EvidenceProf Blog

Sidney Lumet, Director Of 12 Angry Men And The Verdict, Passes Away

Sidney Lumet, who directed two of the best legal movies of all time, "12 Angry Men" and "The Verdict," passed away today at the age of 86. Here is the New York Times story. Lumet is probably one of my favorite directors and one of the greatest directors of all time based upon movies like the above two, "Serpico," "Dog Day Afternoon," "Network," and countless others. Probably my favorite moviegoing experience connected to Lumet actually involved a time when I ended up not seeing a Lumet film. My brother, dad, and I went to see "Night Falls on Manhattan" in May 1997 at the Surf & Sand Theater in Virginia Beach but ended up going into the wrong theater. As the lights went down and "Austin Powers: International Man of Mystery" began playing, we were all surprised, and my brother and I wondered whether my dad would actually enjoy the movie. It turned out that my dad, a big James Bond fan ("Thunderball" was my parents' first date, I believe), actually liked it. 

Of course, we later caught up with "Night Falls on Manhattan," and it was one of Lumet's better post-1990 films, along with "Before the Devil Knows You're Dead" and "Find Me Guilty." Below is my DVD review of Find Me Guilty: 

Find Me Guilty

Echoing the sentiments of many, Time Out New York criticized Sidney Lumet's Find Me Guilty for its "lack of any coherent moral perspective." In my mind, this is the film's greatest virtue. Legal dramas often fall into 2 categories: the innocent defendant's struggle against government corruption and the noble prosecutor wading through red herrings to bring the elusive perpetrator to justice. In reality, "guilt" and "innocence" are not like oil and water and few involved in the criminal justice system are above some Machiavellian maneuvering. In other words, unlike several previous Lumet films, Find Me Guilty isn't about the one honest juror (Twelve Angry Men), cop (Serpico) or lawyer (The Verdict). Instead, it's about the ethical ebbs and flows that occurred during the longest criminal trial in U.S. history.

Find Me Guilty partially fictionalizes the 21 month trial of 21 members of the Lucchese crime family on a profligate 76 charges under the Racketeer Influenced and Corrupt Organizations (RICO) Act. More specifically, it focuses on the at-first laughable and then almost laudable attempts of Giacomo "Fat Jack" DiNorscio to serve as his own counsel and defend himself and his family from hard-charging prosecutors and a parade of government informants.

Lumet knows the inside of a courtroom as well as any district attorney (or Dick Wolf), but he's a little too hasty in getting us there as the film's early scenes elliptically zip by, providing us with a skeletal backstory that can barely support the meat of the film: the trial. Until roughly the 50 minute point, that trial plays a bit like My Cousin Vinny 2, as DiNorscio plays court jester, amusing jurors with raunchy anecdotes, but infuriating just about everyone else with his showboating and lack of respect for court decorum. But DiNorscio does have respect and an undying sense of loyalty for his family and he reigns in his buffoonery as the film settles into an authentic-feeling groove that's assisted by dialogue pulled largely from the trial's transcripts.

After Cousin Vinny himself, Joe Pesci, passed on the lead role, Vin Diesel stepped in and, after putting on some weight and donning a wig, he's capably charming. The standout performances, though, are in the supporting cast. Annabella Sciorra is dynamite in her one scene as DiNorscio's ex-wife, Ron Silver is sublime as the exasperated judge, Peter Dinkladge is spot-on as a silky smooth defense attorney, and Linus Roache nails the role of the district attorney who can't understand why jurors are reacting favorably to mobsters who cost them money every day as he simultaneously mounts one of the most costly prosecutions ever.

The 125-minute flick is presented in 1.78:1 anamorphic widescreen with Dolby Digital 5.1 sound nicely supporting Jonathan Tunick's jazzy score. The extras are limited to the film's trailer, TV spots, and "A Conversation with Sidney Lumet" (4:43). Unfortunately, the latter feature is nothing more than a string of truncated sound bites by the master director. 

-CM

Not The First Time: Massachusetts Case Reveals Differences Between First And Fresh Complaint Rules

An article in the Worcester Telegram & Gazette notes that

Last Tuesday, the state Appeals Court threw out a man’s rape conviction because jurors were allowed to hear from a high school guidance counselor in whom the victim confided — some time after she told her mother about it. 

The court ruled that such testimony violates the state’s “first complaint” doctrine, which states that only the first person to whom a victim tells his or her story can testify about the alleged abuse. 

Legally speaking, we presume the Appeals Court got it right. But the underlying doctrine makes no sense to us. 

The “first complaint” doctrine dates to September 2005, when the state’s Supreme Judicial Court announced “a new common law rule of evidence.” 

The rule is intended to prevent additional witnesses from piling on testimony and giving greater credibility to the victim than might be warranted. It gives judges discretion in cases where that first witness is “unavailable, incompetent, or too young to testify meaningfully.” 

But that’s small comfort to victims and their families. It is difficult and painful enough for a victim of sexual assault to report the crime to anyone. It is hardly surprising that the first person a victim turns to is usually a parent. The fact that he or she then summons the courage to tell a counselor, pastor or close friend shouldn’t bar such people from testifying. 

Anyone with firsthand information on a case — hearing the story directly from the victim — should be heard in court. There is no reason to limit such testimony. Hearing witnesses, and weighing their words, lies at the heart of our legal system. It’s what judges, lawyers and jurors are supposed to do. 

In the current case, the first complaint doctrine means that Steven Haggett, convicted in 2009 of rape of a child with force and indecent assault and battery, may soon make bail, even though he could face a second trial on the charges against him. 

Legalism has triumphed over common sense in this case. The SJC’s ill-considered 2005 decision has made Massachusetts less safe than it should be, and frustrated justice. 

A look at that 2005 opinion, however, reveals that the issue is a bit more complicated.

First, of all the current opinion at issue is Commonwealth v. Haggett, 2011 WL 1108213 (Mass.App.Ct. 2011). In Haggett, the alleged victim first told her mother that the defendant sexually assaulted her and then repeated those allegations to her teacher and guidance counselor. The trial court allowed testimony concerning all three allegations, and the Massachusetts Appeals Court found that the admission of these latter two allegations was reversible error because these allegations were inadmissible under Massachusetts' "first complaint" rule.

As noted in the aforementioned article, this rule was created in 2005 in Commonwealth v. King, 834 N.E.2d 1175 (Mass. 2005). In King, the Supreme Judicial Court of Massachusetts discarded the old "fresh complaint" doctrine, which held that if an alleged victim of a rape or sexual assault told someone about the event reasonably promptly after the event, then evidence of the statement  could be admitted, but only to corroborate the alleged victim's in-court testimony and not to prove independently that the sexual assault occurred."

In its place, the court created the "first complaint" rule, which differed from the "fresh complaint" doctrine in two ways:

 

Under the doctrine as we modify it today, ostensible "delay" in disclosing a sexual assault is not a reason for excluding evidence of the initial complaint; the timing of a complaint is simply one factor the jury may consider in weighing the complainant's testimony....Accordingly, we will no longer refer to this evidence as "fresh complaint" evidence, as "freshness" has no bearing on its admission...Rather, consistent with our focus on the evidence pertaining to the facts and circumstances surrounding the complainant's initial report of the alleged crime (discussed infra ), we will henceforth refer to such evidence as "first complaint" evidence.

Second, in the future, we will no longer permit in evidence testimony from multiple complaint witnesses, limiting the testimony to that of one witness-the first person told of the assault. The testimony of multiple complaint witnesses likely serves no additional corroborative purpose, and may unfairly enhance a complainant's credibility as well as prejudice the defendant by repeating for the jury the often horrific details of an alleged crime....Evidence that a complainant repeatedly complained of a sexual assault to several different persons in most instances will likely do no more to refute an inference of fabrication than permitting one first complaint witness to testify. A victim who is not fabricating an assault may tell only one other person of the assault, while a liar may spread the tale widely. Permitting a single first complaint witness to testify will accomplish the primary goal of the doctrine, which is to refute any false inference that silence is evidence of a lack of credibility on the part of rape complainants.

This second change explains why the allegations to the teacher and guidance counselor were inadmissible. But, it is important to note that if King hadn't created the "first complaint" rule, none of of these three allegations. This is because the alleged victim in Hagget did not promptly report the alleged sexual assault to her mother and then waited again before reporting the alleged act to the guidance counselor and teacher.

-CM

I Was Set Up Like A M&*%!$ F*%$!&: 7th Circuit Finds Entrapment Statement Not A Statement Against Interest

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

So, is a statement by an inmate to his girlfriend that he was entrapped by ATF agents a statement against the inmate's interest as envisioned by Rule 804(b)(3)? According to the recent opinion of the Seventh Circuit in United States v. Lewis, 2011 WL 1261146 (7th Cir. 2011), a district court did not abuse its discretion by answering this question in the negative. I might disagree.

In Lewis, Lavoyce Billingsley was convicted of conspiracy to possess cocaine with intent to distribute, carrying and possessing a firearm during and in relation to a drug trafficking offense, and being a felon in possession of a firearm. At his trial, Billingsley sought, under Rule 804(b)(3), to introduce a recorded jailhouse conversation between his alleged co-conspirator, Scott Lewis, and his girlfriend, Rachel Roberts. During this conversation, Lewis explained to Roberts that he wasn't guilty because he'd been entrapped by ATF agents, and that Billingsley was just "giving [him] a ride, basically," and had "no idea what was going on."

The district court deemed this statement inadmissible under Rule 804(b)(3), finding that the statement lacked corroborating circumstances clearly indicating the trustworthiness of the statement. On Billinglsey's ensuing appeal, the government also argued "that, technically, statements about Billingsley not knowing the plan are not inherently against Lewis' penal interest, especially when taken in the larger context of a conversation about entrapment." According to the Seventh Circuit, "although we might have ruled differently, the district judge did not abuse her discretion by denying Billingsley's request to receive in evidence Lewis' statement to his girlfriend,  Ms. Roberts."

Now, the Seventh Circuit did not explain the exact basis for its ruling. Was the court merely finding that the district court did not abuse its discretion in finding that Lewis' statement lacked sufficient corroborating circumstances? If so, I have no problem with the court's ruling. But obviously, the Seventh Circuit thought that the case before it was a close call because it said that it might have ruled differently. And obviously, the court cited to the government's argument about Lewis' statement not being against his penal interest. And, if it relied upon this argument in any way in finding that the district court did not abuse its discretion, I think that the Seventh Circuit made a mistake.

A declarant's claim that he was entrapped is an admission that he committed a criminal act. Now, of course, by making such a statement, the declarant is claiming that he cannot be punished for that act because he was entrapped, but entrapment defenses are very rarely successful. See, e.g., Elizabeth E. Joh, Breaking the Law to Enforce It:  Undercover Police Participation in Crime, 62 Stan. L. Rev. 155, 173 (2009) ("[S]uccessful entrapment defenses are relatively rare..." Therefore, the way I see it, a declarant's statement that he was entrapped has a great tendency to expose the declarant to criminal liability.

-CM

I Saw Your Picture Today: 7th Circuit Find No Problem With Lay Witness ID From Still Photo Taken From Surveillance Tape

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

So, let's say that the prosecution creates a still photograph from a surveillance tape of a bank robbery and shows it to the defendant's sister and ex-girlfriend. Can these two witnesses identify the defendant as the man in the photograph consistent with Rule 701? According to the recent opinion of the Seventh Circuit in United States v. White, 2011 WL 1261143 (7th Cir. 2011), the answer is "yes."

In White, the facts were as stated above, with Tremaine White being the defendant convicted of bank robbery after these two witnesses provided this identification testimony. After he was convicted, White appealed, claiming, inter alia, that the admission of this identification testimony violated Federal Rule of Evidence 701. The Seventh Circuit disagreed, concluding that the witness' identification

testimony met the requirements of Rule 701 and was properly admitted. Both witnesses—one his sister, the other his ex-girlfriend—were very familiar with White, and thus their opinion was "rationally based" on their perceptions. Additionally, their testimony satisfies the second prong of Rule 701 because it helped determine a fact in issue, i.e., the identity of the bank robber.

White also claimed that such identification testimony improperly invaded the province of the jury. The Seventh Circuit again disagreed, this time based upon its prior opinion in United States v. Jackson, 688 F.2d 1121 (7th Cir.1982).

In Jackson, the district court allowed a witness who had met the defendant on only one occasion to offer lay opinion testimony that he was the individual shown in a surveillance video robbing a bank. Among other things, the defendant argued that permitting such lay opinion testimony usurped the jury's function. We rejected that argument, explaining: "The jury was free to believe or disregard [the witness's] testimony; the issue of whether the defendant was the same person as the bank robber was left to the jury for its ultimate determination."

Finally, the court rejected White's argument "that lay opinion evidence on the identity of an individual shown in a surveillance photograph is only permitted if the defendant's appearance had changed since the crime or if the accused had attempted to disguise himself." According to the court, "[w]hile both circumstances would justify the admission of lay opinion testimony,...neither is required."

-CM

Article Of Interest: Lynn McLain's 'I’m Going to Dinner with Frank': Admissibility of Nontestimonial Statements of Intent to Prove the Actions of Someone Other Than the Speaker – and the Role of the Due Process Clause as to Nontestimonial Hearsay

In the (in)famous opinion, Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892), the Supreme Court found that statements by a declarant of future intention were admissible not only to prove that the declarant followed through on his intention but also to prove the future actions of other persons. For instance, in Hillmon, the Court found no problem with the admission of a declarant's letters to his sister and fiancée stating that he intended to leave Wichita, Kansas, for Crooked Creek, Colorado, with the defendant. 

When the Federal Rules of Evidence were being drafted, however, this approach had fallen into a bit of disfavor. As eventually passed, Federal Rule of Evidence 803(3) provided an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

And, the Notes of the Committee on the Judiciary accompanying its passage indicated that

Rule 803(3) was approved in the form submitted by the Court to Congress. However, the Committee intends that the Rule be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295-300 (1892), so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.

You might think, then, that courts uniformly have found that parties cannot introduce statements under Federal Rule of Evidence 803(3) to prove the future acts of a other persons. As I have noted previously on this blog (see, e.g., here and here), however, there is actually a circuit split on the issue. Indeed, as Lynn McLain, a Professor of Law and the Dean Joseph Curtis Faculty Fellow at the University of Baltimore School of Law, notes in her recent article, 'I’m Going to Dinner with Frank': Admissibility of Nontestimonial Statements of Intent to Prove the Actions of Someone Other Than the Speaker – and the Role of the Due Process Clause as to Nontestimonial Hearsay, 32 Cardozo L. Rev. 373 (2010), there is actually a three-way circuit split.

Some courts, such as the 1st, 3rd, 4th, and 10th Circuits, follow the language of the Notes of the Committee on the Judiciary and per se preclude the admission of statements under Federal Rule of Evidence 803(3) to prove the future acts of a other persons. Conversely, the 9th Circuit, some federal district courts, and several state courts "freely admit[],...under the state of mind hearsay exception, statements of the declarant's intent, such as 'I'm going to dinner with Frank tonight,' to prove the nondeclarant's (here, Frank's) subsequent conduct." Finally,

State courts in New York and Ohio and the United States Court of Appeals for the Second Circuit, have explicitly stated that they will not approve the admission of statements like "I'm going to meet Angelo" to prove that the declarant met up with "Angelo," unless there is corroborating evidence of "Angelo's" actions.

Professor McLain's initial point is that this latter approach likely previously contravened the Supreme Court's pre-Crawford opinion, Idaho v. Wright, 497 U.S. 805 (1990). Before Crawford, Ohio v. Roberts, 448 U.S. 56 (1980), ruled the Confrontation Clause roost and held that 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. Meanwhile, in  Idaho v. Wright, the Court rejected the State's contention that evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears "particularized guarantees of trustworthiness." Instead, the Court held that "[t]o be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." Professor McLain thus concludes that 

pre-Crawford, the Wright majority's rationale clearly precluded, as a constitutional matter, the consideration of corroborating evidence with regard to the reliability of Rule 803(3) forward-looking statements of intent...offered against a nondeclarant accused; bootstrapping their admission in such a way would violate the Confrontation Clause under Ohio v. Roberts, as applied in Idaho v. Wright. 

Of course, in Crawford (and its progeny), the Court overruled Ohio v. Roberts and held (1) that the Confrontation Clause is only concerned with "testimonial" hearsay; and (2) that when "testimonial" hearsay is involved, "the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: Confrontation." So, where does that leave Ohio v. Roberts and Idaho v. Wright? According to Professor McLain, it leaves them intact with regard to "nontestimonial" hearsay, but with courts now determining whether nontestimonial hearsay has adequate indicia  of reliability under the Due Process Clause(s).

And, indeed, there is solid support for this conclusion. In his concurring opinion in Dutton v. Evans, 400 U.S. 74, 96-97 & n.4 (2010) (Harlan, J., concurring), Justice Harlan concluded that

The task [of examining the constitutionality of evidence rules] is far more appropriately performed under the aegis of the Fifth and Fourteenth Amendments' commands that federal and state trials, respectively, must be conducted in accordance with due process of law [than under the Confrontation Clause of the Sixth Amendment]. It is by this [due process] standard that I would test federal and state rules of evidence.

Reliance on the Due Process Clauses would also have the virtue of subjecting rules of evidence to constitutional scrutiny in civil and criminal trials alike. . . . [T]he Confrontation Clause, which applies only to criminal prosecutions, was never intended as a constitutional standard for testing rules of evidence.

Meanwhile, in their concurring opinion in White v. Illinois, 502 U.S. 346, 363-64 (1992) (Thomas, J., concurring in part and concurring in the judgment, joined by Scalia, J.), Justices Thomas and Scalia noted that

Reliability is more properly a due process concern. There is no reason to strain the text of the Confrontation Clause to provide criminal defendants with a protection that due process already provides them.

So, because statements admitted under Federal Rule of Evidence 803(3) are usually "nontestimonial," where does that leave us? Professor McLain gives us a few options. First, courts of course can continue to deem statements per se inadmissible under Federal Rule of Evidence 803(3) to prove the future acts of other persons without even getting into a constitutional analysis, with the problem being that such a construction "often excludes irreplaceable evidence...." Second, courts on the other end of the circuit split can continue to deem such statements admissible even in the absence of corroboration, with the problem being that this construction "could result in such statements, standing alone, being considered sufficient evidence of the nondeclarant's conduct." Third, courts such as the Second Circuit could continue to admit such statement subject to a corroboration requirement, but, as noted, such an approach likely runs afoul of Idaho v. Wright.

But according to Professor McLain, there is a better compromise approach:

[T]he Second Circuit's approach can be modified in one of either two ways so as to pass constitutional muster. First, a jurisdiction could choose to codify a requirement for corroborating evidence in its version of Rule 803(3). Justice Kennedy's dissenting opinion in Wright suggested that, despite the Court's ruling on the constitutional issue, a requirement of corroborating evidence might be added, as a matter of state law, to hearsay categories where a state so desired.

The other possibility is to resequence the corroboration requirement, through the case law, by re-working the Second Circuit's approach into two steps. This has the practical advantage of not requiring approval through the rulemaking or legislative process. Under this alternative, the trial court's first step would be to admit a Hillmon-type statement under Rule 803(3), regardless of whether there was corroborating evidence, and permit it to be used as proof of both the declarant's and nondeclarant's subsequent conduct, as long as it was made absent circumstances supporting a finding of insincerity. If the trial court finds that nontestimonial hearsay evidence facially fits under a firmly rooted hearsay exception--and it finds Rule 803(3) to be such an exception--under Roberts, it constitutionally may admit the evidence, even if the declarant is not available for cross-examination.

But, under this proposed approach, such statements standing alone would be insufficient evidence of the nondeclarant's conduct. Thus, at the close of the case, when the court reviews the sufficiency of the evidence to get to the trier of fact, the court would take the second step and consider the presence or absence of substantial corroborating evidence. If there is none, the party bearing the burden of persuasion of proving the nondeclarant's conduct would have judgment entered against it. Because the due process clause forbids basing a verdict on unreliable hearsay, the trial court would be obligated to enter a judgment of acquittal in a prosecution's case, or an appellate court would be obligated to reverse a guilty verdict that it found was clearly based on unreliable hearsay. Corroborating evidence may be considered when evaluating the reliability of admitted hearsay in a due process context.

I think that either of these are interesting approaches that I could see courts adopting in some form. Indeed, Professor McLain's first argument about adding a corroboration requirement to Federal Rule of Evidence 803(3) is actually the second such argument I have read in the past few months, with Professor Jeff Bellin advocating for a corroboration requirement to electronic present sense impressions under Federal Rule of Evidence 803(1) in his forthcoming article, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions (more on that article later). And, I think it makes sense that both authors are making this argument because, as the Advisory Committee Note to Federal Rule of Evidence 803 makes clear,"Exception (3) is essentially a specialized application of Exception [paragraph] (1), presented separately to enhance its usefulness and accessibility."

I strongly recommend the article to readers and think that any day now the Court will finally speak with clarity about the relationship between the rule against hearsay and the Due Process Clause(s). I asked Professor McLain what led her to write the article, and she responded:

This article represents a convergence of 3 things I had been pondering for some time:

Hillmon/Pheaster/Alcalde of course pose wonderful issues that are fun to explore annually with students--and as a Special Reporter for the Maryland Rules Committee I presented Hillmon and its vagaries to the Committee and then to the Court of Appeals, emphasizing the hearsay dangers. MD went for a very conservative position, so I have often contemplated whether that was the wisest choice.

For years I have asked my students whether Idaho v. Wright precludes a position such as the Second Circuit's, and have wondered why I didn't see that argument made.

Then Crawford pulled the confrontation rug out from nontestimonial statements, causing a great stir as to what protection is left as to them -- and the earlier hints re: due process require an examination of just what that means.... The latest doff of the hat to due process was by Justice Sotomayor in fn. 13 in Michigan v. Bryant, and it will be interesting to see what the Court does with it when the right facts come before it.

-CM

AALS Poster Project: Jeremy Blumenthal's Abortion Jurisprudence and Empirical Evidence

Jeremy Blumenthal presented the poster, Abortion Jurisprudence and Empirical Evidence (Download Blumenthal Poster):

Professor Blumenthal is a professor at the Syracuse University College of Law, where he teaches Property, Comparative Law, Legal Psychology, Property Law in the 21st Century, and Judicial Decision Making. He has published articles such as:

-Is Voting in Churches (or Anywhere Else) Unconstitutional?: The Polling Place Priming (PPP) Effect, Boston University Law Review (with Terry Turnipseed) (forthcoming);

-Legal Claims as Private Property: Implications for Eminent Domain, 36 Hastings Const. L.Q. 373 (2009); and 

-'To Be Human': A Psychological Perspective on Property Law, 83 Tul. L. Rev. 609 (2009). 

-CM

Article Of Interest: Montré D. Carodine's Keeping it Real: Reforming the "Untried Conviction" Impeachment Rule

Readers of this blog know that some of the areas of evidence/criminal procedure that I find the most fascinating are plea bargaining (see, e.g., here, here, and here) and prior conviction impeachment (see, e.g., here, here, and here). My main argument with regard to plea bargaining is that a variety of factors (such as the public defender crisis, the way that courts have interpreted Federal Rule of Evidence 410, impeachment, rebuttal, and case-in-chief waivers, and the toothless judicial review of plea bargains) have rendered modern plea bargaining unfair both in procedure and outcome. Meanwhile, my main argument with regard to prior conviction impeachment is that courts have botched the analysis under Federal Rule of Evidence 609, too readily deeming admissible defendants' prior convictions, resulting in too few defendants testifying and too many defendants being wrongfully convicted. I had never, however, thought about what effect our nation's plea bargaining crisis might have on prior conviction impeachment. Professor Montré D. Carodine of The University of Alabama School of Law, however, did address the interplay between these two threads in her terrific recent article, Keeping it Real: Reforming the "Untried Conviction" Impeachment Rule, 69 Md. L. Rev. 501 (2010).

Federal Rule of Evidence 609(a) provides that

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

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

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

It is well established that evidence of prior convictions admitted under Rule 609 can have minimal probative value and maximum prejudicial effect.  For instance, courts often admit prior convictions for larceny, robbery, and even drug possession under Rule 609. Do these convictions really tell us much about whether the witness is lying on the witness stand (especially when the witness is a criminal defendant)? And, when a defendant's prior drug-related convictions are admitted at his trial on drug-related charges, do we really trust jurors to use these convictions solely as evidence that his testimony might not be trustworthy and not to conclude "Once a drug dealer, always a drug dealer?"

If we are being honest with ourselves, I think that the answer is a clear "no." Instead, courts continue to apply Rule 609 in such cases based upon the negative effect that departure from the Rule would have on criminal prosecutions across the country. I also think that this reasoning explains why courts have been reluctant to admit testimony on the inaccuracy of eyewitness identifications.

But even if we buy that certain prior crimes are sufficiently probative of a defendant's veracity, we would need to be convinced that a conviction is reliable enough evidence that the defendant committed one of those crimes to admit it against him under Rule 609. In her article, Professor Carodine notes that this reliability is questionable enough when a conviction comes after a full jury trial and  "that the already low probative value of...evidence [of prior convictions] is diminished further when the convictions were bargained for, and the prejudice to the criminal defendant is magnified by the use of such unreliable convictions." This is why her article in entitled, Keeping it Real: If we look at the actual McJustice assembly line justice meted out by the plea bargaining system, we would have to conclude that convictions resulting from plea bargains (i.e., untried convictions) are too unreliable to be admissible under Rule 609.

So, what should we do? First, we could conclude that the entire criminal justice system is broken to such an extent that Federal Rule of Evidence 609 and state counterparts should be eliminated altogether or "at least with respect to criminal defendants." Indeed, Professor Carodine notes that some states have already taken this approach, such as Hawai'i, which precludes prior conviction impeachment of defendants based upon finding that "the prior conviction impeachment rule unreasonably burdens a criminal defendant's right to testify and thus violates due process." Alternatively, Congress and state legislatures could remove evidence of untried prior convictions from the purview of Federal Rule of Evidence 609 and state counterparts.

But what if Congress and state legislatures are unwilling to take such actions? In that case, Professor Carodine argues that courts could find that the admission of evidence of untried prior convictions violates the Due Process Clause. She notes that in Loper v. Beto, 405 U.S. 473 (1972), the Supreme Court held that evidence of prior convictions is per se inadmissible for impeachment purposes when those convictions resulted from trials in which defendants were denied the right to counsel. And while defendants who plea bargain are not denied the right to counsel, Professor Carodine claims that "Loper remains instructive...because the core principle in the case was that prior convictions must be reliable to be admissible under Rule 609."

Moreover, she claims that the analysis in two similar contexts could be instructive to the analysis of the admissibility of untried convictions under Rule 609. First, courts refuse to allow for the admission of convictions from foreign countries if they resulted from proceedings lacking in fundamental fairness under comity principles. According to Professor Carodine,

Judges who are concerned about fundamental fairness when faced with the question of whether to admit a prior conviction for impeachment purposes should expand Loper's doctrine and formulate an analysis akin to that which courts use in the foreign judgment cases. Courts should not routinely admit untried convictions under Rule 609. Instead, they should seriously consider a defendant's claims regarding the lack of fundamental fairness in the plea bargaining process. If a defendant makes a colorable claim that the plea bargaining process that resulted in his conviction was fundamentally unfair, the burden should shift to the prosecutor to establish the fundamental fairness of those proceedings.

Professor Carodine then notes that

What I propose is similar to what some courts do in the civil context with respect to applicability of issue preclusion or collateral estoppel to convictions resulting from plea bargains, which I discussed earlier in this Article. For example, in Talarico v. Dunlap, the Illinois Supreme Court said that it would "look behind the curtain of...negotiated plea[s]"to determine "on a case-by-case basis" whether the criminal defendant had an "incentive to litigate" his criminal case, which is necessary for the application of issue preclusion.  Thus, the court considered the terms of the defendant's plea deal and the record of the proceedings in his criminal case to determine if there was a "compelling showing of unfairness."

I envision an analogous inquiry with untried convictions offered for impeachment. With respect to the issue of assistance of counsel, for example, courts should be concerned with more than whether there was an attorney representing the defendant on the record as a mere formality. Defendants should be able to raise claims that their attorneys pressured them into pleading or were otherwise ineffective during the bargaining process. Furthermore, judges should consider the fundamental fairness of some indigent defense rules that do not adequately provide for persons who are poor and cannot afford counsel, but who are not poor enough under the relevant statutes. 

I think that Professor Carodine's article presents a fascinating and inventive argument, and I strongly recommend it to readers. I asked her what led her to write the article, and she responded:

I am generally concerned with the reliability of our criminal justice system.  I wrote this particular piece because of all of the Rules of Evidence, I am most skeptical of the application of Rule 609, especially as applied to criminal defendants.  I am also quite skeptical of our current plea bargaining regime, which often forces criminal defendants to "bargain" away their freedom under coercive circumstances and without adequate legal counsel.  I thought that it would be a valuable contribution to both evidence and criminal law scholarship to explore the interplay between prior conviction impeachment and plea bargaining, two very controversial practices.  Both, I believe, work together in many cases to undermine the reliability of our system.  I hope that the reforms that I suggest in the paper, along with other reforms proposed in various other areas of criminal law, can help produce a more reliable system.  

-CM

Taking Root: Court Of Appeals Of New York Opinion Lends Credence To Ohio v. Roberts Revival

In the wake of the Supreme Court's opinion in Michigan v. Bryant, I argued that "the majority resurrected 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. The recent opinion of the Court of Appeals of New York in People v. Duhs, 2011 WL 1118627 (N.Y. 2011), corroborates this conclusion.

In Duhs, Michael Duhs,

who was babysitting his girlfriend's three-year-old son, allegedly placed the child's feet and lower legs into a tub filled with scalding hot water, resulting in second and third degree burns. When the child's mother returned home approximately five hours later, [Duhs] and the mother took the child to the hospital, where he was examined and treated by an emergency room pediatrician.

At trial, the court permitted the pediatrician to testify about a statement the child made outside the presence of his mother and [Duhs]. Specifically, when the pediatrician asked the child why he did not get out of the tub, he responded, "he wouldn't let me out." The pediatrician did not include this statement in the child's medical records, nor did the child testify at trial. [Duhs] was convicted of assault in the first degree and endangering the welfare of a child, and, on appeal, the Appellate Division affirmed. 

Duhs thereafter appealed to the Court of Appeals of New York, which had to determine whether the son's statement was testimonial (and thus violative of the Confrontation Clause) or nontestimonial (and  not violative of the Confrontation Clause). In reaching a conclusion, the court cited to the following language from Michigan v. Bryant:

When, as in Davis, the primary purpose of an interrogation is to respond to an "ongoing emergency," its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause 

The court then concluded that

Applying the primary purpose test here, it is evident that the statement "he wouldn't let me out" was not of a testimonial character, since the primary purpose of the pediatrician's inquiry was to determine the mechanism of injury so she could render a diagnosis and administer medical treatment. Moreover, the Supreme Court has noted that "statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules" and not the Confrontation Clause (Giles v. California, 554 U.S. 353, 376 (2008); see Bryant, 562 U.S. at –––– n. 9).

Footnote 9 in Michigan v. Bryant is the footnote I cited in my post claiming that Bryant was reviving Ohio v. Roberts. In that footnote, the Court noted that

FN9. Many other exceptions to the hearsay rules similarly rest on the belief that certain statements are, by their nature, made for a purpose other than use in a prosecution and therefore should not be barred by hearsay prohibitions. See, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement by a co-conspirator during and in furtherance of the conspiracy); 803(4) (Statements for Purposes of Medical Diagnosis or Treatment); 803(6) (Records of Regularly Conducted Activity); 803(8) (Public Records and Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Religious Organizations); 803(12) (Marriage, Baptismal, and Similar Certificates); 803(13) (Family Records); 804(b)(3) (Statement Against Interest). 

In other words, according to the court, hearsay statements admitted under certain exceptions to the rule against hearsay are, by their nature, nontestimonial. Even though it is not an exact match, this is basically the Supreme Court, and now the Court of Appeals of New York, saying that certain hearsay exceptions are firmly rooted.

-CM