January 8, 2011
It's Harmless: Court Of Appeals Of Utah Finds Bolstering By Grandmother Harmless In Sexual Assault Appeal
It is well established that the credibility of a witness is a question solely for the jury's determination. This is a large part of the reason why polygraph results are inadmissible. It also explains why a child psychologist cannot take the witness stand and testify that he believes that the alleged victim is being honest when she claims that she was sexually assaulted by the defendant. But what if such improper comment on credibility comes from a lay, rather than an expert witness? As the recent opinion of the Court of Appeals of Utah in State v. King, 2010 WL 5393676 (Utah App. 2010), makes clear, the court is likely to find harmless error.In King, Gordon R. King was convicted of attempted sexual abuse of a child. King's conviction was based at least in part on the testimony of the alleged victim's grandmother, who answered a question in such a way as to indicate that there was nothing to make her think that her granddaughter, in making the allegations against King, was not telling the truth. According to the Court of Appeals of Utah, "[i]n other words, the grandmother was essentially asked if she believed her granddaughter."
The court held that assuming that this was improper bolstering by the grandmother, it was nonetheless harmless. According to the court,
When Utah appellate courts reverse for improper bolstering, they usually do so not only where a case hinges on an alleged victim's credibility and there is no physical evidence,...but also where the bolstering was done by an expert witness....Here, the alleged victim's grandmother was not an expert nor did she testify as such. The grandmother was the first person to report the abuse to a school counselor, and as a close family member who had made such a report, it would come as no real surprise to the jury that she believed her granddaughter. Obviously, had she disbelieved her granddaughter, she presumably would not have made the report. Because her testimony added nothing to the alleged victim's credibility, any incidental bolstering by the grandmother was harmless.
January 7, 2011
Black Box: Supreme Judicial Court Of Massachusetts Allows Jury Impeachment On Racial Bias, Upholds Verdict
An African-American man is convicted of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, of aggravated rape, and of aggravated burglary. After the verdict is entered, defense counsel learns that
at one point during the deliberations, [Juror Y] stood at the easel in the jury room explaining her view of the evidence, which was challenged by other jurors in a heated discussion. In defense of her position, Juror Y blurted out that the victim's injuries were the result of a beating administered by a big black man. Juror Y's words provoked an immediate reaction from [a] black female juror, who asked Juror Y what being black had to do with it and called her a racist. Juror Y denied she was racist, responding that the defendant was a big black man and that her words were an accurate description. The two swore at each other and the black female juror approached the easel while Juror Y returned to her seat. A juror put a leg up to separate them, but the judge found that this gesture was unnecessary as the two remained apart and their disagreement remained verbal, not physical. The confrontation ended when Juror Y said she meant no harm, and the jury foreperson called for a break in the deliberations.
Should the jurors be able to impeach their verdict, and should such impeachment lead to a new trial? According to the recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. McCowen, 2010 WL 4984854 (Mass. 2010), the answer to the first question is "yes," but the answer to the second question is "no."
In McCowen, the facts were as stated above. As I have mentioned previously on this blog, courts have split on the issue of whether allegations of racial bias by jurors can form a proper predicate for jury impeachment. According to the court in McCowen, Massachusetts, which does not have codified rules of evidence, allows for such impeachment:
Where a defendant files an affidavit from a juror (or, as here, from more than one juror) alleging that a juror (or more than one juror) made a statement to another juror that reasonably demonstrates racial or ethnic bias, and the credibility of the affidavit is in issue, the trial judge should conduct a hearing to determine the truth or falsity of the affidavit's allegations, because "the possibility raised by the affidavit that the defendant did not receive a trial by an impartial jury, which was his fundamental right, cannot be ignored."
The Supreme Judicial Court of Massachusetts, however, agreed with the trial court that the statements by Juror Y did not reveal to a sufficient degree that she harbored actual racial bias. Moreover, the Massachusetts Supremes agreed with the trial judge that "the black female juror's appropriate response to the statement served the beneficial purpose of exposing and 'blunting the effect' of the racial stereotype, and of warning the jury of the risk of racial stereotypes infecting their deliberations."
January 6, 2011
Caller ID: Court Of Appeals Of Texas Allows For Telephone Conversation Authentication, But Not Under Rule 901(b)(6)
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(6) Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if:
(A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called; or
(B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
As the above preliminary language and the recent opinion of the Court of Appeals of Texas, Houston, in Mosley v. State, 2010 WL 5395655 (Tex.App.-Hous. [1 Dist.] 2010), make clear, however, telephone conversations can be authenticated even if all of the elements of Rule 901(b)(6) are not satisfied.In Mosley, Shanell Monique Mosley was convicted of abandoning two children. This alleged abandonment occurred while Mosley was in Africa, with Mosley claiming that she thought that her sister Shaqual was going to come from Louisiana to watch her children in Houston while she was in Africa.
At trial, Shaqual testified that she did not remember telling Mosley's friend, Shawn Harrison, that Mosley knew Shaqual was not coming to Houston on December 31. The prosecution thereafter called A. Samuy, a CPS investigator employed by the Department of Family and Protective Services.
Samuy testified that Harrison dialed a number, put the call on speakerphone, and a person answered saying, "This is Shaqual." Mosley then specifically objected as follows, "Objection, Your Honor, unless she [Samuy] can authenticate Shaqual's voice I would object to her testifying to someone she doesn't know." The trial court immediately overruled the objection. Samuy then testified that the person on the phone said the following:
Monique knew I wasn't coming to Houston before she got on the plane because she didn't send me any money. She didn't send the bus money for me and my kids to come. She knew before she got on that plane that I wasn't going to be - I couldn't come to Houston. I don't know why she got on that plane.
While the State did not match all the elements of the illustration in Rule 901(b)(6)(A), Rule 901(b) specifically provides that the illustrations do not limit the general provision in Rule 901(a): "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Although the State did not show that the call “was made to the number assigned at the time by the telephone company to a particular person,” that alone does not foreclose authentication on other grounds.Alternate grounds to authenticate the identity of a telephone caller include self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged, internal patterns and other distinctive characteristics, and disclosure of knowledge and facts known peculiarly to the caller....Here, Samuy testified that the person on the phone identified herself as Shaqual and continued to disclose information that was very specific to circumstances previously described by Shaqual and Mosley.We hold that the trial court did not abuse its discretion in admitting Samuy's testimony because there was sufficient evidence before the trial court to support a finding that person on the telephone was Shaqual.
January 5, 2011
Jury Duty?: Eleventh Circuit Allows For Authentication Via Jury Comparison Under Rule 901(b)(3)
Federal Rule of Evidence 901(b)(3) allows for authentication by "[c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated." But do judges actually allow for such authentication in practice? In Jackson v. Denno, 378 U.S. 368 (1964), the Supreme Court disapproved of a procedure under which questionable confessions were submitted to jurors to determine their voluntariness. If jurors found confessions to be voluntary, they would be admitted, and the jurors could use the confessions as evidence of guilt. If jurors found confessions to be involuntary, they would be excluded, and judges would tell jurors not to use the confessions as evidence of guilt. According to the Court, the problem was that in this latter case, jurors couldn't be trusted to completely ignore the involuntary confessions and could use them to find defendants guilty in close cases (and this same logic eventually led to the creation of the Bruton doctrine).
This being the case, how can courts allow jurors to determine authenticity under Rule 901(b)(3)? If there's an incriminatory writing allegedly written by the defendant, wouldn't submitting the disputed writing to the jury create the same problem raised above? I posed this question a while ago on the Evidence Professor Listserv, and one response was that courts don't actually allow for authentication via jury comparison under Rule 901(b)(3). Instead, in practice, what typically happens is that before a judge submits a disputed writing to jurors, the judge first finds that reasonable jurors could find that the defendant or other party wrote the disputed writing by a preponderance of the evidence -- establishing authenticity -- and the jurors then decide what weight to give to the evidence. And indeed, most cases appear to have reached this exact conclusion. That was not the case, though, with the recent opinion of the Eleventh Circuit in United States v. Ramentol, 2010 WL 5373885 (11th Cir. 2010).
In Ramentol, Aurora Ramentol, Jacqueline Perez-Castillo, Lizabeth Perez, and Erick Clavijo appealed their convictions on one count each of wire fraud, resulting from their participation in a mortgage fraud scheme. To prove that the appellants committed these crimes, the prosecution needed to prove that each of the appellants signed closing documents submitted into evidence. To establish that the appellants signed these documents, the prosecution merely submitted known writings by each of the appellants along with the closing documents for the jurors to compare under Federal Rule of Evidence 901(b)(3).
After the appellants were convicted, they appealed, claiming, inter alia, that this method of authentication was improper. The Eleventh Circuit disagreed, finding that
Federal Rule of Evidence 901(b)(3) provides that a document may be authenticated through comparison by the trier of fact with specimens which themselves have been authenticated. This Court has previously held, consistent with that rule, that a jury is entitled to make a comparison between a known, genuine signature of a defendant, and a signature on a challenged document purporting to be that of the defendant, to decide whether the defendant signed the document.
As support for this conclusion, the court cited to, inter alia, United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969), which held that
It was undisputed that the genuine signature of Cashio appeared on other documents that were in evidence. Without more, the jury was entitled to make a comparison of the handwriting of Cashio known to be genuine with the signature appearing on the returns and decide whether Cashio had signed the returns.
January 4, 2011
Semper Paratus?: Eleventh Circuit Finds Redacted Coast Guard Situation Report Admissible Despite Rule 803(8)(B)
Federal Rule of Evidence 803(8)(B) provides an exception to the rule against hearsay for
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel
In other words, police reports and similar reports are inadmissible against defendants in criminal cases and not covered by Rule 803(8)(B). That said, it is well established that documents recording routine, objective observations, made as part of the everyday function of the preparing official or agency are precisely the type of reliable record envisioned by the drafters of Rule 803(8). This is why, for example, booking sheets are admissible under Rule 803(8)(B) despite its limiting language.
But what if the prosecution wants to introduce a report that would otherwise be inadmissible under Federal Rule of Evidence 803(8)(B) by redacting the report so that it is akin to a booking sheet or similar document? Would that redacted report be admissible under Rule 803(8)(B)? According to the recent opinion of the Eleventh Circuit in United States v. Reyes, 2010 WL 5297202 (11th Cir. 2010), the answer is "yes." I disagree.
In Reyes, Carlos Reyes was convicted by a jury of 29 counts of knowingly encouraging and inducing 29 aliens to enter the United States and one count of conspiring to encourage and induce aliens to enter the United States. At trial, the prosecution presented into evidence a Coast Guard situation report prepared from interviews taken of the Cuban nationals who were interdicted on the high seas.
After he was convicted, Reyes appealed, claiming, inter alia, that this report was admitted in violation of Federal Rule of Evidence 803(8)(B). The Eleventh Circuit disagreed, finding that
The entire situation report...was not introduced into evidence. The government stripped the situation report down to a bare list of the names of the aliens found in the water near the go-fast boat and the identification numbers assigned by the Coast Guard to keep track of those aliens during their detention on the Coast Guard vessel. The situation report in that redacted form is akin to information resulting from filling out a booking sheet and assigning a prisoner number to someone detained at a county jail. This Court has reasoned that such "documents recording routine, objective observations, made as part of the everyday function of the preparing official or agency" are precisely the "type of reliable record envisioned by the drafters of Rule 803(8)."...
So, why do I disagree with the Eleventh Circuit? As I have noted before on this blog,
"[t]he public records exception...excludes investigative police reports when offered against the accused in criminal trials" and...
"[T]he reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases."
This being the case, if the Coast Guard situation report were deemed adversarial, the entire report would be tainted by this adversarial nature, and the situation couldn't be cured by redacting portions of the report.
January 3, 2011
Lake Consequence: Supreme Court of Idaho Finds Witness Can't Testify About Factual Findings In Public Report
Idaho Rule of Evidence 803(8)(D) provides an exception to the rule against hearsay for
Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule:
(D) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.
And, as the recent opinion of the Supreme Court of Idaho in Kuhn v. Coldwell Banker Landmark, Inc., 2010 WL 5186683 (Idaho 2010), makes clear, a party cannot get around Rule 803(8)(D) by simply having the person who prepared the report testify himself regarding his factual findings.
Kuhn involved an appeal from a substantial jury verdict and judgment against appellants, arising out of a complicated real estate transaction. Les Lake was commissioned by the Idaho Real Estate Commission to investigate a complaint filed against the appellants and prepared a special investigation report created for the Idaho Real Estate Commission.
It was clear that this report was inadmissible under Idaho Rule of Evidence 803(8)(D), but the appellants claimed at trial that Lake should have been able to testify regarding his factual findings. The trial court, however, excluded this testimony, and, on the appellant's ensuing appeal, the Supreme Court of Idaho later affirmed, finding that
In this case, the [trial] court reasoned that if the special investigation report created for the Idaho Real Estate Commission was not admissible pursuant to 803(8)(D), then testimony by Lake regarding the same would also be inadmissible. Pursuant to our holding in Jeremiah, we find no abuse of discretion in the court's exclusion of Lake's testimony. While appellants argue Jeremiah is distinguishable because the director in Jeremiah did not actually conduct the investigation as Lake did in this case, this distinction ignores the plain holding of Jeremiah. The rule of that case properly focuses on what testimony encompasses the factual findings resulting from the special investigation, and does not focus on the person who is providing the testimony. Therefore, Jeremiah applies here and, consequently, the district court did not abuse its discretion in excluding Lake's testimony.
January 2, 2011
Polly Wants Some Hearsay: Are Repeated Statements By Parrots Hearsay?
A few weeks ago, there was a discussion on the Evidence Professor listserv about a recent article in the ABA Journal:
Parrot’s Chilling Comments Aid Police in Elder Abuse Case
By Martha Neil
Dec 8, 2010, 01:12 pm CST
A talking parrot provided what could be taken as chilling evidence in the case of a 60-year-old South Carolina woman charged with neglecting her 98-year-old mother, who was found on the verge of death suffering from severe bedsores.
"The parrot was mimicking, 'Help me. Help me.' Then he would laugh," St. George Police Lt. Eric Bonnette tells the Charleston Post and Courier. "We think he was mimicking the mother when he said, 'Help me. Help me,' and mimicking the daughter when he laughed."
Anne Copeland died at a hospital Tuesday after being found by authorities in poor condition at her home Monday, the newspaper says. Her daughter, Gloria Park Clark, has been charged with abuse and neglect resulting in the death of a vulnerable adult.
Here are my thoughts:
South Carolina Rule of Evidence 801(c) defines hearsay as
a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Meanwhile, South Carolina Rule of Evidence 801(b) defines a declarant as "a person who makes a statement."
At first blush, then, there would seem to be no problem with the prosecutor bringing the parrot into the courtroom to tell his tale. A parrot is an animal, not a person, so a parrot cannot be a declarant. And because a parrot cannot be a declarant, the parrot's "statements" cannot constitute hearsay. Indeed, one of the people leaving comments on the ABA Journal story cited to one of my posts on the blog in which I cited to an opinion holding that the barks of a dog could not constitute hearsay because a dog is not a declarant.
But, I think that the case is different with a parrot. In essence, a parrot is like a tape recorder. Therefore, the prosecutor bringing the parrot into the courtroom to repeat statements made by the victim and defendant would be similar to the prosecutor bringing a tape recording of statements made by the victim and the defendant. In the latter case, the subject statements would clearly constitute hearsay, and I think that the same holds for the former case.
That said, based upon the brief facts provided in the above article, it seems that the defendant's statements would be admissible as admissions by a party-opponent. Meanwhile, it seems that the victim's statements would be admissible as present sense impressions, excited utterances, and dying declarations.