EvidenceProf Blog

Adoption Agent: 2nd Circuit Finds Notes From Agent's Interrogation Of Suspect Admissible As Adoptive Admission

Assume that a suspect in a crime is interviewed by an investigative agent and makes certain incriminatory statements. And, assume that, during the interview, the agent takes notes during the interview that are not a perfect transcription of exactly what the suspect. But, assume that the agent shows the notes to the suspect at the end of the interview and has the suspect review and sign the notes. Should the notes be admissible against the suspect at trial? According to the recent opinion of the Second Circuit in United States v. Stafford, 2011 WL 1938662 (2nd Cir. 2011), the answer is "yes."

In Stafford, Brian Stafford was convicted of one count of conspiracy to import cocaine and one count of conspiracy to distribute and possess with intent to distribute cocaine. He thereafter appealed, claiming, inter alia, "that the District Court erred in permitting the government to introduce as evidence the notes that an investigative agent took during an interview with Stafford." According to the Second Circuit,

It is undisputed that Stafford participated in a voluntary interview in which he was told that he was free to leave at any time. In the course of that interview, Stafford made various admissions regarding his involvement in the charged conspiracies. At the end, the investigative agent, who had been writing notes during the conversation, reviewed each line of his notes with defendant to ensure that they accurately reflected the contents of the interview. Stafford made minor corrections to the notes, agreed that the information therein (after the appropriate corrections were made) was accurate, and signed his name on the last page. 

The Second Circuit then found that the district court properly admitted these notes under Federal Rule of Evidence 801(d)(2)(B), which provides that 

A statement is not hearsay if...The statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth....

According to the court,

Stafford's thorough review of the agent's notes and acknowledgment of their accuracy adequately demonstrated his adoption of their contents. They were therefore admissible as non-hearsay. See Fed.R.Evid. 801(d)(2)(B) advisory committee's note ("Adoption or acquiescence may be manifested in any appropriate manner.").

-CM

Refreshment. SImply Delivered: Plaintiff's Attorney Properly Uses Rule 612 In DIscrimination Suit Against DHL

Federal Rule of Evidence 612 indicates that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

And, if you want a textbook example of a party properly utilizing Rule 612, you need look no further than the recent opinion of the First Circuit in Aponte-Rivera v. DHL Solutions (USA), Inc., 2011 WL 2027977 (1st Cir. 2011).

In Aponte-Rivera, Julissa Aponte–Rivera sued her former employer, DHL Solutions, Inc., claiming gender-based discrimination and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and Puerto Rico law. Specifically, Aponte-Rivera changed that the atmosphere at DHL changed in 2004, after Enrique Frias was named regional manager and became Aponte's supervisor.

While Aponte-Rivera testified at trial, her lawyer sought to establish that she received commendations at work prior to Frias's supervision beginning in 2004. To refresh her recollection of the commendations, her lawyer showed her documents dating from 2001 to 2004.

After the jury returned a verdict in favor of Aponte-Rivera and awarded her emotional distress damages, DHL appealed, claiming, inter alia, that the district court abused its discretion in allowing the Aponte-Rivera's attorney to use the documents to refresh her recollections. The First Circuit disagreed, finding that

Consistent with the requirements of Fed R. Evid. 612, the court ensured that DHL had copies of the documents, assured the documents were relevant to the case, allowed DHL to cross-examine Aponte regarding the recollections recorded, and instructed Aponte to testify to her own recollections and not hearsay. Aponte's counsel instructed her, "Don't read the documents. Just read the documents for yourself, and if that refreshes your recollection, tell the jury what....did you do to receive the commendations?" Aponte then described what she did to receive a commendation in each instance.

-CM 

Article of Interest: Recognizing Constitutional Rights at Sentencing, by Carissa Hessick and Andy Hessick

In Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), the Supreme Court famously found that "[i]t can hardly be argued that either students or teachers shed their constitutional rights...at the schoolhouse gate." In their terrific new article, Recognizing Constitutional Rights at Sentencing, 99 Cal. L. Rev. 47 (2011), Carissa Hessick and Andy Hessick, professors at the Arizona State University College of Law, argue that the same applies to criminal defendants who have been convicted and then go through the courthouse doors to the sentencing hearing. The purpose of this post is two-fold: (1) to lay out the reasoning of their article; and (2) to apply the reasoning to victim impact statements. 

Might Mean Rights

In Part I of the article, the authors begin by tracing the history of sentencing in this country and then note that "[t]hough most modern sentencing schemes afford judges discretion in imposing sentences, in recent times courts have nonetheless begun to recognize some constitutional limitations to that discretion."

As they note, "[m]ost of the constitutional rights recognized at sentencing have been procedural," including:

•the right to effective representation by counsel;

•(a limited version of) the privilege against self-incrimination;

•the due process right to advance notice of facts that a court relies on to impose a higher sentence; and

•the rights recognized in the Apprendi-Blakely line of cases.

The authors go on to point out, though, that "[c]ourts have also placed some substantive limitations on what courts may consider in imposing sentence," such as precluding courts from:

•basing a sentence on "materially untrue" assumptions about the defendant’s criminal record;

•considering a successful appeal of a conviction at resetencing;

•imposing a higher sentence to punish the defendant for successfully appealing her original conviction;

•considering race, national origin, or gender at sentencing;

•giving harsher sentences to nonresident defendants; and

•(according to some courts) allowing information about a defendant's religion (or lack thereof) at sentencing.

Few and Far Between

In Part II of the article, the authors begin by cautioning that while

the preceding Part might convey the impression that courts enforce the Constitution as rigorously at sentencing as in criminal trials, that is not accurate. Constitutional limitations on sentencing factors are the exception rather than the rule. For the most part, courts have not recognized constitutional limitations on what information may be considered at sentencing....The consequence is that courts have systematically failed to recognize a number of constitutional rights at sentencing that are otherwise recognized during trial....Instead of engaging in ordinary constitutional analysis when defendants challenge these factors, courts have swept constitutional concerns under the proverbial rug based on the ungrounded conclusion that the sentencing process is somehow unique and thus shielded from constitutional review.

The authors then highlight five sentencing factors, with the purpose of revealing "that there is at least a colorable constitutional objection to a number of traditional sentencing factors, and that courts have failed to grapple with these objections."

•Double Jeopardy: A number of jurisdictions permit the consideration at sentencing of criminal conduct for which the jury entered an acquittal. These courts conclude that such consideration does not violate the Double Jeopardy Clause by reasoning, inter alia, that such a sentencing enhancement does not constitute "punishment" for the acquitted conduct. For the authors, this explanation is unsatisfactory because when a sentence is enhanced based on acquitted conduct, the same conduct is the basis for both (1) the government’s first, unsuccessful effort to punish the defendant; and (2) the sentence enhancement applied after the government's second, successful attempt to punish the defendant for a different crime (for more on this issue, check out their article, Double Jeopardy as a Limit on Punishment (forthcoming Cornell Law Review));

•Guarantee of a Fair Trial: While the Sixth Amendment guarantees defendants the right to a fair trial, courts consistently allow sentencing enhancements for the aforementioned acquitted conduct as well as uncharged conduct. Such enhancements are troubling under the bedrock principle of the Sixth Amendment: that punishment for criminal conduct be based only on conviction by a jury. The same goes for courts, including the Supreme Court, upholding the imposition of longer sentences on those who refuse to plead guilty and have the temerity to go to trial, i.e., the "trial penalty." Courts defend these sentences by conceptualizing these longer sentences not as additional punishment, but instead as the absence of leniency afforded to those who plead guilty. But, according to the authors, the refusal to grant a defendant leniency that is given to others because the defendant performed some act—exercising his right to a jury—seems analytically indistinct from increasing that defendant’s punishment because he performed that same act;

•Self-Incrimination: In Mitchell v. United States, 526 U.S. 314, 328 (1999), the Supreme Court did find that under the Fifth Amendment a judge could not draw an adverse inference about the amount of drugs the defendant was involved in selling based on her silence. The Court, however, limited its holding "to factual determinations respecting the circumstances and details of the crime." Based on the Court's limited guidance, many courts have since concluded that judges can impose longer sentences when defendants fail to express remorse for their crimes. But for a defendant to express remorse for committing a crime, she must admit to having committed that crime, creating a possible Fifth Amendment violation;

•Free Speech: These remorse rulings as well as sentencing enhancements for defendants who affirmatively testify to a lack of remorse also raise First Amendment free speech issues. Courts have navigated around the First Amendment by not conceptualizing lack of remorse as a free speech issue, but the authors contend that a regulation of speech designed to reduce secondary effects -- such as recidvism -- is still a regulation of speech;

•Due Process: Courts frequently enhance sentences based upon predictions of future dangerousness, which the authors claim violates the Due Process requirements (1) that individuals only be punished based upon past acts; and (2) that individuals be given notice such that they can conform their behavior and avoid increased punishment.

Breaking Down the Defense(s)

In Part III, the authors challenge the three commonly cited justifications "for why constitutional rights ought not be recognized at sentencing."

•Historical Practice: As the authors note, courts first defend these sentencing practices by claiming that courts have historically used them. But, as they also note, this is not an originalism argument because courts at the founding engaged in determinate sentencing. The authors acknowledge that the Supreme Court has held that a "universal and long-established tradition" of allowing certain conduct may be reason to presume that the conduct is constitutional, but they find no such entrenched tradition with regard to the aforementioned sentencing enhancements. Indeed, they note that the recent shift from courts viewing sentencing as a wholly informal proceeding to courts increasingly recognizing procedural rights at sentencing suggests a growing commitment to protecting rights at sentencing rather than to disregarding them;

•Forfeiture: Courts used to find that defendants, by being convicted, forfeited their constitutional rights at sentencing, but the authors are hardly surprised  that modern courts have not relied on the forfeiture theory in rejecting constitutional challenges to sentencing factors. They point to a variety of reasons for this reluctance, such as the fact that the Eighth Amendment prohibition on cruel and unusual punishments can only apply after a defendant has been convicted. The main thrust of their argument is that "[a]t its core, the theory of forfeiture rests on the assumption that the Constitution’s protections against the government apply only at criminal trial and not at sentencing after the defendant is found guilty of a crime. This assumption may have made sense when sentences were determined largely by the crime of conviction, but it is no longer sound now that sentences depend on factors other than the fact of conviction;"

•Incompatible With the Goals of Sentencing: (1) Information Maximization: Relying on Williams v. New York, 337 U.S. 241 (1949), courts have upheld reliance on questionable sentencing factors by arguing that more information is better and that a judge's sentencing ability would be hampered if the information stream were cut off. In addition to pointing out that Williams has been overruled, the authors level three criticisms against this information maximization defense: (a) it turns constitutional law on its head by sacrificing individual rights for governmental goals; (b) it ignores the due process limitation on unbridled judicial discretion; and (c) it falsely assumes that there is a single correct sentence for each defendant

(2) The Theories of Punishment: One final defense of constitutionally questionable sentencing factors is that consideration of those factors is necessary to impose sentences that appropriately punish defendants under the various theories of punishment. (a) One main theory of punishment is retributivism, but the authors contend, inter alia, that future dangerousness is inconsistent with this theory of punishment, and they allege more generally that retributivism does not comfortably allow for punishment based on constitutionally protected conduct. (b) The other main theory is utilitarianism, and the authors contend that courts have not articulated any clear theory as to why questionable evidence should be more readily admissible at the sentencing stage of trial than the guilt stage of trial under this theory. 

Conclusion

Based upon this analysis, the authors propose two possible solutions: (1) simply to exclude consideration of constitutionally doubtful sentencing factors; and (2) for judges to undertake a close analysis of the constitutionality of the sentencing factors that they identified. The authors advocate for this second solution, which I think makes a great deal of sense. As they note,

a judicial finding that a particular sentencing factor impinges on a defendant’s constitutional rights need not automatically result in the exclusion of that sentencing factor. Constitutional rights are not absolute. Courts could subject constitutionally doubtful sentencing factors to the same scrutiny that would apply in other contexts. For example, in determining whether to enhance a sentence for lack of remorse, courts would apply heightened scrutiny, the standard usually applied in assessing the constitutionality of evaluating laws coercing speech.

As they go on to note, there are costs to society if courts cannot consider sentencing factors because it would mean a shift back to more determinate sentencing, with some defendants being punished too leniently and others being punished too harshly. But exposing sentencing factors to heightened scrutiny,

may actually reduce these costs to society. To return to the previous example involving lack of remorse, if courts concluded that enhancements for lack of remorse infringe the First Amendment, courts could still impose the enhancement if the government demonstrated a sufficiently high correlation between a defendant’s refusal to express remorse and a propensity to commit future crime. Making this showing would require studies on whether lack of remorse is, in fact, an accurate predictor of recidivism. Such studies may reduce social costs if they reveal that some traditional sentencing factors that have not been subjected to empirical study are not accurate predictors of recidivism. This effort would lead the government to identify those factors that are reliable predictors of recidivism instead of relying on intuition.

I think that, as with many of the authors' previous articles (see, e.g., here, here, and here), this piece makes a significant contribution to the tumultuous state of the law surrounding sentencing, and I strongly recommend that readers check out the full article for the authors' complete analysis.

Victim Impact Evidence

The authors consciously chose to steer clear of procedural, issues, so I thought that I would spend the second part of this post preliminarily applying  their analysis to victim impact evidence.

In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court held that the Eighth Amendment per se prohibits a capital sentencing jury from considering victim impact evidence. Four years later, in Payne v. Tennessee, 501 U.S. 808 (1991), a defendant was convicted of murdering a 3 year-old boy's baby sister and mother. At the capital sentencing hearing, the boy's grandmother testified that the boy missed his baby sister and mother, and "the prosecutor commented on the continuing effects on [the boy] of his experience and on the effects of the crimes upon the victims' family." In affirming the defendant's death sentence, the Payne Court overruled Booth, found that the Eighth Amendment did not per se prohibit the consideration of victim impact evidence, and held that "[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief."

I see victim impact evidence as similar to future dangerousness evidence. As the authors noted in their article, a few defendants have challenged judicial findings of future dangerousness on due process grounds, but they'e run into a wall: Jurek v. Texas, 428 U.S. 262 (1976), in which the Supreme Court held that "prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system."

The score's somewhat the same with defendant's challenging victim impact evidence. While the Payne Court did declare that victim evidence can violate the Due Process Clause, it also held that "[i]n the majority of cases,...victim impact evidence serves entirely legitimate purposes." Inevitably, then, when defendants claim that victim impact evidence violates the Due Process Clause, courts cite to Payne, not to hold that the evidence violated the Due Process Clause, but to find that the evidence was presumptively admissible.

Indeed, the Payne Court's due process language has lay fallow for the last two decades, with courts viewing the Clause as a speed bump that victim impact evidence almost always clears rather than a hurdle that must be carefully crossed. And this might be okay if victim impact evidence in most cases today bore any resemblance to the grandmother's words in Payne. But it doen't. For example, take a look at the 20+ minute professionally produced victim impact statement video from Kelly v. California, a case in which the Supreme Court did not grant cert.

I've written about Kelly on a few occasions (see here here, and here). It presents a nice microcosm of the problems that have arisen as courts try to apply the Payne due process analysis in the absence of any real guidance. In Kelly, the prosecution's victim impact evidence was accompanied by music from Enya. The defendant cited to United States v. Sampson, 335 F.Supp.2d 166, 191 (D. Mass. 2004), one of the rare cases in which a court has found that victim impact evidence violated the Due Process Clause. In Sampson, the videotaped victim impact statement had music from the Beatles and James Taylor, and this "evocative contemporary music" rendered the sentencing hearing fundamentally unfair according to the court. The court in Kelly, however, found that the Enya music in the video before it was "generally soft, not stirring," with most of the words unrecognizable, meaning that it didn't render the sentencing hearing fundamentally unfair.

While, as noted, the Supreme Court denied cert in Kelly, Justice Stevens dissented, arguing, inter alia, that

even under the rule announced in Payne, the prosecution's ability to admit such powerful and prejudicial evidence is not boundless.  These videos are a far cry from the written victim impact evidence at issue in Booth and the brief oral testimony condoned in Payne.  In their form, length, and scope, they vastly exceed the 'quick glimpse' the Court's majority contemplated when it overruled Booth in 1991.  At the very least, the petitions now before us invite the Court to apply the standard announced in Payne, and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence.  Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor's side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use.

So, why do I agree with Justice Stevens' based upon the above article? Well, let's start with the issue of why victim impact evidence might violate the Due Process Clause, a question that courts have not clearly answered. 

Obviously, the use of manipulative music and images can render a sentencing hearing fundamentally unfair, which seemed to the focus of the Payne Court. But what about the issue of notice? The authors claimed that future dangerousness evidence might violate the due process requirement that individuals be given notice such that they can conform their behavior and avoid increased punishment. Are defendants given such notice of victim impact evidence?

I think that the answer is a clear "no." Victim impact evidence is a non-statutory aggravating factor, which means that many defendants might not know that their punishments can be increased based upon the impact that their killings have on the victims' families. Moreover, "[t]he courts of appeals have split on the need for advance notice of an upward departure based onvictim impact statements." Paul G. Cassell, Treating Crime Victims Fairly: Integrating Victims Into the Federal Rules of Criminal Procedure, 2007 Utah. L. Rev. 861, 937 (2007). Finally, even if we think that most people are now aware, and thus have notice, that victim impact evidence is admissible,

notice that a sentence may rest on pernicious factors does not cure the factors' perniciousness. It would not, for example, cure an equal protection problem to give defendants notice that they are more likely to receive death sentences if they or their victims are black, rather than white. Moreover, in the capital sentencing context, even aggravating factors that are permissible must be specified in advance, by the legislature. Susan Bandes, Reply to Paul Cassell, What We Know About Victim Impact Statements, 1999 Utah L. Rev. 545, 546 n.8 (1999).

Let's look next at the historical practice defense. As the authors noted, some courts defend the continued use of certain sentencing factors such as future dangerousness because they have historically considered such factors. But, as noted, victim impact evidence is not nearly so firmly rooted. It wasn't until 1979, that the first court allowed information regarding the impact of a crime, and the Supreme Court did not approve of victim impact evidence until Payne in 1991. See Michael A. Johnson, Note, The Application of Victim Impact Statements in Capital Cases in the Aftermath of Booth v. Maryland: An Impact No More, 13 T. Marshall L. Rev. 109, 111 (1987-1988).

In terms of forfeiture, victim impact evidence is only potentially admissible at sentencing, so, applying the authors' analysis, it makes no sense to say that the defendant forfeits his Eighth Amendment and due process objections to such evidence by being convicted.

So, what about theories of punishment? A frequent defense of victim impact evidence is that it is necessary to punish individuals pursuant to the retributionist theory of punishment; indeed, some have claimed that "he only justification to which victim impact evidence directly relates is retribution." Catherine Bendor, Defendants' Wrongs and Victims' Rights: Payne v. Tennessee, 11 S.Ct. 2597, 27 Harv. C.R.-C.L. Rev. 219, 234 (1992). But other disagree. For instance, in State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty, 40 Harv. C.R.-C.L. 407, 455 (2007), Dan Markel argues that

most retributivists would demur at lending victims a direct role in sentencing, say, by permitting a victim impact statement to be read prior to sentencing. The concern is that the judge or jury would be swayed to harshness or leniency as a result, and the problem with that, from a retributive perspective, is the disruption of the equality norm. Specifically, if victims or their survivors have a role that directly influences sentences, then the sentence that an offender receives may hinge on whether the jury finds the victim or his allies persuasive or sympathetic. Just as one victim's family may urge especial harshness against an offender, another victim may be surpassingly compassionate, in which case the offender may receive an unwarranted request for no punishment or unusually lenient punishment. This advantages him as compared to similarly situated offenders who committed the same offense.

And what about the utilitarian theory of punishment? Well, if we believe the Bender quote from above, victim impact evidence doesn't directly relate to utilitarianism. Indeed, in The Impact of Information Overload on the Capital Jury's Ability to Assess Aggravating and Mitigating Factors, 17 Wm. & Mary Bill Rts. J. 1089, 1125-26 (2009), Katie Morgan and Michael J. Zydney Mannheimer argue that capital "jurors are often asked to weigh incommensurables: the utilitarian-based idea that very dangerous offenders must be permanently incapacitated by death, added to the harm-based retributivist values reflected by victim impact evidence, balanced against the intent-based retributivist notion of diminished culpability often underlying the mitigating evidence." 

It thus seems like there is a solid argument that victim impact evidence cannot be defended on either retributionist or utilitarian grounds. It therefore seems to be on somewhat equal footing with future dangerousness evidence. So, what's the solution?

Well, as the authors note, there are two possible solutions. The first is to ban victim impact evidence altogether (see, e.g., here). The other, probably preferable, solution is to subject such evidence "to the same scrutiny that would apply in other contexts." In other words, the solution is to finally flesh out the test first laid out by the Court in Payne. Let's return to the Markel article from above. He notes that:

Undoubtedly, it is better that victims or survivors not be re-traumatized and that they find the psychological healing they need. A good state and the rich panoply of societal institutions within it should make this therapy available to the extent possible. But it is purely speculative—if not illusory—to assert that the death or cruel punishment of the offender will necessarily achieve that healing, or that other means will not provide the closure victims seek. Indeed, there "is no evidence that families of murder victims in non-death states such as Michigan or Wisconsin endure more lasting pain than families of murder victims in death states such as Texas or Ohio." In other words, the death penalty is not a means narrowly tailored to satisfy the state's legitimate end of healing the wounds of crime victims. Moreover, to the extent that victims participate in the decision to impose the death penalty, and to the extent the death penalty is imposed because of the positive personal characteristics of the victim or the economic and social dislocations caused by a particular victim's death, then the imposition of death will be distributed on the basis of morally immaterial features of the victim or her family. Thus, the use ofvictim impact evidence undercuts the retributivist commitment to the fair and equal application of criminal sanctions. (emphasis added).

Now, a court may agree or disagree with Markel about whether victim impact evidence is narrowly tailored to satisfy legitimate state interests, but the point is that they should apply a similar type of scrutiny to victim impact evidence rather than just glibly citing to Payne and engaging in matador style judging. And again, that's exactly the point of the authors' article. I asked the authors what led them to write the article, and Carissa Hessick responded that

Andy and I have collaborated on a few different articles --- being married to another law professor means that we spend *a lot* of time talking about law with one another.  A few times, when talking through a problem with our research or a case one of us read, we've hit upon a topic on which we've both been able to contribute.  This article, for example, arose out of a problem that I confronted writing another paper.  Andy and I were having dinner, I was complaining about a series of cases that I'd been reading that day, and he observed that the issue bothering me was the fact that government actors were permitted to use facts and factors to adjust the amount of punishment a person receives, even when that fact or factor, standing alone, would have been an unconstitutional ground for punishment.

I'm very interested to see your post on due process and victim impact statements.  Our article you read specifically skirted procedural issues, but I'm working on a new paper about sentencing inputs and procedures so I'm quite interested in seeing what you have to say.

-CM

So Turn And Forfeit: Does A Wrongdoing Party Forfeit The Right To Impeach?

I was recently posed an interesting question. Federal Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

Meanwhile, Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

So, assume that a court finds that a defendant engaged in forfeiture by wrongdoing and allows the prosecution to admit the unavailable declarant's hearsay statement(s) against the defendant. Then, assume that the defendant wants to impeach the declarant pursuant to Federal Rule of Evidence 806 or a state counterpart. Has the defendant also forfeited his right to impeach the declarant like he forfeited his hearsay and Confrontation Clause objections? 

My initial inclination was to say "no," and, in support, I found Sohail v. State, 264 S.W.3d 251 (Tex.App.-Houston [1 Dist.] 2008), in which a Texas trial court permitted the prosecution to admit statements made by the complainant to police and her parents under the doctrine of forfeiture by wrongdoing and precluded the defendant from impeaching the complainant/declarant. In finding that the trial court committed error, the Court of Appeals of Texas concluded that

In the present case, complainant did not testify at the guilt-innocence stage of the trial, but her statements to police and to her parents were admissible out-of-court statements. Appellant is correct that he had a right to impeach complainant's credibility through other evidence, including hearsay. See TEX.R.EVID. 806....The trial court excluded testimony by appellant's sister, to whom complainant said that the assault was an accident. This inconsistent statement by complainant reflects on complainant's credibility and would have been admissible had complainant testified as a witness....Thus it was error for the trial court to exclude appellant's impeachment evidence. 

On the other hand, you have the opinion of the Court of Appeals of New York in People v. Bosier, 847 N.E.2d 1158 (N.Y. 2006). In Bosier, a prospective witness against a defendant testified at a first grand jury proceeding and a second grand jury proceeding. At trial, the court applied the doctrine of forfeiture by wrongdoing (forfeiture by misconduct in New York) and allowed the prosecution to introduce the (now unavailable) witness' testimony from the second grand jury proceeding against the defendant. The defendant then sought to impeach the declarant through his testimony at the first grand jury proceeding, which contradicted some of his testimony from the second proceeding, but the trial court precluded such impeachment. The Court of Appeals of New York ultimately affirmed, concluding that

The trial judge has discretion to permit such impeachment where there is a possibility that, if it is not allowed, the jury will be misled into giving too much weight to the statement offered by the prosecution. But such impeachment need not always be allowed. Where impeachment is permitted, the defendant, in direct contravention of the most basic legal principles and the policy objectives of Geraci, may benefit from his or her own wrongful conduct because the prosecution will have no opportunity to rehabilitate the witness by clarifying any unclear or inconsistent testimony proffered by the defendant. Here, where the inconsistency defendant relied on did not go to the heart of the prosecution's case and might well have been credibly explained if the witness had been present, it was not an abuse of discretion to exclude the impeaching evidence.

So, what does readers think? When a defendant forfeits his right to confront a hearsay declarant, does he also forfeit his right to impeach him? As I said, my first inclination was to say "no," but I sort of see the logic of the Court of Appeals of New York. In cases of prior inconsistent statements, it is because of the defendant's wrongdoing that the prosecution can't rehabilitate the declarant by having him explain the differences between the two statements. In cases of prior conviction impeachment, it is because of the defendant's wrongdoing that the prosecution can't rehabilitate the declarant by having him testify that he's a changed man. Etc., etc. Is that enough to preclude (at least in some cases) impeachment by the wrongdoing defendant?

-CM

Whole Grain: ND OH Opinion Reveals Rule 407 Doesn't Cover Plaintiff Subsequent Remedial Measures, But Rule 403 Does

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

So, if a plaintiff claims that a defendant's instrumentality was defective and that this defect caused the plaintiff to suffer damages, the plaintiff cannot present evidence of improvements by the defendant (subsequent remedial measures) to prove that the instrumentality was previously defective. But what if a defendant wants to present evidence of a subsequent remedial measure by a plainti? As the recent opinion of the United States District Court for the Northern District of Ohio in Younglove Const. v. PSD Development, 2011 WL 1933755 (N.D.Ohio 2011), makes clear, Rule 407 does not deem such evidence inadmissible, but courts often exclude it under Federal Rule of Evidence 403.

In PSD,

Younglove Construction, LLC...entered into a written contract with PSD Development, LLC...for the construction of a Feed Manufacturing Plant to be located at 7148 State Highway 199, Upper Sandusky, Ohio, (the "Project")....As a part of the Project, Younglove was to build a grain bin and foundation and provide related parts and accessories at the PSD facility (the "Bin")....Younglove entered into a subcontract agreement with CAS, whereby CAS was to build the Bin, provide Bin parts and accessories and build and design the Bin foundation for the Project.

Younglove thereafter brought an action sounding in, inter alia, breach of contract against PSD, and PSD brought a third-party complaint against CAS. After Younglove brought its action, it "made a number of modifications to the grain bin and tunnel, including: adding warning signs next to exterior outlets in the bin tunnel, placing chains and locks on exterior outlet gates, enlarging the center outlet channel and adding one exterior outlet." CAS anticipated that PSD would try to "use evidence of these subsequent remedial measures to attempt to prove that the bin was defective as-built and to show breach of the signage and training provisions of the prime contract." Therefore, CAS brought a motion in limine to exclude this evidence.

In addressing this motion, the Northern District of Ohio noted that

The Sixth Circuit has not decided whether Rule 407 applies to evidence of subsequent remedial measures by a non-defendant, but as PSD points out, "every other Court of Appeals that has considered the issue has held that Rule 407 does not require the exclusion of subsequent remedial measures taken by a non-defendant." Bowling v. Scott Co., 2006 WL 2336333, *5 (E.D.Tenn.) (collecting cases). 

Although the court agreed with these courts, it noted that it could still exclude subsequent remedial measure evidence if it was lacking in relevance or if, under Federal Rule of Evidence 403, its probative value was substantially outweighed by the danger of unfair prejudice. And it did just that, finding that

PSD must prove that it did not receive that for which it contracted. The recommendations of CAS and Brock are relevant to that end. Evidence about the alleged inadequacies of the as-built grain bin are obviously relevant. The necessity of repair is relevant. But the relevance of the modifications themselves is marginal at best to the issue of whether there was a breach. Any marginal relevance that this evidence might have is substantially outweighed by the danger of unfair prejudice.

-CM

How Long Must I Dream?: District Of Colorado Finds Sleeping Juror Can Lead To 6th Amendment Claim, Despite Tanner

In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court held that post-trial juror testimony that, during trial, jurors were falling asleep, drinking alcohol, and using and selling drugs was inadmissible under Federal Rule of Evidence 606(b), which provides in relevant part 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 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.

Moreover, the Court found that the trial court did not violate the district court did not violate the petitioners' Sixth Amendment right to a competent jury by applying Rule 606(b) to preclude jury impeachment on these topics. As the United States District Court for the District of Colorado noted in its recent opinion in Fletcher v. Hartley, 2011 WL 1843316 (D. Colo. 2011), however, the Court did in Tanner didn't answer a related question: If a court allows jury impeachment regarding jurors sleeping during trial, should that court find that a sleeping jurors violates the Sixth Amendment right to a competent jury?

In Hartley, Charles Fletcher was convicted of attempted second degree murder, first degree assault, second degree kidnapping, two counts of aggravated robbery, two counts of second degree assault, conspiracy to commit aggravated robbery, and accessory to aggravated robbery. Fletcher thereafter moved for a new trial, claiming, inter alia, jury misconduct. In support of this motion, Fletcher submitted the affidavit of Iris Bell, who allegedly talked with a juror who sat in Fletcher's case and

"said he 'nodded off' during the jury trial. [He] said he felt it was 'okay to nod off, because he saw the judge sleeping and thought if the judge was sleeping, the evidence being presented must not haven been that important to listen to.'" The affidavit goes on to state that the juror "doesn't know at which stage of the trial he 'nodded off', but he said he nodded off a few times. He noted that he believed he saw the judge sleeping more than once." 

The court refused to give Fletcher a new trial, and, after he unsuccessfully appealed in the Colorado state court system, Fletcher filed a an application for a writ of habeas corpus with the United States District Court for the District of Colorado. The government responded by relying "on Tanner for the proposition that 'a juror who falls asleep during testimony is not per se incompetent." The court, however, "declin[d]e to adopt such a broad reading of that case." According to the court, "the Tanner Court did not hold that jurors' sleeping during trial is, or is not, per se incompetent under the Sixth Amendment, but, rather, that a court's refusal to allow juror testimony concerning such behavior does not violate the Sixth Amendment."

That said, the court concluded that Fletcher was only entitled to habeas relief if it could be established that the alleged misconduct "had substantial and injurious effect or influence in determining the jury's verdict." And, he court was unable to find such substantial and injurious effect or influence based upon the lack of specificity regarding when and for how long the juror slept during the trial (the court didn't mention the allegation that the judge himself slept during trial).

-CM

Make Me Whole, Take 7: Court Of Appeals Of Minnesota Finds No Problem With Impeachment Via Terroristic Threats Conviction

Similar to its federal counterpart, Minnesota Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

In other words, if a witness has a conviction for as crime involving dishonesty or false statement (e.g., perjury, larceny by trick), the conviction is automatically admissible to impeach the witness, i.e., to show that his testimony is not trustworthy. If a witness has a conviction for a crime not involving dishonesty or false statement, the conviction will only be admissible if its probative value for showing that the witness' testimony is not trustworthy outweighs the prejudicial effect of the conviction. Most courts hold that a prior conviction can only be admissible under Rule 609(a) if it is for a crime that has some bearing on witness honesty. As I have noted in several posts (here, here, here, here, here, and here), Minnesota courts are not among these courts. The latest example can be found in the recent opinion of the Court of Appeals of Minnesota in State v. Odeneal, 2011 WL 1833018 (Minn.App. 2011).

In Odeneal, Gregory Odeneal was convicted of third-degree criminal sexual conduct. After Odeneal testified at trial, the prosecution impeached him through evidence of his 2005 felony conviction for making terroristic threats. Although Odeneal did not object to the admission of this conviction at trial, it formed the partial basis for his appeal.

In addressing that appeal, the Court of Appeals of Minnesota noted that the district court should have applied five factors derived from State v. Jones, 271 N.W.2d 534 (Minn. 1978), in determining whether the probative value of the prior conviction outweighed its prejudicial effect:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.

The Court of Appeals then noted that the district court did not address these Jones factors, which was erroneous, but it found that "the error is harmless if the conviction could have been admitted after a proper application of the Jones-factor analysis." According to the court, under this first factor

Appellant argue[d] that his 2005 felony conviction of terroristic threats should have been excluded because it [wa]s not probative of his credibility. But the supreme court has concluded that Minn. R. Evid. 609 "clearly sanctions the use of felonies...not directly related to truth or falsity for purposes of impeachment, and thus necessarily recognizes that a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility."..."[I]mpeachment by prior crime aids the jury by allowing it 'to see "the whole person" and thus to judge better the truth of his testimony.'"...

Appellant argue[d] that commentators and courts in other jurisdictions have criticized the whole-person rationale and have also recognized that jurors tend to misuse prior convictions as propensity evidence, but we do not have the liberty to disregard established Minnesota law on the subject....Moreover, appellant did not challenge the whole-person rationale before the district court, which permits the conclusion that the argument is waived. 

So, there you have it, once again. You can check out the court's opinion for the court's discussion of the other four factors, but, as the above analysis makes clear, Minnesota courts always find that the first factor favors admission. I don't see how the making of a terroristic threat in any way supports the inference that a witness is untrustworthy; indeed, a main reason why such a person is punished is the fear that he will follow through on his threat. And yet, Minnesota courts continue to find that any and every conviction has enough impeachment value to satisfy the first factor because it allows the jury to see the witness' whole person.

But, if that's the case, why does Minnesota continue to exclude propensity character evidence? I guess that's a question for another day.

-CM