EvidenceProf Blog

Texas Two-Step: Will Texas Pass State Counterparts To Federal Rules Of Evidence 413-414?

Federal Rule of Evidence 404(b) provides in relevant part that 

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

Enacted in the 1994 to increase the likelihood of sexual offense convictions, Federal Rules of Evidence 413-414 remove this propensity character evidence proscription for sex offenders and allow bad act evidence to prove, "Once a sex offender, always a sex offender."

Despite the objections of academic commentators, several states--including California-- followed suit. More states are considering similar exceptions; for instance, Alaska and California have also created similar exceptions for cases of domestic violence. Ted Sampsell-Jones, Preventive Detention, Character Evidence, and the New Criminal Law, 2010 Utah L. Rev. 723, 731-32 (2010).

In all, eleven states have enacted state counterparts to Federal Rules of Evidence 413-414 (I'm not sure how many states have enacted counterparts to Federal Rules of Evidence 415, which applies in civil cases) Could Texas make it a dozen?

Apparently, Texas state senator Joan Huffman has introduced Senate Bill 152, which according to Huffman,

has been carefully crafted to both protect the constitutional rights of defendants and to serve the public's interest in prosecuting those accused of committing the most heinous crimes against some of our most vulnerable victims. The proposed legislation is modeled after Federal Rules of Evidence (FRE) 413 and 414. Both were adopted by Congress and signed by President Clinton in the bipartisan Violent Crime Control and Law Enforcement Act of 1994. Eleven other states have enacted similar legislation, including California. Multiple federal appellate courts, including the 5th Circuit Federal Court of Appeals, have specifically and consistently held that FRE 413 and 414 and the state statutes modeled after them are constitutional and do not violate the Due Process Clause or the Equal Protection Clause. Thus, contrary to critics' complaints, the Constitution has not been shredded after all.

So, will the bill be successful? I don't know. Back in November 2008, I posted an entry about the Vermont Senate Judiciary Committee removing an attempt to create state counterparts to Federal Rules of Evidence 413-415 from a sex offender plan. Then, in February 2009, I posted an entry about Montana coming close to enacting counterparts to Federal Rules of Evidence 413-415, but that effort ultimately failed. And, in May 2010, I noted that the Supreme Court of Iowa found that Iowa Code Section 701.11, Iowa's counterpart to Federal Rules of Evidence 413, violated due process. Will Texas buck this trend? Or will Senate Bill 152 fail? If I had to read the tea leaves, I would guess that the bill would  pass, but it really seems like a crap shoot.

-CM

Another Loss To The Evidence Community, Dan Shuman At Southern Methodist

From William Bridge on the Evidence Professor listserv:

Tragically, another long-time Evidence teacher at Southern Methodist died early Tuesday morning, of Multiple System Atrophy, a Parkinson's-like disease.  Dan Shuman joined the SMU faculty in 1977 after stints at Legal Aid and in Bruce Babbitt's AG's Office in Tucson.  He taught, among other things, Civil Procedure, Torts, Evidence, Problems of Proof (our advanced Evidence seminar), an Expert Witness seminar, and extensively in mental health law.  He twice (in 1988, and 2011) won the Manfred Guttmacher Award from the American Psychiatric Association for his work in psychiatry and the law.  Dan had a loving family, and devoted students and colleagues.  Dan also taught this semester, two seminars.  His memorial service was this morning.

Here is the notice on his passing from SMU, and here is his obituary from the Dallas Morning News. Professor Shuman was a prolific author on a variety of topics, with some his best writing coming on the topic of expert testimony from a variety of perspectives.

Recently, I have been researching (1) whether suspects should be able to pre-assert their Miranda right to counsel, and (2) what the language used in the Miranda tells us about the language used during plea colloquies, and I have come across a wealth of information in recent articles that Professor Shuman co-authored:

-Everyone Knows Their Miranda Rights:" Implicit Assumptions and Countervailing Evidence, 16 Psychol. Pub. Pol'y & L. 300 (2010);

-Miranda Rights...and Wrongs, 23-SUM Crim. Just. 4 (2008);

-The Language of Miranda Warnings in American Jurisdictions: A Replication and Vocabulary Analysis, 32 Law & Hum. Behav. 124 (2008); and

-An Analysis of Miranda Warnings and Waivers:Comprehension and Coverage, 31 Law & Hum. Behav. 177 (2007)

-CM

Article Of Interest: Ronald F. Wright's Public Defender Elections and Popular Control Over Criminal Justice

I always found it odd when people criticized a single-payer health care system simply by labeling it "socialized medicine." Couldn't our public education system similarly be attacked as socialized education? Are our public libraries socialized book lending? Is the postal system socialized mail delivery? In other words, there are certainly problems with a single-payer health care system, but simply stigmatizing it as socialized medicine makes no sense. Instead, the important point is why we have made health insurance (primarily) private while other services are (primarily) public.

In his terrific recent article, Public Defender Elections and Popular Control Over Criminal Justice, 75 Mo. L. Rev. 803 (2010), Ronald F. Wright, a professor at the Wake Forest University School of Law, addresses a similar question. As he notes in the opening paragraph of the article:

Voters in the United States select some of the major actors in criminal justice, but not all of them. Among the major figures in the criminal courtroom, voters typically elect two of the three: the prosecutor and the judge, but not the public defender. Prosecutors in almost all states are elected at the local level. Judicial elections offer more of a mixed bag, but a strong majority of jurisdictions elect their judges in some form or other. Unlike prosecutors and most judges, however, the public defender is typically not an elected official, even though the defender is a public employee with important budgetary and policymaking authority over criminal justice. Why the difference? Do we believe that voters would behave markedly differently when electing public defenders? Or do we believe that public defenders themselves would respond to voter input in less desirable ways than other criminal justice officials? As it happens, we have some actual experience to draw upon in answering these questions because a few jurisdictions actually do elect their public defenders. Florida, Tennessee, and a few places in California and Nebraska elect their chief public defenders at the local level, and have done so for decades.

Do Voters Behave Differently?

As Professor Wright note in the introduction, while the vast majority of jurisdictions have decided to select their public defenders through various appointment techniques,

There are four jurisdictions...which provide for local election of at least some public defenders. California provides for a mix of appointments and elections in the state, and the public defender in San Francisco has long been elected to office. In Nebraska, cities with populations of more than 100,000 may establish public defender offices, and the public defender "shall be elected." Lancaster County, which includes the city of Lincoln, has done so. In Tennessee, the Davidson County public defender office, established in 1962, elects its chief public defender. Other offices in the state followed that selection model when the system expanded statewide in 1989.

Florida has elected its chief public defenders since the dawn of the statewide system.

Chief prosecutors are reelected at alarmingly high rates, with many prosecutors running unopposed. In analyzing the data from Florida and Tennessee, Professor Wright finds that chief public defenders are also on the fast track to reelection:

the percentage of unopposed public defender incumbents is virtually identical to that of prosecutor incumbents (83% compared with 84%, respectively). In addition, the proportion of public defender incumbents who seek re-election and the number who ultimately succeed in their campaigns is even higher than among incumbent prosecutors: incumbent public defenders run in 86% of the races (compared to 75% among prosecutors), and they are re-elected in 86% of the opposed races (compared to 69% among prosecutors).

Table 2: Opposition to Incumbents in Public Defender Elections 

	Prosecutors	All Public Defenders	Florida Defenders	Tennessee Defenders
All Races	3291	148	87	61
Incumbent Runs	2465	127	69	58
	(75% of all races)	(86% of all races)	(79% of all races)	(95% of all races)
Incumbent Unopposed	2063	106	51	55
	(84% of incumbent races)	(83% of incumbent races)	(74% of incumbent races)	(95% of incumbent races)
Incumbent Wins	2340	124	66	58
	(95% of incumbent races)	(98% of incumbent races)	(96% of incumbent races)	(100% of incumbent races)
Incumbent Wins when Opposed	276	18	15	3
	(69% of opposed incumbent races)	(86% of opposed incumbent races)	(83% of opposed incumbent races)	(100% of opposed incumbent races)

According to Professor Wright,

These outcomes might come as a surprise. One might imagine that it would be extraordinarily easy to defeat an incumbent public defender simply by pointing out the aggressive defense tactics that defense attorneys used in prominent cases. Challengers also might criticize an incumbent based on the simple observation that attorneys in the office achieved some acquittals, perhaps more than the statewide average. A challenger might appeal to voters by promising less vigorous defense or lower expenditures in the office. In short, incumbent public defenders would appear to be extraordinarily vulnerable. And yet public defenders face opponents in a minority of election cycles, and they defeat challengers at rates even higher than incumbent prosecutors do.

Not Avoiding a Race to the Bottom

This data seems to belie the cynical view of why most jurisdictions don't elect chief public defenders: that elections would create a "race to the bottom," pursuant to which candidates are elected by promising to make public defenders offices less successful. Professor Wright further supports this conclusion by reviewing the campaign rhetoric in public defender elections and finds that

-Some of the campaign rhetoric points to the personal characteristics - even the moral integrity - of the candidates, rather than the policies or operation of the office. 

-The campaign rhetoric does not remain limited to the individual characteristics of the candidates; the candidates also engage in surprisingly substantive discussions about the priorities and policies of the public defender office.

-Candidates sometimes debate the proper eligibility criteria for defenders who can receive services from the office.

-While cost savings and efficient use of tax dollars dominate the campaign rhetoric, the discussion sometimes runs in the opposite direction, calling for a greater range of services.

Conversely, [c]hallengers are surprisingly circumspect about launching direct criticisms of vigorous defenses by incumbents in particular named cases," although such criticisms are not without precedent. Through this analysis, Professor Wright is able t conclude that

The results of the elections in Florida and Tennessee offer some reason to believe that a race to the bottom is not happening. If it were easy for challengers to win office by promising voters to use less money and to hold back on the use of some defense techniques, we would likely see more incumbents losing elections. As Table 2 indicates, incumbents win just as many elections on the public defender side as they do on the prosecution side. The campaign rhetoric shows a reasonably responsible debate about the best uses of tax dollars and the appropriate range of clients and services that the office should try to cover. Although prosecutor elections feature discussions of recent prosecutions in prominent cases, the public defender campaigns hold the focus more consistently on general policies. The exceptions...show the corrosive possibilities, but most voters have not faced such a prospect.

Elect Some and Not Others

So, what is the reason that the vast majority of jurisdictions appoint chief public defenders while most jurisdictions elect judges and nearly all jurisdictions elect chief public prosecutors? According to Professor Wright, "[t]his inconsistent use of elections...reflects a nuanced and appealing view about the role of public preferences in the design of criminal justice policy in a democracy." Why? Well,

One answer is that these publicly paid agents actually answer to different principals. The prosecutor, of course, represents the public in criminal proceedings and in promoting public safety. Judges represent the public in the resolution of criminal charges, but they are expected to promote public interests as perceived over a longer time frame and set at a higher level of principle.

The public defender, on the other hand, does not exactly serve as an agent for the public. While the public pays the public defender to provide the constitutionally required defense that can support a valid conviction, the attorney represents the client. The taxpayer functions much like the insurance company who selects and compensates the defense attorney in a tort suit. As the Model Rules of Professional Conduct make clear, even when a third party pays for representation, the attorney owes duties of competence, loyalty, and confidentiality to the client and not to the person who pays. Moreover, the voter is not likely to understand the priorities of a criminal defendant. Voters tend to be older, richer, and whiter than most criminal defendants, leading to a mismatch between the voters who select the defense attorneys and the clients who control the objectives of the representation.

While the public can judge chief prosecutors on the cases that they do not and do pursue (and the resources that they use to pursue them,

For the public defender...the voters' authority extends only to the general resource levels they will provide (choosing from the range of funding options allowed under the constitution or other sources of law) and the organizational choices of the leadership. They cannot properly punish the public defender for the means employed to defend a client in a particular case. The adversarial system directs all the benefits of the lawyer's zealous representation to the client, not to the people who pay for the lawyer.

Moreover,

Electing public defenders is also inferior because there are excellent alternative methods of constraining their choices ex ante. The external constraints on public defenders are vibrant even without input from voters. The limited availability of effective defenses built into the criminal code combined with overall funding limits both profoundly shape the work of public defenders. Traditional conceptions of the objectives of criminal defense, conveyed through legal education and professional ethics standards, also promote a regular level of quality in representation. With restraints like these on public defenders, input from voters would be gilding the lily.

By contrast, the external constraints on prosecutor choices are anemic. Criminal codes offer broad and deep options, and judges generally do not second-guess the charge selections of the prosecutors. Election campaigns, however flawed they might be as a signal about public priorities, remain one of the more meaningful external influences on prosecutor decisions. Bureaucratic traditions in other countries might deliver the regularity and reasoned decisions that we expect from prosecutors who operate within the rule of law, but elections still hold an important place in the toolbox of democracy in the United States.

Conclusion

Why do we elect some of the major actors in the criminal justice system but not others? And what do those choices tell us about the roles that these actors play in the system? Professor Wright's article goes a long way toward answering those questions, and I strongly recommend it to readers. I asked Professor Wright what led him to write the article, and he responded:

I wrote the article for a few reasons.  For one thing, I just stumbled across the fact that Tennessee Public Defenders are elected, and it struck me as a bizarre and counterintuitive way to organize the delivery of defense services.  I wanted to learn more about why state leaders would choose this method of delivery, and to explore its effects.  In short, simply curiosity about a random discovery first got me involved in the research.

Second, this piece fits into a broader project in my research.  I have done some work lately on prosecutor elections, so the comparison to the election of public defenders would, I thought, be instructive.  My recent work on comparative prosecutorial services highlights how strange the election of criminal prosecutors seems in a world context.  So this larger election project tries to explain the uniquely American answer to the question of how to blend expertise and accountability as we try to deliver criminal justice in a democracy.  

-CM

New Rules: Supreme Court Adopts Restyled Federal Rules Of Evidence & Sends Them To Congress

As I have previously noted on this blog,

After the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Courts "restyled" the Federal Rules of Appellate Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Civil Procedure, it tackled its latest project:  the Federal Rules of Evidence. The goal in all of these projects has been to makes the Rules more user friendly rather than to enact substantive changes.

Here is a link to the initial report on the project from 2009. Thereafter, the Committee  released its Preliminary Draft of Proposed Style Revision of the Federal Rules of Evidence for public comment. The public comment period for this draft ended on February 16, 2010, with the following comments being submitted. Now, on April 26th, after a few minor changes, the Supreme Court adopted the latest version of the restyled Evidence Rules and sent them to Congress. The new Rules are set to take effect on December 1, 2011, unless Congress acts otherwise. Daniel Capra, the Reed Professor of Law at the Fordham University School of Law and the Reporter for the Judicial Conference Advisory Committee on the Federal Rules of Evidence, sent me a copy of the latest version of the Rules, which you can download here in three parts (Download Restyled Rules 101-415, Download Restyled Rules 501-706, Download Restyled Rules 801-1103)

As you can see, what the Committee has done for each restyled Rule is to have a side-by-side comparison of the old Rule and the new Rule, followed by a Committee note explaining the reason(s) for the restyling. For instance, here is the comparison for Federal Rule of Evidence 606(b):

Rule 606. Competency of Juror as Witness	Rule 606.  Juror’s Competency as a Witness
(a) At the trial.  A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.	(a)       At the Trial.  A juror may not testify as a witness before the other jurors at the trial.  If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
(b) Inquiry into validity of verdict or indictment.  Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.	(b)       During an Inquiry into the Validity of a Verdict or Indictment.   (1)       Prohibited Testimony or Other Evidence.  During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.  The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.   (2)       Exceptions.  A juror may testify about whether:   (A)      extraneous prejudicial information was improperly brought to the jury’s attention;   (B)      an outside influence was improperly brought to bear on any juror; or   (C)      a mistake was made in entering the verdict on the verdict form.

 Committee Note

The language of Rule 606 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules.  These changes are intended to be stylistic only.  There is no intent to change any result in any ruling on evidence admissibility.

________________________________________________________________________________________ 

I would like to thank the Committee and all of those involved with restyling the Rules for all of their terrific work on the restyling project. That project has already garnered two awards: (1) the 2011 Burton "Reform in Law" Award, and (2) the 2011 Clearmark Award, given by the Center for Plain Language.

I will be doing some posts in the coming months about the restyled Rules, and, as noted previously, Katharine Traylor Schaffzin will be guest blogging here about the project soon before the restyled Rules are set to take effect.

-CM

With A Gun?: Appeals Court Of Massachusetts Opinion Addresses Second, Sixth Amendment Issues

The Second Amendment provides that

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Meanwhile, the Confrontation Clause of the Sixth Amendment provides that

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

It is not very often that a defendant claims that a criminal prosecution violated both his Second Amendment and Sixth Amendment rights, but that was exactly the case in Commonwealth v. Patterson, 2011 WL 1520025 (Mass.App.Ct. 2011).

In Patterson,

Responding to an abandoned 911 telephone call, police went to 48 Forest Street in Franklin where, as they approached, they saw a scared and crying five year old girl, who was repeatedly yelling, "no police." Near her was her mother, who appeared shaken and nervous. The police entered the residence and saw an empty gun holster on the kitchen floor. At that point, the defendant entered the kitchen from the living room and the child said, "He pushed Mommy into the wall. He had a gun." The defendant identified himself as a police officer and stated that he was unarmed. One of the responding police officers ushered him outside. Another officer, accompanied by the mother, the girl, and her seven year old brother, then went upstairs. In the hall, the officer observed a foot-wide indentation in the wall about three feet up from the floor. In the pocket of a jacket hanging in an upstairs bedroom closet, the officer located a Smith & Wesson .38 caliber handgun. The unloaded gun did not have a trigger lock and was not secured in a locked container. Also in the same pocket was hollow point .38 caliber ammunition. 

The defendant was thereafter charged with improper storage of a firearm under G.L. c. 140, § 131L(a). After he was convicted, the defendant appealed, first claiming that G.L. c. 140, § 131L(a) was unconstitutional under District of Columbia v. Heller, 554 U.S. 570 (2008), as applied to the states in McDonald v. Chicago, 130 S.Ct. 3020 (2010). The Appeals Court of Massachusetts disagreed, finding that under the D.C. Code provision found violative of the Second Amendment, a person registered to keep a firearm (apart from law enforcement personnel) was prohibited in any circumstance from carrying or keeping a loaded firearm in his or her home. Conversely, as the Supreme Judicial Court of Massachusetts held in Commonwealth v. Runyan, 922 N.E.2d 794 (Mass. 2010), under under G.L. c. 140, § 131L(a),

an individual with a valid firearms identification card...is not obliged to secure or render inoperable a firearm while the individual carries it or while it remains otherwise under the individual's control. A gun owner may therefore carry or keep a loaded firearm under his or her control in his or her home without securing it with a trigger lock or comparable safety device. The gun owner's obligation to secure the firearm in accordance with the statute arises only when the firearm is stored or otherwise outside the owner's immediate control.

Using this same logic, the Appeals Court of Massachusetts held that G.L. c. 140, § 131L(a) does not violate the Second Amendment.

The defendant's second argument on appeal was that the admission of the child's statement, "He pushed Mommy into the wall. He had a gun," violated his right to confrontation under the Sixth Amendment." The court again disagreed, finding that

 

The child's statement here was made spontaneously, without police questioning, as the officers walked into a volatile and unstable scene of domestic disturbance. There is nothing to suggest that the statement was made for any purpose other than to secure aid, let alone that the five year old child had in mind that the statement would or could be used to prove some fact at a future criminal trial. The statement, accordingly, was not testimonial for purposes of the Sixth Amendment. 

And, because the statement was not testimonial, its admission could not violate the Confrontation Clause.

 

-CM

Prior Consent: Court Of Appeals Of Arkansas Precludes Jury Impeachment Based On Juror's Preexisting Knowledge

SImilar to its federal counterpart, Arkansas Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. 

Under Rule 606(b), it is clear that information that a juror discovers outside of the four walls of the courtroom (e.g., through surfing the 'net, visiting the crime scene, or reading the newspaper) after trial commences can constitute extraneous prejudicial information and form a proper predicate for jury impeachment. But what about information that a juror learned prior to trial in the ordinary scope of his life experiences and carries with him into the jury room? As the recent opinion of the Court of Appeals of Arkansas in Milner v. Luttrell, 2011 WL 1491461 (Ark.App. 2011), makes clear, such information is not extraneous prejudicial information and cannot form a proper predicate for jury impeachment.

In Luttrell, Patricia Milner

underwent a gastric-bypass operation in 1977. In the following years, she experienced problems with reflux and consulted Dr. Forest Miller. Dr. Miller referred her to Dr. Luttrell, who determined that Mrs. Milner needed a "revision" of her previous bypass. Surgery was scheduled for May 13, 1999, and Milner signed a pre-operative consent form describing the procedure as a "reversal gastric bypass and incisional hernia repair." According to Milner, she understood the term "reversal" to mean that she would be restored to her natural, pre-bypass condition. When Dr. Luttrell performed the surgery, however, he replaced the existing bypass with another bypass called a Roux-en-Y. Post-operatively, Milner experienced more gastrointestinal problems and had the Roux-en-Y reversed by another doctor.

Milner thereafter sued Dr. Luttrell for negligence in performing the Roux-enY bypass without her consent and in performing it incorrectly. At trial, the jury found Dr. Luttrell not liable. After trial, Milner's attorneys "submitted affidavits to the court stating that they had learned from an unnamed juror that two jurors on the panel worked for a physician and knew the standards for informed consent and making entries in medical records." The trial court found these affidavits inadmissible under Arkansas Rule of Evidence 606(b), and the Court of Appeals of Arkansas later agreed, finding that "[t]he issue of extraneous prejudicial information has arisen most frequently when jurors have visited an accident scene during trial and reported their observations to other jury members." 

But, according to the court, the case before it did

not involve a juror's foray outside the courthouse to gather extrinsic information. Rather, it involve[d] information that the juror learned prior to trial in the ordinary scope of her life experiences and carried with her into the jury room. In that regard, the present case is more akin to Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988). In Watkins, our supreme court held that a juror's remark to the panel about information she supposedly knew about the appellants' attorney did not constitute extraneous prejudicial information as envisioned by Rule 606(b). The court appreciated the appellants' concern about a juror's harboring a hidden bias or prejudice but held that the appellants' proffered evidence "is not included in the exception under Rule 606(b)...."

Moreover, the great weight of authority in other jurisdictions is that a juror's professional or vocational knowledge does not qualify as extraneous prejudicial information when brought into the jury room. 

-CM

 

Article Of Interest: Caleb Mason's The Use of Immigration Status in Cross-Examination of Witnesses: Scope, Limits, Objections

In July 2008, I published a short essay in the Northwestern Law Review Colloquy entitled, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes. The piece was a a quick reaction to a couple of cases I posted about on this blog (here and here) in which courts permitted inquires into the immigration statuses of witnesses. I think that the essay is a nice illustration of the virtues of the various online supplements to law reviews. I identified a hot issue and was able to give a quick take on it in a couple of months rather than the near year or longer that it takes to publish an article in a traditional law review. And that take was that courts should generally not allow such immigration interrogation. Caleb Mason, a professor at the Southwestern Law School, has now followed up on my essay, with his terrific article, The Use of Immigration Status in Cross-Examination of Witnesses: Scope, Limits, Objections, 33 Am. J. Trial Advoc. 549 (2010), and I think it does great job of engaging in a more nuanced analysis, really digging into the issue of when immigration interrogation is improper and when (and how) it might be permissible.

Professor Mason's article reads like a how-to manual for students learning about impeachment or trial attorneys preparing to argue for or against immigration interrogation, and, indeed, as I will note below, this was his intention in writing the piece. He begins by noting that

In what follows, assume that litigant "P" plans to put on witness "W." Opposing litigant "D"has a good-faith belief that W lacks legal permission to remain in the United States. Litigant P moves in limine to preclude "all questions about immigration status" when W takes the stand.

The proper analysis of this motion should proceed as follows. For each proposed line of cross, the court must ascertain whether the requirements of Rule 608 have been met by satisfying the following elements: first, whether D has alleged a specific instance of conduct; second, whether D has a good-faith basis for alleging the conduct; and third, whether the conduct is probative of W's character for untruthfulness. Even if the Rule 608 requirements are not met, D may still be able to show the possibility of bias arising from W's immigration status. In both cases, the court will have to address the balance between probativeness and unfair prejudice under Rule 403. Finally, the court will have to consider whether W would enjoy a Fifth Amendment privilege with respect to his immigration status. Each of these inquiries will require exploration of factual details about W's prior conduct.

Professor Mason then proceeds to discuss all of the nitty gritty of immigration interrogation, starting with discovery, proceeding with the required good faith basis for asking immigration-related questions, and concluding with permissible and impermissible questions and objections. You can (and should) read his article for a full discussion of the issues, (including numerous "P" & "W" hypotheticals that you could use in class) but in this post, I want to focus on three issues that he addresses:

Rule 608(b)

The first paragraph of Federal Rule of Evidence 608(b) provides that

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

So, what does this mean for immigration interrogation? As Professor Mason notes, Rule 608(b)'s "threshold requirement should be dispositive in many cases, because it rules out generalized 'immigration status' questions.' Instead, "D needs to find specific-act questions." Professor Mason then lays out the possibilities for such questions:

-Attorneys should be able to ask illegal aliens about whether they willfully failed to file or engaged in identity theft and filed fraudulent returns. Of course, such questions must be preceded by fruitful factual investigations into whether such deceit occurred and cannot rest upon the presumption that all illegal aliens file false returns;

-Attorneys should be able to ask some illegal aliens about the circumstances of their entries:

-hiking or boating into the U.S. in a remote area and/or under cloak of night are acts of stealth rather then deception and likely would not support immigration interrogation;

-filing false documents or making false claims to enter the U.S. are acts of deception and would support immigration interrogation;

-courts should apply the standard agency test of reasonable foreseeability to determine whether hiding in a vehicle driven over the border is an act of deception sufficient to support immigration interrogation (i.e., was it reasonably foreseeable that the driver, the alien's agent, would have to lie to get across the border?)

Bias

Federal Rule of Evidence 608(b) allows for parties to impeach witnesses through interrogation into specific acts of untrustworthiness to prove the witness' propensity to lie and his likely conformity with that propensity on the witness stand. As Professor Mason notes, interrogation into a witness' biases is not used to prove that the witness is generally a liar but is instead used to prove that the witness has a specific reason to lie in the present cases. Thus, there can be cases when parties can impeach witnesses through evidence of bias that falls outside the scope of Rule 608(b): 

-a defendant should be able to impeach an illegal alien testifying for the prosecution pursuant to a S(nitch) Visa, which allows an otherwise inadmissible person to reside in the United States as consideration for cooperation with the government (and might be able to impeach illegal aliens seeking to curry favor with immigration judges);

-parties might be able to impeach illegal aliens who fear retaliation if they testify against a party (e.g., an illegal employee might fear testifying against an employer who could turn around and report his status); and

-a defendant might be able to impeach a witness for the prosecution to prove that the witness was testifying against him because the witness knew his status and wanted to get him deported.

Fifth Amendment Objections

The second paragraph of Federal Rule of Evidence 608(b) provides that 

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

In my essay, I noted that even if proposed immigration interrogation satisfies the threshold requirement Rule 608(b) and satisfies Federal Rules of Evidence 403 and 611(b) (both discussed in more detail in Professor Mason's article), an illegal alien could simply cite to this second paragraph and the Fifth Amendment to curtail such questioning. As Professor Mason notes, however, the issue is not this cut and dry. Certainly, some witnesses could claim that answering immigration interrogation would tend to incriminate them. But other witnesses might not be able to make such a claim, such as:

-certain immigrants who entered the U.S. legally but overstayed their visas;

-witnesses already punished for their illegal entries;

-hearsay declarants being impeached under Federal Rule of Evidence 806; and

-witnesses who waived the protections of the Fifth Amendment.

Conclusion

In other words, most immigration interrogation interrogation is objectionable, but there are certainly some cases where courts should permit it. As noted before, Professor Mason's article should be extremely useful to attorneys dealing with these types of issues, and I think that it is a fantastic vehicle through which Evidence professors can teach impeachment. I asked Professor Mason what led him to write the article, and he responded: 

I think I called you up in the fall of 2009; I was teaching 608 and looking for examples of different impeachment contexts and how they would work, and I saw your blog post, and then your essay.  I called you, I think, because you said in it that illegal entry wasn't a crime. I was using the issue of illegal alien witnesses as a 608 template for class discussion, and as I thought about it, I realized that although we used illegal alien witnesses all the time at my old job, I had never seen (or done) really systematic briefing on exactly how 608 applied. I'd had defense counsel lead off cross with that question, at least once that I can recall, in a matwit depo.  I could not recall, nor find, a well-articulated holding anywhere on exactly when it would be a proper question and when it wouldn't, but it seemed to me, from prosecuting 1324s and 1326s, that method of entry should matter a lot, and from various other reading (like the Eric Schlosser book with its chapter on migrant farmworkers in San Diego County) that some of the standard assumptions about the inevitability of dishonesty might not apply.  So I wrote this up initially as an example for my class of how a properly investigated, properly litigated impeachment inquiry would go, taking them through every step.  Then I shared it with the other evidence teachers here, and my colleague Myrna Raeder told me about the Trial Advocacy journal and suggested it might fit in well there.  I gave it to my class again this year as a comprehensive study guide for 608 impeachment.  I'm pretty satisfied with it, for what it is-- I think it could function quite nicely as a trial prep tool.

-CM

Mourning The Loss Of Craig Callen

Craig Callen, a professor at the Michigan State University College of Law and one of the foremost Evidence scholars in the world, passed away on Saturday. News of his passing was posted on the Evidence Professor listserv last night at 8:43 P.M., and already numerous prominent Evidence professors have chimed in with thoughts about how wonderful he was as a teacher, scholar, and, more importantly, person. Craig was actually the first Evidence professor with whom I interacted after law school. In my third year of law school, I had written a short piece about Brady v. Maryland and the circuit split over whether the failure to turn over inadmissible can form the basis for a Brady violation.

At that time, I didn't know much about writing law review articles or the law review submission process, but I did know that I wanted to be an Evidence professor, and I was aware of the excellent International Commentary on Evidence. Craig was the Editor-in-Chief of ICE, and I submitted my piece to the journal, having no expectation that it would be accepted for publication. To my surprise, I got a personal e-mail from Craig informing me that the Editorial Board really enjoyed the piece. Of course, there were tons of flaws with it, and Craig did a terrific job of working with me on improving it, really teaching me about what constitutes good legal scholarship. Without that advice, I don't know that I would be a law professor today. He will be missed.

-CM 

Moving Violations: Middle District Of Florida Finds No Problem With Lay Witness' Conclusions Under Rule 701

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.

It is well established under this rule that lay witnesses can offer opinion testimony regarding a car's rate of speed. But did the lay witness go too far in a recent case? According to the recent opinion of the United States District Court for the Middle District of Florida in Hardiman v. Stevens, 2011 1480401 (M.D.Fla. 2011), the answer is "no." I disagree.

In Hardiman, 

John Stevens...and Gregory Hardiman...were involved in a motor vehicle accident. Mr. Hardiman, a Pinellas County school bus driver was sitting in stopped traffic on U.S. Highway 19 when a white van driven by Mr. Stevens approached at a high rate of speed....Mr. Hardiman observed that the road was wet because it had been raining throughout the day.... ccording to Mr. Hardiman, Mr. Stevens did not try to stop until he was immediately approaching stopped vehicles on U.S. Highway 19...The van driven by Mr. Stevens struck a curb and then "became airborne."...The airborne van then struck the left side of the school bus "with such impact that the entire suspension (wheels, axles and springs) were entirely disengaged from the bus and the van proceeded to collide with other southbound vehicles."

Mr. Hardiman and his wife thereafter brought an action against (1) Stevens for negligence and loss of consortium; and (2) Liberty Mutual for uninsured motorist benefits. Stevens thereafter brought a motion for partial summary judgment as to the Hardimans' demand for punitive damages. In denying this motion, the Middle District of Florida considered, over Stevens' objection, the following evidence:

At his deposition, Mr. Hardiman estimated Mr. Stevens was driving at a speed of "at least 50, 55" while "coming up on stopped traffic."...Furthermore, Mr. Hardiman testified that it rained intermittently that day approximately "[e]very 20 minutes."...In his affidavit, Mr. Hardiman averred that Mr. Stevens was driving at "such a high rate of speed" that "a traffic accident was absolutely unavoidable."...In addition, "there was absolutely no indication that [Mr. Stevens] made any evasive action," including engaging the brakes, until "he turned the wheels on the van sharply to the left in an obvious effort to avoid colliding with the stopped vehicles immediately in front of the van."

In finding this evidence to be admissible, the Middle District of Florida concluded that

Contrary to Mr. Stevens's arguments, it is appropriate for Mr. Hardiman to opine as to the rate of speed of Mr. Stevens's car and the weather conditions on the date of the accident. Rule 701, Fed.R.Evid., allows opinion testimony by lay witnesses that is “rationally based on the perception of the witness.” See United States v. Carlock, 806 F.2d 535, 552 (5th Cir. 1996) (noting that one of the "common illustrations” of Rule 701 lay opinion testimony is “an expression of opinion by a lay observer of a car's speed.")

My response? I have no problem with Hardiman estimating Stevens' speed at "at least 50, 55...." I also have no problem with Hardiman testifying about the intermittent rain. Indeed, I don't even see this latter testimony as opinion testimony; instead, it is simply factual testimony properly based upon Hardiman's personal knowledge under Federal Rule of Evidence 602. For the same reason, I have no problem with Hardiman's testimony about Stevens seemingly not making any evasive action and then turning the wheels sharply. Again, this was proper factual testimony under Rule 602.

But what about Hardiman's testimony that Mr. Stevens was driving at such a high rate of speed that a traffic accident was absolutely unavoidable? I don't see how such a conclusion is rationally based on the perception of a lay witness or helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Instead, it is exactly the type of baseless legal conclusion that the Rules preclude. 

-CM