EvidenceProf Blog

Gun It: Ninth Circuit Finds Firearm Registration Report Admissible Under Rules 803(8), 902(4)

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

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

As the recent opinion of the Ninth Circuit in United States v. Buttner, 2011 WL 1790090 (9th Cir. 2011), makes clear, a firearm registration report generated by the Automated Firearms System (AFS) database is admissible hearsay under Rule 803(8) and is also self-authenticating.

In Buttner, Jerry Buttner appealed a judgment following a jury verdict convicting him of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Buttner thereafter appealed, claiming, inter alia, that "the district court erroneously admitted into evidence a firearm registration report generated by the Automated Firearms System (AFS) database maintained by the California Department of Justice."

The Ninth Circuit disagreed, concluding that

The AFS report falls under the public records exception to hearsay. See  Fed.R.Evid. 803(8). That exception allows for the admission of "the sundry sorts of public documents for which no serious controversy ordinarily arises about their truth, and it would be a great waste of time to have the person who created them come to court and testify, such as birth certificates, death certificates, judgments, licenses, and the like."...The firearms report was generated from data that the California Department of Justice keeps “pursuant to duty imposed by [the California Penal Code]."...This "ministerial, objective, and nonevaluative" record-keeping raises no hearsay concerns. 

Moreover, the court found that the report was self-authenticating under Federal Rule of Evidence 902(4), which provides that

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:....

(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.

-CM

Article of Interest: Heather Baxter's Gideon’s Ghost: Providing the Sixth Amendment Right to Counsel in Times of Budgetary Crisis

Recently, I have been working on article that addresses the issue of whether the standard plea colloquy -- in which the judge asks the plea bargaining defendant whether his plea is "knowing, voluntary, and intelligent" -- is sufficient given the current public defender and economic crises. My argument is that it is not and that courts need to reconsider the language used in plea colloquies by referencing the Supreme Court's classic opinions in Gideon v. Wainwright and Miranda v. Arizona. Here is the opening paragraph to the abstract for the article:

In its landmark opinion in Miranda v. Arizona, the Supreme Court held that before a police officer can subject a suspect to custodial interrogation, he has to inform him not only that he has the right to attorney but also "that if he cannot afford an attorney one will be appointed for him…." 384 U.S. 436, 474 (1966). According to the Court, this latter admonition was necessary because the "[d]enial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford" could be supported by neither logic nor reason. Id. at 472-73. Indeed, "we should hardly be surprised to see the Court in Miranda take steps to protect indigent suspects subject to custodial interrogation; those steps mirrored perfectly the economic egalitarianism of the mid-1960s that marked the national mood." Corinna Barrett Lain, Countermajoritiarian Hero or Zero? Rethinking the Warren Court’s Role in the Criminal Procedure Revolution, 152 U. PA. L. REV. 1361, 1413 (2004). In including this latter admonition, the Court recognized that "[i]t was the poor who needed Miranda, just as they had needed Gideon three years before." Id.

So, what's the present problem with plea bargaining? Well, indigent defendants and public defenders are bringing lawsuits across the country, claiming that defendants are accepting plea bargains because, for all intents and purposes, they have no other choice. Their public defenders simply lack the time and resources to mount a vigorous defense at trial. And, what's the solution? The proposal in my article, which I have tentatively titled "If Your Attorney Cannot Afford You," is that courts need to add some variation of the following question to the plea colloquy: "Are you pleading guilty because you feel that your counsel is ineffective based upon lack of time and/or resources and would not be able to mount an adequate defense at trial?"  

Of course, this is a stop-gap measure. If a defendant answers this question in the affirmative, it means that the plea deal is rejected, and the defendant is returned to the same cash- and time-strapped public defender or other court-appointed counsel with (likely) similar issues. And that's part of my point. Maybe if judges, legislatures, and/or prosecutors see enough defendants making this claim in court, they will start to think about enacting some more permanent changes. And what might those changes be? That's the topic of a really interesting article that I came across in my research: Gideon’s Ghost: Providing the Sixth Amendment Right to Counsel in Times of Budgetary Crisis, 2010 Mich. St. L. Rev. 341 (2010), by Heather Baxter, a professor at the Nova Southeastern Law Center.

Muffling Gideon's Trumpet

In Gideon v. Wainwright, the Supreme Court recognized the "Sixth Amendment's guarantee of counsel" as "'fundamental and essential to a fair trial'" because "'[e]ven the intelligent and educated layman...requires the guiding hand of counsel at every step in the proceedings against him....'" So why, in the abstract to her article, does Professor Baxter assert that "Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country?" As she later notes in her article, there are a variety of reasons:

•Funding Has Gone the Wrong Way: For example, (1) In 2009, Georgia's Northern Judicial Circuit, the conflict counsel's budget was reduced from $129,166.00 to a mere $37,152.00, a more than 70% decrease in funding; and (2) in 2008, in Florida's Ninth Judicial Circuit, the criminal justice system experienced budget reductions of $3 million;

•Overwhelming Number of Cases: Professor Baxter cites a lot of disturbing statistics here, but I think that two examples drive the point home: (1) "[I}n Florida, one assistant public defender (APD) was assigned a total of 778 cases for the fiscal year of 2008-09. According to his calculations, this allowed him a mere three hours a year to spend on each case;" and (2) In Detroit, a study revealed that attorneys from the Misdemeanor Defender Professional Corporation representing indigent defendants likely "spend only thirty-two minutes per case;" 

•Ethical Implications: Professor Baxter notes that time and funding restrictions make it virtually impossible for public defenders and contract attorneys to comply with the ethical requirements of the Model Rules of Professional Conduct;

•Disproportionate Funding: The gap in staffing and funding between prosector and public defender offices is substantial and widening. For instance, a study in Tennessee of these respective offices revealed "a disparity of over $73 million between the offices for fiscal year 2005;" and

•Politics as Usual: "Even though most research points to the fact that a public defender's office is the most cost effective way to provide for indigent defense, the defense bar is not always willing or able to expedite the process of developing such a system."

Professor Baxter then sheds light on lawsuits in Florida, Kentucky, Michigan, Florida, and New York, in which defendants and public defenders have claimed that the current state of indigent defense violates defendants' constitutional rights. In summing up this litigation, she concludes that

When comparing these lawsuits, the most notable difference between the successful lawsuits and the unsuccessful lawsuits lies in who the plaintiffs are. Public defenders bringing suit, while perhaps garnering some sympathy from the courts, have not actually prevailed. On the other hand, when the plaintiffs are the indigent defendants themselves, and, therefore, are those who have presumably suffered the constitutional violation, the courts seem much more likely to at least let the lawsuit survive. The downside to such suits, however, is the lack of general effect they may have on the criminal justice system. Although they may generate relief for some individual defendants, it is unlikely that they can affect the kind of change necessary to make a difference in the indigent defense system as a whole.

Sounding the Trumpet Again

So, how can we breathe life back into Gideon's ghost? Professor Baxter proposes three practical solutions:

•Abandon the Tough-on-Crime Mentality: According to Professor Baxter, "[i]n 1970, one in every 400 Americans was incarcerated. Today, that number has quadrupled, with nearly one in every 100 adults being incarcerated, more than in any other affluent country. America has five times more people incarcerated than in Britain, nine times more than Germany, and twelve times more than Japan." So, how did we get here? Well, a large part of the equation is the war on drugs, with the number of people in prison for drug crimes increasing from 40,000 in 1980, to 500,000 today. This increase can be attributed both to the increasingly harsher penalties for drug offenses and the "inevitable recidivism of incarcerated prisoners." Professor Baxter acknowledges that harsher penalties might deter crime but cites statistics indicating that this deterrence is of the "pound of prevention for an ounce of cure" variety. This is not to say that the war on drugs should be abandoned, just that it should be recalibrated. As Professor Baxter notes,

in one state, it was found that 60% of parole violations were a result of the parolee using alcohol or drugs, or merely failing to report to their parole officer. Many of those then rearrested are subject to even harsher sentences based on laws designed to deter repeat offenses. These victimless crimes are creating a vicious circle of incarceration that overburdens and drains the resources of the states. At an average annual cost of $25,000 per prisoner, the incarceration of these drug offenders is costing the states $12.5 billion dollars a year. If this money were to be divided amongst the fifty states, each state would see a windfall of $230 million per year. This money could then be used to combat violent crime and create more diversion programs that would actually help stop the cycle of incarceration that has become so prevalent. Of course, this money could also be used to help fund a failing indigent defense system.

•Misdemeanor Reform: She next notes that "[a]nother way to find more money for state budgets—and free up public defenders—is to reform the misdemeanor system as it currently exists in this country. Right now, the misdemeanor system is a 'black hole for justice and resources.' Misdemeanor prosecutions have more than doubled in the last thirty years, going from five million in 1972 to 10.5 million in 2006." Why? Over-criminaliation. And, what's the solution? In Hawai'i, "the State legislature passed an act that required a non-partisan research group 'to identify minor criminal offenses for which typically only a fine is imposed and which may be decriminalized without undermining the ability of government to enforce laws within its jurisdiction.'" The result? "Following the recommendation of the group, the Hawaii legislature decriminalized a host of agricultural, conservation-related, transportation, and boating offenses." Moreover, other jurisdictions, such as King County, Washington, have expanded diversion programs.

•Prosecutorial Discretion: In the absence of such legislative action, Professor Baxter argues that prosecutors can exercise their discretion. She points out that

One Philadelphia prosecutor has embraced this idea. R. Seth Williams took over the job as the new district attorney in crime-ridden Philadelphia in January 2010. One of the first things on his agenda was to get "smart on crime," instead of tough on crime. In following his word, Mr. Williams downgraded penalties for possessing small amounts of marijuana from jail time to community service and fines. Even more important are the changes Mr. Williams is making in the unit that decides what charges to file. That unit previously consisted of five lawyers, mostly new prosecutors, who were told to file "the widest and harshest charges they could."  This idea of "throwing everything at the wall and seeing what sticks" is prevalent amongst many prosecuting offices. Under Mr. Williams' administration, however, the unit has been increased to eighteen lawyers who are told to spend time considering what charges will be likely to succeed. They have also been authorized to offer more plea bargains earlier in the process.

Conclusion

As noted, the Warren Court recognized that "[i]t was the poor who needed Miranda, just as they had needed Gideon three years before." Based upon the above, it is easy to see why Professor Baxter perceives Gideon as a ghost, the distant echo of a promise made to the poor decades ago. I think that Professor Baxter does a very nice job in her article of shedding light on Gideon's "ghostly shadow" and advances some practical proposals that could go a long way to reviving the right to counsel in this country. I asked Professor Baxter what led her to write the article, and she responded, 

I would say it was a combination of my background and my love for NPR that led me to write this piece. I worked for many years as a judicial staff attorney for the criminal trial court judges here in Fort Lauderdale.  Part of my duties included reviewing post-conviction motions regarding ineffective assistance of counsel, so I was very familiar with this particular niche of the right to counsel.  As a former state employee, I was also very familiar with the effect budget cuts were having on many state agencies.  Then, driving home from school one day, I heard a story on NPR (so many of my conversations start that way!)  about a new study conducted by the Constitution Project called, "Justice Denied."  I came home, looked up the study, and was flabbergasted at the budget cuts affecting public defenders across the country.  I had lunch with a colleague the next day, and the study became a topic of our conversation.   She saw how passionate I was about this travesty and suggested I write an article about it.  Just like that, Gideon's Ghost was born!

-CM

Settlement Discovery: EDNY Finds Rule 408 Doesn't Preclude Discovery Of Settlement Agreement

Federal Rule of Evidence 408 states:

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

In other words, Rule 408 deems evidence of settlement agreements inadmissible for certain purposes at trial? But does that mean that such settlement agreements are immune from discovery? According to the recent opinion of the United States District Court for the Eastern District of New York in Levick v. Maimonides Medical Center, 2011 WL 1673782 (E.D.N.Y. 2011), makes clear, the answer is "no."

In Levick, 

Nadine Levick commenced [an] action against the defendant, Maimonides Medical Center..., seeking damages under Title VII of the Civil Rights Act of 1964,...the Administrative Code of the City of New York ..., and 42 U.S.C. § 1983, stemming from alleged discriminatory treatment during her employment at Maimonides. In her Complaint, plaintiff claim[ed] that she was subjected to religious and sexual discrimination while employed by the defendant and was then terminated, without cause, when she complained about her treatment to supervisors....Plaintiff further allege[d] that the defendant has since interfered with her attempts to obtain new employment.

In response, Maimonides filed a motion to compel discovery of a settlement agreement from Levick's prior lawsuit against Harlem Hospital/Columbia University, in which she alleged claims similar to those asserted against Maimonides. In response, Levick argued that settlement agreements are often inadmissible under Federal Rule of Evidence 408 and that even when they are offered for a permissible purpose they are often excluded under Federal Rule of Evidence 403.

The Eastern District of New York found that these conclusions were correct but that these Rules only cover the issue of whether evidence is admissible at trial and not the issue of whether it is discoverable. According to the court,

The Federal Rules of Civil Procedure grant parties in lawsuits broad rights to discovery. Fed.R.Civ.P. 26(b). Parties are entitled to discovery for any "nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). Discoverable materials "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. Materials that are inadmissible under the Federal Rules of Evidence may be discoverable if a "minimal showing of relevance" is made.

The court then found that this "minimal showing of relevance" was made because Maimonides

contend[ed] that discovery of the settlement agreement with Harlem Hospital will lead to the discovery of admissible evidence relating to the issue of damages. More specifically, [Maimonides] argue[d] that the terms of the agreement may be used to prove that certain damages the plaintiff asserts against the defendant can be attributed to plaintiff's earlier case.

-CM

The Areas Of My Expertise: DRI Notes Split About Whether Indigent Party Status Should Be A Factor In Rule 706 Expert Appointment

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

So, should a court consider the fact that one or more of the parties is indigent in deciding whether to appoint an expert under Rule 706(a)? As the recent opinion of the United States District Court for the District of Rhode Island in Paiva v. Bansal, 2011 WL 1595425 (D.R.I. 2011), makes clear, courts are split on this issue.

In Bansal, Richard Lee Paiva, pro se, an inmate at the Adult Correctional Institutions ("ACI") in Cranston, Rhode Island, filed ant action against urging that certain ACI doctors were failing to provide him with adequate medical care. Paiva moved for appointment of an expert witness under Rule 706(a), and the court noted that "appointment of [an] expert is 'extraordinary' and 'rare' and requires 'compelling' circumstances."

So, were such circumstances present in Bansal? According to the court, the answer was "no." First, the court noted that Paiva wanted the court to appoint an expert "to testify on his behalf" and found this argument unconvincing because "the purpose of Rule 706 is to assist the factfinding of the court, not to benefit a particular party." Second, the court found that "the medical issue at the crux of Plaintiff's lawsuit—regarding Defendants' treatment of Plaintiff's back injury—[wa]s neither complex nor esoteric."  

Finally, the court found that

Plaintiff's indigent status does not alter the analysis here. Courts are split as to whether an indigent plaintiff's inability to present an expert witness should factor into the Rule 706 determination, and the First Circuit has not addressed the issue. See Swan, 738 F.Supp.2d at 206; compare Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996) (stating that one side's indigent status "could provide further reason to appoint an expert") and FPP § 6304 ("Appointment of a court expert also may be justified where the parties entirely fail to present expert testimony or only some parties present such testimony, thus depriving the trier of fact of a balanced view of the issues"), with Kerwin v. Varner, No. 03-3352, 2006 WL 3742738, at *2 (M.D.Pa. Dec. 15, 2006) ("Rule 706...allows only for the appointment of an expert to aid the Court, and not for the purpose of aiding an indigent litigant, incarcerated or not") and Applegate v. Dobrovir, Oakes & Gebhardt, 628 F.Supp. 378, 383 (D.D.C. 1985) (pro se litigant's inability to secure an expert witness case did not constitute a "compelling circumstance" warranting a court-appointed expert). However, even if Plaintiff's indigent status were considered here, Plaintiff has not described any attempts to obtain (i) an expert medical witness, (ii) testimony from his former doctors, or (ii) as suggested by other courts considering the issue, an attorney who might have connections to an expert witness. See Swan, 738 F.Supp.2d at 206 (declining to appoint expert witness and instead urging prisoner-plaintiff attempt to obtain an attorney); cf. Boring, 833 F.2d at 474 (recognizing dilemma created by ruling that § 1915 did not authorize courts to pay expert witness fees for indigent prisoners in civil cases and explaining that nonprisoners often resolve the dilemma “through contingent fee retainers with provisions for arranging expert testimony”). Plaintiff, therefore, has not shown that judicial intervention is necessary or appropriate here.

Based upon these facts, I think that the District of Rhode Island made the right decision, but what about the more general proposition? Should courts take a party's indigent status into consideration when deciding whether to appoint experts under Rule 706(a)? I think that the answer is yes. Take case A and case B. Both cases are the same in that they involve somewhat complex issues, meaning that the court would benefit from expert testimony. In case A, the plaintiff can afford an expert witness. Presumably, the plaintiff will hire the expert witness, and that witness will testify at trial. Now, should the court appoint its own expert under Rule 706(a)? If the issues are especially complex, the answer would be "yes," but if they issues were not too complex, the expert's testimony (and any testimony by the defense expert) would likely be enough for the court to forego appointing its own expert.

In case B, the plaintiff cannot afford an expert witness. So, should the court appoint its own expert witness? If the issues are complex enough to require expert testimony, I think that the answer would be yes. Otherwise, the judge is basing his decision on issues that are above his pay grade. Moreover, I don't think that it matters that a party phrases its motion as a motion for the court to appoint an expert for the party. If the court appoints an expert, it will be a neutral expert designed to assist the court and not either of the parties. It is easy to imagine the court in Bansal appointing an expert and that expert then testifying against Paiva at trial. 

-CM

Article of Interest: Laura Appleman's The Plea Jury

Recently, I read an interesting opinion by the District of Columbia Court of Appeals, Barrows v. United States, 15 A.3d 673 (D.C. 2011) (Download Barrows Opinion). In Barrows, the trial court, without an objection from the defendant, closed the courtroom during voir dire. On appeal, the defendant claimed that the closing of the courtroom violated his Sixth Amendment right to a public trial and that an unidentified spectator preserved this issue for appellate review. The defendant acknowledged that the trial transcript contained no actual spectator objection but asserted that such an objection could be inferred from the following remark from the judge which was recorded in the transcript: "Not okay?...Well, ma'am, it's kind of hard for you to stay while we do this...." The District of Columbia Court of Appeals found that this preservation argument could potentially be viable but concluded that "[e]ven assuming that there was such a spectator objection...[t]he (putative) spectator objection may not have been a rights-based or other legal objection." (Ultimately, however, the court found that the trial court's error in closing the courtroom was structural but also, oddly, harmless, a seemingly oxymoronic conclusion that I will address in a later post).

This opinion was the first thing that I thought about after reading the excellent new article, The Plea Jury, 85 Ind. L.J. 731 (2010), by Laura Appleman, a professor at the Willamette University College of Law. The Plea Jury addresses the assembly line justice being meted out in courtrooms across the country. The vast majority of criminal cases in this country are resolved by plea bargain and without any jury/community involvement. After the prosecutor and the defendant reach a plea bargain, the only back-end quality control occurs at the plea hearing, where the "judge ascertains that the plea is knowing, intelligent, and voluntary." Julie R. O'Sullivan, The Last Straw:  The Department of Justice’s Privilege Waiver Policy and the Death of Adversarial Justice in Criminal Investigations of Corporations, 57 DEPAUL L. REV. 329, 361 (2008). This process has been described as a "a five-minute interview of the person, under Rule 11, getting a kind of half-hearted, scripted confession as part of the guilty plea process." Panel Discussion, The Expanding Prosecutorial Role from Trial Counsel to Investigator and Administrator, 26 FORDHAM URB. L.J. 679, 684 (1999). Professor Appleman's intriguing proposal is to seat a plea jury, "a lay panel of citizens would listen to the defendant's [plea] allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders."

It Takes a Village

So, why have a plea jury? Professor Appleman begins by focusing on the Apprendi-Blakely line of cases, in which "the Supreme Court reinvigorated the Sixth Amendment jury right, concentrating on the need for the community, as jury, to impose punishment." This revival reached its apogee in Blakely:

In holding that a court can sentence a defendant only on facts found by the jury beyond a reasonable doubt or admitted by the defendant, the Blakely Court gave strong support to the idea that the community must have the final word on criminal punishment.

In Blakely, the Court explained that the community's role in the jury trial was a key reservation of the community's power in the structuring of our government: "Just as suffrage ensures the people's ultimate control in the legislative and executive branches, [a] jury trial is meant to ensure their control in the judiciary." By relying on the jury's function as the public's representative and as the primary provider of community-based punishment, the Blakely Court endorsed a collective understanding of the jury trial right.

Professor Appleman then asserts that this "community right to determine an offender's punishment...is closely intertwined with a philosophy of expressive, restorative retribution," which, as she argued in a previous article, "encompasses both the historical antecedents of the Sixth Amendment jury right and modern ideals of punishment." 

And yet, as the plea bargain has come to rule the criminal justice roost, and the community, in the form of the jury, has been replaced by a judge rubber stamping plea deals, (1) the expressive value of community punishment has been lost; (2) the community has lost its traditional role as the arbiter of the blameworthiness of offenders; and (3) correspondingly, the community has lost its ability to repair and reconcile the harm done by one of its own. With a plea jury, however, these values are given new life:   

First, although the full expressive aspects of a trial do not occur with the plea jury, there is still the offender's expiation of his crimes to a segment of the public. With use of the plea jury, the plea is no longer enacted only before a limited audience of the judge, the prosecutor, and the defendant. Second, requiring a plea jury to decide whether the offender's allocution is truthful and whether the sentence is appropriate satisfies the basic requirements of retributive justice, as it permits the injured community to impose punishment on its offenders. Finally, restorative justice also plays its part in the plea-jury process, since the participation of the lay public not only allows the community to impose punishment, but also allows the demonstration of mercy and forgiveness. If the community sees that the offender is truly remorseful for his actions, then it is more likely to accept a shorter sentence, as well as be more supportive of the offender's reintegration into the community after release from incarceration.

You May Ask Yourself, How Do I Work This?

So how, theoretically and practically, do we integrate the idea of the community-jury right generally, and the concept of the plea jury specifically, into the plea bargaining system? After all, "twentieth-century courts, until quite recently, have assigned the jury trial right almost exclusively to defendants...." Well, according to Professor Appleman,

The best example for how to share such a right comes from another aspect of criminal procedure: the peremptory challenge. The body of case law surrounding peremptory challenges initially addressed the prosecution's illegal dismissal of jurors due to race or ethnicity, but it gradually grew to include the illegal dismissal of jurors by either the defense or the prosecution, based on the right of the juror herself to serve. It is this kind of division of jury rights, based on the rights of the community itself, that I propose to apply to the guilty plea.

It is this section of the article (which goes into much more detail about Batson v. Kentucky and its progeny) that prompted me to think of Barrows. We allow a spectator to claim that the closing of a courtroom during voir dire violates the First Amendment, so why shouldn't we allow a spectator to contend that such closure also violates the defendant's (and the community's) Sixth Amendment right to a public trial? Similarly, if we recognize at the micro level that jurors have the right to serve, shouldn't we acknowledge at the macro level that the plea bargain is slowly killing the criminal jury and that a plea jury could bring it back to life?

So, how would the plea jury practically work?

In the standard guilty plea, a defendant allocutes to the particulars of his crime(s) before the court. Formally, this is the time when the court determines whether the defendant's conduct was intentional and actually constituted the charged offense, as well as whether the plea is knowing and voluntary. This is where the plea jury would come in. My plea-jury proposal is relatively straightforward. The defendant would directly give his plea to a special guilty-plea jury, under the supervision of the court. The guilty-plea jury would then make a three-part determination: (1) whether the facts stated fit the alleged crimes; (2) whether the plea was knowing and voluntary; (3) and whether the proposed sentence was appropriate.

Professor Appleman then fleshes out her proposal, and I will bullet point some of its key aspects here:

•it would serve more than once, for at least a month at a time;

•it would probably consist of twelve or fewer people;

•it would be comprised of people randomly selected from the community, with no peremptory or for-cause challenges to shape its ranks;

•there would be no requirement for unanimity; instead, a majority vote would suffice;

•instead of pleading guilty and explaining his offenses solely to the judge, the defendant would direct his plea and allocution to the plea jury; and

•the jury would then determine whether the facts admitted by the defendant match the original charges; whether the plea was knowing, willing, and voluntary; and whether the proffered sentence was appropriate.

If You Were In The Public Eye

Professor Appleman then closes by listing some of the benefits and burdens that the creation of the plea jury would impose on the criminal justice system. She begins by explaining how the plea jury restores some of the criminal justice values lost by sacrificing the public jury trial at the altar of the efficient, but also informal and private, plea bargain. Again, I will bullet point some of her main arguments:

•a plea jury could truly ensure the voluntariness of a defendant's guilty plea, unlike the rubber stamp justice of judicial plea colloquies;

•a plea jury reintroduces the community back into the most common form of criminal adjudication, thereby satisfying the constitutional and theoretical dictates of both Article III and the Sixth Amendment;   

•the current guilty-plea process functions out of sight from the average citizen and can create "disappointment and a sense of helplessness" in the public mind; conversely, by seeing how the plea jury weighs a defendant's guilty plea and proposed sentence, and by participating themselves in the process, the community will come to understand that criminal justice is an open, accessible proceeding;

•a plea jury lends transparency to the system, adds a spoonful of fairness to help the assembly line efficiency of plea bargaining go down, and allows the community to express social norms;

•the plea jury's role in allocution helps fulfill the need for restorative justice as the offender literally pleads to the community itself, acknowledging her wrongs and asking for mercy and reconciliation; and

•a plea jury revives deliberative democracy because jury service is the primary way that this country incorporates its citizens into the legal process.

Of course, Professor Appleman acknowledges that there are drawbacks to a plea jury system:

•it is likely that the speed at which indictments transform into guilty pleas would slow down with the incorporation of a plea jury, and integrating the community into the guilty-plea process may also lengthen the average time of a plea disposition, thus costing the states and federal government money;

•plea jurors would lack knowledge of typical police practices and charging decisions and might lack the ability to assess the validity of plea agreements;

•plea juries could lead to serious inconsistencies between similar defendants;

•plea juries protect the public interest but could also potentially infringe upon the rights of the defendant, or result in competing definitions of rights;

•a plea jury might not be consistent with some definitions of community and could lead to community fragmentation; and

•a plea jury would lead to penal populism, which  is greatly unpopular in some quarters.

Conclusion

I think that Professor Appleman does a very nice job of explaining away some of these negatives and even turning some into positives (e.g., slowing down the plea bargaining process is costly, but it also puts the brakes on a plea bargaining system that has come to resemble The Candy Wrapping Job episode of "I Love Lucy.") I strong recommend that readers check out the entire article for Professor Appleman's full explication of the idea of a plea jury and her weighing of its pros and cons.  

What led me to Professor Appleman's piece was my own forthcoming article, which argues that judges should be allowed to participate in plea negotiations. My article was prompted by many of the same concerns with the current plea bargaining system that led to Professor Appleman's proposal, and, after reading her article, I think that I might actually prefer her approach over mine. Involving a judge in a plea negotiation might lead to a fairer plea bargain, and I think that it might lead to the defendant acknowledging the harm that he caused rather than playing a game of Let's Make a Deal. But it does not involve the community. It does not revive the idea of trial by jury. It is still very much a closed system, without public input or output. A plea jury accomplishes all of these goals, and, if adopted could fundamentally change the way that we look at criminal justice in this country.  

I asked Professor Appleman what led her to write the article, and she responded,

To briefly answer your question, I guess I was inspired to write the piece by the realization that all of the judicial and scholarly focus on the jury (including my own) wasn't that useful or applicable in a criminal justice system that disposed of 98% of its indictments by plea. Thus, to give real meaning to the jury trial right, we need to incorporate it into guilty pleas. The Plea Jury was the result. 

-CM 

We The Jury, Take 3: Illinois To Consider Codifying Procedure For Jury Questioning During Civil Trials

Last September, the Supreme Court of Illinois approved and promulgated Illinois Rules of Evidence, which took effect on January 1, 2011, making Illinois one of the last states to codify their rules of evidence. Now, if a proposal before the Illinois Supreme Court Rules Committee passes, Illinois will join other jurisdictions that have codified a procedure for permitting jurors to ask questions during (civil) trials.

The Illinois Supreme Court Rules Committee will hold a public hearing on Friday, May 20, 2011, beginning at 10 a.m., in Room C-500 at the Michael A. Bilandic Building, 160 N. LaSalle Street, in Chicago. One of the proposals on the public agenda hearing is Proposal 10-11 (P.R. 0184), which would create the following new Illinois Supreme Court Rule:

(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions to be posed to witnesses.

(b) Objections. Out of the presence of the jury but on the record, the court will read, or provide a copy of the questions to all counsel and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon the objections at that time and the question submitted by the juror will be either allowed to be read as written, allowed to be read as modified, or excluded.

(c) Questioning the Witness. If the question is allowed as written or as modified, the court or counsel will read the juror’s question to the witness in the jury’s presence, and the witness will answer the question. The court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.

(d) Admonishment to Jurors. At times before or during the trial that the court deems appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules of evidence that govern the case.

Anyone wishing to be scheduled to testify at the public hearing should advise the Committee in writing at the address noted above not later than Friday, May 13, 2011 at:

Supreme Court Rules Committee

c/o Administrative Office of the Illinois Courts

222 N. LaSalle Street, 13th Floor

Chicago, Illinois 60601

So, does the new rule make sense? I think so. Previously, I posted an entry about the Supreme Court of Florida mandating juror questioning in civil cases and allowing juror questioning in criminal cases. I then followed up that post with a second post about the first returns from Florida's new juror questioning framework. The results? Jurors rarely asked questions, but

according to both prosecutors and defense attorneys who have tried cases [where jurors asked questions], the process has improved the quality of the trials.  Meanwhile, jurors in those cases have claimed that the process has clarified issues and made their decisions easier. 

Admittedly, this is merely anecdotal evidence, but it at least somewhat confirms my initial inclination that jury questioning is a good idea. An article on the Illinois proposal offers another helpful anecdote:

[Attorney Stephen] Kaufmann said U.S. Judge Michael Mihm allowed juror questions at a recent trial in Peoria involving Illinois Department of Transportation employees who sued the state for wrongful termination. Kaufmann represented the state, which lost the case.

“They (the jurors) asked very insightful, intelligent questions,” he said.

The judge instructed jurors at the beginning of the case that there would be a process to ask questions, Kaufmann said.

“At conclusion of testimony, the judge asked if there were any questions,” he said. The juror would hand the written question to the bailiff, who would give it to the judge.

“There would be a sidebar conference on whether the question was appropriate, and the attorneys could object. The judge would ask the question, and the attorneys could follow up.”

In the Cook County case more than a decade ago, the process helped attorneys do a better job of answering questions that were on the minds of jurors, Kaufmann said.

“There was an expert witness who kept talking about various borings taken of the soil at a site that was alleged to have been contaminated,” Kaufmann said. “A juror asked the question, ‘Would somebody explain what a  boring is?’”

The article also cites to an article by Chicago-Kent law professor Nancy Marder, Answering Jurors’ Questions: Next Steps in Illinois, 41 Loy. U. Chi. L.J. 727 (2010), which contains a comprehensive analysis of the issue.

-CM 

 

10 Years Have Got Behind: DNH Finds Rule 609(b) Applies To Conviction Despite Plaintiff's Delay In Suing & Continuance

Federal Rule of Evidence 609(a)(2) provides that

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

Meanwhile, Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, if a witness was convicted (as defined in Rule 609(b)) of a crime of dishonesty or false statement 10 years or less before the subject trial, his conviction is per se admissible to impeach him. But if that conviction was more than 10 years before trial, the conviction is only admissible if its probative value substantially outweighs its prejudicial effect. So, what happens if a plaintiff gets injured at a ski resort, waits 3 years to sue the resort, and then requests a continuance, with the result being that the trial is held just after the 10 year window on his prior conviction has elapsed? According to the recent opinion of the United States District Court for the District of New Hampshire in Herbst v. L.B.O. Holding, Inc., 2011 WL 1655711 (D.N.H. 2011), the answer is that Rule 609(b)'s balancing test applies unless there is evidence that the plaintiff manipulated the calendar or the scheduling process.

In Herbst, in 2006, Edward Herbst suffered injuries such as a broken ankle after falling off an alpine slide at Attitash Bear Peak Resort, a ski area in Bartlett, New Hampshire that offers the slide as a summer recreational activity.

Herbst brought suit against the resort's owner, L.B.O. Holding, Inc. ("Attitash"), asserting claims for strict products liability and negligence. Specifically, he allege[d] that the slide is unreasonably dangerous to its riders, that Attitash was negligent in operating it, and that Attitash failed to adequately instruct and warn Herbst on its proper use. Attitash denie[d] those allegations and assert[ed] that Herbst's own negligence caused the accident.

Before trial, Attitash filed a motion in limine, which asked the court to deem inadmissible for impeachment purposes Herbst prior conviction for felony mail fraud. Attitash was convicted on July 30, 2009 and released from incarceration on (or before) January 1, 2000. Trial is scheduled for May 2011, meaning that Herbst was released from incarceration more than 10 years. But, according to Attitash, the reasons why the trial fell outside the 10 year window were that Herbst waited 3 years to sue and then requested a continuance. The court disagreed, finding that Attitash had "not shown that Herbst acted improperly in either regard, or that he 'manipulated either the calendar or the scheduling process in order to postpone the trial and allow the clock to run on [his] conviction.'"

Nonetheless, the court still granted Attitash's motion. Why? FIrst, the court found that

Herbst's mail fraud conviction ha[d] a direct bearing on his credibility and veracity, and thus a high degree of impeachment value. He demonstrated a willingness to defraud others to improve his own financial situation. Because Herbst is the primary, and in some respects only, witness to his accident and the ride(s) leading up to it (which allegedly affected his state of mind, making him feel the need to slide faster), and because Attitash contends that Herbst himself was at fault for the accident, his testimony is likely to be of great importance at trial, and his credibility is likely to be a particularly salient issue for the jury.

Moreover, the court held that

While the admission of a prior felony conviction always carries some risk of prejudice, that risk is much lower here than it would be, for example, in a criminal case brought against Herbst....

The risk of prejudice is further reduced because Herbst suffered objectively verifiable injuries in the accident (including a broken ankle) and is not the only person who has done so in recent years....Given that evidence, the jury is unlikely to regard the accident itself, or Herbst's decision to bring this lawsuit, as fraudulent, or to reject his claims merely because he has a criminal history. Rather, it is likely to consider Herbst's conviction for the limited, and proper, purpose of determining whether to believe his specific testimony regarding his conduct on the slide, the reasons for it (including his state of mind), and the pain and suffering it caused him.

Therefore, the court was able to conclude tha

the probative value of Herbst's mail fraud conviction substantially outweigh[ed] its prejudicial effect, and that it is in the interests of justice to admit it into evidence.

-CM