Saturday, May 14, 2011
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.
Friday, May 13, 2011
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.
Thursday, May 12, 2011
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."
Wednesday, May 11, 2011
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.
Tuesday, May 10, 2011
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."
Monday, May 9, 2011
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.
Sunday, May 8, 2011
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.