minnesota Finds Statements By Cancer-Ridden Declarant Weren't Dying Declarations

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

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

So, let's say that a declarant makes a statement while terminally ill with cancer, but the statement does not concern his cancer. Does the statement qualify as a dying declaration? According to the recent opinion of the Supreme Court of Minnesota in Roby v. State, 2011 WL 6783876 (Minn. 2011), the answer is "no."

In Roby, Gary Roby was convicted of aiding and abetting the crimes of first-degree premeditated murder, first-degree murder while committing aggravated robbery, and second-degree intentional murder for his role in the shooting death of Marlizza McIntyre. After he was convicted and unsuccessfully appealed his conviction, Roby filed several petitions for postconviction relief.

One of these petitions sought relief based upon the affidavit of C.H., one of Roby's close relatives. AT Roby's initial trial, his brother, C.T., testified, inter alia, that Roby brought him the murder weapon after the shooting. According to C.H.'s affidavit, this testimony was a lie. Roby thus claimed that the "affidavit would make a court 'reasonably well-satisfied' that C.T.'s testimony at trial was false, and that without C.T.'s false testimony, the jury might have reached a different conclusion."

The Supreme Court of Minnesota disagreed, concluding that

The evidence in C.H.'s affidavit fails the newly discovered evidence test in the statute because it cannot, as a matter of law, establish Roby's innocence by clear and convincing evidence....This is so because C.T.'s statements to C.H. are inadmissible hearsay, and C.T. is dead. Roby, however, argues that C.T.'s statements would be admissible because he made the statement in belief of his impending death. While C.H. states that C.T. made the statements in the affidavit to her while he was dying of colon cancer, the statements do not constitute "dying declarations" because they do not "[concern] the cause or circumstances of what the declarant believed to be impending death." See Minn.R. Evid. 804(b)(2)....Because C.T.'s statements are inadmissible, C.H.'s affidavit cannot prove Roby's innocence by clear and convincing evidence.

-CM

Child Bride: Supreme Court Of Louisiana Finds Evidence Of Marriage To Child Bride Admissible To Prove Lustful Disposition

La. C.E. art 412(2)(A) states that

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

This Rule is somewhat similar but also somewhat different from Federal Rule of Evidence 414(a), which provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, what's the difference? Well, in many jurisdictions, the age at which an individual can consent to a marriage is often lower than age at which an individual can consent to sexual acts. And there can't be statutory rape between a husband and a wife. What this means is that an adult who engages in sexual acts with a minor of a certain age is engaging in statutory rape if the minor is not his wife while an adult who engages in sexual acts with a minor of the same age is not engaging in statutory rape if the minor is his wife. 

So, let's say that a defendant is charged with aggravated incest against a minor and previously married his wife (and engaged in sexual acts with her) when he was an adult and she was 14 year-old. Is evidence of the marriage and marital relations admissible under Federal Rule of Evidence 414(a)? No. Is it admissible under La. C.E. art 412(2)(A)? As the recent opinion of the Supreme Court of Louisiana in State v. Wright, 2011 WL 6091243 (La. 2011), makes clear, the answer is "yes."

In Wright, the facts were as stated above, with Michael Wright being charged with aggravated incest based upon acts allegedly committed against his 17 year-old son, BK. At trial, the prosecution presented evidence of Wright's marriage and marital relations with BC, whom Wright married when she was 14 years-old and a seventh grade classmate of BK. Now, there was also evidence of sexual relations between Wright and BK before they were married, but, after Wright was convicted, he appealed, claiming that evidence of his marriage and marital relations with BC was erroneous because they were both legal. 

The Court of Appeals of Louisiana agreed with Wright, but the Supreme Court of Louisiana disagreed. According to the Louisiana Supremes,

The State does not argue this was a crime, but rather argues such evidence was relevant and admissible to explain the actions of BK, to complete the story of what happened and the context in which it happened, and to show the defendant's lustful disposition toward children.

And, based upon the language of La. C.E. art 412(2)(A), you can see why. Evidence of Wright's marriage and marital relations with BC was "evidence of the accused's commission of another...act...which indicate[s] a lustful disposition toward children..." It doesn't matter that the marriage and marital relations were not a "crime," "wrong," or "child molestation." As long as they showed a lustful disposition toward children, they were admissible (regardless of the fact that the genders of BC and BK were different, according to the court).

Conversely, under Federal Rule of Evidence 414(a), only evidence of prior acts of "child molestation" are admissible. Evidence of Wright's marriage and marital relations with BC was not evidence of "child molestation" and thus would not have been admissible against Wright under Rule 414(a) if his case were decided under the Federal Rules of Evidence.

-CM

Taking Exception: Is Evidence Of Prior Oral Sex By 15 Year-Old Victim Admissible In Prosecution Of 38 Year-Old?

A 38 year-old defendant is charged with four counts of sexual conduct with a minor, and it is undisputed that he engaged in four acts of oral sexual intercourse with the victim, who was 15 years-old. The defendant, however, seeks to present evidence that the victim had engaged in oral sex with two other individuals, claiming that it went to his belief that the victim was eighteen or older. Should the court deem this evidence admissible? According to a trial court the answer is "yes," and it may reach the same conclusion after a remand from the Court of Appeals of Arizona.

In State ex rel. Montgomery v. Duncan, 2011 WL 6778782 (Ariz.App. Div. 1 2011), the facts were as stated above, with the trial court deeming evidence of the the victim's other sexual acts admissible despite Arizona's rape shield law, which states that

A. Evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity are not admissible in any prosecution for any offense in this chapter. Evidence of specific instances of the victim's prior sexual conduct may be admitted only if a judge finds the evidence is relevant and is material to a fact in issue in the case and that the inflammatory or prejudicial nature of the evidence does not outweigh the probative value of the evidence, and if the evidence is one of the following:

1. Evidence of the victim's past sexual conduct with the defendant.

2. Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease or trauma.

3. Evidence that supports a claim that the victim has a motive in accusing the defendant of the crime.

4. Evidence offered for the purpose of impeachment when the prosecutor puts the victim's prior sexual conduct in issue.

5. Evidence of false allegations of sexual misconduct made by the victim against others.

Here was the rationale given by the trial court for admitting the evidence:

[This is] why I'm allowing its admission. I view this evidence differently than what the rape shield law was designed to protect against. The rape shield law was not designed to protect against a defendant from being able to raise a theory of defense that goes to an element of the offense, which this does. It also goes to confrontation. So there's actually two reasons that this is both relevant and I think would be reversible error to preclude.

I do think a limiting instruction is appropriate. But, again, the Court finds it to be relevant to the theory of defense, specifically to refute the state of mind element of the offense, and with respect to confronting and cross-examining the victim when the victim testifies.

After this ruling, the State brought a special action in the Court of Appeals of Arizona, claiming that this ruling was erroneous. The appellate court initially found that the evidence was inadmissible under the rape shield law itself because, inter alia, the evidence did not satisfy any of the five enumerated exceptions. The court then noted that the trial court still could have admitted the evidence if it found that its exclusion would have violated the defendant's Constitutional rights, such as his right to due process, his right to present a defense, and his right to confrontation.

And, according to the court, evidence can be admissible "notwithstanding the statutory bar if that evidence 'has substantial probative value and when alternative evidence tending to prove the issue is not reasonably available.'" That said, the court found that "the trial court did not engage in any balancing to determine whether there was a due process or other constitutional violation that would occur if the statute was given effect and the testimony was precluded."

Thus, the court remanded to the trial court to decide the issue anew, and, in, doing so, it gave the following admonition:

It is not apparent to us how cross-examining the Victim on this evidence will aid in the truth-seeking process as to what Defendant's belief was as to the Victim's age. Thus, the only affirmative inquiry that needs to be made is whether Defendant, in his testimony, should be permitted to testify on direct about how the Victim's alleged statements that the Victim had previously engaged in oral sex led Defendant to conclude that the Victim was at least eighteen.

My conclusion: This admonition wasn't nearly strong enough. The appellate court of course was correct to warn that defense counsel shouldn't be able to cross-examine the 15 year-old victim about her alleged past acts of oral sex. But shouldn't the court also have warned that this evidence should be deemed inadmissible, period? There are statistics all over the internet regarding the percentage of teenagers engaging in oral sex. I guess the most applicable one to this case would be the CDC study that found that 30% of females aged 15-17 reported giving oral sex to a male (and 38% reported receiving oral sex from a male).

Given these and other numbers and the general awareness that most people have that a decent percentage of teenagers are engaging in oral sex, what was the relevance of the defendant's proffered evidence? How would it any way tend to establish that the defendant thought the victim was at least 18 years-old? The answer is that it wouldn't. Instead, the evidence was lacking in any probative value and certainly lacking the substantial probative value required to make it admissible. But will the trial court see it that way?

-CM

 

This Is A Recording: Court Of Appeals Of Arizona Finds Videotape Qualifies As Recorded Recollection

Like its federal counterpart, Arizona 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 the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' 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.

Usually, this recorded recollection exception applies to writings (or typewritten documents), and you can see from the language of Rule 803(5) that this was the original intent of the Rule ("may be read into evidence"). That said, as is made clear by opinions such as the recent opinion of the Court of Appeals of Arizona, Division 1, Department E., in State v. Silva-Acosta, 2011 WL 6747389 (Ariz.App. Div. 1 2011), courts have also found that the exception covers videotapes.

In Silva-Acosta, Jose Jaime Silva–Acosta was convicted of molestation of a child and sexual abuse. 

The victim was seven years old at the time of trial. She provided conflicting testimony regarding her ability to remember specifics of the unlawful touching underlying the charges against Silva–Acosta. For example, although the victim testified she could not remember the incident, she also testified that Silva–Acosta touched her "private." She first testified he touched her breast with his hand and licked her breast, but later testified he did not lick her. In light of these inconsistencies, the State sought to play for the jury a video recording of the forensic interview conducted with the victim six days after the incident. Over Silva–Acosta's objection, the court permitted the recording to be played for the jury. The recording was not admitted in evidence.

After he was convicted, Silva-Acosta appealed, claiming, inter alia, that the video recording was inadmissible hearsay. The Court of Appeals of Arizona disagreed, concluding that

the victim had difficulty remembering the details of the incident at trial. However, she also testified that she remembered talking to the police about the touching and that her memory regarding the incident was better at the time of the interview, less than a week after the alleged crimes were committed. Consequently, the recorded interview squarely fits the definition of a recorded recollection and therefore was admissible as a hearsay exception under Rule 803(5)....The superior court accordingly did not abuse its discretion in allowing the jury to view and hear the recording.

-CM

Collateral Damage: Court Of Appeals Of Arizona Finds Collateral Evidence Rule Doesn't Apply To Bias Evidence

Like its federal counterpart, Arizona Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The portion of Rule 608(b) that excludes extrinsic evidence of specific instances of conduct, however, only applies to instances of conduct unrelated to the case at hand used to prove that a witness is generally a liar. For instance, under Rule 608(b), defense counsel could ask an (eye)witness for the prosecution whether he ever cheated on his taxes but could not prove the act (of cheating) through extrinsic evidence. Conversely, defense counsel could both ask the (eye)witness whether some specific act (such as the defendant stealing his girlfriend) rendered him biased against the defendant and prove this act through extrinsic evidence, as is made clear by the recent opinion of the Court of Appeals of Arizona,Division 1, Department E., in State v. Herrera, 2011 WL 6747405 (Ariz.App. Div. 1 2011).

In Herrera, Hector Alberto Herrera appealed his convictions and sentences in one case for aggravated assault and assault and the resulting revocation of his probation and sentence in another case. Reyna P. was the alleged victim of his assaults. On appeal, Herrera claimed that

the superior court abused its discretion in allowing the State to impeach Reyna P. with evidence of the number of visits she had made to him in jail, evidence that on some of these visits she had identified herself as his "girlfriend," and evidence of the numerous phone calls he made to her from jail. 

Specifically,

the court erred in admitting extrinsic evidence of Reyna P.'s jail visits and her identification of herself as his girlfriend because the evidence violated "a long-standing prohibition on impeachment with specific conduct that fell short of a felony conviction" and a prohibition against "bringing in extrinsic evidence to prove the collateral matter."

Herrera, of course, was referring to Arizona Rule of Evidence 608(b) and the so-called collateral evidence rule. That court, however, found this rule inapplicable to the impeachment of Reyna P. because

We have held, however, that "Rule 608(b) neither blocks an inquiry about conduct which is probative of bias nor precludes introduction of extrinsic evidence to prove such conduct."...

The State offered the evidence at issue in this case to show Reyna P. was biased in favor of Herrera and had a motive to lie for him, purposes that by definition are not "collateral."

-CM

E Tu, Bruton, Take 2: Eastern District Of Michigan Finds Nontestimonial Statements Beyond Scope Of Bruton

The statements from John Henry Williams to Kareemah Greer, Deville Thedford, Richard Peeples, and Donnell Hornbuckle concerning petitioner's involvement in the robbery and murder do not qualify as testimonial statements covered by the Confrontation Clause because they were casual remarks made to a friend or family member and not ones made to law enforcement....Morever, because the Confrontation Clause has no applicability to non-testimonial statements, they may be admitted even if they lack indicia of reliability. See Whorton v. Bockting, 549 U.S. 406, 420...(2007). Thus, the admission of Williams' statements to Greer, Thedford, Peeples, and Hornbuckle did not violate petitioner's Sixth Amendment right to confrontation. Frazier v. Scutt, 2011 WL 5507 383 (E.D.Mich. 2011) (emphasis added).

Following up on my post from yesterday, the recent opinion of the United States District Court for the Eastern District of Michigan in Frazier v. Scutt is yet another example of a court finding that nontestimonial statements are beyond the scope of the the Bruton doctrine in the wake of Crawford v. Washington, 541 U.S. 36 (2004). And, I would argue that it is yet another example of a court getting it wrong.

In Scutt, Corey Frazier appealed from his conviction for first-degree felony murder, which resulted from a joint jury trial with his co-defendant, John Henry Williams. At trial, Williams did not testify, but the prosecution did admit several of his casual comments to friends and family members in which he admitted his involvement in the murder and claimed that Frazier pulled the trigger on the gun that fired the fatal shot.

Frazier unsuccessfully appealed his conviction in the Michigan state court system on the ground that the admission of Williams' statements violated the Bruton doctrine, and he then unsuccessfully filed a petition for writ of habeas corpus with the Eastern District of Michigan. As you can see from the block quote introducing this post, that court told Frazier "no dice" because Williams' statements were nontestimonial and the Confrontation Clause is (allegedly) only concerned with testimonial hearsay after Crawford and its progeny.

But here's the thing that almost all courts seem to be missing: Crawford only overruled Ohio v. Roberts, which had no effect on the Bruton doctrine, and the Supreme Court's opinion in Whorton v. Bockting, cited by the Eastern District of Michigan, only confirms this. This being the case, Crawford and its progeny should also have no effect on the Bruton doctrine.

As noted yesterday, under

Ohio v. Roberts, even if hearsay were admissible against a criminal defendant under an exception to the rule against hearsay, its admission still violated the defendant's rights under the Confrontation Clause if the hearsay declarant didn't testify at trial unless the declarant were "unavailable" and the statement had adequate indicia of reliability....

Conversely, the Bruton doctrine does not address the question of when hearsay admissible against a criminal defendant nonetheless violates the Confrontation Clause. Instead, it deals with the question of when hearsay inadmissible against a co-defendant violates the Confrontation Clause. And it answers that question by looking at how harmful the statement is to the co-defendant not by looking at whether the statement satisfies  prevailing test of Constitutional reliability. 

This was made clear in Cruz v. New York, 481 U.S. 186 (1987), in which the Court held that the question of whether a hearsay statement that is inadmissible against a co-defendant has adequate indicia of

reliability...cannot conceivably be relevant to whether, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury's failure to obey is likely to be inconsequential. The law cannot command respect if such an inexplicable exception to a supposed constitutional imperative is adopted. Having decided Bruton, we must face the honest consequences of what it holds.

Of course, Crawford overruled Ohio v. Roberts and replaced its adequate indicia of reliability test with the testimonial/nontestimonial dichotomy. But was this new test meant to serve as a limitation on the Bruton doctrine in a way that the prior test never did? Whorton v. Bockting seems to suggest that the answer is "no." In Bockting, the Court addressed the question of whether Crawford is more or less restrictive than Ohio v. Roberts as follows:

With respect to testimonial out-of-court statements, Crawford is more restrictive than was Roberts, and this may improve the accuracy of factfinding in some criminal cases. Specifically, under Roberts, there may have been cases in which courts erroneously determined that testimonial statements were reliable....But whatever improvement in reliability Crawford produced in this respect must be considered together with Crawford's elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements. Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.

What we see here is the Court in Bockting construing Crawford quite narrowly. It basically construes Crawford as doing two things: (1) creating Confrontation Clause protection for testimonial statements that were previously admitted because they had adequate indicia of reliability; and (2) removing Confrontation Clause protection from nontestimonial statements that were previously excluded because they lacked adequate indicia of reliability. And if those are the only two things that Crawford did, it had no effect on Bruton.

Why? Well, as the Court itself found in Cruz, the Bruton doctrine had nothing to do with the adequate indicia of reliability test. Co-defendant statements were excluded under the Bruton doctrine because they were inadmissible against other defendants, not because they lacked adequate indicia of reliability. Indeed, such statements could have had adequate indicia of reliability and still been inadmissible under Bruton. Therefore, when the Supreme Court removed Confrontation Clause protection from statements in category #2 above, this removal should have had no effect on the Bruton doctrine because statements covered by the doctrine did not fall under category #2.

-CM 

E Tu, Bruton?: Supreme Court Of Nevada Finds Bruton Doctrine Doesn't Cover Nontestimonial Hearsay

The Confrontation Clause of the Sixth Amendment states that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...

Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. In Crawford v. Washington, 541 U.S. 36 (2004), however, 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 the wake of Crawford, several courts have been presented with the question of whether the Bruton doctrine still covers nontestimonial hearsay in the wake of Crawford. Almost every court, including the Supreme Court of Nevada in its recent opinion in Perez v. State, 2011 WL 4527520 (Nev. 2011), has answered this question in the negative. I continue to contend that these courts are wrong.

In Perez, Gladys Perez was convicted of child neglect resulting in substantial bodily harm, child abuse resulting in substantial bodily harm, and first-degree murder after a joint jury trial in which her boyfriend, Marc Colon, was a co-defendant. At trial, Colon did not testify, but the prosecution admitted some of his statements to a minor relative, such as his statement that "if we get caught, it's [Perez's] dumb ass fault."

After she was convicted, Perez appealed, claiming, inter alia, that the admission of these statement violated the Bruton doctrine. The Supreme Court of Nevada, like many courts before it faced with similar arguments, quickly rejected it, finding that

Colon made the statement to a minor relative. The statement was spontaneous and made during a private, casual conversation. Colon's statement was not made for the purpose of gathering evidence for possible use at a later trial or as a recount of past events made in a more formal setting. It is clear that Colon's statement, under these circumstances, was nontestimonial; thus, the Bruton rule, like the Confrontation Clause itself, has no application....As such, the joint trial did not compromise Perez's specific trial right of Confrontation. 

Pretty simple, right? Crawford and its progeny state that the Confrontation Clause is only concerned with testimonial hearsay. The Bruton doctrine is a species of the Confrontation Clause. Therefore, the Bruton doctrine is only concerned with testimonial hearsay. Right? Wrong.

Crawford's testimonial/nontestimonial dichotomy is the replacement for the Ohio v. Roberts adequate indicia of reliability test. Under Ohio v. Roberts, even if hearsay were admissible against a criminal defendant under an exception to the rule against hearsay, its admission still violated the defendant's rights under the Confrontation Clause if the hearsay declarant didn't testify at trial unless the declarant were "unavailable" and the statement had adequate indicia of reliability. The Court overruled this test in Crawford, holding that the question of whether hearsay admissible against a criminal defendant under an exception to the rule against hearsay violates the Confrontation Clause hinges on whether the hearsay is testimonial.

Conversely, the Bruton doctrine does not address the question of when hearsay admissible against a criminal defendant nonetheless violates the Confrontation Clause. Instead, it deals with the question of when hearsay inadmissible against a co-defendant violates the Confrontation Clause. And it answers that question by looking at how harmful the statement is to the co-defendant not by looking at whether the statement satisfies  prevailing test of Constitutional reliability (set forth by Ohio v. Roberts and now Crawford).

This point is made clear by the Supreme Court's Ohio v. Roberts-era opinion in Cruz v. New York, 481 U.S. 186 (1987), in which the Court held that the question of whether a hearsay statement that is inadmissible against a co-defendant has adequate indicia of

reliability...cannot conceivably be relevant to whether, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury's failure to obey is likely to be inconsequential. The law cannot command respect if such an inexplicable exception to a supposed constitutional imperative is adopted. Having decided Bruton, we must face the honest consequences of what it holds.

In other words, at the time of Cruz, it was irrelevant that a defendant's confession that was inadmissible against a co-defendant had adequate indicia of reliability. As long as it facially implicated the other defendant, it was Constitutionally harmful to the defendant because the jury would use it as (devastating) evidence against him.

The same should hold under Crawford. Who cares whether Colon's statement was an informal statement to a minor relative or a formal confession to a police officer? In either case, he was facially incriminating Cruz, his confession was inadmissible against Cruz, and the jury was certain to use the confession as evidence of Cruz's guilt. Therefore, the court should have found that its admission violated the Bruton doctrine. For a more thorough explication of the topic you can check out my forthcoming article on the subject.

-CM

Trust In Me?: DNH Finds That OSHA Report Qualifies For Admission Under Rule 803(8)

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

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

So, how hard is it for the opposing party to prove that a public record lacks trustworthiness, making it inadmissible under Rule of Evidence 803(8)(B)? According to the recent opinion of the United States District Court for the District of New Hampshire in Masello v. Stanley Works, Inc., 2011 WL 5843494 (D.N.H. 2011), the answer is "pretty tough."

In Masello, Joseph Masello

was standing on a Handy 2–Step provided by his employer, Christmas Tree Shops, hanging beach bags for sale in its store in Salem, New Hampshire. The left front leg of the stool cracked into several pieces, causing it to collapse. Masello fell backward, striking his head on the ground. He was non-responsive, so paramedics were called immediately, just after 3 a.m. The paramedics placed Masello on a back board and took him to the hospital, leaving the store around 3:40 a.m.

One of Masello's fellow employees subsequently retrieved the stool and three broken pieces of the left front leg, but was unable to locate the toe. So, as mentioned at the outset, the parties disagree over whether the toe broke off in the accident and could not be found afterwards or whether the toe had already broken off before Masello stepped on the stool that night. This disagreement is significant because the defendants' theory is that the stool collapsed due to the absence of the toe, which allowed the leg to slide out from under the stool when Masello stood on it, while the plaintiff's theory is that the stool collapsed due to the absence of a rounded edge on the bottom of the ribs connecting the first step to each of the front legs.

As a result of striking his head in the fall, Masello suffered a skull fracture and an acute subdural hematoma, which caused him to fall into a coma. Despite a craniotomy to attempt to relieve the pressure on his brain, Masello never regained consciousness. He died approximately two weeks later.

His wife, acting as the administratrix of his estate, thereafter brought an action against Stanley Works, Inc. (the distributor of the stool) and Zag Industries (the manufacturer of the stool) sounding in wrongful death and loss of consortium. The wife thereafter filed a motion in limine seeking to preclude the defendants from introducing evidence of an OSHA investigation and report.

Just over two weeks after Masello's accident, OSHA conducted a "comprehensive inspection" of the Salem Christmas Tree Shops location, interviewing, among others, the store's manager and its director of loss prevention. The manager told the investigator that "after the accident they examined the rest of their stools and five of the remaining stools were also found defective and taken out of service" The investigator also took photographs of the broken stepstool involved in the accident, and reviewed results of the tests on the Handy 2–Step performed in the late 1990s.

Based on this inspection, which [wa]s summarized in a 10–page report, OSHA concluded that Christmas Tree Shops had violated § 5(a)(1) of the Occupational Safety and Health Act of 1970...in that its "employees were exposed to the hazard of falling while working from a damaged 'Handy 2–Step' plastic stool." OSHA deemed this a "serious" violation and fined the company $5,000. Christmas Tree Shops did not contest either the finding of violation or the amount of the fine.

According to the wife, this report was "untrustworthy because the investigation did not include 'any sworn statements, cross-examination or proceedings in an adjudicatory venue," making it inadmissible under Rule of Evidence 803(8)(B). The court disagreed, concluding that

the test for trustworthiness...is not nearly so stringent. To the contrary, as this court recently observed, the court of appeals has held that "an initial presumption of admissibility" attaches to an officer's accident report, including its conclusions, so long as it is based on his or her factual investigation (which, again, the report here indisputably was)....

So, while the fact that the report was not the product of an adjudicatory hearing at which witnesses were sworn and cross-examined may have some bearing on its trustworthiness,...it cannot be called “untrustworthy” for that reason alone....And the plaintiff has not pointed out any other deficiency calling the trustworthiness of the report into question, such as the timeliness of the investigation.

-CM

Entrapment: 9th Circuit Finds Character An Essential Element Of (Disproving) Entrapment Defense

Federal Rule of Evidence 405(b) provides that

When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

So, when is character an essential element of a charge, claim, or defense? Pretty rarely. It is an essential element in a negligent hiring/supervision case because how can a plaintiff prove, for example, that a company was negligent in hiring/supervising a driver with a history of DUIs without presenting evidence of these DUIs? It's also an essential element in a defamation case because how can a defendant prove, for example, that the story it published accusing a plaintiff-politician of adultery was true and thus not defamatory without presenting evidence of the plaintiff's extramarital affairs. And, as the recent opinion of the Ninth CIrcuit in United States v. Reed, 2011 WL 5869494 (9th Cir. 2011), makes clear, character is also an essential element of (disproving) an entrapment defense.

In Reed, Deonte Reed was convicted of conspiracy to interfere with commerce by robbery, conspiracy to possess cocaine with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and aiding and abetting. At trial, Reed claimed that he was entrapped, and, in addressing his appeal, the Ninth Circuit noted that 

When a defendant asserts entrapment as a defense, the government must prove beyond a reasonable doubt that either "'(1) the defendant was predisposed to commit the crime before being contacted by government agents; or (2) the defendant was not induced by the government agents to commit the crime.'"

The court then went on to note that it looks to five factors in the predisposition determination:

(1) the character or reputation of the defendant, including any prior criminal record, (2) the party who made the initial suggestion, (3) whether profit was a motive, (4) evidence of reluctance by the defendant, and (5) the nature of the government's inducement.

In appealing his conviction, Reed claimed that evidence of his other bad acts were inadmissible propensity character evidence, but the Ninth Circuit disagreed, finding that his character was an essential element of his entrapment defense, meaning that the evidence was admissible under Federal Rule of Evidence 405(b).

-CM

Take Me To Another Rule: Supreme Court Of Tennessee Finds Court Of Appeals Applied Wrong Version Of Rule 703

Similar to its federal counterpart, Tennessee Rule of Evidence 703 provides that

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

The third, bolded sentence in Rule 703 was not added until 2009, however, and the appeal that the Supreme Court of Tennessee heard in Holder v. Westgate Resorts Ltd., 2011 WL 6148588 (Tenn. 2011), was from a case that took place before it was added. So, what effect did this have on the court's decision?

In Holder, 

James Holder sustained multiple injuries when he fell down a stairway while attempting to exit a condominium owned and operated by Westgate Resorts Ltd. ("Westgate"). Mr. Holder and his wife, Laura Holder, filed a complaint against Westgate in the Circuit Court for Sevier County alleging that the configuration of the stairs, the corridor at the top of the stairs, and the doorway through which Mr. Holder was attempting to exit the condominium constituted an unsafe condition. Mr. Holder further alleged that Westgate knew or should have known of the unsafe condition and that Westgate's failure to warn Mr. Holder or correct the condition caused his injuries. Mrs. Holder asserted a claim for loss of consortium.

At trial,  Westgate presented the expert testimony of James Horner II, the deputy building official for the City of Gatlinburg, who testified that the corridor complied with the applicable code. Specifically,

Mr. Horner testified extensively concerning the applicable building code and his interpretation of the code. The Holders' expert had testified that the applicable building code required a landing width of forty-four inches. Contrary to the testimony of the Holders' expert, Mr. Horner testified that the building code required a landing width of thirty-six inches. Following this testimony, counsel for Westgate asked Mr. Horner whether he consulted any professional resources in his evaluation of this issue. Mr. Horner replied, "To be perfectly honest with you, I felt that I was correct in my reading of it, but I did call the International Code Council and I spoke with them." The trial court then sustained an objection to Mr. Horner's testimony and ordered that "the last question" be diregarded. 

The jury eventually

returned a verdict finding Westgate ninety percent at fault and Mr. Holder ten percent at fault. The jury assessed damages in the amount of $220,000, which the trial court reduced by ten percent for the comparative fault attributed to Mr. Holder.

Westgate thereafter appealed, claiming that the trial court erred by excluding Mr. Horner's testimony as to the instructions he received from officials of the International Code Council because his testimony was admissible pursuant to Tennessee Rule of Evidence 703. The Court of Appeals of Tennessee agreed with Westgate that this was error but deemed the error to be harmless, prompting Westgate's appeal to the Supreme Court of Tennessee.

The Tennessee Supremes noted that the Court of Appeals of Tennessee applied the post-amendment version of Rule 703, which contains the third, bolded sentence above. According to the court, however, this was erroneous because this version of the rule did not take effect until four months after trial. This meant that

According to the rule in effect at the time of the trial, any admission of the basis of an opinion for the purpose of assisting the jury in understanding the opinion was subject to the provisions of Tennessee Rule of Evidence 403.

This might actually have made it likelier that the testimony should have been admitted because Rule 403 allows for the admission of evidence unless its probative value is substantially outweighed by the danger of unfair prejudice while the third sentence of post-amendment Rule 703 only allows for the admission of otherwise inadmissible evidence if its probative value substantially outweighs its prejudicial effect.

In the end, though, none of this mattered for the Supreme Court of Tennessee, which found that under either rule, otherwise inadmissible evidence underlying an expert's opinion can only be admitted to assist the jury in evaluation the expert's opinion, not to prove the truth of the matter asserted in the underlying evidence. And, according to the court, this made the underlying evidence inadmissible:

 

Turning to the facts of this case, the trial court prevented Mr. Horner from continuing his testimony concerning his call to the International Code Council. The offer of proof states that Mr. Horner would have testified that he received instruction from the International Code Council and that he conformed his evaluation to the instructions he received. Although this proffer does not directly state the substance of the instructions from the International Code Council, the testimony indirectly does so by confirming the method used by Mr. Horner. The trial court determined that the evidence was offered for the truth of the information provided to Mr. Horner and was therefore hearsay. As such, its admission was not to assist the jury in understanding Mr. Horner's opinion but to insert the opinion of another expert.

Experts routinely consult other experts when forming their opinions. Rule 703, however, does not permit a testifying expert to act as the "mouthpiece" of a non-testifying expert by simply parroting the non-testifying expert's opinion....The opinion to which an expert testifies must be his own.

 

-CM

Law & Crit, Take 7: "12 Angry Men" & The Juror Who Was Dismissed For Acting Like Henry Fonda

Consider two scenes:

Scene One

Juror # 8: I just want to talk.

Juror # 7: Well, what's there to talk about? Eleven men in here think he's guilty. No one had to think twice about it except you.

Juror # 10: I want to ask you something: do you believe his story?

Juror # 8: I don't know whether I believe it or not—maybe I don't.

Juror # 7: So how come you vote not guilty?

Juror # 8: Well, there were eleven votes for guilty. It's not easy to raise my hand and send a boy off to die without talking about it first....We're talking about somebody's life here. We can't decide in five minutes. Supposin' we're wrong.

Scene Two

Juror # 6: I said...this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt....

Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it....I would say that two-thirds of the jurors have tried to persuade—have actively tried to persuade...him that his current view is incorrect....

Juror # 4: Well, I guess he believes from the evidence that he's seen that there hasn't been sufficient proof....

Juror # 5: I think the question may have been raised: "Do you have a political agenda?" I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said.

Juror # 9: Well, he said this is a serious thing, and I don't really feel that there is enough cause for—or something to that effect....What he said was, "I wouldn't want to take anyone's freedom away, unless," you know, "I was sure that certain things took place."....

This language is taken from Judge Reinhardt in the Ninth Circuit's recent opinion in Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011). As Judge Reinhardt went on to note,

The first passage above is dialogue from the classic Academy Award-winning 1957 film, 12 Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner's murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others.

So, what happened to the holdout juror, and how does this relate to Alyssa Rosenberg's latest post in her Pop Culture and the Death Penalty Project, which deals with what is (in my opinion) Sidney Lumet's masterpiece and the finest slice of celluloid ever concerning the American legal system?

Well, the trial court dismissed that juror on the ground that he was "biased" against the prosecution. With an alternate juror in place, the jury returned a verdict convicting the defendant of first-degree murder, and the defendant was sentenced not to death but to something like it: life imprisonment without the possibility of parole.

This takes me to Rosenberg's post. In the post, Rosenberg analyzes the following exchange between angel (Henry Fonda's Juror 8) and devil (Lee J. Cobb's Juror 3):

"Are you his executioner?" Juror 8 asks the man who is most determined to convict no matter the evidence. "I’m one of them," Juror 3 says, and when Juror 8 asks if he wants to pull the switch on the electric chair himself, insists, "For this kid, you bet I would." Juror 8′s contempt is withering: "I feel sorry for you. What it must feel like to want to pull the switch. Ever since you walked into this room you’ve been acting like a self-appointed public avenger. You want this boy to die because you personally want it, not because of the facts. You’re a sadist." I worry that a speech like this today would come across as the rankest liberal condescension. But it’s a critical point to make, that bloodlust isn’t admirable. Even if a dispassionate examination of the facts reveals someone to be guilty, there’s nothing attractive about wanting to kill them.

Cavazos gives us a window into the question of how such a speech would come across today, if a juror even had the temerity to make it. See, e.g., Henri v. Curto, 891 N.E.2d 135, 142 (Ind.App.2008) ("However, the statement by the bailiff conveys that jurors in the minority would face the daunting task of swaying all the other jurors if they are to stick to their convictions, a task surmountable in less than two hours on the silver screen if you are Henry Fonda, but a task that could be overwhelming in real life for the average juror.").

And that window shows us that, at least under the facts of Cavazos, that juror would be accused of a "political agenda" and found unfit to serve as a juror. Here's the short of Judge Reinhardt's opinion granting the defendant's petition for writ of habeas corpus:

Twelve Angry Men made for great drama because it violated the sanctity of the jury's secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction. We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed. Under the precedent that existed when petitioner's conviction became final (and exists today as well), the trial court's actions violated the petitioner's Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment. We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ.

For the long of it, you can check out the court's complete opinion, but here are the basics: When jurors expressed concerns about a holdout juror, the trial judge interrogated the jury foreman (ironically, Juror 8), who

testified that Juror No. 6 had expressed his view that first degree murder was a severe charge which affected the "way he interprets the evidence and the standard he uses for doubt." Juror No. 6, according to the foreman, had made a "fairly clear statement...that connects the severity of the charge with—explicitly of first degree murder with his need for a higher standard." The foreman conceded that Juror No. 6 had not explicitly expressed an unwillingness to follow the law or the jury instructions on the standard of proof. He also agreed that the juror had attempted to explain "the basis for his reasonable doubt" to the other jurors many times and had actively engaged in "intellectual conversation with them, listening to their questions, trying to answer them."

In other words, Juror 6 was the Henry Fonda of the jury. He did what he was supposed to do as a juror. He communicated the gravity of the charge against the defendant to other jurors and tried to get them to take their job seriously...and he was rewarded by being kicked off the jury. The trial judge was "inclined to rule that the juror has engaged in misconduct. He's applying a higher burden of proof than the law requires...." Thus he was dismissed, according to the judge,

"not because he's not deliberating and not because he's not following the law." Instead, "he is dismissed without any question in my mind as a biased juror," because "his mind is bent...against the prosecution," as evidenced by his statements concerning the government's burden of proof....

Of course, this decision was ridiculous, but it was affirmed by every other state court in California that handled the defendant's appeal. And it was upheld by the United States District Court for the Central District of California, which denied his petition for writ of habeas corpus. It wasn't until the case reached the Ninth Circuit that the defendant was finally given relief.

So, is Cavazos an aberration, or is it indicative of how a juror such as Henry Fonda's character would be treated today? Unfortunately, as several cases I've profiled on this blog make clear, the answer seems to be the latter. We had the case about the juror being called "stupid" and "close-minded," before the foreperson blocked the door to prevent her from reporting the deadlock to the judge (with the holdout juror eventually being swayed, the defendant being convicted, and the conviction later being upheld on appeal). We had the case of a jurors cursing, swearing, and throwing papers at a holdout (with the juror again eventually being swayed and the jury's verdict again being upheld on appeal). And my research has uncovered several cases in a similar vein that I simply haven't shared (yet) on this blog. 

12 Angry Men is often held out as the Platonic ideal of what jury deliberations should look like. So, what do cases like Cavazos tell us about how far we are from that ideal?

-CM

Plea(se) Plea(se) Me: Court Of Appeals Of Texas Finds Rule 410 Violation Not Plain Error

Like its federal counterpart, Texas Rule of Evidence 410(4) states that:

Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:...

any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.

So, let's say that the prosecutor violates Rule 410(4), but the defense does not object. If the defendant is convicted and appeals, should the court reverse for plain error? According to the recent opinion of the Court of Appeals of Texas, Fort Worth, in Parker v. State, 2011 WL 5984539 (Tex.App.-Fort Worth 2011), the answer is "no."

In Parker, Dominque Parker was convicted of possessing four or more but less than four hundred grams of methylenedioxy methamphetamine (ecstasy). Previously, at trial, and without an objection from Parker, the prosecutor stated,

Your Honor, the State's offer prior to the open plea had been 10 years TDC....We based on that his—the escalating nature of his criminal history. He's always been able to receive a break from the State one way or another over as many cases he's picked up. He's continued to demonstrate criminal behavior, now moving into actual narcotics transactions. And, although the State waived the intent to deliver language in good faith as part of an attempt to get an open plea, his own admissions to the PSI officer indicate that I probably should have not done that, since he clearly had the intent to sell that dope in exchange for money, but that being said, Your Honor, the State's last offer was 10 years TDC. I defer the Court for disposition in this case.

After he was convicted, Parker appealed, claiming that this statement violated Rule 410(4), claiming that the Rule was a "systemtic requirement," meaning that its violation necessitated a new trial even in the absence of a timely objection.

In response, the Court of Appeals of Texas, Fort Worth, acknowledged that the requirement of a timely objection

"does not apply to rights which are waivable only or to absolute systemic requirements, the violation of which may still be raised for the first time on appeal."... Systemic requirements, also known as absolute requirements or prohibitions, are laws that a trial court has a duty to follow even if the parties wish otherwise....Systemic requirements include jurisdiction of the person or subject matter, a constitutional requirement that a district court conduct its proceedings at the county seat, and a constitutional prohibition against ex post facto laws...."Waivable only" rights include the right to the assistance of counsel and the right to trial by jury.

The court then found, however, that

Appellant does not direct us to any authority, and we find none, characterizing the State's discussion of plea negotiations or of the defendant's criminal history during closing argument as systemic, waivable-only, or otherwise "fundamental" or "plain" error....

Moreover, in Whitaker v. State, the court of criminal appeals required preservation of a contention that witnesses improperly discussed a plea negotiation during the guilt and punishment phases of trial; the court noted, "[T]he record clearly reflects that appellant made no objection to the State's references to the...plea negotiations. Appellant, therefore, procedurally defaulted any error in these references." 

-CM

Going Unnoticed: Court Of Appeals Of Indiana Affirms Trial Court's Rape Shield Ruling

Indiana Rule of Evidence 412(a)(3), an exception to Iowa's rape shield rule, states that evidence of an alleged victim's sexual history can be admitted if it is "evidence that the victim's pregnancy at the time of trial was not caused by the defendant." Meanwhile, Indiana Rule of Evidence 412(b)(1) states that

If a party proposes to offer evidence under this rule, the following procedure must be followed:

A written motion must be filed at least ten days before trial describing the evidence. For good cause, a party may file such motion less than ten days before trial.

So, let's say that a defendant charged with child molesting and related crimes believes that another man caused the alleged victim's pregnancy but does not file a written motion at least ten days before trial because the "other man" was uncooperative with his deposition requests. Does this constitute "good cause," such that evidence of the sexual acts between the "other man" and the alleged victim could be presented at trial? According to the recent opinion of the Court of Appeals of Indiana in Jeffers v. State, 2011 WL 6088615 (Ind.App. 2011), the answer is "no."

In Jeffers, the facts were as stated above, with Nathaniel Jeffers being charged with child molesting and related crimes based upon acts allegedly committed against eight year-old A.P., the daughter of his girlfriend. At trial, the prosecution presented evidence that A.P. became pregnant (and aborted her pregnancy) and contracted chlamydia as a result of the sexual acts committed against her by Jeffers. In response, Jeffers sought to present evidence that A.P. was molested by Terry Essex, the brother of A.P.'s mother, who could have been the cause of the pregnancy/chlamydia.

The trial court precluded Jeffers from presenting this evidence, and, after he was convicted, he appealed, claiming, inter alia, that this ruling was erroneous. In addressing this argument, the Court of Appeals of Indina noted that Jeffers failed to comply with the notice requirement of Indiana Rule of Evidence 412(b)(1). Jeffers countered that that Essex had been uncooperative with his deposition requests, meaning that the trial court should have waived the notice requirement based upon good cause. The court disagreed, concluding that

Allegations had been made long before trial that Essex had also molested A.P. Prior to trial, the State represented to the trial court that the allegations were apparently unfounded as no charges would be filed against Essex. Additionally, a witness may assert a claim of Fifth Amendment privilege at a deposition....Consequently, there is no reversible error here, as Jeffers failed to file a pre-trial motion, and did not establish good cause for a later filing of such motion.

-CM

However Much: Court Of Appeals Of Utah Reverses Conviction Based On Improper Exclusion Of Alibi Testimony

Utah Code Annotated Section 77-14-2 states

(1) A defendant, whether or not written demand has been made, who intends to offer evidence of an alibi shall, not less than 10 days before trial or at such other time as the court may allow, file and serve on the prosecuting attorney a notice, in writing, of his intention to claim alibi. The notice shall contain specific information as to the place where the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish alibi. The prosecuting attorney, not more than five days after receipt of the list provided herein or at such other time as the court may direct, shall file and serve the defendant with the addresses, as particularly as are known to him, of the witnesses the state proposes to offer to contradict or impeach the defendant's alibi evidence.

(2) The defendant and prosecuting attorney shall be under a continuing duty to disclose the names and addresses of additional witnesses which come to the attention of either party after filing their alibi witness lists.

(3) If a defendant or prosecuting attorney fails to comply with the requirements of this section, the court may exclude evidence offered to establish or rebut alibi. However, the defendant may always testify on his own behalf concerning alibi.

(4) The court may, for good cause shown, waive the requirements of this section. 

It seems clear to me that under this Section, (1) a defendant must provide pre-trial notice of any alibi evidence; (2) the prosecution must then respond with pre-trial notice of any witnesses who will contradict this alibi evidence; (3) both sides have a continuing duty to disclose after these initial disclosures; (4) failure to comply with (1)-(3) can lead to the exclusion of alibi-related evidence; (5) the court can waive (1)-(3) for good cause shown; and (6) a defendant can always testify on his own behalf concerning alibi even if he fails to comply with (1) and/or (3). According to the recent opinion of the Court of Appeals of Utah in State v. Gallup, 2011 WL 6091688 (Utah App. 2011), however, part (6) of the above was not clear to a Utah trial court, necessitating a reversal of a defendant's conviction.

In Gallup, Jeffrey Gallup was convicted of failing to respond to an officer's signal to stop, speeding, and driving on a suspended or revoked operator license. The person who sped and failed to respond to the officer's signal to stop was driving a BMW registered in Gallup's name, but Gallup claimed that he was not the person in the car and sought to testify concerning an alibi. 

It was clear that Galluo could not present extrinsic evidence concerning this alleged alibi because he did not comply with the notice requirement(s) of Utah Code Annotated Section 77-14-2(1), but Gallup claimed that he could still testify concerning his alibi under Utah Code Annotated Section 77-14-2(3). The trial court disagreed, finding that the clause in Section 77-14-2(3) allowing the defendant to testify was still "subject to the notice requirement established in 77-14-2(1)."

After Gallup was convicted, he appealed, claiming that he should have been able to provide alibi testimony under Section 77-14-2(3). The Court of Appeals of Utah agreed, concluding that

The plain language of Section 77-14-2 protects a defendant's ability to "testify on his own behalf concerning alibi,"...regardless of whether he complied with the statute's notice requirement. The statute's use of the word "however" is significant. "However" is a transition word that "indicates a limitation on the preceding rule,"...here, that the rule does not apply to a defendant's right to testify on his own behalf....The use of the term "however" indicates that the defendant's right to testify on his own behalf concerning alibi is excepted from the preceding notice and penalty provisions in the statute. Thus, failure to comply with section 77-14-2's notice requirement grants the trial court discretion to exclude only alibi evidence extrinsic to the defendant's own testimony regarding alibi....A defendant who did not give the prosecution proper notice of alibi evidence may still testify as to that alibi but cannot support his testimony with that of other witnesses or evidence. The prosecution is then free to argue any reasonable inferences the lack of supporting alibi evidence may warrant.

And, because of this and other errors, the Court of Appeals of Utah reversed Gallup's conviction.

-CM

The Vermont Frat Questionnaire & The Foreseeability Of Stranger Rape Based Upon Increased Acquaintance Rape At A College

If I could rape someone, who would it be?

This now infamous question, asked at the end of a fraternity questionnaire at the University of Vermont, led to the fraternity being suspended. But let's say that the university took no action in response to this question. And let's say that the university also took no or only minimal action in response to a rise in the number of (acquaintance) rapes on its campus over a period of two years. Finally, let's say that a victim was raped at college by a stranger, who turned out to be one of the members of this fraternity, and sued the school for negligence. If the university moved for summary judgment dismissing the complaint, claiming that the rape was not foreseeable, should the court grant the motion? According to the opinion of the United States District Court for the Eastern District of Wisconsin in Lees v. Carthage College, 2011 WL 3844115 (E.D.Wis. 2011), the apparent answer is, "yes, the court should grant summary judgment" even in the face of expert testimony to the contrary. In fact, according to the court, such expert testimony should be deemed inadmissible.

In Lees, the victim was raped at Carthage College in 2008. The victim lived at an all-female residence hall, Tarble Hall, and

[d]uring an orientation at Tarble Hall, the residents stood up, introduced themselves to each other, talked about their hobbies and interests, and then went down to the lake to pick out a rock to use as a "door stop" for their dorm doors. The resident assistants (RAs) encouraged the Tarble residents to use a rock to prop their doors open when they were in their rooms so they could mingle and get to know other residents.

Soon thereafter, while the victim was watching television in her room with the door open, two men entered at around 12:30 A.M.; one held the victim down while the other raped her. At Carthage, anyone with a valid student ID can enter any residence hall between the hours of 8:00 A.M. to 2:00 A.M.

Pursuant to federal law, Carthage reported the following number of forcible sexual offenses for each year: 2008–4; 2007–5; 2006–1; 2005–1; 2004–0; 2003–1. All of these incidents were acquaintance assaults (also known as date rape), meaning that the victim was in some way an acquaintance of the perpetrator. None of these incidents involved the victim being assaulted by a stranger.

Based upon the above facts, the victim sued Carthage College for negligence, meaning that she needed to establish, inter alia, that the college breached a duty of care towards her because her rape was foreseeable and the college took insufficient actions to prevent it. The college responded by filing for summary judgment, and the victim responded to the college's motion by proffering the expert testimony of Dr. Daniel Kennedy, Professor Emeritus at the University of Detroit, where he taught criminology and security administration for over thirty years.

Dr. Kennedy wr[ote] that "an assault on a female dorm resident was generally foreseeable given prior history, perimeter failures, and visitation and staffing policies at Tarble Hall. Had this foreseeability been recognized and the security deficiencies described above been rectified, it is more likely than not the sexual assault against Katherine Lees would not have taken place."...Dr. Kennedy later explained that "unreasonable access was granted through the visitor policy, the 'open door policy,' and the lack of an electronic lock/door prop alarm on the basement door. Thus, it was clearly foreseeable that with such access, stranger-on-stranger rape could and eventually would occur."

The Eastern District of Wisconsin disagreed, initially finding that

Carthage was only required to take "precautions commensurate with the danger" to its students from criminals....Indeed, the applicable standard of care is directly informed by foreseeability because the "amount of care to take is a function of the danger that care would avert."...Dr. Kennedy's opinion that the security at Tarble Hall should have been improved is based on his corresponding conclusion that the attack on Ms. Lees was foreseeable. This is an unreliable conclusion, which means that Dr. Kennedy's testimony on the standard of care is inadmissible.

So, why did the court find that Dr. Kennedy's testimony was unreliable? According to the court,

Dr. Kennedy maintain[ed] that [the victim's] assault was foreseeable in light of the increase in sexual assaults at Carthage College in 2007 and 2008. However, it is undisputed that these were instances of acquaintance rape, not stranger rape. Acquaintance rape involves two people who know each other and/or are voluntarily in each other's presence. Therefore, acquaintance rape cannot be prevented through increased physical security measures. Instead, acquaintance rape is addressed by educating male and female students about how to avoid dangerous situations....A reasonable person exercising ordinary care would not implement increased security measures in response to a problem that cannot be prevented through increased security.

Furthermore, according to the court,

Dr. Kennedy states[d] generally that rape by a stranger was foreseeable because there are a sufficient supply of sexual offenders on a college campus. Dr. Kennedy concede[d] that the prevailing problem on college campuses is acquaintance rape, not stranger rape....Dr. Kennedy attempt[ed] to link the prevalence of acquaintance rape with the foreseeability of stranger rape by citing studies which conclude that 30–35% of male subjects would commit a rape if they "thought they could get away with it."...Yet none of the studies cited by Dr. Kennedy focus on the distinction between assaulting a stranger and assaulting an acquaintance. For instance, according to one article, "[c]ultural expectations that partygoers drink heavily and trust party-mates become problematic when combined with expectations that women be nice and defer to men. Fulfilling the role of the partier produces vulnerability on the part of women, which some men exploit to extract non-consensual sex." Elizabeth A. Armstrong, Sexual Assault on Campus: A Multilevel Integrative Approach to Party Rape, Social Problems, Vol. 53, Issue 4, 2006, at 484. Dr. Kennedy does not explain how it is foreseeable that a male college student who exploits the use of alcohol to assault someone he met at a party would also exploit lax security measures to assault a complete stranger in her dorm room. It simply does not follow that stranger rape is foreseeable based upon the general prevalence of acquaintance rape. "[N]othing in either Daubert or the FederalRules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered."

My response: Really? First, let's look at the court's definition of acquaintance rape. According to the court, "[a]cquaintance rape involves two people who know each other and/or are voluntarily in each other's presence." In other words, acquaintance rape involves (1) two people who know each other and are voluntarily in each other's presence; (2) two people who don't know each other and are voluntarily in each other's presence; or (3) two people who know each other and are not voluntarily in each other's presence.

Given this third example, I don't see how the court concluded as a matter of law that acquaintance rape cannot be prevented through increased physical security measures." The victim in Lees was a victim of stranger rape, but it is easy to see how she could have been the victim of an acquaintance rape that could have been prevented through increased security measures. The victim in Lees could have known her rapists through classes. Through the school newspaper. Through intramural sports. Through student government. Etc., etc. And, of course, while she knew her rapists, she could not have wanted to engage in sexual relations with them. Indeed, she might not even have wanted to interact with her eventual rapists on the night in question. Maybe they had fought. Maybe she was tired. Maybe she was drunk.

And yet, given the fact that any student with a valid ID could access the victim's all-female residence until 2:00 A.M., and given the fact that the victim was encouraged to leave her door propped open, any student at the school who wanted to rape her had easy access to her. Now sure, increased security measures wouldn't eliminate acquaintance rape, and it wouldn't do much to prevent a certain type of acquaintance rape. But such measures certainly would be likely to decrease a certain type of acquaintance rape, namely the type of acquaintance rape when the victim is not voluntarily in the presence of the rapist. The way I say it, even if the particular way in which the victim in Lees was raped wa not foreseeable, her rape was certainly in the foreseeable "zone of risk" created by the increase in acquaintance rapes on campus, meaning that there was at least a triable issue of fact as to whether Carthage College was negligent.

Second, what about the court's conclusion that "[i]t simply does not follow that stranger rape is foreseeable based upon the general prevalence of acquaintance rape," rendering Dr. Kennedy's testimony too unreliable to be admissible under Federal Rule of Evidence 702? Well, another Federal Rule of Evidence is Federal Rule of Evidence 413. Enacted as  part of the Violent Crime Control and Law Enforcement Act of 1994, Federal Rule of Evidence 413 provides that

In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

One of the main reasons for the adoption of this Rule was social science evidence of high recidivism rates for sex offenders, and courts have gone whole hog with it (rightfully or wrongfully), finding that evidence of past sexual crimes are admissible against defendants charged with sexual crimes, even if the crimes are factually quite different. See, e.g., State v. Wright, 2011 WL 6091243 (La. 2011). The general position of the courts seems to be that evidence that a defendant committed a sex crime makes it more likely that he committed another sex crime, even if the latter crime is quite different from the prior sex crime, making the evidence admissible under Rule 413, with jurors then left with the task of how much weight to give to the evidence.

This being the case, how was Dr. Kennedy's testimony deemed inadmissible? He used the exact reasoning used by Congress in enacting Rule 413, and federal courts have bent over backwards to accommodate Congressional intent and apply Rule 413 in a wide variety of cases.

-CM

 

Making Weight: Court Of Appeals Of Indiana Doesn't Allow Jury Impeachment Regarding Jury Experiments On Weight Bench

A husband arrives home and allegedly finds his wife dead, her lifeless body lying on a weightlifting bench with the weight bar pinned across her throat. The State disagreed, believing that the wife's death was a case of foul play. It charges the husband with murder. The case proceeds to trial, where the prosecution introduces the weight machine into evidence as an exhibit. During deliberations, the jurors use the weight machine to perform experiments. Are the results of these experiments extraneous prejudicial information, allowing for juror impeachment? According to the recent opinion of the Court of Appeals of Indiana in Pattison v. State, 2011 WL 6130778 (Ind.App. 2011), the answer is "no." I disagree.

In Pattison, the facts were as stated above. At trial,

the State assembled the machine in the courtroom. The machine was entered into evidence as State's Exhibit 17 without objection. During the testimony of Laurel Jensen, who worked for the company that manufactured the machine, the jury was permitted to leave the jury box and gather around the machine. Jensen explained how it worked and pointed out its parts and features. Later, Detective Jason Page testified about experiments he had performed on the machine during his investigation. During his testimony, Page lay down on the machine and demonstrated for the jury how it functioned. Among other features, he demonstrated how a user could lock the weight bar into place on the guide bars to prevent it from falling on the user. Next, during the cross-examination of Dr. Greg Davis, the prosecutor had a detective lie on the bench, and he straddled the detective while questioning Dr. Davis. The prosecutor, while grabbing the detective's wrists, asked Dr. Davis if a person could keep another person who was using the machine from locking the weight bar into place under those circumstances. The prosecutor also asked Dr. Davis to estimate how quickly a person's breathing would be impeded if the weight bar were laying on his or her neck and another person sat on his or her abdomen.

After the defendant was convicted, he filed a motion for a mistral and asked the court to hold a hearing and require jurors to appear for questioning about their experiments with the machine. The defense learned about these experiments through a newspaper newspaper article in which one of the jurors gave an interview. According to the interview, 

the jurors returned to the courtroom during their deliberations to experiment with the machine. A female juror lay on the weight bench and tried to get out from under the weight bar. Next, the same juror tried to get out from under the weights while another juror sat on her and held her wrists.

The defendant thereafter appealed, claiming that evidence of these experiments was admissible under Indiana Rule of Evidence 606(b), which provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

According to the defendant, the results of the jurors' experiments were extraneous prejudicial information. The Court of Appeals of Indiana disagreed, first noting that

An experiment by the jury is improper where it amounts to additional evidence supplementary to that introduced during the trial....In Bradford, the defendant was charged with arson and murder. During the presentation of the evidence, a detective testified as to experiments he had conducted to establish whether the defendant could have committed the offenses in the time allowed. Next, the jury was taken to the crime scene and permitted to view it. Later, during deliberations, the jury requested and received permission to return to the crime scene, where they performed experiments as to how fast a person could pour gasoline out of a can and crawl through the house. Our Supreme Court determined that the jury's actions were in keeping with the evidence presented and were not improper. 

The court then found that

that the jury's examination of the machine during deliberation was not extraneous, additional evidence, but rather was a permissible consideration of the evidence presented at trial. Therefore, the trial court did not abuse its discretion by denying Pattison's request for an evidentiary hearing to question jurors. See Hape, 903 N.E.2d at 988 (determining that the trial court properly denied the defendant's request to question jurors about text messages the jurors found on a cell phone during deliberations because the cell phone was properly admitted into evidence, and as a result the messages were not extraneous information).

I've already voiced my displeasure with the Hape case in a prior post. In this post, I ask "what was the court thinking?" with its reference to Bradford. In Bradford, the jury returned to the crime scene to perform experiments after receiving permission from the court. In other words, the experiments were court-sponsored, and the judge could explain to jurors how the conditions at the crime scene could be very different from the conditions on the day when the crime was committed. Conversely, if the jurors returned to the crime scene without the court's permission to conduct experiments, the results of those experiments indisputably would have constituted extraneous prejudicial information.

Why should the outcome be different in Pattison? Undoubtedly, the juror who lay on the weight bench had different physical characteristics than the victim. And undoubtedly, the juror who held her wrists had different physical characteristics than the defendant. The weight bench could have been in a drastically different condition than on the day when the victim. Sure, the weight bench was admitted into evidence, but the court did not authorize the jurors' experiments, meaning that the results of those experiments were extraneous information that easily could have been prejudicial to the defense.

-CM 

The Weight Of The Evidence, Take 2: Court Of Criminal Appeals Of Texas Reverses Conviction In Rule 804(b)(1) Case

Last year, I posted an entry about Sanchez v. State, 2010 WL 4336169 (Tex.App.-San Antonio 2010). As I noted at the time,

In Sanchez, Ivan William Sanchez was convicted of three counts of indecency with a child by sexual contact and one count of aggravated sexual assault of a child. Before Sanchez's trial, there was a pretrial hearing during which Angelica Newsome testified about a statement the complainant made to her regarding alleged acts of abuse committed against her by Sanchez. The purpose of this testimony was to determine whether the complainant's statement qualified for admission under Texas Code of Criminal Procedure article 38.072 Section 2(a)(3), which provides an an exception to the rule against hearsay for "outcry testimony" if, among other conditions, the statement describing the alleged offense was "made to the first person, 18 years of age or older, other than the defendant, to whom the child...made a statement about the offense or extraneous crime, wrong, or act." The trial court deemed the statement admissible. At trial, however, Newsome was unavailable, prompting the State to read  into evidence the testimony Newsome gave at the pretrial hearing.

After he was convicted, Sanchez appealed, claiming that the admission of this testimony was improper under Texas Rule of Evidence 804(b)(1) and violated his rights under the Confrontation Clause because his motive to develop the testimony of Newsome at the pretrial hearing was not the same as his motive would have been at trial.

The Court of Appeals of Texas, San Antonio, disagreed, but yesterday the Court of Criminal Appeals of Texas reversed in Sanchez v. State, 2011 WL 6183607 (Tex.Crim.App. 2011). Why?

In rejecting Sanchez's Confrontation Clause argument, the Court of Appeals of Texas, San Antonio, had found that

In Texas, there is no bright-line rule that states pretrial hearings do not provide an adequate opportunity to cross-examine sufficient to satisfy confrontation clause requirements. Rule 804(b)(1) does not require that in order for prior testimony to be admitted as an exception to the hearsay rule the opponent of the evidence have had an identical motive to challenge the testimony at the prior proceeding as he now has at trial....Instead, the rule requires only that he have had a similar motive....Neither the form of the proceeding, the theory of the case, nor the nature of the relief sought need be the same....Only the particular issue about which the testimony was first offered must be substantially similar to the issue offered in the current action....

On appeal, appellant contends he was not given the opportunity at trial to "flesh out" any potential bias Newsome may have had, to question Newsome's ability to adequately recall events, or to expand on Newsome's admission at the pretrial hearing that she had "seizures and certain things [were] kind of foggy." The purpose of a hearing conducted pursuant to article 38.072 is to determine whether the outcry "statement is reliable based on the time, content, and circumstances of the statement."...Appellant contends the purpose of the pretrial hearing is different from cross-examination for purposes of the guilt/innocence stage of trial. Therefore, appellant concludes, he had no motive at the pretrial hearing to question Newsome about her bias, her recall, or her seizures.

One indicia of whether the child's outcry is reliable is whether evidence exists of prior prompting or manipulation by adults....Therefore, at the pretrial hearing, appellant had a basis for exploring whether Newsome held any bias against him that would have caused her to prompt or manipulate the complainant. Also, because the outcry statement must be one that in some discernible manner describes the alleged offense, appellant had a basis for exploring Newsome's ability to recall the time, content, and circumstances of the outcry. In fact, at the pretrial hearing, appellant's counsel conducted an extensive cross-examination of Newsome about the timing of the outcry and the specific words the complainant used in describing the offense, and Newsome's pretrial testimony was read at trial in its entirety, including counsel's cross-examination. We conclude appellant's motive to cross-examine Newsome at the pretrial hearing was similar to his stated motive for cross-examining her at trial. Therefore, appellant was not denied his constitutional right to confront a witness at trial.

At the time, I strongly criticized the court's conclusion, asserting that

In determining whether a statement is admissible under an exception to the rule against hearsay, a trial court merely has to determine whether the proponent of the evidence has established all of the elements of the hearsay exception by a preponderance of the evidence. This isn't a terribly difficult standard to satisfy. As long as a witness is willing to take the stand and testify that all of the elements were satisfied, the court will likely deem the statement admissible, with any questions about the witness' issues with perception, memory, credibility, contradictions, etc. going to the weight of the evidence rather than its admissibility. As an example, in Cagle v. State, 976 S.W.2d 879, 882 (Tex.App.-Tyler 1998), the Court of Appeals of Texas, Tyler, found that an inconsistency between the testimony of the victim and the testimony of her mother regarding an "outcry statement" under Texas Code of Criminal Procedure article 38.072 Section 2(a)(3) went to the weight of the evidence and not the admissibility of the statement.

In other words, it seems clear to me that Sanchez knew that Newsome's testimony would be deemed admissible at the pretrial hearing. And sure, his attorney did engage in a somewhat extensive cross-examination of Newsome, but it seems to me that the purpose of this interrogation was to set things up for an even more extensive interrogation of Newsome at trial, the purpose of which would have been to call into question her credibility before the jury and not simply to call into question whether the elements of a hearsay exception had been established by a preponderance of the evidence.

Yesterday, the Court of Criminal Appeals of Texas agreed with me. And in doing so, the court created a bright-line rule that testimony elicited at an article 38.072 hearing never satisfies the Confrontation Clause. Why? Well, the court noted that such a hearing is concerned only with the reliability of the outcry and has nothing to do with the witness' credibility. Instead, if the court at an article 38.072 hearing determines that the witness' statement is reliable, the statement is deemed admissible, and the credibility of the outcry witness is a matter for the jury at trial; It can't be impeached by the opposing party during the hearing. Accordingly, the court found that

the narrow range of discretion that Article 38.072 allows a trial court means that the credibility of the outcry witness is not a relevant issue at a hearing to determine admissibility of an outcry. A hearing in which the sought-after cross-examination would be necessarily irrelevant does not provide an adequate opportunity for cross-examination such that testimony from the hearing is admissible at a trial on the merits.

Trial courts have great discretion in how they manage their Article 38.072 hearings. However, we do not wish to encourage parties to attempt to elicit irrelevant testimony in order to get impeachment evidence for trial. Our ruling today is meant not only to vindicate defendants' Sixth Amendment rights, but also to ensure that trial courts decide the reliability of an outcry based only on the time, content, and circumstances of the statement, leaving the determination of the outcry witness's credibility to the fact finder at trial.

(Hat tip to Chris Osborn for the link)

-CM

Law & Crit, Take 6: "To Kill A Mockingbird" And Voice-Over Narration

On Monday, Bert Schneider passed away after having produced such classics as "Easy Rider," "Five Easy Pieces," and "The Last Picture Show." He was also the producer on Terrence Malick's pastoral "Days of Heaven," and his passing led Jeffrey Wells at "Hollywood Elsewhere" (where I used to write DVD reviews) to quip,

Bert Schneider, the last producer to semi-successfully micro-manage Terrence Malick and keep him from his own self-indulgent tendencies by somehow persuading him to keep Days of Heaven down to a managable 94 minutes, died Monday at age 78.

I can certainly appreciate where Jeff is coming from. I remember seeing "The New World" (the original cut) at the Regal Union Station 14 with a friend, who looked like she had just escaped from the ninth circle of hell as we exited the theater doors. Personally, I'm a fan of Malick, both his newer films as well as his 1970s twin bill of "Badlands" and "Days of Heaven" And one thing that these earlier films share is that they feature voice-over narration by young female characters (Sissy Spacek's Holly in "Badlands" and Linda Manz's Linda in "Days of Heaven").

Reading Jeff's post got me thinking about the best use of voice-over narration in movies. Certainly, Linda's narration in "Days of Heaven" would be the near the top of the list. As noted by Tim Dirks, in "Days of Heaven,"

The simple love story set on a pastoral landscape becomes a profound allegorical tale of harmony and discontinuity, love and hate, hopes and fears, and good and evil. Its emotional impact is shaped by the unique perspective of the narrator - a typical teenager telling the tale out of her own youthful concerns (having fun, her uncertain future), combining her beliefs about the dual contradictory nature of humanity ("you just got half-devil and half-angel in ya"), and imaginative and fearsome fantasies of religious judgment and divine retribution (the flaming end of the world, and the Devil's presence on Earth).

Also up there would be Morgan Freeman's narration in "The Shawshank Redemption." Of course, unlike Linda in "Days of Heaven," Freeman's Red is a man who has suffered for decades based upon the mistakes he made in his youth, and he is often relaying the wisdom he has gained as tears go by. In one particularly poignant scene, Red is before the parole board and responds to a question about whether he's sorry about what he did with the following:

There's not a day goes by I don't feel regret. Not because I'm in here, or because you think I should. I look back on the way I was then: a young, stupid kid who committed that terrible crime. I want to talk to him. I want to try and talk some sense to him, tell him the way things are. But I can't. That kid's long gone and this old man is all that's left. I got to live with that. Rehabilitated? It's just a bullshit word. So you go on and stamp your form, sonny, and stop wasting my time. Because to tell you the truth, I don't give a shit. 

This leads me to Alyssa Rosenberg's post today in her Pop Culture and Death Penalty Project.

Today's post deals with Robert Mulligan's film version of Harper Lee's timeless novel, "To Kill a Mockingbird." Both works were among my earliest introductions to the American legal system, and, along with Sidney Lumet's "12 Angry Men" (which Rosenberg will discuss next week), played a large role in my decision to become a lawyer.

We read and watched "To Kill a Mockingbird" in my eighth grade English class. My English teacher was obsessed with the role of narration in general and the specific role that choosing Scout Finch as the narrator in Mockingbird had on our perception of events. We discussed her narration a good deal in class, and the teacher even had us each pick different characters in the story so that we (in character) could act out our own narration of how we saw things in front of the class. I chose to be Judge Taylor, who Lee describes in the book as chomping on a cigar and spitting out pieces of it during trial. In an early attempt at method acting, I bought a large Tootsie roll, wrapped it in brown construction paper, and chewed on it and spit it out as I explained to other students how I saw the trial.

But it's not the judge who narrates "To Kill a Mockingbird," and it's not the protaganist Atticus Finch. Instead, it's Finch's daughter Scout, whom many consider a proxy for Lee herself. But it's not the youthful Scout narrating what she sees contemporaneously; instead, it's an adult Scout reflecting on what she saw an unspecified number of years ago. Like Red in "The Shawshank Redemption," she's reelin' in the years.

In her post, Rosenberg notes that

I’d forgotten how young Scout is in the novel and the movie — she’s just six. And the movie is both about her increasing awareness of the world around her and the way the world reaches out for her, the fact that the innocence of childhood is an imagined and impossible-to-maintain state....

In a way, the movie’s an inverse of the conventional narrative about the death penalty: this terrible thing happened, and we must send a message so strong and deterrent that it will never happen again. Scout sees the ways the legal process can go wrong, she sees the man who’s a supposed threat to her community murdered, and she’s still made a victim. The world is big, and unpredictable. To think that we can produce rationalism with a decision undergirded by emotion doesn’t make sense.

Rosenberg's post again got me thinking about the collateral consequences of the death penalty. Clearly, it directly affects the condemned. Less clearly, it directly affects the executioner, nowadays typically a doctor injecting a fatal cocktail of drugs. But it also affects the defendant's family. It affects the victim's family. It affects the lawyers. It affects the jury.

In an earlier post, I noted that jurors are "death qualified" (i.e., qualified to sit as jurors in death penalty cases) when they are willing to impose the death penalty as a punishment, but I wondered whether anyone is in fact "death qualified" in the sense that they could impose the penalty of death and then live with the consequences of their decision.

Vegetarians, vegans, and animal rights activists often say that meat eaters should have to watch animals being slaughtered if they want to continue to eat meat. My question: What about jurors? Should they have to watch executions before they are tasked with the decision of whether to impose the death penalty? Are they aware that there were 31 "botched" executions from the first lethal injection in 1982 through 2001? Are they aware that there are wide variations in he drugs and dosages used in lethal injections in different states because Fred Leuchter -- the original creator of most execution equipment in this country (who was later conscripted to prove that there were no gas chambers during the Holocaust) -- had no information on the proper dosage of potassium chloride to kill a patient and thus relied on the information that was available for pigs and estimated accordingly? Do they know that in some states such as In Arkansas, executions are left in the hands of unpaid volunteers?

"To Kill a Mockingbird" is such an effective work of literature (and film) because of the juxtaposition of the wide-eyed 6 year-old Scout with her more wisened narrator. At one point, anticipating the O.J. Simpson trial, the adult Scout reflects,

"Never, never, never, on cross-examination ask a witness a question you don't already know the answer to….Do it, and you'll often get an answer you don't want, an answer that might wreck your case."

This is not something that the younger Scout would have known. It is insight based upon years of reflection on her years as the daughter of an attorney. Most jurors are like the wide-eyed Scout. They don't know what the death penalty really is. What happens when they wake up years later and reflect upon the decision they made?

-CM

Conspiracy Theory: Court Of Appeals Of Iowa Finds Statements After Discovery Of Body Qualified As 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.

So, let's say that three men allegedly conspire to kill a victim and then kill the victim. And let's say that the day after the body is discovered, with a police officer in the front yard of one of the co-conspirators, one alleged co-conspirator says to another that he is only one of three people who knew about the body. Does this statement qualify as a co-conspirator admission under Rule 5.801(d)(2)(E)? According to the recent opinion of the Court of Appeals of Iowa in State v. Huser, 2011 WL 6079120 (Iowa App. 2011), the answer is "yes."

In Huser, the facts were as stated above, with Vernon Huser, Louis Woolheater, Lawrence Webb conspiring to kill Lance Morningstar. After they killed Morningstar, they wrapped his body in tarp and dumped it in the woods. Eventually, hunters discovered the body, and the noose began to tighten on the conspiracy.

With police in Woolheater's front yard, the day after discovery of Morningstar's body, Woolheater told Webb that he was one of only three people who knew about the body. Webb took this as a directive to keep quiet about the involvement of Huser and Woolheater in Morningstar's death.

Huser was eventually charged with murder in the first degree for aiding and abetting Woolheater in the killing of Morningstar. At trial, the court allowed testimony concerning Woolheater's statement to Webb after deeming it a co-conspirator admission under Rule 5.801(d)(2)(E).

After, he was convicted, Huser appealed, claiming, inter alia, that Woolheater's statement was neither made during the course of or in furtherance of the conspiracy.The Court of Appeals of Iowa disagreed, first finding that the statement was during the course of the conspiracy because

Every act in furtherance of a conspiracy "is deemed a renewal or continuance of the conspiracy...[t]hus, a conspiracy may continue into the concealment phase."...When Woolheater met with Webb at Woolheater's house, a police car sat in the front yard. Webb interpreted Woolheater's statement that only three of them knew about the body as a threat, and delayed going to the police for that reason....Because Woolheater was trying to conceal the crime, the timeframe of the conspiracy extended beyond the discovery of the body.

Of course, this block quote also partially explains why the court found that Woolheater's statement was in furtherance of the conspiracy, but the court also went on to note that

The circumstances underlying Woolheater's statement confirm it was in furtherance of the conspiracy. With police in Woolheater's front yard, the day after discovery of Morningstar's body, Woolheater told Webb that he was one of only three people who knew about the body. Webb took this as a directive to keep quiet about the involvement of Huser and Woolheater in Morningstar's death. In context, Woolheater's statement about the three friends sharing the dangerous secret was more than idle chatter or mere narration of the conspiracy. Because Woolheater's statement induced Webb not to divulge what he knew about Morningstar's murder, the district court properly allowed the testimony as a coconspirator statement.

-CM

Are You Available: Per Curiam Supreme Court Opinion Addresses Confrontation Clause Unavailability Question

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. Crawford overruled Ohio v. Roberts, which held that held that the admission of a hearsay statement against a criminal defendant violates the Confrontation Clause unless (1) the hearsay declarant is "unavailable," and (2) the statement has adequate indicia of reliability in that it (a) falls within a firmly rooted hearsay exception or (b) bears particularized guarantees of trustworthiness. 

But when exactly is a declarant unavailable for Crawford/Roberts purposes? That was the question addressed by the United States Supreme Court today in Hardy v. Cross.

In Hardy v. Cross, 

Irving Cross was tried for kidnaping and sexually assaulting A.S. at knifepoint. Cross claimed that A.S. had consented to sex in exchange for money and drugs. Despite her avowed fear of taking the stand, A.S. testified as the State's primary witness at Cross' trial in November 1999 and was cross-examined by Cross' attorney. According to the trial judge, A.S.'s testimony was halting. The jury found Cross not guilty of kidnaping but was unable to reach a verdict on the sexual assault charges, and the trial judge declared a mistrial. The State decided to retry Cross on those counts, and the retrial was scheduled for March 29, 2000.

On March 20, 2000, the prosecutor informed the trial judge that A.S. could not be located. A week later, on March 28, the State moved to have A.S. declared unavailable and to introduce her prior testimony at the second trial.

According to the State, while  A.S. said after the first trial that she was willing to testify at the retrial, he later changed his tune and then ran away from home. The State claimed that it took, inter alia, the following measures to track down A.S.:

•Constant personal visits to the home of [A.S.] and her mother, at all hours of the day and night. This is where the victim has lived since the sexual assault occurred.

•Personal visits to the home of [A.S.'s] father. This is where the victim lived when the sexual assault occurred.

•Personal conversations, in English and in Spanish, with the victim's mother, father, and other family members.

•Telephone calls, in English and in Spanish, to the victim's mother, father, and other family members.

•Checks at the Office of the Medical Examiner of Cook County.

•Checks at local hospitals.

•Checks at the Cook County Department of Corrections.

•Check at the victim's school.

•Check with the family of an old boyfriend of the victim.

•Check with the Illinois Secretary of State's Office.

•[Department of] Public [A]id check.

The trial court deemed A.S. "unavailable" and allowed for the admission of his former testimony against Cross over her Confrontation Clause objection, with Cross eventually being convicted of two counts of criminal sexual assault. After Cross unsuccessfully appealed in the Illinois state courts (with the Illinois Court of Appeals characterizing the State's efforts to track down A.S. as "superhuman"), he unsuccessfully filed a filed a petition for a writ of habeas corpus with the United States District Court for the Northern District of Illinois. On appeal, however, the Seventh Circuit reversed, finding that "the Illinois Court of Appeals was unreasonable in holding that the State had made a sufficient effort to secure A.S.'s presence at the retrial."

Today, the United States Supreme Court disagreed with the Seventh Circuit in a per curiam opinion, finding that one circumstance in which a witness is "unavailable" for Confrontation Clause purposes is when the State makes an unsuccessful good-faith effort to obtain his presence at trial. And, in Ohio v. Roberts,

"'The lengths to which the prosecution must go to produce a witness,'" the Court made clear,"'is a question of reasonableness.'"We acknowledged that there were some additional steps that the prosecutor might have taken in an effort to find the witness, but we observed that "[o]ne, in hindsight, may always think of other things."... But "the great improbability that such efforts would have resulted in locating the witness, and would have led to her production at trial, neutralizes any intimation that a concept of reasonableness required their execution."

According to the Court, "[w]hether or not the state court went too far in characterizing the prosecution's efforts as 'superhuman,' the state court identified the correct Sixth Amendment standard and applied it in a reasonable manner." The Court then turned aside the three reasons that the Seventh Circuit gave for finding that the State's efforts to procure A.S.'s attendance were unreasonable:

First

The Seventh Circuit found that the State's efforts were inadequate for three main reasons. First, the Seventh Circuit faulted the State for failing to contact "A.S.'s current boyfriend—whom she was with just moments before the alleged assault—or any of her other friends in the Chicago area."...But the record does not show that any of A.S.'s family members or any other persons interviewed by the State provided any reason to believe that any of these individuals had information about A.S.'s whereabouts.

Second

Second, the Seventh Circuit criticized the State because it did not make inquiries at the cosmetology school where A.S. had once been enrolled, ibid., but the court's own opinion observed that the information about A.S.'s enrollment at the cosmetology school after the mistrial was not "noteworthy" or "particularly helpful."...Since A.S. had not attended the school for some time, Exh. K, at E–42, there is no reason to believe that anyone at the school had better information about A.S.'s location than did the members of her family.

Third

Finally, the Seventh Circuit found that the State's efforts were insufficient because it had neglected to serve her with a subpoena after she expressed fear about testifying at the retrial. A.S., however, had expressed fear about testifying at the first trial but had nevertheless appeared in court and had taken the stand. The State represented that A.S., although fearful, had agreed to testify at the retrial as well....We have never held that the prosecution must have issued a subpoena if it wishes to prove that a witness who goes into hiding is unavailable for Confrontation Clause purposes, and the issuance of a subpoena may do little good if a sexual assault witness is so fearful of an assailant that she is willing to risk his acquittal by failing to testify at trial.

-CM