EvidenceProf Blog

Limited Too: Court Of Appeals Of Indiana Notes That Its Rule 105 Is Different From Every Other Rule 105

Federal Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Meanwhile, Indiana Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly.

So, is there a difference between the word "instruct" in Federal Rule of Evidence 105 and the word "admonish" in Indiana Rule of Evidence 105? According to the recent opinion of the Court of Appeals of Indiana in Webb v. State, 2011 WL 1379830 (Ind.App. 2011), the answer is "yes."

In Webb, Brice Webb was convicted of murder. At trial, the prosecution introduced into evidence a videotaped interrogation of him by police. On appeal, Webb claimed, inter alia,

that the videotaped police interview should not have been admitted because "the statements of officers conducting the interrogation were prejudicial, and that prejudicial impact outweighed the probative value."...He also argue[d] that the statements police attributed to third parties constituted inadmissible hearsay. Finally, he maintain[ed] that "any limiting [i]nstruction is insufficient to overcome the prejudice created by" the hearsay statements. 

In response, the Court of Appeals of Indiana noted that

Webb argue[d] only that statements by police on the videotape, not his own statements, [we]re inadmissible. In essence, then, his argument [wa]s based on evidence that is admissible in one sense and inadmissible in another. Evidence Rule 105, which applies in such instances, provides: "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly."

The court then noted that in Humphrey v. State, 680 N.E.2d 836, 839 n.7 (Ind. 1997), the Supreme Court of Indiana said the following about Indiana Rule of Evidence 105:

The Indiana version of Rule 105 is apparently the only in the nation to use the term "admonish" rather than "instruct."...Judge Miller has opined that the distinction is intended to enable a party to request a limiting admonition at the time the evidence is offered, rather than waiting until the jury instructions....Thus, a limiting admonition under Rule 105 (usually during trial) is to be distinguished from a limiting instruction (usually after evidence has been presented).

The Court of Appeals of Indiana, however, noted that the trial court complied with this Rule because it admonished the jury before the videotape was played that, inter alia,

I need to caution you that during the interview with the defendant, the police officers made various statements and allegations. While those statements and allegations are legitimate and legally permissible during an interview, they are not evidence and are not to be considered by you as evidence.... 

Now, of course, this is not to say that other courts never or even usually wait until the close of the evidence to give limiting instructions, but other versions of Rule 105 state no timing preference, meaning that courts can wait until the close of the evidence to give such instructions. See, e.g., United States v. Bastanipour, 1993 WL 394759 at *2 n.4 (N.D.Ill. 1993).

-CM

The Conspirator: Western District Of Louisiana Notes 4 Requirements To Admit Co-Conspirator Admissions

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

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

And, as the recent opinion of the United States District Court for the Western District of Louisiana in United States v. Jackson, 2011 WL 1376276 (W.D.La. 2011), makes clear, to admit a statement as a co-conspirator admission under Rule 801(d)(2)(E), the prosecution must prove 4 elements by a preponderance of the evidence.

In Jackson, Richard Jackson was convicted of several crimes, including conspiracy to distribute crack cocaine. After he was convicted, Jackson appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial attorney failed to object to the admission of testimony by Kelvin Gay. According to Gay, Eric German told him that "Jackson had taken over Gay's turf while he was in prison."

The court permitted this testimony because it found that German's statements was a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E). Jackson claimed on appeal that his trial attorney should have argued that German's statement did not constitute a co-conspirator admission, but the Western District of Louisiana found that such an argument would have been without merit. According to the court,

Under Rule 801(d)(2)(e), the proponent of admittance must prove by a preponderance of the evidence (1) the existence of the conspiracy, (2) the statement was made by a co-conspirator of the party, (3) the statement was made during the course of the conspiracy, and (4) the statement was made in furtherance of the conspiracy....While Petitioner's counsel did not object to Gay's testimony concerning Jackson, such an objection would have been overruled. Through the testimony of the case agents and the officers, the government had already proven by a preponderance of the evidence the four required elements. Any such objection to the statements made by Kelvin Gay would have been meritless and therefore would have been denied. The attorney cannot be ineffective for failing to raise a meritless claim.

-CM

Article Of Interest: Caren Myers Morrison's Jury 2.0

Readers of this blog know my great interest in stories regarding jury misconduct (see, e.g., here, here, here, here, and here) and whether the very idea of trial by jury can survive the new technological era (see, e.g., here, here, and here). What I haven't addressed nearly as much is what courts can and should do to address the jury impeachment in the internet era (I think that my only posts on the subject are here and here). This latter topic is the subject of Jury 2.0, a thought-provoking article forthcoming in the Hastings Law Journal by Caren Myers Morrison, a professor at the Georgia State University College of Law.

Morrison's basic argument is this: The American jury is like a smart kid. He showed some early promise, but now he's not being challenged. And because he's not being challenged, his mind wanders, and he starts to misbehave. So, we need to challenge him. We need to force him to re-engage with the material. And by doing so, his long latent promise can start to shine through again. 

Jurors (and Jury Consultants) Behaving Badly

In Part I of her article, Professor Morrison begins by setting forth the reason why jurors are only supposed to decide cases based upon evidence admitted in open court:

Only in open court can a defendant’s constitutional rights to confrontation, cross-examination, and counsel be protected; a defendant has no means of defense against influences, insinuations and information that reach the jury behind his back.

She then provides a laundry list of the ways in which jurors have circumvented the system, noting that

a quick survey of recent cases shows instances where jurors have Googled the defendant, the names of co- conspirators, and the defense lawyer. In other cases, jurors discovered that a prosecution witness was in protective custody because of the defendant, looked up the MySpace profile of one of the teenage victims in a felony sexual abuse case, accessed the Facebook page of a defendant accused of aggravated burglary with a weapon, where he showed a picture of himself holding a gun, tried to look up the defendant’s prior criminal record on a police department website, looked up defendants’ ages and dates of birth, looked up the driving record of a truck driver in a negligence action, researched oppositional defiant disorder, researched alternative causes of death in a manslaughter case, researched the effect on blood alcohol of the drug Narcan in a vehicular homicide case, looked up a definition of “lividity” and the role it might have had in fixing the time of a beating victim’s death, researched the injury of retinal detachment in a child murder case, and determined whether a particular type of firearm could have damaged a bullet-proof vest.

Of course, such juror fact-finding is not a new phenomenon (indeed, as Morrison later notes, it used to be part and parcel of jury duty), but, with the internet, both the breadth of such extraneous information and the ease with which it can be accessed have increased exponentially (e.g., a juror trying to decide whether the defendant could have arrived home from a bar in time to commit a murder could previously have driven the route herself; now, the "answer" can be found with some typing and a few clicks of the mouse on Mapquest). Morrison even cites to one English study in which 25% of jurors admitted to seeing information about their cases on the internet during trial. Such information can include the defendant's prior record, which is inadmissible for most purposes at trial and yet easily accessible (and yet of questionable accuracy) on the internet.

Morrison proceeds to note that almost all jurisdictions (1) preclude jurors from deciding the law as opposed to applying it to the facts; and (2) leave sentencing decisions to the judge and warn juries not to concern themselves with the consequences of their verdicts. And yet, jurors nowadays easily acquire (often misleading) legal information on the jury, including definitions of the elements of charges and defenses and sentencing ranges.

Courts also immunize most jury verdicts from post-trial scrutiny pursuant to Federal Rule of Evidence 606(b) and state counterparts, which are based upon, inter alia, a public policy of wanting to insulate jury deliberations from public scrutiny and ensuring the freedom of deliberations. But Morrison wonders how much these considerations still govern in a world where jurors constantly post entries on social networking sites about their jury duty (Indeed, this phenomenon has become so ubiquitous that it formed the basis for a piece of performance art by Steve Martin). She also wonders how we can expect jurors to be internet ostriches when lawyers and jury consultants are increasingly scouring the world-wide-web for information about jurors' high school crushes and favorite movies. 

Current Responses

In Part II, Professor Morrison details certain existing and potential solutions to jurors behaving badly and their drawbacks. First, there is the jury instruction to avoid going online to learn more about a case, which ironic process theory would tell us is about as effective as telling jurors not to think about a white bear (or not to press a button). Then, there is confiscation of electronic devices at the courtroom door, which only delays web-surfing until the jurors arrive home. And then there's jury sequestration, which is costly and increases the likelihood of large chunks of the citizenry refusing to participate.

The Historical Jury

In Part III, Professor Morrison notes that juries used to be "self-informing," with at least some juror investigation into facts beyond what was presented in the courtroom. And while there was always of course the requirement of an impartial jury, the historical conception of impartiality was not coextensive with ignorance of the parties and the matter being disputed. In this sense, it was indeed a trial by jury of one's peers, neighbors knowing the character and circumstances of the parties and the action. Moreover, it was widely accepted that juries would or at least could be the judges of the law as well as the facts. Thus, Morrison claims that

There seems to be solid historical precedent for a better informed, more active jury. Under the common law and colonial jury model, the jury was more on par with the judge and was an active participant in the process. The jury also had flexibility to exercise mercy and determine penalties in a way that could subordinate the law to its members' sense of justice. Arguably, such a jury more accurately reflected the conscience of the community than one which does not have access to all the facts and has no say over the law.

Back to the Future

This discussion then leads Professor Morrison to propose some possible solutions to these issues, i.e., Jury 2.0:

-not only instructing jurors to refrain from researching cases online but also explaining to them why they should only rely upon evidence presented in open court;

-in at least some circumstances, informing jurors about sentencing consequences and allowing them to determine certain issues of law;

-allowing jurors to take notes and ask questions (vetted by judges and lawyers), practices which most jurisdictions currently preclude;

-permitting jurors to discuss cases amongst themselves before they are over, as long as they don't make ultimate determinations;

-providing an anonymous forum in which jurors can express their frustrations; and

-curbing parties' investigations into jurors.

Of course, there are costs associated with each of these proposals, but I agree with Professor Morrison that they have the potential to create a more engaged jury, a far preferable outcome to the status quo, where we treat jurors paternalistically and yet are still flabbergasted when they (increasingly) misbehave. I wholeheartedly endorse the article to readers and hope that courts look to the article as they inevitably begin to look for solutions to a problem that seems to be getting worse every day. I asked Professor Morrison what lead her to write the article, and she responded,

I think I began thinking about the piece when I read an article in the New York Times entitled, "If You Run a Red Light, Will Everyone Know?"  That was back in 2008, when the phrase "Google mistrial" hadn't yet become a staple of newspaper headlines.  I was working on issues relating to criminal records on the Internet, and was particularly interested by a website mentioned in the news article that enabled people to run anyone's criminal history through all states, without even registering or paying a fee.  (I checked myself, but apparently neither I nor any of my aliases have a rap sheet.  At least not one that appears on CriminalSearches.Com).  That made me think of the potential havoc that might happen if criminal defendants with prior records went to trial and jurors began checking up on them. 

Once I started looking into it, I found that there were multiple issues involved in the collision of the Internet and the jury trial, beyond the fact of jurors having unprecedented access to information online.  There was also the facilitation of improper contacts between jurors and third parties, jurors conveying information themselves either through Tweets or blogs or other postings, and even the reverse problem of jurors being investigated online in much more intrusive ways than a court might permit on voir dire.  So "Jury 2.0" was my attempt to engage with these issues beyond the initial "Oh, those naughty jurors!' reaction.  I think there are root causes, particularly a desire to know as much as possible in order to reach the right verdict, that will require more than simply telling jurors to turn off their iPhones.  And I believe that we may eventually have to rethink the jury's role, and maybe even our exclusionary system of evidence rules, as society and technology continue to change.

-CM

New Rules: Court Of Appeals Of Georgia Applies New Framework To Find Statement Nontestimonial, Cites EvidenceProf

As I have previously noted,

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. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose  of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 

In Michigan v. Bryant, the United States Supreme Court had to decide whether [a crime victim]'s statements were testimonial or nontestimonial under this "primary" purpose test.

After creating a new Confrontation Clause framework, the Court in Bryant found that the victim's statements were nontestimonial. In its recent opinion in Philpot v. State, 2011 WL 982978 (Ga.App. 2011), the Court of Appeals of Georgia became one of the first courts to apply this new framework, and it reached the same conclusion based upon somewhat similar facts. And, it cited to this blog. So I got that goin' for me.

As noted, in Bryant,

police found Anthony Covington in a gas station parking lot, with Covington claiming that he had (1) been shot by Richard Bryant outside Bryant's house, and then (2) driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial.

In the process of finding Covington's statements nontestimonial, the Court made several important conclusions regarding how courts are to determine the primary purpose of a statement:

(1) the test is objective, not subjective;

(2) the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation;

(3) the formality or informality of an encounter between a victim and police is relevant but not dispositive;

(4) the zone of potential victims is relevant; and

(5) the weapon used and the medical state of the victim are relevant.

So, that takes us to Philpot. In Philpot, Joshua E. Philpot was convicted on two counts of burglary, one count of being a "Peeping Tom," one count of entering an automobile, one count of simple assault, and two counts of criminal trespass. The statements at issue actually came from a prior victim of an alleged burglary by Philpot. Specifically,

the officer who investigated the prior burglary testified that on the date in question, he responded within a few minutes to a report that a burglary had occurred only moments ago at the home of the prior victim. Upon the officer's arrival at the prior victim's home, she told him that she heard a noise in her kitchen, and that when she went to investigate it, she saw a young man (later identified as Philpot) climbing into her home through the kitchen window while holding a knife. She further told the officer that once she began screaming, the young man fled. After speaking with the officer for a few more minutes, the prior victim looked out her window and exclaimed that the burglar (Philpot) was standing in the backyard of a home across the street. Consequently, the officer immediately began chasing Philpot and eventually arrested him.

In deciding whether these statements were testimonial, the court noted that

While this case was pending, the Supreme Court of the United States published its decision in Michigan v. Bryant, which-as some scholars have already noted-substantially alters and expands the framework for analyzing whether an out-of-court statement being challenged on Confrontation Clause grounds is testimonial or nontestimonial in nature.

As support for this claim, the court cited to Richard Friedman's excellent Confrontation Blog and this blog. Applying the new Confrontation Clause analysis, the court then concluded that

the prior victim's statements to the officer were primarily offered to enable police assistance to meet an ongoing emergency, and are therefore nontestimonial in nature; as such, the complained-of statements do not implicate the safeguards afforded by the Confrontation Clause. Here, the officer responded to the prior victim's 911 call within just a few minutes and found her to still be "shaken up" from her confrontation with the burglar as he questioned her in the home's kitchen (an informal setting). Accordingly, under our case law, the prior victim's statements to the officer were admissible as part of the res gestae of the crime (which, as noted supra, is a relevant consideration under Bryant ). Additionally, while the (at that time) unidentified burglar had already fled the scene of the prior victim's home by the time the officer arrived, it could have reasonably been presumed by both the prior victim and the officer that the burglar, who had just left the scene of the crime armed with a knife, was still in the immediate vicinity. Thus, while the prior victim was no longer being immediately threatened, similar to the situation in Bryant, the armed perpetrator was still on the loose, and thus continued to pose a serious potential threat to the prior victim and her neighbors. Indeed here, the police officer, unlike the officers in Bryant, had reason to believe that the armed perpetrator was still in the immediate area. In sum, because the circumstances surrounding the interrogation, as well as the statements and actions of the prior victim and responding officer, objectively indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, the prior victim's identification of Philpot as the burglar and her description of his actions were not testimonial in nature and did not violate the Confrontation Clause. 

-CM

Article Of Interest: Brian Gallini's To Serve and Protect? Officers as Expert Witnesses in Federal Drug Prosecutions

As readers of this blog know, I am frequently disturbed by courts continually finding that law enforcement officers can testify that the amount of drugs recovered from a suspect or his car is consistent with intent to distribute (see, e.g., here, here, here, here, and here). My posts mainly have focused upon why such testimony violates Federal Rule of Evidence 704(b). But in his terrific article, To Serve and Protect? Officers as Expert Witnesses in Federal Drug Prosecutions (forthcoming, George Mason Law Review), Brian R. Gallini, a professor at the University of Arkansas-Fayetteville School of Law, comprehensively argues that courts often err in admitting this testimony not only under Rule 704(b), but also under Rule 702 and the Due Process Clause.

First, Professor Gallini sets forth the stakes. He notes that

The core federal drug statute, 21 U.S.C. § 841(a), prohibits an individual from knowingly or intentionally manufacturing, distributing, dispensing, or possessing with the intent to "manufacture, distribute, or dispense, a controlled substance[.]" Importantly, § 841 does not purport to reach personal use and, instead, is designed to reach drug trafficking. Thus, the typical question in § 841(a) cases is whether the amount of drugs found on a particular defendant is more consistent with personal use or distribution.... or distribution....

So, assume that an officer uncovers marijuana packaged in Ziploc baggies, scales, and a firearm from the defendant's residence. Can the following q&a between the prosecutor and the officer take place at the defendant's prosecution for violation of § 841(a)?

Q: Based on your training and experience, do you have an opinion, with all of the marijuana that was found in the bedroom, the way it was packaged, the Ziploc baggies, the scales, and the firearm, whether or not the gun was possessed in connection with a drug trafficking crime?

A: Yes, it was.

Should such testimony be admissible under the Federal Rules of Evidence and the Constitution? According to many courts, such as the Tenth Circuit (which reviewed the case in which this q&a occurred), the answer is "yes." According to Professor Gallini, the answer is "no."

Federal Rule of Evidence 702

Actually, to put it more precisely, Professor Gallini posits that such testimony could be admissible under Rule 702 but that judges are failing in their roles as judicial gatekeepers with regard to such testimony. Indeed, according to Gallini, courts routinely 

allow expert testimony on a wide variety of topics in drug prosecutions like (1) the amount of drugs in defendant’s possession; (2) the modus operandi of drug traffickers; (3) paraphernalia and equipment associated with the drug trade; (4) translations of drug jargon; and (5) periodic testimony on drug courier profiles.

Gallini claims that this is inconsistent with Federal Rule of Evidence 702, which provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Moreover, the Advisory Committee's Note to the 2000 Amendment to the Rule indicates that "An opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist." And yet, when law enforcement officers provide the 5 types of testimony mentioned above, judges often act like matadors, in large part based upon other language from that Note indicating that

[W]hen a law enforcement agent testifies regarding the use of code words in a drug transaction, the principle used by the agent is that participants in such transactions regularly use code words to conceal the nature of their activities. The method used by the agent is the application of extensive experience to analyze the meaning of the conversations. So long as the principles and methods are reliable and applied reliably to the facts of the case, this type of testimony should be admitted.

Gallini argues that courts have placed too much emphasis on the first sentence of this block quote in permitting law enforcement officers to offer the 5 types of testimony mentioned above while failing to focus on the last sentence. How does an officer know that the word "car" is code for "boat" or that the word "pothole" is code for there being a delay in shipment? And how does an officer know that a certain amount of drugs in more consistent with an intent to distribute than intent to use the drugs personally? Professor Gallini cites several cases for the proposition that courts consistently ignore these tough questions, and he concludes that

Taken together, officer expert testimony in federal drug prosecutions should...be limited to members of law enforcement who (1) did not also participate in the underlying criminal investigation, and (2) are sequestered from other witnesses in the case prior to their testimony. Then, prior to qualifying any member of law enforcement as an expert, district courts must insist upon an explanation from the expert about (1) how her experience led to the conclusion reached; (2) how that experience is an appropriate basis for the offered opinion; and (3) how the experience is reliably applied to the facts.

Federal Rule of Evidence 704(b) and the Due Process Clause

Federal Rule of Evidence 704(b) provides that

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

Professor Gallini argues that courts routinely violate this Rule by allowing testimony that

(1) connects defendant’s factual behavior to the mens rea set forth in the charging statute, (2) indicates that the facts of defendant’s case satisfy the statute’s mens rea, or (3) responds to a prosecutor’s hypothetical that, itself, is modeled after the very facts in dispute.

Moreover, Gallini contends that the admission of such evidence also violates the Due Process Clause because it improperly relieves prosecutors of their duty to prove guilt beyond a reasonable doubt because "[t]he jury need only match defendant’s conduct with the testimony proffered by the 'expert' in order to reach a conclusion on defendant’s mental state and, ordinarily, a corresponding finding of guilt." Thus, Gallini concludes that

Accordingly, guarding defendant’s presumption of innocence must require federal courts to do more than routinely admit expert testimony from, for example, a member of law enforcement who (1) served as the investigating agent, (2) testifies as a lay witness, (3) testifies as an expert in drug trafficking, and/or (4) as part of that testimony, concludes that defendant’s activities are consistent with drug trafficking. What "doing more" means seems both easy and obvious; indeed, fixing the problem would simply require district courts to stop admitting law enforcement expert opinion testimony that (1) connects defendant’s factual behavior to the mens rea set forth in the charging statute, (2) indicates that the facts of defendant’s case satisfy the statute’s mens rea, or (3) responds to a prosecutor’s hypothetical that, itself, is modeled after the very facts in dispute.

I strongly recommend Professor Gallini's article to readers and hope that its ideas gain some traction in the courts. I asked Professor Gallini what led him to write the article and he responded:

I got the idea from a combination of a seminar I teach called Problems in Police Discretion and my doctrinal course on Federal Criminal Law.  Hearing from officers about their experiences testifying in the context of my seminar's speaker series alongside our classroom discussion in Federal Criminal Law of 21 USC 841 really got my brain going.  Although the mens rea set forth in 841 LOOKS daunting, it struck me during those discussions that it rarely poses much of a practical prosecutorial hurdle.  From there, I started wondering on my own about the context in which officers offered testimony in federal drug cases.  As it happens, and as you know from the article, my research uncovered that officers are most often testifying as experts.   That of course made me question where rule 702 fit in.

After learning that 702 seemingly posed no limitation on the introduction of officer testimony, I was taken aback by how far district courts were willing to go in terms of allowing the substance of officer testimony.  It struck me that the testimony often extended into an implicit commentary on defendant's mens rea, which seemed to me to be a 704(b) problem and even possibly a due process problem.

-CM

I Am The Gatekeeper!: Wisconsin Adopts Daubert Test, Kicks Walstad Test To The Curb

As of 2010, 30 states had "adopted or applied the Daubert standard to determine whether to admit a witness to testify as an expert in a given field." Mark R. Nash, Are We There Yet?: Gatekeepers, Daubert, and an Analysis of State v. White, 61 S.C. L. Rev. 897, 897 n.6 (2010). These states were:

(1) Alaska, (2) Arkansas, (3) Colorado, (4) Connecticut, (5) Delaware, (6) Georgia, (7) Hawai'i, (8) Idaho, (9) Indiana, (10) Iowa, (11) Kentucky, (12), Louisiana, (13) Maine, (14) Massachusetts, (15) Michigan, (16) Mississippi, (17) Montana, (18) Nebraska, (19) New Hampshire, (20) New Mexico, (21) Ohio, (22) Oklahoma, (23) Oregon, (24) Rhode Island, (25) South Dakota, (26) Tennessee, (27) Texas, (28) Vermont, (29) West Virginia, and (30) Wyoming.

As of February 1st, that number now stands at a Baskin-Robbins-esque 31.

 Before February 1st, Wisconsin adhered to the holding of the Supreme Court of Wisconsin in State v. Walstad, 351 N.W.2d 469 (Wis. 1984). As Daniel D. Blinka, a professor at the Marquette University Law School, noted in Expert Testimony and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev. 173-189-90 (2006),

Wisconsin has thus far rejected the federal reliability standard despite strong support for the change. There have been several unsuccessful legislative attempts to adopt federal Rules 702 and 703. The appellate courts have also rejected litigants' pleas to join the federal line. In State v. Peters, the defendant argued that statistical evidence regarding DNA testing had been erroneously introduced because it was unreliable. The court of appeals flatly rejected the argument that Wisconsin law required a finding of reliability as "a necessary condition to the admission of scientific evidence," as does Daubert and Frye. Put differently, "the rule remains in Wisconsin that the admissibility of scientific evidence is not conditioned upon its reliability." Walstad had rejected the Frye standard and, it followed, that the relevancy rule too "was unaffected by Daubert." Scientific evidence, said the Peters court, "is admissible if: (1) it is relevant, § 904.01, Stats.; (2) the witness is qualified as an expert, § 907.02, Stats.; and (3) the evidence will assist the trier of fact in determining an issue of fact, § 907.02." Moreover, Peters broadly asserted that "scientific evidence is admissible under the relevancy test regardless of the scientific principle that underlies the evidence."

As reported by Milwaukee County Circuit Court Judge John DiMotto on his blog, Bench and Bar Experiences, however,

By the passage of Senate Bill 1 during the recent 2011 Special Legislative Session called for the purpose of addressing tort reform, Wisconsin is poised to join the federal courts and the majority of states by adopting the Daubert "reliability" Rule for the admission of expert testimony. No longer will Wisconsin rely on the Walstad "relevancy" rule, rather Wisconsin judges will now take a more active "gatekeeper" role in the first instance.

Specifically,

by virtue of the amendments to 907.02 and 907.03, the Walstad "relevancy" Rule has been superseded by the Daubert "reliability" Rule (as amended by changes in 2000).

As a result, Wisconsin trial judges now must be "gatekeepers" as to all expert testimony as to both relevancy and reliability. Absent a stipulation, Wisconsin trial judges should conduct a 901.04 hearing outside the presence of the jury to determine whether expert testimony will or will not be admitted. In that hearing the trial judge will be guided by Daubert factors and others from cases subsequent to Daubert.

And, for a full discussion of the import of this change, you can check out Professor Blinka's excellent piece on the topic in the March 2011 issue of the Wisconsin Lawyer.

So, that now leaves 19 states which have not adopted Daubert, including my state of Illinois, which still applies the Frye test. Over the next several months, I plan to do a series of posts highlighting these state variations.

-CM

The Shield: Taking A Look At Recent Shield Law Developments Across The Country

A shield law or reporters' privilege is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process. After reading some recent articles on the subject, I thought that I would do a post about the status of shield laws in the states.

Hawai'i is about to re-up its shield after a unanimous vote by the Hawai'i Senate Judiciary and Labor Committee. In 2008, Hawai'i became the 36th state to enact a shield law, with its law providing

a qualified privilege for journalists to refuse to reveal sources and the content of newsgathering materials. It covers any individual who works for or previously worked for a magazine, newspaper, or radio or television station. The law also protects online journalists if they regularly report on information of public interest. 

After Hawai'i created its shield law, Texas became the 37the state to enact a shield law. Its law provides that

in a criminal case, journalists could be compelled to disclose felony crimes and the identity of sources who admit to committing a crime. The proposed law also would not keep reporters from testifying as witnesses to crime or when disclosure of a confidential source is needed to stop a likely death or substantial bodily harm.

In civil cases, a judge could compel a reporter to testify or turn over notes only when all reasonable efforts have been exhausted and the information is essential to one or both sides.

Kansas then became the 38th state. Under its law,

a party seeking disclosure of a reporter's newsgathering materials or confidential sources must show in court that the information is material and relevant to the controversy for which the disclosure is sought; could not be obtained by alternate means after exercising due diligence; and is of a compelling interest.

Wisconsin soon thereafter became state 39. Pursuant to its law,

Disclosure of unpublished newsgathering materials may only be compelled in a criminal case if the court finds, after it notifies the reporter and gives them the opportunity to be heard, that the requester proved by clear and convincing evidence that a crime has occurred. 

In a civil case, the requester must prove the information sought is highly relevant, is necessary, and is not obtainable from any alternative source, and that disclosure is in the overriding public interest.

Interestingly, the bill also has a section that restricts the issuance of a subpoena to a nonreporter if the intent is to obtain information relating to a transaction with a news person that would be barred from disclosure under the statute. This unusual provision offers an additional layer of protection to the newsgathering process.

Finally, just a few days ago, West Virginia became state 40. Under its law,

a "reporter" is someone who gathers and disseminates news to the public for a portion of the person’s livelihood, suggesting that freelance journalists would be protected, while unpaid bloggers would not. The protection is not limited to specific media; as such, paid online journalists should fall under the statute. Moreover, the law specifically covers unpaid student journalists.

The legislation also mandates that existing protections afforded journalists and others under the federal and West Virginia Constitutions remain intact, a significant provision in light of courts’ general acceptance of the state Supreme Court’s articulation of a qualified reporter’s privilege in Hudok v. Henry.

Under Hudok, a reporter can be compelled to disclose his or her confidential sources or newsgathering materials only upon a clear and specific showing that the information is highly material and relevant; necessary or critical to the maintenance of the claim; and not obtainable from other available sources. An attempt to codify this protection with a bill in 2007 failed to make it out of committee.

-CM